United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2753
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Leland Melvin Otto, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
City of Victoria, *
*
Appellee. *
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Submitted: May 14, 2012
Filed: July 19, 2012
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Before SMITH, ARNOLD, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Leland Melvin Otto was terminated from his employment with the City of
Victoria, Minnesota. Otto brought an action against his former employer, alleging
violations of the Americans with Disabilities Act (“ADA”), the Age Discrimination
in Employment Act (“ADEA”), the Due Process Clause of the Fourteenth
Amendment, and state law. The district court1 granted summary judgment in favor
of the City. Otto appeals the dismissal of his federal claims, and we affirm.
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
I.
Between 1985 and 2009, Otto worked in the City’s Department of Public
Works, eventually rising to the position of Public Works Worker II. According to the
position description, Otto’s job required the performance of “non-supervisory, semi-
skilled and skilled operational and maintenance responsibilities in all department
areas.” These duties are varied, and include activities such as patching and repairing
curbs and gutters, snow plowing, mowing, tree trimming, trash and hazard removal,
sewer cleaning, and maintenance of streets, parks, and buildings. While in this
position, Otto twice sustained workplace injuries to his back, first in 1990 and again
in 2006. Each time, Otto resumed work after the injury and returned to his typical
duties.
Otto experienced numbness in his left leg in January 2007. He then saw a
doctor, who ordered him that same month to stop working. Otto underwent surgery
in August of that year. On September 11, 2007, his physician, Dr. Galicich, indicated
in a workability report that Otto was totally disabled and would remain so for an
indeterminate period of time. Dr. Galicich then referred Otto to another physician,
Dr. Wei.
In December 2008, Dr. Wei cleared Otto to perform four hours of sedentary
work per day. Otto did not return to work, however, because the City had no position
available that could accommodate Dr. Wei’s restrictions. That same month, Otto also
underwent a functional capacity evaluation, which concluded that he could frequently
carry weights of up to five pounds, occasionally lift weights of up to fifteen pounds,
and seldom lift weights of up to thirty-five pounds. Dr. Wei noted in a subsequent
disability form dated January 6, 2009, that the work restrictions were permanent.
Throughout this period, Otto received workers’ compensation benefits, including pay
benefits, health insurance, and vacation and sick time accrual.
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The City’s personnel committee eventually recommended that the City
terminate Otto’s employment, and the city council discussed the issue at a meeting
on February 23, 2009. Otto attended the meeting, and asserted that he was able to
return to work. The city council nonetheless adopted a resolution terminating Otto’s
employment with the City. According to Otto, the City later replaced him with
workers in their twenties. At the date of his termination, Otto was 59 years old.
II.
Summary judgment is appropriate if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). 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 Otto,
the nonmoving party. Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507,
514 (8th Cir. 2011).
A.
The ADA provides that an employer may not “discriminate against a qualified
individual on the basis of disability.” 42 U.S.C. § 12112(a). Otto offered no direct
proof of discrimination, so the district court examined his ADA claim using the
burden-shifting analysis described in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999)
(en banc). Because the record has been fully developed with respect to the motion
for summary judgment, however, we may proceed directly to the “ultimate question
of discrimination vel non.” U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 714 (1983); see Hervey v. Cnty. of Koochiching, 527 F.3d 711, 719 (8th Cir.
2008).
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For his ADA claim to survive summary judgment, Otto must show that he was
qualified to perform the essential functions of his position, with or without reasonable
accommodation. Kiel, 169 F.3d at 1135; see 42 U.S.C. § 12111(8)-(9). The essential
functions of a Public Works Worker II include few sedentary duties and frequent
lifting of objects weighing fifty pounds. Limited as he is to four hours of sedentary
work per day and unable to engage in heavy lifting, Otto is physically incapable of
fulfilling these responsibilities. While it is true that Otto told the city council that he
could still perform these functions, his assertion was undermined by his own
physician’s determination that Otto’s disability permanently restricts his ability to
work. The ADA “does not require an employer to permit an employee to perform a
job function that the employee’s physician has forbidden.” Alexander v. Northland
Inn, 321 F.3d 723, 727 (8th Cir. 2003).
Otto also enumerates several accommodations that he says the City should have
provided so that he could perform the job. He suggests that the City could have
limited his job to sedentary duties, offered him a part-time job as an ice-hockey rink
attendant, or assigned other employees in the Department of Public Works to assist
him in carrying out his job. These proposed accommodations are not reasonable. The
ADA does not require an employer to create a new position or to eliminate or
reallocate essential job functions in accommodating an employee with a disability.
See Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 950 (8th Cir. 1999). And in
any event, Otto points to no evidence that a position accommodating his disability
was available at the time of his termination, or that he ever applied for such a
position.
Otto argues that he could have performed the essential functions of his job if
the City had provided a back brace or similar support. The record does not establish
a genuine issue of fact about whether this accommodation would be sufficient. While
Otto’s functional capacity evaluation mentions that using a lumbar roll improved his
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tolerance for sitting, Otto cites no evidence suggesting that a back brace would have
addressed his work restrictions concerning heavy lifting.
Finally, Otto contends that there is a disputed issue of fact for trial, because one
member of the city council, in explaining her vote against Otto’s termination,
questioned whether the City had exhausted all opportunities for reasonably
accommodating Otto. Otto cites the deposition testimony of Councilmember
Kimberly Roden that “the information that was in front of me did not give me
confidence of a hundred percent ability that we couldn’t accommodate Mr. Otto at
least part of the year by virtue of doing lawn mowing, for example.” Roden Dep. 10.
But in the very next sentence, Roden clarified the circumstances of her vote:
However, having said that, . . . I’m not an expert in either Mr. Otto’s
injuries nor in all of the things that the Public Works staff is expected to
do. So based on what I felt was not really detailed information, I didn’t
feel comfortable with making a vote that would terminate the
employment.
Id. These statements do not raise a genuine issue of fact as to whether reasonable
accommodation was possible, because they provide no evidence relevant either to
Otto’s disability or the essential functions of his job. The only potential
accommodation mentioned—allowing Otto to continue working part-time mowing
lawns—would have involved creating an entirely new position for Otto, and the ADA
does not require that step. We therefore conclude that summary judgment on Otto’s
ADA claim was proper.
B.
Otto next argues that his termination violates the ADEA, which makes it
unlawful for an employer “to discharge any individual . . . because of such
individual’s age.” 29 U.S.C. § 623(a); see Gross v. FBL Fin. Servs., Inc., 557 U.S.
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167, 175-78 (2009). Once again, because the factual record was fully developed at
the summary judgment stage, we proceed directly to the ultimate question of
discrimination. See Hervey, 527 F.3d at 719.
The only evidence that Otto offers to show age discrimination is the fact that
workers in their twenties assumed his duties after he was terminated. This fact alone
cannot support a reasonable inference of age discrimination. See Carraher v. Target
Corp., 503 F.3d 714, 719 (8th Cir. 2007). In any event, a claim of age discrimination
under the ADEA requires that a plaintiff be qualified for the position from which he
was terminated. See Anderson v. Durham D&M, L.L.C., 606 F.3d 513, 523 (8th Cir.
2010). As already explained, Otto’s disability prevents him from performing the
essential functions of a Public Works Worker II. He therefore is no longer qualified
for the position, and his claim of age discrimination fails for that reason as well.
C.
Otto contends that the City deprived him of property without due process of
law by discharging him without a formal hearing. Where state law creates a property
right in continued employment, due process requires that the employee receive notice
and a pretermination hearing with an opportunity to respond. Cleveland Bd. of Educ.
v. Loudermill, 470 U.S. 532, 542 (1985). Otto, however, has demonstrated no such
property interest in continued employment. He cites Minnesota case law for the
proposition that due process required that a neutral hearing examiner decide his case,
but these precedents concern public employees who enjoyed a statutory right in
continued employment. See, e.g., Ganyo v. Indep. Sch. Dist. No. 832, 311 N.W.2d
497, 498 (Minn. 1981) (applying a state teacher tenure statute); In re Hahn, 386
N.W.2d 789, 791 (Minn. Ct. App. 1986) (relying on a Minnesota statute that provides
“a certain class of coaches with minimal due process rights when their coaching
duties are terminated”). Otto, by contrast, was an at-will employee, and the City’s
termination of his employment did not deprive him of a property interest protected
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by the Fourteenth Amendment. See Bishop v. Wood, 426 U.S. 341, 347 (1976). He
thus had no a constitutional right to a hearing.
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For the foregoing reasons, the judgment of the district court is affirmed.
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