Mac A. Kammueller v. Loomis, Fargo & Co.Mac A. Kammueller v. Loomis, Fargo & Co.
Plaintiff-Appellant, Mac Kammueller, appeals from a Motion for Summary Judgment granted in favor of Defendant-Appellee, Loomis, Fargo & Co. (“Loomis“), on his reasonable accomodation and disability discrimination claims under the Minnesota Human Rights Act (“MHRA“).1 Kammueller, who worked for Loomis for thirty-one years until his discharge in 2002, has polycystic kidney disease (“PKD“). Kammueller‘s PKD caused renal failure in 1995 and forced him to submit
I. Facts
Kammueller was born with PKD. It is a permanent physical impairment, which, since his kidneys failed in 1995, requires dialysis three afternoons per week for three-and-a-half hours. He necessarily spends additional recovery time in the hospital following treatment as well as time to travel to and from the hospital prior to and following treatment. His dialysis schedule is determined by the availability of the machine and is inflexible. The rigorous treatment prevents him from working during and following dialysis. The treatment renders him exhausted and unable to return immediately to work after it is completed. After dialysis he goes to sleep. Kammueller has a shunt in his right arm which, in combination with his kidney disorder, prevents him from lifting over forty pounds. He requires at least thirteen different medications and is unable to miss a dialysis appointment, at risk of death. He may consume limited kinds of food and beverages and only twelve ounces of liquids per day.
Loomis is a company that maintains a fleet of armored trucks that regularly services banks and financial institutions. Prior to 2000, Loomis employed “driver/guards” to drive armored trucks and serve as guards. Loomis also employed “custodians” to ride in the back of the armored trucks with the cargo and take and retrieve cargo from customers. The record is unclear regarding the extent to which Loomis maintained a strict division of labor between the custodians and the driver/guards. In 2000, however, Loomis formally consolidated the functions of these two positions and began to refer to the one resultant position as an Armored Service
Kammueller began work for Loomis in 1968 as a driver/guard. He also held a supervisory position from 1970-1973. The record does not reflect the extent to which Kammueller did or did not perform the full spectrum of duties as a driver/guard and/or custodian prior to 1986. He left Loomis from 1986 until 1988 in an attempt to earn more money as an over-the-road driver. In 1988, he resumed employment with Loomis as a driver/guard. Between 1988 and 1995, except on one isolated occasion, Kammueller did not perform any lifting duties; he only drove. Kammueller does not allege that medical limitations prior to 1995 prevented him from performing the full range of driver/guard and/or custodian duties, nor does he allege that his limited duties were due to an accomodation.
Beginning in 1995, after Kammueller‘s kidneys failed and after he started on dialysis, his job description changed to match his limited duties – driving only. With his altered job description, from 1995 to 2001, Loomis did not require Kammueller to lift over forty pounds. In addition, the local general manager in Minnesota, Tim Maurer, assigned Kammueller to the three o‘clock until eleven o‘clock a.m. shift to accommodate the dialysis schedule. This altered schedule was also a benefit to Loomis because the early morning shift was unpopular and difficult to fill. Further, the early morning shift was in place at the request of a customer, MTC, not merely as an accommodation for Kammueller. Kammueller performed his job satisfactorily for at least the six years from 1995 to 2001.
In September 2001, Loomis lost the business of an important client, Wells Fargo. Wells Fargo accounted for a significant portion of Loomis‘s business. The loss required a substantial reduction in force. The staff reduction affected fifty
The record has conflicting testimony as to whether there was adequate driving and vault work to occupy Kammueller‘s time in his modified position. There is no clear indication of what then led to Loomis‘s subsequent decision to revisit the issue of an accommodation for Kammueller and enforce the lifting requirement against Kammueller. However, the local managers apparently renewed discussions with corporate managers in Texas regarding their inability to conceive of a solution to the application of the lifting requirement to Kammueller. Human resources managers at the corporate level in Texas authorized the elimination of Kammueller‘s modified position and gave permission for his termination. In a termination letter to Kammueller, Hedlund cited Kammueller‘s inability to meet the minimum lifting requirement as the reason for termination. In this litigation, but not in the termination letter, Loomis also cites scheduling inflexibility as an additional ground for termination.
II. Standard of Review
We review the grant of the motion for summary judgment de novo and we view the facts in a light most favorable to the non-moving party. Equal Employment Opportunity Comm‘n v. Liberal R-II Sch. Dist., 314 F.3d 920, 922 (8th Cir. 2002). We affirm only if there is a genuine issue of material fact or if no material factual dispute exists and the moving party is entitled to judgment as a matter of law. Mayer v. Nextel W. Corp., 318 F.3d 803, 806 (8th Cir. 2003);
III. Discussion
Kammueller raised claims under the MHRA for failure to accommodate and disability discrimination. Kammueller may use direct or circumstantial evidence to prove his claims. Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn. 2001). Using circumstantial evidence to establish his prima facie case, which is a requirement under both claims, Kammueller must present evidence sufficient to permit a reasonable jury to conclude that he was (1) disabled within the meaning of the MHRA, (2) qualified to perform the essential functions of the job with or without reasonable accommodation, and (3) suffered an adverse employment action because of his disability. Liljedahl v. Ryder Student Transp. Services, Inc., 341 F.3d 836, 841 (8th Cir. 2003). Under the failure to accommodate claim, Kammueller must also show that his employer knew of, and failed to reasonably accommodate, his disability.
A. Failure to Accommodate
i. Disabled Under MHRA
The MHRA provides, in relevant part, that an individual is disabled if he or she has a “physical, sensory, or mental impairment which materially limits one or more major life activities.”
The ability to care for oneself is a major life activity under the MHRA. Ordahl v. Forward Tech. Indus., Inc., 301 F. Supp. 2d 1022, 1027-28 (D. Minn. 2004). A person is substantially limited if he has a long term or permanent “impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people‘s daily lives.” Fenney, 327 F.3d at 714 (quoting Toyota 534 U.S. at 198).2 In Fenney, the plaintiff lost a thumb and half of his middle finger on his dominant hand and irreparably damaged his right arm. According to his physician, because of this impairment,
Mr. Fenney requires more time during the winter to do changes [sic] in regards to his clothing. The lack of his right thumb makes it difficult for him to do certain types of grasping motions which would delay him in terms of being able to change his clothes in cold weather.
Id. at 715-16. Fenney requires “twice as long as an average person to perform his ‘taking care of himself’ tasks - bathing, shaving, preparing a meal, dressing, and going to the restroom,” and needs an extra thirty minutes to arrive to work. Id. at 716. The Eighth Circuit held that Fenney‘s extra thirty minutes to prepare himself for work in the morning could create a genuine issue of material fact as to whether he was substantially limited in caring for himself. Id.
Here, Kammueller‘s kidney failure demands that he spend ten and a half hours per week in dialysis and four to five additional hours in the hospital and travel time to and from the hospital. He goes straight to sleep following dialysis and is not able to work during that time. In addition, he is prescribed over thirteen different medications and has severe dietary and fluid intake restrictions. Together, these restrictions render Kammueller incapable of doing activities of central importance to a person‘s life, such as cleansing one‘s own blood cells. There is no factual dispute as to the existence of Kammueller‘s limitations. Kammueller demonstrates greater restrictions than those present in Fenney, an ADA case under the more stringent “substantially limits” standard. The severity of Kammueller‘s restrictions viewed
Further, although not binding, ADA and Rehabilitation Act rulings on this issue from other courts suggest that PKD is, in fact, disabling. The Second Circuit stated, “We are inclined to view persons whose kidneys would cease to function without mechanical assistance or whose kidneys do not function sufficiently to rid their bodies of waste matter without regular dialysis, as being substantially limited in their ability to care for themselves.” Gilbert v. Frank, 949 F.2d 637, 641 (2d Cir. 1991). The Southern District of New York found it “inconceivable that persons who suffer from chronic conditions involving organ failure, like . . . kidney failure, are not ‘substantially limited’ in certain major life activities, simply because they can lead relatively normal lives by . . . hooking themselves up to dialysis machines.” Saks v. Franklin Covey Co., 117 F. Supp. 2d 318, 325 (S.D.N.Y. 2000). Similarly, in the District of Massachusetts, end stage renal failure from PKD requiring dialysis three times per week, “clearly qualif[ies] as [a] disabilit[y].” McDonald v. Menino, No. 96-10825, 1997 WL 106955, *1-2 (D. Mass. 1997). Because the MHRA uses a more lenient “materially limits” standard than the ADA‘s and Rehabilitation Act‘s “substantially limits” standard, we find as a matter of law that Minnesota‘s courts would adopt the position of the courts cited above. Accordingly, we find as a matter of law that end stage renal failure due to PKD is disabling.
Finally, if PKD were not in and of itself disabling, the severity of treatment, such as the dialysis in this case, renders the condition disabling under the MHRA. The Seventh Circuit held,
[I]f a medical condition that is not itself disabling nevertheless requires, in the prudent judgment of the medical profession, treatment that is disabling, then the individual has a disability within the meaning of the Act, even though the disability is, as it were, at one remove [sic] from
the condition. We cannot find a case on the question, but the answer seems obvious--maybe that‘s why there are no cases.
Christian v. St. Anthony Med. Ctr., Inc., 117 F.3d 1051, 1052 (7th Cir. 1997); see also Gordon v. E.L. Hamm & Assoc., Inc., 100 F.3d 907, 912 (11th Cir. 1996) (noting that chemotherapy treatment for a cancer not itself shown to be disabling could be disabling within the meaning of the ADA). We think it is clear that the nature and severity of Kammueller‘s PKD therapy also renders him disabled under the MHRA.
Loomis does not dispute the facts of Kammueller‘s physical impairment or treatments. Loomis disputes only the conclusions to be drawn from Kammueller‘s impairment and treatments. Under the first element of the prima facie case, the showing of disability, we find as a matter of law that Kammueller satisfied this first element of his prima facie case.
ii. Essential Functions with Reasonable Accommodation
To make a prima facie showing that he is qualified for the job, Kammueller must demonstrate that he meets the essential prerequisites for the job, such as basic education, experience and training, and that he can perform the essential functions of the job with or without a reasonable accommodation. Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1016 (8th Cir. 2000). If he requires an accommodation, he must make a facial showing that an accommodation is possible, and, with it, he can perform the essential functions of the job. Burchett v. Target Corp., 340 F.3d 510, 517 (8th Cir. 2003). Essential functions of the job are “fundamental job duties,” and the employer‘s judgment in this regard is considered “highly probative.” Alexander v. The Northland Inn, 321 F.3d 723, 727 (8th Cir. 2003). Evidence to consider in this determination may include: “(1) the employer‘s judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the
Eighth Circuit cases generally give deference to the employer‘s judgment of essential job functions, especially when staffing is problematic. See Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 787 (8th Cir. 1998) (stating that limited staffing and budget for staffing should be considered in evaluating the consequences of not requiring the incumbent to perform the job functions and citing EEOC regulations to the same effect). The employer‘s judgment, however, although highly probative, is merely evidence and is not conclusive. Rather, we also emphasize the results upon the employer‘s business of eliminating that job function; “the consequence of not requiring [plaintiff] to perform these functions demonstrates that they are, indeed, essential.” Dropinski v Douglas Cty., 298 F.3d 704, 709 (8th Cir. 2002) (summary judgment is appropriate if plaintiff cannot perform “many” of the eighteen written job requirements and can lift less than half of the minimum lifting requirement).
In the present case, viewing the facts in the light most favorable to the non-moving party, there is a material question of fact as to whether the consequences of allowing Mr. Kammueller to continue his morning shift in the vault and lift less than forty pounds are severe enough to consider this duty “essential.” Prior to the restructuring, the consequences of the lifting limitation were not problematic. In fact, Loomis actually benefitted from his willingness to work the night shift, which was notoriously difficult to fill. Following the restructuring, Loomis capably accommodated Kammueller‘s lifting restriction and dialysis schedule. What exactly happened following the restructuring that caused local managers in Minnesota to revisit the issue of accommodation and renew discussions with corporate managers in Texas is unclear. The provision, and subsequent elimination, of Kammueller‘s accommodation after the reduction in force, at a minimum, creates a jury question as to whether the consequences of excusing Kammueller from certain job functions were
Further, even assuming that lifting fifty pounds is an essential function of the job, the jury must still decide whether there is a reasonable accommodation available that would enable Kammueller to perform the job. Burchett, 340 F.3d at 517. Reasonable accommodations under the MHRA may include, “(a) making facilities readily accessible to and usable by disabled persons; and (b) job restructuring, modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices and the provision of aides on a temporary or periodic basis.”
In its defense, Loomis contends that accommodating Kammueller would be unduly burdensome. Loomis “is under no obligation to reallocate the essential functions of a position that a qualified individual must perform.” Moritz, 147 F.3d at 788. However, the statute plainly states that modification of hours and job restructuring may be reasonable accommodations.
iii. Adverse Employment Action
Kammueller must show that he suffered an adverse employment action because of his disability. Liljedahl, 341 F.3d at 841. “An adverse employment action is one that causes a material change in the terms or conditions of employment.” Brown v. Lester E. Cox Med. Ctrs., 286 F.3d 1040, 1045 (8th Cir. 2002). Here, it is clear that Kammueller suffered an adverse employment action; he was fired despite his seniority. Under Fenney, it is not necessary to apply the McDonnell Douglas framework to the prima facie case for a reasonable accommodation claim. Id. at 712. Rather, the plaintiff “at all times retains the burden of persuading the trier of fact that he has been the victim of illegal discrimination due to his disability.” Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995) (citations omitted). Here, Kammueller satisfied his burden adequately to survive a motion for summary judgment.
In a disability discrimination claim, unlike a reasonable accommodation claim, we apply the McDonnell Douglas burden-shifting framework.3 Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn. 2001). After the plaintiff establishes a prima facie case, the employer must then “rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for the adverse employment action.” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1134-35 (8th Cir. 1999) (en banc). The plaintiff must then demonstrate that the non-discriminatory reason is actually pretextual. Id.
Loomis offered a legitimate reason for the adverse action: that restructuring, due to the loss of a major client, required the elimination of employees other than those with flexible schedules who could meet all minimum lifting requirements. Kammueller, however, created a material question of fact as to whether that explanation is pretextual. First, he presented evidence of discriminatory comments and derogatory statements about his disability. Also, there is evidence that Kammueller‘s shift was not dependent on the business of Wells Fargo, i.e., Loomis instituted the night shift at the request of a customer other than Wells Fargo. Finally, Kammueller‘s retention for a period of months following the restructuring establishes a question of fact as to whether Loomis‘s articulated reason was pretext. Kammueller‘s showing is sufficient to survive summary judgment.
Accordingly, the judgment of the district court is reversed.