Kelvin D. Peebles, Appellant, v. John E. Potter, Postmaster General, United States Postal Service, Appellee.
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Filed: January 8, 2004
Submitted: September 11,
Before MORRIS SHEPPARD ARNOLD, BEAM, and BYE, Circuit Judges.
Pursuant to
BEAM, Circuit Judge,
Kelvin Peebles appeals from the district court‘s2 adverse grant of summary judgment on his claims arising under the
I. BACKGROUND
We recite the facts, as we must at this juncture, in the light most favorable to the non-moving party, Peebles. Coleman ex rel. Coleman v. Parkman, 349 F.3d 534, 536 (8th Cir. 2003). Peebles worked for the University City Branch of the United States Postal Service in St. Louis, Missouri,
For the next two months, Peebles renewed his requests for light-duty assignments and received no response. Peebles then filed a grievance with the union. The union agreed with the Postal Service, concluding Peebles’ could not be accommodated given his restrictions. It accordingly closed the case in January 1996.
In June 1997, Peebles obtained a different physician who diagnosed him with sacroiliitis and/or spinal enthesopathy. After rehabilitation, that physician gave Peebles a new set of less-restrictive work prohibitions.
In October 1997, armed with his revised work restrictions, Peebles met with Ferman Harris, who was then the supervisor in charge of the University City Branch. Harris told Peebles that under Postal Service regulations he could not be considered for a light-duty assignment until he provided documentation verifying that his physician-imposed restrictions had persisted during the time he had been absent from duty—June 1995 to October 1997. Peebles never complied with the Postal Service‘s substantiation rule.
In November 1997, Peebles contacted an EEO counselor to discuss his situation. In January 1998, Peebles filed a formal EEO complaint alleging disability discrimination based on the Postal Service‘s failure to accommodate his disability with a light-duty assignment in October 1997. Peebles filed this suit in May 1999 and exhausted all applicable administrative remedies.
In December 1999, the Postal Service terminated Peebles’ employment. It cited Postal Service regulations allowing for “separation” in the event an employee is in leave without pay status for more than one year and there is no cause to expect the employee‘s return.
Peebles filed his claim under the
The district court granted summary judgment to the Postal Service on both
Peebles claims the district court erred in requiring that he show compliance with, or the non-applicability of, the substantiation rule, because such a showing is beyond the prima-facie-case requirements for a reasonable accommodation claim. Peebles also asserts he produced sufficient evidence to avoid summary judgment on the retaliation claim.
Jurisdiction was proper in the lower court pursuant to
II. DISCUSSION
“‘We review a grant of summary judgment de novo, affirming the decision of the district court only if no genuine issue of material fact exists, entitling the moving party to judgment as a matter of law. In considering whether summary judgment was appropriate, we view all evidence in the light most favorable to the nonmoving party, drawing all justifiable inferences in his favor.‘” Ballard v. Rubin, 284 F.3d 957, 960 (8th Cir. 2002) (quoting Lowery v. Hazelwood Sch. Dist., 244 F.3d 654, 657 (8th Cir. 2001)) (citation omitted). We may affirm the judgment of the district court on any ground the record supports. Habib v. NationsBank, 279 F.3d 563, 566 (8th Cir. 2001).
A. Reasonable Accommodation
The
Unlike the Americans with Disabilities Act of 1990 (ADA), the definition of “discrimination” is not codified in the
Under the Act, the ADA, and the Postal Service and EEOC regulations, numerous kinds of discrimination emerge. Two means of discrimination are relevant to this case: disparate treatment (i.e., intentional discrimination) and the failure to make reasonable accommodations. Depending on which kind of discrimination is at issue, different burden-shifting analyses
In disparate treatment cases, a similarly situated disabled individual is treated differently because of his disability than less- or non-disabled individuals. The key element is discriminatory intent. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000). As such, the familiar three-step McDonnell Douglas approach is applied where no direct evidence of discrimination is available. Id. at 142-43; Norcross v. Sneed, 755 F.2d 113, 117 & n.5 (8th Cir. 1985) (holding McDonnell Douglas is applicable in disparate treatment cases under the
The Postal Service premises its arguments on a McDonnell Douglas approach. Specifically, the Postal Service claims Peebles has shown no circumstances creating an inference of intentional discrimination surrounding the adverse employment action he suffered in October 1997. Thus, it argues, no prima facie case was presented. Alternatively, the Postal Service claims no evidence of pretext was offered after it articulated a legitimate, non-discriminatory reason for the discharge—Peebles’ non-compliance with its substantiation rule.
Peebles, though, articulates his claim as one of a failure to accommodate in his complaint and throughout his brief. The failure to make reasonable accommodations in the employment of a disabled employee is a separate form of prohibited discrimination. Under the Act and its regulations, such discrimination occurs if “a covered entity [does] not . . . make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business.”
Reasonable accommodation claims are not evaluated under the McDonnell Douglas burden-shifting analysis. Rather, “a modified burden-shifting analysis” is applied. Fenney, 327 F.3d at 712 (collecting cases in which this analysis has been used); see also US Airways, Inc. v. Barnett, 535 U.S. 391, 401-06 (2002) (expressing approval for and utilizing a similar analysis). This is so because a claim against an employer for failing to reasonably accommodate a disabled employee does not turn on the employer‘s intent or actual motive. The McDonnell Douglas line of cases, however, is aimed at fleshing out this “‘elusive factual question of intentional discrimination.‘” St. Mary‘s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (quoting Texas Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981)); accord Reeves, 530 U.S. at 141 (stating that “[w]hen a plaintiff alleges disparate treatment, liability depends on whether the protected trait . . . actually motivated the employer‘s decision;” thus, McDonnell Douglas is utilized to alleviate the burden of dealing with this “sensitive and difficult” question that is seldom subject to direct evidence) (quotations omitted).
In a reasonable accommodation case, the “discrimination” is framed in terms of the failure to fulfill an affirmative duty—the failure to reasonably accommodate the disabled individual‘s limitations. The Act compels employers to modify their work requirements to enable disabled individuals to have the same opportunities as their non-disabled counterparts. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999);
therefore, the Postal Service‘s arguments as to the prima facie case and pretext are unavailing.
This does not mean Peebles’ claim survives summary judgment. A reasonable accommodation that imposes no undue burden on the employer must still be shown.6 In Barnett, the Court spoke of
In Barnett, the plaintiff had been assigned to a position within the company after he had become disabled. He was able to perform the duties of that position, but, when senior employees sought the position, he lost his job. Barnett claimed the employer should have made an exception to its seniority rule as a reasonable accommodation of his disability. Id. at 394-95. The district court granted the employer‘s motion for summary judgment, stating any exception would pose an undue burden on the operations of the employer. Id. at 395. An en banc panel of the Ninth Circuit disagreed and reversed, stating the presence of the system was only a factor to be considered in the undue burden analysis. Id. The Supreme Court disagreed with both lower courts and held, as stated above, that the plaintiff must first show reasonableness before the question of undue burden becomes relevant. The Court went on to find that, “in the run of cases” such an accommodation is not reasonable, but “[t]he plaintiff remains free to present evidence of special circumstances that make ‘reasonable’ . . . [an] exception [to such a rule] in the particular case. And such a showing will defeat the employer‘s demand for summary judgment.” Id. at 394.
Peebles’ case falls under Barnett. Because Peebles has not created a genuine question of fact as to the applicability of or his compliance with the substantiation rule,7 his request for an assignment to a light-duty position would require the Postal Service to make an exception to that rule. Recast in this light, the accommodation Peebles requested is within the same category as the accommodation at issue in Barnett—making an exception to an applicable work rule even though the disabled employee‘s non-compliance is not caused by the employee‘s disability. See id. at 412-13 (Scalia, J., dissenting).
We have serious doubts as to whether excusing such non-compliance would even be an accommodation under the Act. According to the Court in Barnett, the language of accommodation “conveys the need for effectiveness,” id. at 400, i.e., the “ability [of the accommodation] to meet an individual‘s disability-related needs.” Id. at 399. Here, while excusing Peebles’ non-compliance would, in a broad sense, enable the employee to go back to work, it does not enable the disabled employee to stand
In looking at the facts and outcome of Barnett, though, we are unable to conclude that excusing Peebles’ non-compliance would not be an accommodation. The seniority system at issue in Barnett was a barrier to reassignment and the disabled employee‘s failure to reach such seniority was not in any way related to his disability. Disregarding the seniority system apparently was held by the Court to constitute an accommodation there. As such, we follow the Court‘s lead and hold an accommodation would lie in pardoning Peebles’ non-compliance with the substantiation rule. See Giebeler v. M & B Assocs., 343 F.3d 1143, 1149-51 (9th Cir. 2003) (reaching similar conclusion under Fair Housing Amendments Act given Barnett).
Under Barnett, an exception to a rule that is not necessitated by the individual‘s disability is presumptively unreasonable. See Barnett, 535 U.S. at 402-03 (holding modification of seniority system would, ordinarily be unreasonable); accord Allen v. Interior Const. Servs., Ltd., 214 F.3d 978, 982 (8th Cir. 2000) (“[A]n accommodation is reasonable only if it is related to the accommodated individual‘s disability“); Amir, 184 F.3d at 1029 (holding accommodation that was unrelated to the plaintiff‘s disability was not a reasonable accommodation under the ADA).
After a careful review of the record, we conclude Peebles has not come forward with sufficient evidence to create a genuine issue of fact as to the reasonableness of the measure he, in effect, requested. In the words of Barnett, he has not met his “burden of showing special circumstances that make an exception . . . reasonable in the particular case.” 535 U.S. at 406. It was entirely within the Postal Service‘s power to require Peebles, who had been gone from work for approximately two years, to verify why he had been gone for so long. Peebles has offered no evidence that the rule has not been adhered to in the past or that the Postal Service‘s adherence to the rule in his case was otherwise unreasonable. As such, the Postal Service was not required to provide Peebles with a light-duty position.
B. The Interactive Process
Peebles also claims summary judgment was improvidently granted on his reasonable accommodation claim because the Postal Service failed to engage in the interactive process required by our case law. See, e.g., Ballard, 284 F.3d at 960. Our cases do not, however, impose liability merely for failing to fulfill this procedural aspect of the duty to reasonably accommodate. Because we have held, as a matter of law, that the accommodation Peebles requested was unreasonable, “any discussion concerning the interactive process
C. Retaliation
Peebles finally asserts the district court erred in granting summary judgment on his claim of retaliation based on his termination in December 1999. At that point, it had been four years since Peebles had last been to work, over two years since Peebles was initially denied a light-duty assignment, twenty-three months since Peebles filed his EEO Complaint, and seven months since this suit was filed. The removal letter stated that, under applicable Postal Service guidelines, employees on leave without pay status in excess of one year could be separated unless there was cause to expect the employee would return within a reasonable time after the one year. Stating there was no reason to expect Peebles’ return, the Postal Service ended the employment relationship.
Retaliatory intent is the centerpiece of retaliation claims and, thus, McDonnell Douglas is utilized to show this intent where no direct evidence exists. See Amir, 184 F.3d at 1025-26. Even assuming Peebles did establish a weak prima facie case of retaliation, he has offered no evidence of pretext in spite of a quite obvious non-retaliatory reason for the discharge. On these facts, we conclude summary judgment was appropriate. See Reeves, 530 U.S. at 148.
III. CONCLUSION
Accordingly, we affirm the judgment of the district court.
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 (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
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 F.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 plaintiff‘s prima facie case 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 prima 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 (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