Leah M. Powley v. Rail Crew Xpress, LLC

United States Court of Appeals
For the Eighth Circuit
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No. 21-1131
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Leah M. Powley
Plaintiff - Appellant
v.
Rail Crew Xpress, LLC
Defendant - Appellee
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 19, 2021
Filed: February 15, 2022
[Published]
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Before BENTON, KELLY, and ERICKSON, Circuit Judges.
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PER CURIAM.
Railcrew Xpress, LLC (“RCX”) contracts with railroads to transport their
crews. When a railroad requests transport, an RCX dispatcher schedules and
coordinates drivers to move crews from one location to another. In July 2015,
Plaintiff Leah M. Powley joined RCX as a driver.

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In February 2016, Powley provided doctor’s notes requesting she be excused
from work for three weeks. RCX accommodated the request. In May 2016, Powley
provided a doctor’s note requesting she be excused “from driving E series Ford vans”
to avoid “aggravation of back pain.” RCX accommodated her. In October 2017,
after taking FMLA leave to care for her husband, Powley provided a doctor’s note
saying she could return to work two days a week in 10-hour shifts, with at least 11
hours between shifts. RCX accommodated the request. That same month, Powley
provided a doctor’s note stating she should not drive RCX’s Nissan van due to back
pain. RCX again accommodated her. In February 2018, Powley provided a doctor’s
note stating she should “work shifts no longer than 10 hours no more than 5 days /
w[ee]k. Shifts between 7pm – 7am.” RCX accommodated that request. In March
2018, Powley provided a doctor’s note requesting she not drive Suburban SUVs due
to back pain. RCX accommodated her again.
In May 2018, RCX promoted Powley to part-time dispatcher. She worked
with other dispatchers in an office at a Fremont, Nebraska, railroad yard. In August
2018, she experienced headaches but mentioned them to only two other dispatchers
and her doctor, who noted in her medical chart that a change in her work
environment was “driving her headaches.”
On August 8, 2018, Powley provided a doctor’s note stating, “Patient needs
day shift work. No shifts > 9 hrs.” The note did not mention Powley’s headaches.
RCX asked Powley for information from her doctor about how long she would need
this accommodation. Powley provided a note, dated August 10, requesting it “for
the next 7 days.” RCX (and Powley’s coworkers) rearranged schedules to
accommodate her. Later that month, Powley provided a note requesting the
accommodation be extended for two months. RCX again accommodated. Powley
also requested she return to driving because the noise in the dispatcher office was
“interfering with my ability to perform my duties appropriately as a dispatcher.”
Powley told one supervisor that the noise “gave her a headache.”

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On September 18, 2018, Powley submitted a doctor’s note saying, “Patient
may work 12 ½ hours per day. Must have 11 hrs between shifts.”
On September 27, 2018, Powley discovered that a dry-erase board tracking
drivers and vehicles had been moved in the dispatcher office so that she had trouble
writing on it. Powley asked another dispatcher if they could rearrange the space,
and that dispatcher told her to ask a different dispatcher. Powley responded, “I’m
done. I have to leave.” The next day, she sent RCX an email stating the office noise
“interferes with my ability to perform my duties,” restating her desire to return to
driving, and reiterating her frustration with the dry-erase board placement. The
email did not mention headaches or back pain. RCX treated this as a resignation.
Powley sued RCX for failure to accommodate her disabilities, and for
unlawful retaliation in response to her request for an accommodation, under the
Americans with Disabilities Act of 1990 (“ADA”) and the Nebraska Fair
Employment Practices Act (“NFEPA”). The district court1 granted summary
judgment to RCX, dismissing Powley’s claims. She appeals, challenging only the
dismissal of her reasonable accommodation claims. She identifies her request to
return to driving as the accommodation sought.
Having jurisdiction under 28 U.S.C. § 1291, this Court affirms. The district
court properly granted summary judgment for RCX on the failure-to-accommodate
claims because there is no genuine issue of material fact that Powley had not actually
sought a reasonable accommodation for her alleged disability.
For an ADA failure-to-accommodate disability-discrimination claim, a
plaintiff “must establish both a prima facie case of discrimination based on disability
and a failure to accommodate it.” Schaffhauser v. United Parcel Serv., Inc., 794
F.3d 899, 905 (8th Cir. 2015). Thus, a plaintiff must prove, among other elements,
1 The Honorable Cheryl R. Zwart, United States Magistrate Judge for the
District of Nebraska, to whom the case was referred for final disposition by consent
of the parties pursuant to 28 U.S.C. § 636(c).

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that she “requested accommodations or assistance for . . . her disability.” Id. at 906;
see Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 (8th Cir. 1999) (stating
same standard). To do so, she need not request an accommodation in writing or use
“the magic words ‘reasonable accommodation,’” but “must make clear that the
employee wants assistance for . . . her disability.” Ballard v. Rubin, 284 F.3d 957,
962 (8th Cir. 2002) (quotations omitted); see Kowitz v. Trinity Health, 839 F.3d 742,
748 (8th Cir. 2016).
Even assuming Powley established a prima facie case, there is no genuine
issue of material fact that RCX failed to accommodate her. Powley had sought and
received many reasonable accommodations for her back pain—including reduced
hours and different vehicles—by submitting doctor’s notes to RCX that connected
her requests to her condition. Here, however, she never submitted a doctor’s note or
indicated to RCX that her request to return to a driving position was connected to
her back pain. Rather, she complained about noise, light, and office layout.
Although Powley noted that the noise sometimes gave her headaches, she did not
identify these headaches as migraines, did not inform RCX that headaches or
migraines interfered with her work, and did not suggest that her request was based
on medical needs—as she had in past accommodation requests. Powley thus did not
demonstrate that she requested accommodations or assistance for her alleged
disability, as required for a failure-to-accommodate claim. See Schaffhauser, 794
F.3d at 905.
Because NFEPA mirrors the ADA, Nebraska state courts look to federal ADA
precedent when interpreting NFEPA. Orr v. Wal-Mart Stores, Inc., 297 F.3d 720,
723 (8th Cir. 2002). Where the parties do not urge otherwise, Powley’s NFEPA
failure-to-accommodate claim fails for the same reason as her ADA failure-to-
accommodate claim.
Where there is no conceivable request for an accommodation, there is no
failure to accommodate. There is no genuine issue of material fact that Powley had

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not actually requested a reasonable accommodation for her alleged disability. The
district court properly granted summary judgment.
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The judgment is affirmed.
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