Samantha Howard v. City of Sedalia, Missouri, doing business as Bothwell Regional Health Center

United States Court of Appeals
For the Eighth Circuit
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No. 23-1068
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Samantha Howard
lllllllllllllllllllllPlaintiff - Appellee
v.
City of Sedalia, Missouri, doing business as Bothwell Regional Health Center
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: November 15, 2023
Filed: June 4, 2024
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Before LOKEN, ERICKSON, and GRASZ, Circuit Judges.
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LOKEN, Circuit Judge.
Samantha Howard is a pharmacist who has suffered from Type I diabetes since
infancy. While attending pharmacy school, she was diagnosed with hypoglycemic
unawareness, which prevents her from knowing when her blood sugar has dropped
to a dangerously low level. In March 2019, after graduating, Howard began working
as a pharmacist at Bothwell Regional Medical Center (Bothwell), a facility operated
by the City of Sedalia, Missouri. Howard told her supervisor, Brad Nicholson, that

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she has diabetes; he granted her request to keep food and drink at her desk while
working alone. She did not inform Bothwell that she was on a waiting list for a
diabetic-alert service dog that can detect an impending blood sugar drop to help a
diabetic prevent and mitigate hypoglycemic emergencies.
In early June 2020, Howard was told a service dog (“Corry”) would be
available in August. She told Nicholson and Bothwell’s Director of Human
Resources and Support Services that she would need the dog by her side constantly
for six months to train the dog; after that, she could go to work without the dog.1 She
requested being allowed to bring the service dog into the main pharmacy, but not the
sterile “clean room” or the “anteroom,” where employees prepare for clean room
activities. Bothwell, with no prior employee request for a service animal
accommodation, assembled a team of managers and medical staff to analyze
Howard’s request; each member concluded that the presence of a service dog in the
pharmacy was a risk to the safety of Bothwell’s patients and should not be allowed.
In August, Bothwell emailed Howard that her request to bring a service animal
into only certain areas of the pharmacy was denied because “such an action would not
resolve the potential risks of contamination,” but that Bothwell intended to work with
Howard to find a different accommodation. When the parties could not agree on an
alternative accommodation, Howard resigned on September 18. Bothwell urged her
to reconsider. “[A]fter talking with counsel,” Howard declined Bothwell’s proposal
that a mutually-agreed-upon third party inspect the pharmacy and determine whether
her service animal would pose a risk, stating, as she repeated at trial, that she would
not accept any accommodation other than bringing her service dog into the pharmacy.
1But on August 13, Howard’s attorney advised Bothwell that Howard “does not
merely require the dog to be by her side for six months. She needs the dog with her
all the time to protect her from undetected high and low blood sugars.”
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Howard filed this lawsuit on February 25, 2021, alleging that Bothwell’s
failure to make a reasonable accommodation violated the Americans with Disabilities
Act (ADA). 42 U.S.C. § 12112(a). The Complaint alleged that her requested
accommodation -- “to have her service dog accompany her to work in the non-sterile
areas of the pharmacy” -- “was reasonable and did not create an undue burden on
Bothwell” and “would have enabled her to perform the essential functions of her
position.” After a four-day trial, the jury returned a verdict for Howard, awarding her
$111,548.86 in compensatory and $18,451.14 in emotional damages. Bothwell
appeals the district court’s denial of its motion for judgment as a matter of law. We
review the denial of a motion for judgment as a matter of law de novo, construing the
record in the light most favorable to the prevailing party. Pittari v. Am. Eagle
Airlines, Inc., 468 F.3d 1056, 1061 (8th Cir. 2006). Concluding this appeal is
governed by our recent decision in Hopman v. Union Pac. R.R., 68 F.4th 394 (8th Cir.
2023), cert. denied, 144 S. Ct. 1003 (2024), we reverse.
I.
Title I of the ADA, entitled Employment, provides that no covered employer
or labor organization “shall discriminate against a qualified individual on the basis
of disability in regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The statute
defines discrimination to include “not making reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with a
disability who is an applicant or employee,” unless an employer “can demonstrate that
the accommodation would impose an undue hardship on the operation of the business
of such covered entity.” § 12112(b)(5)(A). A qualified individual is “an individual
who, with or without reasonable accommodation, can perform the essential functions
of the employment position that such individual holds or desires.” § 12111(8).
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As we explained in Hopman, the Equal Employment Opportunity
Commission’s implementing regulations “define the term ‘reasonable
accommodation’ as including three distinct requirements.” 68 F.4th at 397, citing 29
C.F.R. § 1630.2(o)(1). The first, not at issue here, is modifications or adjustments
that enable a job applicant to be considered. The second, which most failure-to-
accommodate cases have involved, is “[m]odifications or adjustments to the work
environment, or to the manner or circumstances under which the position held or
desired is customarily performed, that enable an individual with a disability who is
qualified to perform the essential functions of that position.” 29 C.F.R.
§ 1630.2(o)(1)(ii). The third category is “[m]odifications or adjustments that enable
a covered entity’s employee with a disability to enjoy equal benefits and privileges
of employment as are enjoyed by its other similarly situated employees without
disabilities.” § 1630.2(o)(1)(iii) (emphasis added). We confirmed in Hopman that
Congress in the ADA intended to bar employer discrimination in providing a benefit
or privilege offered to employees “that does not directly affect the ability of . . . a
qualified individual to perform [her] job’s essential functions.” 68 F.4th at 396.
The EEOC’s Interpretive Guidance further explains when the ADA imposes
a duty on the employer to provide a benefits and privileges accommodation:
[I]f 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. Accordingly, an
employer would generally not be required to provide an employee with
a disability with a prosthetic limb, wheelchair, or eyeglasses. Nor would
an employer have to provide as an accommodation any amenity or
convenience that is not job-related . . . that is not provided to employees
without disabilities.
* * * * *
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[The obligation] applies to all services and programs provided in
connection with employment, and to all non-work facilities provided or
maintained by an employer for use by its employees. Accordingly, the
obligation to accommodate is applicable to employer sponsored
placement or counseling services, and to employer provided cafeterias,
lounges, gymnasiums, auditoriums, transportation and the like.
* * * * *
[A]n individual with a disability is “otherwise qualified” . . . if he or she
is qualified for a job, except that, because of the disability, he or she
needs a reasonable accommodation to be able to perform the job’s
essential functions.
29 C.F.R. Part 1630 App., § 1630.9 (emphasis added; legislative history citations
omitted). When there is no duty to provide an adjustment or modification because it
is considered a personal item under the regulations, “it would not be a violation of
this part for an employer to provide any of these personal modifications or
adjustments.” Id.
II.
Consistent with most failure-to-accommodate complaints, Howard’s Complaint
alleged that her requested accommodation “would have enabled her to perform the
essential functions of her position.” There was a problem proving this allegation,
both initially and as the dispute progressed to trial. When Howard requested the
accommodation, she had performed the essential functions of her position at the
pharmacy without a service dog to Bothwell’s satisfaction. In denying Bothwell’s
motion for summary judgment on other grounds, the district court noted that Bothwell
“does not dispute [Howard] . . . was qualified to do her job with or without reasonable
accommodation.”
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As the case proceeded to trial, counsel for both parties were aware that the
district court in Hopman, an Eastern District of Arkansas case, had ruled that the
ADA permits an employee with a disability to request a service dog accommodation
to enjoy equal benefits and privileges of employment, as defined in the EEOC
regulations and technical guidance, despite being able to perform the essential
functions of the job without the requested accommodation. At trial, plaintiff Hopman
proceeded accordingly but failed to present evidence of a denied benefit or privilege.
Accordingly, the district court granted judgment as a matter of law to the employer.
Hopman’s appeal of that ruling was pending before this court when Howard’s trial
began. Thus, like counsel for plaintiff Hopman, counsel for plaintiff Howard, even
without an Eighth Circuit case on point, had notice of what must be proved in an
equal-benefits-and-privileges-of-employment accommodation claim brought under
29 C.F.R. § 1630.2(o)(1)(iii).
At trial, after Howard presented her case-in-chief, Bothwell moved for
judgment as a matter of law, arguing, inter alia, that Howard failed to establish that
she required the accommodation either to perform the essential functions of the job
or to access the benefits and privileges of employment. In arguing this motion,
Bothwell’s lawyer asked whether Howard was claiming she was denied the ability to
perform the essential functions of her job; if not, language including that theory
should be removed from the proposed verdict-directing instruction. The district court
observed that Howard “did her job from . . . March of ‘20 through August of ‘21 . . .
[and] by her own admission, [received] good recommendations and got raises. There
was no testimony that anything changed. So . . . how is it that she wasn’t able to
perform the essential functions of her job without an accommodation?”
Howard’s lawyer responded that her claim is that Howard “isn’t able to perform
at her optimum,” citing the district court decision in Hopman. After more discussion,
Howard’s attorney stated, “I would be fine with amending the jury instruction to
specify that [access to the benefits and privileges of employment] is the specific
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claim.” Accordingly, the district court modified its verdict-directing instruction so
that it asked whether the requested accommodation would “enable plaintiff to enjoy
equal benefits and privilege of employment as are enjoyed by similarly situated
employees without disabilities,” with no alternative reference to an essential-
functions claim. The court rejected as incomplete Bothwell’s proposed instruction
defining benefits and privileges of employment. Thus, as in Hopman, Howard
“limited [her] failure-to-accommodate claim [as submitted to the jury] to the denial
of equal benefits and privileges of employment.” 68 F.4th at 399.
After the jury verdict, Bothwell renewed its motion for judgment as a matter
of law and moved for a new trial, arguing, inter alia, that Howard failed to show that
the service dog accommodation was necessary to access the benefits and privileges
of employment and the verdict was against the weight of the evidence. The district
court denied the motion, concluding without the benefit of our impending decision
in Hopman that there was sufficient evidence for the jury to find that Howard had
established the elements of her claim. Regarding Bothwell’s reliance on the district
court opinion in Howard, the district court described the opinion as “instructive,” “not
binding [and] also unpersuasive.” Bothwell appeals, arguing this issue and others we
need not consider.
III.
In Hopman, the ADA plaintiff was a military veteran suffering from post-
traumatic stress disorder who worked as a Union Pacific train conductor. He
purchased a service dog to help cope with his symptoms; the railroad granted other
accommodations but denied his request to bring the dog onto moving freight trains
while he worked. Hopman was able to perform the essential functions of his job with
or without the requested accommodation; indeed, he was promoted from conductor
to engineer during the litigation. 68 F.4th at 395-96. We agreed with the district
court that “‘benefits and privileges of employment’ (1) refers only to employer-
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provided services; (2) must be offered to non-disabled individuals in addition to
disabled ones; and (3) does not include freedom from mental or psychological pain,”
and that Hopman “failed to introduce the evidence needed to prove that claim.” Id.
at 399. We affirmed the grant of judgment as a matter of law in favor of the
employer. Bothwell argues that Howard, like Hopman, “presented no evidence that
she needed her service animal to obtain a privilege or benefit of employment.”
Bothwell’s written “Accommodation Packet” included the question, “Please
describe in detail what specific parts of your job you are unable to perform because
of your impairment?” Howard responded, “A diabetic service animal would enhance
my ability to function in all aspects of my role as a pharmacist.” This is a job
performance argument. See Hopman, 68 F.4th at 398. At trial, Howard was asked
on direct examination, “How do you believe Corry gives you the ability to effectively
do your job as a pharmacist?” Howard responded that the service animal “in a sense
frees up my mind a bit in not having to be quite as on top of my sugars . . . and not be
so anxious.” She was then asked:
Q Are there ways that you feel like having Corry at work with you
allows you to enjoy the same benefits as the other employees have in the
pharmacy without disabilities?
A Yes. . . . I imagine that other employees have the ability to manage
their conditions however they see fit and with Corry being there I’m able
to do the same thing, manage my diabetes and not having my employer
dictate what I can and can’t do, especially when they’ve never talked to
my physician or know anything about my diabetes.
This again is a job performance argument. Id. In lengthy opening and rebuttal
closing arguments, counsel for Howard had little more to say on this subject:
[Y]ou’ll get to consider . . . whether [the requested accommodation]
would have enabled Ms. Howard to enjoy the equal benefits and
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privileges of employment as are enjoyed by other similarly situated
employees . . . who get to go to work in the pharmacy and . . . don’t have
to worry about what their blood sugar is and . . . how that blood sugar
might affect them 5, 10, 15, 20 years down the road . . . [and] weren’t
worrying about whether or not their legs will be able to stand up when
they’re walking across the pharmacy because their blood sugar has . . .
dropped and they’re having a hypoglycemic episodes, those privileges
that not many people think about until they don’t have them.
* * * * *
[The instruction] will also ask you to find that she lost the equal
benefits and privileges enjoyed by others, mentioned that earlier. None
have been identified other than feeling safe. But no one else has a dog
in the pharmacy. No one else has that right to feel safe at work. It’s the
benefits enjoyed by others.
As we said in Hopman, “this is certainly a fair point. But it is a job performance
argument.” Id. The governing regulation limits an employer’s ADA duty to make
this accommodation to “employer sponsored placement or counseling services, and
to employer provided [facilities].” 29 C.F.R. Part 1630 App., § 1630.9. The
limitation reflects long-standing judicial and agency efforts to keep accommodation
requirements “within manageable bounds.” Alexander v. Choate, 469 U.S. 287, 299
(1985). The employer’s duty to provide “equal benefits and privileges of
employment” is limited by the plain text of the regulation. Hopman, 68 F.4th at 400.
We reject Howard’s argument that we should “limit the holding in Hopman . . . to
circumstances where the service animal’s function is limited to that of an emotional
support animal,” which is a misstatement of the underlying facts in Hopman. In
essence, Howard argues that § 1630.2(o)(1)(iii) as construed in the EEOC’s
Interpretive Guidance on Title I and Technical Assistance Manual is an invalid
agency interpretation of the governing ADA statutory provisions. That argument was
not raised and is without merit.
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At trial, Howard failed to identify any employer-sponsored benefit or program
to which she lacked access. On appeal, she responds by noting that she presented
evidence that the service animal “assist[s] her in the management of her chronic
disease.” But this is in substance no different than the argument by Mr. Hopman’s
counsel that he “should not have to endure physical and emotional pain his [disability
brought to] work.” Id. at 401. Under the controlling regulations, “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.” 29 C.F.R. Part 1630 App., § 1630.9 (emphasis added). “Providing a
service dog at work so that an employee with a disability has the same assistance the
service dog provides away from work is not a cognizable benefit or privilege of
employment.” Hopman, 68 F.4th at 401.
Because Howard has not identified an employer-sponsored or employer-
provided benefit or privilege of employment that her proposed accommodation would
enable her to access, the only ADA accommodation claim presented to the jury, the
district court erred in denying Bothwell’s post-verdict motion for judgment as a
matter of law. On appeal, Howard relies on non-binding, out-of-circuit precedents --
mostly essential function cases -- that we distinguished or found unpersuasive in
Hopman, 68 F.4th at 401-02 n.4, such as Nawrot v. CPC International, 259 F. Supp.
2d 716, 724-26 (N.D. Ill. 2003). Hopman is binding Eighth Circuit precedent for our
panel. See Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc).
IV.
At oral argument, Howard’s counsel argued that her initial essential-functions
claim was not waived because she submitted a proposed jury instruction on that
theory, and only agreed to proceed on a benefits-and-privileges theory because that
was the district court’s view of the case. That is not how one preserves an issue for
appeal. Howard abandoned her essential-functions claim when she agreed not to
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submit a jury instruction on that issue during argument on Bothwell’s motion for
judgment as a matter of law. Howard’s counsel apparently regretted this tactical
decision after Bothwell finished presenting its case, because she requested a verdict-
directing instruction at the close of all the evidence that included essential functions
language. But she did not cross appeal the district court’s decision not to give that
proposed instruction. See El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 479
(1999). The issue was not properly preserved for our review.
At the end of oral argument, Howard’s counsel argued that if we reverse the
denial of post-verdict relief, we should remand for a new trial, rather than granting
judgment as a matter of law. In September 2020, Howard rejected all proffered
accommodations and quit her job at Bothwell; she is now employed in a similar job
elsewhere. Nowhere in her brief did Howard argue what issues should be available
if the case were to be remanded. Indeed, her brief states that “[Howard] did not need
the service animal to perform the essential functions of her job, but she did require
it to be with her to provide alerts for high and low blood sugar instances.” This issue,
too, was not properly preserved for our review.
The district court’s Order dated December 15, 2022 is reversed and the case is
remanded with instructions to enter judgment in favor of Bothwell. Bothwell’s
motion to supplement the record is denied as moot.
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