Kathleen Mole v. Buckhorn Rubber ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-1500
___________
Kathleen Mole, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Buckhorn Rubber Products, Inc., *
*
Defendant - Appellee. *
___________
Submitted: September 22, 1998
Filed: February 1, 1999
___________
Before BEAM, LAY, and LOKEN, Circuit Judges.
___________
LOKEN, Circuit Judge.
Kathleen Mole commenced this action alleging that Buckhorn Rubber Products,
Inc. (“Buckhorn”), violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101-
12213 (“ADA”), and the Missouri Human Rights Act, Mo. Rev. Stat. § 213.055.1(1)
(“MHRA”), when it fired her for persistent poor job performance despite knowledge
of her disabilities, multiple sclerosis (“MS”) and severe depression. The district court1
granted summary judgment dismissing these claims, concluding Mole failed to present
sufficient evidence to establish two elements of a prima facie case of disability
discrimination or a triable issue of pretext. Mole appeals. We review the grant of
summary judgment de novo, viewing the record in the light most favorable to Mole,
the non-moving party. See Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311,
1315 (8th Cir. 1996). We affirm.
Buckhorn hired Mole in 1982 as a clerk/typist in Hannibal, Missouri. In 1987,
she was promoted to customer service coordinator and transferred with the Sales
Customer Service Department to Ohio, where she later received another promotion.
In 1990, Buckhorn relocated the Sales Customer Service Department back to the
Hannibal facility, promoting Mole to senior customer service coordinator. Mole
received excellent job performance reviews throughout this period.
Mole Develops Job Performance Problems. David Johnston became Mole’s
supervisor in April 1991. In her December 1991 written Performance Appraisal,
Johnston rated Mole as “needing improvement” in four of ten performance categories,
criticizing her for a negative attitude towards customers and for failing to provide
leadership and direction to fellow employees. Mole rated her own performance as
good, considering the division was short-staffed, but acknowledged that she needed to
“handle stress better.” Johnston met with Mole numerous times in 1992, sometimes
in the company of Ronald Meyer, Buckhorn’s industrial relations manager, to comment
on her unsatisfactory performance. In late 1992, Johnston sent Mole a memo in which
he noted “key mistakes in the past few months,” criticized her failure to follow
instructions, and warned her that a failure to improve could result in “appropriate
1
The HONORABLE GEORGE F. GUNN, JR., United States District Judge for
the Eastern District of Missouri, who to our great regret has died since completing his
work on this case.
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disciplinary action.” In early 1993, Buckhorn transferred some important customer
accounts from Mole to the other customer service coordinator, Angela Dillman.
Dillman testified that she discovered errors and heard customer complaints after taking
over some of Mole’s accounts. Buckhorn’s receptionist testified that she received
complaints from customers who asked to be transferred to someone other than Mole.
In June 1993, Johnston authored another written performance review, rating
Mole as “needing improvement” in six categories, “marginal” in two, and “effective”
in two. Johnston noted that Mole resisted change in the department, had a negative
attitude with customers, and made errors. After stating that Mole was being demoted
to customer service coordinator, the review concluded:
Kathy has been ill during the past eighteen months, and the extent to
which her illness has contributed to her poor performance is not easily
gauged. The timing of this review is such that Kathy has just returned to
work from her illness. If her performance should significantly improve
in the months following her return from this illness, I will gladly review
her again in six to nine months.
Johnston prepared another written performance review in December 1993, rating Mole
as “needing improvement” in six and “marginal” in four categories, and noting that she
continued to have problems with lack of motivation, disorganized work space, and
customer relations. Meyer added a handwritten comment at the end of this document:
“Within the next 6 months we will determine whether Kathy will remain in her
Customer Service position. Her performance must substantially improve
immediately.” Mole’s written self-assessment stated that she had done the job to the
best of her ability and commented, “I do not feel my having M/S should be held
against me.”
On February 10, 1994, Johnston met with Mole and delivered a memorandum
detailing five instances of significant customer order errors and concluding: “In your
last review you were told that you would have to improve in all aspects of the job, and
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to date I have not noted any such improvement. Continued lack of improvement will
lead to termination.”
Mole Develops MS and Depression. In April 1993, Mole began experiencing
difficulty with her balance, memory, vision, and a weakened right leg. In early May,
Meyer learned that Mole was suffering from headaches and dizziness. He referred her
to a medical specialist and, when an initial appointment suggested a need for further
testing, placed her on paid sick leave for that purpose. After Dr. Irving Asher
diagnosed Mole as having MS, Buckhorn placed her on paid sick leave for over two
weeks, and she was hospitalized and treated with steroids and anti-depressant
medication. In June 1993, Dr. Asher examined Mole again and suggested she rest at
home for two weeks to alleviate her heat sensitivity and fatigue. Buckhorn granted this
request. Mole’s depression fluctuated between August and October, while her physical
condition remained stable until November, when she was again hospitalized.
On December 15, Johnston met with Mole to discuss her health and “glean an
understanding of her condition.” Mole said she was feeling fine and confirmed that
her doctor had approved her return to work. She was nervous and cried through much
of the meeting, particularly when her handling of customers was criticized. Mole
returned to work but suffered a seizure on December 17 and was again hospitalized.
Her physical condition had improved by early January 1994, and in March she had a
“normal” exam, following which Dr. Asher called Meyer at Buckhorn and found him
“very supportive.” Meyer stated that Mole had “improved over the course of her
treatment” and suggested another leave of absence, if needed. Dr. Asher did not
suggest and Mole did not request a leave of absence.
Mole Is Terminated. On June 10, 1994, Johnston authored a Performance
Update. He stated that Mole “is putting forth her very best effort to improve her
performance [but] this improvement is inadequate.” After outlining several costly
customer order errors, Johnston recommended that Mole be terminated. On June 30,
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Johnston and Meyer met with Mole and delivered a two-week notice of termination.
The notice advised, “The date of your termination will be July 14, 1994, and the last
day of active employment will be today, June 30, 1994.” That same day, Buckhorn’s
general manager sent Mole a letter explaining “the different insurance benefits and
welfare plans you could be eligible for if you would need to go on to total disability.”
Mole met with Buckhorn officials on July 14. She asked to be accommodated with rest
breaks, days off, and the addition of a third customer service coordinator. She
presented a July 11 memorandum from Dr. Asher stating:
Ms. Mole has multiple sclerosis. I believe her inability to function
adequately at work has been due to her illness. Multiple sclerosis will be
a lifelong illness for her and will likely fluctuate considerably.
Buckhorn declined to reinstate her.
Mole commenced this action in October 1995, alleging that Buckhorn violated
the ADA and the MHRA by refusing to accommodate her disability and terminating
her. The ADA prohibits covered employers, such as Buckhorn, from “discriminat[ing]
against a qualified individual with a disability because of the disability.” 42 U.S.C.
§ 12112 (a). A qualified individual with a disability is one “who, with or without
reasonable accommodation, can perform the essential functions of the employment
position.” 42 U.S.C. § 12111(8). Disability discrimination is defined to include “not
making reasonable accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability.” 42 U.S.C. § 12112(b)(5)(A).
To establish a prima facie case of disability discrimination under the ADA, Mole
must show that at the time in question she was disabled, was qualified to perform the
essential functions of her job with or without reasonable accommodation, and was
terminated under circumstances that raise an inference of unlawful disability
discrimination. See Price v. S-B Power Tool, 75 F.3d 362, 365 (8th Cir.), cert. denied,
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117 S. Ct. 274 (1996). The same analysis applies to claims under the MHRA. See
Mathews v. Trilolgy Communications, Inc., 143 F.3d 1160, 1164 n.5 (8th Cir. 1998).
The district court concluded that Mole failed to establish the second and third
prongs of her prima facie case.2 She was not qualified to perform the essential
functions of her job, the court explained, because “her problems in the position since
1991 were well-documented and affected the essential functions of the job,” she “does
not dispute that she made the errors or the significance of those errors,” she “did not
provide in a timely manner any suggested accommodations that would have cured the
problems,” and some of the accommodations she requested after termination were
unreasonable. Mole’s discharge did not give rise to an inference of disability
discrimination, the court concluded, because her negative performance reviews began
before Buckhorn knew she had MS and her assertion that Buckhorn fired her to reduce
the self-insured costs of future MS treatment was sheer speculation. Alternatively, the
court concluded that even if Mole established a prima facie case of disability
discrimination, Buckhorn offered a legitimate reason for termination, her poor job
performance, and Mole presented insufficient evidence of pretext. After careful
review, we agree with this assessment of the summary judgment record.
Qualified Individual with a Disability. To be a “qualified individual” entitled
to ADA protection, “a plaintiff must show that [her] work performance met the
employer’s legitimate job expectations,” with or without reasonable accommodation.
Wilking v. County of Ramsey, 153 F.3d 869, 873 (8th Cir. 1998) (quotation omitted).
2
On appeal, the parties debate whether Mole has a “disability” as defined in the
ADA and therefore satisfied the first prong of her prima facie case. The district court
concluded this was a genuine issue of material fact, and we need not consider it. For
the resolution of this issue in other ADA cases involving plaintiffs suffering from MS,
see Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 786 (8th Cir. 1998); Leffel v.
Valley Fin. Servs., 113 F.3d 787, 792 (7th Cir.), cert. denied, 118 S. Ct. 416 (1997);
and Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 884-85 (6th Cir. 1996).
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It is undisputed that Mole had the necessary experience and training for the position
of customer service representative, and performed more than adequately in that
position for many years. However, Buckhorn documented serious performance
deficiencies beginning in 1991 and Mole’s failure to meet repeated demands for
improved performance from 1992 until she was terminated in June 1994. An ADA
plaintiff may not rely upon past performance to establish that she is a qualified
individual without accommodation when the employer has produced undisputed
evidence of diminished or deteriorated abilities.
Mole argues Buckhorn failed to define the essential functions of her position.
See Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1113 (8th Cir. 1995). On the
facts of this case, the contention is without merit. It is undisputed that the key
responsibilities of a customer service coordinator were to take and enter orders
accurately, and to respond to customer inquiries and complaints. Buckhorn
documented Mole’s order inaccuracies and poor customer relations over an extended
period of time. While admitting these deficiencies, Mole argues they were minor,
citing testimony by co-workers and one customer expressing positive opinions about
her job performance. However, these persons had much more limited contact with
Mole and her work than Johnston, Meyer, and Dillman. Mole bears the ultimate
burden of proof on this issue, see Benson, 62 F.3d at 1113, and “consideration shall be
given to the employer’s judgment as to what functions of the job are essential.” 42
U.S.C. § 12111(8). We agree with the district court that Mole failed to establish that
she could perform her essential job functions without accommodation.
That leaves the question whether Mole presented sufficient evidence that she
would have been a qualified individual if Buckhorn had reasonably accommodated her
disabilities. Mole concedes that Buckhorn helped her seek medical treatment, granted
her leaves of absences for diagnosis and treatment of MS and depression, allowed her
time off and breaks when she returned to work, and distributed some of her work to
other employees. Dr. Asher testified these were reasonable accommodations for an
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employee with MS. But Mole argues Buckhorn knew or should have known how to
afford her further accommodations.
As the district court recognized, the problem with this contention is that prior
to receiving a notice of termination Mole never advised Buckhorn she needed
additional accommodation, much less what accommodation specific to her position and
workplace was needed. “In general, it is the responsibility of the individual with the
disability to inform the employer that an accommodation is needed.” Wallin v.
Minnesota Dept. of Corrections, 153 F.3d 681, 689 (8th Cir. 1998) (quotation omitted);
see Hunt-Golliday v. Metropolitan Water Reclamation Dist. of Greater Chicago, 104
F.3d 1004, 1013 (7th Cir. 1997); Taylor v. Principal Fin. Group, Inc., 93 F.3d 155,
164-65 (5th Cir.), cert. denied, 117 S. Ct. 586 (1996). It is undisputed that between
May 1993 and June 1994 Buckhorn was aware of and accommodated Mole’s medical
problems. There is no evidence Buckhorn failed to make a good faith reasonable effort
to help Mole determine if other accommodations might be needed. See Beck v.
University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996). Mole
argues Buckhorn should have learned more about accommodating MS by consulting
informational pamphlets and discussing her condition with her doctors. But it is
undisputed that Buckhorn had the pamphlets and discussed her condition with Dr.
Asher. Only Mole could accurately identify the need for accommodations specific to
her job and workplace. Mole cannot “expect the employer to read [her] mind and
know [she] secretly wanted a particular accommodation and [then] sue the employer
for not providing it.” Ferry v. Roosevelt Bank, 883 F. Supp. 435, 441 (E.D. Mo. 1995)
(quotation omitted).
Mole also argues that she requested specific accommodations on July 14, 1994,
the effective date of her termination -- more breaks, fully staffing the department, air
conditioning, written instructions, and more time to test new medication. Given the
timing of the meeting, this was a request for reinstatement, not a timely request for on-
the-job accommodations. Moreover, Mole could offer no assurance the requested
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accommodations would remedy her many job performance deficiencies. Indeed, Mole
accompanied these requests with a letter from Dr. Asher warning that she has a lifelong
illness that “will likely fluctuate considerably.” Finally, we agree with the district
court that some of the requests were not reasonable. An employer is not required to
hire additional employees or redistribute essential functions to other employees. See
Moritz, 147 F.3d at 788 (8th Cir. 1998). Thus, the ADA does not require an employer
“to change the essential nature of the job” in order to accommodate the personality and
emotional deficiencies that may result from MS and depression. Boelman v. Manson
State Bank, 522 N.W.2d 73, 81 (Iowa 1994).
On this record, we agree with the district court that Mole failed to present
sufficient evidence she could meet Buckhorn’s legitimate job expectations with or
without reasonable accommodation of her alleged disabilities. Compare Wilking, 153
F.3d at 873. Accordingly, summary judgment was appropriate.
Other Grounds for Summary Judgment. To satisfy the third prong of her
prima facie case, Mole must present sufficient evidence that the circumstances of her
discharge give rise to an inference of unlawful disability discrimination. In addition,
even if Mole presented sufficient proof of a prima facie case, to avoid summary
judgment she must demonstrate that Buckhorn’s legitimate reason for her discharge
was pretextual, that “a discriminatory animus lies behind [its] neutral explanations.”
Wilking, 153 F.3d at 874. To show pretext, Mole must offer sufficient evidence for
a reasonable trier of fact to infer intentional discrimination. See Christopher v. Adam’s
Mark Hotels, 137 F.3d 1069, 1073 (8th Cir.), cert. denied, 119 S. Ct. 62 (1998). We
agree with the district court that Mole failed to meet these evidentiary burdens.
It is undisputed that Mole’s poor job performance evaluations started long
before Buckhorn knew she had MS and continued for more than a year after the initial
diagnosis. Mole conceded she developed these performance problems and presented
no evidence that her performance rose to an acceptable level by June 1994. Mole’s
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contention “that the infractions were not serious enough to warrant a discharge . . .
merely questions the soundness of defendant’s judgment, and does not demonstrate
pretext for discrimination.” Wilking, 153 F.3d at 874 (quotation omitted). Supporting
affidavits from fellow employees who did not deal with Mole on a systematic basis are
insufficient to counter Buckhorn’s proof she was discharged because she did not meet
its legitimate expectations. See Leffel, 113 F.3d at 791, 795-96. Finally, as the district
court noted, Mole’s contention that Buckhorn fired her to escape the high medical costs
of treating her MS is totally unsupported. Thus, the record will not support an
inference that her discharge was “based upon her perceived disability rather than upon
actual shortcomings in her work.” Leffel, 113 F.3d at 795.3
For the foregoing reasons, the judgment of the district court is AFFIRMED.
LAY, Circuit Judge, dissenting.
My basic disagreement with the trial court is in the application of the McDonnell
Douglas burden-shifting analysis to the facts of this case. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). The majority opinion, without
directly referencing McDonnell Douglas, applies the same burden-shifting analysis.
Although our cases have given lip service to the McDonnell Douglas method of
analysis in ADA cases, under the facts of this case it is unnecessary and inappropriate.
The McDonnell Douglas analysis is designed to govern disparate treatment cases. The
ultimate question served by such analysis is that of disparate treatment of the claimant
3
Mole also argues that discharging her for performance deficiencies that were
symptoms of her MS -- lack of motivation, data entry errors, and rudeness to customers
-- is as unlawful as discharging her because of that disability. We disagree. Firing an
employee because of the job performance consequences of a disability such as MS,
rather than the disability itself, is not actionable under the ADA. See Matthews v.
Commonwealth Edison Co., 128 F.3d 1194, 1196, 1198 (7th Cir. 1997); Mararri v.
WCI Steel, Inc., 130 F.3d 1180, 1182-83 (6th Cir. 1997).
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with others similarly situated. This case, however, does not involve a disparate
treatment claim, but rather a reasonable accommodation claim that should be analyzed
differently.1
The ADA is statutorily defined and driven. An employer may not
“discriminate” against “a qualified individual with a disability because of the disability
. . . .” 42 U.S.C. § 12112(a). Discrimination as defined has nothing to do with the
claimant’s disparate treatment. The ADA defines the term “discriminate” as follows:
(5)(A) not making reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with a disability
who is an applicant or employee, unless [the employer] can demonstrate
that the accommodation would impose an undue hardship on the
operation of the business of [the employer]; or
(B) denying employment opportunities to a job applicant or employee
who is an otherwise qualified individual with a disability, if such denial
is based on the need of [the employer] to make reasonable
accommodation to the physical or mental impairments of the employee
or applicant.
42 U.S.C. § 12112(b)(5)(A)-(B).
In most ADA cases, as here, a single question becomes the focus of the inquiry:
whether the employer should have reasonably accommodated the employee’s disability
but did not.2 In such cases, the McDonnell Douglas disparate treatment analysis is
1
If a claimant under the ADA were making a claim of disparate treatment, such
as an employer placing a greater burden on disabled workers than on other employees,
then such a disparate treatment analysis would apply. Cf. Matthews v. Commonwealth
Edison Co., 128 F.3d 1194 (7th Cir. 1997). However, no such claim is made here.
2
The district court holds there is a question of fact as to whether the plaintiff is
disabled. The majority avoids the issue. This totally ignores the record. There is no
question that plaintiff suffers from multiple sclerosis and has manifested the symptoms
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inappropriate. See Bultemeyer v. Fort Wayne Community Schs., 100 F.3d 1281, 1283-
84 (7th Cir. 1996); see also Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112
(8th Cir. 1995) (stating that once the plaintiff makes a facial showing that reasonable
accommodation is possible, the burden of production shifts to the employer to show
that it is unable to accommodate the employee); Wood v. Omaha Sch. Dist., 985 F.2d
437, 439 (8th Cir. 1993) (stating that under the Rehabilitation Act a plaintiff need only
make a facial showing that reasonable accommodation is possible and finding that the
plaintiff met that burden by proposing certain accommodations); Arneson v. Heckler,
879 F.2d 393, 396 (8th Cir. 1989) (reversing dismissal of Rehabilitation Act claim
because the plaintiff was “only required to provide evidence sufficient to make ‘at least
a facial showing that reasonable accommodation is possible’” before the burden shifts
to the employer to prove it is unable to make the accommodation) (citation omitted).3
Thus, it should be clear the McDonnell Douglas method of proof is irrelevant in this
case.4 There is no question according to Mole’s physicians that she suffers from MS
of that dreaded disease. There is no refutation that her physicians have certified that
she suffered depression, loss of motivation, lack of concentration, cognitive
dysfunction, among other disabling symptoms which are inherent in that disease.
3
Rehabilitation Act cases are relevant in analyzing the ADA “because the ADA
specifically mandates that its provisions be interpreted in a manner that prevents
imposition of inconsistent or conflicting standards for the same requirements under
[the ADA] and the Rehabilitation Act of 1973.” Benson, 62 F.3d at 1112 n.2.
4
The majority's dominant concern with the burden-shifting analysis probably
resulted from the plaintiff's assertion that the Buckhorn termination was pretextual in
kind. Notwithstanding, a court should not be mislead by a party's irrelevant argument
of incorrect legal principles involved in any case. Here the issue of pretextuality was
a nonissue simply because plaintiff did not rest her claim upon a basis of disparate
treatment. The mere fact that she argues it demonstrates only that her counsel confused
the application of the burden-shifting analysis of McDonnell Douglas to a case of
discrimination under the ADA. In doing so, however, the court walks down the wrong
path of analysis by finding no factual proof of pretextuality within the record. Once
again, it should be clear that pretextuality cannot be an issue in a case brought under
the ADA where the statutory basis of discrimination relates to the defendant’s failure
to provide reasonable accommodation. It should be obvious that whether the claim of
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and that her symptoms affected her job performance.5 The relevant inquiry then
becomes whether Buckhorn could or should have reasonably accommodated Mole’s
illness.
Under the present record, the reasonableness of the extent of Buckhorn’s
accommodation should be a question for the trier of fact. See Wood, 985 F.2d at 439-
440; see also Arneson v. Heckler, 879 F.2d 393 (8th Cir. 1989) (J. Beam).6 Material
factual disputes remain concerning whether Buckhorn can reasonably accommodate
Mole. The record is replete with additional accommodations Mole contends Buckhorn
could have made. The National Multiple Sclerosis Society’s information materials,
which Buckhorn admittedly possessed, list several accommodations which could be
pretextuality is factually controverted is immaterial. This question is totally subsumed
in the determination of whether the employer provided reasonable accommodation to
a qualified person’s needs under the ADA.
5
Mole claims that even without accommodation she was able to carry on her job
at a satisfactory level. Mole supports her claim with affidavits from co-workers and
customers who dealt with her and found her work satisfactory. Judge Loken rejects
Mole’s claim by observing: “Supporting affidavits from fellow employees who did not
deal with Mole on a systematic basis are insufficient to counter Buckhorn’s proof she
was discharged because she did not meet its legitimate expectations.” At the very
least, however, this is an issue that a trier of fact should decide.
6
In Arneson, Judge Beam noted a possible accommodation to a disabled
employee was to furnish “a clerical assistant” or transfer. Yet, Judge Loken found
Mole’s requests to have Buckhorn return to its previous three-person staffing of the
customer service department to be unreasonable.
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made to assist an employee with MS.7 Dr. Asher also listed several possible
accommodations in his deposition testimony.8
However, the district court and now the majority emphasize that Mole cannot
overcome the defendant’s motion for summary judgment because she failed to make
requests for accommodations in a timely manner. Such a defense does not logically
or factually exist upon a fair review of the record. The record shows that Mole made
requests for accommodation during a meeting held on July 14, 1994, the effective date
of her termination. Mole requested rest breaks, some days off, time for her doctors to
7
The Multiple Sclerosis Society’s brochure offered the following suggested
accommodations, noting that “[r]easonable accommodations can include changes in
work schedules, job duties, workplace environment and employer attitudes:”
Energy saving: rest period: flexible working hours (to avoid rush hour
traffic, etc.); parking space close to entrance; office location close to rest
room; communication system allowing use of intercom instead of
walking.
Environmental control: air conditioning, good lighting.
Accessibility: ramps, wide doors, adaptable work station arrangements,
grab bars in bathrooms.
Job modifications: trading nonessential duties for other tasks which do
not conflict with functional limitations.
Technological adaptations and devices: may have some cost attached but
also may be provided by outside sources.
8
Dr. Asher testified that necessary accommodations would change from time to
time due to the disease, but would include the following: (1) permitting leaves of
absence for medical treatment and follow-up; (2) allowing rest breaks during the day
to regain energy; (3) limiting hours of work; (4) permitting the use of medication; (5)
providing an air-conditioned workplace; and (6) giving written instructions to
overcome memory deficits caused by the disease.
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determine the proper prescriptions and dosages to manage her illness,9 and fully
staffing the customer service department. She also submitted a note to Buckhorn from
Dr. Asher stating that her MS was causing her work problems. Unfortunately, this
court feels her requests came too late because she made them after she was terminated.
The record reveals, however, that Mole made her requests and submitted her
physician’s letter the very same day that her termination was to take effect.10
Considering the human concerns involved here, it is difficult to accept the majority
opinion’s myopic view of the record. “A few hours’ tardiness should not be the reason
for cutting off the interactive process and cutting off a person’s rights under the ADA.”
Bultemeyer, 100 F.3d at 1286. Mole’s delay was not lengthy or inexcusable. After
Mole requested accommodation on July 14, 1994, and presented her physician’s letter,
Buckhorn could have reconsidered its decision to terminate Mole and could have then
included Mole and Dr. Asher in discussions regarding reasonable accommodations.
See id. Instead, Buckhorn’s officials refused to provide Mole any further
accommodation.
Even assuming we cannot credit Mole’s testimony that she requested
accommodation (albeit on summary judgment), or if we accept the majority’s finding
that Mole’s requests came too late, the record shows that Buckhorn knew
accommodation alternatives were available prior to its termination of Mole. Buckhorn
was in direct contact with Mole’s physicians prior to July 14, 1994. Buckhorn knew
Mole suffered from multiple sclerosis, and Buckhorn possessed informational
9
Approximately a month before Mole was terminated, her doctors prescribed a
new medication, Betaseron, to treat her illness. Mole’s doctors testified that it would
take some time to determine the therapeutic effect the Betaseron would have on Mole’s
symptoms. The record indicates that Mole told Buckhorn representatives during the
July 14, 1994, meeting that it would take time for her doctors to establish the
appropriate prescriptions and dosages to treat her illness.
10
Although Mole’s last day of active employment was on June 30, 1994, the date
on which Buckhorn gave Mole a two-week notice of termination, the notice expressly
stated that “the date of [Mole’s] termination will be July 14, 1994.” Arguably, Mole
was still employed by Buckhorn until the end of the day on July 14, 1994.
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brochures that specified possible accommodations such as, “changes in work
schedules, job duties, workplace environment and employer attitude(s).” To suggest
that Buckhorn was not alerted to the need for reasonable accommodations ignores the
historical facts. Buckhorn had conversations with Mole before her termination
regarding accommodations, and Buckhorn had in fact provided some accommodations
to her. However, as Mole argues, Buckhorn “runs away from its own lawful duties
under 29 C.F.R. § 1630.2(o)(3)11 to initiate an ‘interactive process’ and affirmatively
find out what will work.”
This court on prior occasions has stated that summary judgment should be used
only in rare instances in employment discrimination cases. See Davis v. Fleming
Cos., Inc., 55 F.3d 1369, 1371 (8th Cir. 1995); Oldham v. West, 47 F.3d 985, 988 (8th
Cir. 1995); Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994). This admonition
certainly applies to cases arising under the ADA. Today we simply give lip service to
our earlier admonition. A fair reading of the record and the correct application of the
proper standards require a different result.
11
29 C.F. R. § 1630.2(o)(3) reads:
To determine the appropriate reasonable accommodation it may be
necessary for the covered entity to initiate an informal, interactive process
with the qualified individual with a disability in need of the
accommodation. This process should identify the precise limitations
resulting from the disability and potential reasonable accommodations
that could overcome those limitations.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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