September Newsletter (Issue 09-2022)

Analysis Of Proof Of Intoxication, Based On Impairment Clue Charts Of The National Highway Traffic Safety Administration (“NHTSA”)

Introduction – Urbaniak v. Director of Revenue, involves the revocation of a motor vehicle license for failure to submit to a blood alcohol test for driving while intoxicated.  I consider the opinion to be unique in that it walks the reader completely through the police officers’ observations of the driver and the indicia of being intoxicated and matches this to the elements of proof of intoxication, based on proof of intoxication, based on Impairment Clue Charts of the National Highway Traffic Safety Administration (“NHTSA”)of the National Highway Traffic Safety Administration (“NHTSA”).  Maybe it’s me, but I have not seen an opinion with this depth of analysis.  I would consider incorporating the lessons from this opinion into the police officers training.

Facts and Procedure: On August 20, 2020, Urbaniak was stopped for speeding for driving 64 miles per hour in a 40-mile-per-hour zone by Deputy Stoff of the Jackson County, Missouri, Sherriff’s Department (“Deputy Stoff”).  During the stop, Urbaniak told the officer he believed that the speed limit was fifty-five miles per hour and he was in a hurry to get home.  Deputy Stoff noted that Urbaniak’s eyes were bloodshot and glassy, and he noticed a moderate odor of intoxicants and burnt marijuana.  Urbaniak stated that he was coming from a friend’s house where he had consumed “a couple of beers” with his last beer being “about forty-five minutes ago.”  Deputy Stoff patted down Urbaniak for safety and felt a large round object in Urbaniak’s front pants pocket, which Urbaniak reported was marijuana.  Urbaniak reported that he had last smoked marijuana “a while ago.”

Deputy Stoff conducted the three Standardized Field Sobriety Tests (“SFST”).  First, he performed the Horizontal Gaze Nystagmus test (“HGN”) and observed a lack of smooth pursuit in both eyes and distinct and sustained nystagmus at maximum deviation.  Urbaniak also swayed during the test, and Deputy Stoff noticed the odor of intoxicants was stronger while Urbaniak was standing in front of him than he previously noted.  Deputy Stoff then conducted the walk-and-turn test, and observed that Urbaniak failed to touch heel-to-toe on his first two steps, lost balance while walking, and used his arms for balance.  Next Deputy Stoff requested Urbaniak perform the one-leg-stand test.  During the performance of this test Urbaniak swayed while balancing but no other clues of intoxication were observed.  Urbaniak refused to submit to a preliminary breath test.  Based on the totality of the circumstances, his observations of impaired driving, the smell of intoxicants emitting from within the driver’s compartment and Urbaniak’s own breath, Urbaniak’s admission to having consumed intoxicants, and his observations of Urbaniak’s impairment while performing the SFSTs, Deputy Stoff placed Urbaniak under arrest for driving while intoxicated.

Deputy Stoff advised Urbaniak of Missouri’s Implied Consent law and requested that he submit to a chemical test of his breath.  After several unsuccessful attempts to contact an attorney, Urbaniak refused to consent to a chemical test of his breath.  Urbaniak received two tickets, one for speeding and one for driving while intoxicated, and was served with a notice of revocation of his license based upon his refusal to submit to a breath analysis test.

Urbaniak filed a petition to review the refusal sanction, and a hearing was held in the Circuit Court.  The Director offered its Certified File, which was received into evidence without objection, and rested. Urbaniak offered into evidence, without objection, the Impairment Clue Charts of the National Highway Traffic Safety Administration (“NHTSA”) relating to driving and stopping and to personal contact between an officer and driver in a DWI stop.  Urbaniak also offered evidence, without objection, that the NHTSA had found the HGN test, by itself if properly administered, to be seventy-seven percent accurate; the walk-and-turn test, by itself if properly administered, to be sixty-eight percent accurate; and the one-leg-stand test, by itself if properly administered, to be sixty-five percent accurate in determining that a subject will have a blood alcohol concentration of over .08.  Urbaniak also offered a copy of the dash- camera and in-car video surrounding his arrest.

The trial court issued a judgment affirming the Director’s decision.  Urbaniak appealed to the Western District.

Analysis: On appeal Urbaniak argued that that the trial court’s judgment was against the weight of the evidence because the evidence did not support the conclusion that Deputy Stoff had probable cause to believe that Urbaniak was driving while intoxicated at the time of his arrest.

Reasonable cause to arrest – Research by the International Association of Chiefs of Police (“IACP”) and the National Highway Traffic Safety Administration (“NHTSA”), has identified three phases to DWI detection.  Phase One is Vehicle In Motion, Phase Two is Personal Contact, and Phase Three is Pre-arrest Screening.  The Western District examined the evidence in detail by applying standards developed by the IACP and NHSTA and determined it supported Deputy Stoff’s determination of reasonable grounds and the trial court’s affirmation of that finding.  The Court added that it would not have reversed a judgment by the trial court finding a lack of reasonable grounds under these facts as against the weight of the evidence, but that it could not conclude that the trial court’s finding that reasonable grounds existed is against the weight of the evidence. “When the evidence poses two reasonable but different conclusions, appellate courts must defer to the circuit court’s assessment of that evidence.” Urbaniak v. Director of Revenue, (WD84569, 09/06/22)

Comment Howard: Obviously this is a very close case that could have either way. That makes it particularly useful.  It also provides a template for digging deep into the evidence to see if it matches the research developed by the IACP and NHSTA.

Western District Upholds Constitutional Amendment For Recreational Marijuana Sending It To The Voters at the General Election in November 2022

Facts and Procedure: Sweeney v. Ashcroft, involves a challenge to the marijuana initiative.  State law specifies the procedures for challenges to initiative petitions, requiring that the challenge had to be brought by a “citizen.” Joy Sweeney (“Sweeney”) brought challenges to the Secretary of State’s (“Secretary”) certification of an initiative petition as Amendment 3 for inclusion on the November 8, 2022 general election ballot.  Legal Missouri 2022 and John Payne (“Proponent”) intervened, and were aligned with the Secretary in defending certification of the initiative petition.  Following a trial, the circuit court entered a judgment on the merits pursuant to Rule 73.01(b), finding that Sweeney’s lawsuit failed for want of jurisdiction because Sweeney failed to put on evidence to establish her standing to challenge the Secretary’s certification of the initiative petition.

The Judgment went on to explain that immediately after the Rule 73.01(b) Motions to dismiss were made, Sweeney immediately moved to reopen the evidence to permit her to put on testimony establishing Sweeney’s standing to bring a Section 116.200.1 challenge.  The Secretary and Proponent objected to Sweeney’s motion to reopen the evidence.  Direct and cross-examination testimony was then taken from Sweeney as an offer of proof on the issue of her standing to file a Section116.200.1 action.  The trial court sustained the Secretary’s and Proponent’s objections to Sweeney’s motion to reopen the evidence, and found that the Initiative Petition did not violate the single subject requirement set forth in Article III, Section 50 of the Missouri Constitution, and that the Secretary properly certified that the Initiative Petition had sufficient signatures to place the measure on the ballot for the November 8, 2022 general election as Amendment 3.  An appeal followed to the Western District.


Standing – Sweeney argued on appeal that the circuit court abused its discretion when it refused her request to reopen the evidence, and that the Rule 73.01(b) Motions were erroneously granted because they relied on a legal standard to establish standing under Section 116.200.1 that is inconsistent with the statute.

Failure to grant motion to reopen case was an abuse of discretion – The Western District noted that “Generally, the decision to allow a party to reopen [the evidence] is within the sound discretion of the trial court.” However, “‘[a] litigant should not be precluded from offering additional evidence simply because counsel has rested his case.'” “[W]hen there is no inconvenience to the Court or unfair advantage to one of the parties, there is an abuse of discretion . . . upon a refusal to reopen a case and permit the introduction of material evidence, that is evidence that would substantially affect the merits of the action and perhaps alter the Court’s decision.”  Failure to allow Sweeney to put on evidence, in these circumstances was an abuse of discretion.

Residency not required to bring lawsuit –The Secretary of State argued that the requirement in the statute that the case be brought by a “citizen” meant that it had to be brought by a resident. The Western District noted that the definition of citizen and resident were entirely different and not equivalent; therefore, the trial court erred in holding that you had to be a resident to bring the lawsuit.  The statute stated that the “any citizen” could bring the lawsuit.

Amendment did not violate single subject requirement of the Missouri constitution –Sweeney’s argued that the Initiative Petition violated the single subject requirement set forth in the Missouri Constitution, which provides, that “[p]etitions for constitutional amendments shall not contain more than one . . . subject and matters properly connected therewith.” Sweeney’s contended that the Initiative Petition violated the single subject requirement because it legalizes the recreational use and possession of marijuana under certain circumstances and authorizes relief from the criminal consequences of certain past marijuana related offenses through expungement and release from incarceration, probation or parole.  The question was whether or not approving recreational marijuana and release of criminal consequences from certain  marijuana convictions were “properly connected.

The purpose of the single subject requirement is settled:

[T]he purpose of the prohibition on multiple subjects in a single ballot proposal is to prevent “logrolling,” a practice familiar to legislative bodies whereby unrelated subjects that individually might not muster enough support to pass are combined to generate the necessary support.  The prohibition is intended to discourage placing voters in the position of having to vote for some matter which they do not support in order to enact that which they earnestly support.  The single subject matter rule is the constitutional assurance that within the range of a subject and related matters a measure must pass or fail on its own merits.

Construing the Initiative Petition “liberally and non-restrictively,” we conclude that the initiative’s multiple provisions all relate to a readily identifiable and reasonably narrow central purpose: decriminalizing the recreational use and possession of marijuana under certain circumstances.  That the Initiative Petition does so both prospectively and retroactively does not make a difference because the multiple provisions were “properly connected” with the “central purpose of the Amendment.

“Provisions [in an initiative petition] that are incidental to effecting the measure’s central purpose are not treated as separate subjects.” retroactively is immaterial, as the central controlling purpose of the measure is served through both prospective and retroactive application of the measure.  Sweeney v. Ashcroft, (WD85679, 09/12/22)

Comment Howard: We learned that the single purpose provision in the Missouri Constitution was not violated by an amendment that applied both retroactively (past marijuana conviction forgiven) and prospectively (legalizes recreational marijuana).

Missouri Supreme Court Approves Sales And Use Tax Exemptions For Not-for-profit In Redevelopment Area

Beyond Housing is a Missouri not-for-profit corporation originally organized for the purpose of encouraging cooperative efforts to combat community deterioration and to secure decent, safe and sanitary housing, community facilities, and other related facilities and services conducive to the progress and general welfare in designated areas of operation.  Since its founding it expanded its mission to provide a wide range of services to meet the needs of persons living within its area of operation.

The Missouri Supreme Court held that the AHC did not err in finding Beyond Housing and PTC II qualified for the charitable exemption because the definitions of charitable and civic organizations in Section 144.030.2 do not create mutually exclusive categories of exemptions and the organizations’ primary purpose in developing Phase IV is to benefit persons with low incomes in a specific area, which is a charitable activity.

The court noted that case law demonstrated retail operations within a charitable facility may further charitable purposes notwithstanding any incidental profit.  The director’s characterization of Phase IV as a commercial retail shopping center and Beyond Housing as an ordinary development agency seeking profit for its civic work ignored the fact Beyond Housing is not developing Phase IV or leasing its space to gain a profit.  It set rent at or below market rates sufficient to pay rents.  This furthered their broader charitable purposes of improving the lot of low-income persons living in the 24:1 area, through providing them access to, among many other things, resources within their own community. Beyond Housing is, as the AHC concluded, “motivated by a benevolent desire to serve an underprivileged population” and “this targeted benevolence overwhelmingly supersedes its general civic functions and profit making.” Beyond Housing v. Director of Revenue, (SC99051, 09/13/22)

Comment Howard:  Put this case into your economic development toolbox. I thought the goals of Beyond Housing to bring services to area like food, retail and medical services was extremely interesting. It was a broad based – holistic approach to redevelopment in a low income that was blighted.

Resisting Arrest Requires Officers To Communicate To Person Fleeing, Like Flashing Lights Or Sirens

Officers on patrol on Washington Street in East Prairie, Missouri, at 2:40 a.m. on May 18, 2019, noticed two men riding bicycles on the street without headlights.  The officers drove up in their patrol vehicle to the bicyclists but did not activate flashing lights or sirens and did not instruct the riders to stop.  One cyclist stopped and the other ran away.  The officers then took off after cyclist (Parham) that ran away activating their flashing red and blue lights and yelling for him to stop.  Parham crashed the bicycle.  In his backpack, officers found a clear plastic baggie containing methamphetamine residue.  Parham was charged and convicted of resisting arrest.

Parham appealed to the Southern District, which found that was no evidence from which a reasonable juror could have concluded that the officers were arresting or attempting to arrest Parham or that Parham should have known the officers were attempting to arrest him when they drove near him without lights, sirens, or a verbal command to stop.  State of Missouri v. Parham, (SD37085, 05/23/22)

8th Circuit Balances Delicate Federal/State Issues In Considering First Amendment Right Of News Company To Have Same Day Access To State Court Records

When Missouri switched to an e-filing system, same-day access to new cases filed became the exception, not the rule.  Newly filed petitions remain unavailable until court staff processes them, which can sometimes take “a week or more.”  Courthouse News wants same-day access again.  It made its views known in a letter to Joan Gilmer, the Circuit Clerk for St. Louis County, and Kathy Lloyd, the Missouri State Courts Administrator.  But Lloyd denied the request because the new system does not have “the ability . . . to give access to new cases filed prior to clerk acceptance.”

Courthouse News sued the Clerk of the Circuit Court for St. Louis County and the State Court Administrator in federal court alleging that the delays violated its First Amendment Rights.  Gilmer and Lloyd filed a motion to dismiss asking the district court to either abstain or rule that Courthouse News’s complaint failed to state a First Amendment claim.  The district court decided to abstain and never ruled on the merits.  Courthouse News appealed to the 8th Circuit.


Sovereign Immunity – The 8th Circuit on its own motion first determined if it had jurisdiction.  Under the doctrine of sovereign immunity, “[s]tates are immune from suit.” The 8th Circuit ultimately concludes sovereign immunity does not apply.

“We understand that this lawsuit toes a fine line between directly interfering with state-court operations and potentially vindicating a litigant’s constitutional rights. It also places the district court in the uncomfortable position of conceivably telling Missouri courts how to implement their own e-filing system.  Although we are “wary of approving new encroachments on sovereignty,” we conclude that, whatever may stand in the way of Courthouse News’s lawsuit, sovereign immunity is not it.”

Abstention – The decision by the district court to abstain was reviewed for abuse off discretion.  The Eighth Circuit  started its analysis by noting that: Federal courts have a “virtually unflagging” obligation to hear and decide cases within their jurisdiction.  As Chief Justice Marshall colorfully put it, to “decline the exercise of jurisdiction” is tantamount to “treason to the [C]onstitution.”  In applying, the abstention doctrine there is a strong policy of federal courts not interfering with pending state judicial proceeding but this case does not fit because there is no pending state litigation, only “…a dispute about who gets to see newly filed petitions.” In this case, by contrast, there is no risk that a decision in Courthouse News’s favor would interrupt any state-court proceeding, despite the significant administrative burden it might place on court staff.  Having concluded that abstention does not apply, the 8th Circuit  issues a cautionary note to the district court. that the case moves forward there needs to be attention given to these “delicate issues of federal-state relationships.”  Case remanded allowing it to proceed.  Courthouse News Service v. Joan M. Gilmer, in her official capacity as the Clerk of the Circuit Court of St. Louis County, Missouri; Kathy Lloyd, in her official capacity as State Courts Administrator for the Missouri Office of State Courts Administrator, (8th Cir., 21-2632, 09/1.9/22)

Comment Howard: The opinion emphasizes that delicate federal/state relations are at stake as a advisory note for the district court.  The opinion, while respecting the First Amendment rights of Courthouse News, made a point of noting that there was no right to get access to the cases with “lighting speed.” I am thinking that the 8th Circuit is thinking that the parties should be able to resolve this matter, preventing this dustup from becoming a major dust storm.

Comment Ragan: I say this in my personal capacity and not in my professional capacity.  My personal opinion is that Missouri Casenet/Show-Me Court court management system is a bad system.  I sympathize with news services trying to obtain information about cases but their complaint about fast access is not the biggest problem with the system.  It is a system with many issues.

No Damages For Businesses That Were Closed Due To Executive Order Given Under Emergency Covid Declaration

Facts and Procedure: In response to the COVID-19 pandemic, Minnesota Governor Tim Walz declared a state of “peacetime emergency” and began issuing executive orders (EOs) intended to combat the spread of the virus.  The EOs pertinent to this appeal limited which types of businesses could continue operations and, later, specified the capacities at which those businesses could operate.  Appellants, three Minnesota businesses and their respective owners, suffered financial losses during the COVID-19 pandemic and while these EOs were in effect.  Appellants brought an Equal Protection Clause claim against Governor Walz and Keith M. Ellison, Minnesota’s Attorney General, in their official capacities and a Takings Clause claim against Governor Walz in his individual capacity, which the district court1 dismissed.  They now appeal that dismissal to the 8th Circuit.


Mootness – The first obligation of the court is always to determine if it has jurisdiction.  In this case it relies on a local government favorite, mootness.  After all, the emergency was no longer in effect, limiting the relief the court could grant, thereby making the case moot.  In this case, there was no likelihood that the Governor of Minnesota would again declare an emergency, making it an exception to the mootness doctrine.  The Plaintiff’s failed to meet their burden of proof by not offering any evidence that there was a likelihood of another emergency.  If a case is moot there is no case or controversy under Article III of the constitution.

Equal Protection and Takings Claim – The 8th Circuit starts with black letter law.  Defendants were entitled to qualified immunity, unless Plaintiff’s can show that there was established law to support their equal protection and takings claims, against individual plaintiffs, which they failed to do.

“A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’”

Plaintiffs suggest that, for decades, it has been clearly established that just compensation is required for government takings.  While the Court agreed with the general proposition, “that does not explain how Governor Walz, in 2020, would have known that his EOs, issued in response to an unprecedented pandemic, constituted a taking for which just compensation was owed.”

The claim for equal protection was based on some businesses being allowed to open back up to 50% of capacity while other businesses were allowed to open only to 25% capacity.  Again, there was no reasonably established law to support this claim.  Northland Baptist Church v, Governor Waltz, (8th Cir., 21-2283, 06/16/22)

Comment Howard: The equal protection claim was interesting and under the right circumstances might have some legs.  After all, businesses, who are the same but treated differently for no valid reason, is generally frowned upon, backed by a significant body of caselaw.

Terminating Tenured Professor – Who Was A Whistleblower – Results In Settlement Of Lawsuit For $625,000

An article in Missouri lawyers Weekly reported that a tenured UMKC professor in the business department, who served as a key source for a 2014 investigation by the Kansas City Star newspaper, exposing that the University used fraudulent data to boast its rankings and obtain donations settled his lawsuit for retaliation in the amount of $625,000.  It is hard to understand how this happens since it is highly likely termination will result in litigation for retaliation.  An adverse employment action against a whistleblower needs to be handled with the utmost care and based on good cause with an airtight case. Otherwise, plan on paying big bucks like hundreds of thousands of dollars.  Arends v. Curators of the University of Missouri, University of Missouri Kansas City, Jackson County Circuit CourtNPR Article.

Officer Protected From Liability For Over 100-mile Per Hour Chase Of Motorcycle Driver

Facts and Procedure: Dube, a police officer in Morrilton, Arkansas, Plumerville’s neighboring town, observed a passenger fall off the back of a motorcycle while it was traveling at around fifty miles per hour.  Dube approached and turned on his blue lights to check on the situation.  Lankford, who was driving the motorcycle and knew there were outstanding warrants for his arrest, hit the accelerator and fled from Dube.  Dube pursued Lankford, and Dube’s dashcam captured the ensuing over- three-minute chase.  Lankford ran a stop sign, weaved through traffic, and several times crossed into the lane of oncoming traffic on a two-lane highway at high speeds.  At one point during the pursuit, Dube communicated over the radio that Lankford was traveling 110 miles per hour.  Police in Plumerville, a neighboring town, set up a police barricade on the road (police car with flashing blue lights parked at an angle across a two-lane highway, prior to entering Plumerville.)

Lankford sued the City, Duvall, and Conway County under 42 U.S.C. § 1983, claiming they violated his Fourth and Fourteenth Amendment right against unreasonable seizure because police used excessive force to seize him.  The City and Duvall moved for summary judgment.  The district court granted summary judgment in favor of the City and Duvall, holding Duvall’s use of force, even if considered deadly force, was justified because Lankford’s driving endangered the lives of officers and bystanders. Lankford appealed to the 8th Circuit.

Analysis: Evidence showed that Lankford was a serious threat for physical harm to officers and bystanders while he actively evaded arrest traveling over 100 miles per hour, weaving around vehicles on a two-lane highway, and several times crossing into the lane of oncoming traffic compelling law enforcement officers to do the same and forcing other vehicles to a narrow shoulder of the road. Supreme Court and 8th Circuit cases hold that deadly force is reasonable where suspect was traveling at high speeds, running red lights, crossing into the wrong lane, and swerving between vehicles on a two-lane road at night); and officer was reasonable in shooting a fugitive who was “intent on resuming” a chase in which he had been traveling at over 100 miles per hour while swerving through traffic for over five minutes).

The 8th Circuit concluded that the undisputed evidence reveals Duvall had probable cause to believe Lankford’s flight threatened the lives of innocent bystanders as well as police.; therefore, the action off the police officer was reasonable.  Lankford v. City of Plumerville (8th Cir., 21-1639, 08/02/22)

Persons Who Worked in Prison Release Program Were Not Employees Entitled To Minimum Wages

DARP is a non-profit drug and alcohol recovery program that caters to persons who avoid imprisonment in a criminal case by agreeing to participate with DARP a work release program.  As a residential program, DARP provides its participants with room and board, clothing, and other necessities.  DARP does not charge costs or fees to those who participate in the program.  Persons who were participants in a court-ordered drug and alcohol recovery program, were not employee’s, subject to Arkansas Minimum Wage Law.  This case pretty well covers the analysis used to determine if persons in a work/release programs are employees, making it a good reference case.  Frochtman v. Arkansas Prosecuting Attorney Association, (8th Cir., 20-2061, 08/25/22)

Disabled Employee Failed To Show University Did Not Offer Her Reasonable Accommodations And That University Did Not Engage In Interactive Process To Help Her Find Another Job

Facts and Procedure: Jessica Ehlers began working at the University of Minnesota’s Boynton Health Service (“Boynton”) in 2012.  In 2014, Ehlers was diagnosed with Temporomandibular Joint Syndrome (“TMJ”), a condition that can affect the jaw by causing popping, clicking, muscular dysfunction, and pain. It can also affect the ability to speak.  In 2015, Ehlers was transferred to an administrative position in Boynton’s Office of Student Health Benefits (“OSHB”).  Ehlers’s new position was primarily a customer-service position that involved answering customer questions by phone, in person, and by email, and resolving customer issues.

As Ehlers condition worsened, she asked for numerous accommodations for her disability, which were granted by the University.  While Ehlers was inquiring about reassignment, she requested full-time medical leave for three weeks and reduced hours for an additional five weeks.  The University approved Ehlers’s request, but in April after she requested an extension of her leave, the University denied the extension request.  It explained that because Ehlers could not work a full schedule, an essential function of her job, it was firing her.  The University denied her last request because Ehlers’s customer-service job required extensive interaction with customers and “cannot be restructured to a non-speaking or reduced speaking position.”

After Ehlers was fired, she filed two Equal Employment Opportunity Commission (“EEOC”) charges against the University.  The EEOC dismissed the charges and notified Ehlers of her right to sue.  Ehlers sued the University under the ADA for discrimination based on her disability, failure to provide a reasonable accommodation for her disability, and retaliation.  Ehlers and the University each moved for summary judgment.  The district court granted summary judgment to the University.  Ehlers appealed to the 8th Circuit, raising only the reasonable-accommodation issue.

Analysis: First, the Court established the legal framework noting that the ADA prohibited employers from discriminating “against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment Discrimination includes “not making reasonable accommodations.”

Reasonable Accommodation – The Court explained that when evaluating claims of failure to provide reasonable accommodations, it applied a modified burden-shifting analysis.  The burden shifting requires the plaintiff to first make a facial showing “that he or she (1) is disabled within the meaning of the ADA, (2) is qualified . . . , and (3) has suffered an adverse employment decision because of the disability.” “To be a ‘qualified individual’ within the meaning of the ADA, an employee must (1) possess the requisite skill, education, experience, and training for his position, and (2) be able to perform the essential job functions, with or without reasonable accommodation.” “The term ‘qualified individual’ means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”

“[I]f the employee cannot perform the essential functions of the job without an accommodation, he must only make a facial showing that a reasonable accommodation is possible.” And if the employee otherwise makes a facial showing, “[t]he burden of production then shifts to the employer to show that it is unable to accommodate the employee.”

If the employer meets its burden of production to “show that the employee cannot perform the essential functions of the job even with reasonable accommodation, then the employee must rebut that showing with evidence of his individual capabilities.” “At that point, the employee’s burden merges with his ultimate burden of persuading the trier of fact that he has suffered unlawful discrimination.”

Qualifications for Alternative Positions – Since Ehlers could not perform the essential functions of her position without an accommodation or reassignment, and no reasonable accommodation could be made the question boiled down to whether Ehlers was qualified for any alternative position.

Ehlers failed to identify jobs for which she was qualified because she needed to do more than provide job numbers, testimony that the identified jobs were clerical, or administrative jobs, and her unsupported testimony that she qualified for them.

Interactive Process – The 8th Circuit next addressed whether the University failed to engage in the interactive process because it did not help Ehlers determine if she was qualified for the jobs she identified. “To establish that an employer failed to participate in an interactive process, a disabled employee must show: (1) the employer knew about the employee’s disability; (2) the employee requested accommodation or assistance for his or her disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodation; and (4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.”

In this case, only the third and fourth requirements were at issue: good-faith effort and but-for causation. The 8th Circuit concluded that there is no genuine dispute of material fact about whether the University acted in good faith to make reasonable accommodations for Ehlers.

Citing examples of its cooperation: The University when Ehlers informed the University of four more jobs she was interested in, it worked with her to develop a lengthy questionnaire, which it forwarded to the relevant hiring supervisors.  One hiring supervisor returned the information, but the position’s duties were inconsistent with Ehlers’s work restrictions.  The University also told Ehlers that if she was concerned about positions being filled before it could obtain information about the positions, she should apply for the jobs and withdraw her application if she did not qualify.

Based on these actions, no reasonable jury could find that the University did not make good-faith efforts to make reasonable accommodations for Ehlers.

Furthermore, even if the University did not use good-faith efforts, Ehlers also needed to show that she “could have been reasonably accommodated but for the employer’s lack of good faith.” Therefore, the 8th Circuit determined that Ehlers has not shown that she was qualified for any jobs based on the lack of evidence about the duties and requirements of the positions and whether she could perform them in light of her extensive work restrictions.  Consequently, there was no liability for failure to engage in a good-faith interactive process when the plaintiff “was not a qualified employee”.  It concluded that there is no genuine dispute of material fact about whether the University failed to engage in the interactive process and the University was entitled to judgment as a matter of law.  Ehlers v. University of Minnesota, (8th Cir., 21-1606, 05/19/22)

Comment Howard: If you are contemplating an adverse employment action against a disabled employee you need to read this opinion.  This case  provides a roadmap allowing you to work through the issues.