Buboltz v. Residential Advantages, Inc.

523 F.3d 864, 20 Am. Disabilities Cas. (BNA) 801, 2008 U.S. App. LEXIS 8380, 2008 WL 1756468

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 18, 2008
• Docket: 07-2065
• Status: Published

Opinions

BEAM, Circuit Judge.

Monica Buboltz, who is legally blind, sued her former employer, Residential Advantages, Inc. (RAI), under state law, 42 U.S.C. § 12101 et seq. (the Americans with Disabilities Act or ADA), and 29 U.S.C. § 794 (section 504 of the Rehabilitation Act of 1973). RAI moved to dismiss Bu-boltz’ complaint. The district court¹ granted the motion as to Buboltz’ state law claims. RAI then moved for summary judgment on Buboltz’ federal claims, and the district court granted this motion. Bu-boltz now appeals only the district court’s grant of summary judgment on her federal claims. We affirm.

1. BACKGROUND

RAI, a corporation that provides residential services to disabled individuals who cannot live independently or without supervision, hired Buboltz in 1999, as a direct service provider (DSP). As a DSP, Buboltz was responsible for providing service and support to meet the needs of the residents in RAI’s homes.² Part and parcel of a DSPs responsibilities is providing transportation to the residents. When, however, RAI hired Buboltz, it knew that she was legally blind, and acknowledged, in writing, that the transportation requirement did not apply to Buboltz.

Buboltz worked at RAI for nearly five years without incident, other than minor problems, such as giving a disabled person his medicine three hours late. In 2005, however, officials at RAI became concerned with Buboltz’ job performance. Specifically, Laure Verdoes, RAI’s Lifestyle Specialist, whose job it was to assess the quality of RAI’s services, and apparently, its compliance with government regulations, observed Buboltz doing the following: touching the crotch of a resident to see if the resident had urinated on herself; holding documents upside down during an attempt to read them; taking a long time to read; and failing to realize the presence of Verdoes, who was in the same office. Verdoes reported her observations and attendant concerns, which ultimately made their way to Sharon Leppla, Buboltz’ supervisor.. Leppla, however, disclaimed these observations, and stated she had no worries with Buboltz.

Despite Leppla’s reassurances, approximately two months after Verdoes expressed her concerns, managers at RAI told Buboltz that she could no longer dispense medication or work alone with the residents. Upon learning of these restrictions, Buboltz requested a meeting to discuss RAI’s concerns. At the meeting, Leppla stated that RAI made the changes to Buboltz’ job because of concern that the licensing agencies may have a problem with her eyesight. Buboltz responded, “I have, like, numerous devices that I can use.” RAI also told Buboltz that she was responsible for informing her co-DSPs of her new job restrictions. As a result of the job restrictions, other DSPs expressed frustration with Buboltz, causing her to feel stressed and anxious about her job.

After RAI reduced Buboltz’ job requirements, it told Buboltz that she would have to work every other weekend, which she had never done since being hired in 1999. Buboltz was the only DSP who had not previously worked weekends. This change in scheduling initially increased Buboltz’ hours; however, RAI later reduced Bu-boltz’ hours when it stopped consistently scheduling her for weekday shifts.³ Also, after RAI reduced Buboltz’ job requirements, Leppla met with Buboltz and held a “performance discussion.” This was the first such discussion in Buboltz’ five-year history at RAI. The discussion resulted in a negative performance evaluation. Approximately one month after the performance discussion, Buboltz submitted a resignation letter, which became effective on August 1, 2005.

Four months after Buboltz’ resignation, on December 29, 2005, after Buboltz obtained a right-to-sue letter from the Equal Employment Opportunity Commission, she filed suit against RAI in federal district court alleging disparate treatment and failure to accommodate claims. As to Bu-boltz’ disparate treatment contentions, the district court concluded Buboltz failed to make out a prima facie case of discrimination because she failed to show she had suffered an adverse employment action. Anent Buboltz’ failure to accommodate argument, the district court ruled that RAI satisfied its duty to make reasonable accommodations. Buboltz challenges both rulings.

II. DISCUSSION

We review a district court’s grant of summary judgment de novo. Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 478 (8th Cir.2004). In doing so, we apply the same standard as the district court, viewing the evidence in the light most favorable to the nonmoving party and giving that party the benefit of all inferences that may reasonably be drawn. Id. A moving party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c).

A. Buboltz’ Disparate Treatment Claims

Buboltz asserts a disparate treatment claim under both the ADA and the Rehabilitation Act. Both the ADA and the Rehabilitation Act prohibit employers from discriminating against a disabled individual qualified for a job because of the disability of such individual. 42 U.S.C. § 12112(a); 29 U.S.C. § 794. Our cases interpreting these acts are interchangeable; accordingly, we apply the same analysis to both claims. Wojewski v. Rapid City Reg’l Hosp., Inc., 450 F.3d 338, 344 (8th Cir.2006). To establish a prima facie case of disability discrimination, a plaintiff must show: (1) that she was disabled, (2) that she was qualified to do the essential job function with or without reasonable accommodation, and (3) that she suffered an adverse action due to her disability. EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561, 568 (8th Cir.2007).

Here, only the third prong of Buboltz’ prima facie case — whether she suffered an adverse action — is at issue. Buboltz contends she did; RAI disagrees. Specifically, Buboltz argues that RAI took the following adverse actions against her: (1) it eliminated essential functions of her job, namely administering medicine and working alone with the residents; (2) it tripled her work hours; and (3) it constructively discharged her.

An adverse employment action is a tangible change in working conditions that produces a material employment disadvantage. Thomas v. Corwin, 483 F.3d 516, 528 (8th Cir.2007). Termination, cuts in pay or benefits, and changes that affect an employee’s future career prospects are significant enough to meet this standard, as are circumstances amounting to a constructive discharge. Higgins v. Gonzales, 481 F.3d 578, 584 (8th Cir.2007). Changes in intangible employment conditions may also constitute an adverse employment action. See Meyers v. Neb. Health & Human Servs., 324 F.3d 655, 660 (8th Cir.2003). Nevertheless, “not everything that makes an employee unhappy is an actionable adverse action.” Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir.1997) (internal quotations omitted) (discussing an unlawful retaliation claim in the context of Title VII). For example, a job reassignment involving no corresponding reduction in salary, benefits, or prestige is insufficient to establish an adverse employment action. Id. Additionally, minor changes in duties or working conditions, even unpalatable or unwelcome ones, which cause no materially significant disadvantage do not satisfy this prong. Higgins, 481 F.3d at 584; see also Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994) (holding job changes that amount to nothing more disruptive than a mere inconvenience or an alteration of job responsibilities are not adverse actions).

Buboltz’ first contention, that RAI’s decision to remove two of her essential functions constituted an adverse action, fails. RAI’s decision to remove Bu-boltz’ duty of administering medicine did not have a material disadvantage to Bu-boltz, as it comprised little of her time and did not likely hamper her future at RAI.⁴ RAI’s decision to require Buboltz not to work alone with residents was also not an adverse action. Although Buboltz argues this restriction prohibited her from providing direct care to the residents, she fails to show what direct care she was precluded from providing. Indeed, Buboltz admits that this restriction was superfluous when the home was triple staffed, which it almost always was. Moreover, an alteration of job responsibilities, like the elimination of the duty to dispense medications or work alone with residents, does not constitute an adverse action. Harlston, 37 F.3d at 382. In sum, Buboltz’ first contention fails.

Buboltz next argues that RAI’s requirement that she work every other weekend, when RAI had not required her to do so over the past five years, constituted an adverse action. DSPs, as an essential function of their job, are required to “work hours ... as required and scheduled.” All the other DSPs at RAI worked scheduled weekends. Although Buboltz had not worked a weekend in her approximately five years at RAI, RAI lost two DSPs in the spring of 2005, necessitating Buboltz’ (and all the other DSPs) weekend work. When RAI announced this change, Buboltz did not object on grounds that her disability precluded her from working weekends; rather, she only stated that this requirement did not apply to her. Buboltz, however, had no special contract with RAI waiving this essential function.⁵ What is more, Buboltz has yet to produce evidence that this policy change was linked to her blindness. In short, this policy change was not an adverse action, and even if it was, it is not “specifically linked” to discrimination, as RAI required all employees to work every other weekend. Chalfant v. Titan Distrib., Inc., 475 F.3d 982, 990-91 (8th Cir.2007) (holding that an adverse employment action is not sufficient alone, but there must also be a specific link between the adverse action and discrimination to prove that the discrimination motivated the action).

Buboltz also contends that RAI constructively discharged her, resulting in an adverse employment action. As stated above, a constructive discharge, just like any other discharge, is an adverse employment action. West v. Marion Merrell Dow, Inc., 54 F.3d 493, 497 (8th Cir.1995). A constructive discharge occurs “when an employer deliberately renders [an] employee’s working conditions intolerable,” forcing him to quit his job. Id. (internal quotations omitted). An objective standard applies to constructive discharge claims, ie., a constructive discharge takes place only when a reasonable person would find working conditions intolerable. Id. (holding “[a]n employee may not be unreasonably sensitive to [his] working conditions”). “Part of an employee’s obligation to be reasonable is an obligation not to assume the worst and not to jump to conclusions too fast.” Id. at 498.

In this case, Buboltz’ constructive discharge claim fails because she failed to produce any evidence (direct or circumstantial) that RAI acted to deliberately render Buboltz’ working conditions intolerable; rather, the evidence shows RAI acted in response to staffing changes and the work of a newly hired lifestyle specialist, whose job it was to assess the quality of RAI’s services. Moreover, a reasonable person would not find the removal of two job functions, with no corresponding decline in pay or benefits, intolerable. Accordingly, Buboltz’ claim fails.

B. Failure to Accommodate

Buboltz next argues that RAI failed to accommodate her disability. An employer’s failure to make a reasonable accommodation is a separate form of prohibited discrimination under both the ADA and the Rehabilitation Act. Peebles v. Potter, 354 F.3d 761, 765 (8th Cir.2004). If an employee fails to make a request for accommodation, then his employer has no duty to accommodate. Ballard v. Rubin, 284 F.3d 957, 960 (8th Cir.2002). If, however, an employee does request an accommodation, the employer must engage in an interactive process to determine whether reasonable accommodations are possible. Id. If such accommodations are possible, then the employer must reasonably accommodate that request, but need not provide the exact accommodation requested. Cravens v. Blue Cross & Blue Shield, 214 F.3d 1011, 1019 (8th Cir.2000).

To prove that an employer failed to participate in an interactive process regarding a reasonable accommodation, an employee must show the following: (1) that the employer knew she was disabled; (2) that she requested accommodations; (3) that the employer did not make a good faith effort to assist her in making accommodations; and (4) that the employer could have reasonably accommodated, but for its lack of good faith. Id. at 1021. When an employer fails to engage in an interactive process, that is prima facie evidence of bad faith. Ballard, 284 F.3d at 960.

Here, the parties dispute whether Buboltz’ statement, “I have, like, numerous devices that I can use” constituted a request for reasonable accommodations. When this statement is read in context,⁶ it is clear Buboltz did not request an accommodation, but instead argued she did not need an accommodation. Thus, RAI’s duty to accommodate never arose, and Buboltz’ claim fails. Nevertheless, even if we treated Buboltz’ statement as a request, her claim fails because RAI honored the request by restructuring Buboltz’ job so she no longer had to dispense medications or work alone with the residents. Dropinski v. Douglas County, Neb., 298 F.3d 704, 709-10 (8th Cir.2002) (holding job restructuring is an example of an available accommodation).

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s decision.

1 . The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota.

2 . RAI maintained a DSP job summary list that detailed seventeen essential functions of a DSP.

3 . Buboltz does not now argue on appeal that the later decrease in hours constituted an adverse employment action; therefore, we do not decide that issue.

4 . Although the parties dispute the actual time it lakes to dispense medications, their estimates vary, at most, by fifteen minutes. Thus, this dispute is immaterial and does not preclude summary judgment. What is more, given Buboltz’ suggested time of thirty minutes to dispense medication, she spent, on average, no more than five percent of her time performing this task.

5 . The careful reader will recall that Buboltz did have a written agreement regarding the transportation requirement. Although Bu-boltz produced evidence that there was an oral understanding that she would not be scheduled to work weekends, she produced no evidence suggesting RAI was precluded from ever requiring her to do so.

6 . In a meeting with Leppla and another RAI manager, Buboltz stated, "I have, like, numerous devices that I can use. When I, when I do my meds, I, I use my, you know, things on — actually, they are giving me a (inaudible) new piece of equipment.”