*3 then MURPHY, part offered him time Before KELLY a and Circuit would have MONTGOMERY,1 seniority. reduced his He Judges, and District de- clined to accept position and Judge. sued UPS under the with Americans Disabilities MURPHY, Judge. Circuit (ADA) Act Rights and Civil Iowa Act (ICRA) for a failure to accommodate his Plaintiff Jerry worked as a de- disability. livery driver for defendant United Parcel (UPS). Service of America His doctor re- later, Faidley’s Several months doctor activity stricted his work after he hurt his issued a new restriction allowed him back, him and UPS did not offer another to work with at any no limit on position full time he was able per- delivery In early other than driver. disability form. He sued for discrimination found a new at UPS granted and retaliation. district court as a combined and loader. In pre loader summary judgment to UPS on all claims. pre role, loader he loaded packages Faidley appeals, part, and we affirm in loader, into As a delivery trucks. he part, reverse in remand. packages stacked in semi trailers. This proved physically combined role too de-

I. manding great a and caused deal Jerry Faidley pain. His limited him to worked UPS as a doctor then injured working day After for five package delivery driver. he four hours weeks as a than a loader. hip surgery, pre his back twice and had loader rather Faid- day ley work asked to schedule but doctor restricted his work a reduced previously he had hours. When UPS learned this restric- UPS refused because tempo- him time in its prohibited tion from work- used all of his available ing rary program. as a because that alternative work posi- sota, sitting by designation. Montgomery, 1. The D. Honorable Ann Judge States District the District of Minne- (1)' disability within “that he has a received another set of Faidley later (2) ADA, a meaning of the then work reinitiated restrictions. ADA, suffered but time individual under process, no full action as employment an adverse result positions that fit his restrictions were Dakota, Fenney disability.” him Minn. offered available. UPS Co., & E. R.R. that he declined. retired 2003) (internal omitted). marks quotation then sued year. later that He UPS sec- disability party disputes Neither ond time under ICRA for the first from disabled and thus satisfies ele arising and retaliation him in ment of its failure to accommodate alleged court consolidated the

2013. The district to the second respect With ele granted 2012 and 2013 actions sum- *4 ment, employee qualified is a individual judgment Faidley appeals. to UPS. mary “(1) possesses] under the ADA if he the skill, education, requisite experience, and II. training and position; [is] able [his] “grant the We review of sum functions, perform job to essential the with novo, mary judgment viewing de the facts or without reasonable accommodation.” to light the most favorable the nonmov- Fenney, Kallail, (quoting at 930 691 F.3d every ing making and reasonable party 712). job 327 F.3d at Essential in his favor.” McPherson inference job, the “are fundamental duties but O’Reilly Auto., Inc., (8th 726, 491 F.3d 730 not its functions.” Id. marginal 2007). Summary judgment Cir. is warrant claims to have been Faidley quali genuine ed there no “if the record shows is jobs fied to the of feeder driver the moving party material fact and issue of The delivery and in 2012. driver to as matter of law.” entitled correctly as a concluded matter of City Id.; Torgerson v. see also of Roch that to qualified per law was not ester, (8th 1031, Cir. form the functions for essential 2011) (en banc). job required position. driver That ability eight more than to work hours A. day, that per and the record is clear Faid- Faidley’s first address 2012 dis We ley working to no more than was limited claim. ability discrimination We use eight day. hours per analyze to ADA same standards and ICRA Tjernagel however, conclude, that claims. We v. Gates dis Corp., determining by 671 trict court erred as mat private ADA from ter of law that was unable prohibits employers per discriminating against qualified form the functions of the individuals .essential claims disability. position. Kallail v. Alliant Ener feeder based on gy Corp. Servs., Inc., position unqualified 691 for this F.3d 930 required working a because it Discrimination includes sometimes day. A per “reasonable more than provide failure to accommoda or physical supports to the mental limi deal of evidence Faid- tions known ley affidavit to tations of an otherwise individual referred “the re day position.” disability.” (quoting quired with a Id. 9.5 hours U.S.C. 12112(b)(5)(A)). manager § Human Vince prove disability To dis resources Blood crimination, on employee must establish wrote a 2012 work- sheet, however, “preliminarily tage, including to, but limited termi- appear[ed] capable nation, the es- benefits, cuts in or pay sential functions” of changes that an employee’s affect future form, role. On the same he wrote that prospects, career well as as circumstances Faidley could work no more than amounting to a constructive discharge.” We that is suffi- conclude Dep’t Jackman v. Fifth Judicial Dist. genuine Servs., cient create a issue of material Corr. quali-

fact claim he was 2013). We that Faidley conclude has es- fied to the essential functions of genuine tablished a issue of material fact the feeder driver as to this element. has alleged provided rejected evidence that UPS argues should we not consider bids for full time and offered the feeder driver because was him only that would not available when went through seniority have eliminated his and reduced In process. the accommodation accord with his benefits pension.2 The company ef- guidance Equal Employment Op- fectively forced him reduce his hours Commission, portunity 29 C.F.R. Pt. 1630 significantly and he thus suffered an ad- 1630.2(o), § app. other circuits have con- verse employment action. He also suffered “positions sidered as available that the em- such an company’s action material ployer reasonably anticipates will become *5 reduction of his benefits. See id. Because in fairly vacant immediate future.” Faidley Brake, Inc., provided has evidence to support Smith v. Midland every 1999) element his 2012 (en disability banc); dis- see claim, Curry Cty., crimination we conclude that also Dark v. district court in granting summary erred adopt We also judgment to UPS on that claim. agency’s guidance posi- to consider such case, In Faidley tions. presented has B. expected

evidence that UPS that feeder positions open would become in the We next address near future. We therefore conclude that agree discrimination claim. We with the Faidley provided has evidence to show that that claim fails as a he satisfied the second element of his 2012 matter of law not has disability claim for discrimination. offered sufficient evidence that he was An employee to the essential satisfies third element func job. any only a disability discrimination claim if he tions of available avail that he per shows he suffered adverse em- able he claims could have action, pre “is defined as a formed was a combination loader and ployment which tangible change working in that loader on a reduced schedule for conditions however, shows, several record produces employment material disadvan- weeks. The cally only had offered him 2. The district court determined that stated that UPS allege employ- did riot part accepting UPS took adverse position, time and that against by forcing ment action him him into seniority eliminated his would have however, allege, did work. bidding rights and reduced his benefits that UPS’ his failure to accommodate disabili- allegations pension. are sufficient These ty affected the and conditions of his "terms Faidley’s theory encompass that UPS took employment.” complaint He attached against employment action an adverse him claim he had filed with the discrimination allowing full not him to work time. Commission, Rights specifi- Iowa Civil which perform. thought and his doctor he could him prohibited Faidley’s restrictions fit the restrictions positions Even Two which role of loader. Faidley that schedule, have been told he would were not available. UPS on a reduced positions half of the combination inform him if these be- it would unable job. available, was not loader UPS and there is no evidence pre came loader func the essential he re- they to reallocate available before required became See Minni posi- combined Faidley suggested tions of this tired. When Corp., 779 Commc’ns perform, han v. Mediacom thought tions he he could Because F.3d the essential promptly responded that he evidence provided not Faidley has those conflicted with functions of the essential performed have could This record shows his restrictions. job, has not available he any effort to assist made a faith his 2013 element of the second satisfied seeking in an accommodation. discrimination genu- present has failed to Since on his 2013 dis- of material fact ine issue that UPS argues also claim, summary judgment crimination him in the interactive engage failed to appropriate. by the process required is no se liabili Although “[t]here ADA. fails to employer ADA if an

ty under the C. an em process,” interactive in the engage the dis- Faidley finally claimed before in the interactive engage failure to ployer’s did not ac- court that in 2013 UPS trict stage summary judgment process at the in for his 2012 him retaliation commodate employer that the prima facie evidence “is complaint. He did Minnihan, 779 faith.” may acting bad be this claim meaningfully address that an at 813. To show however, brief, he and therefore opening pro in the interactive participate failed to Chrysler Ahlberg v. it. See has waived *6 cess, must show: employee Corp., (1) about the em- knew employer the (2) disability; employee the re- ployee’s III. accommodation or assistance quested re- we affirm with (3) For these reasons disability; employer the his or her 2013 dis- retaliation and the spect to the to assist good faith effort did not make claims, respect to reverse with accommodation; crimination seeking in employee the claim, and remand the 2012 discrimination could have been employee the consistent with proceedings further but for the reasonably accommodated opinion. good of faith. employer’s lack of & Blue Shield v. Blue Cross Cravens in KELLY, concurring Judge, Circuit City, 214 F.3d Kan. dissenting part. in part and necessarily is not en- employee The of his choice. to the accommodation titled parties the district court and Like Minnihan, at 813. involving a did, this case as I would treat claim-— single disability discrimination evidence to presented has not 2012 and 2013— spanning based on events make a faith failed to show disability dis- two discrete rather than as seeking him in an accommo- help effort to based on events crimination claims—one acknowledges that UPS met He dation. on events in and one based occurring positions that he with him and identified occurring Therefore, 2013. tions. Based on undisputed evidence, Faidley produced evidence that he was not qualified as a matter of qualified for the feeder driver position, perform I law to the essential functions of would reverse and remand the entire mat- the feeder driver for the same ter of the alleged disability discrimination reason that qualified he was not as a mat- to the district court. I otherwise concur in ter of law perform the essential func- all aspects of opinion. the court’s of I tions position: “That appreciate separate partial job required dissent’s the ability to work more than concern that employers pun- should not be per day, and the record is exceeding ished for requirements clear was limited to working ADA, but I think Blood’s Ante, belief that more than day.” job could at functions of 450. Vince Blood’s notation on the ac- a feeder driver is sufficient evidence that commodation worksheet that Faidley “pre- he was for that position liminarily appeared] sur- capable perform- summary judgment. vive ing the essential functions” does not question

create a fact on this issue. MONTGOMERY, Judge, District In completing the accommodation work- concurring in part and dissenting part. sheet, Blood was exploring positions that

I Faidley’s concur that 2013 discrimina- exceeded express medical re- law, tion claim fails as a matter of but I striction. This was more than required by respectfully disagree has the ADA because ADA “[t]he does not genuine raised a issue of material fact on require permit an employ- the “qualified” element of his 2012 disabili- perform job ee to function that the em- ty discrimination claim. ployee’s physician has forbidden.” Alexan- Inn, der v. Northland majority concludes that there ais 2003). Allowing Faidley’s claim to question fact as to whether proceed upon based Blood’s willingness to able to the essential consider beyond were Faid- To reach its ley’s physician’s effectively pun- restriction conclusion, majority cites the 2012 ac- ishes Blood for attempting to do more for commodation worksheet where Human Re- Faidley than demanded the ADA. Oth- Manager sources Vince Blood noted that er circuits against have cautioned such a Faidley “preliminarily appeared] capable Stores, result. See Sieberns v. Wal-Mart the essential functions” *7 Inc., 1997) However, position. of that undisputed it is (“Employers should not be discouraged that an essential function of the feeder doing from more than the ADA re- ability to work 9.5 Grainger, Inc., quires.”); Lucas v. W.W. per day. It is undisputed also that at 2001) 1257 n.3 the time the completed checklist was (“Good ought deeds punished, not be July Faidley’s physician perma- had goes who beyond the de- nently restricted him working from over mands of the law help a disabled em- solely This was ployee legal obligation incurs no to contin- restriction; time-based Faidley was not so.”). doing ue medically restricted physician Thus, reasons, strenuous activities. For these the district court was essential functions of the po- feeder driver correct to conclude as a matter of law that sition exceeded medical limita- unable to the essen- tial functions I affirm

Accordingly, would court.

of the district America, STATES

UNITED

Plaintiff-Appellee, WYATT,

Wesley Defendant- B.

Appellant.

No. 16-1729 Appeals, States Court

Eighth Circuit. 18, 2016 November

Submitted: April

Filed: