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Rask v. Fresenius Medical Care North America: EMPLOYMENT - summary judgment on ADA claims; no duty to accommidate; not qualified; no FMLA notice

1The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
United States Court of Appeals
No. 06-3923
Elizabeth Rask, *
Appellant, **
Appeal from the United States
v. * District Court for the
* District of Minnesota.
Fresenius Medical Care *
North America, *
Appellee. *
Submitted: September 27, 2007
Filed: December 6, 2007
Before COLLOTON, ARNOLD, and GRUENDER, Circuit Judges.
ARNOLD, Circuit Judge.
After Elizabeth Rask was dismissed from her job, she sued her former
employer, Fresenius Medical Care North America, under the Americans with
Disabilities Act (ADA), see 42 U.S.C. 12101-12213, the Minnesota Human Rights
Act (MHRA), see Minn. Stat. 363A.01-363A.41, and the Family and Medical
Leave Act (FMLA), see 29 U.S.C. 2601-2654. The district court1 granted
summary judgment in favor of Fresenius, Rask v. Fresenius Med. Care North
America, No. 05-1267, 2006 WL 3060143 (D. Minn. Oct. 26, 2006), and Ms. Rask
appealed. We affirm.
Ms. Rask worked as a patient care technician at two of Fresenius's kidney
dialysis clinics in Minnesota. Following a series of disciplinary and attendance
problems, Fresenius terminated her employment when she failed to come to work on
28 May 2004. Ms. Rask had a long history of depression, and she filed an action
claiming that her depression was a disability and that termination of her employment
constituted discrimination under the ADA and the MHRA. She also claimed that
some of the days when she did not come to work were covered medical leave under
the FMLA.
The ADA prohibits employers from discriminating against a "qualified
individual with a disability," 42 U.S.C. 12112(a), whom it defines as "an individual
with a disability who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or desires,"
42 U.S.C. 12111(8). To make out a prima facie case of employment discrimination
under the ADA, a plaintiff must establish that she is disabled within its meaning, that
she is qualified to perform the essential functions of her job with or without
reasonable accommodation, and that she suffered an adverse employment action in
circumstances that give rise to an inference of unlawful discrimination based on
disability. Dropinski v. Douglas County, Neb., 298 F.3d 704, 706-07 (8th Cir. 2002).
Apart from one difference, which is not relevant here, an MHRA claim proceeds the
same way as does a claim under the ADA. Kammueller v. Loomis, Fargo & Co., 383
F.3d 779, 784 (8th Cir. 2004).
Although the parties hotly contested the question of whether Ms. Rask's
depression is a disability, we conclude that we need not resolve that matter because
Ms. Rask failed to show that she was qualified to perform the essential functions of
her job. We have "consistently held that regular and reliable attendance is a necessary
element of most jobs," and we see no reason to hold otherwise in the circumstances
of this case. See Pickens v. Soo Line R.R. Co., 264 F.3d 773, 777 (8th Cir. 2001)
(internal quotation marks and citations omitted), cert. denied, 535 U.S. 1057 (2002).
While there is evidence in the record that Fresenius had sufficient manpower to staff
its operations without Ms. Rask, Ms. Rask made no showing that Fresenius would be
able to do so on short notice at times when Fresenius expected her to be at work. We
note that Ms. Rask did not have the type of job that could be performed from another
site or put off until another time: she cared for seriously ill patients in need of
dialysis. Cf. Jackson v. Veterans Admin., 22 F.3d 277, 279 (11th Cir. 1994). After
having a history of unpredictable absences, Ms. Rask admitted that she was unable to
come to work on a regular and reliable basis when she told her supervisors, "I'm
having problems with my medication and I might miss a day here and there
because of it." As discussed below, the specific circumstances of her employment
demonstrate that this statement referred to Ms. Rask taking unexcused absences on
short notice. Ms. Rask therefore has failed to show that she was qualified to perform
the essential functions of her job without an accommodation.
Ms. Rask would nonetheless be qualified under the ADA if a reasonable
accommodation would allow her to perform the essential functions of her position.
We hold, however, that Fresenius had no duty to accommodate Ms. Rask because she
failed as a matter of law to provide sufficient notice of her need. The standard is clear:
Where, as here, "the disability, resulting limitations, and necessary reasonable
accommodations, are not open, obvious, and apparent to the employer, as is often the
case when mental disabilities are involved, the initial burden rests primarily upon the
employee ... to specifically identify the disability and resulting limitations, and to
suggest the reasonable accommodations." Wallin v. Minnesota Dep't of Corrections,
153 F.3d 681, 689 (8th Cir. 1998) (emphasis in original) (internal quotation marks and
citation omitted), cert. denied, 526 U.S. 1004 (1999).
A major point of dispute between the parties was whether Ms. Rask provided
Fresenius notice of the fact that she was depressed at all. Assuming that she did tell
her employer that she was diagnosed with depression, her claim still fails under the
criteria laid out in Wallin. The closest that Ms. Rask came to satisfying the Wallin
requirements was in a meeting with two of her supervisors: She attested that she "let
them know that I'm having problems with my medication and, you know, would you
stand by me, I might miss a day here and there because of it." Even if having
problems with medication were a specific identification of a disability, which we
doubt, and even if "I might miss a day here and there" were a suggestion of what a
reasonable accommodation might be, no reasonable person could find that Ms. Rask
"specifically identif[ied]" her "resulting limitations," id.
The point of requiring an employee to provide this kind of information is to
allow the employer to understand that the employee suffers from a disability. Without
this information the employer is unable to engage in the interactive process required
to determine what accommodations might be appropriate and available. See 29 C.F.R.
1630.9, App. Because Ms. Rask did not inform Fresenius of the specific limitations
that her depression gave rise to, Fresenius had no duty to find an accommodation for
We believe, moreover, that even if what Ms. Rask told her employer put it on
notice that she was disabled, she did not, in fact, suggest accommodations that were
"reasonable," Wallin, 153 F.3d at 689. Allowing her to be absent cannot as a matter
of law be a reasonable accommodation given the circumstances of Ms. Rask's
employment. It is undisputed that Ms. Rask was allowed to modify the number of
hours that she worked at will. There is also no dispute that at the time of the meeting
with her supervisors mentioned above she was working only two days a week. She
therefore already had a lot of time away from work and could take more if she needed
it. Talk of having to miss days in this context can refer only to sudden unanticipated
absences on the few days when Ms. Rask was actually scheduled to work. The duty
to accommodate "does not extend to the provision of adjustments or modifications that
are primarily for the personal benefit of the individual with a disability. Thus, if an
adjustment or modification is job-related, e.g., specifically assists the individual in
performing the duties of a particular job, it will be considered a type of reasonable
accommodation. On the other hand, if an adjustment or modification assists the
individual throughout his or her daily activities, on and off the job, it will be
considered a personal item that the employer is not required to provide." Id. The
ability to take sudden, unscheduled absences would not have assisted Ms. Rask in
performing the duties of her particular job; they would have been for her personal
benefit. Ms. Rask therefore failed to suggest a reasonable accommodation.
Ms. Rask was required to show that she could perform the essential functions
of her job either with or without a reasonable accommodation. After having had a
history of unexpected absences, she admitted that she could not come to work on a
regular and reliable basis, which was essential for her position. Ms. Rask also did not
give proper notice to Fresenius that she needed an accommodation; nor did she show
that being permitted to miss work on short notice was a "reasonable accommodation"
that would have allowed her to perform her job. Thus Ms. Rask failed to offer
sufficient evidence to support a finding that she was a "qualified individual,"
42 U.S.C. 12112(a), and the district court properly granted summary judgment to
Fresenius on her ADA and MHRA claims.
We turn now to Ms. Rask's FMLA claims. Under the act, an eligible employee
is entitled to up to twelve weeks of unpaid leave during a twelve-month period
"[b]ecause of a serious health condition that makes the employee unable to perform
the functions of the position of such employee." 29 U.S.C. 2612(1)(D). The FMLA
prohibits employers from discriminating against employees for using their FMLA
leave. See Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir. 2006).
Ms. Rask claims that Fresenius violated the FMLA by terminating her employment
based on absences for which she should have been given FMLA leave.
The district court found that Ms. Rask failed to provide Fresenius with
sufficient notice that she was taking FMLA leave. Rask, 2006 WL 3060143, at *16.
The statute does not specify what kind of notice employees are required to give of
their intent to take FMLA leave when the need for leave is unforeseeable. But the
relevant regulations provide some considerable guidance, and they are generous to
employees. Notice must be given "as soon as practicable," but "the employee need
not explicitly assert rights under the FMLA or even mention the FMLA" to require the
employer to determine whether leave would be covered by the FMLA. 29 C.F.R.
825.303(a),(b). Instead "the employer's duties are triggered when the employee
provides enough information to put the employer on notice that the employee may be
in need of FMLA leave." Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1049 (8th
Cir.1999), cert. denied, 528 U.S. 1050 (1999).
Because a serious health condition is a prerequisite for FMLA leave, an
employee must provide information to the employer "to suggest that his health
condition could be serious." See Woods v. DaimlerChrysler Corp., 409 F.3d 984,
990-91 (8th Cir. 2005). The employer must be made aware that the absence is due to
a serious illness so the employer can distinguish it from ordinary "sick-days," or even
malingering, as a type of unusual and privileged absence. See id. at 991. To hold
otherwise would create an unreasonable burden for employers, requiring them to
investigate virtually every absence to ensure that it does not qualify for FMLA leave.
Ms. Rask's absences fall into two groups, and by her own admission the FMLA
potentially covers only one of them. The first group of absences gave rise to a second
written disciplinary warning to Ms. Rask. Because she has admitted that as of that
time her supervisors were unaware that she had depression, she can claim no
protection for these absences. The second group of absences was noted on the final
written disciplinary notice that accompanied the termination of her employment. The
question thus reduces itself to whether the notice that Ms. Rask gave for the second
group of absences was sufficient for her absences to be privileged. If it was, then the
"but for" cause of Ms. Rask's dismissal might also have been privileged, creating a
genuine issue of material fact as to whether her FMLA rights were violated. We
conclude that Ms. Rask did not put Fresenius on notice that she had a serious health
Under the FMLA, the "term 'serious health condition' means an illness, injury,
impairment, or physical or mental condition that involves ... inpatient care ... or ...
continuing treatment by a health care provider," 29 U.S.C. 2611(11), and Ms. Rask's
claim is based on continuing treatment. The relevant regulations list several
categories of serious health conditions involving continuing treatment, but it appears
to us that only one could possibly apply to Ms. Rask, i.e., "[a]ny period of incapacity
or treatment for such incapacity due to a chronic health condition." See 29 C.F.R.
825.114(a)(2)(iii). A "chronic health condition" is one that requires periodic visits
to a health care provider, continues over an extended period of time, and may cause
"episodic rather than a continuing period of incapacity," 29 C.F.R.
825.114(a)(2)(iii), and "incapacity" according to another subsection of the
regulation means an "inability to work, attend school or perform other regular daily
activities due to the serious health condition, treatment therefor, or recovery
therefrom," 29 C.F.R. 825.114(a)(2)(i). We therefore conclude that any mental
illness or condition that continues over an extended period of time and requires
periodic doctor's visits because of, or to prevent, episodes during which the employee
cannot perform regular daily activities qualifies as a serious health condition.
As inclusive as this definition is, we believe nevertheless that it does not include
depression in all its forms. Depression, like many mental illnesses, is a condition with
many variations, and in common parlance the word is used to describe a wide variety
of symptoms, including simply "a state of feeling sad," Merriam-Webster Dictionary
(2007); cf. Ristrom v. Asbestos Workers Local 34, 370 F.3d 763, 769 (8th Cir. 2004).
There is no medical evidence in the record indicating that all forms of diagnosed
depression, even if left untreated, would result in incapacity. We therefore think that
Ms. Rask would need to apprise Fresenius of more than the mere fact that she had
been diagnosed with something called "depression" to put them on notice that she had
a serious health condition.
Ms. Rask draws our attention to Spangler v. Federal Home Loan Bank of Des
Moines, 278 F.3d 847, 852 (8th Cir. 2002), where we found that a genuine issue of
material fact existed as to whether a bank employee with depression put the bank on
notice that she needed FMLA leave by telling them that she would be absent for
"depression again." Id. at 852. We believe that Spangler can be distinguished from
this case.
In Spangler there was a "great deal of evidence of the Banks awareness of [Ms.
Spangler's] mental condition. She informed several supervisors of her illness
throughout the time that she was employed with the Bank." Id. In addition,
Ms. Spangler had taken two formal leaves of absence to obtain treatment for her
depression, and bank management had discussed, apparently among themselves, the
fact that Ms. Spangler was absent from work for treatment of depression. Id. at 848-
49. The bank was therefore aware that Ms. Spangler had a chronic condition that
required treatment to deal with incapacity: In short, they knew that she had a serious
health condition. When Ms. Spangler called on the day of her final absence and
informed the bank that she would be gone for "depression again," this put the bank on
notice that she required FMLA leave.
Ms. Rask argues that her case is like Spangler because she told her supervisor
on the day before her final absence that she would be absent for "help with my
medication still, I'm still having a lot of side effects from what they put me on." She
maintains that this statement should have the same effect that the Spangler court gave
to the employee's statement that she needed to be absent because she had "depression
again." Fresenius, however, did not have the contextual knowledge that the employer
in Spangler had that would link these statements with a serious health condition. The
closest equivalent in this case to the leaves of absence in Spangler was an incident
when Ms. Rask left work early because a new medication allegedly made her too
confused and anxious to continue working. Ms. Rask attested that at this point the
best informed of her supervisors, Patty Pederson, who allegedly knew that she was
"depressed," also "knew about my medication management." Ms. Rask attested that
on the day when she left work she "went and told Patty that I needed to leave, I'm not
feeling right, my medication, I'm having side effects from it or something." In
addition, at a disciplinary meeting after the incident Ms. Rask attested, in an apparent
effort to explain the incident, that she "let [her supervisors] know that I'm having
problems with my medication and I might miss a day here and there because of it."
We conclude that there is no evidence in the record that Ms. Rask at any point
gave her supervisors any details about her depression, its severity, or any incapacity
that it might give rise to, sufficient to indicate that it, as opposed to the side effects
from her medication, was serious. The side effects in this case are not covered by the
FMLA because there was no evidence that they were a "chronic health condition." 29
C.F.R. 825.144(a)(2)(iii). It is true that Ms. Rask attested that her other supervisor,
Christine Mitchell, responded to her explanations at the disciplinary meeting by
saying "Well, this is the first time I've heard about any depression or anything." But
even if Ms. Mitchell did say that, the statement would indicate only that Fresenius
knew that Ms. Rask was "depressed" with all the ambiguity that the word entails.
When Ms. Rask said that she would be absent for "help with my medication,"
Fresenius lacked any context to indicate that the side effects of Ms. Rask's
medications were not the cause of the absence. It also lacked any context to link this
absence with a serious health condition.
The evidence in this case simply cannot support a finding that Fresenius was
on notice that Ms. Rask needed FMLA leave. The regulations already make it very
easy for Ms. Rask to give notice of her intent to take leave. She is not required to
understand when she may take FMLA leave, or to state explicitly that she intends to
take FMLA leave, or, indeed, even to know that the FMLA exists. All she has to do
is apprise her employer of the specifics of her health condition in a way that makes it
reasonably plain that it is serious and tell her employer that this is why she will be
absent. Her employer would then have the duty to investigate whether she is entitled
to FMLA leave. Because Ms. Rask failed to do this, her claim must fail.


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