Ansaf Alexander v. The Northland Inn ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1744
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Ansaf Alexander, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
The Northland Inn, *
*
Defendant - Appellee. *
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Submitted: November 6, 2002
Filed: March 5, 2003
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Before WOLLMAN, LAY, and LOKEN, Circuit Judges.
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LOKEN, Circuit Judge.
Ansaf Alexander appeals the district court’s1 grant of summary judgment
dismissing her claim that The Northland Inn (Northland) violated the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq, when it terminated her as a hotel
housekeeping supervisor. Viewing the summary judgment record in the light most
favorable to Alexander, we conclude that she could not perform the essential job
function of vacuuming, with or without accommodation, and therefore affirm.
1
The HONORABLE ANN D. MONTGOMERY, United States District Judge
for the District of Minnesota.
In July 1997, Alexander began working at Northland as a “p.m. housekeeping
supervisor,” working the 3:00 p.m. to 11:30 p.m. shift. She was in a non-work-
related automobile accident in October 1997, which exacerbated prior neck and back
injuries and has caused her chronic pain. Alexander resigned from Northland in
February 1998 to take another housekeeping position. Her physician prepared a
Report of Work Ability for the new employer that listed the following temporary
work restrictions resulting from the October 1997 accident: lifting restricted to 30
pounds maximum; repetitive lifting restricted to 10-15 times per hour; no heavy or
repetitive pushing or pulling; frequent position changes when sitting or standing;
must stretch every 55 minutes; and use of an ergonomic chair.
In May 1998, Northland rehired Alexander as a p.m. housekeeping supervisor.
To help preserve its AAA four-diamond rating, Northland requires its housekeeping
supervisors to be “working supervisors,” assisting the housekeeping staff in
maintaining the cleanliness and attractive appearance of the guest rooms and public
areas, as well as supervising the staff’s work. As a p.m. housekeeping supervisor,
Alexander supervised from one to three housekeepers. She concedes that her duties
included performing the housekeepers’ cleaning tasks when necessary, including
vacuuming guest rooms, the common areas, and the large hotel restaurant. Alexander
also filled in for the day housekeeping supervisors, performing duties similar to those
of her p.m. supervisor position, including vacuuming.
At some time in 1998, Alexander provided her Northland supervisor, Heidi
Radke, copies of the February 1998 Report of Work Ability and one or more
subsequent physician reports reciting that her temporary work restrictions remained
unchanged. Alexander adequately performed her job duties, including vacuuming,
until February 24, 1999, when Radke asked her to vacuum a room. Alexander replied
that she could not vacuum that day and then instructed another employee to do the job
for her, contrary to what Radke expected from a working supervisor. Alexander then
took the next two days off, returning to work on February 27 with a chiropractor’s
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note excusing her for the two days and a Report of Work Activity from her physician
listing the following permanent work restrictions: lifting and carrying restricted to
10 pounds maximum; repetitive lifting restricted to 0-5 times per hour; no lifting
above shoulder height; no heavy or repetitive pushing or pulling; and bending
restricted to 35 degrees no more than 4-10 times an hour. Northland’s benefits
manager, Jennifer Strom, then contacted the physician by facsimile, providing a copy
of Alexander’s written job description and requesting the following information:
As the Benefits Mgr. at The Northland Inn . . . it is my responsibility to
respond to any type of work restrictions set forth by a physician. . . .
[A]lthough this is not a work related injury, I must have confirmation
from you that Ms. Alexander is able to perform the essential functions
of her position. . . . I am requesting that you provide me with a release
or fitness for duty with the understanding of Ms. Alexander’s position
responsibilities. Please also respond to the following questions,
(1) Occasionally (3-5x daily), Ms. Alexander is asked to vacuum.
According to the Report of Workability, she is to do no heavy or
repetitive pushing or pulling. I do not consider 3-5x daily repetitive.
Will you release her to vacuum no more than 5x daily?
(2) Due to her restricted bending, she is unable to view the floor around
the bed in a guest suite. I must ask you if she is able to, instead of
bending over, simply move to her knees so that this job responsibility
must be completed?
After discussing the request with Alexander, the physician responded by answering
“No” to question (1), by answering “yes may kneel to inspect under beds” to question
(2), and by adding a handwritten notation at the end of the eighteen essential
functions listed on Alexander’s job description, “19. No vacuuming.”
Northland then terminated Alexander because she was not able to perform an
essential function of her job, vacuuming. At the termination meeting, Alexander told
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the Northland supervisors that she was working with a physical therapist to assist her
in vacuuming at home and asked Northland to give her time to develop this skill. She
also asked Northland to transfer her to a day housekeeping supervisor position or
delegate her vacuuming duties to other housekeeping staff. Northland responded that
her no-vacuuming restriction was permanent, that all housekeeping supervisors must
be able to vacuum, and that she did not qualify for any other vacant positions.
Alexander testified that when she talked to her physician about the situation after the
termination, he advised, “If you are able to vacuum just to go ahead.” Alexander
applied for approximately sixty jobs in the four months following termination before
securing a position as a clerk for the Hennepin County Service Center.
Alexander then commenced this action, alleging that Northland discriminated
against a qualified individual with a disability because of the disability. See 42
U.S.C. §§ 12112(a), 12117(a). To establish a prima facie case of disability
discrimination under the ADA, Alexander must show that (1) she is disabled as
defined in 42 U.S.C. § 12102(2); (2) she is qualified to perform the essential
functions of the job, with or without reasonable accommodation; and (3) she has
suffered an adverse employment action because of her disability. Benson v.
Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995). The district court
granted summary judgment in favor of Northland, concluding that Alexander was not
disabled within the meaning of the ADA and, alternatively, was not qualified to
perform the essential functions of the p.m. housekeeping supervisor position with or
without reasonable accommodation. We need consider only the latter conclusion.
Northland fired Alexander after she refused to vacuum and then submitted a
statement by her physician that amended her written job description to provide, “No
vacuuming.” To survive summary judgment, Alexander must make a prima facie
showing that she could perform the essential functions of her job with or without
reasonable accommodation. Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 786-87
(8th Cir. 1998). Conceding that Alexander otherwise possessed the necessary skill,
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education, experience, and training to be a p.m. housekeeping supervisor, Northland
argued, and the district court concluded, that she could not perform the essential job
function of vacuuming, with or without reasonable accommodation. We agree.
The first question is whether vacuuming was an essential function of
Alexander’s job. Essential functions include “the fundamental job duties of the
employment position the individual with a disability holds or desires.” 29 C.F.R.
§ 1630.2(n)(1). An employer’s judgment on this question is highly probative. See
Moritz, 147 F.3d at 787; 29 C.F.R. § 1630.2(n)(3). Here, Northland’s written job
description for a housekeeping supervisor included as an essential function, “Provide
assistance in other job classifications as determined necessary by immediate
superior.” Every Northland supervisor testified that this function included
vacuuming, which is essential to housekeeping, and Alexander admitted that she
occasionally vacuumed, though not three-to-five-times a day. Given the importance
of cleanliness to maintaining Northland’s AAA four-diamond rating, the limited
number of employees available to perform vacuuming and other housekeeping tasks,
and Northland’s persistent problems with housekeeping staff truancy, we agree with
the district court that vacuuming was an essential function of the housekeeping
supervisor position. See Summerville v. Trans World Airlines, Inc., 219 F.3d 855,
858 (8th Cir. 2000) (assisting passengers was an essential job function though it
required only a few minutes each week), cert. denied, 532 U.S. 1019 (2001).
Because vacuuming was an essential function, Alexander must show she was
able to perform that function with or without reasonable accommodation. Alexander
first argues she could perform the function without accommodation because she could
in fact do the required vacuuming, as she had in the many months prior to February
1999. But Northland was entitled to rely and act upon the written advice from
Alexander’s physician that unambiguously and permanently restricted her from
vacuuming. In this situation, the employee’s belief or opinion that she can do the
function is simply irrelevant. The ADA does not require an employer to permit an
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employee to perform a job function that the employee’s physician has forbidden.
Also irrelevant is the fact that the physician told Alexander, after termination, that she
could go ahead and vacuum. Northland was reasonable in relying on his earlier
definitive command, “No vacuuming.”
Alexander next argues that she could perform the essential functions of her
position with a reasonable accommodation. The ADA plaintiff has the burden of
proof on this issue. See Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723, 727-28
(8th Cir. 1999). In February 1999, Alexander offered no explanation and made no
timely request that Northland reasonably accommodate her sudden inability to
vacuum, a function she had performed without complaint for many months. When
told she had been terminated for this reason, Alexander asked the Northland
supervisors to relieve her of vacuuming duties while she worked with a physical
therapist to learn how to vacuum without injuring her back and neck. This was not
a reasonable accommodation because it would have required Northland to assign
Alexander’s vacuuming responsibilities to other employees for an indefinite period.
“It is well settled that an employer is under no obligation to reallocate the essential
functions of a position that a qualified individual must perform.” Moritz, 147 F.3d
at 788. Alternatively, Alexander asked to be transferred to a day housekeeping
supervisor position. This was not a reasonable accommodation because vacuuming
was an essential function for all Northland housekeeping supervisors. See Cravens
v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1019 (8th Cir. 2000)
(“the employee must be otherwise ‘qualified’ for the reassignment position”).
Finally, Alexander argues that, once she requested an accommodation,
Northland had a duty to engage in the interactive process discussed in Fjellestad v.
Pizza Hut of Am., Inc., 188 F.3d 944, 951-54 (8th Cir. 1999). However, on the facts
of this case, Alexander’s post-termination request was “too little, too late.” In
addition, “there is no per se liability if an employer fails to engage in an interactive
process.” Id. at 952. Here, Alexander has failed to meet her burden of showing that
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a reasonable accommodation was available that would not have placed an undue
burden on Northland. Therefore, summary judgment was properly granted on this
issue. See Dropinski v. Douglas County, 298 F.3d 704, 710 (8th Cir. 2002).
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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