|MINNEAPOLIS PERSONAL INJURY ATTORNEY|
Buboltz v. Residential Advantages, Inc.: EMPLOYMENT - no prima facie ADA case without adverse action; no constructive termination; dissent1The Honorable Paul A. Magnuson, United States District Judge for the District
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
Monica Buboltz, *
Appeal from the United States
v. * District Court for the District of
Residential Advantages, Inc., *
Submitted: January 14, 2008
Filed: April 18, 2008
Before BYE, BEAM, GRUENDER, Circuit Judges.
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 Buboltz' complaint. The district court1 granted
the motion as to Buboltz' state law claims. RAI then moved for summary judgment
2RAI maintained a DSP job summary list that detailed seventeen essential
functions of a DSP.
on Buboltz' federal claims, and the district court granted this motion. Buboltz now
appeals only the district court's grant of summary judgment on her federal claims. We
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
3Buboltz does not now argue on appeal that the later decrease in hours
constituted an adverse employment action; therefore, we do not decide that issue.
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
Buboltz' 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 Buboltz' 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
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.
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
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 Buboltz' duty
of administering medicine did not have a material disadvantage to Buboltz, as it
4Although the parties dispute the actual time it takes 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.
5The careful reader will recall that Buboltz did have a written agreement
regarding the transportation requirement. Although Buboltz 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
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, i.e., 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.
6In 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."
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
For the foregoing reasons, we affirm the district court's decision.
BYE, Circuit Judge, dissenting.
The district court erred by weighing the evidence, resolving issues of disputed
fact, and ruling as a matter of law Monica Buboltz did not suffer an adverse
employment action. For these reasons, this matter should be reversed and remanded
In ruling on a motion for summary judgment, it is not the court's role to decide
the merits. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The court
must simply determine whether there exists a genuine issue for trial, i.e., whether there
is sufficient evidence favoring the non-moving party for a jury to return a verdict in
her favor. Id. The court must not weigh evidence or make credibility determinations,
as those functions are for the jury. Id. at 255.
Summary judgment should seldom be granted in the context of employment
discrimination cases because of their being inherently fact based. Mayer v. Nextel W.
Corp., 318 F.3d 803, 806 (8th Cir. 2003). The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in her favor. Anderson, 477
U.S. at 255. When viewed in the light most favorable to her claim, the evidence
Buboltz presented could persuade a jury to return a verdict in her favor. Genuine
issues of material fact therefore exist which require a trial; the district court's summary
judgment ruling should be reversed. Anderson, 477 U.S. at 257; Kenney v. Swift
Transp., Inc., 347 F.3d 1041, 1044-45 (8th Cir. 2003) (reversing district court's grant
of summary judgment to defendant employer because it improperly weighed the
As the Court indicates, only the third prong of Buboltz's prima facie case –
whether she suffered an adverse employment action – is at issue. Adverse
employment actions "need not always involve termination or even a decrease in
benefits or pay." Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 717 (8th Cir.
2003). Reassigning an employee to a position with significantly different
responsibilities or otherwise creating a detrimental change in working conditions can
constitute an adverse employment action. See, e.g., id.; Brown v. Cox, 286 F.3d 1040,
1045-46 (8th Cir. 2002); Phillips v. Collings, 256 F.3d 843, 848 (8th Cir. 2001).
Buboltz alleges two primary adverse employment actions: (1) RAI eliminated
essential functions of her job, and (2) RAI constructively discharged her.
The issue of whether RAI eliminated essential functions of Buboltz's job is one
of disputed material fact. RAI argues administering medication is not an essential job
function because it comprised a small fraction of Buboltz's time. Buboltz counters the
dispensation of medication is one of the most important aspects of care-giving and
eliminating the function was tantamount to a reprimand. With respect to prohibiting
Buboltz from working alone with residents, RAI claims the home was regularly triplestaffed.
Buboltz was able to retain her position on the work schedule, despite this
limitation, because there were always other DSPs on staff to supervise her resident
interactions. Buboltz argues requiring another person to look over her shoulder
whenever she interacted with a resident limited her efficacy and, again, branded her
An essential function is a "fundamental job dut[y] of the employment position
the individual with a disability holds or desires" and "does not include the marginal
functions of the position.” 29 C.F.R. § 1630.2(n)(1); Moritz v. Frontier Airlines, Inc.,
147 F.3d 784, 787 (8th Cir. 1998). A job function may be considered essential for any
of several reasons, including because (1) the reason the position exists is to perform
that function, and/or (2) there are a limited number of employees available among
whom the performance of that job function can be distributed. 29 C.F.R.
§ 1630.2(n)(2)(i), (ii). The EEOC regulations contain a non-exhaustive list of seven
types of evidence which may be considered in determining whether a particular
function is essential. See 29 C.F.R. § 1630.2(n)(3). The amount of time spent
performing the function is merely one. Id.
It was error for the district court to determine RAI did not eliminate essential
functions of Buboltz's job and thus Buboltz did not suffer an adverse employment
action; such a determination is the province of the jury. The DSP written job
description includes taking care of the residents' medical needs and requires ability to
"make decisions and complete tasks with little or no supervision." Appellant App. at
16. Buboltz argues one of the most important responsibilities of a DSP is to
administer medication; if no DSPs administered medication, the medical care of the
residents would be greatly compromised. At least three other RAI employees testified
medication administration and working alone with residents were essential duties and
they believed the elimination of these responsibilities was materially adverse, unfair,
unwarranted, and tantamount to accusing Buboltz of incompetence. Id. at 175, 182-
84, 194, 197-98. Furthermore, with only two or three DSPs present on a given shift,
there are a limited number of employees available to perform those functions Buboltz
was prohibited from performing, especially when one DSP takes a break, or runs an
errand with other residents. See id. at 174, 196.
The Court states Buboltz failed to show what direct care she was precluded
from providing to the residents based on these restrictions. To the contrary, Buboltz
provided testimony from her coworkers explaining how RAI's restriction prevented
her from engaging in direct care as she had previously. Patricia Nelson testified
Buboltz used to take residents to basketball games, concerts, and would often spend
individual time with residents. Id. at 190. Cathy Galvin, RAI Human Resources
Generalist, stated Buboltz would no longer be able to take the residents grocery
shopping or bowling. Id. at 97. Buboltz testified there were occasions when a DSP
would need to stay home with a client who did not desire to participate in an outing
with the others. Id. at 10. She would no longer be able to perform this function.
Buboltz argues the restriction prevented her from providing direct care to residents
such as bathing them, assisting them while going to the bathroom, or providing other
hygienic care, due to space limitations in the bathroom. Appellant Reply Br. at 7-8.
She also argued the restrictions prevented her from doing typical one-on-one activities
such as taking residents on a walk or even playing a game with them in a separate
It was error for the district court to conclude Buboltz was not constructively
discharged. When viewed in the light most favorable to her claim, the evidence
Buboltz presented could persuade a jury RAI altered Buboltz's working conditions
with the intent to force her to resign or with the reasonable foresight that she would
resign as a result of its actions. See Kerns v. Capital Graphics, Inc., 178 F.3d 1011,
1017 (8th Cir. 1999) ("A plaintiff claiming constructive discharge must show that a
reasonable person would have found the conditions of employment intolerable and
that the employer either intended to force the employee to resign or could have
reasonably foreseen that the employee would do so as a result of its actions.") RAI
eliminated important, arguably essential, functions of Buboltz's job and ignored its
7The meeting was held on March 8, 2005, and was recorded. See Appellant
App. at 83-114. Buboltz also submitted into evidence a March 11, 2005, letter she
claims she wrote to the president of RAI, Bill Olson. The letter expresses her
dissatisfaction with the "unfair and clearly discriminatory" changes RAI made to her
job responsibilities and her work schedule. Id. at 14. She concluded "[a]ll I want is
to do my job as I was hired 5 years ago to do and as I have been doing, my 1 day a
week, no weekends or holidays, giving meds, taking the ladies out in the community,
and respect from my co-workers." Id. at 14-15. Mr. Olson denies ever receiving the
responsibility to determine first whether Buboltz could be accommodated. The ADA
compels employers to "engage in an interactive process to identify potential
accommodations that could overcome the employee's limitation," Canny v. Dr.
Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894, 902 (8th Cir. 2006), and
modify their work requirements to enable disabled individuals to have the same
opportunities as their disabled counterparts, Peebles v. Potter, 354 F.3d 761, 767 (8th
Cir. 2004). The failure of an employer to engage in this interactive process is prima
facie evidence the employer may be acting in bad faith. Canny, 439 F.3d at 902.
While it is true RAI waived the driving requirement when it hired Buboltz
initially, an employer's duty to accommodate is a continuing one and is not exhausted
by merely one effort. Humphrey v. Memorial Hosp. Ass'n, 239 F.3d 1128, 1138 (9th
Cir. 2001). Viewing the evidence in the light most favorable to Buboltz, when RAI
concluded she should not dispense medication or work alone with residents, Buboltz
requested a meeting in which she raised the issue of reasonable accommodations with
her manager and with Human Resources.7 RAI refused to discuss possible
accommodations which might allow her to maintain these job responsibilities. RAI
also refused to communicate the new restrictions on Buboltz to the rest of the staff.
Instead, RAI required Buboltz to inform her coworkers of her restricted duties. RAI
suggested she explain the restrictions were self-imposed to make Buboltz more
comfortable. Appellant App. at 103. A jury could have found it foreseeable such a
situation would create a hostile work environment and negatively affect Buboltz's
relationships with her coworkers, who began to resent her because "she does not pull
her own weight and just lets everyone else do everything." Id. at 269; see also id. at
In addition, one week after eliminating two of Buboltz's job responsibilities,
RAI dramatically changed her schedule. Where she had been working an average of
one shift of four hours per week, RAI now required her to work an additional two
shifts of eight or nine hours on Saturday and Sunday, every other week. When
Buboltz began using her paid time off benefits to avoid working the weekend hours,
RAI stopped regularly scheduling her for her weekday shift. Id. at 141-43. RAI next
subjected her to her first performance review in the five years she was in its employ,
creating a negative record where there was previously none at all. Buboltz and her
coworkers testified she did not want to leave her position at RAI, but the changes it
implemented "just got to be too much of a stress on her life, on herself." Id. at 91,
172, 175, 199. A reasonable jury could conclude RAI intended to force her to resign,
or could have reasonably foreseen its actions would have led Buboltz to do so.
Whether RAI subjected Buboltz to an adverse employment action is a question
laden with disputed material facts. Buboltz has presented evidence sufficient for a
reasonable jury to conclude RAI eliminated essential job functions and constructively
discharged her. The district court erred by weighing the evidence, resolving the issues
of disputed fact, and ruling as a matter of law Buboltz did not suffer an adverse
employment action. I would therefore reverse and remand for trial.
For the foregoing reasons, I dissent.
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