Buboltz v. Residential Advantages, Inc.

BYE, Circuit Judge,

dissenting.

The district court erred by weighing the evidence, resolving issues of disputed fact, and ruling as a matter of law Monica Buboltz did not suffer an adverse employment action. For these reasons, this matter should be reversed and remanded for trial.

I

In ruling on a motion for summary judgment, it is not the court’s role to decide the merits. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must simply determine whether there exists a genu*871ine issue for trial, i.e., whether there is sufficient evidence favoring the non-moving party for a jury to return a verdict in her favor. Id. The court must not weigh evidence or make credibility determinations, as those functions are for the jury. Id. at 255,106 S.Ct. 2505.

Summary judgment should seldom be granted in the context of employment discrimination cases because of their being inherently fact based. Mayer v. Nextel W. Corp., 318 F.3d 803, 806 (8th Cir.2003). The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in her favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. When viewed in the light most favorable to her claim, the evidence Buboltz presented could persuade a jury to return a verdict in her favor. Genuine issues of material fact therefore exist which require a trial; the district court’s summary judgment ruling should be reversed. Anderson, 477 U.S. at 257, 106 S.Ct. 2505; Kenney v. Swift Transp., Inc., 347 F.3d 1041, 1044-45 (8th Cir.2003) (reversing district court’s grant of summary judgment to defendant employer because it improperly weighed the evidence).

II

As the Court indicates, only the third prong of Buboltz’s prima facie case — • whether she suffered an adverse employment action- — is at issue. Adverse employment actions “need not always involve termination or even a decrease in benefits or pay.” Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 717 (8th Cir.2003). Reassigning an employee to a position with significantly different responsibilities or otherwise creating a detrimental change in working conditions can constitute an adverse employment action. See, e.g., id.; Brown v. Cox, 286 F.3d 1040, 1045-46 (8th Cir.2002); Phillips v. Collings, 256 F.3d 843, 848 (8th Cir.2001). Buboltz alleges two primary adverse employment actions: (1) RAI eliminated essential functions of her job, and (2) RAI constructively discharged her.

The issue of whether RAI eliminated essential functions of Buboltz’s job is one of disputed material fact. RAI argues administering medication is not an essential job function because it comprised a small fraction of Buboltz’s time. Buboltz counters the dispensation of medication is one of the most important aspects of care-giving and eliminating the function was tantamount to a reprimand. With respect to prohibiting Buboltz from working alone with residents, RAI claims the home was regularly triple-staffed. Buboltz was able to retain her position on the work schedule, despite this limitation, because there were always other DSPs on staff to supervise her resident interactions. Buboltz argues requiring another person to look over her shoulder whenever she interacted with a resident limited her efficacy and, again, branded her incompetent.

An essential function is a “fundamental job dut[y] of the employment position the individual with a disability holds or desires” and “does not include the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1); Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 787 (8th Cir.1998). A job function may be considered essential for any of several reasons, including because (1) the reason the position exists is to perform that function, and/or (2) there are a limited number of employees available among whom the performance of that job function can be distributed. 29 C.F.R. § 1630.2(n)(2)(i), (ii). The EEOC regulations contain a non-exhaustive list of seven types of evidence which may be considered in determining whether a particular function is essential. See 29 C.F.R. § 1630.2(n)(3). The amount of time spent performing the function is merely one. Id.

*872It was error for the district court to determine RAI did not eliminate essential functions of Buboltz’s job and thus Buboltz did not suffer an adverse employment action; such a determination is the province of the jury. The DSP written job description includes taking care of the residents’ medical needs and requires ability to “make decisions and complete tasks with little or no supervision.” Appellant App. at 16. Buboltz argues one of the most important responsibilities of a DSP is to administer medication; if no DSPs administered medication, the medical care of the residents would be greatly compromised. At least three other RAI employees testified medication administration and working alone with residents were essential duties and they believed the elimination of these responsibilities was materially adverse, unfair, unwarranted, and tantamount to accusing Buboltz of incompetence. Id. at 175, 182-84, 194, 197-98. Furthermore, with only two or three DSPs present on a given shift, there are a limited number of employees available to perform those functions Buboltz was prohibited from performing, especially when one DSP takes a break, or runs an errand with other residents. See id. at 174,196.

The Court states Buboltz failed to show what direct care she was precluded from providing to the residents based on these restrictions. To the contrary, Buboltz provided testimony from her coworkers explaining how RAI’s restriction prevented her from engaging in direct care as she had previously. Patricia Nelson testified Buboltz used to take residents to basketball games, concerts, and would often spend individual time with residents. Id. at 190. Cathy Galvin, RAI Human Resources Generalist, stated Buboltz would no longer be able to take the residents grocery shopping or bowling. Id. at 97. Buboltz testified there were occasions when a DSP would need to stay home with a client who did not desire to participate in an outing with the others. Id. at 10. She would no longer be able to perform this function. Buboltz argues the restriction prevented her from providing direct care to residents such as bathing them, assisting them while going to the bathroom, or providing other hygienic care, due to space limitations in the bathroom. Appellant Reply Br. at 7-8. She also argued the restrictions prevented her from doing typical one-on-one activities such as taking residents on a walk or even playing a game with them in a separate room. Id.

It was error for the district court to conclude Buboltz was not constructively discharged. When viewed in the light most favorable to her claim, the evidence Buboltz presented could persuade a jury RAI altered Buboltz’s working conditions with the intent to force her to resign or with the reasonable foresight that she would resign as a result of its actions. See Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1017 (8th Cir.1999) (“A plaintiff claiming constructive discharge must show that a reasonable person would have found the conditions of employment intolerable and that the employer either intended to force the employee to resign or could have reasonably foreseen that the employee would do so as a result of its actions.”) RAI eliminated important, arguably essential, functions of Buboltz’s job and ignored its responsibility to determine first whether Buboltz could be accommodated. The ADA compels employers to “engage in an interactive process to identify potential accommodations that could overcome the employee’s limitation,” Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894, 902 (8th Cir.2006), and modify their work requirements to enable disabled individuals to have the same opportunities as their disabled counterparts, Peebles v. Potter, 354 F.3d 761, 767 (8th Cir.2004). The failure of an employer to engage in this interactive process is prima facie evi*873dence the employer may be acting in bad faith. Canny, 439 F.3d at 902.

While it is true RAI waived the driving requirement when it hired Buboltz initially, an employer’s duty to accommodate is a continuing one and is not exhausted by merely one effort. Humphrey v. Memorial Hosp. Ass’n, 239 F.3d 1128, 1138 (9th Cir.2001). Viewing the evidence in the light most favorable to Buboltz, when RAI concluded she should not dispense medication or work alone with residents, Bu-boltz requested a meeting in which she raised the issue of reasonable accommodations with her manager and with Human Resources.7 RAI refused to discuss possible accommodations which might allow her to maintain these job responsibilities. RAI also refused to communicate the new restrictions on Buboltz to the rest of the staff. Instead, RAI required Buboltz to inform her coworkers of her restricted duties. RAI suggested she explain the restrictions were self-imposed to make Bu-boltz more comfortable. Appellant App. at 103. A jury could have found it foreseeable such a situation would create a hostile work environment and negatively affect Buboltz’s relationships with her coworkers, who began to resent her because “she does not pull her own weight and just lets everyone else do everything.” Id. at 269; see also id. at 175,187-88.

In addition, one week after eliminating two of Buboltz’s job responsibilities, RAI dramatically changed her schedule. Where she had been working an average of one shift of four hours per week, RAI now required her to work an additional two shifts of eight or nine hours on Saturday and Sunday, every other week. When Buboltz began using her paid time off benefits to avoid working the weekend hours, RAI stopped regularly scheduling her for her weekday shift. Id. at 141-43. RAI next subjected her to her first performance review in the five years she was in its employ, creating a negative record where there was previously none at all. Buboltz and her coworkers testified she did not want to leave her position at RAI, but the changes it implemented “just got to be too much of a stress on her life, on herself.” Id. at 91, 172, 175, 199. A reasonable jury could conclude RAI intended to force her to resign, or could have reasonably foreseen its actions would have led Buboltz to do so.

Ill

Whether RAI subjected Buboltz to an adverse employment action is a question laden with disputed material facts. Bu-boltz has presented evidence sufficient for a reasonable jury to conclude RAI eliminated essential job functions and constructively discharged her. The district court erred by weighing the evidence, resolving the issues of disputed fact, and ruling as a matter of law Buboltz did not suffer an adverse employment action. I would therefore reverse and remand for trial.

For the foregoing reasons, I dissent.

. The meeting was held on March 8, 2005, and was recorded. See Appellant App. at 83-114. Buboltz also submitted into evidence a March 11, 2005, letter she claims she wrote to the president of RAI, Bill Olson. The letter expresses her dissatisfaction with the "unfair and clearly discriminatory” changes RAI made to her job responsibilities and her work schedule. Id. at 14. She concluded “[a]ll I want is to do my job as I was hired 5 years ago to do and as I have been doing, my 1 day a week, no weekends or holidays, giving meds, taking the ladies out in the community, and respect from my co-workers.” Id. at 14-15. Mr. Olson denies ever receiving the letter.