Kathleen Mole v. Buckhorn Rubber Products, Inc.

having sexually cian accused of abused duct” and that the bearing was cases “have no on during patients coverage question medical examinations. the prior, several of whether inde clinic, patients physician, the pendent negligence sued the acts of are causative of carrier, liability Mork, general injuries.” and the clinic’s Fire- 575 N.W.2d at 601. partici- addition, man’s Fund Ins. Co. Fireman’s Fund the Court previ noted that it had Steele, pated agreements in of ously distinguished settlement with two in Redeemer Cove patients, the and then refused to defend fur- Brooklyn nant Church Park v. Church clinic, Co., (Minn. indemnify ther or to the clinic. The Mut. Ins. 567 N.W.2d against negligent hiring App.1997), which claims dependent specific pro as on the supervision respondeat superior case, and of were policies visions the involved in that made, remaining plaintiffs. “joint clause, settled with the including obligations” the which brought declaratory-judg- The clinic provided then by that each insured was bound the Mork, against ment action Fireman’s Fund to de- acts of others. 575 N.W.2d at 601. Mork, company’s responsibil- Further, termine the insurance case, policy in as in this the costs, ity indemnity, attorney clause, defense separability contained a and the fees, and interest. supported Court held that the clause the employer’s conclusion that the negligence granted summary judgment The trial court was a “causative occurrence.” Id. at 602. favor, in Appeals the clinic’s and the Court of policy being provid- affirmed. The construed III. injuries coverage bodily

ed for claims of “occurrence,” by” “caused which was de- reasons, foregoing For the persua- Mork is accident, including as “an fined continuous or Accordingly, that, sive. we hold under repeated exposure substantially harmful law, Minnesota the Diocese is entitled to appeal, the same harmful condition.” On indemnification policies. under the AEIC On argued injuries Fireman’s Fund that the sus- remand, may any AEIC assert other defens- by patients by tained the were caused the entitled, including es to which it believes it is abuse, which, physician’s intentional sexual it defenses related to the reasonableness of the said, was not a covered “accident” or “occur- agreement. settlement rejected by ap- rence.” That claim was Reversed and proceedings remanded for pellate court. The Court wrote that “the opinion. consistent with this injuries immediate cause of victims’ is not cause, It only is so ordered. legiti- and the victims had a against mate of action cause if establish, claimed,

they they could negligent in hiring, super-

[the clinic]

vision, or retention employee.” of their Mork, Although 575 N.W.2d at 600. - MOLE, Appellant, Kathleen Plaintiff underlying negligence merits of the claim (only question were not before the Court the claim by whether was covered PRODUCTS, BUCKHORN RUBBER policy), injuries insurance it noted “[t]he - INC., Appellee. Defendant would not have occurred if [the clinic] had employee not hired the and offered him as its No. 98-1500. agent provide professional medical ser- Appeals, United States Court of vices the victims.” Id. Eighth Circuit. distinguished The Court opinion our Steele, Sept. opinions as well as the Submitted 1998. other cases law, controlled Minnesota including Fill- Decided Feb. Faber, supra more and at 1211. The Court primarily found that those cases focused injuries

the “breadth of exclusions for ‘aris-

ing ‘resulting out of or from’ certain con- Brown, Roger MO, City, G. Jefferson ar- (Keith

gued Brunstrom, brief), W. on the appellant. Valerian, Cleveland, OH, Robert J. argued

(Steven Moss, brief), M. on the appellee. BEAM, LAY, LOKEN, BEFORE: Judges. Circuit LOKEN, Circuit J.

Kathleen Mole commenced this action al- leging that Products, Buckhorn Rubber Inc. (“Buckhorn”), violated the Americans with Act, Disabilities §§ U.S.C. (“ADA”), and the Missouri Rights Human Act, 213.055.1(1) (“MHRA”), Mo.Rev.Stat. when it persistent fired her for poor job performance despite knowledge of her dis- abilities, (“MS”) multiple sclerosis and severe depression. The district granted court1 summary judgment dismissing claims, these concluding Mole present failed to sufficient evidence to prima establish two elements of a facie case of disability discrimination or a pretext. triable issue appeals. We grant review the summary judgment de novo, viewing light record most Mole, non-moving favorable to party. See Mid-America, Inc., Aucutt v. Flags Six Over (8th Cir.1996). We af- firm. GUNN, JR., The Missouri, HONORABLE GEORGE F. great regret trict of who to our has United Judge States District completing for the Eastern Dis- died since his work on this case. past eighteen Kathy during ill as a has been hired Mole months, Hannibal, In and the extent which her illness

clerk/typist in Missouri. poor performance coor- has contributed to to customer service promoted she was easily gauged. timing Cus- of this re- with the Sales dinator and transferred Ohio, Kathy just where is such that returned Department view tomer Service perfor- promotion. from her illness. If her another work later received she improve significantly mance in the the Sales Customer should Buckhorn relocated ill- following months her return from this Department back to the Hannibal Service ness, gladly again I will review her in six facility, Mole to senior customer promoting to nine months. Mole received excellent service coordinator. pe- this

job performance throughout reviews prepared perfor- Johnston another written riod. 1993, rating in mance review December Mole “needing improvement” “mar- in six and as Develops Prob- Job Performance Mole ginal” categories, noting in four and that she super- became Mole’s lems. David Johnston problems to have with of moti- continued lack April in In her December 1991 visor vation, space, disorganized work and custom- Appraisal, Johnston written Performance Meyer relations. added a handwritten er “needing in four improvement” as rated Mole the end of this document: comment categories, criticizing performance her of ten next months will “Within the determine towards customers negative for a attitude Kathy will remain in her whether Customer failing provide leadership to and and position. performance Her must Service employees. to Mole rated direction fellow immediately.” substantially improve Mole’s good, considering performance as her own that she had written self-assessment stated short-staffed, but acknowl- the division was ability to of her and done the the best needed to “handle stress bet- edged that she commented, my having “I do feel M7S numerous ter.” met with Mole Johnston against me.” should be held 1992, company in sometimes in the times Meyer, Buckhorn’s industrial rela- February Ronald met Johnston with On manager, detailing to comment on her unsatisfac- tions a Mole and memorandum delivered 1992, tory performance. In late Johnston significant customer order five instances “key a memo in which he noted concluding: your sent Mole “In last and review errors months,” past in few criticized you mistakes to im- would have you were told instructions, job, and her failure to follow warned to I aspects all and date prove in improve in improvement. her that a failure to could result any such Con- have not noted disciplinary early action.” In to ter- “appropriate improvement will lead lack of tinued important Buckhorn transferred some mination.” from Mole to the other customer accounts Depression. Develops In MS and Mole coordinator, Angela Dill- customer service began experiencing difficul- April Mole Dillman testified she discovered man. vision, balance, a memory, and ty her with complaints after errors and heard customer Meyer early May, right leg. In weakened Buck- taking over some of Mole’s accounts. suffering from head- was learned that Mole receptionist that she received horn’s testified a her to He referred aches and dizziness. complaints who asked be from customers and, ap- specialist when an initial medical than Mole. transferred someone other a for further test- suggested need pointment placed paid sick leave for that ing, her on another In June Johnston authored diagnosed Irving Asher review, Dr. rating purpose. Mole as After performance written MS, placed having Buckhorn her categories, as improvement” in six Mole “needing weeks, she two, over two and paid leave for “marginal” “effective” in two. sick in and steroids and treated with change hospitalized in was that Mole resisted Johnston noted medication. June anti-depressant negative attitude with and department, a had again and examined Mole customers, stating Dr. Asher After made errors. and weeks at home for two suggested she rest being to customer Mole was demoted fatigue. sensitivity coordinator, heat alleviate her sendee the review concluded: granted request. July this Mole’s de- a 11 memorandum from Dr. August stating: pression fluctuated between and Oc- Asher tober, physical while her condition remained multiple Ms. I sclerosis. believe November, again until when she was stable inability adequately to function at work hospitalized. due Multiple has been to her illness. scle- lifelong rosis be a will illness for her and 15, Johnston met On December likely will considerably. fluctuate “glean her health and an under- discuss Buckhorn declined to reinstate her. standing condition.” of her Mole said she Mole commenced this action October feeling was fine and confirmed that her doc- 1995, alleging that Buckhorn violated the approved had tor return work. She ADA MHRA refusing and the to accom- through was nervous and cried much terminating modate her her. meeting, particularly handling when prohibits employers, The ADA covered such customers was criticized. Mole returned to Buckhorn, “discriminat[ing] from against work but suffered seizure on December 17 individual with a be- again hospitalized. physical Her disability.” cause 42 U.S.C. improved by early January condition had 12112(a). A qualified individual with a dis- exam, and March she had “normal” “who, ability is one with without reason- following Meyer Dr. which Asher called accommodation, perform able can the essen- “very supportive.” Buckhorn and him found employment position.” of tial functions Meyer “improved stated Mole had that over 12111(8). § Disability 42 U.S.C. discrimina- suggested the course of treatment” and her making tion is defined include “not reason- absence, if another leave of Dr. needed. physical able accommodations to the known suggest Asher did not Mole and did not or mental quali- limitations of otherwise request a leave of absence. disability.” fied 42 individual U.S.C. Mole Is Terminated. June On 12112(b)(5)(A). § Update. Johnston authored a Performance prima To establish a facie case of putting He stated that Mole “is forth her disability ADA, discrimination under very improve performance best effort to her question must that Mole show at the time in improvement inadequate.” [but] this After disabled, qualified perform she was outlining costly several customer order er- job the essential of functions her with or rors, Johnston recommended that Mole be accommodation, without reasonable and was 30, Mey- terminated. On June Johnston and terminated under circumstances that raise an er met with Mole and delivered a two-week disability inference of unlawful discrimina advised, notice termination. The notice Tool, Price v. tion. See S-B Power 75 F.3d your July 14, “The date of will termination be — 362, (8th Cir.), denied, 365 cert. U.S. 1994, day and employment the last of active -, 274, (1996). 117 S.Ct. 136 L.Ed.2d 197 30, today, will be June 1994.” That same analysis The same applies to claims under day, general manager Buckhorn’s sent Mole Trilolgy the MHRA. See Mathews v. Com explaining a letter “the different insurance Inc., munications, 1160, F.3d 1164 143 n. 5 plans you eligi- benefits and welfare could be (8th Cir.1998). you if go ble for would on need to total disability.” met Mole with Buckhorn officials district court concluded Mole July 14. She asked to be accommodated failed to establish and the second third breaks, days off, prima with rest prongs and addition of of her facie case.2 She was not a third customer service perform coordinator. She essential functions of MS, Airlines, Inc., appeal, parties 2. On debate Mole see v. whether from Frontier Moritz "disability” (8th Cir.1998); has "a defined the ADA and Valley Fin. Leffel denied, prima prong Servs., therefore satisfied the first (7th Cir.), of her cert. facie case. The district court concluded this was -, U.S. 118 S.Ct. 139 L.Ed.2d - fact, genuine issue of material and we need not (1997); Mgmt., and v. Multi-Care Kocsis consider it. For the resolution this issue in Inc., involving suffering ADA plaintiffs other cases case, job, explained, court “her the contention is without merit. It is her because undisputed key problems position responsibilities that the of a in the since 1991 were customer service coordinator were to take well-documented and affected the essential accurately, respond and enter orders and to job,” dispute functions of the she “does not inquiries complaints. to customer significance and Buck- the errors or the she made errors,” horn documented Mole’s order inaccuracies provide she “did not in a those poor customer relations over an timely extend- any suggested manner accommoda- period admitting ed of time. While these problems,” cured the tions would have deficiencies, argues they minor, were and some of the accommodations she re- citing testimony by co-workers and one cus- quested termination were unreasonable. after expressing positive opinions tomer about her give discharge Mole’s to an infer- did rise However, job performance. persons these discrimination, ence court had much more limited contact with Mole concluded, negative performance because Johnston, Meyer, and her work than began reviews Buckhorn knew she before Dillman. Mole bears the ultimate burden of had that Buckhorn MS her assertion issue, Benson, proof 'on this see 62 F.3d at fired her reduce the self-insured costs given and “consideration shall be to the speculation. future MS treatment was sheer employer’s judgment toas what functions of Alternatively, the court concluded even 12111(8). job are essential.” 42 U.S.C. if prima facie established a case agree We with the district court that Mole discrimination, Buckhorn offered failed to perform establish that she could termination, legitimate poor reason essential functions without accommoda- job performance, and Mole insuffi- tion. pretext. cient evidence of After careful re- view, agree with this assessment of the question That leaves the whether summary judgment record. presented Mole sufficient evidence that she would have a qualified been individual if Qualified Individual with Dis reasonably Buckhorn had accommodated her ability. “qualified beTo individual” enti disabilities. Mole concedes that Buckhorn protection, plaintiff ADA “a tled to must treatment, helped granted her seek medical performance work met [her] show that diagnosis her leaves for of absences and job employer’s legitimate expectations,” with depression, treatment of MS and allowed her or without reasonable accommodation. Wilk off time and breaks when she returned to 869, ing County Ramsey, v. 158 F.3d 873 work, and distributed some of her work to (8th Cir.1998) omitted). (quotation It is un employees. Dr. other Asher testified these disputed necessary experi that Mole had the em were reasonable accommodations for an training position ence and for the of custom ployee argues with MS. But Mole representative, performed er service and or should have known how to afford knew adequately position more than her further accommodations. However, many years. Buckhorn document performance begin ed serious deficiencies recognized, As the district court ning in 1991 and to meet re Mole’s failure problem prior with this contention is that peated improved performance demands for receiving a notice of termination Mole never from 1992 until she was terminated June advised Buckhorn she needed additional ac plaintiff may rely upon 1994. An ADA commodation, much what accommoda less past performance to establish that she is specific position workplace tion to her and qualified individual without accommodation general, responsi “In was needed. it is the employer produced undisputed when the bility of the individual with the evidence of diminished deteriorated abili employer inform the that an accommodation ties. Dept. v. needed.” Wallin Minnesota (8th Cir.1998) Corrections, 681, argues 153 Mole Buckhorn failed to define the F.3d 689 omitted); (quotation Hunt-Golliday v. position. essential functions of her Ben- see See Airlines, Inc., 1108, Metropolitan v. son Northwest 62 F.3d Water Reclamation Dist. of Cir.1995). (7th (8th 1004, Chicago, 1113 On the facts of this Greater 104 F.3d 1013 1218

Cir.1997); Principal record, Taylor Group, v. agree Fin. On this with the district (5th Inc., 155, Cir.), present cert. court that Mole failed to sufficient — denied, 586, -, 117 S.Ct. 136 U.S. legiti- evidence she could meet Buckhorn’s (1996). undisputed L.Ed.2d 515 It is job expectations mate with or without rea- May 1994 Buckhorn between 1993 June alleged sonable accommodation of her dis- aware accommodated Mole’s med- was of and Compare Wilking, abilities. problems. no Buck- ical There is evidence Accordingly, summary judgment appro- was good failed make a faith horn reasonable priate. help if effort Mole determine other accom- might be Beck v. Summary modations needed. See Other Grounds University Judgment. Regents, Wisconsin Bd. 75 satisfy To prong the third of her (7th 1130, argues case, F.3d 1135 Mole prima present facie Mole must suffi Buckhorn should have learned more about cient evidence the circumstances of her by consulting accommodating MS informa- discharge give rise to an inference unlaw pamphlets discussing tional condition addition, ful discrimination. undisputed with her doctors. But it is if even Mole proof sufficient of a pamphlets Buckhorn had the and discussed case, prima summary judgment facie to avoid Only condition with Dr. Asher. Mole she must demonstrate that legiti Buckhorn’s identify accurately could accom- need for discharge mate reason for her pretextu workplace. specific modations to her al, discriminatory that “a animus lies behind “expect employer cannot to read explanations.” Wilking, neutral [its] 153 secretly mind and know [her] [she] wanted a pretext, F.3d at 874. To show must particular and [then] accommodation sue the offer sufficient evidence for a tri reasonable providing Ferry for not it.” er fact infer intentional discrimination. Bank, F.Supp. Roosevelt 441 Hotels, Christopher See v. Adam’s Mark (E.D.Mo.1995) omitted). (quotation — Cir.), denied, cert. -, U.S. S.Ct. L.Ed.2d 49 argues request Mole also that she (1998). agree We with the district court that specific July ed accommodations evidentiary Mole failed to meet these bur the effective date of her termination —-more breaks, dens. fully staffing department, air instructions, conditioning, written and more undisputed poor It is that Mole’s to test time new medication. Given the tim job performance long evaluations started be meeting, of ing request the this awas for re fore Buckhorn knew she had and contin MS instatement, timely request not a for on-the- year ued more than a initial after the Moreover,

job accommodations. Mole could diagnosis. developed Mole conceded she no requested offer assurance the accommo performance problems these remedy many job dations would perfor performance evidence no that rose to an Indeed, accompa mance deficiencies. acceptable by level June 1994. Mole’s con requests nied these with a letter from Dr. the tention “that infractions were not serious warning that a lifelong Asher she has illness enough discharge to merely warrant a ... “will likely considerably.” Fi fluctuate questions judg the of soundness defendant’s nally, agree with the district court that ment, pretext and does not demonstrate requests of some the were not reasonable. Wilking, discrimination.” 153 employer 874 required An not to is hire addition omitted). (quotation Supporting employees al affidavits or redistribute essential func Moritz, employees fellow to from who did not deal with employees. tions other See 147 (8th systematic on a Thus, F.3d at basis are insufficient to 788 ADA the proof discharged not Buckhorn’s she require employer does an counter change “to the legitimate she not job” essential of the because did meet its ex nature order ac 791, pectations. Leffel, personality commodate See 113 F.3d at 795- the and emotional de noted, may Finally, ficiencies as result from and de the district court MS pression. Bank, v. Boelman Manson State Mole’s contention that Buckhorn fired her to (Iowa 1994). 522 73, escape treating N.W.2d high the medical costs of (5)(A) making accommoda- Thus, not reasonable record the unsupported. totally MS is physical or mental limi- tions the known her dis inference support an will qualified of an otherwise individual tations perceived dis upon her “based charge was or disability applicant a who is an with shortcomings upon actual ability rather than employer] can employee, unless dem- [the 795.3 113 F.3d at Leffel, in her work.” im- onstrate that the accommodation would reasons, judgment the foregoing For the pose operation of hardship an undue on the is AFFIRMED. the district court employer]; or the business [the (B) denying opportunities to employment LAY, Judge, dissenting. Circuit employee who applicant a or is trial court disagreement with the My basic qualified with dis- otherwise individual a Doug- of the McDonnell application is in the ability, if need such denial is based to the facts burden-shifting analysis las employer] to make ac- [the reasonable Corp. v. Douglas this ease. See McDonnell physical to the or mental im- commodation Green, 93 S.Ct. 411 U.S. pairments employee applicant. of the (1973). majority opinion, The L.Ed.2d 668 12112(b)(5)(A)-(B). § 42 U.S.C. referencing directly McDonnell without cases, here, single ques- In most ADA burden-shifting the same Douglas, applies inquiry: of the tion becomes focus wheth- given lip Although our cases have analysis. reasonably ac- employer er the should have Douglas method to McDonnell service employee’s did commodated the but cases, facts of this analysis in ADA under the cases, Douglas not.2 such McDonnell unnecessary inappropriate. it is case disparate analysis inappropriate. is treatment analysis designed Douglas is The McDonnell Community Wayne Bultemeyer See v. Fort The disparate treatment cases. govern (7th Cir.1996); Schs., 100 F.3d analysis is question by such ultimate served Airlines, Inc., v. Northwest see also Benson disparate treatment of the claimant that of (8th Cir.1995) (stating case, similarly situated. This with others showing plaintiff a facial that once the makes however, disparate not involve a treat- does possible, is that reasonable accommodation claim, ment but rather a reasonable accom- production em- shifts burden of analyzed that should be dif- modation claim ployer to that it is unable to accommo- show ferently.1 Sch. employee); date the Wood Omaha statutorily ADA is defined and driven. (stat- (8th Cir.1993) Dist., 437, 439 may against An not “discriminate” plain- Act a ing the Rehabilitation that under “a individual be- showing only tiff make facial need disability_” U.S.C. possible cause accommodation reasonable 12112(a). plaintiff Discrimination as defined finding met that burden that the accommodations); nothing disparate Ameson do with claimant’s proposing certain Cir.1989) Heckler, The term F.2d 396 treatment. ADA defines the “dis- v. 879 Act (reversing of Rehabilitation dismissal criminate” as follows: analysis apply. argues discharging per- would Matthews that her treatment 3. Mole also Cf. (7th Co., symptoms were of her 128 F.3d 1194 formance deficiencies that Edison Commonwealth motivation, errors, However, entry MS—lack of data made such claim is no dis- rudeness to customers—is as unlawful as here. charging disability. of We dis- her because that Firing job agree. employee an because of the question of there is a 2. The district court holds performance consequences of a such as plaintiff The is disabled. as to whether the fact MS, itself, rather than the is not action- totally ignores majority issue. This avoids the under the ADA. See Matthews v. Common- able plaintiff question no that There is the record. Co., wealth Edison 1198 multiple has manifest- sclerosis and suffers from (7th Cir.1997); Steel, Inc., v. WCI Mararri There symptoms that dreaded disease. ed the of (6th Cir.1997). F.3d physicians have certified her is no refutation that motivation, depression, loss of that she suffered making 1. a claimant a If under the ADA were concentration, dysfunction, cognitive treatment, of lack disparate employ- of an claim such as disabling in- among symptoms which are greater other placing er a burden on disabled workers employees, disparate a in that disease. than other then such herent “only question plaintiff the re- should claim tion be a for the trier of because fact. quired provide Wood, evidence to make 439-440; sufficient F.2d See at see also showing a facial that ‘at reasonable Heckler, least Arneson v. Cir. ” possible’ is the bur- accommodation before 1989) (J. Beam).6 disputes Material factual employer prove it den to the is shifts concerning remain whether Buckhorn can (citation accommodation) make the unable to reasonably accommodate The Mole. record is omitted).3 Thus, it should be clear the replete with additional accommodations Mole Douglas proof method of is irrel- McDonnell contends Buckhorn could have made. The question in this case.4 There is no evant Multiple Society’s National Sclerosis infor according physicians to Mole’s that she suf- materials, mation which Buckhorn admittedly symptoms MS and affect- fers from possessed, list several accommodations which performance.5 job ed her The relevant in- employee could be made to assist an with quiry then becomes whether Buckhorn could possible Dr. Asher also MS.7 listed several reasonably or should have accommodated deposition testimony.8 accommodations his Mole’s illness. However, record, present the the the district court and

Under reasonable now the majority emphasize extent of Buckhorn’s ness of the accommoda cannot over- analyz- charged legitimate 3. Act are Rehabilitation cases relevant in because she did its not meet least, however, ing specifically expectations.” very ADA“because the ADA man- At this is provisions interpreted be a dates that its in man- issue that a trier of fact decide. should prevents imposition ner that conflicting of inconsistent requirements standards the same Ameson, Judge possible 6. In Beam noted a ac- Act [the ADA] under the Rehabilitation of employee commodation ato disabled was to fur- Benson, 1973." 1112 n. 2. Yet, nish "a clerical assistant” or transfer. Judge requests Loken found Mole's to have majority’s dominant concern with bur- previous three-person return its den-shifting analysis probably resulted from the staffing department of the customer service to be plaintiff's assertion that Buckhorn termi- unreasonable. pretextual Notwithstanding, kind. nation was by party's not be misled a irrele- court should Multiple Society's 7. The Sclerosis brochure of- legal argument principles vant of incorrect in- following accommodations, suggested fered the any pretextual- volved in case. Here issue of “[rjeasonable noting that accommodations can ity simply plaintiff nonissue because did was a schedules, duties, changes include in work disparate upon not rest claim basis of workplace environment and attitudes:” argues treatment. The mere fact that she it only Energy saving: period: working counsel rest demonstrates application confused the flexible traffic, (to etc.); burden-shifting analysis parking hours rush avoid hour entrance; Douglas space McDonnell to a case of close to office location discrimination close so, however, room; system doing ADA. allowing under the the court rest communication wrong path analysis by walking. use walks instead of down find- intercom ing proof pretextuality conditioning, good no factual Environmental control: air within again, lighting. pre- record. Once it should be clear that doors, textuality brought Accessibility: ramps, adaptable cannot be in a an issue case wide arrangements, statutory grab work under the ADAwhere the station bars in basis dis- bath- relates rooms. crimination to the defendant's failure to provide trading reasonable Job accommodation. It should nonessential duties modifications: pretextuali- be obvious whether the claim of for other tasks which do not conflict func- ty factually is is tional limitations. controverted immaterial. This question totally Technological adaptations may subsumed in the determina- and devices: may employer provided pro- tion of whether the reason- have some cost attached but also be person's able accommodation vided outside sources. to the needs under ADA. necessary 8. Dr. Asher that testified accommoda- 5. change Mole claims that even without accommodation tions would from time to time due to the disease, carry satisfactory (1) she following: was able to on her at a but would include the supports permitting level. Mole her claim with affidavits of absence leaves for medical treat- (2) follow-up; allowing from co-workers and customers who with and rest dealt ment during breaks (3) satisfactory. Judge regain day energy; limiting her and her found Lo- the to work work; (4) rejects by observing: "Support- permitting ken Mole's claim hours of use of the medi- cation; ing (5) employees providing did affidavits from fellow not an who air-conditioned work- (6) place; giving systematic deal Mole on a insuffi- and basis are written instructions to proof memory cient dis- deficits the to counter Buckhorn’s she was overcome caused disease. finding summary cept majority’s the that re- Mole’s motion the defendant’s come late, quests too the came record shows to make re- she failed judgment because knew P ickhorn accommodation alternatives timely a man- in quests for accommodations prior to its termination of were available logically or defense does ner. Such a Buckhorn was in direct contact with Mole. the rec- factually upon a fair review of exist prior physicians July to 1994. Mole’s that Mole made re- shows ord. record multiple knew Mole suffered from Buckhorn during meeting quests for accommodation sclerosis, possessed Buckhorn and informa- 14, 1994, date of July the effective held on specified possible ac- tional brochures that requested Mole rest her termination. as, in “changes work commodations such off, breaks, to days for her doctors some time duties, schedules, job workplace environment prescriptions and dos- proper determine the attitude(s).” suggest and To illness,9 fully staffing and ages manage to her Buckhorn was not alerted the need for department. also service She the customer ignores his- reasonable accommodations the from Dr. Ash- note to Buckhorn submitted a had torical facts. Buckhorn conversations stating causing her was her work er MS regarding with Mole before her termination Unfortunately, this problems. court feels accommodations, had and Buckhorn in fact late because she made requests her came too provided some to her. accommodations terminated. The record them after she was However, argues, Buckhorn “runs Mole however, reveals, made her re- that Mole away its from own lawful duties under physician’s letter quests and submitted 1630.2(o)(3)11 § to initiate ‘interac- C.F.R. day termination was very same that her affirmatively process’ tive and find out what Considering the human con- to take effect.10 work.” will here, accept it is involved difficult cerns on, prior opinion’s myopic view of the This court occasions stated majority only summary judgment should be used few tardiness should not record. “A hours’ employment rare discrimina instances cutting off interactive be the reason Inc., Cos., Fleming Davis tion cases. See v. rights un- process cutting person’s off (8th 1369, 1371 Cir.1995); v. Oldham Bultemeyer, ADA.” 100 F.3d at 1286. der the West, (8th Cir.1995); Craw lengthy or delay was not inexcusable. Mole’s Runyon, July on requested accommodation After ford certainly applies This admonition 14, 1994, physician's let- Today ADA. we arising cases under the ter, its Buckhorn could have reconsidered lip simply give service to our earlier admoni and could have decision terminate Mole reading of the fair record and tion. A Dr. Asher in discus- then included Mole and proper of the standards application correct regarding reasonable accommodations. sions require a different result. Instead, Buckhorn’s officials refused See id. provide any further accommodation. assuming cannot Even credit Mole’s

testimony requested that she accommodation

(albeit judgment), summary if we ac- on July will be 1994.” [Mole’s] termination Approximately 9. a month before Mole termi- medication, nated, employed by Arguably, prescribed Mole was still a new doctors Betaseron, July day 1994. doctors until end to treat her illness. Mole’s it take time to deter- testified that would some therapeutic mine the effect the Betaseron would 1630.2(o)(3) reads: 11.29 C.F.R. symptoms. indicates have on Mole’s The record ac- appropriate reasonable To determine the during representatives that Mole told Buckhorn may necessary cov- for the commodation it be July meeting would take that it informal, entity interactive ered to initiate an appropriate time for her doctors to establish the process individual with with the prescriptions dosages to treat her illness. This in need of the accommodation. precise identify process limitations day employ- should Although last of active Mole’s potential resulting rea- from the June the date on which ment overcome could sonable accommodations gave a two-week notice of termi- Buckhorn nation, limitations. expressly "the date those the notice stated that

Case Details

Case Name: Kathleen Mole v. Buckhorn Rubber Products, Inc.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Feb 1, 1999

Citation: 165 F.3d 1212

Docket Number: 98-1500

Court Abbreviation: 8th Cir.