United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-3902
___________
Lynn Burchett, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Target Corporation, a Minnesota *
Corporation, *
*
Defendant-Appellee. *
___________
Submitted: June 13, 2003
Filed: August 13, 2003
___________
Before BOWMAN, MURPHY, and BYE, Circuit Judges.
___________
MURPHY, Circuit Judge.
Lynn Burchett brought this suit against her employer, Target Corporation
(Target), alleging disability discrimination in violation of the Americans with
Disabilities Act of 1990 (the ADA), 42 U.S.C. § 12101 et seq., and the Minnesota
Human Rights Act (MHRA), Minn. Stat. §§ 363.01–363.15. The district court1
1
The Honorable Paul A. Magnuson, United States District Judge for the
District of Minnesota.
granted summary judgment in favor of Target. Burchett appeals, arguing that there
were genuine issues of material fact to preclude summary judgment. We affirm.
I.
Burchett is presently on long term disability leave from Target. She worked
for Dayton’s, the Target company department store, from 1973 until she was laid off
in November 1995. In December 1996 she began working at Target in its distribution
department, which is responsible for getting consumer products to its retail stores
around the United States. Distribution employees communicate with the trucking and
transportation carriers used by Target to ensure that merchandise is delivered.
Burchett was given responsibility for maintaining electronic transfer documents,
working with current carriers, and bringing new carriers into the system. She
reported to Kari Melhus, who was a supervisor of Transportation Services. Melhus
in turn reported to Jody Marvin, a senior manager of Transportation Finance and
Systems. Burchett started out in a nonexempt or nonexecutive position, but
eventually became a transportation analyst, an executive position.
At first Burchett had a very positive relationship with Melhus and Marvin. Her
performance was rated as excellent on her reviews, and she received two special
awards for good service. Burchett states that she began having problems at work
when stress and personal issues exacerbated a recurrent depression she had
experienced for some years. She says that in 1999 and early 2000 her depression
caused her performance at work to suffer. She did not notify Target that she suffered
from depression, however, or that it was affecting her work.
Melhus perceived that Burchett’s performance was declining. According to
her, Burchett was late in finishing tasks, failed to complete reports accurately, and did
not follow through on her assignments. Burchett talked to Melhus in February 2000
about transferring to a less stressful position, and she began applying for other lower
-2-
level, nonexecutive positions without mentioning that she was suffering from
depression or that she wanted to transfer because of it. Burchett submitted several
applications to Melhus for her endorsement, and Melhus recommended her for
transfer and passed on her applications to the relevant departments.
On March 31, 2000, Burchett received a formal performance review from
Melhus in which she received a lower score than ever before. Melhus identified a
number of problems with Burchett’s work and gave specific recommendations as to
how she might improve. Marvin also had become concerned about Burchett’s
declining performance and talked with her about it. In the first week of April 2000,
Marvin told Burchett that she seemed bored with her job and might need to move to
a new position at Target. Burchett responded that she was having trouble doing her
job because she was ill. This was the first time Burchett had mentioned an illness to
either Marvin or Melhus. The week after the review was conducted, Burchett
informed Target that she would need to go on a leave of absence because her
depression had worsened. She also withdrew all her applications for transfers to new
positions.
While Burchett was on leave, she communicated with Melhus by e-mail and
kept her informed about her medication and therapy. At first Burchett told Target that
she would be able to return to work on April 24, 2000. As that day approached
Target asked if she would be able to return as scheduled, and Burchett responded that
she would need to stay out until May 1, 2000. Target again contacted Burchett before
May 1, and she responded that her return would need to be postponed until June 5,
2000. This pattern recurred again around June 5, when Burchett informed Target that
she could not return until June 14.
Burchett returned to work on June 14 and began a part time schedule which
complied with her doctor’s orders. She began working a six hour shift three days a
week. Melhus reviewed Burchett’s tasks before her return and adjusted her
-3-
responsibilities to fit these time restrictions. Melhus reassigned those tasks which
required daily communication with carriers to another employee within the
department, and Burchett was given work that did not require such daily contacts but
focused more on long term goals of the department. Burchett complained she did not
have proper training for her new responsibilities. It appeared to Melhus that
Burchett’s performance problems had increased, that she was failing to follow
instructions regarding her new work assignments, and that she continued to work on
reassigned matters which required daily contact with carriers. Melhus told Burchett
that her failure to follow instructions was creating problems, for she was not
completing the tasks assigned to her and carriers were receiving conflicting
information. One carrier had threatened not to ship for Target until the conflict was
resolved.
Melhus also complained that Burchett had ignored other instructions she had
been given. Burchett had scheduled an offsite training session even though she had
been told to organize an onsite lunch presentation. While two employees assigned
to work with the distribution centers were engaged in recommending ways to make
the delivery paperwork process more efficient, Burchett wrote conflicting instructions
to one of the distribution centers. In addition, she sent an e-mail to a distribution
center instituting a deadline for carriers without discussing it with anyone else in the
department. Burchett also became upset when Melhus instructed her to make up
time she missed by scheduling doctor appointments during her work hours. Melhus
met with Burchett on a regular basis during this period to discuss performance issues
and how she could improve.
From June through August 2000, Burchett continued to apply for other
nonexecutive positions at Target. She took the applications to Melhus who supported
them by forwarding them with her endorsement. Burchett also went to see Marvin
to ask for a transfer, but Marvin told her it might be hard to move while working only
part time. Marvin then wrote to Melhus suggesting they discuss other job options for
-4-
Burchett because she seemed unhappy with her job. On August 7, Burchett sent an
e-mail to Melhus informing her that she could start working three quarter time
starting the next week and that her doctor thought she could be back to full time by
the end of September.
Melhus believed Burchett’s performance problems were not improving as she
neared her mid year review. Melhus asked her to prepare a prereview statement, and
Burchett submitted a document discussing her leave and hour restrictions instead of
the standard review statement expected by Target. Melhus told her that more
information was required and that Burchett should include a statement about her
accomplishments, challenges, and opportunity areas. Melhus also decided that
Burchett was not responding to the weekly performance counseling she had
undertaken and that she needed more formal counseling. On August 8, Melhus
delivered a verbal reprimand to Burchett at a meeting she scheduled with her. At the
meeting Melhus discussed with Burchett specific performance deficiencies and
provided examples. The reprimand focused especially on Burchett’s need to
prioritize her tasks, to work only on assigned tasks, and to check with a supervisor
before implementing any decision. Melhus told Burchett that she needed to improve
or she would be subject to further discipline.
After communicating the reprimand, Melhus became concerned that she could
no longer recommend Burchett for transfers within the company. She discussed her
concern with Bryan Baker who had human resource responsibilities for the
distribution department. He told Melhus that Target did not transfer an employee
from one manager to another if the employee was experiencing significant
performance problems. After talking to Baker in early September, Melhus informed
Burchett that she could not forward her applications to other departments until she
improved her performance in her current position. Burchett then called Baker to
request a transfer to the imports department. She told him that she had a disability
and could not perform at her prior level in her current job. She also told him that
-5-
Melhus was hostile toward her. Baker responded that while she had previously
performed well, her current performance was not satisfactory and she could not be
recommended for other positions within Target until the situation improved. He also
told her that she should look outside of Target if she thought she needed a different
job.
On September 12, 2000, Burchett requested that Melhus forward her
application for transfer to the imports department. Melhus responded that she could
not endorse an application for transfer unless Burchett improved her performance.
Burchett became very upset, gathered her belongings, and immediately left the
workplace. Two days later Burchett sent an e-mail to all employees in the
distribution department thanking them for their support and directing criticism at
Melhus. Burchett never returned to work, and she was placed on a leave of absence.
She is now on long term disability leave from Target.
Burchett filed this action in the district court on June 7, 2001, alleging that
Target had discriminated against her based on an actual and perceived disability
under the ADA and the MHRA. She claimed that Target discriminated against her
by refusing to transfer her to a new department, which she contended was evidence
of both disparate treatment and discrimination based on failure to accommodate. She
also alleged a hostile work environment and retaliation for exercising her statutory
rights. Target moved for summary judgment.
The motion was granted after the court concluded that Burchett had not
established that she was disabled within the meaning of the law because she did “not
create a question of fact on the issue of whether her cognitive abilities and capacity
for concentration are significantly limited as compared to the abilities of an average
person in the general population.” Furthermore, “[e]ven assuming” that Burchett
could show Target “regarded her as disabled,” she had not established the second
element of her prima facie case requiring her to show a genuine issue of material fact
-6-
as to whether Target had failed to provide reasonable accommodations that would
enable her to perform the essential functions of her position. The court also ruled that
her claims for hostile work environment or retaliation were unsupported.
II.
Burchett appeals from the judgment. She contends that she made out a prima
facie case of discrimination by showing that she was actually disabled by depression
or that Target regarded her as disabled within the meaning of the ADA and MHRA;
that she was qualified to perform the essential functions of her job if transferred to a
new department and that Target failed to make reasonable accommodations for her;
that Target took adverse action against her by disciplining her without following its
formal policy2 and then denying her a transfer; and that Target’s proffered
explanation for its adverse employment action was a pretext for discrimination. On
her appeal Burchett does not raise any issues with regard to the dismissal of her
claims for hostile work environment and retaliation.
Target responds that Burchett did not establish a prima facie case of disability
discrimination and that the district court correctly concluded that Target had
reasonably accommodated her by following all of her doctor’s requests for leave and
for restructured hours. Moreover, argues Target, there are other grounds for
affirmance, see ACT, Inc. v. Sylvan Learning Sys., Inc., 296 F.3d 657, 663 n.3 (8th
Cir. 2002), for it did not regard Burchett as disabled and she did not suffer an adverse
employment action or show a causal connection between her alleged disability and
any employment action she attacks.
2
Burchett claims that Target had a discipline policy requiring use of a
particular form for a verbal reprimand but that Melhus used other paper providing
more space to detail Burchett’s problems. Burchett argues that this created an
inference that the reprimand was based on personal animus rather than her
performance.
-7-
We review a grant of summary judgment de novo, viewing the evidence in the
light most favorable to the nonmoving party. See Viking Supply v. Nat’l Cart Co.,
Inc., 310 F.3d 1092, 109–96 (8th Cir. 2002). Although the moving party has the
burden of demonstrating the absence of genuine issues of material fact, the
“nonmoving party may not rest upon mere denials or allegations, but must instead set
forth specific facts sufficient to raise a genuine issue for trial.” Rose-Maston v. NME
Hosps., Inc., 133 F.3d 1104, 1107 (8th Cir. 1998). Summary judgment is appropriate
in a disability discrimination case if a plaintiff cannot make an evidentiary showing
to support each element of a prima facie case. See Wilking v. County of Ramsey, 153
F.3d 869, 873 (8th Cir. 1998). We may affirm the judgement on any grounds
supported by the record. Land v. Washington County, Minnesota, 243 F.3d 1093,
1095–96 (8th Cir. 2001).
The burden shifting formula in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–04 (1973), is used to evaluate claims under both the ADA and the MHRA.
See Wilking, 153 F.3d at 872. Under this formula a plaintiff must first establish a
prima facie case of discrimination by demonstrating 1) that she has a disability within
the meaning of the ADA or the MHRA (or that her employer thinks she does); 2) that
she is qualified to perform the essential functions of her job, with or without
reasonable accommodation; and 3) that she has suffered an adverse employment
action as a result of her disability. Id. If the plaintiff establishes a prima facie case,
then the burden shifts to the employer to articulate a legitimate, nondiscriminatory
reason for its actions. Id. at 872–73.
Assuming without deciding that Burchett was either disabled or regarded as
having a disability, the second element of a prima facie case required her to show that
she was qualified to perform the job. The determination of whether an employee is
qualified to perform the essential functions of a job involves a two step inquiry.
Land, 243 F.3d at 1095. First the employee must show that she meets the necessary
prerequisites for the job, and then she must demonstrate that she can perform the
-8-
essential functions, with or without reasonable accommodation. Id. If the employee
establishes that she cannot perform the essential functions of the job without
accommodation, she must also make a facial showing that reasonable accommodation
is possible and that the accommodation will allow her to perform the essential
functions of the job. See Cravens v. Blue Cross & Blue Shield of Kansas City, 214
F.3d 1011, 1016 (8th Cir. 2000). If the requested accommodation is a transfer, she
must also demonstrate that she cannot be accommodated in her current position
because reassignment is “‘an option to be considered only after other efforts at
accommodation have failed.’” Id. at 1019 (quoting Aka v. Washington Hosp. Center,
156 F.3d 1284, 1301 (D.C. Cir. 1998)).
Under the ADA and the MHRA, an employer must reasonably accommodate
an employee’s disability and engage in an interactive process to identify potential
accommodations that could overcome her limitations. See Ballard v. Rubin, 284 F.3d
957, 960 (8th Cir. 2002). If the employee makes a showing that reasonable
accommodation is possible, the burden of production then shifts to the employer to
show that it had a legitimate nondiscriminatory reason not to provide the
accommodation, see Cravens, 214 F.3d at 1020 (employer is not “required to transfer
a disabled employee if such a reassignment would violate … a legitimate,
nondiscriminatory policy of the employer.”) (internal citations omitted). The ultimate
question of whether the employer discriminated by failing to provide the
accommodation is then for the fact finder to determine. See Land, 243 F.3d at 1096;
Cravens, 214 F.3d at 1016. While reassignment to a vacant position can be a
reasonable accommodation under the ADA, it is not necessarily required. See 42
U.S.C. § 12111(9); see also Cravens, 214 F.3d at 1017. An employer need not
reassign an employee unless accommodation within her current position would
impose an undue hardship on her. See Cravens, 214 F.3d at 1019.
Burchett contends that she was unable to perform her job in the distribution
department because of her disability and that Target should have given her a transfer.
-9-
That was the only accommodation which would have allowed her to continue
working she says, because the stress level at her position had exacerbated her
depression and could not be reduced by working fewer hours or on different projects.
She contends that there were open positions for which she was qualified in September
2000.
Target asserts that it engaged in an interactive process with Burchett and
accommodated her by restructuring her work load, by allowing her to work
diminished hours, and by providing flexibility in her schedule for medical
appointments and other scheduled meetings. It argues that it was not required to
transfer Burchett because she could perform her current job with the reasonable
accommodations it was providing. It points to evidence in Burchett’s deposition and
on medical forms filled out by her doctor which it says establish that she was able to
perform in her position, subject to the hour restrictions which Target had been
following.
After thoroughly examining the record, we conclude that Burchett did not
establish a genuine issue of material fact as to whether Target failed to accommodate
her by not granting her a transfer to a different department. Burchett did not show
that with the accommodations Target had provided she was unable to perform the
duties of her position because of her depression.
Although Burchett testified that she had been assigned a new set of unfamiliar
duties after her leave which took all her energy to learn, her deposition undercut her
assertion that she was unable to do her job with the limitations given by her doctor.
Burchett admitted in her deposition that she was able to do her new duties adequately
even though it was “very tough to do [an] above average or outstanding job” because
of lack of support, training, and an adequate job description. She testified that “I can
do the job, yes, but the surrounding circumstances were not conducive to doing the
job.” She also stated in her deposition that in June 2000 she “was able to perform as
-10-
a transportation analyst, do my previous responsibilities as I knew them. I was
making a fine recovery.” According to her own statement, the “only limitation [she
recalled was] the doctor’s orders to start as part-time and then move on to full-time.
That was a very temporary situation.”
Not only did Burchett admit in her deposition that she could perform the
functions of her position with the accommodations Target was providing, the record
also shows that her doctor thought she could perform her job and in fact was
expanding her hours and recommending that she return to full time in September.
There is no dispute that Target made accommodations after being told that Burchett
suffered from depression. It restructured her work load and reduced her work hours
in accordance with her doctor’s orders. “[R]eassignment is an accommodation of last
resort,” which does not become necessary unless it is the only accommodation that
will enable an employee to continue working for the employer. Cravens, 214 F.3d
at 1019. We conclude that Burchett failed to make an evidentiary showing that
Target was obligated to transfer her. She did not show that “accommodation within
[her] current position would pose an undue hardship” so Target was not required to
consider a transfer. Id. (quoting 29 C.F.R. § 1603.2(o)). She thus has not established
a genuine issue of material fact concerning her claim that Target failed to provide
reasonable accommodation for her disability.
Burchett failed also to establish a genuine issue of material fact as to whether
she suffered an adverse employment action because of her disability, the third
element of a prima facie case. To establish “an adverse employment action an
employee must show a ‘tangible change in duties or working conditions that
constituted a material employment disadvantage.’” Moisant v. Air Midwest, Inc., 291
F.3d 1028, 1031 (8th Cir. 2002) (quoting Manning v. Metropolitan Life Ins. Co., 127
F.3d 686, 692 (8th Cir. 1997)). Burchett contends that Target took adverse action
against her by disciplining her by means of the verbal reprimand and then using it to
deny her a transfer.
-11-
A negative performance review is not in itself an adverse employment action,
however, and it is actionable only if the employer subsequently uses that review to
alter the terms or conditions of employment to the detriment of the employee. See
Spears v. Missouri Dep’t of Corr. & Human Res., 210 F.3d 850, 854 (8th Cir. 2000).
Burchett has not established that the verbal reprimand was motivated by intentional
discrimination rather than her actual work performance or that it was used in order
to alter the terms and conditions of her employment. Target presented evidence that
both the reprimand and the subsequent refusal to transfer Burchett were based on her
performance problems, and Burchett has not produced sufficient evidence, as opposed
to mere allegations, to raise a genuine issue for trial. Although Burchett alleges that
the reprimand was based on her disability and that it was the only factor Target used
to deny her a transfer, she did not present sufficient evidence to support her argument.
Burchett acknowledged that her performance level was lower than it ever had been
before and she bears the burden to establish that Target’s explanation for her
reprimand and the refusal to forward her transfer application was pretextual and based
on intentional discrimination, Wilking, 153 F.3d at874. We conclude that she did not
meet that burden.
Even if Target’s refusal to transfer Burchett to a lower ranking job were viewed
as an actionable adverse employment action, she has failed to establish a causal
connection between that refusal and her disability as required in the prima facie case.
See Lowery v. Hazelwood Sch. Dist., 244 F.3d 654, 657–58 (8th Cir. 2001). Burchett
argues that Target’s refusal to transfer her was based on disability because it did not
have a written policy precluding the transfer. Target did have a job posting policy,
however, which required that a manager state on a transfer application whether she
believes her employee is qualified for the new position. Baker and Melhus testified
in their depositions that it was Target’s policy not to transfer an unsatisfactory
employee to another manager. Burchett contends that this policy was shown to be
pretextual by evidence that Hugh Heidt, a nondisabled coworker, was transferred to
a lower level position within the distribution department when he was having trouble
-12-
performing all the essential functions of his job. Heidt’s transfer was different from
Burchett’s situation, however, for he remained at all times in the same department
under Melhus’ supervision. Heidt’s reassignment was thus not inconsistent with
Target’s stated policy of not transferring an employee with performance problems to
another manager, and it does not give rise to an inference of pretext.
Burchett also claims that an inference of discrimination arises from Melhus’
refusal to forward her transfer application. She says Target’s job posting policy only
requires a manager to state whether or not the employee is qualified for the new
position. The application form includes a space for the supervisor to indicate either
that the employee is qualified or that she wishes to discuss the employee’s
qualifications with human resources. Melhus testified that she became concerned that
she could no longer forward Burchett’s applications with an indication she was
qualified because her performance problems were of a type that would continue to
occur. She therefore went to human resources to discuss Burchett’s performance, and
Baker told her that it was Target’s policy not to forward applications if an employee
was not performing well in her current position and that forwarding an application
was an indication of approval.
Burchett has not shown that Melhus’s conduct in respect to her application was
inconsistent with Target’s application requirements or any other evidence to suggest
that Target’s refusal to transfer her was based on her disability. We conclude that she
did not make a sufficient showing on the third element of her prima facie case to
survive the summary judgment motion.
III.
Because Burchett has not shown that she could not perform her current job
with the reasonable accommodations Target was already providing, we conclude that
she has not established a genuine issue of material fact on the second element of her
-13-
prima facie case. She has also not met her burden as to the third element because she
has not put forth evidence to demonstrate that she suffered an adverse employment
action because of her disability. The district court did not therefore err in granting
summary judgment.
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-14-