United States District Court, E.D. Arkansas, Western Division
FINDINGS OF FACT AND CONCLUSIONS OF LAW
LEON HOLMES, UNITED STATES DISTRICT JUDGE
Pitts brought this action against her former employer,
Lindsey & Company, Inc., for violations of the Family and
Medical Leave Act, the Arkansas Minimum Wage Act, and the
Americans with Disabilities Act. The parties settled the FMLA
and AMWA claims. See Document #23. The Court denied
Lindsey & Company's motion for summary judgment on
Pitts's ADA claims. See Document #40. On March
25-27, 2019, the Court held a bench trial on the three
remaining claims: a failure to accommodate Pitts's
disability, discrimination by terminating Pitts's
employment based on her disability, and retaliation by
terminating Pitts's employment because she requested an
accommodation for her disability.
APPLICABLE LEGAL PRINCIPLES
prohibits covered employers from, among other things,
discriminating against a qualified individual on the basis of
disability in regard to the discharge of employees, and in
regard to other terms, conditions, and privileges of
employment. 42 U.S.C. § 12112(a). Prohibited
discrimination includes “not making reasonable
accommodations to the known physical or mental limitations of
an otherwise qualified individual with a disability.”
42 U.S.C. § 12112(b)(5)(A). The ADA also prohibits
retaliating against an employee who requests a reasonable
accommodation for a disability. Scruggs v. Pulaski Cnty.,
Ark., 817 F.3d 1087, 1094 (8th Cir. 2016).
must “make reasonable accommodations to allow disabled
individuals to perform the essential functions of their
positions.” Kiel v. Select Artificials, Inc.,
169 F.3d 1131, 1136 (8th Cir. 1999) (en banc) (citing 42
U.S.C. § 12111(8)-(9)); see also 42 U.S.C.
§ 12112(b)(5). In order to determine whether an
accommodation is necessary, the employer and employee must
engage in an interactive process. Peyton's v.
Fred's Stores of Ark., Inc., 561 F.3d 900, 903 (8th
Cir. 2009). The process must be initiated by the disabled
employee, who must alert her employer to the need for an
accommodation and provide relevant details of her disability.
Schaffhauser v. United Parcel Serv., Inc., 794 F.3d
899, 906 (8th Cir. 2015). The duty to accommodate does not
arise unless the employee requests an accommodation, but the
employee need not use magic words to do so. Ballard v.
Rubin, 284 F.3d 957, 960 (8th Cir. 2002); Fjellestad
v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 n.5 (8th
Cir. 1999). “The notice must merely make it clear to
the employer that the employee wants assistance for his or
her disability.” Fjellestad, 188 F.3d at 952
employer need not accommodate a disability, however, unless
the disabled individual requires an accommodation in order to
perform the essential functions of the job. Brumfield v.
City of Chicago, 735 F.3d 619, 632 (7th Cir. 2013). For
example, where the employer did not provide a sign language
interpreter for a deaf employee, the employer was not liable
for a failure to accommodate because an interpreter was not
required for the employee to perform the essential functions
of his position. Kiel, 169 F.3d at 1134. The Eighth
Circuit affirmed summary judgment for the employer on the
failure to accommodate claim. Id. Thus, when an
“employee's limitations do not affect her ability
to perform [her job's] essential functions, the
employer's duty to accommodate is not implicated.”
Brumfield, 735 F.3d at 633; see also Morse v.
Midwest Indep. Transmission Sys. Operator, Inc., 2013 WL
6502173 at *1 (D. Minn. Dec. 11, 2013) (“There is no
evidence that Morse's Asperger's syndrome interfered
with his ability to perform his job. . . In short, even if
Morse were disabled, he proved that he did not need an
accommodation in order to perform the essential functions of
essential functions of a job are the
“fundamental” job duties. Duello v. Buchanan
Cnty. Bd. of Sup'rs, 628 F.3d 968, 972 (8th Cir.
2010). In determining whether a job duty is an essential
function, considerations include written job descriptions,
the amount of time spent on the job performing the function,
and the consequences of not requiring the employee to perform
the function. Id.
accommodations to allow disabled employees to perform the
essential functions of their positions may include making
existing facilities used by employees readily accessible to
and usable by individuals with disabilities, job
restructuring, acquisition or modification of equipment or
devices, and other similar accommodations. 42 U.S.C. §
12111(9). If more than one accommodation would allow a
disabled individual to perform the essential functions of the
position, the employer has the ultimate discretion to choose
between effective accommodations. Kiel, 169 F.3d at
1137 (citing 29 C.F.R. § 1630.9 (Appendix) (1998)). The
employer may choose the less expensive accommodation or the
accommodation that is easier for it to provide. Id.
An accommodation “does not have to be the
‘best' accommodation possible, so long as it is
sufficient to meet the job-related needs of the individual
being accommodated.” 29 C.F.R. § 1630.9 (Appendix)
(2016). A disabled employee, therefore, is not entitled to
the accommodation of his or her choice. Minnihan v.
Mediacom Commc'ns Corp., 779 F.3d 803, 813 (8th Cir.
2015). Whether an accommodation is reasonable is a question
of fact. See E.E.O.C. v. Convergys Customer Mgmt. Grp.,
Inc., 491 F.3d 790, 796 (8th Cir. 2007).
ultimate question in a disability discrimination claim is
whether a qualified individual suffered an adverse employment
action on the basis of her disability. See Chalfant v.
Titan Distribution, Inc., 475 F.3d 982, 988 (8th Cir.
2007); Otto v. City of Victoria, 685 F.3d 755, 758
(8th Cir. 2012) (citing U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478,
75 L.Ed.2d 403 (1983)).
long been the law in the Eighth Circuit that “[a]s long
as an employee shows that his disability was a
‘motivating factor' in the challenged employment
decision, he is entitled to some relief.” Belk v.
Sw. Bell Telephone Co., 194 F.3d 946, 950 (8th Cir.
1999) (quoting Pedigo v. P.A.M. Transport, 60 F.3d
1300, 1301 (8th Cir. 1995) (hereinafter Pedigo I)
(itself citing 42 U.S.C. § 2000e-2(m))); see also
Oehmke v. Medtronic, Inc., 844 F.3d 748, 756 (8th Cir.
2016) (citing Pedigo I, 60 F.3d
Eighth Circuit has noted that a 2009 Supreme Court decision
casts doubt on the motivating factor causation standard in
ADA cases. See Oehmke, 844 F.3d at 757 n.6 (citing
Gross v. FBL Financial Services, Inc., 557 U.S. 167,
129 S.Ct. 2343, 174 L.Ed.2d 119 (2009)). In Gross,
the Supreme Court held that the Age Discrimination in
Employment Act's prohibition on discrimination
“because of” age requires ADEA claimants to prove
but-for causation. Id. The Eighth Circuit has
commented that Gross's reasoning could arguably
extend to the “on the basis of” language in the
ADA. Id.; see also Pulczinski v. Trinity
Structural Towers, Inc., 691 F.3d 996, 1002 (8th Cir.
2012) (“We have our doubts about the vitality of the
pre-Gross precedent. . . . We can reserve a decision
on the meaning of ‘because of' in the ADA for a
case in which the issue is briefed.”); Palmquist v.
Shinseki, 808 F.Supp.2d 322 (D. Maine 2011) (collecting
cases, extensively analyzing the issue, and ultimately
holding that an ADA discrimination plaintiff must prove
but-for causation to prevail).
did not construe the ADA, however, and neither Gross
nor any subsequent Eighth Circuit case has overruled
pre-Gross ADA precedent, which is still binding on
this Court. In accordance with this precedent, the Court
therefore applies the motivating factor standard in this ADA
case: An employer has discriminated on the basis of an