Kathleen Mole v. Buckhorn Rubber Products, Inc.

LAY, Circuit Judge,

dissenting.

My basic disagreement with the trial court is in the application of the McDonnell Douglas burden-shifting analysis to the facts of this ease. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The majority opinion, without directly referencing McDonnell Douglas, applies the same burden-shifting analysis. Although our cases have given lip service to the McDonnell Douglas method of analysis in ADA cases, under the facts of this case it is unnecessary and inappropriate. The McDonnell Douglas analysis is designed to govern disparate treatment cases. The ultimate question served by such analysis is that of disparate treatment of the claimant with others similarly situated. This case, however, does not involve a disparate treatment claim, but rather a reasonable accommodation claim that should be analyzed differently.1

The ADA is statutorily defined and driven. An employer may not “discriminate” against “a qualified individual with a disability because of the disability_” 42 U.S.C. § 12112(a). Discrimination as defined has nothing to do with the claimant’s disparate treatment. The ADA defines the term “discriminate” as follows:

(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer]; or
(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of [the employer] to make reasonable accommodation to the physical or mental impairments of the employee or applicant.

42 U.S.C. § 12112(b)(5)(A)-(B).

In most ADA cases, as here, a single question becomes the focus of the inquiry: whether the employer should have reasonably accommodated the employee’s disability but did not.2 In such cases, the McDonnell Douglas disparate treatment analysis is inappropriate. See Bultemeyer v. Fort Wayne Community Schs., 100 F.3d 1281, 1283-84 (7th Cir.1996); see also Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir.1995) (stating that once the plaintiff makes a facial showing that reasonable accommodation is possible, the burden of production shifts to the employer to show that it is unable to accommodate the employee); Wood v. Omaha Sch. Dist., 985 F.2d 437, 439 (8th Cir.1993) (stating that under the Rehabilitation Act a plaintiff need only make a facial showing that reasonable accommodation is possible and finding that the plaintiff met that burden by proposing certain accommodations); Ameson v. Heckler, 879 F.2d 393, 396 (8th Cir.1989) (reversing dismissal of Rehabilitation Act *1220claim because the plaintiff was “only required to provide evidence sufficient to make ‘at least a facial showing that reasonable accommodation is possible’ ” before the burden shifts to the employer to prove it is unable to make the accommodation) (citation omitted).3 Thus, it should be clear the McDonnell Douglas method of proof is irrelevant in this case.4 There is no question according to Mole’s physicians that she suffers from MS and that her symptoms affected her job performance.5 The relevant inquiry then becomes whether Buckhorn could or should have reasonably accommodated Mole’s illness.

Under the present record, the reasonableness of the extent of Buckhorn’s accommodation should be a question for the trier of fact. See Wood, 985 F.2d at 439-440; see also Arneson v. Heckler, 879 F.2d 393 (8th Cir. 1989) (J. Beam).6 Material factual disputes remain concerning whether Buckhorn can reasonably accommodate Mole. The record is replete with additional accommodations Mole contends Buckhorn could have made. The National Multiple Sclerosis Society’s information materials, which Buckhorn admittedly possessed, list several accommodations which could be made to assist an employee with MS.7 Dr. Asher also listed several possible accommodations in his deposition testimony.8

However, the district court and now the majority emphasize that Mole cannot over*1221come the defendant’s motion for summary judgment because she failed to make requests for accommodations in a timely manner. Such a defense does not logically or factually exist upon a fair review of the record. The record shows that Mole made requests for accommodation during a meeting held on July 14, 1994, the effective date of her termination. Mole requested rest breaks, some days off, time for her doctors to determine the proper prescriptions and dosages to manage her illness,9 and fully staffing the customer service department. She also submitted a note to Buckhorn from Dr. Ash-er stating that her MS was causing her work problems. Unfortunately, this court feels her requests came too late because she made them after she was terminated. The record reveals, however, that Mole made her requests and submitted her physician’s letter the very same day that her termination was to take effect.10 Considering the human concerns involved here, it is difficult to accept the majority opinion’s myopic view of the record. “A few hours’ tardiness should not be the reason for cutting off the interactive process and cutting off a person’s rights under the ADA.” Bultemeyer, 100 F.3d at 1286. Mole’s delay was not lengthy or inexcusable. After Mole requested accommodation on July 14, 1994, and presented her physician's letter, Buckhorn could have reconsidered its decision to terminate Mole and could have then included Mole and Dr. Asher in discussions regarding reasonable accommodations. See id. Instead, Buckhorn’s officials refused to provide Mole any further accommodation. cept the majority’s finding that Mole’s requests came too late, the record shows that P ickhorn knew accommodation alternatives were available prior to its termination of Mole. Buckhorn was in direct contact with Mole’s physicians prior to July 14, 1994. Buckhorn knew Mole suffered from multiple sclerosis, and Buckhorn possessed informational brochures that specified possible accommodations such as, “changes in work schedules, job duties, workplace environment and employer attitude(s).” To suggest that Buckhorn was not alerted to the need for reasonable accommodations ignores the historical facts. Buckhorn had conversations with Mole before her termination regarding accommodations, and Buckhorn had in fact provided some accommodations to her. However, as Mole argues, Buckhorn “runs away from its own lawful duties under 29 C.F.R. § 1630.2(o)(3)11 to initiate an ‘interactive process’ and affirmatively find out what will work.”

Even assuming we cannot credit Mole’s testimony that she requested accommodation (albeit on summary judgment), or if we ac-

This court on, prior occasions has stated that summary judgment should be used only in rare instances in employment discrimination cases. See Davis v. Fleming Cos., Inc., 55 F.3d 1369, 1371 (8th Cir.1995); Oldham v. West, 47 F.3d 985, 988 (8th Cir.1995); Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994). This admonition certainly applies to cases arising under the ADA. Today we simply give lip service to our earlier admonition. A fair reading of the record and the correct application of the proper standards require a different result.

. If a claimant under the ADA were making a claim of disparate treatment, such as an employer placing a greater burden on disabled workers than on other employees, then such a disparate treatment analysis would apply. Cf. Matthews v. Commonwealth Edison Co., 128 F.3d 1194 (7th Cir.1997). However, no such claim is made here.

. The district court holds there is a question of fact as to whether the plaintiff is disabled. The majority avoids the issue. This totally ignores the record. There is no question that plaintiff suffers from multiple sclerosis and has manifested the symptoms of that dreaded disease. There is no refutation that her physicians have certified that she suffered depression, loss of motivation, lack of concentration, cognitive dysfunction, among other disabling symptoms which are inherent in that disease.

. Rehabilitation Act cases are relevant in analyzing the ADA “because the ADA specifically mandates that its provisions be interpreted in a manner that prevents imposition of inconsistent or conflicting standards for the same requirements under [the ADA] and the Rehabilitation Act of 1973." Benson, 62 F.3d at 1112 n. 2.

. The majority’s dominant concern with the burden-shifting analysis probably resulted from the plaintiff's assertion that the Buckhorn termination was pretextual in kind. Notwithstanding, a court should not be misled by a party's irrelevant argument of incorrect legal principles involved in any case. Here the issue of pretextuality was a nonissue simply because plaintiff did not rest her claim upon a basis of disparate treatment. The mere fact that she argues it demonstrates only that her counsel confused the application of the burden-shifting analysis of McDonnell Douglas to a case of discrimination under the ADA. In doing so, however, the court walks down the wrong path of analysis by finding no factual proof of pretextuality within the record. Once again, it should be clear that pre-textuality cannot be an issue in a case brought under the ADA where the statutory basis of discrimination relates to the defendant's failure to provide reasonable accommodation. It should be obvious that whether the claim of pretextuality is factually controverted is immaterial. This question is totally subsumed in the determination of whether the employer provided reasonable accommodation to a qualified person's needs under the ADA.

. Mole claims that even without accommodation she was able to carry on her job at a satisfactory level. Mole supports her claim with affidavits from co-workers and customers who dealt with her and found her work satisfactory. Judge Lo-ken rejects Mole's claim by observing: "Supporting affidavits from fellow employees who did not deal with Mole on a systematic basis are insufficient to counter Buckhorn’s proof she was discharged because she did not meet its legitimate expectations.” At the very least, however, this is an issue that a trier of fact should decide.

. In Ameson, Judge Beam noted a possible accommodation to a disabled employee was to furnish "a clerical assistant” or transfer. Yet, Judge Loken found Mole's requests to have Buckhorn return to its previous three-person staffing of the customer service department to be unreasonable.

. The Multiple Sclerosis Society's brochure offered the following suggested accommodations, noting that “[rjeasonable accommodations can include changes in work schedules, job duties, workplace environment and employer attitudes:”

Energy saving: rest period: flexible working hours (to avoid rush hour traffic, etc.); parking space close to entrance; office location close to rest room; communication system allowing use of intercom instead of walking.
Environmental control: air conditioning, good lighting.
Accessibility: ramps, wide doors, adaptable work station arrangements, grab bars in bathrooms.
Job modifications: trading nonessential duties for other tasks which do not conflict with functional limitations.
Technological adaptations and devices: may have some cost attached but also may be provided by outside sources.

. Dr. Asher testified that necessary accommodations would change from time to time due to the disease, but would include the following: (1) permitting leaves of absence for medical treatment and follow-up; (2) allowing rest breaks during the day to regain energy; (3) limiting hours of work; (4) permitting the use of medication; (5) providing an air-conditioned workplace; and (6) giving written instructions to overcome memory deficits caused by the disease.

. Approximately a month before Mole was terminated, her doctors prescribed a new medication, Betaseron, to treat her illness. Mole’s doctors testified that it would take some time to determine the therapeutic effect the Betaseron would have on Mole’s symptoms. The record indicates that Mole told Buckhorn representatives during the July 14, 1994, meeting that it would take time for her doctors to establish the appropriate prescriptions and dosages to treat her illness.

. Although Mole’s last day of active employment was on June 30, 1994, the date on which Buckhorn gave Mole a two-week notice of termination, the notice expressly stated that "the date of [Mole’s] termination will be July 14, 1994.” Arguably, Mole was still employed by Buckhorn until the end of the day on July 14, 1994.

.29 C.F.R. § 1630.2(o)(3) reads:

To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.