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Brannon v. Luco Mop Company: EMPLOYMENT - no prima facie showing qualified under Americans with Disabilities Act

1The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
United States Court of Appeals
No. 07-1434
Jeanette Brannon, *
Appellant, **
Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Luco Mop Company, *
Appellee. *
Submitted: November 16, 2007
Filed: April 3, 2008
Before MELLOY, BRIGHT, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Jeannette Brannon appeals the district court’s1 denial of her motion to strike and
its grant of Luco Mop Company’s motion for summary judgment in Brannon’s
discrimination action brought under the Americans with Disabilities Act (ADA), 42
U.S.C. § 12101 et seq. For the reasons explained below, we affirm.
2Shalhoub contends that he never received the April 12 “Return to Work Form.”
From June 2000 until Brannon’s termination on April 26, 2005, Luco Mop
employed Brannon as a packer in its St. Louis production facility. In this position,
Brannon was responsible for packing mop heads into boxes and then stacking those
boxes onto pallets. While employed at Luco Mop, Brannon suffered from Type II
diabetes and neuropathy. Because of her diabetes, she had a partial toe and foot
removal in 2002 and a middle toe removal in 2004. Luco Mop accommodated
Brannon following these surgeries by allowing Brannon to store medication in the
office, permitting a healthcare professional to come into the facility to insert an
intravenous line into Brannon’s arm, and providing updated equipment that would
allow Brannon to work faster and without as much lifting.
On March 8, 2005, Brannon suffered an injury from a splinter in her toe. She
informed Luco Mop of the injury and stated she would return to work when released
by her podiatrist. The following day, Brannon underwent surgery on her toe because
the splinter had caused an infection. Her boyfriend and co-worker, Patrick Bone,
verbally informed Luco Mop of Brannon’s condition. On March 16, Bone handdelivered
to Luco Mop president John Shalhoub a “Return to Work Form,” indicating
Brannon would be expected to return to work on April 18, 2005. Subsequently, Bone
delivered two additional “Return to Work Forms” on April 12 and April 26,2
providing expected return-to-work dates of April 26 and May 23, respectively.
After consulting with his attorney, Shalhoub sent Brannon a letter on April 26,
2005, advising her that she was being terminated immediately because of “extended
absence[s]” and “deficient” work quality, that caused strain on Luco Mop’s “ability
to meet [its] production requirements.” This lawsuit followed. In this action, Brannon
claims that Luco Mop terminated her because of her disability and “failed to
reasonably accommodate [her] with respect to her disability.”
Following discovery, Luco Mop moved for summary judgment, arguing that:
(1) Brannon failed to establish that she was disabled within the meaning of the ADA
because she neglected to show that her diabetes substantially limited a major life
activity; (2) Brannon was not a “qualified individual” under the ADA because she
could not show that she was able to perform the essential functions of her job, that is,
regular and reliable attendance, with or without a reasonable accommodation; and (3)
Brannon failed to show that Luco Mop’s decision to terminate her employment was
linked to the alleged discriminatory animus.
In response, Brannon sought to strike Luco Mop’s Statement of Uncontroverted
Material Facts because the citations to the record contained therein listed only pages
and not specific lines on the pages as required by local rule. Brannon also sought to
strike Shalhoub’s affidavit, which was filed in support of the motion for summary
judgment, on the basis that the affidavit violated Federal Rule of Civil Procedure 56.
In opposing Luco Mop’s summary judgment motion, Brannon stated that: (1) her
diabetes and diabetic neuropathy were physical impairments which substantially
limited her major life activities of walking, standing, sleeping, and eating; (2) she was
qualified to perform the essential functions of her job with the reasonable
accommodations of being permitted to sit when experiencing balance problems and
being allowed short leaves of absence to receive surgical treatment for foot problems;
and (3) Luco Mop’s stated reasons for termination–poor production and excessive
absences–were pretextual.
The district court denied Brannon’s motion to strike, holding that Luco Mop’s
Statement of Uncontroverted Material Facts did not violate Rule 4.01(E) of the Local
Rules of the United States District Court for the Eastern District of Missouri and that
Federal Rule of Civil Procedure 12(f) does not permit the striking of affidavits. In
granting Luco Mop’s motion for summary judgment, the district court first decided
that there was a material question of fact concerning whether Brannon was limited in
the major life activity of walking and that there was sufficient evidence for a jury to
find that Brannon was disabled under the ADA. However, even if Brannon was
disabled under the ADA, she was unable to show that she would be able to perform
the essential functions of her job with her asserted reasonable accommodations. The
court noted the position of a packer had to be performed from a standing position, and
thus it would not be reasonable to permit Brannon to sit for short periods of time.
Also, because Brannon had missed 40 of the 77 work days preceding her termination,
the court found that Brannon had failed to show that any reasonable accommodation
would have allowed her to perform the essential function of attendance at work.
Finally, the court noted that even if Brannon had demonstrated that a reasonable
accommodation would have permitted her to perform the essential functions of her
job, Shalhoub’s testimony that Brannon was terminated because of poor performance
and excessive absenteeism, rather than her disability, was undisputed.
On appeal, Brannon first contends that the district court erred in failing to strike
Luco Mop’s Statement of Uncontroverted Material Facts and Shalhoub’s affidavit
filed in support of Luco Mop’s motion for summary judgment. Second, she claims
the district court erred by not using the modified burden-shifting analysis as her claim
was based on reasonable accommodation and not disparate treatment, and that under
the modified burden-shifting analysis, the district court should have denied Luco
Mop’s motion for summary judgment.
First we address Brannon’s claim that the district court abused its discretion in
refusing to (1) strike Luco Mop’s Statement of Uncontroverted Material Facts for
failure to comply with local rules and the Federal Rules of Civil Procedure, and (2)
either strike or ignore John Shalhoub’s affidavit because it was filed in bad faith and
did not comply with the Federal Rules of Civil Procedure. See Davis v. U.S. Bancorp,
383 F.3d 761, 765 (8th Cir. 2004) (abuse of discretion standard of review). Luco
Mop’s Statement of Uncontroverted Material Facts cited to specific pages of the
deposition testimony it relied upon, but not to specific lines of the pages. Brannon
claims that this violates Local Rule 4.01(E) (providing that a statement of
uncontroverted material facts must be attached to a summary judgment motion and
that each numbered fact must “indicate[] whether each fact is established by the
record, and, if so, the appropriate citations” to the record). Brannon states that she
was subjected to “an undue burden and hardship . . . to sift through ‘appropriate
citations’” because Luco Mop’s Statement of Uncontroverted Material Facts included
98 citations to deposition testimony. Considering that the predominant reason for a
citation rule such as this one is “to prevent a district court from engaging in the
proverbial search for a needle in the haystack,” and the district court did not indicate
that it was burdened by the form of the citations provided by Luco Mop, see
Northwest Bank & Trust Co. v. First Ill. Nat’l Bank, 354 F.3d 721, 725 (8th Cir.
2003) (noting that “concision and specificity required by [local rule] seek to aid the
district court in passing upon a motion for summary judgment”), we do not find that
the district court abused its discretion in denying Brannon’s motion to strike the
statement. We agree with the district court that nothing in the rule required Luco
Mop’s citations to be line-specific, and we decline to reverse based on local rule over
which the district court retains considerable discretion. See Drake v. Scott, 812 F.2d
395, 401 (8th Cir. 1987) (“It is normally for the district court to enforce compliance
with its local rules.”).
Brannon also argues that the district court should have struck John Shalhoub’s
affidavit because it violated Federal Rule of Civil Procedure 56(e) (affidavit must be
made on personal knowledge, provide facts that would be admissible in evidence, and
show that the affiant is competent to testify on matters stated) and 56(g) (if district
court determines that an affidavit is submitted in bad faith or solely for delay, then the
court must order the submitting party to pay reasonable expenses incurred by the other
party as a result). Specifically, Brannon claims that the affidavit contradicted
Shalhoub’s earlier deposition testimony and was not based on admissible evidence
because Shalhoub stated, in the affidavit, his “beliefs” as to why terminating Brannon
was the proper decision. The purported inconsistencies, which appear to clarify and
not contradict, are not determinative of the decision on Luco Mop’s motion for
summary judgment, and thus are not genuine issues of material fact. See, e.g., Herring
v. Canada Life Assur. Co., 207 F.3d 1026, 1030-31 (8th Cir. 2000) (stating that a
party may not create a “sham” issue of fact by submitting an affidavit that contradicts
earlier deposition testimony, however, district court need not be concerned with
contradiction if it does not relate to a genuine issue and no reasonable jury could
return a verdict in the non-moving party’s favor). Further, Shalhoub certainly
possessed “personal knowledge” of his reasons for terminating Brannon. See Aucutt
v. Six Flags Over Mid-Am., Inc., 85 F.3d 1311, 1317 (8th Cir. 1996) (district court
properly considered affidavit from supervisor “because it was based on [the
supervisor’s] personal knowledge of the reasons underlying the challenged
employment decision”). Thus, we find that the district court did not abuse its
discretion in denying Brannon’s motion to strike the affidavit.
We review a district court’s grant of summary judgment de novo, see Canady
v. Wal-Mart Stores, Inc., 440 F.3d 1031, 1034 (8th Cir. 2006), and we affirm the
district court’s grant if the evidence, viewed in the light most favorable to the nonmovant,
does not show a genuine issue of material fact and the movant is entitled to
judgment as a matter of law, see Samuels v. Kansas City Mo. Sch. Dist., 437 F.3d 797,
801 (8th Cir. 2006).
Brannon contends on appeal that the district court erred because it applied the
burden-shifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973), instead of the modified burden-shifting analysis that is applicable when the
ADA claim is that an employer failed to make a reasonable accommodation. Fenney
v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 712 (8th Cir. 2003). Having carefully
reviewed the district court’s order, it is clear that the district court recognized that the
modified burden-shifting analysis is the appropriate approach to claims of reasonable
accommodation and that the district court would have applied that analysis if Brannon
had met her prima facie burden.
Under the modified burden-shifting approach, the employee “must first make
a facial showing that he has an ADA disability and that he has suffered [an] adverse
employment action. Then he must make a facial showing that he is a ‘qualified
individual.’” Id. “To be a ‘qualified individual’ within the meaning of the ADA, an
employee must ‘(1) possess the requisite skill, education, experience, and training for
his position, and (2) be able to perform the essential job functions, with or without
reasonable accommodation.’” Id. (quoting Heaser v. Toro Co., 247 F.3d 826, 830 (8th
Cir. 2001)); see also Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d
894, 900 (8th Cir. 2006). In cases where the employee claims that he is able to
perform the essential functions of the job with a reasonable accommodation, the
employee “must only make a ‘facial showing that a reasonable accommodation is
possible.’” Fenney, 327 F.3d at 712 (quoting Benson v. Northwest Airlines, Inc., 62
F.3d 1108, 1112 (8th Cir. 1995)). When the employee has made that facial showing,
“[t]he burden then shifts to the employer to show that it is unable to accommodate the
employee.” Id. (quoting Benson, 62 F.3d at 1112); see also Fjellestad v. Pizza Hut of
Am., Inc., 188 F.3d 944, 951 (8th Cir. 1999) (“After [the employee] made this facial
showing that reasonable accommodation was possible, the district court should then
have shifted the burden to [the employer] to prove that it was unable to accommodate
[the employee] through [the proposed accommodation].”).
Brannon’s claim fails because she does not make a prima facie showing that she
was a qualified individual under the ADA. Specifically, she fails to show that her
request for additional medical leave was a reasonable accommodation that would
permit her to perform the essential function of regular work attendance. Brannon does
not challenge the fact that she was absent from work 40 of the 77 work days preceding
her termination on April 26, 2005. On that day, she submitted a “Return to Work
Form” stating that she would not be able to return to work until three weeks later.
This was Brannon’s third “Return to Work Form” submitted since March 8 when she
suffered her injury, and each form further postponed her return-to-work date.
We have previously held that regular attendance at work is an essential function
of employment. See Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1048 (8th Cir.
1999) (“[I]t is axiomatic that in order for [an employee] to show that she could
perform the essential functions of her job, she must show that she is at least able to
show up for work.”). While allowing a medical leave of absence might, in some
circumstances, be a reasonable accommodation, see id. at 1049 n.3, “[a]n employer
is not required by the ADA . . . to provide an unlimited absentee policy.” Buckles v.
First Data Res., Inc., 176 F.3d 1098, 1101 (8th Cir. 1999); see also Pickens v. Soo
Line R.R. Co., 264 F.3d 773, 778 (8th Cir. 2001) (holding that plaintiff’s requested
accommodation of “be[ing] able to work only when he feels like working” is
unreasonable as a matter of law). Futhermore, Brannon failed to demonstrate that her
requested accommodation of additional time off to recuperate would have enabled her
to have consistent attendance at work. See Burchett v. Target Corp., 340 F.3d 510,
517 (8th Cir. 2003) (“[T]he employee must also make a facial showing that reasonable
accommodation is possible and that the accommodation will allow her to perform the
essential functions of the job.” (emphasis added)). Therefore, she failed to make a
facial showing that she was a “qualified individual,” and the district court properly
granted summary judgment in favor of Luco Mop. See Alexander v. Northland Inn,
321 F.3d 723, 728 (8th Cir. 2003) (affirming district court’s grant of summary
judgment where employee failed to meet her prima facie burden of showing that a
reasonable accommodation was available that would not have placed an undue burden
on the employer; recognizing that employee’s post-termination request for a
reasonable accommodation was “too little, too late”; and that the employer was not
per se liable for failing to engage in the interactive process).
The judgment of the district court is affirmed.


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