Donald Stephens v. United States Environmental Services LLC

United States Court of Appeals
For the Eighth Circuit
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No. 24-3409
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Donald Stephens
Plaintiff - Appellant
v.
United States Environmental Services LLC
Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: November 19, 2025
Filed: February 12, 2026
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Before COLLOTON, Chief Judge, SHEPHERD and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
Donald Stephens worked as an “Operator” for United States Environmental
Services, LLC (“USES”), which required him to maintain an active Commercial
Driver’s License (“CDL”). During a Saturday morning shift, Stephens initially
refused to perform work usually done by technicians and disclosed to his supervisor
that he had a heart condition. In response, USES required Stephens to receive a
medical examination, which resulted in a 45-day hold on his CDL. After USES

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denied Stephens’s request to perform work that did not require a CDL during the 45-
day hold, Stephens resigned. Stephens brought this action, alleging disability
discrimination and retaliation.1 The district court2 granted USES summary
judgment because it found Stephens was not disabled and did not engage in protected
activity. We affirm.
I. BACKGROUND
On February 27, 2021, Stephens reported to a worksite for a Saturday morning
shift to clean out two underground tanks. When he arrived, only the worksite
supervisor, Terry, was present. Terry told Stephens that a technician and two safety
workers were coming, but after Stephens finished setting up his truck for the
technician, they still had not arrived. Terry became impatient and asked Stephens
to start cleaning out the first tank. Stephens declined because he was a truck operator
and not a technician. Stephens also raised numerous safety concerns, such as the
lack of safety workers and safety equipment—including hazmat suits, harnesses, air
monitors, and respirators.
Eventually, the safety workers arrived. They encouraged Stephens to clean
out the tank. Still, Stephens declined. Stephens continued to express his concern
over the lack of safety equipment, and he informed them that he had a heart condition
he did not want to aggravate. With Stephens refusing to clean the tank, Terry cleaned
the first tank himself. Terry became too tired to clean the second tank and demanded
Stephens clean it. Terry threatened to get Stephens fired if he refused to clean the
second tank. This time, Stephens capitulated and cleaned the second tank.
1 Stephens did not specifically list retaliation as a separate cause of action in
his complaint, but the district court addressed retaliation “to the extent [Stephens]
attempted to do so.” We do the same.
2 The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.

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The following Monday, USES requested Stephens be examined by Nurse
Sarah Baxter due to his reported heart condition. During the examination, Nurse
Baxter determined Stephens’s electrocardiogram (“EKG”) was abnormal and placed
a 45-day medical hold on his CDL. Nurse Baxter, however, found Stephens was
medically and physically fit to perform all other work. Stephens’s cardiologist, Dr.
Mangaraju Chakka, reviewed the same EKG and determined it was normal for
Stephens. Dr. Chakka’s findings were communicated to Nurse Baxter, and in
response, Nurse Baxter requested Dr. Chakka perform a stress test on Stephens
before lifting the hold.
Stephens returned to work the day after completing his medical examination.
USES, however, did not let him work due to the hold on his CDL. Stephens
requested to perform other, non-driving work based on Nurse Baxter’s clearance,
but USES denied his request and recommended he seek short-term disability. Two
weeks later, Stephens submitted to a stress test. Dr. Chakka determined the stress
test was unremarkable and cleared Stephens to be a commercial driver. Stephens,
however, resigned at the end of the 45-day hold because he did not feel comfortable
working at USES after they denied his request to perform other work during the 45-
day hold.
Stephens brought this action against USES, asserting claims under the
Americans with Disabilities Act (“ADA”) and the Arkansas Civil Rights Act
(“ACRA”)3 and for violations of the Fair Labor Standards Act (“FLSA”). The
district court dismissed Stephens’s FLSA claim and granted USES summary
judgment on Stephens’s discrimination claim. The district court found that Stephens
was not disabled because his heart condition did not limit a major life activity and
3 “[W]e analyze a disability claim presented under the ACRA under the same
principles employed in analyzing claims under the” ADA. Duty v. Norton-Alcoa
Proppants, 293 F.3d 481, 490 (8th Cir. 2002).

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USES did not perceive Stephens to have a disability.4 The district court also
determined that Stephens did not engage in protected activity to support a retaliation
claim. Stephens appeals the district court’s grant of summary judgment as to his
disability discrimination and retaliation claims.
II. DISCUSSION
We review the district court’s grant of summary judgment de novo, viewing
the record in the light most favorable to Stephens and drawing all reasonable
inferences in his favor. Segal v. Metro. Council, 29 F.4th 399, 403 (8th Cir. 2022).
Summary judgment is appropriate if a party “fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Lacey v. Norac, Inc., 932 F.3d 657, 660
(8th Cir. 2019) (quotation omitted).
A. Disability Discrimination
Under the ADA, a person is entitled to protection if he is “disabled.”
Kirkeberg v. Canadian Pac. Ry., 619 F.3d 898, 903 (8th Cir. 2010). To show he was
disabled, Stephens needed to demonstrate “a physical or mental impairment that
substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A).
The parties agree Stephens suffers a physical impairment: atrial fibrillation. They
disagree about whether his atrial fibrillation substantially limits a major life activity.
“The term ‘substantially limits’ shall be construed broadly in favor of
expansive coverage” and “is not meant to be a demanding standard.” 29 C.F.R.
§ 1630.2(j)(1)(i). Still, “not every impairment will constitute a disability.” 29
C.F.R. § 1630.2(j)(1)(ii). Stephens thus cannot simply rely on his diagnosis. Nyrop
4 Stephens does not argue the district court erred in finding USES did not
regard him as disabled, and, therefore, he has abandoned his “regarded as disabled”
claim on appeal. Griffith v. City of Des Moines, 387 F.3d 733, 739 (8th Cir. 2004)
(deeming issues not briefed on appeal to be abandoned).

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v. Indep. Sch. Dist. No. 11, 616 F.3d 728, 734 (8th Cir. 2010). Rather, Stephens
must “prove a disability by offering evidence that the extent of the limitation caused
by the[] impairment in terms of [his] own experience is substantial.” Ristrom v.
Asbestos Workers Local 34 Joint Apprentice Comm., 370 F.3d 763, 769 (8th Cir.
2004) (cleaned up).
Stephens asserts his atrial fibrillation substantially limits the major life
activities of breathing as well as respiratory, circulatory, and cardiovascular
function.5 29 C.F.R. § 1630.2(i)(1)(i–ii). Specifically, Stephens argues atrial
fibrillation can cause dyspnea, i.e., shortness of breath, and syncope episodes, i.e.,
loss of consciousness caused by inadequate blood flow. But Stephens cannot rely
on “generic ‘evidence of a medical diagnosis of an impairment.’” Kirkeberg, 619
F.3d at 903 (quoting Ristrom, 370 F.3d at 769). Instead, Stephens “must present
evidence showing the degree to which he personally is limited by his condition[].”
Id. Stephens failed to do so.
The record shows Stephens’s atrial fibrillation did not substantially limit his
major life activities. Although Dr. Chakka noted that atrial fibrillation can cause
dyspnea or syncope episodes, he testified that Stephens experienced neither
condition around the time of the incident. Nurse Baxter similarly testified that
Stephens did not have any problems breathing or have any syncope episodes. Nurse
Baxter also found Stephens was medically and physically fit to perform work that
did not require a CDL. While Nurse Baxter placed a hold on Stephens’s CDL
because she believed the EKG showed an inferior ischemia, i.e., a lack of oxygen to
the heart, Dr. Chakka clarified that Stephens’s EKG was normal for him and was not
significant. Dr. Chakka also found the results of Stephens’s stress test were
“unremarkable,” and he explained that Stephens was “doing very well.” Because
5 Stephens appeared to argue to the district court that driving was a major life
activity. On appeal, Stephens clarifies that he has never contended that driving was
a major life activity that qualified him as being disabled, but the impact of his
breathing and cardiovascular function has a significant impact on his driving.
Accordingly, we need not consider whether driving is itself a major life activity.

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Stephens did not show he was disabled under the ADA, summary judgment was
appropriate on his disability discrimination claim.
For the first time on appeal, Stephens argues his atrial fibrillation was in
remission after his ablation procedure in 2015. 42 U.S.C. § 12102(4)(D) (“An
impairment that is episodic or in remission is a disability if it would substantially
limit a major life activity when active.”). We do not typically consider arguments
raised for the first time on appeal. Lackie Drug Store, Inc. v. OptumRx, Inc., 143
F.4th 985, 997 n.7 (8th Cir. 2025) (quotation omitted). We “have discretion to
consider a newly raised argument ‘if it is purely legal and requires no additional
factual development, or if a manifest injustice would otherwise result.’” Combs v.
The Cordish Companies, Inc., 862 F.3d 671, 678–79 (8th Cir. 2017) (quoting United
States v. Hirani, 824 F.3d 741, 751 (8th Cir. 2016)). Stephens’s argument requires
further factual development of his pre-ablation condition. During his deposition, Dr.
Chakka briefly mentioned that Stephens had episodes of rapid heart rate before his
ablation procedure. But the record lacks detail regarding those episodes and is
devoid of other facts suggesting his atrial fibrillation substantially limited any major
life activity before the ablation procedure. Further, Stephens did not argue that
manifest injustice would result. For these reasons, we decline to consider his
argument raised for the first time.
B. ADA Retaliation
For an ADA retaliation claim, the plaintiff “must establish that she engaged
in protected activity, suffered an adverse employment action, and there is a causal
connection between the two.” Heisler v. Metro. Council, 339 F.3d 622, 632 (8th
Cir. 2003). In Heisler, this Court held that “[r]equesting an accommodation is
protected activity,” and, therefore, “[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 she had a good faith belief that the requested accommodation was
appropriate.” Id. (quotation omitted); see also Kirkeberg, 619 F.3d at 908 (“[W]e
are bound by Heisler to conclude that making such a request is protected activity for

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purposes of 42 U.S.C. § 12203(a).”). “A reasonable accommodation is one which
enables an individual with a disability to perform the essential functions of the
position.” Hatchett v. Philander Smith Coll., 251 F.3d 670, 675 (8th Cir. 2001).
Stephens argues his refusal to clean the underground tank without a respirator
was a request for a reasonable accommodation, but the record shows it was actually
a request for general safety equipment available to all employees. Stephens initially
requested a respirator when he was raising general safety concerns, including the
lack of hazmat suits, harnesses, and safety workers. Only after the safety workers
arrived and encouraged Stephens to clean the tank without the proper safety gear did
Stephens mention his heart condition. Even then, he did not say his heart condition
required him to use a respirator. Consistent with Stephens’s actions, Dr. Chakka
testified that he had not instructed Stephens to avoid confined spaces unless he had
a respirator. Stephens further clarified that he requested the respirator because
technicians “were supposed to have respirators,” and “that’s all [he] knew to ask
for,” not because of his heart condition. Stephens knew to ask for a respirator
because he had previously seen technicians using them. As Stephens points out,
OSHA regulations require certain employers to provide respirators to all employees,
not just disabled ones. See 29 C.F.R. § 1910.134. Because Stephens failed to show
he engaged in protected activity, the district court did not err in granting USES
summary judgment on Stephens’s retaliation claim.
III. CONCLUSION
We affirm the judgement of the district court.
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