Petition for Writ of Certiorari — Mole v. Buckhorn Rubber Products, Inc.

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® 81990 WN) 119

In The OFFICE OF THE CLERK

Supreme Court of the United States

October Term, 1999

‘

KATHLEEN MOLE,

Petitioner,

VS.

BUCKHORN RUBBER PRODUCTS, INC.,

Respondent,

On Petition for Writ of Certiorari to the

United States Court of Appeals For The Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

CHARLES E. STINE, JR. ROGER G. BROWN & ASSOCIATES

114 N. NINTH STREET ROGER G. BROWN

HANNIBAL, MISSOURI 63401 Counsel of Record

(573) 221-8743 KEITH WAYNE BRUNSTROM

(573) 221-8769 Telefax DANIEL N. MCPHERSON

Of Counsel 216 East McCarty Street

Jefferson City, Missouri 65101

(573) 634-8501

(573) 634-7679 Telefax

Counsel for Petitioners

QUESTIONS PRESENTED

The Americans with Disabilities Act requires employers to

make reasonable accommodation to the known physical or

mental limitations of otherwise qualified employees, The question

presented is what is the proper order and allocation of proof in

determining whether an ermployer has violated the ADA by firing an

employee known by the employer to be diagnosed with Multiple

Sclerosis, specifically:

l, Should the McDonnell Douglas burden shifting

scheme be used in analyzing failure to accommodate cases

brought under the Americans with Disabilities Act, an issue as to

which the courts of appeals are in conflict.

Z Which party bears the burden of persuasion on the

question of whether the employer can reasonably accommodate

the known disabilities of an employee?

LIST OF PARTIES

The caption of the case contains the names of all parties.

TABLE OF CONTENTS

Questions Presented ........:.eeeeeeveees beeees

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Opinions Below on. c see ceccccsccvessesvsveesese

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Statutory Provisions Involved ..........-.-2e0045.

Seehormant OF Gre CORO occ cccvusevecessevecesaeute

A. Factual Background .....csscccscsceces

B. Proceedings Below ......csccsecsscees

Reasons For Granting the Writ... 06s

I, The Cause Presents The Court

With The Opportunity To Resolve

A Conflict Among The Circuit

Courts OF ADDORIG cccccccccccrscces

perens it

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———

5 allie tal

TABLE OF CONTENTS, Continued

Page

I This Cause Presents The Court With

The Opportunity To Ensure That The

Americans With Disabilities Act Is

Enforced In A Manner Consistent With

Congressional Intent. ................... 12

ee ead e sa uy ly iG yuo ake ees vee ones sk 17

EG ea eee Al

Appendix A - Opinion of the United States

Court of Appeals for the Eighth Circuit. .......... Al

Appendix B - Opinion of the United States

District Court for the Easter District of Missouri . A24

Appendix C - Order of the United States Court

of Appeals Denying Petitioners Petition for

Rehearing En Banc and Rehearing by the Panel . A40

TABLE OF AUTHORITIES

Page

CASES

Aka v. Washington Hospital Center, 156 F.3d 1284

Ce Ce: FERED ocd wecvedweev duns dene ceusesess 9, 13

Bultemeyer v. Fort Wayne Community Schools,

100 F.3d 1281 (7th Cir. 1996) ...........02 eee 10, 13

Jacques v. Clean-up Group, Inc., 96 F.3d 506

CRO TD obs sKecddenhvedee ohaseaunkeneeeaene 9

McDonnell Douglas v. Green, 411 U.S. 792 (1973) ...... Passim

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) ........ 14

Mole v. Buckhomn Rubber Products, 165 F.3d 1212

WE nS vccccnbusveuccouvesducenasees 9, 16

Monette v. Electronic Data Systems Corp., 90 F.3d

iit jx 3. Serre rrr rrr ere 10, 11

Prewitt v. United States Postal Service, 662 F.2d 292

(Sth Cir. Unit A Nov.1981) ........-cccceces 10, 11, 15

TABLE OF AUTHORITIES - Continued

Page

Stewart v. Happy Herman’s Cheshire Bridge Inc.,

197 Ped 1278 Ch OG Cle. 1GBT) oc cc ccccvccccess 10, 16

White v. York International Corp., 45 F.3d 357

Coat SE sobs ne be behersiwcesesereel 9, 11, 16

Wood v. Omaha School Dist. , 985 F.2d 437

Ga) WN svete evecccsadeyeuacccencueuee 16

STATUTES AND REGULATIONS

42 U.S.C. $ IZUIZIMSMA) CIGBD) .n ccc ccc cccvecccsavs 2, ta

GELS. F CRP PURP ENED 6b stab sdcsonucsaccsaveecien 14

ae CF es SUR REED 60-6 h.0.0006008s60e0ueee ee 13

29 CFR. Past 1630, App., p. 365 CIGSS) 2... ccc cccccccecucs 13

TREATISES

Robert L. Burgdorf, Jr., Disability Discrimination

in Eeaployrventt Late (IGSS) .. occ cccccccvencvvces 15

Vii

TABLE OF AUTHORITIES - Continued

LAW REVIEWS AND JOURNALS

Jeffery O. Cooper, Comment, Overcoming Barriers

to Employment: The Meaning of Reasonable

Accommodation and Undue Hardship in the

Americans with Disabilities Act, 139 U.Pa.L.Rev.

SORDTIIBD) on ccc vecccvccsevercesessecevneueses 12

OTHER SOURCES

Office of Research, Information and Planning, EEOC,

American with Disabilities Act of 1990 (ADA)

Charges FY 1992 - FY 1998 (1998) ......-..00+++555 8

No.

In The

Supreme Court of the United States

October Term, 1999

KATHLEEN MOLE,

Petitioner,

vs.

BUCKHORN RUBBER PRODUCTS, INC.,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals For The Eighth Circuit

_¢

PETITION FOR WRIT OF CERTIORARI

Kathleen Mole respectfully petitions this Court for a writ of

certiorari to review the judgment of the United States Court of

Appeals for the Eighth Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Eighth Circuit (App., infra, Al-A24) is reported at 165 F.3d 1212.

The opinion of the United States District Court for the Eastern

District of Missouri (App., infra, A25-A40) is unreported. A timely

petition for rehearing was filed and denied on March 16, 1999 and

is reported in the Appendix at A-41.

JURISDICTION

The judgment of the court of appeals affirming the district

court’s grant of summary judgment was entered on February 1,

1999. Thereafter, on March 16, 1999, the court of appeals denied a

timely Petition for Rehearing. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The pertinent statute is 42 U.S.C. § 12112(b) (1994), which

provides in pertinent part:

As used in subsection{a) of this

section, the term “discriminate” includes—. . .

(5)(A) not rnaking reasonable

accommodations to the known physical or

‘mental limitations of an otherwise qualified

individual with a disability who is an applicant

or employee, unless such covered entity can

demonstrate that the accommodation would

impose an undue hardship on the operation of

the business of such covered entity; 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 such

covered entity to make reasonable

accommodation to the physical or mental

impairments of the employee or applicant. . ..

STATEMENT OF THE CASE

On or about August 24, 1994, Petitioner Kathleen

Mole filed charges of discrimination against Respondent

Buckhom Rubber Products, Inc., under the Missouri

Human Rights Act with the Missouri Commission on Human

Rights, and under the Americans with Disabilities Act with

the United States Equal Employment Opportunity

Commission. She filed amended charges on or about

January 3, 1995. The Commissions issued right-to-sue

letters and Ms. Mole commenced the instant suit on

October 17, 1995 by filing her Complaint in the United States

District Court for the Eastern District of Missouri. The

jurisdiction of the District Court was invoked under the

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.,

under 28 U.S.C. § 1331 and under 28 U.S.C. § 1332 because

of diversity of citizenship, the plaintiff being a citizen of

South Carolina and the defendant a corporation authorized

to do business in Missouri. Supplemental jurisdiction over

her state law claim was invoked under 28 U.S.C. § 1367. In

her Complaint, Ms. Mole alleged that Buckhom failed to

reasonably accommodate her and wrongfully terminated

her from her employment, despite knowledge of her

physical and mental disabilities.

A. Factual Background

Kathleen Mole began working for Buckhorn Rubber

Products, Inc., on January 4, 1982 as a temporary

clerk/typist in the Sales Customer Service Department at

Buckhom’s plant in Hannibal, Missouri. Within a few

weeks she became a full-time employee. Ms. Mole

remained in the clerk/typist position until February 23, 1987,

when she was transferred to Buckhom’s Milford, Ohio

facility as a Customer Service Coordinator |. Ms. Mole was

promoted to the position of Customer Service Coordinator II

in 1988. Buckhorn moved its Customer Service operation

back to Hannibal, Missouri in July, 1990. Ms. Mole was

transferred back to Hannibal and given the title of Senior

Customer Service Coordinator.

In December, 1992, .!s. Mole began experiencing

weakness in her right leg. In the early months of 1993, she

began having great difficulty remembering things,

developed blurry vision and was nervous and trembling. At

about this same time, one of Ms. Mole’s co-workers told

Buckhorm’s Industrial Relations Manager, Ron Meyer, that

Ms. Mole was having headaches, dizzy spells and balance

problems. Mr. Meyer referred Ms. Mole to a physician with

whom he was familiar, Dr. Walid M. Hafez, M.D. Dr. Hafez

referred Ms. Mole to a neurologist, Dr. Irving M. Asher, M.D.,

who diagnosed Ms. Mole on May 18, 1993 as having Multiple

Sclerosis and depression. Ms. Mole informed Mr. Meyer of

the MS diagnosis. (J.A. 285). Mr. Meyer, in turn, told

Buckhorn General Manager Dennis Roberts that Ms. Mole

was suspected of having Multiple Sclerosis, and that he

would have to find more information about it. (J.A. 260).

Shortly after, Mr. Meyer obtained a couple of informational

pamphlets on MS and placed them in Ms. Mole’s medical

file. (J.A. 80, 288). Those pamphlets included suggested

accommodations involving little or no cost. (J.A. 88).

Prior to 1991, Ms. Mole received four performance

appraisals in which she received positive ratings in all ten of

the categories evaluated. Her performance appraisal in

December 1991 rated her as effective in six categories and

as needing improvement in the remaining four. During the

course of 1992, Ms. Mole’s supervisors held numerous

counseling sessions with her over concems about her job

performance. Concerns over Ms. Mole’s job performance

continued to be documented up through a June 10, 1994

performance review that recommended she be terminated

on the basis that she was making too many mistakes in her

work and was unable to provide coverage in the absence of

the other customer service coordinator. (J.A. 610-11). Ms.

Mole received a notice stating that she was being

terminated effective July 14, 1994 and that her last day of

work would be June 30, 1994. Ms. Mole met with Buckhorn

officials on July 14, 1994 and asked to be accommodated

with more rest breaks, days off, full staffing of the customer

service department, air conditioning, written instructions

and more time to test new medication. Buckhorn declined

those requests.

B. Proceedings Below

On motion of the Respondent, the district court

entered summary judgment in favor of the Respondent on

January 15, 1998. The district court found that a genuine

Th hsdeh ated eeatnan hieielahals made ieee an an hae ion "

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issue of material fact existed as to whether Ms. Mole is

disabled, but that Ms. Mole failed to produce evidence

sufficient to create a triable issue as to whether she was

qualified, with or without accommodation, to perform the

essential functions of her job; and whether her termination

gave rise to an inference of unlawful discrimination based

on her disability.

Petitioner appealed that judgment to the United

States Court of Appeals for the Eighth Circuit. On February

1, 1999, that court affirmed the judgment of the district

court. The court of appeals found that Ms. Mole could not

show she was a qualified individual with accommodation

because: (1) she did not request any accommodation prior

to July 14, 1994, the effective date of her termination; (2)

Ms. Mole could offer no assurance the requested

accommodations would remedy her job performance

deficiencies; and (3) some of the requested

accommodations were not reasonable. The court of

appeals also found that Ms. Mole failed to offer sufficient

evidence to show that Buckhom’s stated reasons for Ms.

Mole’s termination were pretext for unlawful

discrimination.

The Honorable Donald P. Lay, Senior Circuit Judge,

filed a dissent. Judge Lay disagreed with the majority

opinion’s use of the McDonnell Douglas burden-shifting

analysis.' Judge Lay stated that the McDonnell Douglas

analysis is designed for disparate treatment cases, but that

the instant case is a reasonable accommodation claim that

requires a different analysis, with the relevant inquiry being

whether Buckhom could or should have reasonably

accommodated Ms. Mole’s illness. Judge Lay also

concluded that material factual disputes remain over

whether Buckhom can reasonably accommodate Ms. Mole.

Petitioner filed a timely Petition for Rehearing with

Petition for Rehearing En Banc. The court of appeals

denied that Petition on March 16, 1999. Judge McMillian

voted to grant rehearing.

REASONS FOR GRANTING THE WRIT

Between July 26, 1992 and September 30, 1998, the

Equal Employment Opportunity Commission (EEOC)

received 108,939 complaints alleging violations of the

Americans with Disabilities Act (ADA). Office of Research,

Information and Planning, EEOC, Americans with

Disabilities Act of 1990 (ADA) Charges FY 1992 - FY 1998

(1998). Of those cases, 31,886 (or 29%) alleged failure to

’ See McDonnell Douglas v. Green, 411 U.S.

792 (1973).

——

ARN ae TR RR ORE ome

Lt LIRR

provide reasonable accommodation. /d. The total number

of ADA cases filed and the percentage alleging failure to

accommodate have remained relatively consistent over the

last three fiscal years for which the EEOC has records. /d.

As many of these cases continue to be litigated in the

courts, the question of the proper analytical framework and

the proper burdens of proof to be employed will recur. The

analytical framework and burdens of proof in those cases

are not being applied consistently from circuit to circuit,

and in many cases are not being applied in a manner

consistent with congressional intent. This Court should give

the lower courts and practitioners a clear and consistent

standard to ensure that the ADA is enforced in an equal and

even-handed manner nationwide.

I. THIS CAUSE PRESENTS THE COURT WITH

THE OPPORTUNITY TO RESOLVE A

CONFLICT AMONG THE CIRCUIT COURTS OF

APPEALS.

As an increasing number of ADA cases have made

their way to the circuit courts of appeals, a conflict has

emerged as to whether the McDonnell Douglas analysis

should be used in failure to accommodate cases. Three

circuits appear to permit the application of a McDonnell

Douglas type anaiysis in such cases. Mole v. Buckhorn

Rubber Products, Inc., 165 F.3d 1212, 1216 (8th Cir. 1999)

(App., infra, A-8 ); Jacques v. Clean-Up Group, Inc., 96 F.3d

506, 511 (1st Cir. 1996); White v. York International Corp., 45

F.3d 357, 361 (10th Cir. 1995). Meanwhile, at least four

circuits have found a McDonnell Douglas type analysis

inappropriate in failure to accommodate claims. Aka v.

Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir.

1998); Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117

F.3d 1278, 1286-87 (11th Cir. 1997); Bulterneyer v. Fort

Wayne Community Schools, 100 F.3d 1281, 1283-84 (7th Cir.

1996); Monette v. Electronic Data Systems Corp., 90 F.3d

1173, 1183 (6th Cir. 1996) see also Prewitt v. United States

Postal Service, 662 F.2d 292, 305 n.19 (Sth Cir. Unit A Nov.

1981) (Rehab. Act case). With such an even split among so

many circuits, it is unlikely that either approach will gain

predominance. An authoritative decision from this Court is

the only means of bringing uniformity of decision to this

area.

The approach adopted by the latter circuits is more

consistent with the language of the ADA and the recognition

that disability discrimination is basically different from the

types of discrimination barred by Title VII. The McDonnell

Douglas analysis was created to deal with the difficulty of

establishing discriminatory intent through direct evidence.

However, when an employer refuses to accommodate the

known disabilities of an employee, the employer is taking

the employee’s disability into account. The employer is

also violating the ADA, unless it can prove one of the

defenses provided for in the statute. The focus of the

analysis should not be on the employer’s intent, but rather

on whether the employer could have accommodated the

employee’s disability, but did not. That issue can be

resolved through direct evidence and traditional burdens of

proof.

The conflict between the circuits means that cases

with similar facts can have very different outcomes

depending on where they are filed. In circuits where the

McDonnell Douglas analysis is used, the focus is shifted

away from the employer’s ability to reasonably

accommodate the employee and instead places the

employer's motives at issue. The McDonnell Douglas

analysis also keeps the burden of persuasion on the

employee at all times, including the burden of persuasion

on the issue of the employer’s ability to make a reasonable

accommodation. See White, 45 F.3d at 361. In at least

some circuits that do not employ a McDonnell Douglas

analysis for failure to accommodate claims, the burden is

placed on the employer to show that a reasonable

accommodation is not possible. Monette, 90 F.3d at 1182

n.8; Prewitt, 662 F.2d at 308.

————

The Petitioner in the instant case was forced to carry

the burden of persuasion that the Respondent could have

—

reasonably accommodated her. If her case had been

brought in a circuit where that burden is placed on the

employer, a different outcome would have been likely.

This Court should grant certiorari to resolve the

inconsistencies and inequities that result from the different

approaches being employed by the various circuit courts of

appeals.

EP Rear

Il. THIS CAUSE PRESENTS THE COURT WITH

THE OPPORTUNITY TO ENSURE THAT THE

AMERICANS WITH DISABILITIES ACT IS

ENFORCED IN A MANNER CONSISTENT WITH

CONGRESSIONAL INTENT.

A. Use of the McDonnell Douglas Analysis.

Prior to passing the ADA, Congress considered and

rejected proposals to add disability discrimination to Title

VII of the Civil Rights Act of 1964. Jeffrey O. Cooper,

Comment, Overcoming Barriers to Employment: The

Meaning of Reasonable Accommodation and Undue

Hardship in the Americans with Disabilities Act, 139 U. Pa. L.

Rev. 1423, 1427 (1991). Congress instead passed the ADA in

recognition of the need for a different approach that

addresses the unique difficulties faced by the disabled. /d.

If the courts are to enforce the ADA in a manner consistent

with congressional intent, they must adopt a form of

analysis that recognizes the innate differences between

disability discrimination and other forms of discrimination.

See id. Such an analysis must also take into account the

variations between the ADA and Title VII, particularly in

their definitions of what constitutes discrimination and in

the defenses allowed to employers.

One definition of discrimination that distinguishes

the ADA from Title VII is failing to make reasonable

accommodation to the known physical or mental

impairments of a qualified individual with a disability. 42

U.S.C. § 12112(b)(5)(A) (1994). As discussed in Part I,

supra, the courts of appeals have been unable to settle on a

single analytical framework for evaluating failure to

accommodate cases. Those courts that have distinguished

cases alleging disparate treatment from those alleging

failure to accommodate have found the McDonnell Douglas

burden shifting approach to be inappropriate for the latter

types of cases. Aka, 156 F.3d at 1288; Bulterneyer, 100 F.3d

at 1283-84. That finding is fully supported by the EEOC

regulations implementing the ADA.

Those regulations recognize three different types of

ADA claims — disparate treatment, disparate impact and

not making a reasonable accommodation. 29 C.F.R. §

1630.15 (1998). The regulations also outline the defenses

applicable to each type of claim. /d. The defenses

available in the McDonnell Douglas burden shifting analysis

used in Title VII cases are specifically referenced as

potentially being applicable to ADA disparate treatment

cases. 29 C.F.R. Part 1630, App., p. 365 (1998). By contrast,

the regulations do not mention McDonnell Douglas as being

applicable to failure to accommodate cases, but instead

talk about the “undue hardship” defense as being

appropriate to those kinds of cases. /d. at 366. The

regulations also point out that the employer bears the

burden of presenting evidence and showing that an

accommodation would impose an undue hardship. /d.

The EEOC has thus recognized the innate difference

between failure to accommodate claims and other types of

discrimination, and that a different method of proof is

required.

By using a McDonnell Douglas type approach in the

instant case, the court of appeals failed to recognize that

distinction. As this Court has noted, the EEOC’s guidelines

“constitute a body of experience and informed judgment to

which courts and litigants may properly resort for

guidance.” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65

(1986). This Court should grant certiorari to examine

whether the experience and informed judgment reflected

in the EEOC guidelines calls for a different approach than

that taken by the court of appeals.

B. Burden of Showing that a Reasonable

Accommodation is Possible.

Title | of the ADA is to be enforced in a manner

consistent with the Rehabilitation Act of 1973. 42 U.S.C. §

12117(b) (1994). In passing the ADA, the House Committee

on Education and Labor stated that it intended that the

burden of proof under the ADA be construed in the same

manner as Section 504 of the Rehabilitation Act of 1973.

H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 345 (1990),

reprinted in 1990 U.S.C.C.A.N. 303, 354.

A basic evidentiary framework for Rehabilitation Act

cases involving reasonable accommodation was first

established by the United States Circuit Court of Appeals for

the Fifth Circuit and has been followed with relative

consistency by other federal courts. Robert L. Burgdorf, Jr.,

Disability Discrimination in Employment Law 322 (1995)

citing Prewitt v. United States Postal Service, 662 F.2d 292

(5th Cir. Unit A Nov. 1981). Under that framework, as part

of the plaintiff's prima facie case there must be a facial

showing, or at least a plausible reason to believe that the

disability can be accommodated to permit the plaintiff to

perform the essential functions of the job. Burgdorf, supra,

aaa eta

at 322. If the employer presents credible evidence

suggesting that accommodation is not reasonably possible,

the plaintiff has the burden of coming forward with |

evidence conceming his individual capabilities and

suggestions for possible accommodations to rebut the

employer's evidence. /d. at 323. The defendant bears the

ultimate burden of persuading the court that it

accommodated the plaintiff, that no reasonable

accommodation is possible, or that accommodation would

pose an undue hardship. /d.

The instant case, and several other cases analyzing

failure to accommodate claims under the ADA, have

ignored Congress’ mandate and have imposed standards

inconsistent with the Rehabilitation Act. Plaintiffs bringing

reasonable accommodation cases before those courts are

being forced to make more than a facial showing that a

reasonable accommodation is possible, and are being

forced to bear the burden of persuasion on whether their

employer can accommodate them. See, e.g., Stewart, 117

F.3d at 1286; White, 45 F.3d at 361. Within the Eighth

Circuit, the burden of persuasion differs depending on

whether the case was brought under the ADA or under the

Rehabilitation Act. Compare Mole, 165 F.3d at 1218 (ADA

case) (App., infra, A-12) with Wood v. Omaha School Dist.,

985 F.2d 437, 439 (8th Cir. 1993) (Rehab. Act case).

caceecaeannatial aileaeiadiiinmmaldilial

The analysis used by the court of appeals in the

instant case did not require the Respondent to produce

evidence, much less prove that it was unable to reasonably

accommodate the Petitioner. The court of appeals instead

made the Petitioner's burden of producing rebuttal

evidence into a burden of persuasion. By focusing on the

timing of Petitioner’s request for accommodation, the

Petitioner was forced to make more than a facial showing

that accommodation was possible. This form of analysis

threatens the effectiveness of a private action under the

ADA to enforce public policy by imposing a burden on

plaintiffs that was not contemplated by the drafters of the

ADA. This Court should grant certiorari to ensure that the

ADA is enforced consistent with congressional intent.

CONCLUSION

For the reasons stated, the Petition for Writ of

Certiorari should be granted.

ee eS ee

Respectfully submitted,

CHARLES E. STINE, JR.

114.N. NINTH STREET

HANNIBAL, Missouri 63401

(573) 221-8743

(573) 221-8769 Telefax

Of Counsel

ROGER G. BROWN & ASSOCIATES

ROGER G. BROWN

Counsel of Record

KEITH WAYNE BRUNSTROM

DANIEL N. MCPHERSON

216 East McCarty Street

Jefferson City, Missouri 65101

(573) 634-8501

(573) 634-7679 Telefax

Counsel for Petitioners

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 98-1500

Kathleen Mole, *

Plaintiff - Appellant, .

* Appeal from the

V. * United States

* District Court

for the

Eastern District

Buckhorn Rubber Products,

Inc.,

of Missouri.

Defendant - Appellee. .

Submitted: September 22, 1998

Filed: February 1, 1999

Before BEAM, LAY, and Loken Circuit Judges.

Loken, Circuit Judge.

A-2

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 court’

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

; 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.

he mmc

ines wi aa ate pcre aa ame Me mm eae RE (a RI ay Ss ES BY

A-3

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 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.

a mn EN ww OS OER a nse re aOR RR OG er

A-4

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, |

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

A-5

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 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.

A-6

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, 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

A-7

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. | 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).

A-8

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,

117 S. Ct. 274 (1996). The same analysis applies to claims under

the MHRA. See Mathews v. Trilogy 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.’ 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

*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 that 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 (8" Cir. 1998); Leffel v. Fin. Servs.,

113 F. 3d 787, 792 (7" Cir.), cert. denied, 118 S.Ct. 416 (1997); and Kocsis

v. Multi-Care Mgmt., Inc., 884-85 (6" Cir. 1996).

A-9

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). 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.

Iie WLAN 258 ec A TC AN at

ME TE

a ey

A-10

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

A-11

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

br. . &- « hen she returned to work, and distributed some of her

work to other employees. Dr. Asher testified these were

reasonable accommodations for an 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

aia eel

—————x__a

A-12

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 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

A-13

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 NW.2d 73, 81 (lowa 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 tliat 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.

— eC

A-14

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 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."

* 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, it not actionable under the ADA. See Matthews v.

Commonwealth Edison Co., 128 F.3d 1194, 1196, 1198 (7" Cir. 1997);

A-15

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

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.

Marari v. WCI Steel, Inc., 130 F.3d 1180, 1182-83 (6" Cir. 1997).

, ; , ,

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 disparate treatment analysis

would apply. Cf. Matthews v. Commonwealth Edison C., 128 F.3d 1194

(7" Cir. 1997). However, no such claim is made here.

A- 16

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 a reasonable accommodation to

the physical or mental impairments of the employee or

applicant.

42 U.S.C. § 12112(b)(5)(A)-(B).

ee Oe —

; 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

A-17

not.? In such cases, the McDonnell Douglas disparate treatment

analysis is 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)

? 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 the plaintiff suffers from

multiple sclerosis and has manifested the symptoms 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.

eT ee

A-18

(citation omitted).* Thus, it should be clear the McDonnell

Douglas method of proof is irrelevant in this case.‘ There is no

question according to Mole’s physicians that she suffers from

MS and that her symptoms affected her job performance.’ The

* Rehabilitation Act cases are relevant in analyzing the ADA

“because the ADA specifically mandates that its provisions be interpreted

or conflicting standards for the same requirements under [the ADA] and

the Rehabilitation Act of 1973.” Benson, 62 F.3d at 1112 n.2.

* the majority’s dominant concem 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 cicar 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 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

A-19

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).”

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 made to assist an

employee with MS.’ Dr. Asher also listed several possible

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.

® in Ameson, 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 Buckhom retum to its

previous three-person staffing of the customer service department to be

unreasonable.

’ The Multiple Sclerosis Society's brochure offered the following

suggested accommodations, noting that “lrleasonable accommodations

A-20

accommodations in his deposition testimony.*

However, the district court and now the majority

emphasize that Mole cannot overcome the defendant’s motion

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.

1 Technological adaptions and devices: may have some cost

attached but also may be provided by outside sources.

* 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.

A-21

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 determine the proper prescriptions and

dosages to manage her illness,’ 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

¢'0

termination was to take effect." Considering the human

. 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 Buckhom 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.

- 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

Buckhom until the end of the day on July 14, 1994.

A-22

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

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

A-23

Mole argues, Buckhorn "runs away from its own lawful duties

under 29 C.F.R. § 1630.2(0)(3)"' 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.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

'' 29 C.F.R. § 1630.2(0)(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 these limitations.

A-24

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

KATHLEEN MOLE, )

)

Plaintiff(s), )

vs. ) Case No. 4:95CV01955GFG

)

BUCKHORN RUBBER )

PRODUCTS, et al., )

)

Defendant(s). )

This matter is before the Court on defendant’s motion for

summary judgment. (Doc. 32) Plaintiff opposes the motion.

(Doc. 42)

Kathleen Mole filed this action against Buckhorn Rubber

Products, Inc., alleging that they discriminated against her based

on her disability, in violation of the Americans with Disabilities

Act (ADA) , 42 U.S.C. § 12101 et seq. (Count 1) and the Missouri

Human Rights Act (MHRA) , Mo. Rev. Stat. § 213. 055. 1 (1)

(Count Il).

I. Facts

Mole was hired to work for Buckhorn at its Hannibal,

Missouri facility in 1982 as a temporary clerk/typist, and she

became a full-time employee within a few weeks. She

remained in that position until 1987. The record includes

positive performance appraisals for plaintiff from 1983 and 1986.

In 1987, plaintiff was transferred to defendant's Milford, Ohio

facility to work as a Customer Service Coordinator I. In 1988 she

was promoted to Customer Service Coordinator I. Mole

received positive performance appraisals in January and

December 1989. In the December 1989 evaluation, Mole was

rated “effective” in seven of ten categories, “effective+” in one

category, and “excellent” in two categories. On July 1, 1990, the

Customer Service function was transferred to the Hannibal

facility, and plaintiff was transferred back to Hannibal and was

given the title Senior Customer Service Coordinator.

As a Customer Service Coordinator, plaintiff's

responsibilities included communicating with customers on the

telephone and providing them with product information;

receiving, addressing, and responding to customer complaints;

satisfying customer requests for order follow-up and expediting

of product shipments; receiving and processing customer order

information; and preparing and entering customer order

information into the computer system. As the senior

coordinator, Mole was responsible for answering any questions

A-26

that the other customer service coordinators might have.

In April 1991, David Johnston became the supervisor of

the customer service department. Johnston attested that he met

several times with plaintiff over the course of 1991, advising her

that her performance needed to improve in certain areas. In

December 1991 Mole had a performance appraisal in which she

was rated “effective” in six of ten categories and “needs

improvement” in four of ten categories. The evaluation

characterized Mole as “a fine employee,” but also stated that

her work area was cluttered, she needed to assume more of a

leadership role, she tended to get angry at the demands placed

by customers, and she needed to improve her telephone skills.

Johnston attested that he met several times with plaintiff during

1992 to discuss her performance. Ronald Meyer, the industrial

relations manager, testified that he attended several of those

meetings. On October 30, 1992, Johnston and Meyer met with

plaintiff and issued her a written warning that lack of

improvement in her performance would result in disciplinary

action. The warning stated that she had made “a number of key

mistakes” in the past few months, that directives had been

ignored, and that customers were handled in a negative and

unprofessional manner.

In May 1993, another employee informed Meyer that

Mole was experiencing “headaches, dizzy spells, and some

balance problems.” Meyer referred her to a specialist, Dr. Hafez.

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Plaintiff related to Dr. Hafez that she had been having weakness

in her right leg since December 1992, “great difficulty

remembering things” for a couple of months, recently

develoned blurry vision, nervousness and trembling. Dr. Hafez

indicaied that Mole possibly had multiple sclerosis (MS) and

ordered further tests. Plaintiff informed Meyer that she had

symptoms of MS, and she was placed on paid sick leave for the

tests M.., 6-14, 1993. Dr. Hafez referred Mole to another doctor,

Dr. Asher. Mole returned to work on May 17. On May 18 Dr.

Asher evaluated Mole and noted weakness of the right leg,

difficulty walking, difficulty with bladder and bowel function,

blurred vision, dizziness, difficulty sleeping, and depression. Dr.

Asher diagnosed Mole with MS, probably symptomatic as early

as December 1992. Dr. Asher ordered her hospitalized, and she

was again placed on paid sick leave from May 18 through June

1, 1993. Defendant hired a temporary employee through

Manpower Temporary Services to assume part of plaintiff's

duties during her absence. The temporary employee was

retained to assist with clerical duties after Mole returned.

In early 1993, defendant reassigned accounts, giving

some of the more time-consuming accounts to the other

customer service coordinator, Angela Dillman. Dillman testified

in her deposition that there were problems with some of the

accounts that were transferred to her from Mole, that she

received complaints from customers that Mole had been rude to

them, and that when Mole was absent and Dillman had to take

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over her accounts, Dillman found a large stack of papers

containing information that was supposed to be distributed

throughout the company but was not. Some of the information

dated back to before Mole returned to Hannibal, and scheduling

and customer problems were caused by Mole’s actions. Dillman

also testified that Mole was uncomfortable using the new

computer system and incorrectly entered orders. Donna

Roberts, defendant’s receptionist, testified that several times in

Mole’s last year of employment customers complained to her

that Mole had been rude to them and they did not want to speak

with her. Beverly Bareis, defendant's credit collection manager,

testified that in the course of her job she found more errors

created by Mole than by other customer service coordinators.

Meyer testified that Mole would often sit at her desk crying.

Mole submitted the deposition testimony of Allice King,

the document control clerk for the engineering department,

who testified that Mole did not commit more than the normal

errors and that she was “shocked” when Mole was discharged.

Mole also submitted the deposition testimony of Joe Houser, a

market sales representative, who testified regarding an error

Mole had made and also testified that he did not receive any

customer complaints about Mole. Mole submitted an affidavit

from a customer who indicated that he preferred dealing with

Mole to other customer service representatives.

In June 1993, Mole felt ili at work. At Mole’s request,

ESS ea

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Ronald Meyer telephoned Dr. Asher and explained that he

would grant plaintiff a leave of absence if that would benefit her.

Dr. Asher examined plaintiff and recommended that she take a

two-week leave of absence. Plaintiff took a paid leave of

absence from June 23 to July 12, 1993. On June 28, while she

was on sick leave, plaintiff received a performance appraisal

that rated her as “effective” in two of ten categories, “needs

improvement” in six categories, and “marginal” in two

categories. The evaluation noted that she was resistant to

changes in the department, needed to develop a more positive

attitude with customers, maintained a disorganized work area,

and needed to eliminate errors. Mole was demoted from her

position as the senior coordinator on July 1, 1993.

On November 11, Dr. Asher noted that Mole “has been

having increasing difficulty walking for the past 2 weeks and she

has become basically afunctional. She is sitting around at home

crying. Complains of difficulty with her vision. She is not eating

and she is not sleeping.” She was again hospitalized and was on

paid sick leave November 10 to December 7, 1993. On

December 7, Dr. Asher noted improvement, but on December

17 she suffered a seizure, was again hospitalized, and was on -

sick leave until December 23, 1993. In a performance appraisal

dated January 1, 1994, Mole was rated as “needs improvement”

in six of ten categories and “marginal” in four. The appraisal

noted a lack of improvement and wide mood swings that “may

be attributable to her medical condition.” It also noted that

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plaintiff mistakenly believed that she was doing “fine,” and that

she needed to improve substantially to remain in her position.

On February 10, 1994, Johmston met with plaintiff to discuss her

performance and presented her with a memorandum detailing

problems with her performance. The memorandum stated that

continued lack of improvernent would lead to her termination.

Dr. Asher noted an improvement in plaintiff's condition in

appointments in January and March 1994. After an appointment

on March 7, Dr. Asher noted that he had spoken with Meyer,

who had noticed “marked improvement” in plaintiff, had

indicated he would try to support her, and had indicated that

additional time off would not be a problem.

On June 10, 1994, Johnston prepared a performance

update stating that plaintiff was “putting forth her very best effort

to improve her performance,” noting more positive dealings

with customers and coworkers and good attendance, but

stating that the improvement was inadequate. The

memorandum listed examples of errors that plaintiff continued

to make, including three instances in which plaintiff did not

cancel orders or incorrectly entered orders that had to then be

returned at company expense and caused others to redo her

work. The memorandum stated that Mole could not properly

cover the department in the absence of Dillman, which was not

true of Dillman in Mole’s absence, and stated that Mole did not

understand the importance of doing her job well. The

memorandum recommended that plaintiff be terminated.

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Plaintiff was terminated on June 30, and was paid through July

14, 1994. Plaintiff was given a second option of applying for

long-term disability benefits. On July 14, plaintiff met with Meyer

and advised him that she wanted her job back. She presented a

letter from Dr. Asher which stated that “Ms. Mole has multiple

sclerosis. | 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.” Plaintiff

asserts that she requested accommodation during her meeting

with Meyer by suggesting to defendant that she would need to

take rest breaks and some days off, and that defendant should

fully staff the customer service positions by hiring a third

customer service coordinator. Defendant refused to give plaintiff

her job back.

Meyer submitted a supplemental affidavit stating that

defendant employed three customer service coordinators

during the initial period that the department was transferred to

the Hannibal facility, but defendant had determined that the

sales volume did not justify three coordinators. Defendant

added a third coordinator position in May 1995 to meet the sales

demands associated with defendant’s waterworks products,

which was initiated in 1994.

Il. Law

The Eighth Circuit has cautioned that “summary

judgment should seldom be granted in employment

discrimination cases.” Crawford v. Runyon, 37 F.3d 1338, 1341

(8th Cir. 1994). Only in rare cases when there is no dispute of

fact and there exists only one conclusion should summary

judgment be granted. Id. The Court reasoned that “[b]ecause

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.” Id. If, however, “the plaintiff fails to

establish a factual dispute on each element of the prima facie

case, summary judgment is appropriate.” Bialas v. Greyhound

Lines, Inc., 59 F.3d 759, 762 (8th Cir. 1995).

The ADA provides that “no covered entity shall

discriminate against a qualified individual with a disability

because of the disability of such individual in regard to. . . the

hiring, advancement, or discharge of ernployees.” 42 U.S.C.

§12112(a). The ADA defines the term “qualified individual with a

disability” as “an individual with a disability who, with or

without reasonable accommodation, can perform the essential

functions of the employment position that such individual holds

or desires.” 42 U.S.C. § 12111(8). The term “discriminate” is

defined to include “not making reasonable accommodations to

the known physical or mental limitations of an otherwise

qualified individual with a disability who is an. . . employee,

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unless such covered entity can demonstrate that the

accommodation would impose an undue hardship on the

operation of the business of such covered entity.” 42 U.S.C. §

12112(b)(5)(A).

Disability is defined under the ADA to include a physical

or mental impairment that substantially limits one or more of

the plaintiff's major life activities. 42 U.S.C. § 12102(2)(A). “To

‘substantially limit’ a major life activity means to render an

individual unable to perform a basic function that the average

person in the general population can perform, or to significantly

restrict the condition, manner, or duration under which an

individual can perform a particular major life activity as

compared to the average person in the general population.” See

Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1206 (8th Cir. 1997)

(citing 29 C.F.R. Pt. 1630, App. § 1630.2(j)). Factors used to

determine whether a person is substantially limited in a major

life activity are the nature and severity of the impairment, its

- duration or anticipated duration, and its long-term impact. See

Snow, 128 F.3d at 1207. “Major life activities” include “caring for

oneself, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working.” 29 C.F.R. §

1630.2(1).

The McDonnell Douglas burden-shifting framework

applies to claims brought under the ADA. See Snow, 128 F.3d at

1205-06. To establish a prima facie case under the ADA, Mole

' a |

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must show that: (1) she was “disabled” as defined by the ADA;

(2) she was qualified, with or without accommodation, to

perform the essential functions of the job; and (3) her

termination gave rise to an inference of unlawful discrimination

based on her disability. See id. at 1206.

If plaintiff makes out a prima facie case, the burden of

production shifts to the employer to articulate a legitimate,

nondiscriminatory reason for its actions. See Miners v. Cargill

Communications, Inc., 113 F.3d 820, 823 (8th Cir.) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)),

cert. denied, 118 S. Ct. 441 (1997). The burden of production

then shifts back to the plaintiff to demonstrate that the

employer's proffered reason is pretextual. See id. (citing St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993)).

The analysis of disability discrimination is the same

under the MHRA. See Mo. Rev. Stat. § 213. 010 (10); Heintzelman

v. Runyon, 120 F.3d 143, 145 n.4 (8th Cir. 1997) (citing Sedalia

No. 200 Sch. Dist. v. Missouri Comm'n on Human Rights, 843

S.W.2d 928, 930 (Mo. Ct. App. 1992)).

Ill. Analysis

The court finds that plaintiff did not establish a prima

facie case of discrimination. Under the first prong of the test, the

Court finds that a fact question exists as to whether Mole was

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disabled under the ADA. The medical testimony in the record

indicates that MS is a Jisease that affects different individuals in

different ways and affects their lives to varying degrees. At

certain points in time since her diagnosis, Mole was depressed

to the point that she could do nothing more than sit at home or

at her desk crying. Such depression undoubtedly would have

affected her ability to perform any job. In addition, the medical

testimony indicates that Mole’s particular manifestation of the

disease affected her cognitive function--her ability to think and

to remember instructions, which could also affect her ability to

work at a wide range of jobs. While it appears that during the

periods that her MS was stable, Mole could have performed a

wide range of jobs, the fluctuating nature of her illness provided

for several fairly long-term absences that would affect her ability

to work. Although the record indicates that Mole’s illness has

become more stable since her initial diagnosis, Dr. Asher’s letter

indicates that her illness “will likely fluctuate considerably” over

her lifetime. The Court finds this evidence sufficient to raise a

fact question regarding whether Mole is disabled under the ADA.

The Court finds, however, that Mole fails on the second

and third prongs of the prima facie case. As to the second

prong, the Court finds that Mole was not qualified to perform the

essential functions of her job. Although the latest memorandum

discussing Mole’s performance indicated that she had taken a

more positive attitude when dealing with customers, she

continued to make costly errors. Mole does not dispute that she

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made the errors or the significance of those errors. The

memorandum also indicated that Mole could not provide

proper coverage when Dillman was absent. While the Court

recognizes that Mole performed adequately as a customer

service coordinator for several years, and in fact received

positive evaluations for her performance, her problems in the

position since 1991 were well-documented and affected the

essential functions of her job.

Even assuming Mole’s performance problems in later

years were caused or exacerbated by her illness, Mole did not

provide in a timely manner any suggested accommodations that

would have cured those problems. Mole does not allege that

she requested any accommodations during her performance

reviews, but instead insisted that she was performing her job

"fine." After her termination, when Mole requested her job back,

she requested that defendant could accommodate her by

allowing her to take breaks when she was having problems with

her MS and by again fully staffing the customer service positions.

This Court has noted that, while an employer may “initiate a

discussion concerning the need for an accommodation when

an employee with a known disability is having problems with

job performance,” the ADA generally imposes upon the

employee the duty to request an accommodation. Ferry v.

Roosevelt Bank, 883 F. Supp. 435, 440-41 (E.D. Mo. 1995). The

Court held that, by initiating a discussion with the employee

conceming possible accommodations, the employer shifted the

, “.

A-37

burden to the employee to request the particular

accommodation she believed would enable her to adequately

perform the essential functions of her job. See id. at 441. The

Court finds that the same reasoning applies in this case.

Defendant initiated discussions with plaintiff on several

occasions regarding her performance problems and stated a

willingness to help her with those problems. Plaintiff did not

request any accommodation until after her termination. This

request came too late. See Conner v. Reckitt & Colman, Inc., 84

F.3d 1100, 1102 (8th Cir. 1996) (post-termination request for

accommodation does not constitute discriminatory act). Even

at that time, Mole did not request some of the accommodations

that she now asserts would help, such as written instructions.

Defendant could not be expected to know that such an

accommodation would be helpful to Mole. See Ferry, 883 F.

Supp. at 441.

In any event, the Court finds that some of the

accommodations requested by Mole after her termination were

unreasonable. Although Mole requested “full staffing” of the

department, the affidavits submitted by defendant reveal that

the department was fully staffed. De:endant is not required to

hire additional personnel to complete the essential functions of

the position. See 29 C.F.R. Pt. 1630, App. § 1630.2(0) (employer

not required to reallocate essential! functions); Martinson v.

Kinney Shoe Corp., 104 F.3d 683, 687 (4th Cir. 1996) (employer

not required to hire additional person).

ee ee ee me er

A-38

As to the third prong of the prima facie case, the Court

finds that Mole’s termination did not give rise to an inference of

unlawful discrimination. Mole’s negative performance

evaluations began before either she or defendant knew or

suspected that she had MS. As early as October 1992, Mole

received a warning that she would receive “disciplinary action”

if her performance did not improve. In her memorandum

opposing summary judgment, Mole suggests that because

defendant was self-insured, the costs of her future treatment led

to her termination. She offers no support, however, for such

speculation. Mole’s attempt to use defendant’s statement that it

would not object to Mole filing an unemployment insurance

claim also falls far short of a showing of an inference of

discrimination.

Even assuming Mole made a prima facie showing of

discrimination based on her disability, defendant offered a

legitimate, nondiscriminatory reason for her termination--poor

job performance. Mole did not submit evidence sufficient to

create a factual question on the issue of pretext. Mole’s poor

evaluations began before she was diagnosed with MS. Mole

does not argue that the errors attributed to her did not occur.

The deposition testimony submitted by Mole in an attempt to

show that others saw her performance “in a much better light

than is indicated by Johnston” does not contradict the specific

problems that Johnston and others attributed to Mole. The fact

that some coworkers and customers who worked with Mole on

A-39

a limited basis noticed fewer problems with her performance

does not mean that her performance was acceptable. Mole

does not dispute that the problems existed.

The Court grants summary judgment to defendant on

plaintiffs MHRA claims for the same reasons as those set out

above pertaining to plaintiff's ADA claims. See Heintzelman, 120

F.3d at 145 n.4.

Accordingly,

IT IS HEREBY ORDERED that defendant’s motion for

summary judgment (Doc. 32) is GRANTED.

Dated this 15" day of January, 1998.

/s/ George Gunn

GEORGE F. GUNN, JR.

SENIOR UNITED STATES DISTRICT JUDGE

A-40

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 98-1500EMSL

Kathleen Mole, °

Appellant, ?

* Order Denying

V. * Petition for

* Rehearing and for

Buckhorn Rubber * Rehearing En Banc

Products, Inc., .

Appellee. °

The petition for rehearing en banc is denied. Judge

McMillian would grant the petition.

The petition for rehearing by the panel is also denied.

March 16, 1999

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.