Opposition Brief — Mole v. Buckhorn Rubber Products, Inc.

EFIBED

AUG 10 1999

DaRIQE OF THE CLERK

No. 98-1990

IN THE

Supreme Court of the United States

KATHLEEN MOLE,

Petitioner,

V.

_

BUCKHORN RUBBER PRODUCTS, INC.,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

RESPONDENT?’S BRIEF IN OPPOSITION

RoBerT J. VALERIAN

Counsel of Record

STEVEN Moss

KAHN, KLEINMAN, Y ANOWITZ

& ARNSON Co., L.P.A.

Attorneys for Respondent

1301 East Ninth Street

The Tower at Erieview

Suite 2600

Cleveland, Ohio 44114-1824

(216) 696-3311

154428 @ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

STATEMENT PURSUANT TO RULE 29.6

Respondent Buckhorn Rubber Products, Inc., is a

wholly-owned subsidiary of Myers Industries, Inc.

il

TABLE OF CONTENTS

Page

Statement Pursuant to Rule 29.6 ............... i

FeRle OF COMME ok cecstianseeene ii

Table of Cited Authorities .......0............ iv

Favtent DOcQrewell cos is ssa oe eraeeeee l

Statutory Provisions Involved ................. 5

Reasons for Denying the Writ ................. 6

I. The Writ Must Be Denied Because There Is

No Conflict Among The Circuit Courts Of

Appeals As To The Dispositive Issue In This

Case; Specifically, That Mole Bears The

Burden Of Proving That She Was A

“Qualified Individual” Under The Americans

With Disabilities Act. ..............000. 6

A. Mole misstates the law in claiming that

the Fifth and Sixth Circuits are in

conflict with the other circuit courts of

appeals in requiring the employer to bear

the burden of proof on the issue of

whether an employee is a “qualified

individual” under the ADA. In fact, all

of the cases in those circuits, as in every

other circuit, place the burden of proof

on the employee. .........ccccceees 6

ili

Contents

B. In arguing that the Eighth Circuit

improperly applied the McDonnell

Douglas analytical framework, Mole

mischaracterizes the Court’s decision.

Under any analytical framework, she

bore the burden of production and the

burden of persuasion. ..............

II. This Court Need Not Grant Certiorari To

Resolve A Conflict Between The Burden Of

Proof In ADA Cases And Cases Decided

Under The Rehabilitation Act Of 1973

(“Rehabilitation Act”). Private Employers Do

Not Have The Same Duty Of Affirmative

Action That Has Been Placed On Federal

Employers Under Section 501 Of The

abo eee en aes

I Rees oo a a ke

Page

13

ee

TABLE OF CITED AUTHORITIES

Page

Cases:

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

OV a 8 rer rr rer Tre ere rr 12

Alexander v. Choate, 469 U.S. 287 (1984) ....... 19

Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d

Sree Gas PE wb eabeadeseseviacesuues 1]

Barnett v. U.S. Air, 157 F.3d 744 (9th Cir. 1998)

+s 646 0RS ERE OE RO os oe eee ee 12

Barth v. Gelb, 2 F.3d 1180 (D.C. Cir. 1993), cert.

denied, 511 U.S. 1030, 128 L. Ed. 2d 190 (1994)

PTET TCTT OT TE OCT ETC eT rE Pre 12,17

Benson v. Northwest Airlines, Inc., 62 F.3d 1108 (8th

Sa SED cc eeudeeeedcunsceeeesewuiuTuewes 1]

Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d

oe Ss | erry ey ee ee 1]

Borkowski v. Valley Central School District, 63 F.3d

Gog: is S| reer ere 10, 20

Bultemeyer v. Fort Wayne Community Schools, 100

fA be ity fe err rer rr rrr 11

Cited Authorities

Page

Cehrs v. Northeast Ohio Alzheimer’s Research

Center, 155 F.3d 775 (6th Cir. 1998) ......... 8

Champagne v. Servistar Corp., 138 F.3d 7 (1st Cir.

BOOED cc vvccccccticccesceuscssteuseeyeusss 9,10

Cleveland v. Policy Management Systems Corp., __

U.S. _, 119 S. Ct. 1597 (1999) ....- eee eee 9

Cochrum v. Old Ben Coal Co., 102 F.3d 908 (7th

Che, 1GDGD cc ccccccccseseveverecesesessues 11

Cooper v. Neiman Marcus Group, 125 F.3d 786 (9th

Cie, IGOTD . ccc cvecdccccussecescsseetseses 12

DeLuca v. Winer Indus., Inc., 53 F.3d 793 (7th Cir.

RON cccccdcevepeenséucesseaenseuerverses 11

E.E.O.C. v. Amego, Inc., 110 F.3d 135 (ist Cir.

MOTD oc iccccsuvecececesvesessseeseueevess 9

Fuller v. Frank, 916 F.2d 558 (9th Cir. 1990) .... 17

Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042

(6th Cir. 1998) 2.0... cc cece eee eee ee eee eens 8

Gardner v. Morris, 752 F.2d 1271 (8th Cir. 1985)

Caen éwoeeaensssesasbederens see 17

Hall v. United States Postal Service, 857 F.2d 1073

(6th Cir. 1988) ...... ccc reccececcccccvess 17

ee

a

vi

Cited Authorities

Page

Halperin v. Abacus Technology Corp., 128 F.3d 191

OD CM. FSG FP cccedécdvsseeuseeeeee 10

Hamlin v. Charter Township of Flint, 165 F.3d 426

Goan Ce, TIOOe cnicsccdseesoe eee 8

Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522

tbe Pe rey ones opr k, eRP 12

Jacques v. Clean-Up Group, Inc., 96 F.3d 506 (1st

CA. SUUGR ceccccesesesésensieineeeee 9,10

Kocsis v. Multi-Care Management, Inc., 97 F.3d 876

Gl Cl. TROD 0 0060 cekhiueenieeee 9

Lawrence v. National Westminster Bank of New

Jersey, 98 F.3d 61 (3rd Cir. 1998) ............ 10

Leary v. Dalton, 58 F.3d 748 (1st Cir. 1995) ..... 17

Lyons v. Legal Aid Society, 68 F.3d 1512 (2nd Cir.

SPPOP 60460500006 000s0e0enensesbecen tick 10

McDonnell Douglas v. Green, 411 U.S. 792

CEPIGE vo vecesvasecnenconsusvevenvecdot 13, 14, 15

McGregor v. Louisiana Univ. Bd. of Supervisors,

3 F.3d 850 (Sth Cir. 1993) .......0.00.00...., 20

Memmer v. Marin County Courts, 169 F.3d 630 (9th

Ce, SSO vc veciceseovceveevesceeseeausen 12

vil

Cited Authorities

Page

Miller v. Illinois Dep't of Corrections, 107 F.3d 483

CFs Cig. 8GBT) cc ccccccccsccecccscccccceses 1]

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

1173 (Gth Cir. 1996) ...cccccccccccccvcceces 8, 16

Moses v. American Nonwovens, Inc., 97 F.3d 446

(1ith Cir. 1996), cert. denied, 519 U.S. 1118

GIGS) oc ccvvccccccceccocvesevesceveccoeses 12

Norcross v. Sneed, 755 F.2d 113 (8th Cir. 1985) .. 16

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

+ .& A |) a errrrrri ee te 16, 20

Price v. S-B Power Tool, 75 F.3d 362 (8th Cir. 1996),

cert. denied, 519 U.S. 910 (1996) ............ 1]

Rizzo v. Children's World Learning Centers, Inc.,

84 F.3d 758 (Sth Cir. 1996) .........---0e ee. 7

Rizzo v. Children's World Learning Ctrs., Inc., 173

F.3d 254 (Sth Cir. 1999) .. cc ccccccccccvcees 8

Runnebaum vy. Nationsbank of Md., N.A., 123 F.3d

156 (4Gy Cle. 1997) oc ccccccvccccccccecccess 10

Sanders v. Arneson Products, Inc., 91 F.3d 1351 (9th

Cir. 1996), cert. denied, 520 U.S. 1116 (1997)

a

vill

Cited Authorities

Page

Sieberns v. Wal-Mart Stores, Inc., 125 F.2d 1019

Sas SUED < ctccnccvsnceeudcsseceuetess 11, 16

Smith v. Midland Brake, Inc., 138 F.3d 1304 (10th

Se Cs ccdunenuhaasensevencaeteniesn es 20

Southeastern Community College v. Davis, 442 U.S.

SPEED a64ueebneceedues oneneee 17, 18, 19, 21

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

117 F.3d 1278 (11th Cir. 1997) .............. 12

Stone v. City of Mount Vernon, 118 F.3d 92 (2nd

Cir. 1997), cert. denied, 522 U.S. 1112 (1998) . 10

Treadwell v. Alexander, 707 F.2d 473 (11th Cir.

S- du acu hehe eke dsenenkseteseureees 17

Turco v. Hoechst Celanese Corp., 101 F.3d 1090

Sas DEED varvutaweue$eeeeceecteaet ex 7

Weigel v. Target Stores, 122 F.3d 461 (7th Cir.

Dt vitenkanenenennedewedesenaeneteenes 11

Weilar v. Household Fin. Corp., 101 F.3d 519 (7th

Ri GE vw con wow eaees ed euuunes ee ane eee 11

Weinrich v. Los Angeles County Metro Transp.

Auth., 114 F.3d 976 (9th Cir. 1997), cert. denied,

FED eee OFS CRNOED ve cevevestacvececeueeds 12

Cited Authorities

Page

White v. York Int'l Corp., 45 F.3d 357 (10th Cir.

SE: pa cek vu bithedeeeevecksusncenarerees 12

Willis v. Conopco, 108 F.3d 282 (11th Cir. 1997) . 12

Woodman v. Runyon, 132 F.3d 1330 (10th Cir.

SED can ecasctecvessavasretsdevesseracass 17, 19

Statutes:

42 U.S.C. § T91(g) .. ccc cece creer e ee eeeeees 17, 18

42 U.S.C. § 12112(a) 2... cece cece cere eceees 5,7

42 U.S.C. § IZTLI(B) .. nce reece ecreccecvees 6, 7,9

Other Authorities:

29 C.F.R. at 1614.203(a)(6) ....... cece eee ees 17

Rehabilitation Act of 1973 § S501 .........000e 16, 17

Rehabilitation Act of 1973 § 504 ........0--eee- 20

]

FACTUAL BACKGROUND

Petitioner, Kathleen Mole, (“Mole”) was an employee

of Respondent, Buckhorn Rubber Products, Inc.,

(“Buckhorn”) with a history of performance problems.

During the course of her emp!oyment, Mole was diagnosed

with multiple sclerosis. Over the course of 3'2 years,

Buckhorn exercised care, concern, and made every effort to

accommodate Mole to enable her to perform her job in a

satisfactory manner. Nevertheless, she was unable to do so

for reasons completely unrelated to her medical condition.

Mole began her employment with Buckhorn on January

4, 1982 as a temporary clerk/typist in Buckhorn’s Sales

Customer Service Department at its Hannibal, Missouri

facility. When Buckhorn terminated her employment on June

30, 1994, Mole held the title of Customer Service

Coordinator and had performed customer service functions

for approximately seven years at the Company’s Milford,

Ohio and Hannibal facilities. Her primary job functions

consisted of communicating with Buckhorn customers on

the telephone and serving and satisfying their needs in a

professional manner. Her duties included providing

customers with product information, application, availability,

lead-time, pricing, and shipping schedules; recetving,

addressing and responding to customer complaints; satisfying

customer requests for order follow-up and expediting product

shipments; receiving and processing customer order

information in an accurate and timely manner; and preparing

and then entering customer order information into

Buckhorn’s computer system on the date it was received,

which also included directing the Company’s electronic data

interchange (“EDI’’) system. All dealings with customers

were to be handled in a manner which reflected their

2

‘ importance to Buckhorn. Buckhorn customer service

representatives were to take every action necessary to satisfy

customers’ needs.

Two years before Mole was diagnosed with multiple

sclerosis, Buckhorn management observed and brought to

Mole’s attention its serious concerns about her job

performance. Mole’s immediate supervisor, David Johnston,

met with her on numerous occasions to advise her of his

dissatisfaction with her work, examples of which included:

her rudeness to Buckhorn customers, resulting in certain

customers refusing to deal with her; her failure to provide

leadership and direction in her department; her general

disorganization; her frequent errors in entering key customer

information into Buckhorn’s computer system and

disseminating customer information to other Buckhorn

employees, which resulted in delays in scheduling and in

receiving customer payments; her mishandling of customer

accounts; and her inability to properly utilize the Company’s

EDI computer system used by major customers in submitting

orders. Johnston and Buckhorn’s Human Resource Manager,

Ron Meyer, warned Mole that a lack of improvement in her

job performance and further negative dealings with

customers would result in disciplinary action. Significantly,

the Company addressed all of the above deficiencies with

Mole in the two years prior to her diagnosis with multiple

sclerosis.

Even after her diagnosis, when the quality of her work

continued to be substandard, Buckhorn management sought

to accommodate Mole in every possible manner and

repeatedly inquired as to how they could further assist her

to raise her performance to an acceptable level. Despite

Buckhorn’s inquiries, during the entire course of her

employment Mole never requested nor communicated the

need for any specific work accommodation, but rather always

maintained that she was “fine.” The accommodations

provided by Buckhorn included, but were not limited to:

1)

2)

3)

4)

5)

6)

7)

8)

9)

3

Providing Mole with fully paid time off for

all periods of hospitalization;

Providing Mole with fully paid time off for

all of her doctor visits;

Recommending and referring Mode to a

specialist upon learning that she might be ill;

Reducing Mole’s job responsibilities and

workload by redistributing customer accounts

without reducing her pay;

Allowing Mole to work half days on

numerous occasions and be paid for a full day;

Granting Mole fully paid leaves of absence;

Allowing Mole to take extended break

periods;

Hiring a temporary employee who assisted

Mole with her clerical duties and lessening

Mole’s workload upon her return from leave

of absence;

Assisting Mole in getting beta interferon, an

experimental medication which her physician

4

had prescribed for her, approved for coverage

by Buckhorn’s health insurance carrier;

10) Informing Mole’s physician that any

additional leaves of absence would not be a

problem; and

11) Allowing Mole a lengthy period of time to

improve her substandard performance.

Even Mole’s own physicians acknowledged that each of the

above-listed actions by Buckhorn constituted a reasonable

accommodation of Mole’s multiple sclerosis.

Despite all of Buckhorn’s accommodations, the quality

of Mole’s job performance continued to decline. She

continued to make costly errors processing customer orders

but with more frequency. She also continued to interact

negatively with customers.

On a number of occasions, Mole sat at her desk and did

absolutely nothing. When asked if she needed to go home

for the day, Mole declined, but her duties frequently had to

be completed by other employees.

On February 10, 1994, Johnston met with Mole to

address her continuing performance problems. During their

meeting, Johnston outlined five significant errors and

omissions by Mole. He emphasized that her performance had

not improved and she continued to conduct herself

inappropriately with customers. He further advised Mole that

continued lack of improvement would lead to the termination

of her employment. At no time did Mole ever indicate the

need for any assistance or accommodation from Buckhorn

5

to help her perform her job. Coincidentally, from January

through July, 1994, the six months immediately prior to her

discharge, Mole’s physician found her multiple sclerosis to be

in remission and not active, and described her office

examinations as being “quite good.” Mole’s physician further

acknowledged the absence of any clinical findings that would

have precluded Mole from performing her job duties at

Buckhorn during this period of time. Indeed, Mole

acknowledged that she was not experiencing any problems with

her multiple sclerosis during this time period and there was

nothing about her medical condition that prevented her from

performing her job at an acceptable level. Nevertheless, despite

her improved medical condition, Mole’s job performance

continued to decline during the first half of 1994.

Buckhorn finally determined that it could no longer endure

Mole’s inadequate job performance in a customer service

capacity. After determining that it did not have any other

available positions for her, the Company terminated Mole’s

employment effective June 30, 1994. On July 14, 1994, two

weeks after her termination, Mole returned to the Company

and demanded her job back as an accommodation. Based on

the unsatisfactory quality of her work demonstrated over a three

and one-half year period, the Company rejected her demand.

STATUTORY PROVISIONS INVOLVED

The Americans with Disabilities Act (“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 employees.

42 U.S.C. § 12112(a)(1995).

6

The ADA further defines “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)(1995).

REASONS FOR DENYING THE WRIT

I.

THE WRIT MUST BE DENIED BECAUSE THERE

IS NO CONFLICT AMONG THE CIRCUIT COURTS

OF APPEALS AS TO THE DISPOSITIVE ISSUE IN

THIS CASE; SPECIFICALLY, THAT MOLE BEARS

THE BURDEN OF PROVING THAT SHE WAS

A “QUALIFIED INDIVIDUAL” UNDER THE

AMERICANS WITH DISABILITIES ACT.

A. Mole misstates the law in claiming that the Fifth and

Sixth Circuits are in conflict with the other circuit

courts of appeals in requiring the employer to bear

the burden of proof on the issue of whether an

employee is a “qualified individual” under the ADA.

In fact, all of the cases in those circuits, as in every

other circuit, place the burden of proof on the

employee.

The Eighth Circuit’s decision and method of analysis in

this case is consistent with every recent case in every other

circuit under the ADA.

7

In order to claim the benefit of the ADA, an employee

must be a “qualified individual,” 42 U.S.C. § 12112(a) —

that is a person with a disability who can perform the essential

functions of her job, with or without reasonable

accommodations. 42 U.S.C. § 12111(8) (1995). Mole argues

that the Eighth Circuit erred in assigning her the burden of

production and the burden of proof on the issue of whether

she was a “qualified individual” under the ADA. Mole asserts

that this Court should hear her case because other circuit

courts of appeals, namely the Fifth and Sixth Circuits, place

these burdens on defendant employers, rather than on

plaintiff employees.

Mole’s assertion is incorrect. Every circuit court of

Appeals has applied the same standard of proof in such cases.

The circuits universally require the plaintiff to bear both the

burden of production and the burden of persuasion on the

issue of whether she is a “qualified individual” under the

ADA. This burden applies to all claims brought under the

ADA whether alleged under a theory of failure to

accommodate, disparate impact, or disparate treatment.

Attempting to manufacture a split among the circuits

where no such split exists, Mole misstates the controlling

precedent of both the Fifth and Sixth Circuits. The Fifth

Circuit has consistently held that an employee bears the

burden of proof as to whether she is a “qualified individual”

under the ADA. “{Plaintiff] has the burden of proving that

she can perform, with or without reasonable accommodation,

all of the essential elements of her job.” Rizzo v. Children’s

World Learning Centers, Inc., 84 F.3d 758, 763 (Sth Cir.

1996). In Turco v. Hoechst Celanese Corp., 101 F.3d 1090,

1093 (Sth Cir. 1996), the Court stated:

8

[t]o avoid summary judgment on whether he is a

qualified individual, [Plaintiff] Turco needs to

show (1) that he could perform the essential

functions of the job in spite of his disability; or

(2) that a reasonable accommodation of his

disability would have enabled him to perform the

essential functions of the job.

Indeed, the Fifth Circuit could not have been any more

unequivocal on this issue than in Rizzo v. Children’s World

Learning Ctrs., Inc., 173 F.3d 254, 262 (Sth Cir. 1999),

stating: “(t]he district court properly assigned to [Plaintiff]

Rizzo the burden of proving she was a qualified individual

with a disability.”

The Sixth Circuit has also held with unmistakable clarity

that the plaintiff bears the burden of proving that she is a

“qualified individual.” “(T]he disabled individual always

bears the burden of proving that he or she is ‘otherwise

qualified’ for the position in question, absent the challenged

job function or with the proposed accommodation.” Monette

v. Electronic Data Systems Corp., 90 F.3d 1173, 1184 (6th

Cir. 1996). “To satisfy the second element of the prima facie

standard, an employee ‘must establish that a reasonable

accommodation is possible, and bears a traditional burden

of proof that she is qualified for the position with such

reasonable accommodation.’ ” Cehrs v. Northeast Ohio

Alzheimer’s Research Center, 155 F.3d 775, 781 (6th Cir.

1998) (citing Monette, 90 F.3d at 1186 n.12).!

1. See also Hamlin v. Charter Township of Flint, 165 F.3d 426,

429 (6th Cir. 1999) (citing Monette, 90 F.3d at 1186) (stating that

to establish a prima facie case of employment discrimination, the

employee must show that he or she is “ ‘otherwise qualified’ for

(Cont’d)

9

The precedent of the Fifth and Sixth Circuits is

unremarkable in light of this Court’s statement, albeit in dicta

that:

[ajn ADA plaintiff bears the burden of proving

that she is a “qualified individual with a

disability” — that is, a person ‘who, with or

without reasonable accommodation, can perform

the essential functions’ of her job.

Cleveland v. Policy Management Systems Corp.,__U.S. __,

119 S. Ct. 1597, 1603 (1999) (quoting 42 U.S.C. § 12111(8)).

The Fifth and Sixth Circuits are in harmony with all other

circuits in requiring that plaintiff bear both the burden of

production and the burden of persuasion or to whether she is

a “qualified individual.”? This burden is plaintiff's in all ADA

(Cont’d)

the position despite the disability”); Gantt v. Wilson Sporting Goods

Co., 143 F.3d 1042, 1047 (6th Cir. 1998) (stating that plaintiff's

prima facie case under the ADA requires plaintiff to establish that

“he is qualified, that is, with or without a reasonable accommodation,

which he must describe, he is able to perform the essential functions

of the job”) (citation omitted); Kocsis v. Multi-Care Management,

Inc., 97 F.3d 876, 882 (6th Cir. 1996) (stating that plaintiff must

establish that “she was qualified for the position, with or without

accommodation” as part of her prima facie case) (emphasis added).

2. First Circuit. “The [plaintiff] bore the burden of showing

that [she] was qualified to perform, either with or without reasonable

accommodation, the essential functions of her job.” E.£.0.C. v.

Amego, Inc., 110 F.3d 135, 142-44 (1st Cir. 1997) (citing Jacques

vy. Clean-Up Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996)) (footnote

omitted); cf. Champagne v. Servistar Corp., 138 F.3d 7, 12 (1st Cir.

(Cont’d)

x——oESoEoEoEEOEeeeEeee—eeeoorrreeE EEE

10

(Cont'd)

1998) (employee bears the burden of proof on whether he or she is

qualified); Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 511 (lst

Cir. 1996) (stating that in order to establish reasonable

accommodation case, plaintiff must show that she can perform

essential job functions) (appeal of denial of motion for judgment

notwithstanding the verdict dismissed) (emphasis added);

* Second Circuit. Plaintiff must establish a prima facie case

of failure to accommodate by showing “that with reasonable

accommodation, he could perform the essential functions of the

position sought” and that “the employer has refused to make such

accommodations” Stone v. City of Mount Vernon, 118 F.3d 92, 95-

96 (2nd Cir. 1997) (citing Lyons v. Legal Aid Society, 68 F.3d 1512,

1515 (2nd Cir. 1995), cert. denied, 522 U.S. 1112 (1998)); Borkowski

v. Valley Central School District, 63 F.3d 131, 137-38 (2nd Cir.

1995) (Rehabilitation Act case) (“plaintiff bears the burden of-

[production and persuasion] either that she can meet the requirements

of the job without assistance, or that an accommodation exists that

permits her to perform the job’s essential functions”) (emphasis

added);

¢ Third Circuit. Plaintiff is required to establish prima facie

case and carry burden of proof on issue of reasonable

accommodation. Lawrence v. National Westminster Bank of New

Jersey, 98 F.3d 61, 69-70 (3rd Cir. 1998) (emphasis added);

¢ Fourth Circuit. “In order to establish a prima facie case under

the ADA, [plaintiff] must prove that . . . he is otherwise qualified

for the job in question.” Halperin v. Abacus Technology Corp., 128

F.3d 191, 197 (4th Cir. 1997); Runnebaum v. Nationsbank of Md.,

N.A., 123 F.3d 156, 174-75 (4th Cir. 1997) (stating that plaintiff

bore burden of establishing prima facie case on the issue of whether

he was “otherwise qualified” for job) (emphasis added);

* Seventh Circuit. “The plaintiff bears the burden of proof on

this issue; she must be able to show that she is a ‘qualified individual

with a disability’ in order to successfully prosecute an ADA claim.”

(Cont'd)

(Cont'd)

Weilar v. Household Fin. Corp., 101 F.3d 519, 524-25 (7th Cir. 1998)

(citing DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 n.3 (7th Cir.

1995)); Sieberns v. Wal-Mart Stores, Inc., 125 F.2d 1019, 1022 (7th

Cir. 1997). (“No matter the type of discrimination alleged — either

disparate treatment or failure to provide or reasonable accommodation

— a plaintiff must establish first that he was a qualified individual

with a disability.”); Weigel v. Target Stores, 122 F.3d 461, 465 n.3 (7th

Cir. 1997) (citing cases from six other circuits for the proposition that

plaintiff is required to establish that she is a qualified individual as

part of her prima facie case); Miller v. Illinois Dep't of Corrections,

107 F.3d 483, 484-85 (7th Cir. 1997) (“Under the ADA, the employer

avoids all liability if the plaintiff would have been fired because

incapable of performing the essential functions of the job, and the burden

of proof on the issue of capability is not on the employer but on the

plaintiff.”) (citing Weiler v. Household Fin. Corp., 101 F.3d 519, 524

(7th Cir. 1996), Bultemeyer v. Fort Wayne Community Schools, 100

F.3d 1281, 1284 (7th Cir. 1996)); Cochrum v. Old Ben Coal Co., 102

F.3d 908, 911 (7th Cir. 1996) (“The plaintiff bears the burden of proof

to show he is a ‘qualified individual.’ ”) (citing DeLuca v. Winer Indus.,

Inc., 53 F.3d 793, 797 (7th Cir. 1995)); Bombard v. Fort Wayne

Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996) (“The plaintiff

bears the burden of proof on this issue; he must be able to show that he

is a ‘qualified individua! with a disability’ in order to successfully

prosecute an ADA claim” (citing DeLuca v. Winer Indus., Inc., 53 F.3d

793, 797 (7th Cir. 1995) (emphasis added);

¢ Eighth Circuit. To establish prima facie case under the ADA,

plaintiff must demonstrate that “he or she is qualified to perform the

essential functions of the job (either with or without reasonable

accommodation)” Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d

1311, 1315 (8th Cir. 1998) (citing Price v. S-B Power Tool, 75 F.3d

362, 364 - 65 (8th Cir. 1996), cert. denied, 519 U.S. 910 (1996), Benson

v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995))

(emphasis added);

¢ Ninth Circuit. Plaintiff “bears the burden of establishing an

ADA violation, [therefore] she must establish the existence of

(Cont'd)

12

(Cont'd)

specific reasonable accommodations that [the employer] failed to

provide.” Memmer v. Marin County Courts, 169 F.3d 630, 633 (9th

Cir. 1999) (citing Weinrich v. Los Angeles County Metro Transp.

Auth., 114 F.3d 976, 978 (9th Cir. 1997), cert. denied, 522 U.S. 971

(1997), Barnett v. U.S. Air, 157 F.3d 744, 748-49 (9th Cir. 1998));

Cooper v. Neiman Marcus Group, 125 F.3d 786, 790 (9th Cir. 1997);

Sanders v. Arneson Products, Inc., 91 F.3d 1351, 1353 (9th Cir.

1996), cert. denied, 520 U.S. 1116 (1997) (emphasis added);

* Tenth Circuit. Plaintiff bears burden of producing “sufficient

... facial showing that accommodation is possible.”) White v. York

Int'l Corp., 45 F.3d 357, 360-61 (10th Cir. 1995) (emphasis added);

* Eleventh Circuit. Plaintiff must show that she “is a qualified

individual”; “Moreover, the burden of identifying an accommodation

that would allow a qualified individual to perform the job rests with

that individual, as does the ultimate burden of persuasion with respect

to demonstrating that such an accommodation is reasonable.” Stewart

v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285-86

(11th Cir. 1997) (citing Willis v. Conopco, 108 F.3d 282, 283 (11th

Cir. 1997)); Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522,

1526 (11th Cir. 1997) (stating that plaintiff must prove “he is a

qualified individual” (citation omitted); “The plaintiff retains at all

times the burden of persuading the jury that reasonable

accommodations were available.”) (citing Moses v. American

Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996), cert. denied,

519 U.S. 1118 (1997)); Willis v. Conopco, Inc., 108 F.3d 282, 284-

85 (11th Cir. 1997) (concluding that plaintiff bears both burden of

production and burden of persuasion on issue of reasonable

accommodation) (citing Barth v. Gelb, 2 F.3d 1180, 1186 (D.C.

Cir. 1993), cert. denied, 511 U.S. 1030, 128 L. Ed. 2d 190 (1994)

(emphasis added).

* D.C. Circuit. Piaintiff bears burden of production and burden

of persuasion. Aka v. Washington Hosp. Center, 156 F.3d 1284,

1288 (D.C. Cir. 1998) (en banc) (incorporating analysis set forth in

Barth, 2 F.3d at 1186).

13

cases brought under theories of failure to reasonably

accommodate, disparate treatment or disparate impact.

Mole’s attempt to avoid proving an essential element of her

claim, that she was a “qualified individual,” is not supported

by controlling precedent in any United States Circuit Court

of Appeals. In this case the Eighth Circuit correctly applied

the law, as uniformly utilized by every other federal appeals

court, and concluded that Mole failed to prove that she was

a “qualified individual” as defined by the ADA, and that she

was therefore not covered by the Act. Accordingly, certiorari

must be denied.

B. In arguing that the Eighth Circuit improperly applied

the McDonnell Douglas analytical framework, Mole

mischaracterizes the Court’s decision. Under any

analytical framework, she bore the burden of

production and the burden of persuasion.

Mole also erroneously argues that the Eighth Circuit

applied the type of burden shifting analysis which this Court

fashioned in McDonnell Douglas v. Green, 411 U.S. 792

(1973) for proving discrimination through indirect evidence.

She compounds this error by arguing that the Eighth Circuit’s

alleged application of the McDonnell Douglas analysis led

to an erroneous allocation of the burden of production and

the burden of persuasion.

This is simply not so. First, the Eighth Circuit did not

apply a McDonnell Douglas burden shifting analysis, as Mole

suggests, to reach its conclusion that Mole was not a

“qualified individual” entitled to ADA protection. Mole

alleged that Buckhorn failed to reasonably accommodate her

known disability and terminated her based on that disability.

The Eighth Circuit dismissed Mole’s claim under both

14

theories because: (1) Mole was not a “qualified individual”

(a necessary element of both her claim for failure to

reasonably accommodate and her claim for wrongful

termination based on disability) and (2) she failed to establish

that Buckhorn acted with discriminatory intent (a necessary

element only of her claim for wrongful termination based

on disability). In concluding that Mole was not a “qualified

individual,” the Eighth Circuit did not perform the type of

burden shifting involved in a McDonnell Douglas analysis

but rather affirmed the District Court based on undisputed

evidence which established:

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.

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 [Buckhorn’s

sales manager, industrial relating manager, and

customer service representative]. 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).

15

Mole v. Buckhorn Rubber Products, Inc., 165 F.3d 1212,

1217 (8th Cir. 1999).

The Eighth Circuit correctly concluded that summary

judgment was appropriate because “Mole failed to present

sufficient evidence that she could meet Buckhorn’s legitimate

job expectations with or without reasonable accommodation

of her alleged disabilities.” /d., at 1218 (citation omitted).

Because the Eighth Circuit held that Mole failed to establish

the second element of her prima facie case, it did not need

to address the issue of pretext or burden-shifting in arriving

at its decision.’ Since Mole failed to establish the necessary

elements of her prima facie case, none of the distinguishing

characteristics of the McDonnell Douglas analytical matrix

played any role in the Eighth Circuit’s affirmance of

summary judgment.

Just as importantly, the circuit courts have not recognized

any difference between the plaintiff's burden of proof on

the issue of whether she is a “qualified individual” regardless

of whether plaintiff claims a failure to “reasonably

accommodate” her disabilities, disparate treatment, or

disparate impact. “The disabled individual always bears the

burden of proving that he or she is ‘otherwise qualified’ for

the position in question, absent the challenged job function

3. Nevertheless, in its opinion, the Eighth Circuit found

alternative grounds for affirming summary judgment based on

Mole’s failure to establish the third prong of her prima facie case,

i.e., that she was discharged “under circumstances that raise an

inference of unlawful disability discrimination.” Jd., at 1216 (citation

omitted). The Eighth Circuit based its conclusion on the undisputed

fact that Mole’s poor job performance evaluations began long before

Buckhorn knew she had multiple sclerosis and continued for more

than a year after the initial diagnosis. Jd.

16

or with the proposed accommodation.” Monette v. Electronic

Data Systems Corp., 90 F.3d 1173, 1184 (6th Cir. 1996)

(citing Norcross v. Sneed, 755 F.2d 113, 116-17 (8th Cir.

1985)). “[N]o matter the type of discrimination alleged —

either disparate treatment or failure to provide a reasonable

accommodation — a plaintiff must establish first that he was

a qualified individual with a disability.” Sieberns, 125 F.3d

at 1022 (7th Cir. 1997). Therefore, consistent with all of the

other circuits, the Eighth Circuit properly placed both the

burden of production and the burden of persuasion on Mole

on the issue of whether she was a “qualified individual.”

Il.

THIS COURT NEED NOT GRANT CERTIORARI TO

RESOLVE A CONFLICT BETWEEN THE BURDEN

OF PROOF IN ADA CASES AND CASES DECIDED

UNDER THE REHABILITATION ACT OF 1973

(“REHABILITATION ACT”). PRIVATE EMPLOYERS

DO NOT HAVE THE SAME DUTY OF AFFIRMATIVE

ACTION THAT HAS BEEN PLACED ON FEDERAL

EMPLOYERS UNDER SECTION 501 OF THE

REHABILITATION ACT.

Mole cites the Fifth Circuit’s decision in Prewitt v.

United States Postal Service, 662 F.2d 292 (Sth Cir. 1981),

a case involving a federal employer with a duty of affirmative

action under § 501 of the Rehabilitation Act of 1973, (the

“Rehabilitation Act”) in support of her argument that private

employers have the burden of production and the burden of

persuasion on the issue of whether an employee is a

“qualified individual” under the Rehabilitation Act. Mole

correctly states that a number of circuits have placed the

burden of production and burden of persuasion on federal

17

employers in cases decided under § 501 of the Rehabilitation

Act.* However, both Congress and the courts have drawn a

clear distinction between the affirmative action duties placed

on federal employers under § 501 of the Rehabilitation Act

and the duties placed on private employers.

Section § 791(g) of Title 42 makes it readily apparent

and clear that Congress did not view cases involving the

4. Hall v. United States Postal Service, 857 F.2d 1073, 1077 (6th

Cir. 1988) (“{S]ection 501 of the Act requires federal employers . . . to

undertake affirmative action on behalf of the handicapped. (Citation

omitted). This affirmative action obligation goes beyond the obligation

set forth in section 504, which by its terms, requires only non-

discrimination.” (Citing Southeastern Community College v. Davis, 442

U.S. 397, 410-11 (1979)); see Fuller v. Frank, 916 F.2d 558, 561 n.3

(9th Cir. 1990) (“This section requires that the Postal Service (along

with all federal executive branch agencies) “submit . . . an affirmative

action program plan for hiring, placement, and advancement of

individuals with handicaps. . . .”); Gardner v. Morris, 752 F.2d 1271,

1277 (8th Cir. 1985) (“Section 501(b), 29 U.S.C. § 791(b) requires the

federal government as an employer to develop and implement

affirmative action plans on behalf of handicapped employees.”)

(footnote omitted); Treadwell v. Alexander, 707 F.2d 473, 475 (11th

Cir. 1983) (“Section 501 imposes on federal agencies a duty to take

affirmative steps to ensure that handicapped individuals have equal

access to employment opportunities in the federal government.”)

(footnote omitted).

But cf. Barth, 2 F.3d at 1186 (placing burden of production and

burden of proof on government employee/plaintiff); Woodman v.

Runyon, 132 F.3d 1330, 1337 (10th Cir. 1997) (placing burden of proof

on plaintiff); Leary v. Dalton, 58 F.3d 748, 753 (Ist Cir. 1995)

(“{Plaintiff] must also show that with respect to his employment, he is

a qualified individual with a [disability] who, with or without reasonable

accommodation, can perform the essential functions of the position in

question.”) (citing 29 C.F.R. at 1614.203(a)(6) (internal quotation marks

omitted).

18

federal government’s duty of affirmative action in the same

way that it viewed ADA cases. In § 791(g), Congress stated:

The standards used to determine whether

this section has been violated in a complaint

alleging non-affirmative action employment

discrimination under this section shall be the

standard applied under title I of the Americans

with Disabilities Act of 1990 (42 U.S.C. 12111

et seq.) and the provisions of sections 501 through

504, and 510, of the Americans with Disabilities

Act of 1990 (42 U.S.C. 12201-12204 and 12210),

as such sections relate to employment.

(Emphasis added).

This Court in Southeastern Community College v.

Davis, 442 U.S. 397 (1979), stated:

The language and structure of the Rehabilitation

Act of 1973 reflect a recognition by Congress of

the distinction between the evenhanded treatment

of qualified handicapped persons and affirmative

efforts to overcome disabilities caused by

handicaps. Section 501(b), governing the

employment of handicapped individuals by the

Federal Government, requires each federal agency

to submit “an affirmative action program plan for

the hiring, placement, and advancement of

handicapped individuals. . .” include description

of the extent to which and methods whereby the

special needs of handicapped individuals are

being met. However, because “[s]ection 504

[governing grantees] does not refer at all to

19

affirmative action, and except as it applies to

federal employers it does not provide for

implementation by administrative action. A

comparison of these provisions demonstrates that

Congress understood accommodation of the needs

of handicapped individuals may require

affirmative action and knew how to provide for it

in those instances where it wished to do so.

Id., at 410-11. See also Alexander v. Choate, 469 U.S. 287,

300 n.20 (1984) (“it is clear from the context of Davis that

the term ‘affirmative action’ referred to those ‘changes,’

‘adjustments,’ or ‘modifications’ to existing programs that

would be ‘substantial,’ ... or that would constitute

‘fundamental alteration([s] in the nature of a program... ,’

rather than to those changes that would be reasonable

accommodations.”) (citation and internal quotation marks

omitted).

“Section 501’s provision for affirmative action in

addition to section 504’s prohibition of discrimination

against the disabled indicates that federal employers are

charged with a greater duty to ensure the employment of

disabled workers than are federal grantees or private

employers.” Woodman v. Runyon, 132 F.3d 1330, 1337 (10th

Cir. 1997) (citing Southeastern Community etait v. Davis,

442 U.S. 397, 410 (1979)).

Thus, while the ADA and the Rehabilitation Act

generally are to be interpreted and applied

consistently with one another, .. . the standards

used to determine whether a federal employer has

violated section 501 of the Rehabilitation Act will

not always be identical to those employed in suits

brought under section 504 or under the ADA.

20

Smith v. Midland Brake, Inc., 138 F.3d 1304, 1311 (10th

Cir. 1998) (citations omitted). In Smith, the Tenth Circuit

concluded that although a federal employer had a duty to

reassign a federal employee to a vacant position, a private

employer had no such duty.

The Fifth Circuit, the same court that decided Prewitt,

assigned the burden of proof to the plaintiff in a case against

a non-federal employer under § 504 of the Rehabilitation

Act. In McGregor v. Louisiana Univ. Bd. of Supervisors,

3 F.3d 850, 858 (5th Cir. 1993), the Court stated that:

“McGregor, therefore is entitled to the requested

accommodations only if he can demonstrate that the

accommodations constitute reasonable deviations from the

Law Center’s usual requirements ‘which meet [his] special

needs without sacrificing the integrity of the Law Center’s

program.” Jd. (citation and internal quotation marks omitted).

See Borkowski v. Valley Central School District, 63 F.3d

131, 137-38 (2nd Cir. 1995) (Rehabilitation Act case)

(“plaintiff bears the burden of [production and persuasion]

either that she can meet the requirements of the job without

assistance, or that an accommodation exists that permits her

to perform the job’s essential functions”).

Contrary to the Rehabilitation Act cases assigning the

burden of proof to federal employers, none of the federal

courts has found that a private employer bears the burden of

proof on the issue of whether a plaintiff is a “qualified

individual” in a “reasonable accommodation” case under the

ADA.

Mole further asks this Court to depart from all of the

federal court decisions which have found that an employee

bears the burden of proof under the ADA based on statements

PELE GMIR LAE GOL PHI I a, — .

Taiz Sho uichidhuataligAh Udder” Sc abe ASE ee .

2 PT I om Seta ys &

21

in the legislative history which did not become part of the

statute. Here, as in Davis, 442 U.S. at 411 n.11, the Court

should decline to give force of law to statements which were

not incorporated into the statute.

CONCLUSION

The Petition for Writ of Certiorari should be denied. The

only grounds asserted by Mole as a basis for this Court’s

Jurisdiction are a purported split by two of the Circuit Courts

of Appeals in the allocation of the burden of proof in ADA

cases. Mole is flatly wrong in that assertion. There is no

basis for the exercise of this Court’s jurisdiction.

Respectfully submitted,

ROBERT J. VALERIAN

Counsel of Record

_STEVEN Moss

KAHN, KLEINMAN, Y ANOWITZ

& ARNSON Co., L.P.A.

Attorneys for Respondent

1301 East Ninth Street

The Tower at Erieview

Suite 2600

Cleveland, Ohio 44114-1824

(216) 696-3311