Tomshack v. Wilkie et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
KEVIN A. TOMSHACK, 4:20-CV-04037-RAL
Plaintiff,
vs.
ROBERT WILKIE,SECRETARY,UNITED
STATES DEPARTMENT OF VETERANS
AFFAIRS; AND UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS,
OPINION AND ORDER GRANTING
DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT
Defendants.
Kevin Tomshack, a twenty-six-year veteran of the United States Airforce, brought this
employment discrimination action under the Americans with Disabilities Act("ADA"), the ADA
Amendments Act of 2008, and the Rehabilitation Act of 1973. Doc. 1 at 1-2; Doc. 27 at 1. He
alleges that his former employer,the Royal C. Johnson Veterans' Memorial Hospital("Veterans'
Hospital"), terminated his employment because of his disability, failed to make reasonable
accommodations for his disability, and retaliated against him for requesting an accommodation.
Doc. 1 at 2, 10-11. Tomshack requests back pay and the value of lost benefits, money damages
for emotional distress, and attorneys' fees and costs. Doc. 1 at 11. The United States Department
of Veterans Affairs and Robert Wilkie, Secretary of the United States Department of Veterans
Affairs,("Defendants") filed a motion for summary judgment. Doc. 16, which this Court now
grants.
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I. Facts
Tomshack suffered injuries during his militaiy service in Kuwait and Kyrgyzstan. Doc.
1 at 2-3. In 2012, after Tomshack had retired from the Airforce, he accepted a job as a janitor at
the Veterans' Hospital. Doc. 1 at 3; Doc. 6 at 2; Doc. 17 at 2; Doc. 18 at 1. Sometime in 2014,
Tomshack had surgery to fuse his C-3,C-4,and C-5 vertebrae. Doc.26-1 at 3. In December 2014,
he was diagnosed with idiopathic thrombosis, rendering him unable to continue working as a
janitor in a hospital setting. Doc. 17 at 2; Doc. 18 at 1; Doc. 19-1 at 4-5. Sometime between his
diagnosis and May 2015, the Veterans' Hospital transferred Tomshack to a full-time file clerk
position in its Care in the Community Department. Doc. 1 at 3; Doc. 17 at 2; Doc. 18 at 1. Lisa
Seeley was Tomshack's supervisor there. Doc. 1 at 2; Doc.6 at 2.
At that time, the Veterans' Hospital was in the process of scanning thousands of paper
medical records. Doc. 1 at 3;Doc. 19-1 at 5. Tomshack's primary responsibility was to scan these
records and upload them to the computer system. Doc. 17 at 2; Doc. 18 at 2. Tomshack began to
suffer neck spasms at work when he stared at a computer screen for too long, which became worse
overtime. Doc. 19-1 at 6-8. Tomshack also suffered from lower back issues, post-traumatic stress
disorder, depression, and degenerative joint and disk disease. Doc. 1 at 3. His back and neck
issues made it difficult for him to sit, stand, or walk for extended lengths of time. Doc. 26-1 at 3;
Doc. 27 at 15.
Tomshack gradually found it more difficult to work full-time. Doc. 26-1 at 5. In August
2015,Tomshack had a second cervical spinal surgery that fused his C-6 and C-7 vertebrae, but the
surgery failed to alleviate his symptoms. Doc. 1 at 3; Doc. 19-1 at 8; Doc. 26-1 at 3, 5. Around
this time and for approximately two years thereafter, Seeley and the Veterans' Hospital allowed
Tomshack to work what was effectively a part-time schedule by using sick leave, annual leave.
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compensatory leave,and leave under the Family Medical Leave Act(FMLA)to reduce his weekly
hours. Doc. 1 at 3; Doc. 17 at 2; Doc. 18 at 3-4. Once Tomshack was out of leave, Seeley and
the Veterans' Hospital let him take leave without pay. Doc. 17 at 2. Seeley initially granted
Tomshack this flexibility because his work did not need to be completed within traditional business
hours. Doc. 17 at 2; Doc. 18 at 4; Doc. 19-2 at 2. Tomshack's part-time schedule was somewhat
of an informal accommodation in that he remained employed full-time despite working reduced
hours.
By September 2015, Tomshack had finished scanning the document backlog, so Seeley
instructed him to begin "consult trackii^." Doc. 1 at 3; Doc. 27 at 3. Consult tracking is one of
the roles of program support assistants. Doc. 1 at 3. It involves updating a veteran's medical
records after the veteran is seen by a care provider outside ofthe Veterans' Hospital system. Doc.
1 at 3—4; Doc.27 at 3. Consult tracking also requires documenting when a veteran who is referred
for a consultation does not receive care. Doc. 1 at 5.
Although Tomshack had begun consult tracking in 2015,it was not until February 7,2016,
that he was officially promoted from a full-time file clerk to a full-time program support assistant
in the Care in the Community Department. Doc. 17 at 2; Doc. 18 at 2. Despite continuing in a
full-time position, Tomshack actually worked, with permission, a part-time schedule by using sick
leave, annual leave, compensatory leave, leave under the FMLA, and eventually leave without
pay. Doc. 17 at 2; Doc. 18 at 4.
In 2015 and 2016, Seeley gave Tomshack very positive performance reviews, and he
received written awards, promotions, and cash bonuses. Doc. 1 at 4; Doc.6 at 3. Onhis November
2016 performance review, Tomshack had five "exceptional" ratings and one "highly successful"
rating. Doc. 1 at 4. The review stated that Tomshack was very accurate and a "subject matter
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expert for scanning." Doc. 1 at 4. He also had "exemplary skills in all aspects ofcustomer service
...[, went to] extra lengths to secure documentation when needed in a timely manner," worked
well with other members of his department, and was "independent and effective in managing his
very high workload." Doc. 1 at 4. Tomshack's "highly successful" grade was in the "Personal
Mastery" section, which noted that he "had four documented episodes of unplanned leave for
medical reasons." Doc. 1 at 4.
On January 5, 2017, Tomshack sent an email to human resources stating that his medical
issues made even part-time work difficult and inquiring about early medical retirement. Doc. 32
at 1,4. On January 10,2017, human resources officer Angyla Lewis met with Tomshack to answer
his questions and give him the forms that he would need to complete. Doc. 32 at 1-2. Tomshack
never retumed the paperwork for early medical retirement to human resources. Doc. 32 at 2.
Around late 2016 and into early 2017, the national priorities of the Veterans Affairs
Administration("VA")shifted to focus on scheduling consultations for veterans within 30 days of
when a referral is made. Doc. 19-2 at 12-13; Doc.26-2 at 10. Around this time, VA evaluations
became more focused on the number of appointments scheduled, rather than the number of open
consults. Doc. 1 at 5.
After working as a GS-5 program support assistant for one year, Tomshack was promoted
to GS-6 on February 5, 2017. Doc. 1 at 5; Doc. 17 at 3; Doc. 18 at 2; Doc. 24 at 2. Around the
time of his promotion and consistent with the VA's new focus, the Veterans' Hospital began
expecting Tomshack to schedule appointments for veterans. Doc. 17 at 3; Doc. 18 at 2, 4; Doc.
19-1 at 10. Under the "Major Duties and Responsibilities" section ofthe program support assistant
job description,"scheduling" is the first task described, and the term "scheduling"appears in seven
of the twenty-two bullet points listed under this section. Doc. 20-7 at 4-5. Scheduling involves
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communicating with a veteran and then calling a health care clinic to schedule that veteran's
appointment. Doc. 19-2 at 2. Because scheduling involves calling health care clinics, it typically
must occur during normal business hours, although calls to veterans can be made outside of
business hours. Doc. 19-2 at 2.
On March 6, 2017, Grace Wilson, a human resources training specialist at the Veterans'
Hospital, emailed Tomshack's direct supervisor Josue Torres to ask if he had "any idea when
[Tomshack] would be retiring?" and whether Tomshack had begun "schedul[ing] any
^[ointments] at all?" Doc.26-1. Torres responded that Tomshack had not done any scheduling
and hoped to retire aroxmd May 2017. Doc. 26-1.
In May 2017, Tomshack was told that he needed to complete a mandatory training so that
he could begin to schedule appointments. Doc. 1 at 5; Doc. 17 at 3; Doc. 18 at 3; Doc. 24 at 2.
The training was scheduled to take place for eight hours a day over a two-week period. Doc. 26-
2 at 5. After the mandatory training was complete,Tomshack and other program support assistants
would receive electronic "keys" that would allow them to access the VA's scheduling software.
Doc. 17 at 3; Doc. 18 at 2; Doc. 19-2 at 4. By the end of May 2017, ail employees who were
assigned to schedule in the Care and the Community Department had completed training except
for Tomshack. Doc. 19-2 at 9.
Tomshack recalls asking Seeley if he could complete the training in half-day increments
because he was not able to work a full day. Doc. 27 at 5-6. According to Tomshack, Seeley told
him that he needed to attend the full eight-hour training days and after that he would need to begin
working eight hours a day,instead of his current four-hour-a-day work schedule. Doc. 1 at 5;Doc.
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26-1 at 8. Seeley did not recall having any such conversations with Tomshack.' Doc. 26-2 at 5.
There is no record that Tomshack submitted a formal accommodation request to attend the training
a half-day at a time, and Tomshack made no such request to the trainer Wilson. Doc. 21 at 1.
On July 17, 2017, when Tomshack's leave reserves were almost depleted, he submitted a
written accommodation request to work part-time. Doc. 1 at 6; Doc. 17 at 3-4; Doc. 18 at 4. At
that time, there was another employee who had expressed interest in job sharing with Tomshack,
where both could work part-time as program support assistants. Doc. 1 at 6. On August 29,2017,
while his accommodation request was pending,Tomshack's immediate supervisor Torres told him
that he could no longer take leave without pay or unauthorized leave. Doc.27 at 18.
On September 18,2017,Equal Employment Opportunity(EEO)Manager Diane Maeschen
and Seeley met Tomshack to discuss his accommodation request. Doc. 17 at 4; Doc. 18 at 5. They
reminded him that he had not completed training to do scheduling. Doc. 17 at 4; Doc. 18 at 5,and
informed him that there were no part-time positions in the Care in the Community Department but
that he could pursue a part-time position in another department. Doc. 19-1 at 16-17; Doc. 19-2 at
6. Tomshack stated that an altemative position suggested to him involved "answering phone calls
...in the basement," which to him did not seem like meaningful work. Doc. 19-1 at 17.
Maeschen and Seeley had a follow-up meeting with Tomshack on October 3,2017, during
which they officially denied his accommodation request, restated that there were no part-time
positions for his current role in the Care in the Community Department, and reminded him of the
need to complete scheduling training. Doc. 17at4;Doc. 18at5. They provided a written decision
stating that Tomshack's requested "accommodation would require removal ofan essential function
^ Taking the facts in the light most favorable to Tomshack as the party opposing summary
judgment,this Opinion and Order presumes that Tomshack's recollection is accurate.
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of the job" and "would require lowering of a performance or production standard." Doc. 1 at 6.
Contemporaneously with denying his request, Maeschen and Seeley offered Tomshack a part-time
position in another department. Doc. 17 at 5; Doc. 18 at 6. Tomshack rejected this alternative,
stating he only wanted a part-time position in the Care in the Community Department. Doc. 17 at
5; Doc. 18 at 6.
In the written denial ofthe accommodation request, the Defendants stated that they would
"review other options" if Tomshack completed the training. Doc. 17 at 4; Doc. 18 at 6. Although
not included in the written decision, Seeley testified that she did not believe job sharing would be
a viable option because it required two employees to negotiate when they took time off with each
other and job sharing had not been successful in other departments. Doc.26-2 at 6. After speaking
with human resources, Seeley did not believe that Tomshack would be able to negotiate when he
took time off with another employee because his disability made it difficult to stick to a consistent
schedule. Doc. 26-2 at 6.
Tomshack received a negative performance evaluation on November 6,2017. Doc. 1 at 6.
On November 17, 2017, Seeley met with Tomshack and gave him a Notice of Performance
Deficiencies stating that he had not performed the required duties of his position and that training
would take place on November 20, 2017, which "he must attend or be removed." Doc. 17 at 5;
Doc. 18 at 6.
According to Seeley's emails on November 20, Tomshack opted to resign during his
meeting with her that morning and then asked if he could delay resignation until January 6,2018.
Doc. 26-9 at 3. That day, Seeley emailed human resources officer Betsy Geiver to inquire if
Tomshack could delay his resignation as requested. Doc. 26-9 at 2. Seeley wrote that Tomshack
"had been a good employee-until he wasn't," but she would be fine ifhe resigned now or in January
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2018. Doc. 26-9 at 2. Geiver replied, "I'm just not sure we can let [Tomshack] continue to not
schedule and perform the duties he's supposed to be doing." Doc. 26-9 at 2. That same day,
Associate Director of Patient Care Services Barbara Teal emailed Seeley stating, "[i]f there are
performance/conduct issues, we would not delay [Tomshack's] resignation." Doc. 26-9 at 3.
Tomshack did not submit a formal accommodation request related to the mandatory
training on November 20,2017,and did not attend the training. Doc. 17at5;Doc. 18at3,6;Doc.
19-1 at 15. Tomshack recalls that on November 22, 2017, Seeley told him again that unless he
began working full-time, he must resign or be fired. Doc. 1 at 6; Doc.27 at 7. Seeley denies this.^
Doc.6 at 3; Doc. 26-2 at 11.
On November 22,2017,Tomshack emailed Seeley a letter stating that he had been working
a part-time schedule for about two years, had no desire to leave the employment of the VA, was
imable to retrain due to being unable to attend eight-hour training sessions and work eight hours a
day. Doc. 1 at 6; Doc. 19-10. Tomshack maintains that he was constructively discharged, and
thus felt forced to resign immediately. Doc. 1 at 6.
Tomshack had a 90% disability rating when he resigned. Doc. 27 at 3. He had not
scheduled any appointments independently because he never completed the training to get access
to the schedulii^ software. Doc. 17 at 3; Doc. 18 at 3; Doc. 19-1 at 10. Tomshack was the only
program support assistant who did not complete the scheduling training. Doc. 19-2 at 9. On
November 29, 2017, he submitted an application for Social Security Disability, which was later
approved. Doc. 17 at 5; Doc. 18 at 7.
^ Because Tomshack is the non-movant opposing summary judgment, this Court presumes that
Seeley actually made such a statement.
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On January 11, 2018, Tomshack filed an EEC complaint, which was received by the VA
Office of Employment Discrimination Complaint Adjudication. Doc. 1 at 7; Doc. 6 at 2. The
complaint alleged discrimination based on disability, failure to accommodate, and retaliation.
Doc. 1 at 7. On September 20,2019, the VA Office of Resolution Management requested a final
action decision on the complaint from the VA Office of Employment Discrimination Complaint
Adjudication. Doc. 1 at 8. No final action decision had been reached by the time this action
commenced on February 25, 2020, over two years after Tomshack filed his EEO complaint. Doc.
Iat8.
n. Legal Standard
Under Rule 56(a)ofthe Federal Rules ofCivil Procedure, summary judgment is proper"if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter oflaw." Fed. R. Civ. P. 56(al: see also Celotex Corp. v. Catrett. 477 U.S.
317, 322(1986). A party opposing a properly supported motion for summary judgment"may not
rest upon mere allegations or denials" in his pleadings but "must set forth specific facts showing
that there is a genuine issue for trial." Gacek v. Owens & Minor Distribution.Inc..666 F.3d 1142,
1145 (8th Cir. 2012); see also Moslev v. Citv of Northwoods.415 F.3d 908,910(8th Cir. 2005).
To establish that a material fact is genuinely disputed,the party opposing summary judgment must
"cit[e] to particular parts of materials in the record" that establish a genuine dispute or "show[]
that the materials cited do not establish the absence ... of a genuine dispute ...." Fed. R. Civ. P.
56(c)(1)(A),(B). In ruling on a motion for smnmary judgment, the facts and inferences fairly
drawn from those facts are "viewed in the light most favorable to the party opposing the motion."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.. 475 U.S. 574, 587-88(1986).
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"The ADA makes it unlawful for a covered employer to discriminate against any qualified
individual on the basis of disability." E.E.O.C. v. Prod. Fabricators. Inc.. 763 F.3d 963,969{8th
Cir. 2014)(cleaned up and citation omitted). "The United States is not a covered employer under
the ADA." Gesinger v. Sebelius. No. CIV 13-1004, 2014 WL 793795, at *2 (D.S.D. Feb. 26,
2014)(citing 42 U.S.C. § 12111(5)(B)(I)). "Federal employers are prohibited from engaging in
discrimination based on physical or mental disability by §§ 501 and 504 ofthe Rehabilitation Act
of1973 —"5Employment Coordinator EmploymentPractices § 20:83, Westlaw(updated
December 2021);see also 29 U.S.C.§ 794. As such, Tomshack's claim is properly brought under
the Rehabilitation Act. However,case law interpreting the ADA guides analyzing Rehabilitation
Act claims because the laws are "similar in substance." Argenvi v. Creighton Univ.. 703 F.3d441,
448(8th Cir. 20131: see also Durand v. Fairview Health Servs..902 F.3d 836,841 (8th Cir. 2018).
The Rehabilitation Act incorporates the enforcement provisions of Title VII to disability
discrimination claims. ^29 U.S.C. § 794a(2)("The remedies, procedures, and rights set forth
in title Vll ofthe Civil Rights Act of 1964(42 U.S.C. 2000d et seq.)... shall be available to any
person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal
provider of such assistance imder section 794 of this title."); 5 Employment Coordinator
Employment Practices § 20:83, Westlaw(updated December 2021). Title VII allows a federal
employee to bring a civil action "after one hundred and eighty days from the filing of the initial
charge with the [employing] department, agency, or unit...." 42 U.S.C. § 2000e-16(c); see also
Murthvv. Vilsack.609 F.3d 460,465(D.C. Cir. 2010)(citing 42 U.S.C.§ 2000e-16)("[A]federal
employee must wait 180 days, absent final action by theEEOC, before filing a lawsuit. .. .").
Tomshack filed this action more than two years after he submitted his EEO complaint, which was
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received by the VA Office that adjudicates such claims. Doc. I at 7. Therefore, this Court has
jurisdiction over Tomshack's claims.
"Discrimination under the ADA and the Rehabilitation Act encompasses both disparate
treatment because of a disability and failure to provide reasonable accommodations to a qualified
individual's known disability." Withers v. Johnson. 763 F.3d 998, 1003 (8th Cir. 2014); see also
Hill V. Walker. 737 F.3d 1209, 1216 (8th Cir. 2013) (quoting 42 U.S.C. § 12112(b)(5)(A))
("Discrimination"imder the Rehabilitation Act"includes not making reasonable accommodations
to the known physical or mental limitations ofan otherwise qualified individual with a disability").
"To establish a prima facie case of disability discrimination" based on disparate treatment, "a
plaintiff must show (1) that he or she was disabled;(2) that he or she was qualified to do the
essentialjob functions with or without reasonable accommodation; and(3)that he or she suffered
an adverse action due to his or her disability." Moses v. Dassault Falcon Jet-Wilmington Corp.
894 F.3d 911,921 (8th Cir. 2018). Ifthe plaintiffestablishes a prima facie case,then the defendant
must "rebut the presumption of discrimination by articulating a legitimate, non-discriminatory
reason for the adverse employment action. . .. If the employer does this, then the burden of
production shifts back to the plaintiff to demonstrate that the employer's non-discriminatory
reason is pretextual." Fennev v.Dakota. Minnesota & E. R. Co..327 F.3d 707,712(8th Cir. 2003)
(cleaned up and citation omitted).
A claim concerning failure to make reasonable accommodations arises from the ADA's
provision that "'discrimination' includes an employers 'not making reasonable accommodations
to the known physical or mental limitations of an otherwise qualified . .. employee, unless [the
employer] can demonstrate that the accommodation would impose an undue hardship on the
operation of[its] business.'" US Airways. Inc. v. Bamett. 535 U.S. 391, 395 (2002)(quoting 42
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U.S.C. § 12112(b)(5)(A)); see also Peebles v. Potter. 354 F.3d 761, 767(8th Cir. 2004). When an
"employer is made aware of the legitimate need for an accommodation," the law requires it to
"make a reasonable effort to determine the appropriate accommodation." Knutson v. Schwan's
Home Serv..Inc.. 711 F.3d911,915(8th Cir. 2013)(cleaned up and citation omitted). "While job
restructuring is a possible accommodation,...[the Eighth Circuit] has held that an employer need
not reallocate or eliminate the essential functions of ajob to accommodate a disabled employee."
Fiellestad v Pi77a Hut of Am..Inc.. 188 F.3d944,950(8th Cir. 1999): see also Knutson.711 F.3d
at 916 (cleaned up and citation omitted)(holding that an employer's duty to make reasonable
accommodation imder the ADA does not require the employer "to reassign existing workers to
assist the [disabled] employee in his essential duties").
"[A]person who is terminated after making a goodfaith request for an accommodation may
pursue a retaliation claim xmder the ADA and the Rehabilitation Act, although the textual basis for
these claims is unclear.... In any event,... retaliation claims under the two statutes [are treated]
interchangeably." Withers. 763 F.3d at 1004 (cleaned up and citation omitted). "To establish
unlawful retaliation . . .,[Tomshack] must show that (1) he engaged in a statutorily protected
activity,(2)the employer took an adverse action against him,and(3)there was a causal connection
between the adverse action and the protected activity." Id at 1004-05 (cleaned up and citation
omitted).
III. Discussion
A. Disparate Treatment Claim
The parties do not dispute that Tomshack was disabled but disagree on whether Tomshack
was a qualified employee under the Rehabilitation Act. Doc. 17 at 8; Doc. 27 at 10. "To be a
qualified individual..., an employee must(1)possess the requisite skill, education, experience.
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and training for [his] position, and (2) be able to perform the essential job functions, with or
without reasonable accommodation." HUl, 737 F.3d at 1216 (citation omitted). "Essential
flmctions of a position are the fundamental duties of the job, but not its marginal functions." Id
at 1217. "[Mjuch ofthe information which determines those essential flmctions lies uniquely with
the employer.... 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
thatjob function can be distributed." Id (cleaned up and citations omitted).
"The following evidence is relevant in determining whether a job duty is an essential
flmction: (1) the employer's judgment as to which flmctions are essential; (2) written Job
descriptions prepared before advertising or interviewing applicants for the job;(3)the amount of
time spent on thejob performing the flmction;(4)the consequences ofnot requiring the incumbent
to perform the flmction; and (5) the current work experience of incumbents in similar jobs."
Higgins V. Union Pac. R.R. Co.. 931 F.3d 664, 670 (8th Cir. 2019)(citation omitted). "[A]n
employer does not concede that a job flmction is 'non-essential' simply by voluntarily assuming
the limited burden associated with a temporary accommodation, nor thereby acknowledge that the
burden associated with a permanent accommodation would not be unduly onerous." Id at 671
(cleaned up and citation omitted).
Tomshack argues he was a qualified employee because scheduling and working within
traditional business hours were not essential job functions. Doc. 24 at 4-6; Doc. 27 at 10. He
argues some schedulers worked on the weekends in support. Doc. 25 at 1. If this Court were to
decide schedtiling was an essential job function, he argues that he would have been qualified to
schedule ifthe Defendants had granted his accommodation request to attend training a half-day at
a time. Doc. 27 at 10-12. The Defendants respond that working full-time and scheduling were
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essential job functions, and Tomshack was not qualified because he was not trained to schedule
and could not work full-time because of his disability. Doc. 17 at 8-10; Doc. 30 at 4-8.
The Eighth Circuit"has consistently stated that regular and reliable attendance is a
necessary element of mostjobs." LIdd v. Careill Meat Sols. Corp.. 911 F.3d 537, 544 (8th Cir.
2018)(clean up and citation omitted). Tomshack's position was full-time, notwithstanding that he
had been effectively working part-time by using a combination ofsick leave, annual leave,FMLA
leave,and unpaid leave. The VA had accommodated Tomshack working this unusual schedule as
a pseudo part-time program support assistant, but the VA's national priorities then changed to
prioritize scheduling. Thereafter, Tomshack's supervisors told him more than once that he needed
to complete the scheduling training and work full-time. Doc. 1 at 5; Doc. 17 at 4; Doc. 18 at 5,
Doc.24 at 2:see Higgins.931 F.3dat 670(8th Cir. 2019)(holding an employer's repeated warning
that an employee's "poor attendance was unacceptable" indicated that consistent job attendance
was an essential element of the employee's position). Reliable and consistent attendance during
the workday was not nonessential to Tomshack's position merely because the Defendants allowed
Tomshack to adopt a flexible, part-time schedule for two-plus years. Rehrs v. lams Co..486
F.3d 353,358(8th Cir. 2007)(cleaned up and citation omitted)("[Ajn employer does not concede
that ajob function is 'non-essential' simply by voluntarily assuming the limited burden associated
with a temporary accommodation, nor thereby acknowledge that the burden associated with a
permanent accommodation would not be tmduly onerous."). Tomshack could not perform the
essential fiinctions of his position as a full-time program support assistant with scheduling
responsibilities and therefore was not a qualified employee under the Rehabilitation Act. See
Treanor v. MCI Telecommunications Corp.. 200 F.3d 570, 575-76 (8th Cir. 2000)(holding an
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employee who sought part-time work was not a qualified employee under the ADA and thus failed
to make a prima facie case when only full-time positions were available).
Further, Tomshack cannot show that he suffered an adverse employment action due to his
disability. Tomshack claims that he was constructively discharged. Doc. 1 at 6; Doc.27 at 2. "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." Fennev. 327 F.3d at 717 (cleaned up and citations omitted); see also Green v.
Bretman. 578 U.S. 547,555(2016)(cleaned up and citation omitted)("A plaintiff must prove ...
that he was discriminated against by his employer to the point where a reasonable person in his
position would have felt compelled to resign ...[and] show that he actually resigned" to support
a constructive discharge claim.). The Eighth Circuit has held "that an employee's being told that
he or she will be fixed for cause does not, in and of itself, constitute constructive discharge."
Summit V. S-B Power Tool.(Skil Com.l. aPiv. ofEmerson Elec. Co.. 121 F.3d416,421 (8th Cir.
1997).
Tomshack has not alleged that his working conditions were intolerable. Tomshack's
supervisors accommodated him by allowing him to work what was effectively part-time in the
years before his reluctantly-made resignation. Doc. 17at2;Doc. 18at4. Tomshack's supervisors
also met with him several times to discuss the need to work full-time and complete scheduling, to
consider his accommodation request, to offer him a part-time position in a different department,
and to remind him of upcoming scheduling training. Doc. 17 at 4; Doc. 18 at 5.
Tomshack, however, maintains that after Seeley dismissed his training accommodation
request and admonished him that he must attend training, she said that he must resign or be fired.
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Doc. 1 at 6; Doc. 27 at 7. Even if Seeley's statement were taken to be a discharge of Tomshack,
he cannot show a causal relationship between that discharge and his disability. Generally but not
exclusively, a plaintiff may show the Defendants' proffered nondiscriminatory reasons for any
adverse employment actions are pretextual "by showing that an employer(1)failed to follow its
own policies, or (2) treated similarly-situated employees in a disparate marmer ... . Whether
the employees are 'similarly situated' is a rigorous test because the employees used for
comparison must be similarly situated in all relevant respects." Prod. Fabricators. Inc.. 763 F.3d
at 970(cleaned up and citation omitted).
The Defendants have proffered Tomshack's failure to work full-time, attend training, and
schedule as nondiscriminatory reasons for any alleged adverse employment action. Doc. 17 at 8-
10. There is no genuine dispute that Tomshack failed to perform in these ways. Tomshack
nonetheless attempts to show these reasons are pretextual by asserting generally that other
"similarly situated" employees were given much more "leeway with their work schedules" and
were not terminated. Doc. 1 at 10. But there is no disparate treatment evidence at all in the record.
"The party opposing summary judgment'may not rest upon the mere allegations or denials
ofthe adverse party's pleading, but... must set forth specific facts showing that there is a genuine
issue for trial.'" Simpson v. Des Moines Water Works. 425 F.3d 538, 541-42 (8th Cir. 2005)
(quoting R. Civ. P. 56(011: see also Young v. Warner-Jenkinson Co.. 152 F.3d 1018,1021 (8th Cir.
1998) (cleaned up and citation omitted) (In resisting a motion for summary judgment, "a
nonmoving party may not rest upon mere denials or allegations, but must instead set forth
specific facts sufficient to raise a genuine issue for trial."). Tomshack has offered no evidence that
odier program support assistants were allowed to work part-time or to forego scheduling training.
Tomshack was the only program support assistant who did not attend the mandatory training. Doc.
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19-2 at 9. And Tomshack himselfacknowledged that his reluctant resignation stemmed from his
inability to work full-time and attend training, rather than from any discriminatory treatment by
the Defendants. Doc. 1 at 6; Doc. 17 at 5; Doc. 18 at 7. Further, the Defendants knew for years
about Tomshack's disability and accommodated him for more than two years by allowing him to
work what was effectively a part-time schedule through a creative use of various forms of leave.
See Prod. Fabricators. Inc.. 763 F.3d at 969-70 (holding that a plaintiff failed to show that he
suffered an adverse employment action because of his disability when his employer knew of his
shoulder injury for a year before it terminated him and accommodated his disability for that year
by "moving him to a less physically demanding position in line with his new work restrictions ..
. [and granting] him leave for his medical appointments")- On this record,Tomshack has no viable
disparate treatment claim as a matter oflaw.
B. Failure to Make Reasonable Accommodations Claim
US Airways. Inc. v. Bamett. 535 U.S. 391 (2002), is the only Supreme Court case that
discusses a failure to accommodate claim. Exbv-Stollev v. Bd.of Cntv. Commissioners. 979 F.3d
784, 825 (10th Cir. 2020)(McHugh, J., dissenting). In Bamett. a US Airways employee injured
his back and consequently was transferred to a less physically demanding position in the mailroom.
535 U.S. at 393. The employee's new position"became open to seniority-based employee bidding
. . . [ujnder US Airways' seniority system," and the employee submitted an accommodation
request to keep hisjob. at 394. The employee lost hisjob after US Airways denied his request.
Id. at 395. The employee then brought a claim under the ADA alleging that US Airways failed to
provide a reasonable accommodation for his disability. Id
The Supreme Court in Bamett relied on the text ofthe ADA in interpreting the employee's
claim, stating that "the ADA says that 'discrimination' includes an employer's ^not making
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reasonable accommodations to the known physical or mental limitations ofan otherwise qualified
. . . employee, unless [the employer] can demonstrate that the accommodation would impose
anundue hardship on the operation of [its] business.'" Id at 396 (quoting 42 U.S.C.
12112(b)(5)(A)). The Supreme Court continued that an employee bringing a failure to
accommodate claim must "show that an 'accommodation' seems reasonable on its
face. I.e., ordinarily or in the run of cases." Id at 402. Upon such a showing, "the
defendant/employer then must show special (typically case-specific) circumstances that
demonstrate undue hardship in the particular circumstances." Id
In Peebles v. Potter, the Eighth Circuit distinguished between disparate treatment claims
and failure to accommodate claims under the ADA. 354 F.3d 761 (8th Cir. 2004). "The failure to
make reasonable accommodations in the employment ofa disabled employee is a separate form of
prohibited discrimination" fi-om an intentional act of discrimination at issue in a disparate
treatment claim. Id at 766. Unlike disparate treatment claims, a failure to make reasonable
accommodations claim "does not tum on the employer's intent or actual motive." Id "Rather,
discrimination occurs when the employer fails to abide by a legally imposed duty. The known
disability triggers the duty to reasonably accommodate and, if the employer fails to fulfill that
duty, we do not care if he was motivated by the disability." I^at 767. Peebles also adopted the
test set forth in Bamett for a reasonable accommodation claim, holding that to survive a motion
for summary judgment, an employee must only "show that the requested accommodation is
'reasonable on its face, i.e., ordinarily or in the run of cases.' . .. Upon such a showing, the
employer is left to 'show special (typically case-specific) circumstances that demonstrate tmdue
hardship in the particular circumstances.'" Id at 768(quoting Bamett 535 U.S. at 401-02).
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Since Peebles, the Eighth Circuit has reiterated that a failure to provide reasonable
accommodations is a discriminatory act itself and therefore reasonable accommodation claims are
analyzed under a modified McDonnell Douglas framework. See Mershon v. St. Louis Univ.. 442
F.3d 1069, 1074, 1077 n.5 {8th Cir. 2006)(cleaned up and citations omitted)("We analyze claims
of failure to accommodate under a modified burden-shifting analysis, because a discriminatory
intent is not at issue.... [An]alleged failure to accommodate is[an]adverse action[, so]... there
is no requirement to demonstrate any adverse action other than the failure to
accommodate itself."); Dick v. Dickinson State Univ.. 826 F.3d 1054, 1059 (8th Cir. 2016)
(cleaned up and citation omitted) ("[A]n employer's denial of a request for a reasonable
accommodation, . . . is a discrete act of discrimination that is an independently
actionable unlawful employment practice under the ADA or the Rehabilitation Act."); see also
Exbv-Stollev. 979 F.3d at 806 (cleaned up and citation omitted)(stating the Third and Eighth
Circuits "typically have purported to incorporate an adverse-employment-action requirement into
ADAfailure-to-accommodateclaims...[citingDickv. Dickinson StatelJniv 826 F.3d at 1060].
... But they do so in name only—^that is,in a manner that is essentially form,rather than substance
... because these circuits classify afailure to accommodate as an adverse 'action.'").
While the Eighth Circuit has not overruled its analysis in Peebles, it has analyzed
reasonable accommodation claims under the McDonnell Douglas framework for disparate
treatment cases by considering whether an employee suffered adverse employment action because
of an employer's alleged failure to accommodate and by considering whether an employer had
discriminatory intent. See, e.g.. Huber v. Wal-Mart Stores.Inc..486 F.3d 480,482(8th Cir.2007)
(requiring an employee to show that she suffered an adverse employment action because of her
disability on a reasonable accommodation claim); Kallail v. Alliant Energy Corn. Servs..Inc..691
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F.3d 925, 930 {8th Cir. 2012)(failing to distinguish between the requirements for a disparate
treatment claim and a reasonable accommodation claim under the ADA). These cases cite Fennev.
which predates Peebles and holds an employee must show that she suffered an adverse
employment action, beyond a failure to accommodate the employee, to be entitled to relief on a
reasonable accommodation claim. Fennev.327 F.3d at 711-12;see also Nicole B.Porter, Adverse
Employment Actions in Failure-to-Accommodate Claims: Much Ado About Nothing,NYU L.Rev.
Online 1, 10 (2019), https://www.nytilawreview.org/wp-content/uploads/2020/01/Porterl.pdf
(stating that the Fennev Court "recognized that disparate treatment claims are treated differently
from failure-to-accommodate claims when it comes to the allocations of burdens of proof," but
"then stated the plaintiff must first make a facial showing that... he has suffered an adverse
employment action" on a failure to accommodate claim).
Most recently,the Eighth Circuit adopted a new test for reasonable accommodation claims,
which varies from the modified McDonnell Douglas framework in Peebles and instead requires an
employee to present a prima facie case imder the McDonnell Douglas framework and to show that
the employer failed to accommodate them. E.g.. Kelleher v. Wal-Mart Stores. Inc.. 817 F.3d 624,
631 (8th Cir. 2016)(cleaned up and citation omitted)("To support her failure to accommodate
claim,[a plaintiff] must establish both a prima facie case of discrimination based on her disability
and a failure to accommodate it."); Schaffhauser v. United Parcel Serv.. Inc.. 794 F.3d 899, 905
(8th Cir. 2015)(same); Moses. 894 F.3d 911, 923 (8th Cir. 2018)(same); Gardea v. JBS USA.
LLC.915 F.3d 537, 541 (8th Cir. 2019)tsamek but see Garrison v. Dolgencorp. LLC. 939 F.3d
937, 941 (8th Cir. 2019)(citing Fiellestad. 188F.3dat 951-52, and providing another test for
reasonable accommodation claims in which an employee must prove(1)she was disabled,(2)she
requested an accommodation, (3) the employer failed to engaged in an interactive process to
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accommodate the employee's disability, and (4)a reasonable accommodation was possible if an
interactive process took place). In short, the elements of a reasonable accommodation claim are
unclear under Eighth Circuit precedent.
Other circuits have distinguished failure to accommodate claims from disparate treatment
claims under the ADA. See, e.g.. Scheidler v. Indiana. 914 F.3d 535, 541 (7th Cir. 2019); Doak
V. John-son. 19 F. Supp. 3d 259, 273-74 (D.D.C. 2014) ("In the D.C. Circuit, failure to
accommodate claims are not subject to the McDonnell Douglas burden-shifting framework.");
Exbv-Stollev. 979 F.3d at 796 (citing Bamett. 535 U.S. at 397, and Peebles. 354 F.3d at 767)
("[Djisparate-treatment claims under the ADA allege that the employer discriminated against the
employee by acting in a discriminatory manner. . . . On the other hand,failure-to-
accommodate claims do not allege that the employer acted, but rather that the employerfailed to
act.").
Recently, in Exbv-Stollev v. Bd. of Cntv. Commissioners. 979 F.3d 784(10th Cir. 2020)
(en banc), the Tenth Circuit thoroughly reviewed the conflict and confusion among the circuits
concerning the differences between a disparate treatment claim and a reasonable accommodation
claim, specifically whether a reasonable accommodation claim requires proof of an adverse
employment action. In a split decision, the Tenth Circuit adopted what it considered to be the
majority view: that a reasonable accommodation claim did not require proof of an adverse
employment action. Exbv-Stollev. 979 F.3d at 795. The Tenth Circuit further stated that
"incorporation of an adverse-employment-action requirement into an ADA failure-to-
accommodate claim [is] contrary to (1) [Tenth Circuit] controlling precedent; (2) the inherent
nature of a failure-to-accommodate claim, as contrasted with a disparate-treatment claim;(3)the
general remedial purposes of the ADA; (4) the EEOC's imderstanding of the elements of
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an ADA failure-to-accommodate claim; and(5)the regularly followed practices ofall ofour sister
circuits." Id at 791-92. "[N]o less than six circuits—the First, Fourth, Fifth, Sixth,Eleventh, and
the D.C. Circuit—either state, or strongly suggest, that there is no adverse-employment-action
requirement in ADA failxne-to-accommodate claims." Id at 804 (cleaned up and citation
omitted). "Any attempt to incorporate an adverse-employment-action requirement into
an ADA failure-to-accommodate claim likely stems from confusion in failii^ to clearly
differentiate between disparate treatment and failure to accommodate claims . . . ." Id at 795
(cleaned up and citation omitted).
While there is disagreement and confusion about whether a reasonable accommodation
claim requires proof of an adverse employment action, courts are clear that a plaintiff bringing a
reasonable accommodation claim must be a "qualified employee." ^Dick. 826 F.3d at 1059
(holding an employer has a duty to make "reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with a disability"); Mershon. 442 F.3d at
1077(holding a plaintiff bringing a reasonable accommodation claim has the burden of showing
such an accommodation "would render him otherwise qualified" under the ADA); E.E.O.C. v.
AutoZone. Inc.. 809 F.3d916,919 (7th Cir. 2016)(quoting 42 U.S.C. § 12111(8))(holding that
an employee bringing a reasonable accommodation claim must be a "qualified individual" under
the ADA, in that she "with or without reasonable accommodation, can perform the essential
functions ofthe employment position"); Doak. 19 F.Supp.3d at 273-74(same);Traban v WayfaiV
Maine. LLC.957 F.3d 54,64(1st Cir. 2020)(same); 1 Americans with Disabilities: Practice
& Compliance Manual § 1:265, Westlaw(updated November 2021)("To establish a prima facie
case offailure to accommodate under § 504 ofthe Rehabilitation Act[] in the employment context.
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the employee must establish... that with reasonable accommodation the employee could perform
the essential functions of the position ").
Because Tomshack is not a qualified employee for the reasons discussed earlier, his claim
fails whether it is reviewed under the McDonnell Douglas framework of a disparate treatment
claim or under the modified McDonnell Douglas fimnework set forth in Peebles. Tomshack
requested an accommodation to attend training on a part-time basis and work part-time. Doc. 1 at
6;Doc. 17 at 3-4;Doc. 18 at 4. However,as discussed, working full-time was an essential function
of Tomshack's position. Tomshack was not qualified for his position because he was not able to
work full-time even if the Defendants granted his accommodation request to attend training on a
part-time basis. "An employee who is unable to come to work on a regular basis is unable to
satisfy any of the functions of the job in question, much less the essential ones. . . . If an
accommodation would leave the employee tmable to perform an essential job function ~ here,
regular attendance ~ her accommodation claim fails." Evans v. Coop. Response Cir.. Inc.. 996
F.3d 539,546-47 (8th Cir. 2021)(cleaned up and citations omitted). See also Dick. 826 F.3d at
1060(cleaned up and citations omitted)("A reasonable accommodation is one which enables an
individual with a disability to perform the essential functions of the position.... This does not
mean the employer must hire additional employees,... give other employees more work,... or
give the disabled employee indefmite leave . .. ."); Tvndall v. Nafl Educ. Centers. Inc. of
California- 31 F.3d 209, 213 (4th Cir. 1994)("An employee who cannot meet the attendance
requirements of the job at issue caxmot be considered a 'qualified' individual protected by
the ADA."); Waggoner v. Olin Corp.. 169 F.3d 481,485 (7th Cir. 1999)("[A]n employee with a
history ofsporadic unpredictable absences is not otherwise qualified."); Lamb v. Qualex. Inc.. 33
F. App'x 49,56-57(4th Cir. 2002)(cleaned up and citations omitted)("An employee who cannot
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meet the attendance requirements of the job at issue cannot be considered a
'qualified' individual protected by the ADA.... Consequently, a plaintiff who can work only on
a part-time basis cannot be a 'qualified individual with a disability' if the ability to work full-
time is essential to his job."); Green v. BakeMark USA.LLC.683 F. App'x 486,491-92(6th Cir.
2017)("[Wjhile a part-time work schedule may be a reasonable accommodation in some cases,..
. it is unreasonable in situations where the essential functions of the job require full-time
attendance.").
As part of his reasonable accommodation claim,Tomshack also alleges that the Defendants
failed to engage in an interactive process. Doc. 1 at 10. 'To show that an employer failed to
participate in the interactive process, an employee must show that:(1)the employer knew of the
employee's disability;(2)the employee requested accommodations or assistance;(3)the employer
did not in good faith assist the employee in seeking accommodations; and(4)the employee could
have been reasonably accommodated but for the employer's lack ofgood faith." Kallail. 691 F.3d
at 933. See also 1 Amerjcans with Disabilities: Practice & Compliance Manual § 1:265,
Westlaw (updated November 2021). "There is no per se liability under the ADA if an employer
fails to engage in an interactive process, but the failure ofan employer to engage in an interactive
process to determine whether reasonable accommodations are possible is prima facie evidence
that the employer may be acting in bad faith." Kallail. 691 F.3d at 933 (cleaned up and citation
omitted). It is unnecessary to consider whether the Defendants failed to eng^e in an interactive
process because Tomshack does not have a viable reasonable accommodation claim.^ ^Hill.
737 F.3d at 1218(holding a plaintiff did not create a genuine issue on whether her employer failed
^ Defendants appeared to have engaged in such an interactive process through the September 18,
2017, and October 3, 2017, meetings among Seeley, EEC Manager Diane Maeschen, and
Tomshack.
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to engage in an interactive process when she could "not perform the essential functions of her
position, with or without reasonable accommodation")-
C. Retaliation Claim
A retaliation claim requires an employee to show that"(1) he engaged in a statutorily
protected activity,(2)the employer took an adverse action against him,and(3)there was a causal
connection between the adverse action and the protected activity." Withers. 763 F.3d at 1004-05
(cleaned up and citation omitted). Requesting a reasonable accommodation is a protected activity.
Kirkeberg v. Canadian Pac. Rv.. 619 F.3d 898, 907-08 (8th Cir. 2010). Furdier,"[a]n individual
who is adjudged not to be a qualified individual with a disability may still pursue a retaliation
claim under the ADA as long as he had a good faith belief that a requested accommodation was
appropriate." Id. at 907(8th Cir. 2010)(cleaned up and citation omitted). "Generally, more than
a temporal connection between the protected conduct and the adverse employment action is
required to present a genuine issue offact on retaliation." Prod. Fabricators. Inc.. 763 F.3d at 973.
Tomshack alleges he was given a poor performance review and notice of deficiencies
in retaliation for requesting an accommodation. Doc. 1 at 6;Doc.27 at 20. The Defendants offered
Tomshack's failure to schedule, work full-time, and attend training as nondiscriminatory reasons
for the alleged adverse employment actions. Doc. 17 at 13-14. Tomshack has not offered any
evidence to show these reasons are pretextual. To the contrary, he admitted his inability to attend
training and work full-time in his resignation letter. Doc. 1 at 6; Doc. 17 at 5; Doc. 18 at 7. The
emails between Seeley and other administrators at the Veterans' Hospital discussing Tomshack's
resignation request also do not suggest that the Defendants had any intent to retaliate or
discriminate against Tomshack. Doc. 26-9 at 2-4. See Prod. Fabricators. Inc.. 763 F.3d at 974
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(affirming summary judgment on an employee's retaliation claim when the employee had not
shown that his employer's nondiscriminatory reasons for terminating him were pretextual).
Tomshack also alleges he was required to work-full time in retaliation for requesting to
attend training on a part-time basis. Doc. 1 at 6; Doc. 27 at 20. However, it is not an adverse
employment action to require an employee to perform the essential functions of his position. See
Jackman v. Fifth Jud. Dlst. Dep't of Corr. Servs.. 728 F.3d 800,804(8th Cir. 2013)("An adverse
employment action is defined as a tangible change in working conditions that produces a material
employment disadvantage, including but not limited to, termination, cuts in pay or benefits, and
changes that affect an employee's future career prospects "). Even when reviewing the facts
in the light most favorable to Tomshack, he has not shown that he suffered any adverse
employment actions in retaliation to requesting an accommodation.
IV. Conclusion and Order
Because Tomshack does not have a viable disparate treatment claim, failure to
accommodate claim, or retaliation claim, it is hereby
ORDERED that the Defendants' motion for summary judgment. Doc. 16, is granted.
DATED this 10th day of Februaiy,2022.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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