Marion R. Stafne v. Unicare Homes, D/B/A Trevilla of New Brighton, Inc., Equal Employment Opportunity Commission, Amicus on Behalf Of , 266 F.3d 771 ( 2001 )

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Trevilla of New Brighton, Inc., fired Marion Stafne after she developed rheumatoid arthritis, a condition that greatly limited her ability to walk and perform the duties of her job as a nurse. Ms. Stafne subsequently brought a lawsuit against Trevilla under the Americans with Disabilities Act (“ADA”), see 42 U.S.C. §§ 12101-12213, and the Minnesota Human Rights Act, see Minn.Stat. Ann. §§ 363.01-363.20, claiming that Trevilla discriminated against her because of her disability and retaliated against her because she filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) while she was still employed. Following a two-week trial, a jury reached a verdict in favor of Trevilla.

Ms. Stafne argues on appeal that the district court¹ erred in several of its rulings during the course of her trial. She maintains, in particular, that the district court should have given certain jury instructions that she proposed and should not have excluded certain evidence that tended to support her retaliation case. We affirm the judgment of the district court.

I.

Ms. Stafne first contends that the district court erred in rejecting her proposed jury instructions regarding Trevilla’s duty to engage in an interactive process to determine whether Trevilla could have provided her with an accommodation that would have permitted her to keep her job. See generally Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 952 (8th Cir.1999). She insists that her proposed instructions were critical to the theory of her case because they would have allowed the jury to find that Trevilla’s failure to engage in an interactive process constituted bad faith.

We observe that our review of Ms. Staf-ne’s argument is made more difficult by her failure to explain how the matter is related to her claim that Trevilla discriminated against her on the basis of her disability. Ms. Stafne never states precisely why it was important for her to convince to the jury that Trevilla acted in bad faith. The district court apparently faced the same difficulty in understanding her argument; it rejected her request for jury instructions concerning an interactive process because it felt that they would be “unnecessary” and “floating alone, unm-oored to any of the issues that the jury had to resolve.”

We think it important to emphasize that Ms. Stafne does not maintain that Trevilla would have discovered an accommodation that would have allowed her to do her job if only it had discussed matters with her further. The only accommodation that Ms. Stafne suggested was allowing her to use a motorized cart called an Amigo, and it is hard to see on the record before us how more interaction between her and Trevilla would have made any difference in this regard. Ms. Stafne, moreover, does not now claim that there was some other way in which Trevilla could have accommodated her. Previous cases of ours have emphasized that it is the plaintiffs burden in this kind of case to prove that there was an accommodation that would have allowed him or her to perform the essential functions of his or her job, see, e.g., Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723, 727-28 (8th Cir.1999), cert. denied, 529 U.S. 1019, 120 S.Ct. 1421, 146 L.Ed.2d 313 (2000), and, as we shall demonstrate, Ms. Stafne failed to do so.

To establish a submissible case of discrimination under the ADA, Ms. Stafne had to produce evidence that would allow a jury to find, among other things, that she was qualified to perform the essential functions of her job with or without reasonable accommodations. See Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1016 (8th Cir.2000). As a nurse at Trevilla’s extended care facility, Ms. Stafne had many responsibilities that required significant amounts of walking. For example, with respect to her dining room duties, she had to walk from table to table during breakfast and lunch for three hours every day, serving meals to the facility’s residents. Ms. Stafne was also in charge of pushing wheelchair-bound residents to their proper seating locations in the dining room and had to perform the Heimlich maneuver if any of the residents should require it. Because these duties were essential functions of Ms. Stafne’s job, she had the burden to prove that, with reasonable accommodations, she could have performed them notwithstanding her disability.

Ms. Stafne, however, failed to make a submissible case on this issue. Indeed, all of the evidence at trial tended to show that Ms. Stafne would not have been able to push wheelchairs or assist the residents in their dining even if Trevilla had allowed her to use an Amigo, the accommodation that she requested and was denied. Tre-villa’s vocational expert testified that it was impossible for Ms. Stafne to ride in an Amigo and push wheelchair-bound residents at the same time. Ms. Stafne’s own doctors, moreover, stated that she needed a “totally sedentary sit-down job” and was qualified for “seated work only.” Given the evidence as presented, there can be no genuine factual dispute that Ms. Stafne would have been unable to perform her duties in the dining room even if she had been allowed the use of an Amigo. See Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1048 (8th Cir.1999).

Ms. Stafne responds to the assertion that she failed in her proof only by insisting that pushing wheelchairs was not a part of her job duties. We find this argument impossible to credit, however, since Ms. Stafne herself admitted several times in her testimony at trial that she often had to push and lift wheelchair-bound residents in the dining room. She also stated that she exacerbated an injury resulting from her disability while she was pushing a particularly heavy resident in a large wheelchair. It is incontrovertible therefore that pushing wheelchair-bound residents was among the essential functions of Ms. Stafne’s job, despite her contention on appeal that it was not. See Lloyd v. Hardin County, Iowa, 207 F.3d 1080, 1084 (8th Cir.2000).

Because Ms. Stafne did not make out a jury question on an essential element of her case, we conclude that any errors in the district court’s jury instructions with respect to the interactive process were necessarily harmless. See Burlison v. Warner-Lambert Co., 842 F.2d 991, 992-93 (8th Cir.1988).

We also hold that the record in this case could not in any event have supported a finding that Trevilla failed to engage in an interactive process with her. The proof showed that Ms. Stafne and Trevilla had numerous discussions concerning her proposed use of an Amigo for work. In particular, Trevilla met with Ms. Stafne and her vocational rehabilitation counselor to investigate whether an Amigo could be used in Trevilla’s dining room area. It does not seem to us, therefore, that there is sufficient evidence in this case to find that Trevilla did not act in good faith in attempting to provide Ms. Stafne with a reasonable accommodation. See Treanor v. MCI Telecomm. Corp., 200 F.3d 570, 575 (8th Cir.2000).

Ms. Stafne also maintains that the district court erred when it instructed the jury that she had the burden to prove that her disability did not make her a direct threat to anyone’s safety at her work. She argues that the district court misallocated the burden because the issue of direct threat was an affirmative defense raised by Trevilla; thus, the argument runs, Tre-villa should have been the party obligated to prove that she was a danger to others. We need not address this argument, however, because, as we have explained, Ms. Stafne’s failure to present a submissible case renders harmless any errors in the jury instructions.

II.

To prove her retaliation claim, Ms. Stafne had to establish that she engaged in a statutorily protected activity, that her employer took an adverse action against her, and that there was a causal link between the two. See Amir v. St. Louis Univ., 184 F.3d 1017, 1025 (8th Cir.1999). Ms. Stafne contended below that Trevilla fired her because she filed a charge with the EEOC complaining about Trevilla’s unwillingness to allow her to use an Amigo.

With regard to her retaliation claim, Ms. Stafne argues that the district court should have allowed the jury to hear a message that her supervisor left on her answering machine on the day that she was terminated, a message that stated, in part, “I understand we are going into a lawsuit so I guess this is where it stands.” When Trevilla offered to stipulate that it had notice of Ms. Stafne’s EEOC complaint before it terminated her, the district court excluded the statement both as irrelevant and as unfairly prejudicial under Fed.R.Evid. 403.

We review a district court’s exclusion of evidence because of its unfairly prejudicial effect for a “clear abuse of discretion,” see Stephens v. Rheem Mfg. Co., 220 F.3d 882, 885 (8th Cir.2000), and we see no abuse of discretion here. We think, moreover, that any error was harmless because the supervisor who left the message testified that she knew of Ms. Stafne’s EEOC complaint before Ms. Stafne was terminated, so the essential probative force of the statement was before the jury.

III.

For the reasons indicated, we affirm the judgment of the district court.

The motion to supplement the Appendix is granted.

1 . The Honorable John R. Tunheim, United States District Judge for the District of Minnesota.