Kirkeberg v. Canadian Pacific Railway

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-1422
___________

Mike Kirkeberg, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Canadian Pacific Railway, *
*
Appellee. *
___________

Submitted: December 15, 2009
Filed: August 27, 2010
___________

Before BYE, BEAM, and COLLOTON, Circuit Judges.
___________

COLLOTON, Circuit Judge.

Mike Kirkeberg brought claims pursuant to the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101-12213, and the Minnesota Human Rights Act
(“MHRA”), Minn. Stat. §§ 363A.01-.41, alleging that his employer, Canadian Pacific
Railway (“Canadian Pacific”), discriminated against him on the basis of his
disabilities and retaliated against him for engaging in protected activity. He also
brought claims alleging violations of the Age Discrimination in Employment Act, 29
U.S.C. §§ 621-634, and the Minnesota Whistleblower Act, Minn. Stat. § 181.932.
The district court1 granted summary judgment in favor of Canadian Pacific. Kirkeberg
v. Canadian Pac. Ry., No. 0:07-CV-04621, 2009 WL 169403 (D. Minn. Jan. 26,
2009). Kirkeberg appeals the district court’s decision regarding his claims under the
ADA and the MHRA. We affirm.

I.

Because we are reviewing a grant of summary judgment, we describe the facts
in the light most favorable to Kirkeberg. Kirkeberg worked as the Administrator of
Employee Assistance Programs (“EAP”) for Canadian Pacific from 2000 until his
termination on May 14, 2007. In that role, he assisted the railway’s employees with
mental health issues, substance abuse problems, workplace conflicts, and traumatic
workplace incidents. At one point, Kirkeberg took charge of providing EAP services
to the employees of the Delaware and Hudson Railway in the northeastern United
States.

In January 2006, Kirkeberg suddenly became legally blind in his left eye after
suffering a central retinal vein occlusion (“CRVO”). The vision in his right eye, while
naturally poor, is almost normal (20/25 or 20/30) with the help of a corrective lens.
Kirkeberg continued working after the incident, but he presented his then-supervisor,
Gregory Simmons, with a letter from his physician, dated February 2, 2006, that said
Kirkeberg was experiencing significant eye strain as he learned to cope with the loss
of vision. The physician stated that Kirkeberg would benefit from a shorter work
week during this acclimation period, but Simmons did not act on this
recommendation.

1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

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 Kirkeberg testified in his deposition that because of his partial blindness,
“[e]verything is a little more challenging.” He stated that he tires easily and finds it
harder to navigate on his left side, especially around objects that are low to the ground.
Despite these difficulties, Kirkeberg said that his ability to do his job at Canadian
Pacific was not affected by his condition, even in early 2007, when his right eye
became infected for several weeks, and he was unable to wear his corrective lens.
Kirkeberg could not drive without the lens, but he continued to perform his job.
When the infection cleared, Kirkeberg resumed driving without restriction.

After the onset of his vision problems, Kirkeberg asked Canadian Pacific for
several accommodations, in addition to the shortened work week suggested by his
physician. He requested a larger computer monitor to help him read more easily. He
asked that his office be reconfigured to prevent him from tripping. He also discussed
with Simmons the possibility of working from home as his right eye acclimated. He
believed that he could perform his job functions from home, and he claimed to know
of at least three other Canadian Pacific employees who were permitted to work from
home. Canadian Pacific provided a bigger computer monitor, but declined to grant
the other requests.

In December 2006 or January 2007, Kirkeberg informed Simmons that he had
hepatitis C, and that he was considering treatment that might cause him to miss work.
He requested that Simmons allow him to work from home on days when his treatment
made him ill, but Simmons did not approve the request. Kirkeberg alleges that after
he disclosed his hepatitis C to Simmons, Simmons began to treat him like he was
“invisible,” and stopped responding to his e-mails or requests to meet. Simmons
testified that at about this same time, he began to consider outsourcing the EAP to an
outside provider.

Kirkeberg received a performance-based bonus and salary increase in February
2007, and he was informed that he would begin reporting to Karen DeTuncq instead

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of Simmons. Kirkeberg told DeTuncq about his hepatitis C and the extensive
treatment that he was considering. She advised him to take leave pursuant to the
Family and Medical Leave Act. Kirkeberg obtained an application for leave but never
completed it, because he believed that other employees who missed work for medical
treatment were not required to do the same. Kirkeberg ultimately did not pursue
treatment for hepatitis C before his termination.

On March 5, 2007, a break-in occurred at Canadian Pacific, and Kirkeberg’s
computer was stolen from his office. Kirkeberg told Simmons that the computer
would not have been stolen if he had been permitted to work from home. Simmons
allegedly became upset over this remark and said that nobody was going to work from
home unless he (Simmons) worked from home. Later that same day, Simmons sent
an e-mail to his supervisor, Glen Wilson, concerning the outsourcing of EAP services.
The e-mail, which outlines three EAP price structures, is the first documented
evidence regarding Simmons’s outsourcing plan.

Four days after the e-mail to Wilson, Simmons sent an email to Wilson’s boss,
Jim Cunningham, seeking his preliminary approval for an EAP outsourcing plan.
Simmons provided Cunningham with a comparison of the then-current cost of
providing EAP services internally versus the cost of using an outside provider; he
estimated an annual savings of $54,000. He further suggested that outsourcing would
enhance and strengthen the company’s EAP service offerings. Simmons mentioned
that Kathy Frankenberg, Canadian Pacific’s Vice President for Labor Relations and
Human Resources, already had approved the proposal.

Simmons testified that he began discussing the outsourcing proposal with
Frankenberg and Wilson in February 2007, before the March e-mails. He also said
that he initiated the plan because he believed the role of the EAP was expanding,
especially with the addition of the Delaware and Hudson employees, and he wanted
a provider with nationwide presence and around-the-clock availability. Simmons

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admitted, however, that he had never told Kirkeberg that he was deficient in his
administration of the EAP. Simmons also acknowledged that at the time of his March
9 e-mail, in which he recommended a particular provider, he was unfamiliar with
Canadian Pacific’s formal process for issuing Requests for Proposal (“RFP”).

In May 2007, Cunningham and Frankenberg approved Simmons’s Reduction
in Force Request, thereby eliminating Kirkeberg’s position in order to pursue, as
stated in the Request, “[a] business model which can incorporate multi-speciality
resources.” On May 14, 2007, Simmons informed Kirkeberg that his employment had
been terminated, although Canadian Pacific had not yet selected an outside provider
for the EAP. Simmons averred in an affidavit that he chose to notify Kirkeberg of the
decision at that time because Canadian Pacific was about to solicit bids from
providers, including some with whom Kirkeberg had worked, and he wanted to spare
Kirkeberg from learning about the outsourcing of his position indirectly through one
of them.

In the fall of 2007, Canadian Pacific selected Wellplace, a firm that had
provided backup services when Kirkeberg was unavailable, to be the railway’s EAP
provider. Simmons testified that Wellplace was chosen because of its nationwide
reach, twenty-four hour coverage, and comprehensive service offerings. A contract
with Wellplace was finalized in early 2008, and, according to Simmons, Canadian
Pacific achieved a cost savings of approximately $70,000 during the first year of
outsourcing.

Kirkeberg filed a charge of discrimination and retaliation with the Equal
Employment Opportunity Commission (“EEOC”) after his termination. The EEOC
issued a right to sue letter, and Kirkeberg filed a complaint in the district court. He
claimed, as relevant here, that Canadian Pacific discriminated against him because of
his vision problems and hepatitis C, and terminated his employment in retaliation for

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his repeated requests for accommodation. On January 26, 2009, the district court
granted summary judgment in favor of Canadian Pacific on all claims.

II.

We review the district court’s grant of summary judgment de novo, viewing the
evidence and drawing all reasonable inferences in the light most favorable to
Kirkeberg, the nonmoving party. McCullough v. Univ. of Ark. for Med. Scis., 559
F.3d 855, 860 (8th Cir. 2009). Summary judgment is appropriate if “the pleadings,
the discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c).

A.

We first consider Kirkeberg’s disability discrimination claims under the ADA.
A person is entitled to protection under the ADA if he is “disabled,” and Kirkeberg
contends that the district court erred in concluding that he did not meet that criterion.
The ADA defines the term “disability” to include, among other things, “a physical or
mental impairment that substantially limits one or more major life activities of [an]
individual.” 42 U.S.C. § 12102(1). Kirkeberg contends that his “seeing, walking,
reading, concentrating, thinking, driving, and working” are major life activities that
are substantially limited.

Canadian Pacific does not dispute that Kirkeberg’s monocular vision and
hepatitis C qualify as physical impairments under the ADA. See 29 C.F.R.
§ 1630.2(h)(1). Nor does the employer appear to dispute that “seeing, walking,
reading, concentrating, thinking, driving, and working” constitute major life activities
under the statute, so we assume for purposes of analysis that these activities qualify.

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See 42 U.S.C. § 12102(2). The disputed question is whether Kirkeberg’s monocular
vision and hepatitis C “substantially limit” these major life activities.

To establish that his conditions are substantially limiting, Kirkeberg must
demonstrate that he is “[s]ignificantly restricted as to the condition, manner or
duration under which [he] can perform a particular major life activity,” as compared
to the average person. 29 C.F.R. § 1630.2(j)(1)(ii). This standard requires Kirkeberg
to show more than a “mere difference” between his performance and that of the
average individual. Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 565 (1999). The
ADA’s “substantially” language suggests a difference that is “considerable.” Toyota
Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 196 (2002) (internal quotation
omitted). The evidence in support of this contention must be more than generic
“evidence of a medical diagnosis of an impairment.” Ristrom v. Asbestos Workers
Local 34 Joint Apprentice Comm., 370 F.3d 763, 769 (8th Cir. 2004) (internal
quotation omitted). Individuals with monocular vision or hepatitis are not per se
disabled, so a diagnosis, standing alone, does not show how Kirkeberg in particular
is affected. Albertson’s, Inc., 527 U.S. at 566-67; Furnish v. SVI Sys., Inc., 270 F.3d
445, 450 (7th Cir. 2001). Therefore, Kirkeberg must present evidence showing the
degree to which he personally is limited by his conditions. Under the law in effect at
the time when Kirkeberg’s claims arose, we must also consider the effects of any
mitigating measures, including those undertaken by his body’s own systems.
Albertson’s, Inc., 527 U.S. at 565-66.2

2
Amendments to the ADA that took effect on January 1, 2009, supersede the
Supreme Court’s prior admonitions to consider the ameliorative effects of mitigating
measures, see Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999), and to
construe narrowly the ADA’s “substantially limits” language, see Toyota Motor, 534
U.S. at 196-97. See ADA Amendments Act of 2008, Pub. L. No. 110-325, § 2(b), 122
Stat. 3553, 3554. Kirkeberg commenced this action before the amendments became
effective, and he has not argued that they should apply to this case. Cf. Landgraf v.
USI Film Prods., 511 U.S. 244, 280 (1994) (concluding that if a statute would
“increase a party’s liability for past conduct, or impose new duties with respect to
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 With regard to Kirkeberg’s monocular vision, an individualized showing of a
substantial limitation is essential because of the differences that exist between people
with the condition. In particular, individuals “vary by the degree of visual acuity in
the weaker eye, the age at which they suffered their vision loss, the extent of their
compensating adjustments in visual techniques, and the ultimate scope of the
restrictions on their visual abilities.” Albertson’s, Inc., 527 U.S. at 566. As a result,
even though “people with monocular vision ordinarily will meet the Act’s definition
of disability,” the ADA still “requires monocular individuals, like others claiming the
Act’s protection, to prove a disability by offering evidence that the extent of the
limitation in terms of their own experience, as in loss of depth perception and visual
field, is substantial.” Id. at 567 (internal quotation omitted).

Kirkeberg failed to show that any restrictions resulting from his monocular
vision substantially limited his major life activities. The medical documents he
submitted establish little beyond the fact that he suffered a CRVO in January 2006,
and that he experienced eye strain as his body adjusted to his condition. The February
2006 letter from his physician, for example, explained that Kirkeberg had become
legally blind in his left eye and was experiencing “significant difficulties at work.”
Appellant’s App. at 111. But the letter also stated: “As [Kirkeberg] acclimates to the
loss of vision in his left eye, the strain will become less on his right eye, but for now
I think it would benefit him significantly to have a shorter work week.” Id. (emphasis
added). This final statement suggests that Kirkeberg’s right eye would acclimate to
his vision loss, potentially rendering his “significant” discomfort temporary. To be
substantially limiting, an impairment “must be of an extended or permanent duration,”
Gretillat v. Care Initiatives, 481 F.3d 649, 652 (8th Cir. 2007), but Kirkeberg offered
no medical evidence developed after February 2006 to address the degree to which his
body acclimated and whether his difficulties were permanent. Nor did he present

transactions already completed,” the presumption is that “it does not govern absent
clear congressional intent favoring such a result”).
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specific medical evidence concerning his “loss of depth perception and visual field.”
Albertson’s, Inc., 527 U.S. at 567.

The only evidence that Kirkeberg offered concerning the extent of his body’s
adjustments is found in his deposition testimony and post-deposition affidavit.
Kirkeberg’s statements in these materials indicate that he did compensate for his
monocularity to a significant degree, and thereby retained much of his depth
perception and visual field. Kirkeberg testified that his ability to perform his job at
Canadian Pacific was unaffected by his eye problems. He confirmed that he could
read “fairly normally” despite his vision loss. He also stated that except for a short
period in early 2007 when his right eye became infected, he had no trouble driving
and was permitted to do so day and night without restriction.

Any restrictions about which Kirkeberg did testify do not contradict this
conclusion. When asked during his deposition what he could no longer do as a result
of his vision loss, Kirkeberg responded:

I can read but it’s limited. Reading with one eye is really tiring.
Everything I do with one eye is really tiring. . . . I try to concentrate on
things. It’s really hard to see. And as time [passes] – like for example
if I had to read . . . all day, it’s going to get blurry. . . . I am less able to
navigate, especially like on foot. I bump into people. Trip over things
that are low on that side. Especially on that side. . . . Everything is a
little more challenging.

Kirkeberg’s post-deposition affidavit communicated similar problems, namely that his
“eye gets tired, [he] wear[s] out more easily and cannot read for as long as a normal
person.”

That Kirkeberg tires more easily because of his condition and finds it more
difficult to navigate on foot does not rise to the level of a substantial limitation. On

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this record, we think the only reasonable conclusion is that while Kirkeberg has not
completely compensated for his monocularity, he has adjusted such that he is not
substantially limited in any major life activity relative to the average individual.
Therefore, Kirkeberg’s monocular vision is not a disability under the ADA. See Dyke
v. O’Neal Steel, Inc., 327 F.3d 628, 632 (7th Cir. 2003) (holding that plaintiff’s
monocular vision, which “prevented him only from driving at night, working on roofs,
holding his head straight when looking left to right, and participating in various
recreational activities,” was not substantially limiting); EEOC v. UPS, Inc., 306 F.3d
794, 803 (9th Cir. 2002) (holding that individuals with no vision in the right eye and
problems with near-field vision in the functional eye were not substantially limited
under the ADA because both could “drive . . ., read, use tools, and play sports,” and
their impairments did “not keep either one of them from using his eyesight as most
people do for daily life.”).3

We reach the same conclusion with respect to Kirkeberg’s hepatitis C.
According to his medical records, Kirkeberg was first told he had the condition
“[s]ome time in the early 1990s,” but he claimed in his deposition that the diagnosis
came in 2007 when he saw a liver specialist after experiencing problems with
nosebleeds. Regardless of this discrepancy, Kirkeberg provided no evidence that he
was substantially limited by this impairment. The letter from his diagnosing physician
reported: “The patient states that he feels well. . . . He also has occasional ‘aches and
pains’ in his joints when he works out but [it] is definitely not disabling in any way.
He has a history of mild depression that is well controlled . . . . The remainder of his
review of systems is negative.” Kirkeberg offered no testimony to supplement or

3
Kirkeberg cites this court’s decision in Doane v. City of Omaha, 115 F.3d 624,
627-28 (8th Cir. 1997), for the proposition that blindness in one eye is substantially
limiting under the ADA, but that decision did not take mitigating measures into
account, and was therefore abrogated by Sutton. See Weber v. Strippit, Inc., 186 F.3d
907, 913 (8th Cir. 1999).
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contradict this letter. In fact, other than briefly referencing “nosebleeds” in his
deposition, he failed to testify about any effects from hepatitis.

Only in his post-deposition affidavit did Kirkeberg allege having “numerous
side effects from hepatitis C including bloody noses, ‘brain fog,’ fatigue, sleep
disturbances, painful joints, . . . [and] depression . . . , all of which made work more
difficult and made reading, thinking, and concentrating harder.” These conclusory
statements, without more, do not show that he was substantially limited in a major life
activity, because they do not illuminate the severity of the alleged conditions or the
duration of the restrictions. See Ristrom, 370 F.3d at 769-70; Heisler v. Metro.
Council, 339 F.3d 622, 629-30 (8th Cir. 2003). Accordingly, we agree with the
district court that Kirkeberg did not present sufficient evidence to show that he was
disabled under the ADA.4

B.

Kirkeberg argues alternatively that he was “disabled” within the meaning of the
ADA and MHRA because he was “regarded as having such an impairment.” 42
U.S.C. § 12102(1)(C) (emphasis added). The “regarded as” portion of the ADA,
which was “intended to combat the effects of archaic attitudes” about persons “with
or regarded as having disabilities,” Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th
Cir. 1995) (internal quotation omitted), is satisfied when an “employer mistakenly
believes an actual, non-limiting impairment substantially limits one or more of the

4
Kirkeberg also claims that Canadian Pacific failed to make “reasonable
accommodations to [his] known physical . . . limitations.” 42 U.S.C.
§ 12112(b)(5)(A). The ADA, however, requires an employee to show that he is “a
qualified individual with a disability” in order to state a valid claim for failure to
accommodate, id.; EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005),
so this claim fails as well.
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individual’s major life activities.” Pittari v. Am. Eagle Airlines, Inc., 468 F.3d 1056,
1061 (8th Cir. 2006).

Kirkeberg contends that Simmons regarded him as having impairments that
substantially limited him in the major life activity of working. To support this claim,
he points to the fact that Simmons knew his vision was impaired (Kirkeberg wore a
patch over his left eye to work beginning in early 2006), and he alleges that Simmons
was angered by his treatment-related absences from work and by his requests for
accommodation. Kirkeberg also alleges that Simmons began treating him poorly and
avoiding him after learning about his hepatitis C, a disease that Kirkeberg says carries
“a stigma” because of its association with illegal drug use. He concludes from these
facts that Simmons wanted Kirkeberg’s employment terminated because he “regarded
him as too disabled to work.”

Assuming again that “working” is a major life activity, the record does not
support Kirkeberg’s contention. As Kirkeberg himself acknowledged, the record
contains “no criticism of [his] overall job performance.” Appellant’s Br. 11.
Canadian Pacific awarded him both a performance-based bonus and a pay raise in
February 2007. Simmons testified without contradiction that he had never told
Kirkeberg that his work was deficient, and he could not identify anyone at the
company who thought Kirkeberg was not doing what he was supposed to do.
DeTuncq, Kirkeberg’s immediate supervisor from February 2007 until his
termination, indicated that she was not concerned about his ability to perform his job
duties, despite his absences. Even assuming that Simmons was angered by
Kirkeberg’s vision-related absences and avoided him because of his hepatitis C,
Kirkeberg failed to show how those feelings and behaviors translated into Simmons
regarding him as substantially limited in his ability to work. Accordingly, Kirkeberg
has not presented a submissible case that he was “regarded as” disabled.

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 C.

The analysis of Kirkeberg’s MHRA claim is parallel to the ADA claim in all
respects but one. The Minnesota statute defines “disability” as an impairment that
“materially limits” a major life activity. See Minn. Stat. § 363A.03, subd. 12 (2005).
The Supreme Court of Minnesota has concluded that “materially limits” is a “less
stringent” standard than “substantially limits,” Sigurdson v. Carl Bolander & Sons,
Inc., 532 N.W.2d 225, 228 (Minn. 1995), although the court’s subsequent opinions
offer little elaboration on the difference. Decisions of the Minnesota Court of Appeals
reflect that the MHRA continues to follow the rule that “temporary and limited
impairments” are insufficient, see Hanson v. Friends of Minn. Sinfonia, No. A03-
1061, 2004 WL 1244229, at *5 (Minn. Ct. App. June 8, 2004), and that “a plaintiff’s
condition must be considered in its corrected state,” after an impairment is mitigated,
see Hoover v. Norwest Private Mortgage Bank, Nos. A03-1347, A03-1796, 2004 WL
1328057, at *3 (Minn. Ct. App. June 9, 2004); see also Rohland v. St. Cloud Christian
Sch., No. A04-821, 2004 WL 2940889, at *8 (Minn. Ct. App. Dec. 21, 2004).
Kirkeberg makes no argument as to why he might be “materially” limited, but not
“substantially” limited, in major life activities, and he even recites that “[g]enerally
claims of disability discrimination under the ADA and the MHRA are analyzed in the
same way.” Appellant’s Br. 29. For the reasons discussed with respect to the ADA,
we think Kirkeberg has not presented sufficient evidence that he was materially
limited in a major life activity or regarded as such. We therefore affirm the district
court’s dismissal of the MHRA claims as well.

III.

Kirkeberg separately challenges the district court’s grant of summary judgment
on his claim of retaliation under the ADA. The statute provides that “[n]o person shall
discriminate against any individual because such individual has opposed any act or
practice made unlawful by this chapter or because such individual made a charge,

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testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this chapter.” 42 U.S.C. § 12203(a). Kirkeberg claims that Canadian
Pacific retaliated against him for requesting what he believed was a reasonable
accommodation for his alleged disability.

One might wonder how the theory behind Kirkeberg’s retaliation claim can be
squared with the text of the statute. An employee who asserts a right under 42 U.S.C.
§ 12112(b)(5)(A) to obtain reasonable accommodation for an alleged disability has
not “opposed any act or practice made unlawful” by the ADA. Nor has he “testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing”
under the ADA. On that basis, it might be thought that Kirkeberg’s claim never gets
out of the starting gate.

In Heisler v. Metropolitan Council, however, this court held that “[a]n
individual who is adjudged not to be a qualified individual with a disability may still
pursue a retaliation claim under the ADA as long as [he] had a good faith belief that
[a] requested accommodation was appropriate.” 339 F.3d at 632 (internal quotations
and citation omitted). Heisler relied for this proposition on Shellenberger v. Summit
Bancorp, Inc., 318 F.3d 183 (3d Cir. 2003), which reasoned that “[t]he right to request
an accommodation in good faith is no less a guarantee under the ADA than the right
to file a complaint with the EEOC,” and that “‘it would seem anomalous . . . to think
Congress intended no retaliation protection for employees who request a reasonable
accommodation unless they also file a formal charge.’” Id. at 191 (quoting Soileau
v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997)). Thus, although “[i]t is
questionable” whether an employee who merely requests a reasonable accommodation
“fits within the literal language of the statute,” Soileau, 105 F.3d at 16, we are bound
by Heisler to conclude that making such a request is protected activity for purposes
of 42 U.S.C. § 12203(a).

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 Kirkeberg’s retaliation claim is premised on a discussion with Simmons in
March 2007. Kirkeberg claims that “after [his] computer was stolen in a break-in, [he]
told Simmons that the computer would not have been stolen if [he] had been permitted
to work from home.” At that point, according to Kirkeberg, Simmons became angry,
sent an e-mail to Wilson about outsourcing the EAP, and set in motion the process that
led to the elimination of his position. Kirkeberg asserts that his statements to
Simmons were a request for reasonable accommodation under § 12112(b)(5)(A), and
that Kirkeberg retaliated against him for making this request.

Even accepting the broad view of protected activity adopted in Heisler,
Kirkeberg has not presented a submissible case of retaliation. No reasonable jury
could find that his spat with Simmons in March 2007 amounted to a request for
reasonable accommodation. Kirkeberg’s statement that the computer would not have
been stolen if he had been permitted to work from home did not request a prospective
accommodation. Nor did it renew some previous request to work from home at the
time of the theft. Kirkeberg’s prior request to work from home came in early 2006
when he sought only to work from home on certain days while he was acclimating to
monocularity. This request was limited to the acclimation period and did not extend
through March 2007. And even if it did, the previous request did not include a
proposal to transport his desktop computer between home and office each night such
that the computer would have been safe from theft. Kirkeberg merely requested an
opportunity to work from home on certain days when he was not feeling well. The
only other mention of working from home came when Kirkeberg was contemplating
treatment for hepatitis C in early 2007, but he had not started such treatment by the
time of the computer theft in March 2007. For these reasons, we conclude that
Kirkeberg did not engage in protected activity for purposes of § 12203, and the district
court properly dismissed his retaliation claim.

* * *

The judgment of the district court is affirmed.
______________________________

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