Opinion
No. C98-50 MJM.
October 26, 1999.
ORDER
This matter comes before the court pursuant to defendant's June 9, 1999 motion for partial summary judgment (docket number 16). The plaintiff, Carol Huber ("Huber") filed a resistance to defendant's motion on July 23, 1999 (docket number 26), and the defendant, the Gazette Company ("the Gazette") filed a reply to plaintiff's resistance on August 23, 1999 (docket number 31). For the reason set forth below, defendant's motion is granted in part and denied in part.
Huber claims that the Gazette violated the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., Iowa Code Chapter 216, and Iowa common law by discriminating against her on the basis of her disability, and by terminating her employment in retaliation for filing a discrimination charge with the Equal Employment Opportunity Commission (EEOC) and with the Iowa Civil Rights Commission (ICRC). The Gazette claims that it is entitled to summary judgment on Huber's claim for any economic damages after August 18, 1997 because Huber made representations to the Social Security Administration (SSA) that she was "totally disabled" as of August 18, 1997, and unable to work. Alternatively, the Gazette claims that it cannot, as a matter of law, be liable for any economic damages accruing after November 30, 1997, because at this time Huber voluntarily removed herself from the competitive job market. The Gazette also argues that it is entitled to summary judgment on Huber's claim that it violated her statutory rights by failing to provide reasonable accommodations for her disability. Summary Judgment
A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir. 1986). "Summary judgment is appropriate when there is no genuine issue of material fact and, accordingly, no reasonable jury could find in favor of the nonmoving party." Hennessey v. Good Earth Tools, Inc., 126 F.3d 1107, 1108 (8th Cir. 1997). Once the movant has properly supported its motion, the nonmovant "may not rest upon the mere allegations or denials of [its] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P . 56(e). "To preclude the entry of summary judgment, the nonmovant must show that, on an element essential to [its] case and on which [it] will bear the burden of proof at trial, there are genuine issues of material fact." Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir. 1987), cert. denied, 484 U.S. 1014 (1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Although "direct proof is not required to create a jury question, . . . to avoid summary judgment, `the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.'" Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985), cert. denied, 474 U.S. 1057 (1986) (quoting Impro Prod., Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir. 1983), cert. denied, 465 U.S. 1026 (1984)).
In the context of employment discrimination cases, summary judgment should be used sparingly. Hardin v. Hussman Corp., 45 F.3d 262, 264 (8th Cir. 1995) (citations omitted). "`Because discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant.'" Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995) (quoting Crawford v. Runyon, 37 F.3d 1338, 1340 (8th Cir. 1994)). See also Berg v. Norand Corp., 169 F.3d 1140, 1144 (8th Cir. 1999) ("summary judgment is generally inappropriate in discrimination cases because they are based on inferences that the fact finder may or may not draw); Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1156 (8th Cir. 1999) (same). However, there exists no "discrimination case exception" to applying Fed.R.Civ.P . 56, and summary judgment remains a valuable pretrial tool to determine whether or not any case, including an employment discrimination case, merits a trial. Berg, 169 F.3d at 1144.
Statement of Material Facts Not in Dispute
Huber began working for the Gazette in January of 1990 as a computer technician. Huber's job responsibilities included installing, maintaining, and repairing the Gazette's computer equipment. Also in 1990, Huber was diagnosed with multiple sclerosis (MS).
To accommodate Huber's MS, her work schedule was changed from five eight-hour days to four ten-hour days, with Wednesdays off so that she could rest in the middle of her work week. Also, other employees helped Huber lift heavy items, a cart was provided to help Huber transport items, other employees were assigned to work assignments that required excessive walking, Huber was provided with time off to recover from MS attacks, and Huber was provided with a motorized scooter to use on the job after submitting a medical request from her doctor.
On August 19, 1997, after several critical evaluations and reviews, the Gazette terminated Huber's employment. Huber was paid through September 17, 1997. The reason for Huber's termination, as set forth in the termination letter was her failure to meet expected job performance standards for her position. Huber's termination letter invited her to apply for a different position with the Gazette. Huber did not apply for any other positions with the Gazette.
After Huber's employment was terminated, she sought other employment. In November of 1997, an employment placement agency offered Huber a computer help desk position at Rockwell paying $10.50 per hour. Huber declined the offer as she had decided to begin taking classes at Kirkwood Community College in December of 1997. Huber declined another computer support position from an employment agency in January, 1998 because she was taking classes. At her deposition in February, 1999, Huber testified that she had recently began to consider searching for employment.
Huber actually attended the Kirkwood Skills Center for vocational rehabilitation and training.
In November of 1997 Huber applied for social security disability benefits. On her application Huber stated that she became unable to work due to her disabling condition on August 18, 1997, the same date her employment with the Gazette was terminated. In support of her application, Huber submitted medical evidence from Dr. Angenend and Dr. Streib. Huber began receiving disability benefits in March of 1998 and was still receiving benefits when she was deposed on December 16, 1998.
CONCLUSIONS OF LAW
The Gazette argues that it is entitled to summary judgment on Huber's claim for economic damages after August 18, 1997, the date of her termination. The Gazette contends that because the Social Security Administration found that Huber was totally disabled as of the date she was terminated, economic damages are inappropriate. In the alternative, the Gazette argues that it is entitled to summary judgment on Huber's claim for economic damages after November 30, 1997, the date that Huber voluntarily removed herself from the job market. Additionally, the Gazette claims that it is entitled to summary judgment on Huber's failure to accommodate claim because Huber has failed to raise a genuine issue of material fact on the failure to accommodate claim.
Huber argues that summary judgment is inappropriate because she has offered a sufficient explanation for the apparent contradiction between her receipt of disability benefits and her claim that she was a qualified individual with a disability. Huber also argues that whether she voluntarily removed herself from the job market is a damages issue to be decided by the jury after liability is determined. Huber contends that the fact that she ceased looking for a job for a discrete period of time while she furthered her education does not wholly preclude her claims for front or back pay. Finally, Huber claims that summary judgment in inappropriate on her failure to accommodate claim because the Gazette failed to provide two critical accommodations.
The ADA forbids employers from discriminating against an otherwise qualified employee with a disability, because of that disability. 42 U.S.C. § 12112(a); Pedigo v. P.A.M. Transport, Inc., 60 F.3d 1300 (8th Cir. 1995). A qualified individual with a disability is a person with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position. 42 U.S.C. § 12111(8).
Under the ADA, a plaintiff must establish a prima facie case by showing that she: (1) was disabled within the meaning of the Act; (2) was qualified to perform the essential functions of the job, with or without reasonable accommodation; and (3) suffered an adverse employment action under circumstances giving rise to an inference of unlawful discrimination. Snow v. Ridgeview Med. Ctr., 128 F.3d 1201 (8th Cir. 1997) (citing Webb v. Garelick Mfg. Co., 94 F.3d 484, 487 (8th Cir. 1996)). After an ADA plaintiff establishes a prima facie case, a rebuttable presumption of discrimination attaches and "the burden of going forward with evidence shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action." Price v. S-B Power Tool, 75 F.3d 362, 365 (8th Cir. 1996), cert denied, 519 U.S. 910 (1996). Once an employer comes forward with such a reason, the presumption of discrimination is rebutted. Id. At that point, the burden shifts back to the plaintiff to prove that the defendant's proffered reason is pretextual. Id. At all times, the plaintiff retains the burden of persuading the trier of fact that he has been the victim of discrimination. Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995).
Receipt of Social Security Disability Benefits
In November of 1997, approximately three months after her employment with the Gazette was terminated, Huber applied for Social Security Disability benefits. As part of her application, Huber stated, under oath, that she was totally disabled and unable to perform any substantial gainful activity as of August 18, 1997. The Commissioner of Social Security granted Huber's application and she continued to receive benefits at the time this motion was filed. Under these facts, the Gazette contends that it is entitled to summary judgment on Huber's claim for economic damages after August 18, 1997 because Huber was no longer a "qualified individual with a disability" who was capable of performing her job with a reasonable accommodation.
The Eighth Circuit has addressed this issue several times, and ultimately has declined to hold that a plaintiff is judicially estopped from attempting to prove that she is a "qualified individual with a disability" under the ADA following a plaintiff's application for Social Security disability benefits. Downs v. Hawkeye Health Servs., Inc., 148 F.3d 948, 951 (8th Cir. 1998). There is not an inherent inconsistency between claiming to be eligible for Social Security disability benefits and claiming to be a qualified person with a handicap under the ADA because the Social Security disability standard does not take into account ability to work with a reasonable accommodation. Downs, 148 F.3d at 951. However, the Eighth Circuit did find that an employee's representations of total disability in order to collect disability benefits creates a "cumbersome" burden in overcoming an employer's motion for summary judgment. Id.
When an ADA plaintiff has made prior representations of total disability during the relevant period, a district court properly enters summary judgment against him unless the plaintiff has presented "strong countervailing evidence" that he is in fact qualified, as defined by the ADA, to perform the essential functions of the job.
Id. (quoting Dush v. Appleton Elec. Co., 124 F.3d 957, 963 (8th Cir. 1997). Prior representations of total disability will generally carry sufficient weight to grant summary judgment against the plaintiff. Id.
The United States Supreme Court recently addressed this issue and agreed with the Eighth Circuit that claims for social security disability benefits and for ADA damages do not inherently conflict to the extent that a recipient of disability benefits is estopped from pursuing an ADA claim. Cleveland v. Policy Management Sys. Corp., 119 S. Ct. 1597 (1999).
For one thing, as we have noted, the ADA defines a "qualified individual" to include a disable person "who
. . . can perform the essential functions" of her job "with reasonable accommodation." . . . By way of contrast, when the SSA determines whether an individual is disabled for SSDI purposes, it does not take the possibility of "reasonable accommodation" into account, nor need an applicant refer to the possibility of reasonable accommodation when she applies for SSDI.Id. at 1602.
However, the Court also noted that claiming to be "totally disabled" in order to qualify for disability benefits appears to negate an essential element of an ADA case — that the plaintiff is able to perform the essential functions of his job, with or without reasonable accommodation. Id. at 1603. Based upon this finding, the Court held that "an ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier SSDI total disability claim. Rather, she must proffer a sufficient explanation." Id. "To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good faith belief in, the earlier statement, the plaintiff could nonetheless 'perform the essential functions' of her job, with or without 'reasonable accommodation.'" Id. at 1604.
Huber offers several explanations for the discrepancy between her SSDI statement that she was "totally disabled" and her ADA claim that she could "perform the essential functions of her job." First, Huber claims that being "disabled" for disability benefits purposes takes into account not only a claimant's physical impairment, but also their age, education, and work experience. At the time her employment was terminated, Huber was a middle-aged woman who had trouble walking without assistance, and who lacked a positive job reference from the only employer in her field. Huber did seek employment after she was terminated, but was discouraged by the process.
The court finds that this explanation, coupled with the fact that the definition of "disabled" for ADA purposes is different than the definition of "disabled" for disability benefits purposes is sufficient to withstand summary judgment. Moreover, the Gazette's contention that Huber's explanations must be in sworn form, is a misreading of Cleveland. The Supreme Court in Cleveland required only that an explanation be in sworn form where appropriate. Id. at 1604 (emphasis added). There was no absolute requirement that a plaintiff's explanation be in sworn form. Id. The Gazette's motion for partial summary judgment on this basis is denied.
Huber's other proffered explanations focus on facts indicating that The Gazette believed that she was fit to hold a job. For example, The Gazette suggested that she apply for a different job within the company when it terminated her technician job. Also, The Gazette did not contest the merits of Huber's claim for unemployment benefits. However, the fact that The Gazette may have felt that Huber was able to work does not explain the apparent contradiction between her applying for disability benefits and bringing suit under the ADA. Therefore, these "explanations" will not be considered by the court.
Failure to Mitigate by Voluntarily Leaving Job Market
Aside from Huber's representations to the Social Security Administration, the Gazette argues that her decision in November of 1997 to leave the job market terminated her right to further economic damages. Huber claims that an alleged failure to mitigate is an issue of damages and that disposing of this issue at the summary judgment stage is premature. Huber also contends that her decision to abandon her job search for a discrete period of time to obtain further education does not wholly preclude her claims for front or back pay. The court agrees with Huber.
A discrimination plaintiff has a duty to mitigate her damages by exercising "reasonable diligence to locate other suitable employment and maintain a suitable job once it is located." EEOC v. Delight Wholesale Co., 973 F.2d 664, 670 (8th Cir. 1992) (Title VII case). See also Excel Corp. v. Bosley, 165 F.3d 635, 639 (8th Cir. 1999) ("A Title VII claimant seeking either back pay or front pay damages has a duty to mitigate those damages by exercising reasonable diligence to locate other suitable employment and maintain a suitable job once it is located."). This is not intended to be an onerous obligation and does not require that the plaintiff's search be successful. Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 695 (2d Circuit 1998).
The burden of establishing a failure to mitigate is on the defendant. Id. This burden is met by demonstrating (1) that other suitable employment existed, and (2) that the plaintiff failed to make reasonable efforts to obtain such employment. Id. The defendant is not required to prove that plaintiff's search would have been successful, but only that the plaintiff failed to act reasonably in seeking such employment. Barbour v. Medlantic Management. Corp., 952 F. Supp. 857, 864 (D.D.C. 1997) "To deny an award due to a plaintiff's failure to mitigate, the defendant must prove that the plaintiff's search was `so deficient as to constitute an unreasonable failure to seek employment.'" Id. (quoting EEOC v. Kallir, Philips, Ross, Inc., 420 F. Supp. 919, 925 (S.D.N.Y. 1976). "The ultimate question `is whether the plaintiff acted reasonably in attempting to gain other employment or in rejecting proffered employment.'" Hawkins, 163 F.3d at 696 (citing Pierce v. F.R. Tripler Co., 955 F.2d 820, 830 (2d Cir. 1992). However, "the reasonableness of a Title VII claimant's diligence `should be evaluated in light of the individual characteristics of the claimant and the job market.'" Sellers v. Delgado College, 902 F.2d 1189, 1193 (5th Cir. 1990) (quoting Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614, 624 (6th Cir. 1983). Moreover, the question whether a plaintiff's efforts were reasonably diligent for award of back pay is one of fact for the jury. Id.
The Gazette claims that Huber is not entitled to economic damages because she rejected proffered employment, abandoned her job search, and voluntarily withdrew from the job market to take some vocational rehabilitation classes. The Gazette places great emphasis on the fact that Huber turned down two job offers, both of which were desk jobs in the computer field, after her employment was terminated. However, the Gazette has failed to show that either job constituted "substantially equivalent employment" to Huber's technician job with the Gazette. See Id. (defining "substantially equivalent employment" as "that employment which affords virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status as the position from which the [plaintiff] has been discriminatorily terminated."). "[A]lthough an unemployed claimant would generally forfeit her right to backpay if she refused a job substantially equivalent to the one she was denied, she `need not go into another line of work, accept a demotion, or take a demeaning position.'" Hawkins, 163 F.3d at 695 (quoting Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982).
Whether or not Huber could again work in an environment that required her to be mobile and do much walking is unclear. Therefore, the fact that the jobs Huber rejected involved desk work instead of technical skills is not dispostive. Moreover, the rejected positions were offered by employment agencies. Such positions are generally temporary in nature, offer little or no opportunity for advancement, and do not afford the temporary employee the same status as a permanent employee. The Gazette has offered no evidence to the contrary. Therefore, the Gazette has not shown that the positions rejected by Huber constituted "substantially equivalent employment."
On December 10, 1997 Huber began taking vocational rehabilitation classes through Kirkwood Community College. The classes lasted until February 20, 1998. In February of 1998, Huber suffered a MS attack. As a result, Huber withdrew from the classes. As of February, 1999, Huber was considering resuming her job search.
In order to fulfill her duty to mitigate her damages, a plaintiff must be available and willing to accept substantially equivalent employment. Miller v. Marsh, 766 F.2d 490, 492 (11th Cir. 1985). When a plaintiff abandons her job search to seek further education and training, that person is no longer ready, willing, and available for employment. Floca v. Homcare Health Servs., Inc., 845 F.2d 108, 112 (5th Cir. 1988). However, ceasing a job search to obtain further education does not wholly preclude an award of economic damages. Rather, it merely tolls them for the period in which the person is unavailable for employment due to their educational pursuits. Id.
[W]hen an employee opts to attend school, curtailing present earning capacity in order to reap greater future earnings, a back pay award for the period while attending school also would be like receiving a double benefit. We fail to see that the district court abused its discretion in not including the time Taylor was attending school in the back pay award.
Taylor v. Safeway Stores, Inc., 524 F.2d 263, 268 (10th Cir. 1975) (emphasis added).
The time a person spends in school learning a new career is an investment for which future benefits are expected. The student is compensated for the time in school by the opportunity for future earnings in the new career and thus suffers no damages during that period. To allow front pay for this period would compensate the person twice.
Floca, 845 F.2d at 113 (emphasis added).
Therefore, the fact that Huber removed herself from the job market for a period of time in order to pursue some vocational rehabilitation does not preclude her, as a matter of law, from receiving any economic damage. Rather, Huber would be precluded from receiving damages only for the time period in which she was engaged in educational pursuits and not ready, willing, and available to seek employment. The Gazette's motion for summary judgment on this basis is denied.
Reasonable Accommodation
The Gazette claims that it is entitled to summary judgment on Huber's failure to accommodate claim because it did, as a matter of law, reasonably accommodate Huber's disability. While Huber agrees that the Gazette did provide her with some accommodations for her disability, she argues that the Gazette failed to provide her with two critical accommodations, thereby precluding summary judgment. Specifically, Huber claims that the Gazette should have consulted St. Luke's Bios to have a work site evaluation completed, and that it should have taken steps to reduce Huber's job-related stress.
The ADA and its implementing regulations provide specifically that unlawful discrimination includes an employer's act of not making "reasonable accommodations" for the known limitations of an "otherwise qualified individual with a disability," unless such accommodation would impose an "undue hardship" on the business. Allison v. Dep't of Corrections, 94 F.3d 494, 497 (8th Cir. 1996) (citing 42 U.S.C. § 12112(b)(5)(A)); 29 C.F.R. § 1630.9(a)). Determining appropriate reasonable accommodations may require that the employer initiate an informal, interactive process with the disabled employee. 29 C.F.R. § 1630.2(o)(3). Moreover, "[o]nce a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation." 29 C.F.R. § 1630, App. § 1630.9. The Eighth Circuit recently analyzed an employer's duty in this regard and summarized it as follows:
Although an employer will not be held liable under the ADA for failing to engage in an interactive process if no reasonable accommodation was possible, we find that for purposes of summary judgment, the failure of an employer to engage in an interactive process to determine whether reasonable accommodations are possible is prima facie evidence that the employer may be acting in bad faith. Under these circumstances, we feel a factual question exists as to whether the employer has attempted to provide reasonable accommodation as required by the ADA.Fjellestad v. Pizza Hut of America, Inc., 1999 WL 642958 *6 (8th Cir. 1999).
Throughout this process, "[t]he employee still carries the burden of showing that a particular accommodation rejected by the employer would have made the employee qualified to perform the essential functions of the job." Id. "All the interactive process requires is that employers make a good faith effort to seek accommodations." Id. (quoting Taylor v. Phoenixville Sch. Dist., 174 F.3d 142, 162 (3rd Cir. 1999). "In general, it is the responsibility of the individual with the disability to inform the employer that an accommodation is needed." Mole v. Buckhorn Rubber Products, Inc., 165 F.3d 1212, 1217 (8th Cir. 1999) (quoting Wallin v. Minnesota Dep't of Corrections, 153 F.3d 681, 689 (8th Cir. 1998)).
Huber concedes that the Gazette provided her the following accommodations for her MS: (1) her work schedule was changed from five eight-hour days to four 10-hour days so that she could have a day off in the middle of the week to rest; (2) she was given time off of work when needed to recover from her MS attacks; (3) she was provided help from other employees in lifting heavy objects; (4) she was allowed to switch parking spots with another employee so that she would not have as far to walk into work; (5) she was given work assignments that required the least amount of walking possible; (6) she was provided a cart to transport items around the facility; and (7) she was provided with a motorized scooter to help her move about the facility.
Despite these accommodations, Huber argues that summary judgment on this issue is inappropriate because the Gazette should have enlisted the help of an occupational therapist to perform a work site evaluation to determine possible other accommodations. Furthermore, Huber claims that the Gazette should have accommodated her MS by reducing her job-related stress. According to Huber, she had informed the Gazette that stress generally exacerbates the symptoms of MS. Huber also argues that the Gazette's failure to provide her a scooter until months after she first requested it creates a genuine issue of material fact whether or not her disability was reasonably accommodated.
Huber requested a scooter in March of 1997. In a letter dated April 18, 1997, the Gazette informed Dr. Streib of its concerns regarding Huber's job performance and asked that he evaluate the requirements of various jobs and Huber's ability to perform the essential functions of each job. Included in this letter were excerpts from Huber's negative job evaluations. Huber was angered by this letter and instructed Dr. Streib not to provide further information to the Gazette without her permission. On May 19, 1997, Huber suffered an MS attack and was off of work until June of 1997. Huber submitted no medical evidence to support her need for a scooter until June, 1997. When Huber returned from her medical leave of absence a scooter was provided to her.
The Tenth Circuit Court of Appeals faced a similar fact pattern in Templeton v. Neodata Servs., Inc., 162 F.3d 617 (10th Cir. 1998). In Templeton, the plaintiff refused to authorize her physician to release the medical information requested by her employer because she believed that her employer was preparing to place her on medical leave against her wishes. Id. at 618. The plaintiff refused to cooperate with further requests for information as well. Id. The Tenth Circuit affirmed the district court's grant of summary judgment for the employer and its finding that the plaintiff was terminated for failing to provide medical information that was reasonably requested by her employer, not for any reason remediable under the ADA. Id. at 619. "[T]he employee's failure to provide medical information necessary to the interactive process precludes her from claiming that the employer violated the ADA by failing to provide reasonable accommodation." Id.
Huber requested a scooter. The Gazette attempted to investigate whether or not a scooter was medically necessary or recommended. Regardless of her motivation, Huber thwarted these attempts. Huber suffered an MS attack and went on a medical leave of absence. Huber's physician then wrote out a prescription stating her need for a scooter. The Gazette provided Huber with a scooter upon her return. Huber cannot, by her own actions, slow down the accommodations process and then claim that her employer violated the ADA by failing to act quickly enough. "An employer cannot be expected to propose reasonable accommodation absent critical information on the employee's medical condition and the limitations it imposes." Id.
Huber argues that the Gazette failed to accommodate her by not enlisting the services of St. Luke's Bios, an occupational consulting program, to perform a job site evaluation and propose possible accommodations. The Gazette claims that Huber's theory is flawed. Specifically, the Gazette argues that Huber has failed to offer any proof that St. Luke's Bios would have actually identified any additional reasonable accommodations that would have enabled her to perform the essential functions of her position. Moreover, the Gazette points out that it did, in fact, schedule an appointment with St. Luke's Bios to have an evaluation completed, but had to cancel due to Huber's subsequent leave of absence. Upon Huber's return to work she was provided with a scooter. The Gazette never rescheduled the session and Huber never requested that it be rescheduled.
In Fjellestad, the Eighth Circuit noted that requiring the employer to engage in an interactive process does not mean that "any particular accommodation must be made by the employer." Fjellestad, 1999 WL 642958 *7. "The employee still carries the burden of showing that a particular accommodation rejected by the employer would have made the employee qualified to perform the essential functions of the job." Id. See also Cannice v. Norwest Bank Iowa N.A., 1999 WL 608644 *3 (8th Cir. 1999) (holding that plaintiff failed to present a submissible case under the ADA, in part, because "he lacked proof that an accommodation of his disability would have allowed him to keep his job.").
Huber has presented no evidence that any suggestions that St. Luke's Bios might have come up with would have allowed her to satisfactorily perform the essential functions of her job. Moreover, the undisputed facts show that the Gazette did not reject the possibility of rescheduling St. Luke's Bios to do an evaluation after Huber returned from her medical leave of absence. Upon Huber's return she was provided a scooter and St. Luke's Bios was never mentioned again by either party. If, after returning to work with her scooter, Huber felt that St. Luke's Bios could have suggested additional reasonable accommodations, then she could have requested that the evaluation be rescheduled. See Mole, 165 F.3d at 1217 (noting that, generally speaking, it is the disabled employee's responsibility to inform the employer that an accommodation is needed).
Finally, Huber claims that the Gazette failed to reasonably accommodate her disability by failing to reduce her job-related stress. Huber's stress arose from her perception that the Gazette was closely monitoring her performance and scrutinizing her more harshly than other employees. The Gazette argues that it is entitled to summary judgment on this claim because reducing job stress is not a reasonable accommodation and because Huber offered no evidence that the alleged stress actually impaired her ability to perform the essential functions of her position.
The Eighth Circuit recently addressed the issue of whether reducing job stress is a reasonable accommodation in Cannice v. Norwest Bank Iowa N.A., 1999 WL 608644 (8th Cir. 1999). In Cannice, the plaintiff suffered from depression. Id. The plaintiff argued that any type of job-related aggravation constituted a failure to accommodate his disability. Id. at *4. The Eighth Circuit disagreed. "We do not believe, however, that the obligation to make reasonable accommodation extends to providing an aggravation-free environment." Id. "The fact . . . that he was more closely monitored than his colleagues, [does] not, as a matter of law, amount to a failure by Norwest to accommodate his disability . . ." Id. Therefore, summary judgment on Huber's failure to accommodate claim is warranted.
Order
Defendant's June 9, 1999 motion for summary judgment (docket number 16) is denied with respect to plaintiff's claim for economic damages and is granted with respect to plaintiff's failure to accommodate claim.