Robert Wayne Goosen v. Minnesota Department of Transportation

United States Court of Appeals
For the Eighth Circuit
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No. 23-2360
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Robert Wayne Goosen
Plaintiff - Appellant
v.
Minnesota Department of Transportation
Defendant - Appellee
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Appeal from United States District Court
for the District of Minnesota
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Submitted: December 12, 2023
Filed: June 24, 2024
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Before ERICKSON, MELLOY, and STRAS, Circuit Judges.
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MELLOY, Circuit Judge.
In 2018, Robert Wayne Goosen sustained an on-the-job injury while
employed by the Minnesota Department of Transportation (“MNDOT”). The injury
caused Goosen to miss months of work as he underwent multiple surgeries and
physical therapy. In 2021, after Goosen had taken a leave of absence to recover from
his fourth injury-related surgery, Goosen’s doctor determined that he had reached
his maximum medical improvement but could return to work subject to certain
physical restrictions. The MNDOT, however, determined that because of these

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restrictions, Goosen could not perform the essential functions of his job and the
agency could not reasonably accommodate him. Thereafter, Goosen brought the
current action, alleging that MNDOT violated the Americans with Disabilities Act
(“ADA”) by failing to provide a reasonable accommodation. MNDOT moved for
summary judgment, which the district court1 granted. We affirm.
I.
Pursuant to our standard of review, we present the facts in the light most
favorable to Goosen, with all reasonable inferences drawn in his favor. Lightner v.
Catalent CTS (Kansas City), LLC, 89 F.4th 648, 651 (8th Cir. 2023).
MNDOT hired Goosen to work as a heavy equipment mechanic in 2008 and
promoted him to heavy equipment field mechanic in 2011. As a heavy equipment
field mechanic, Goosen repaired vehicles as well as equipment used for construction,
road maintenance, and snow and ice control. Goosen was also required to work off-
site, which generally meant he would travel to remote locations to conduct
maintenance and repairs on equipment.
In late June 2018, Goosen was repairing machinery when he suffered a serious
injury to his left arm, hand, and ulnar nerve. Goosen required medical treatment and
had to miss more than a month of work. In early August, Goosen returned to work,
but because he was still recovering from his injury, he was placed in a light-duty
mechanic position. Between September 2018 and May 2020, Goosen underwent four
surgeries, and in October 2020, he went on a one-year medical leave of absence
related to his injury. During that time, Goosen engaged in a physical therapy
program, which he completed in March 2021.
1 The Honorable Eric C. Tostrud, United States District Judge for the District
of Minnesota.

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On April 1, 2021, Goosen’s treating doctor approved his return to work for
eight to ten hours per day, five days per week, under certain temporary restrictions.
Goosen’s restrictions included refraining from: outstretching his arms for more than
three hours per day; reaching overhead for more than six hours per day; and climbing
in and out of trucks and equipment for more than seven hours per day. Goosen’s
doctor also advised that he should be permitted to take stretch breaks as needed and
work at his own pace.
On April 9, 2021, without seeing Goosen again, the treating doctor revised his
medical assessment. The doctor determined that Goosen had reached his “maximum
medical improvement” and that his work restrictions were not temporary but rather
indefinite. The doctor also removed the eight-to-ten-hour work restrictions and
advised that Goosen could work more than ten hours each day, five days per week.
After receiving the doctor’s revised assessment, Goosen sought an opinion from a
second doctor who agreed that he had reached maximum medical improvement and
that the restrictions were appropriate.
In response to the doctor’s assessment and Goosen’s request to return to work,
the MNDOT organized a “Work Analysis Team” to determine whether they could
reasonably accommodate Goosen’s restrictions. The Work Analysis Team was
comprised of fourteen members, including multiple senior managers from human
resources, an ADA coordinator, a member of the office of equity and diversity,
representatives from the safety and worker’s compensation program, two of
Goosen’s supervisors who were former mechanics, a labor representative, and
Goosen’s vocational rehabilitation counselor. The Work Analysis Team met nine
times between April 6 and May 6, 2021, and worked to identify the essential
functions and physical requirements of the heavy equipment field mechanic position,
as well as what accommodations, if any, MNDOT could reasonably provide.
To determine whether the MNDOT could accommodate Goosen’s
restrictions, the Work Analysis Team compiled a spreadsheet listing essential
functions of the heavy equipment field mechanic position. The Work Analysis Team

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determined that repair and maintenance were essential functions of the job. The
Team then itemized the tasks required to perform each essential function. For each
task that implicated one of Goosen’s permanent restrictions, the Work Analysis
Team assessed the accommodation options. Ultimately, the Work Analysis Team
determined that Goosen could not perform the essential functions of the job with or
without reasonable accommodation.
The Work Analysis Team compiled its findings in a report that it then
provided to Goosen. Thereafter, the Work Analysis Team met with Goosen on April
28 so he could provide feedback on the report and ideas for accommodations. In the
meeting, Goosen did not contest any of the report’s findings, and he told the Work
Analysis Team that he thought stretch breaks would be a sufficient accommodation.
At the conclusion of the meeting, the Team decided to recess to consider and identify
other accommodations, including whether Goosen could be reassigned to a heavy
equipment mechanic position rather than a heavy equipment field mechanic position.
A week later, the Work Analysis Team and Goosen met again. The Team determined
there were no viable accommodations, including reassignment to the heavy
equipment mechanic position. On October 12, 2021, Goosen’s FMLA leave ended,
and MNDOT considered him to have voluntarily resigned from his position.
Thereafter, Goosen brought this action alleging that MNDOT had violated the
ADA by discriminating against him on the basis of his disability. Goosen argued
that he could have performed the essential functions of the heavy equipment field
mechanic position and that the agency could have reasonably accommodated his
disability by placing him in a heavy equipment mechanic position. After the close
of discovery, MNDOT moved for summary judgment, which the district court
granted on grounds that “no reasonable jury could find either that Goosen was
qualified to perform the essential functions of his former position or that a reasonable
accommodation was possible.” Goosen appeals.

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II.
Goosen first challenges the district court’s refusal to consider three affidavits
signed by Clifford Theis, Scott Wistrom, and Dale Sauer, all MNDOT heavy
equipment mechanics or field mechanics. “We review a district court’s evidentiary
rulings for an abuse of discretion.” Gareis v. 3M Co., 9 F.4th 812, 816 (8th Cir.
2021). “We afford the district court broad discretion in its evidentiary rulings, in
deference to its familiarity with the details of the case and its greater experience in
evidentiary matters.” Wallace v. Pharma Medica Rsch., Inc., 78 F.4th 402, 408 (8th
Cir. 2023) (citation omitted).
Goosen does not dispute that disclosure of his three affidavits was untimely.
Where a party fails to disclose in a timely manner, “Rule 37(c)(1) makes exclusion
of evidence the default, self-executing sanction for the failure to comply with Rule
26(a).” Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698, 705 (8th
Cir. 2018); Fed. R. Civ. P. 37(c)(1). The Federal Rules of Civil Procedure provide
exceptions to the default sanction if the failure was “substantially justified or is
harmless,” or on motion by the party who failed to disclose. Fed. R. Civ. P. 37(c)(1);
Vanderberg, 906 F.3d at 705.
Goosen did not move for a lesser sanction but argues that his untimely
disclosure was “substantially justified” and “harmless.” Goosen asserts that the late
disclosure was justified because he “did not become aware of mechanics Theis and
Wistrom until just before the close of discovery.” For Sauer, Goosen argues that
admission of the affidavit would have been harmless because he identified Sauer
while being deposed. Goosen argues that the untimely disclosure was also harmless
on grounds that “MNDOT knew its own mechanics” and therefore could not “claim
unfair surprise.”
We disagree and conclude that the district court did not abuse its discretion in
refusing to consider the affidavits. In making its reasoned decision, the district court
observed that Goosen had previously received an extension of the discovery timeline

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and yet still failed to disclose the witnesses. Goosen did not name the three
mechanics in either his disclosures or his answers to interrogatories. Moreover,
Goosen did not mention Theis or Wistrom in his testimony, and when he mentioned
Sauer, it was unrelated to the issues raised in the affidavit. The district court
concluded there was no apparent reason why Goosen failed to identify the witnesses
earlier, especially since their testimonies were so essential to his argument. Finally,
the district court determined that if it were to admit the affidavits, MNDOT could be
prejudiced by the untimely disclosure because there had been no opportunity to
depose the witnesses prior to the close of discovery. The district court did not abuse
its discretion in excluding the affidavits.
III.
Goosen next argues that the district court erred in granting summary judgment
to MNDOT on his ADA failure to accommodate claim.2 We review the district
court’s grant of summary judgment de novo, viewing the facts in the light most
favorable to Goosen as the nonmoving party. Scruggs v. Pulaski Cnty., 817 F.3d
1087, 1092 (8th Cir. 2016). A district court’s grant of summary judgment is proper
when “the movant shows 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).
Under the ADA, employers like MNDOT discriminate on the basis of
disability when they fail to provide “reasonable accommodations to the known
physical . . . limitations of an otherwise qualified individual with a disability . . . ,
unless [the employer] can demonstrate that the accommodation would impose an
undue hardship.” 42 U.S.C. § 12112(b)(5)(A). To establish a prima facie case of
2 Goosen also argues that he brought a separate “disability discrimination”
claim and that the district court erred in dismissing it. This contradicts both Goosen’s
complaint and his opening brief, where he states that “[t]he only dispute as to the
disability discrimination claim is whether he is qualified to perform the essential
functions of the job with or without accommodation.” Accordingly, we do not
address this argument.

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disability discrimination, Goosen “must show that he (1) has a ‘disability’ within the
meaning of the ADA, (2) is a ‘qualified individual’ under the ADA, and (3) ‘suffered
an adverse employment action as a result of the disability.’” Fenney v. Dakota, Minn.
& E. R.R. Co., 327 F.3d 707, 711 (8th Cir. 2003) (quoting Duty v. Norton-Alcoa
Proppants, 293 F.3d 481, 490 (8th Cir. 2002)).
The parties dispute whether Goosen is a qualified individual under the ADA.
“To be considered a qualified individual under the ADA, an employee must ‘(1)
possess the requisite skill, education, experience, and training for [her] position, and
(2) be able to perform the essential job functions, with or without reasonable
accommodation.’” Scruggs, 817 F.3d at 1092 (alteration in original) (quoting Hill v.
Walker, 737 F.3d 1209, 1216 (8th Cir. 2013)). The parties agree that Goosen
possessed the requisite skill and expertise for the position but dispute whether
Goosen could perform the essential functions of the job with or without reasonable
accommodation.
A.
In arguing that he is qualified for the heavy equipment field mechanic
position, Goosen contends that MNDOT erred in defining the job’s essential
functions. “Essential functions,” as distinguished from “marginal functions,” are
“the fundamental job duties of the employment position the individual with a
disability holds or desires” and vary according to the job. Minnihan v. Mediacom
Commc’ns Corp., 779 F.3d 803, 810 (8th Cir. 2015) (quoting 29 C.F.R.
§ 1630.2(n)(1)). “A job function may be essential if the reason the position exists is
to perform that function, or if a limited number of employees are available among
whom the performance of the job function can be distributed.” Scruggs, 817 F.3d at
1092 (quoting Hill, 737 F.3d at 1217). On the other hand, “a task may be an essential
function even if the employee performs it for only a few minutes each week, and
even if other employees are available to perform the task for the disabled employee.”
Minnihan, 779 F.3d at 812. A task can also be an essential function where there is
only a possibility that the disabled employee will be required to complete it.

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Dropinski v. Douglas Cnty., 298 F.3d 704, 708–09 (8th Cir. 2002). To determine
whether job duties are essential, we consider the following factors:
(1) the employer’s judgment as to which functions are essential; (2)
written job descriptions prepared before advertising or interviewing
applicants for the job; (3) the amount of time spent on the job
performing the function; (4) the consequences of not requiring the
incumbent to perform the function; and (5) the current work experience
of incumbents in similar jobs.
Knutson v. Schwan’s Home Serv., Inc., 711 F.3d 911, 914 (8th Cir. 2013) (quoting
Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 786 (8th Cir. 2004)). The
employer’s judgment as to what constitutes an essential function is a “highly
probative” factor. Scruggs, 817 F.3d at 1093 (quoting Kammueller, 383 F.3d at 786).
The Work Analysis Team determined that repair and maintenance of heavy
equipment were essential functions of the heavy equipment field mechanic position.
The Team then defined the tasks required to perform the essential functions, basing
its conclusions on the preemployment job description, the experience and insight of
Goosen’s supervisors, the amount of time mechanics spent accomplishing their
various job responsibilities, and the consequences of Goosen’s inability to perform
the essential functions of his position. The position description stated that “[w]hile
performing the duties of [the] job,” a heavy equipment field mechanic “frequently
uses gross and fine dexterity in a variety of positions including reaching outward and
overhead . . . .” Based on their collective insight, members of the Work Analysis
Team defined “frequently” as occurring more than two hours and forty minutes and
less than five hours and twenty minutes per day—which for certain tasks, exceeded
Goosen’s restrictions. To determine the frequencies of certain tasks, the Work
Analysis Team also relied on calculations provided by Goosen to determine how
much time heavy equipment field mechanics engaged in each task. Goosen’s
supervisors, who had worked as heavy equipment field mechanics, also provided
insight into the essential functions of the job and the tasks required to complete each
function. Based on its assessment of the tasks required to complete the heavy

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equipment field mechanic’s essential functions, the Work Analysis Team
determined that Goosen was not qualified to perform the job responsibilities.
Goosen does not argue that he can perform the essential functions of the heavy
equipment field mechanic as the Work Analysis Team defined them; rather, he
disputes the Work Analysis Team’s determinations of the required frequency and
duration of three tasks required to repair and maintain heavy equipment. Goosen
specifically argues that the durations of the following tasks are not required to fulfill
the heavy equipment field mechanic’s essential functions: (1) holding arms
outstretched for more than three hours per shift; (2) holding arms overhead for more
than six hours per shift; and (3) climbing in and out of heavy equipment for more
than seven hours per shift. To support his position, Goosen first points to the fact
that these physical requirements were not stated in the heavy equipment field
mechanic job description. In this regard, the job description states that heavy
equipment field mechanics are “frequently” required to engage in holding arms
outstretched or overhead. The Work Analysis Team defined “frequently” based on
the knowledge and experience of two mechanics and on calculations provided by
Goosen. Goosen counters that the job description refers to “a variety of positions,”
which he argues is evidence that holding arms outstretched or overhead at the
frequencies outlined by the Work Analysis Team are not part of the essential
functions of the job. This does not negate the fact that a heavy equipment field
mechanic may be required to hold their arms in ways in which Goosen is restricted.
Indeed, “that the potential for these functions exist[s]” supports finding that the tasks
are part of the job’s essential functions. Dropinski, 298 F.3d at 708.
Goosen next argues that during the preemployment testing for heavy
equipment field mechanics, MNDOT did not require applicants to hold their arms
outstretched and overhead or climb in and out of equipment for the durations of time
determined by the Work Analysis Team. But as we have explained before,
preemployment testing is not dispositive when determining a job’s essential
functions. Id. at 708–09. Finally, Goosen argues that he had never personally been
required to engage in such extensive or frequent activities during his eleven years as

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a mechanic. We have held that a plaintiff’s subjective experience has little weight in
our analysis of a job’s essential functions. Id. at 709. Accordingly, we agree with the
district court that the Work Analysis Team “accurately and reasonably” defined the
essential functions of a heavy equipment field mechanic. Thus, we affirm the district
court’s conclusion that, as a result of his restrictions, Goosen could not perform the
essential functions of a heavy equipment field mechanic.
B.
Goosen next argues that, as a reasonable accommodation, MNDOT should
have reassigned him to a heavy equipment mechanic position. We have held that
where an “employee cannot perform the essential functions of the job without an
accommodation, he must only make a ‘facial showing that a reasonable
accommodation is possible.’” Fenney, 327 F.3d at 712 (emphases omitted) (quoting
Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995)). “The burden
of production [then] shifts to the employer to show that it is unable to accommodate
the employee.” Id. (alteration original). “If the employer can show that the employee
cannot perform the essential functions of the job even with reasonable
accommodation, [then] the employee must rebut that showing with evidence of his
individual capabilities.” Id. (alteration original).
We need only address the first step in the reasonable accommodation analysis
because Goosen fails to make a facial showing that the heavy equipment mechanic
position was a reasonable accommodation. “We have found that in certain situations,
reassignment to a vacant position can be a reasonable accommodation, where the
employee can perform the essential functions of the new position.” Minnihan, 779
F.3d at 814. “Reassignment is not required of employers in every instance, however,
and is ‘an accommodation of last resort’ when the employee cannot be
accommodated in his existing position.” Id. (quoting Cravens v. Blue Cross & Blue
Shield of Kan. City, 214 F.3d 1011, 1019 (8th Cir. 2000)). “[R]eassignment to
another position is a required accommodation only if there is a vacant position for
which the employee is otherwise qualified.” Id. (citation omitted).

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“Determining whether reassignment [is] possible requires [a plaintiff] to
make a facial showing that she satisfied the legitimate prerequisites for an alternative
position and would ‘be able to perform the essential functions of that position with
or without reasonable accommodations.’” Ehlers v. Univ. of Minn., 34 F.4th 655,
660 (8th Cir. 2022) (quoting Cravens, 214 F.3d at 1019); see also Fjellestad v. Pizza
Hut of Am., Inc., 188 F.3d 944, 954 (8th Cir. 1999) (“The employee . . . carries the
burden of showing that a particular accommodation rejected by the employer would
have made the employee qualified to perform the essential functions of the job.”).
We have held that where a plaintiff failed to “submit the job posting, the job title, or
any evidence of the duties or requirements of any position,” they did not meet their
evidentiary burden of making a facial showing. Ehlers, 34 F.4th at 661. Further, we
have found that where a plaintiff only submitted job identification numbers for open
positions, testimony that those jobs fell into the same category of work, and
“unsupported testimony that [a plaintiff] qualified for them,” the plaintiff failed to
make a facial showing. Id.
Here, Goosen has not provided sufficient evidence to support a facial showing
that the heavy equipment mechanic position was a reasonable accommodation.
Goosen provides no job posting or job description to show that the essential
functions were different than those of the heavy equipment field mechanic, and he
provides no testimony to support this position. In contrast, MNDOT presents
testimony that the main difference between the heavy equipment field mechanic
position and the heavy equipment mechanic position is that the former is required to
work off-site. The only evidence Goosen provides to support his argument that
MNDOT could have accommodated his disability is that, during the April 28
meeting, the Work Analysis Team expressed “a pretty high level of confidence” that
the heavy equipment mechanic position could be a reasonable accommodation. Yet
the Work Analysis Team clarified that they were not making an offer and expressed
that they still had concerns about whether MNDOT could reasonably accommodate
Goosen in the heavy equipment mechanic position.

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Ultimately, MNDOT determined that the heavy equipment mechanic position
was not a reasonable accommodation. One of Goosen’s supervisors who was on the
Work Analysis Team, Thomas Bowe, testified that putting Goosen in a heavy
equipment mechanic position was not a reasonable accommodation because his
restrictions would limit his ability to do the work—he would need to keep his arms
outstretched for more than three hours or reach overhead for more than six hours.
Bowe further testified that because of Goosen’s restrictions, if MNDOT placed
Goosen in a heavy equipment mechanic position, they would have to hire another
employee. The Work Analysis Team also determined that when Goosen met the
limit of his restrictions, other employees would have to step in and assume his work.
We have held that in providing a reasonable accommodation, employers are “not
required to reallocate the essential functions of a job.” Dropinski, 298 F.3d at 707
(citation omitted). Similarly, an employer is not expected to provide “an
accommodation that would cause other employees to work harder, longer, or be
deprived of opportunities,” and generally, hiring a new employee is not a reasonable
accommodation. Minnihan, 779 F.3d at 813–14 (citation omitted). Although Goosen
provides evidence that, at the April 28 meeting, MNDOT seriously considered the
heavy equipment mechanic position as an accommodation, consideration of an
accommodation, alone, is not dispositive of the existence of a reasonable
accommodation. See Kallail v. Alliant Energy Corp. Servs., Inc., 691 F.3d 925, 932
(2012) (holding that “statements of [defendant’s] employees show that the company
considered the possibility of” a reasonable accommodation but not a conclusive
determination that such an accommodation was possible); see also Rehrs v. Iams
Co., 486 F.3d 353, 358 (8th Cir. 2007) (discussing public policy reasons for not
discouraging employers from exploring options to accommodate disabled
employees). Therefore, without more, Goosen has not satisfied his burden of making
a facial showing that a reasonable accommodation was available.3
3 The parties also dispute whether a vacant heavy equipment mechanic position
was even available, and alternatively, whether Goosen’s collective bargaining
agreement would have allowed him to use his seniority to assume a heavy equipment
mechanic position. Because Goosen failed to produce evidence that the heavy

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Accordingly, we affirm the district court’s grant of summary judgment to
MNDOT.
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equipment mechanic position was a reasonable accommodation, we need not address
these issues.

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