Rochelle Garrison v. Dolgencorp, LLC ( 2019 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-1066
___________________________
Rochelle Garrison
Plaintiff - Appellant
v.
Dolgencorp, LLC; Sandra Bell
Defendants - Appellees
------------------------------
Equal Employment Opportunity Commission
Amicus on Behalf of Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: February 13, 2019
Filed: October 3, 2019
____________
Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.
____________
STRAS, Circuit Judge.
After Dollar General denied Rochelle Garrison’s request for a leave of
absence, she quit and sued for disability discrimination and retaliation. We conclude
that her reasonable-accommodation claim under the Americans with Disabilities Act
can proceed, but that her others cannot.
I.
Garrison was a lead sales associate at a Dollar General store in Concordia,
Missouri. Her immediate supervisor was Sandra Bell, who, like Garrison, had a key
to open and close the store. The four “key holders” had to coordinate their schedules
so that at least one of them could be there when the store opened and closed each
day.
Garrison, who suffers from anxiety, migraines, and depression, wished to take
a leave of absence due to her worsening medical condition. At one point, following
a visit to her doctor, Garrison texted Bell and asked, “[h]ow can I request a leave of
absence[?],” to which Bell responded, “I’m not sure [but] I’ll talk to [the district
manager].”
One week later, Garrison followed up by texting Bell again. She also asked
about a rumor that she intended to quit, which Bell had allegedly spread among her
co-workers. Bell did not initially respond, but Garrison was persistent. When Bell
finally texted back, she had three messages for Garrison: “there [was] no [leave of
absence],” she could remain with Dollar General as long as she could “do the job
and not be sick all the time,” and she should “[r]ead the employee handbook.”
Garrison and Bell later met in person. During the meeting, Garrison made
clear that she was seeking a leave of absence due to anxiety and depression. Bell
reiterated that she did not believe that any form of leave was available and warned
Garrison that she could not remain a full-time employee or continue as a key holder
if she kept missing shifts.
-2-
The following week, Garrison missed a shift due to an emergency-room visit
for gastritis and anxiety. She requested vacation for the remainder of the week, but
Bell refused because two of the four key holders (including Bell herself) were
scheduled to be gone. Garrison then informed Bell that she was quitting because it
was the only way she could “get better.” Dollar General replaced Garrison with
someone Bell had hired about a week earlier, after the subject of leave had come up.
Garrison sued Bell and Dollar General in Missouri state court. She claimed
that they discriminated against her under both the Americans with Disabilities Act
(“ADA”) and the Missouri Human Rights Act (“MHRA”), interfered with her ability
to seek medical leave under the Family and Medical Leave Act (“FMLA”), and
retaliated against her for attempting to exercise her rights under each of these laws.
The defendants removed the case to federal district court, which dismissed
Garrison’s lawsuit in its entirety on summary judgment.
II.
“We review the district court’s decision to grant summary judgment de novo.”
Tonelli v. United States, 60 F.3d 492, 494 (8th Cir. 1995). “Summary judgment is
appropriate when the evidence, viewed in a light most favorable to the nonmoving
party, shows no genuine issue of material fact exists and the moving party is entitled
to judgment as a matter of law.” Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir.
2008) (citation omitted).
A.
We start with Garrison’s strongest claim: that she was entitled to an
accommodation under the ADA. We must assume—because neither of the
defendants disputes it on appeal—that Garrison has presented enough evidence to
establish a disability. What remains contested, however, is the availability of an
-3-
accommodation. See generally Peebles v. Potter, 354 F.3d 761, 766–67 (8th Cir.
2004) (discussing failure-to-accommodate claims).
To succeed on her claim, Garrison must establish that: (1) Dollar General
knew that she was disabled; (2) she requested an accommodation; (3) Dollar General
failed to engage in a “flexible” and “informal[] interactive process” with her about
possible accommodations; and (4) her disability could have been reasonably
accommodated had the interactive process taken place. See Fjellestad v. Pizza Hut
of Am., Inc., 188 F.3d 944, 951-52 (8th Cir. 1999) (citation omitted); see also
Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 906 (8th Cir. 2015). There
is evidence from which a reasonable jury could conclude that each of these
requirements has been met.
To start, considerable evidence suggests that Bell knew about Garrison’s
disability. Garrison discussed her health problems with Bell, including the
medications she was prescribed to treat them, and informed her whenever she needed
to be absent for doctor’s appointments. Indeed, Bell’s texts make it clear that she
understood that Garrison’s absences from work and her inquiries about leave were
due to her health.
The closer question is whether Garrison did enough to put Dollar General on
notice that she was seeking an accommodation. The test is whether she made Dollar
General “aware of the need for an accommodation.” EEOC v. Convergys Customer
Mgmt. Grp., Inc., 491 F.3d 790, 795 (8th Cir. 2007); see also Kowitz v. Trinity
Health, 839 F.3d 742, 746 (8th Cir. 2016).
Garrison repeatedly told Bell that she wanted to take a leave of absence, even
if she never referenced the ADA. See Brannon v. Luco Mop Co., 521 F.3d 843, 849
(8th Cir. 2008) (noting that “a medical leave of absence might, in some
circumstances, be a reasonable accommodation” under the ADA). By our count,
-4-
assuming Garrison’s evidence is true, she asked about leave no fewer than four
times.
To be sure, Garrison never used the word accommodation or asked about
anything other than leave. But our analysis “is not limited to the precise words
spoken by the employee at the time of the request,” and an employee need not even
suggest what accommodation might be appropriate to have an actionable claim.
Kowitz, 839 F.3d at 746, 748. Here, Bell knew that Garrison suffered from various
medical conditions, that those conditions had been worsening and had required
regular doctor visits, and that she had repeatedly inquired about a leave of absence
to deal with them. Under these circumstances, a reasonable jury could conclude that
Garrison requested an accommodation, even if she never used those “magic words,”
Kowitz, 839 F.3d at 748 (citation omitted), because she made Dollar General “aware
of the need for” one, Convergys Customer Mgmt. Grp., 491 F.3d at 795. See Kowitz,
839 F.3d at 748 (explaining that the ADA analysis “accounts for the employer’s
knowledge of the disability and the employee’s prior communications about the
disability”).
We reach a similar conclusion about the adequacy of Dollar General’s
engagement in what was supposed to be an “interactive process.” Fjellestad, 188
F.3d at 952. Once Garrison made the request, Dollar General had an obligation to
“take some initiative” and identify a reasonable accommodation. Id. at 953 (citation
omitted); see Kowitz, 839 F.3d at 746 (“[O]nce aware of [an employee’s] needs[,]
the employer is responsible for considering how best to accommodate them.”). All
Bell did, however, was direct Garrison to read the employee handbook, which was
not enough. See Cravens v. Blue Cross & Blue Shield of Kan. City, 214 F.3d 1011,
1021–22 (8th Cir. 2000) (holding that a company’s failure to provide active
assistance to an employee seeking an accommodation created “at least an issue of
fact” about whether it fulfilled its obligations).
-5-
A factual dispute also exists about whether Dollar General, if it had engaged
in the interactive process, could have reasonably accommodated Garrison’s
disability. See Fjellestad, 188 F.3d at 953 (noting that reasonable-accommodation
claims cannot “typically” be resolved in favor of the employer on this ground at
summary judgment if the employer failed to engage in the interactive process). After
all, Dollar General was only obligated to provide a reasonable accommodation, not
the particular one that Garrison requested. Faidley v. United Parcel Serv. of Am.,
Inc., 889 F.3d 933, 942–43 (8th Cir. 2018) (en banc); see also Fjellestad, 188 F.3d
at 953 (explaining that an employer cannot “sit back passively, offer nothing, and
then, in post-termination litigation, try to knock down every specific accommodation
as too burdensome” (citation omitted)). And here, Bell testified that she would have
“protect[ed]” Garrison’s job and made it work if Garrison had been entitled to FMLA
leave. See also 29 U.S.C. § 2612(a). So it stands to reason that Dollar General could
have found a way to make leave (or some other reasonable accommodation) work
under the ADA too had Bell considered it.
On this record, a reasonable jury could conclude that Dollar General was
aware of Garrison’s disability; that she requested an accommodation; and that Dollar
General, had it engaged in the interactive process, could have reasonably
accommodated her. There is, in other words, enough here to survive summary
judgment. 1
1
In contrast, to the extent that Garrison’s identically pleaded MHRA claim
relies on Dollar General’s alleged failure to provide a reasonable accommodation, it
cannot survive summary judgment. To bring a reasonable-accommodation claim
under the MHRA, Garrison must show that she suffered an “adverse employment
action,” Markham v. Wertin, 861 F.3d 748, 756 (8th Cir. 2017), which she has not
done, see infra Part II.B.
-6-
B.
The same is not true of Garrison’s other claims, beginning with those alleging
unlawful retaliation under the ADA, MHRA, and FMLA. For these claims, Garrison
would need to prove that Dollar General took an adverse employment action against
her that was causally connected to her leave request. See Stewart v. Indep. Sch. Dist.
No. 196, 481 F.3d 1034, 1042-43 (8th Cir. 2007) (discussing retaliation under the
ADA); see also Hasenwinkel v. Mosaic, 809 F.3d 427, 432-33 (8th Cir. 2015) (same
for the FMLA); Kader v. Bd. of Regents of Harris-Stowe State Univ., 565 S.W.3d
182, 189-90 (Mo. banc 2019) (same for the MHRA). The adverse employment
action must have been serious enough to “dissuade[] a reasonable worker,” not just
Garrison herself, from engaging in protected conduct. Stewart, 481 F.3d at 1046
(brackets in original) (quoting Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53,
68 (2006)).
Garrison relies on two actions, both allegedly by Bell: telling co-workers that
Garrison intended to quit and warning her that she could no longer be a key holder
or a full-time employee if she did not work her assigned shifts. Neither action,
however, amounted to retaliation.
The rumors cannot serve as the basis of a retaliation claim because they would
not dissuade a reasonable worker from pursuing his or her rights. Rather, they are
at the level of “petty slights [and] minor annoyances” that, though upsetting, are not
actionable. White, 548 U.S. at 68; see also Littleton v. Pilot Travel Ctrs., LLC, 568
F.3d 641, 644 (8th Cir. 2009) (noting that “retaliation cannot be trivial; it must
produce some injury or harm” (internal quotation marks and citation omitted));
Kader, 565 S.W.3d at 190 (“An action is not adverse simply because it is upsetting
or disappointing to an employee.”).
Nor did the potential loss of key-holder or full-time status rise to the level of
an adverse employment action. Even viewing the facts in the light most favorable
-7-
to Garrison, Bell only told her that her role would change if she did not qualify for
leave and continued to miss work. This was not a threat to demote her for attempting
to exercise her statutory rights. Rather, it provided notice that unexcused absences
from work would have consequences. See Hill v. Walker, 737 F.3d 1209, 1219 (8th
Cir. 2013); cf. Fercello v. Cty. of Ramsey, 612 F.3d 1069, 1080 (8th Cir. 2010)
(holding that a performance review prompted by negative reports and concerns about
an employee’s workload was not retaliatory).
To the extent Garrison alleges, in addition to her retaliation claim, that Dollar
General took an adverse employment action against her because of her disability,
this claim fares no better. The theory seems to be that she was constructively
discharged. 2 To succeed on a constructive-discharge theory, Garrison would have
to show that Dollar General created “working conditions [that were] so intolerable
that a reasonable person in [her] position would have felt compelled to resign.”
Green v. Brennan, 136 S. Ct. 1769, 1776 (2016) (citation omitted); see also Cosby
v. Steak N Shake, 804 F.3d 1242, 1246 (8th Cir. 2015) (applying the same
requirement to constructive-discharge claims under the MHRA).
Bell’s actions, even if insensitive, would not alone have left a reasonable
worker with no choice but to resign. Rather, assuming that Garrison is sincere in
her belief that she “ha[d] to quit . . . to get better,” the reason would have been her
worsening medical condition, not any intolerable working conditions that Dollar
General itself created. See Fenney v. Dakota, Minn. & E.R.R. Co., 327 F.3d 707,
717 (8th Cir. 2003) (explaining that employees are constructively discharged when
they have “no choice but to quit because of the employer’s actions” (emphasis
added)).
2
Garrison also suggests that she “was demoted,” but as we explain above,
Dollar General never actually demoted her. At most, Bell threatened to demote her
if she could not do her job.
-8-
C.
Garrison finally alleges that she was denied FMLA-mandated leave. Under
the FMLA, employees are generally entitled to take “up to twelve weeks of unpaid
leave to deal with a serious health condition.” Browning v. Liberty Mut. Ins. Co.,
178 F.3d 1043, 1049 (8th Cir. 1999). An employer has no obligation to provide
leave, however, unless employees provide notice that they “may be in need of” it.
Id. at 1049; see also Smith v. AS Am., Inc., 829 F.3d 616, 621 (8th Cir. 2016)
(describing the elements of an FMLA-interference claim). “[A]bsent unusual
circumstances,” an employee must generally follow an “employer’s usual and
customary notice and procedural requirements.” 29 C.F.R. § 825.302(d); accord id.
§ 825.303(c).
Here, by her own admission, Garrison did not do so. According to Dollar
General’s employee handbook, the initial step for an employee requesting leave is
to “notify his or her manager,” followed “immediately” by contacting Matrix
Absence Management, Dollar General’s third-party leave administrator, “to initiate
the leave approval process.” By failing to complete the second step, she lost any
right that she had to FMLA leave. See 29 C.F.R. § 825.302(d) (stating that failing
to follow an employer’s procedural requirements can result in FMLA leave being
“delayed or denied”); id. § 825.303(c) (same).
To be sure, Bell suggested that FMLA leave was unavailable. But those
statements, even if inaccurate, do not amount to “unusual circumstances” that would
excuse Garrison’s noncompliance with Dollar General’s procedures. After all, it is
undisputed that Bell told Garrison to read the employee handbook, which laid out
the steps for requesting leave, and had she done so, nothing would have prevented
her from contacting Matrix herself. Cf. 29 C.F.R. § 825.302(d) (giving as an
illustration of an “unusual circumstance” a situation in which “there is no one to
answer the call-in number” for making leave requests and the “voice mail box is
full”).
-9-
III.
We affirm the district court’s judgment in part, reverse in part, and remand for
further proceedings.
______________________________
-10-