Bonnie Dick v. Dickinson State University

United States Court of Appeals
For the Eighth Circuit
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No. 15-2419
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Bonnie Dick
lllllllllllllllllllll Plaintiff - Appellant
v.
Dickinson State University
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the District of North Dakota - Bismarck
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Submitted: March 16, 2016
Filed: June 23, 2016
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Before MURPHY, BEAM, and GRUENDER, Circuit Judges.
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BEAM, Circuit Judge.
Bonnie Dick appeals the district court's 1 grant of summary judgment in favor
of her employer, Dickinson State University (DSU), on her Rehabilitation Act claim.
In granting summary judgment, the district court held that Dick suffered no adverse
1The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.

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employment action by being exposed to the floor-stripping and -waxing products
iShine and LOE Stripper (the Products) while employed as a custodian at DSU. For
the reasons discussed below, we affirm.
I. BACKGROUND
DSU hired Dick as a custodian in October 2004. In 2006, Dick suffered two
seizures believed to have been caused in part by her use of the Products in poorly
ventilated areas at work. When she returned to work after recovering from the
seizures, she assisted the administrative secretary with routine filing and copying.
Eventually there was not enough work, and she was placed on leave. Dick then asked
to return to work as a custodian but asked to be excused from using the Products. Her
request was granted, and she was relieved of all floor-stripping and -waxing
responsibilities for the remainder of her employment. Additionally, the Products were
not used in her presence, and DSU provided Dick with a respirator that she refused to
wear. It was DSU's goal "to eliminate Dick's exposure to [the Products] during the
application process." At this time, Dick had not requested an accommodation in
regard to other products or neurotoxins.
In January 2007, DSU granted a request from Dick to be transferred to the
library, which had less vinyl flooring. In 2008, DSU again allowed Dick to transfer
to a new location, May Hall, which was mostly carpeted. Despite her transfers, Dick
occasionally came into contact with residual smells from areas with floors that had to
be stripped and waxed. Dick lists several occasions when she was exposed to the
Products after requesting the accommodation: in December 2006 she went into a
classroom that had been waxed the night before; in 2007 a bathroom and classroom
in the basement of the library were waxed but she avoided the area; during the
summer of 2007 spray was used on steps in the library and she had to hold her breath;
several times she was forced to pass through areas that had been waxed; and in
October 2011 a coworker who was using the Products asked Dick whether he was
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waxing an area properly. Dick never sought medical attention or reported any of the
above-listed incidents. In fact, she did not realize at the time of the exposure that the
Products were bothering her. Nonetheless, Dick now contends that she suffered
various physical, neurological, and cognitive side effects from repeated exposure to
the Products during her employment at DSU.
In 2011, Dick filed an internal grievance for harassment, hostile work
environment, and discrimination. An outside investigation determined Dick's claims
were baseless. In January 2012, Dick's eyes began to burn after encountering
fungicide used in a room at DSU. She then requested an accommodation so that she
would not be exposed to any floor products containing neurotoxins. DSU worked
with Dick and her doctors to find out which neurotoxins were causing her reactions,
but the doctors could not pinpoint the source. In February 2012, Dick filed a
discrimination charge with the Equal Employment Opportunity Commission (EEOC),
alleging DSU failed to reasonably accommodate her request to be excused from
working with the Products. The North Dakota Department of Labor (DOL) conducted
an investigation and found that DSU "did not deny [Dick] a reasonable
accommodation." On January 4, 2013, the EEOC fully adopted the North Dakota
DOL's findings and notified Dick of her right to sue. In March 2012, Dick fell at her
home, was injured, and was unable to work in any capacity. DSU gave her a Family
and Medical Leave Act (FMLA) leave of absence and extended leave through June
2014. In 2014, DSU terminated Dick because she was still unable to work.
Dick filed this federal complaint on April 4, 2013, alleging failure to reasonably
accommodate her disability under the Americans with Disabilities Act (ADA),
constructive discharge, and violation of the North Dakota Human Rights Act. DSU
filed a motion to dismiss based on sovereign immunity. The magistrate judge entered
a report and recommendation dismissing the complaint without prejudice and subject
to leave to amend to allow a claim under Section 504 of the Rehabilitation Act, 29
U.S.C. § 794. The report stated, "No other amendments to the complaint should be
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allowed without a motion to amend and leave of court." Before the district court acted
on the magistrate judge's report, Dick filed an amended complaint, which alleged a
violation of the Rehabilitation Act instead of the ADA. The district court adopted the
magistrate judge's report and recommendation in its entirety and stated, "[S]he will
now be allowed to go forward with the claims alleged in the amended complaint that
comply with the findings of the Report and Recommendation." Dick never sought
leave to amend her complaint to include the constructive discharge or North Dakota
Human Rights Act claims. On September 30, 2014, DSU moved for summary
judgment. The district court granted DSU's motion, holding that Dick failed to prove
any adverse employment action to support a Rehabilitation Act claim. Moreover, the
district court noted that claims for work injuries, such as exposure to chemicals, are
addressed through workers' compensation or through tort liability, not the
Rehabilitation Act or the ADA. The district court also dismissed Dick's constructive
discharge claim and violation of the North Dakota Human Rights Act because
"[u]nder the Report and Recommendation, the Court [had] no subject matter
jurisdiction . . . due to [DSU's] sovereign immunity." 2 Dick now appeals arguing that
(1) the district court applied the incorrect statute of limitations to the Rehabilitation
Act claim; (2) the record showed she suffered adverse employment action; and (3)
granting summary judgment was improper.
2Dick does not specifically appeal the constructive discharge claim or violation
of the North Dakota Human Rights Act alleged in her amended complaint, but DSU
briefed these issues. By failing to brief either of these claims, she has waived them.
Harris v. Folk Const. Co., 138 F.3d 365, 366 n.1 (8th Cir. 1998). Nonetheless, both
claims would fail on the merits due to DSU's sovereign immunity. N.D. Cent. Code
§ 32-12.2-10.
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II. DISCUSSION
A. Standard of Review
"We review the district court's grant of summary judgment de novo, viewing the
evidence in the light most favorable to [Dick]." McMiller v. Metro, 738 F.3d 185, 188
(8th Cir. 2013). Summary judgment is proper only when "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). This court generally will not reverse a grant of summary judgment
based on an argument that was not presented below to the trial court. Smith v. City
of Des Moines, Iowa, 99 F.3d 1466, 1473 (8th Cir. 1996). And, "we may affirm the
district court's grant of summary judgment 'on any grounds supported by the record.'"
Evance v. Trumann Health Servs., LLC, 719 F.3d 673, 679 (8th Cir. 2013) (quoting
Moyle v. Anderson, 571 F.3d 814, 817 (8th Cir. 2009)).
B. Statute of Limitations
DSU argues that a six-year statute of limitations should apply to Dick's claims,
and Dick does not oppose applying this limitations period.3 The Rehabilitation Act
does not have its own statute of limitations, Ballard v. Rubin, 284 F.3d 957, 961 (8th
Cir. 2002), and North Dakota has not established a statute of limitations for
Rehabilitation Act claims. "When a federal law has no statute of limitations, courts
3The district court applied 42 U.S.C. § 2000e-5(e)(1) in its analysis of the
statute of limitations issue. If Dick's failure to accommodate claim had remained an
ADA claim, as it was initially pled, as opposed to a Rehabilitation Act claim as titled
in the amended complaint, application of § 2000e-5(e)(1) would have been proper.
"Under the ADA, an employee must file a charge of discrimination–including failure
to accommodate–within 300 days of the alleged discrimination." Henderson v. Ford
Motor Co., 403 F.3d 1026, 1032 (8th Cir. 2005).
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may borrow the most closely analogous state statute of limitations, unless doing so
would frustrate the policy embodied in the federal law." Gaona v. Town & Country
Credit, 324 F.3d 1050, 1054 (8th Cir. 2003) (quoting Birmingham v. Omaha Sch.
Dist., 220 F.3d 850, 854 (8th Cir. 2000)). Generally, courts interpret Rehabilitation
Act claims as personal injury claims subject to the state's personal injury statute of
limitations. Ballard, 284 F.3d at 963. Applying the longest possible limitations
period of six years under North Dakota's general personal injury statute, N.D. Cent.
Code § 28-01-16, many of Dick's claims would still be time-barred. Dick
commenced this action in federal district court on April 4, 2013, over six years after
her July 2006 accommodation request not to be exposed to the Products.
Additionally, as will be discussed in the following section, there is insufficient
evidence to support the contention that Dick suffered any adverse employment action
as a result of the alleged incidents, which is necessary for a § 504 Rehabilitation Act
claim.
Too, Dick argues that the court failed to consider the entire evidentiary record
in its analysis of her claims, especially in regard to her purported hostile work
environment claim. We disagree. Dick's only Rehabilitation Act claim alleged in her
amended complaint was failure to reasonably accommodate her request to avoid
exposure to the Products. For a court to consider the entire record, as Dick requests,
the illegal practice must "involve[] repeated conduct that takes place 'over a series of
days or perhaps years,' as opposed to a 'discrete act[]' that is actionable on its own."
Mercer v. Se. Pa. Transit Auth., 26 F. Supp. 3d 432, 441 (E.D. Pa. 2014) (second
alteration in original) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
115 (2002)). A hostile work environment claim, which was not alleged here, would
allow full review because it is likely comprised of a series of repeated acts, some of
which may fall outside the filing period. However, "[a]n employer's denial of a
request for a reasonable accommodation," which is what Dick alleged here, "is a
discrete act of discrimination that is an independently actionable unlawful
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employment practice under the ADA [or the Rehabilitation Act]."4 Id. at 442
(emphasis added). Thus, because the district court was only considering DSU's
purported denial of Dick's accommodation request, the district court did not err by
failing to considered the entire record. Morgan, 536 U.S. at 114 (holding that the
court may only consider the "discrete acts that 'occurred' within the appropriate time
period").
C. Adverse Employment Action
Dick argues that the district court erred in finding that she suffered no adverse
employment action in connection with her exposure to the Products that would give
rise to a cognizable claim under § 504 of the Rehabilitation Act. We disagree. Dick
lists numerous allegedly adverse employment actions in her amended complaint and
brief, including: failure to be transferred to other employment at DSU, failure to be
granted leave, failure to be permitted to work only nine months a year, continued
exposure to neurotoxins, threats of termination, harassment due to this lawsuit,
retaliation, lower pay, and failure to be granted raises. First, many of these purported
adverse employment actions are not relevant to the failure to accommodate claim but
rather support the constructive discharge claim and Human Rights Act claim, both of
which Dick has waived on appeal. See Harris v. Folk Const. Co., 138 F.3d 365, 366
n.1 (8th Cir. 1998). Second, of the relevant incidents alleged in her complaint and
brief, only a few of them fall within the statute of limitations.
Section 504 of the Rehabilitation Act states, "No otherwise qualified individual
with a disability in the United States . . . shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
4Cases interpreting the ADA and the Rehabilitation Act are interchangeable.
Buboltz v. Residential Advantages, Inc., 523 F.3d 864, 868 (8th Cir. 2008).
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assistance . . . ." 29 U.S.C. § 794(a). An employer discriminates against an employee
"if the employer does 'not mak[e] reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual with a disability who is an
applicant or employee.'" Ballard, 284 F.3d at 960 (alterations in original) (quoting
Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 951 (8th Cir. 1999)). "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." Buboltz v. Residential Advantages, Inc., 523 F.3d 864, 868 (8th Cir.
2008). Only the third factor is at issue in this case. Failure to accommodate claims
under the Rehabilitation Act are analyzed under "a modified burden-shifting analysis,"
meaning that in some instances the employer may be required to prove the essential
functions of the job or show that he was unable to accommodate the employee.
Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 712 (8th Cir. 2003).
"An adverse employment action is a tangible change in working conditions that
produces a material employment disadvantage." Buboltz, 523 F.3d at 868. Examples
include "[t]ermination, cuts in pay or benefits, and changes that affect an employee's
future career prospects." Id. An employer is also liable for committing an adverse
employment action if the employee in need of assistance actually requested but was
denied a reasonable accommodation. Hatchett v. Philander Smith College, 251 F.3d
670, 675 (8th Cir. 2001). Merely being unhappy with employment changes, on the
other hand, is not enough to constitute an adverse employment action. Buboltz, 523
F.3d at 868. Thus, "job reassignment involving no corresponding reduction in salary,
benefits, or prestige" or "minor changes in duties or working conditions, even . . .
unwelcome ones" are insufficient for a claim of employment discrimination under the
Rehabilitation Act. Id. It is also important to note that the "person's disability [must]
serve as the sole impetus for a defendant's adverse action against the plaintiff."
Wojewski v. Rapid City Reg'l Hosp., Inc., 450 F.3d 338, 344 (8th Cir. 2006) (quoting
Amir v. St. Louis Univ., 184 F.3d 1017, 1029 n.5 (8th Cir. 1999)). "A reasonable
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accommodation is one which enables a[n] individual with a disability to perform the
essential functions of the position." Hatchett, 251 F.3d at 675. This does not mean
the employer must hire additional employees, id., give other employees more work,
id., or give the disabled employee indefinite leave, Myers v. Hose, 50 F.3d 278, 283
(4th Cir. 1995).
Dick did not suffer any adverse employment actions due to her disability.
DSU's accommodations were reasonable and enabled Dick to perform the essential
functions of her job as a custodian. The crux of Dick's failure to accommodate claim
under the Rehabilitation Act stems from her exposure to residual smells from the
Products and her alleged harmful exposure to new products in January 2012. In
regard to the residual smells, DSU did not force her to work with the Products.
Rather, DSU relieved Dick of all floor-stripping and -waxing duties and transferred
her twice to different locations where there was less vinyl flooring. Dick argues that
there were alternative accommodations that DSU could have provided; however, "[a]n
employer is not obligated to provide an employee the accommodation he requests or
prefers, the employer need only provide some reasonable accommodation." EEOC
v. Yellow Freight Sys., Inc., 253 F.3d 943, 951 (7th Cir. 2001) (alteration in original)
(quoting Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996)). Further,
most of the exposures to the residual smells of the Products were caused by Dick
failing to stay away from areas where the Products were being used and refusing to
wear the respirator DSU provided. Such accidental exposure to the Products was
certainly not because of her disability; it was inadvertent. Moreover, the residual
smells did not create a disadvantageous work environment, and she cites no tangible,
adverse employment action as a result of the accidental exposures.
Similarly, Dick suffered no adverse employment action or material
disadvantage as a result of the January 2012 exposure to fungicide. After her reaction
to the fungicide, she requested not to be exposed to neurotoxins. DSU's initial
decision to use the fungicide was not a denial of Dick's requested accommodation.
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Dick's reaction was caused by exposure to fungicide, not to the Products in her
requested accommodation. And, there was no adverse employment action after Dick
submitted an accommodation request asking that she not work around or in the
presence of neurotoxins. She was never required to use the fungicide that contained
neurotoxins. Moreover, any claim that DSU failed to use reasonable care in protecting
her should have been brought as a workers' compensation or tort claim, which the
Rehabilitation Act does not address. Smith v. Blue Cross Blue Shield of Kan., Inc.,
102 F.3d 1075, 1077-78 (10th Cir. 1996).
Dick also alleges that she suffered adverse employment action by being denied
medical leave. However, she took leave for various illnesses, which exhausted her
paid leave, and was then allowed to take unpaid leave. She also was never denied
leave for her medical appointments and in fact, was on leave for over two years after
her injury at home. DSU was not, however, required to grant additional indefinite
leave; that is not a reasonable accommodation. See Myers, 50 F.3d at 283.
Lastly, Dick alleges adverse employment action based on not being transferred
to a non-custodian position and DSU's decision not to allow her to work only nine
months a year. However, both of these requested accommodations were made in
September 2006 and thus are time-barred by the statute of limitations. Also, neither
a transfer nor a reduced work schedule were necessary because, as discussed above,
DSU modified Dick's duties so that she successfully continued working as a custodian
until she was hurt at home. Moreover, in regard to the job transfer, such an
accommodation is only reasonable in extreme cases, Burchett v. Target Corp., 340
F.3d 510, 518 (8th Cir. 2003), and Dick could have, but did not, apply for non-
custodian jobs available during her time at DSU. As for the reduced work schedule,
working only nine months a year was not feasible for custodians and thus not a
reasonable accommodation.
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D. Summary Judgment
Dick argues that the district court erred in granting summary judgment because
there are material issues of fact that must be decided at trial. We disagree. At this
stage of the legal process, the judge is not to weigh evidence or assess credibility "but
[should] determine [only] whether there is a genuine issue for trial." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). There is a genuine dispute "when 'the
evidence is such that a reasonable jury could return a verdict for the non-moving
party.'" Westchem Agric. Chems., Inc. v. Ford Motor Co., 990 F.2d 426, 429 (8th Cir.
1993) (quoting Anderson, 477 U.S. at 248). A fact is material if it "might affect the
outcome of the suit." Anderson, 477 U.S. at 248. Thus, there must be more than "the
mere existence of some alleged factual dispute" to overcome summary judgment.
Vacca v. Viacom Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989) (quoting
Anderson, 477 U.S. at 247). Here, Dick asserts facts that allegedly contradict DSU's
argument, but many of those facts are not supported by the record, support claims
Dick did not appeal, or reference incidents of alleged adverse action that are barred
by the statue of limitations as discussed above. Other facts, such as Dick's insistence
that she had in fact previously applied for office jobs at DSU, while disputed, would
not affect the outcome of the suit and as such, are not material. Anderson, 477 U.S.
at 248. Thus, there was no genuine dispute of material fact preventing the district
court from granting summary judgment in favor of DSU.
III. CONCLUSION
The judgment of the district court is affirmed.
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