Kelvin D. Peebles v. John E. Potter, 1 Postmaster General, United States Postal Service

BYE, Circuit Judge,

concurring.

As a conceptual matter, I agree that U.S. Airways, Inc. v. Barnett can be read to apply to cases where the accommodation the plaintiff seeks is an exception from other workplace policies or rules, such as the substantiation rule in the instant case. See 535 U.S. 391, 397-403, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002). In my view, however, Kelvin D. Peebles has failed to make a facial showing he needs to be exempted from the substantiation rule, and so I take issue with the need to conduct the reasonable-accommodation analysis in the first instance.

It is axiomatic, to survive summary judgment, an employee bringing a reasonable-accommodation claim under the Rehabilitation Act must first establish a prima facie case. Fenney v. Dakota Minn. & Eastern R.R. Co., 327 F.3d 707, 712 (8th Cir.2003). The employee must show he is disabled within the meaning of the statute, has suffered an adverse employment action, and is qualified for the job with or without accommodation. Id.See also Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir.1999).

The fact we apply the modified burden-shifting analysis does not relieve the plaintiff of this threshold burden. Indeed, we perform the analysis only after the plaintiff, in making a showing of the third step of the prima facie case, produces evidence he could perform the essential functions of the job with the employer’s accommodation. See Fenney, 327 F.3d at 712, 718. It is only then we ask whether the accommodation is reasonable, and if so, shift the burden to the employer to show the accommodation would impose an undue burden.

As our precedent stands, moreover, the plaintiff fails to make a prima facie case if he fails to show he needs an accommodation. See Burchett v. Target Corp., 340 F.3d 510, 518 (8th Cir.2003) (affirming summary judgment for employer because employee failed to make an evidentiary showing she needed the requested transfer); Wood v. Crown Redi-Mix, Inc., 339 *771F.3d 682, 687-688 (8th Cir.2003) (affirming summary judgment for employer because, in requesting an accommodation unrelated to his disability, the employee failed to make a prima facie case). While only implicit in our cases, necessity has been an explicit requirement of the plaintiffs prima facie ease in the Sixth Circuit. See Gaines v. Runyon, 107 F.3d 1171, 1175 (6th Cir.1997) (listing the need for the accommodation as an enumerated element of the pri-ma facie case). As that court has explained, there must be a showing of a causal connection between the accommodation and the disabled employee, so the employee would be denied the employment benefit but for the accommodation. See id. at 1175-76. See also Smith Lee & Assocs., Inc. v. City of Taylor, Mich., 102 F.3d 781, 795 (6th Cir.1996) (applying the same concept of necessity to claims under the FHAA).

To reiterate, the plaintiff must make a prima facie case before the court conducts the burden-shifting reasonable-accommodation analysis. It follows, because necessity is part of the prima facie case, the showing the plaintiff needs the accommodation precedes the question whether the accommodation was reasonable. See Burchett, 340 F.3d at 518 (granting summary judgment without conducting analysis); Wood, 339 F.3d at 687-688 (same); Gaines, 107 F.3d at 1176 (stating it is error to address the question of reasonable accommodation if the plaintiff fails to establish he needs the accommodation).

I recognize Barnett implicitly carves out an exception to the necessity requirement. There, the Supreme Court concluded Barnett’s request to be exempted from his employer’s seniority rules was subject to reasonable-accommodation analysis even though the rules were unrelated to Barnett’s disability limitations. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397-403, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002). An employee, therefore, should now be able to state a prima facie case even if a request for an exemption not directly needed to accommodate his limitations is at issue. That is to say, no longer must a plaintiff show he needs the accommodation to perform the work.

I hold the view, however, Barnett has not entirely abolished the necessity requirement. Barnett needed to be exempted from the seniority rules because such rules themselves caused him to be laid off. Absent an enforcement of the rules, he would have kept his job. Stated in terms of causation, Barnett would have lost his position but for the accommodating exemption. Thus, while the accommodation need not be essential to accommodate the employee’s disability limitations, it must minimally be necessary to accommodate the disabled employee. Even after Barnett, the employee must show he would lose his employment status but for the accommodation he seeks.

To read Barnett otherwise is to indulge unreasonable accommodation requests. Any employee whose disability did not prevent him from obeying a workplace rule and whose employer then took adverse action against him for breaking the rule could force a court to examine, and the employer to defend, the reasonableness of refusing to excuse the violation. Such a formalistic extension of Barnett could apply even to an employee who brazenly refuses to follow basic disciplinary rules unrelated to his disability. Clearly, the Supreme Court could not have intended such a result.

Here, Mr. Peebles has failed to show he could not be reactivated but for the accommodation he seeks. Stated another way, he has not shown that the only way for him to regain his job is for the Postal Service to grant him the exemption. On *772the contrary, the evidence shows that at any point during his two-year absence, and even after this dispute arose, it was within his power and control to regain his position simply by bringing a note from a doctor. The actual cause of his continued unemployment, then, is his own dereliction, not his employer’s enforcement of the substantiation rule. In reality, Mr. Peebles does not need to be accommodated, he wants to be excused. The attention of the courts and the succor of the Act, however, should be reserved for those who cannot, as distinguished from those who won’t.