James Sharbono v. Northern States Power Company , 902 F.3d 891 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-4532
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James Sharbono,
lllllllllllllllllllllPlaintiff - Appellant,
v.
Northern States Power Company, doing business as Xcel Energy, Inc.,
lllllllllllllllllllllDefendant - Appellee.
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: February 13, 2018
Filed: September 6, 2018
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Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.*
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COLLOTON, Circuit Judge.
James Sharbono sued his former employer, Northern States Power Company,
alleging that Northern failed to accommodate his disability in violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the
*
This opinion is filed by Chief Judge Smith and Judge Colloton under Eighth
Circuit Rule 47E.
Minnesota Human Rights Act, Minn. Stat. § 363A.01 et seq. The district court1
granted summary judgment in favor of Northern and dismissed the complaint. We
affirm.
I.
We recite the facts in the light most favorable to Sharbono. Sharbono was
injured by an electric shock on a jobsite in 1991. He suffered damage to his left foot
that required the amputation of several toes and surgical reconstruction of the foot.
After rehabilitation, Sharbono returned to work as a journeyman lineman with several
different employers, although he carried a medical restriction that he not wear steel-
toed boots. Sharbono started working for Northern in 1993 and became a full-time
journeyman lineman with Northern in 1997.
Northern’s policy before 2008 required certain employees facing hazardous
work conditions to wear “safety-toe footwear” that met the requirements of American
National Standards Institute standard Z-41. Northern, however, allowed an exception
based on a “statement from the employee’s doctor stating he/she cannot wear safety
toe footwear.” Sharbono did not wear a steel-toed boot on his left foot while working
for Northern before 2008.
As of 2008, however, Northern’s policy no longer provided for exceptions.
The company’s personal protective equipment policy mandated that certain
employees, including Sharbono, wear safety footwear. The policy also required that
the footwear be marked with a stamp that showed compliance with an international
performance standard for safety footwear known as ASTM F2413.
1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
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Northern then required Sharbono to begin wearing steel-toed boots. Through
a disability consultant, Northern offered Sharbono several suggestions to help
mitigate the impact of the steel-toed boots. Sharbono also obtained modified boots,
but the boots were not certified as compliant with the ASTM standard, and Northern
did not allow him to wear them. Sharbono began to wear steel-toed boots that were
stamped as compliant, but started to experience discomfort in his left foot. Over the
next several years, Sharbono continued to experience pain from wearing the steel-
toed boots.
In 2011, Sharbono increasingly used his sick leave to cover absences from
work. In November of that year, Sharbono began taking leave intermittently under
the Family and Medical Leave Act. Sharbono requested accommodation from
Northern for his foot impairment in an April 2012 meeting with a supervisor.
Sharbono submitted an additional doctor’s note that said it was medically necessary
for Sharbono to cease wearing the steel-toed boots, but he received no response from
the supervisor.
In late June 2012, Sharbono’s union requested on his behalf that the company
waive the steel-toed boot requirement. In August, Northern denied Sharbono’s
request for accommodation. Northern followed up with a letter saying that the
company denied the request because it “cannot eliminate the potential foot hazards
that are present in the daily work of a lineman.” Northern explained that “granting
this waiver would be a violation of Company policy and a violation of OSHA
standard 1910.136.”
In October 2012, Northern offered to help Sharbono find another job at the
company during what the Northern called a ninety-day job search. In this same
meeting, Northern informed Sharbono that he was eligible under the collective
bargaining agreement for “disability retirement benefits,” including pay at roughly
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fifty percent of his base income and insurance benefits. Sharbono chose to retire and
receive the disability retirement benefits.
In November, company representatives discussed Sharbono’s request to retire
and receive the disability retirement benefits. Northern arranged a medical
appointment for Sharbono, and the evaluating doctor opined that Sharbono should be
able to obtain a compliant, modified boot from an orthotics company. When
Northern’s manager of disability solutions contacted the orthotics company, the
company first told Northern that it could acquire the desired boots. On further
inquiry, however, a manufacturer told the orthotics company that the boots could be
stamped with the “ASTM F2413-11 stamp” only if “someone from OSHA” observed
the boot-making process. The orthotics company then informed Northern that while
a custom boot could be manufactured, it could not be stamped with the ASTM stamp.
Northern then informed Sharbono that it was placing him in a retired status with
disability retirement benefits.
Sharbono sued, alleging several violations of the Americans with Disabilities
Act and the Minnesota Human Rights Act. The district court granted summary
judgment in favor of Northern on all claims. Sharbono appeals only his claims that
Northern failed to accommodate his disability as required by the federal and state
statutes. We review a district court’s grant of summary judgment de novo, viewing
the evidence and drawing all reasonable inferences in the light most favorable to
Sharbono. Mackey v. Johnson, 868 F.3d 726, 729 (8th Cir. 2017). Summary
judgment is appropriate if “the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
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II.
Sharbono alleges a claim under both the ADA and the Minnesota Human
Rights Act. Where a plaintiff is disabled under the ADA, we have applied the same
standards to disability claims under both statutes, see Kobus v. Coll. of St.
Scholastica, Inc., 608 F.3d 1034, 1038 (8th Cir. 2010), but a recent Minnesota Court
of Appeals decision held that the state statute places fewer duties on employers than
does the ADA. See McBee v. Team Indus., Inc., 906 N.W.2d 880, 887 (Minn. Ct.
App. 2018), petition for review granted, No. A17-0060 (Minn. Mar. 28, 2018).
Because we conclude that Northern satisfied all of the ADA’s requirements, we need
not decide whether claims under the ADA and the Minnesota Human Rights Act
concerning the interactive process should now be analyzed differently.
The ADA prohibits employers from discriminating against qualified
individuals on the basis of disability. 42 U.S.C. § 12112(a). Discrimination includes
“not making reasonable accommodations to the known physical or mental
limitations” of an employee, unless the employer can “demonstrate that the
accommodation would impose an undue hardship on the operation of the business.”
Id. § 12112(b)(5)(A).
“To determine whether an accommodation for the employee is necessary, and
if so, what that accommodation might be, it is necessary for the employer and
employee to engage in an ‘interactive process.’” Peyton v. Fred’s Stores of Ark., Inc.,
561 F.3d 900, 902 (8th Cir. 2009) (quoting Fjellestad v. Pizza Hut of Am., Inc., 188
F.3d 944, 951 (8th Cir. 1999)). To establish that an employer failed to participate in
the interactive process, an employee must demonstrate that the employer knew about
his disability, and that the employee requested an accommodation for his disability.
Id. There is no dispute here about those elements. The employee must then prove
that the employer “did not make a good faith effort to assist the employee in seeking
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accommodations.” Id. (quoting Fjellestad, 188 F.3d at 952). The district court ruled
that Sharbono failed to generate a material dispute on this element.
Sharbono raises three arguments why Northern did not make a good faith
effort. He first contends that Northern engaged in “inexcusable delay,” because the
company did not timely respond to a request for accommodation in October 2011.
Sharbono did not present sufficient evidence, however, that he made a request at that
time. He could not recall whether he asked for an accommodation in an October 2011
meeting with his supervisor, and the supervisor’s notes do not mention such a request.
The employer is not required to undertake the interactive process until the employee
makes a request for accommodation. EEOC v. Prod. Fabricators, Inc., 763 F.3d 963,
971 (8th Cir. 2014). The earliest request supported by the evidence occurred in April
2012. Northern responded within four months, and Sharbono was paid during the
interim while using sick leave. Under the circumstances, the timing of Northern’s
response is insufficient to support a finding that the company did not act in good
faith. See Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 737 (5th Cir. 1999).
Sharbono next argues that Northern prematurely abandoned the interactive
process. He complains that after the orthotics company notified Northern in February
2013 that it could not produce a boot that qualified for the ASTM stamp, Northern
failed to pursue more options to find a conforming boot. But once Northern was
informed by an expert in the industry that it could not produce a boot that met
Sharbono’s needs and qualified for the ASTM stamp, it was reasonable for the
company to discontinue its efforts. Northern tried in good faith to find a solution that
would permit Sharbono to work. The company ceased looking only when it was
informed that the objective of a stamped, compliant boot was not achievable. This
evidence does not support a finding that the company failed to make good faith
efforts.
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Sharbono contends finally that Northern erroneously claimed that federal
regulations require its employees to wear stamped boots, and that Northern’s reliance
on the regulation shows its lack of good faith. The regulation seems to permit
footwear if an “employer demonstrates” that the footwear “is at least as effective as
protective footwear that is constructed in accordance with one of” several enumerated
industry safety standards. 29 C.F.R. § 1910.136(b)(2). But Sharbono never disputed
the company’s interpretation of the regulation during the interactive process, and the
employer made good faith efforts to secure a boot that met the performance standards
for safety footwear and bore the ASTM stamp. Under the circumstances, that
Northern did not attempt to demonstrate that some other boot would be “as effective”
as a boot that conformed to the performance standards is insufficient to show a lack
of good faith in the interactive process.
We thus agree with the district court that Northern interacted in good faith as
a matter of law. Northern met twice with Sharbono in 2013 about his request for
accommodation and offered to help Sharbono with the process of applying for a
different job with the company. After Sharbono elected to retire with disability
retirement benefits, Northern still attempted to obtain a boot that would allow him to
work. For the reasons discussed, Sharbono’s arguments do not establish a genuine
dispute of material fact for trial. Sharbono complains that the district court failed to
construe the facts in the light most favorable to him as the non-movant, but the facts
that he identifies are not material to the legal dispute. The record supports the district
court’s conclusion.
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The judgment of the district court is affirmed. The motion to supplement the
record on appeal with evidence that was not presented to the district court is denied.
See Barry v. Barry, 78 F.3d 375, 379 (8th Cir. 1996).
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