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Date: 12-08-2018
Case Style:
Janice Hustvet v. Allina Health System
Case Number: 17-2963
Judge: Grasz
Court: United Stated Court of Appeals for the Eighth Circuit on appeal from the District of Minnesota (Hennepin County)
Plaintiff's Attorney: Adrianna Shannon and Bonnie M. Smith
Defendant's Attorney: Sara Gullickson McGrane and Randi J Winter
Description:
Janice Hustvet sued her former employer, Allina Health System (“Allina”),
alleging violations of the Americans with Disabilities Act (“ADA”) and the
Minnesota Human Rights Act (“MHRA”), after Allina terminated Hustvet’s
employment for refusing to fulfill a job requirement that she take necessary steps to
develop immunity to rubella. Hustvet appeals the district court’s1 adverse grant of
summary judgment to Allina. After de novo review of the record, we affirm.
I. Background
Allina is comprised of thirteen hospitals and approximately ninety clinics in
Minnesota and western Wisconsin. In 2013, one of the Allina system’s entities, Sister
Kenny Rehabilitation Institute, merged with an entity called Courage Center, where
Hustvet was employed. This resulted in the establishment of the Courage Kenny
Rehabilitation Institute (“CKRI”). CKRI consisted of Allina’s rehabilitation clinics
and inpatient and outpatient rehabilitation facilities. A goal of the merger was to help
Allina “provide comprehensive start to finish types of care for patients” needing
rehabilitation services.
In March 2013, the Courage Center first announced to its employees that the
merger had been officially approved and that they would become employees of Allina
Health on June 1, 2013. Allina offered employment to all Courage Center employees
who met Allina’s conditions for employment, which were outlined in a May 2, 2013
letter, and which included a pre-placement health assessment screen. The health
screen included tracking for immunity to certain communicable diseases, as well as
a Respirator Medical Evaluation (“RME”), which was based on an OSHA form, and
asked questions about potential health conditions directed at evaluating safe
respirator fit and use.
At the time of the merger, Hustvet had worked at Courage Center for roughly
fifteen years, most as an Independent Living Skills Specialist (“ILS”). Hustvet’s
general role as an ILS was “[t]o educate, support and assist clients with disabilities
1The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
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in developing and maintaining their maximum level of independence in their home
and community.” Much of the job involved providing services tailored to the
individual client, such as “nutrition and cooking, financial management, time
management, household organization, health care management, housing, etc.” The
clients Hustvet worked with included those who were disabled because of spinal cord
injuries, brain injuries, and illnesses. All of these clients were treated as if they had
“compromised” or “fragile” immune systems.
On May 13, 2013, Hustvet completed her pre-placement health assessment and
stated that she did not know whether she was immunized for rubella. Later that
month, testing confirmed that she was not immunized for rubella. Hustvet also turned
in a RME Form but, as authorized by her Courage Center supervisor, did not fill in
the information other than stating her identifying information and writing “N.A.” near
the top of the form. Hustvet’s supervisor told her that the RME did not relate to her
position as an ILS.
After the merger, on or about July 1, 2013, Allina told Husvet that she would
need to submit a complete RME, explaining it was required for all employees with
patient/client contact. Allina also told Hustvet she needed to develop immunity to
rubella by taking one dose of a Measles, Mumps, Rubella vaccine (“MMR vaccine”).
Hustvet failed to satisfy either request, but at one point said she was willing to
complete the RME. Ultimately, however, Hustvet never completed the RME or
developed immunity to rubella.
Hustvet explained to an Allina representative that she was concerned about
taking the MMR vaccine, stating that her “health is of the utmost concern” and that
she previously “had severe cases of mumps and measles, the MM part of the MMR.”
Hustvet also told Allina that she had many allergies and chemical sensitivities, and
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so she needed to limit her “exposure.” Hustvet 2 inquired about a rubella-only
vaccine, with which an Allina representative expressed satisfaction. However,
Hustvet later discovered such a vaccine was not available. On July 10, 2013, after
confirming that Hustvet refused to become immunized, Allina terminated Hustvet’s
employment, explaining that due to her refusal to comply with immunity requirements
and her failure to complete the RME, she had voluntarily resigned her position.
Hustvet then sued Allina, alleging discrimination, unlawful inquiry, and
retaliation claims under both the ADA and the MHRA. Hustvet and Allina filed
cross-motions for summary judgment. The district court denied Hustvet’s motion and
granted Allina’s motion, dismissing all of Hustvet’s claims with prejudice. Hustvet
timely appealed.
II. Discussion
Hustvet challenges the district court’s summary judgment on her federal and
state unlawful inquiry claims, failure-to-accommodate claims, and retaliation claims.
We consider each under a de novo standard of review. Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc).
When considering the evidence, we make “all reasonable inferences ‘in the
light most favorable to the nonmoving party.’” Bunch v. Univ. of Ark. Bd. of Trs., 863
F.3d 1062, 1066 (8th Cir. 2017) (quoting Moody v. Vozel, 771 F.3d 1093, 1096 (8th
Cir. 2014)). “Summary judgment shall be granted ‘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 of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).
2Hustvet had also suffered from seizures decades before, but controlled her
condition with medication. When discussing the rubella vaccination requirement
with an Allina representative, she did not mention her seizures.
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This court may affirm the grant of summary judgment “for any reason
supported in the record, even if that reason is different from the rationale of the
district court.” Wierman v. Casey’s General Stores, 638 F.3d 984, 1002 (8th Cir.
2011). This is true “even if [the district court] committed legal error in reaching the
correct result.” Id.
A. Unlawful Examination Claims
Hustvet claims Allina violated the ADA and the MHRA when it required her
to complete a health screen as a condition of employment. The district court
concluded Hustvet did not suffer tangible injury as the result of refusing to complete
the health screen and therefore her claim failed as a matter of law. Although we
disagree with the district court’s rationale, we ultimately affirm the summary
judgment order because the undisputed facts show the health screen complied with
the ADA and the MHRA.
The ADA prohibits covered employers from “discriminat[ing] 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.” 42 U.S.C.
§ 12112(a). Subsection (a)’s prohibition against discrimination includes medical
examinations and inquiries. Id. § 12112(d)(1).
The ADA does not forbid all medical examinations and inquiries. Their
permissibility and scope varies depending on the stage of employment. See id.
§§ 12112(d)(2)–(4); Cossette v. Minn. Power & Light, 188 F.3d 964, 968 (8th Cir.
1999). Employers are generally prohibited from making any disability-related
inquires or requiring medical examinations of applicants before offering employment.
See 42 U.S.C. § 12112(d)(2)(A). After an offer has been made, however, the ADA
“permits employers to require a medical examination of a prospective employee . . .
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and it permits them to condition a final offer of employment upon the results of the
examination only under certain circumstances.” Cossette, 188 F.3d at 968 (citing 42
U.S.C. § 12112(d)(3)). The ADA meanwhile generally prohibits employers from
requiring current employees to undergo medical examinations or inquiries unless the
employer can demonstrate they are “job-related and consistent with business
necessity.” 42 U.S.C. § 12112(d)(4).
If a violation occurs, it is not necessary that an applicant be disabled to bring
a claim under § 12112(d). See Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007).
The applicant must, however, establish the prospective employer’s “violation of the
ADA caused some sort of tangible injury.” Cossette, 188 F.3d at 970.
Relying on our decision in Cossette, the district court held that Hustvet’s
inquiry claim failed as a matter of law because Hustvet did not suffer any tangible
injury. The district court based this conclusion on its finding that Hustvet’s
injury—the loss of her job—occurred not because she refused to complete the health
screen, but instead because she did not develop immunity to rubella. Hustvet argues
the district court’s analysis was improper because the evidence showed that Allina
terminated Hustvet’s job, at least in part, because she failed to complete the health
screen.
We agree with Hustvet that it was improper for the district court to award
summary judgment to Allina under the rationale that Hustvet was not injured. Allina
employee Heather Lindblom sent an email to Hustvet clearly stating that completion
of the health screen was a condition of her employment and Hustvet was “voluntarily
terminating” her position due to her refusal “to finish the assessment and get the
MMR and fill out the Respiratory form.” This evidence, viewed in the light most
favorable to Hustvet, demonstrates that Hustvet suffered tangible injury as a result of
her refusal to finish the health screen. Therefore, the district court’s rationale cannot
support dismissing Hustvet’s inquiry claim as a matter of law.
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This does not end our analysis, however, since we may affirm the award of
summary judgment for any reason supported in the record. See Wierman, 638 F.3d
at 1002. Here, we conclude Allina’s required health screen was consistent with the
ADA’s requirements.
In making this assessment, we first address Hustvet’s employment status at the
time she was required to complete the health screen. Hustvet argues she never
received an offer of employment and thus the medical examinations and inquiries
were impermissibly made before an offer of employment. Alternatively, she argues
she was a “continuous” employee and the health screen requirement was imposed
after she was employed. Either way, Hustvet contends “Allina cannot rely on the
‘entrance examination’ standards.” Allina, on the other hand, argues the health screen
was a condition of employment enforced after its offer of continued employment and
before Hustvet began working as an employee of Allina, and is therefore governed
by 42 U.S.C. § 12112(d)(3).
We are inclined to agree with Allina that the health screen was an entrance
examination governed by 42 U.S.C. § 12112(d)(3). It is undisputed that Hustvet
received a letter confirming she, as a Courage Center employee, would “soon be” an
employee of Allina on the merger date, so long as she met the health screen
requirements. The letter clarified that the health screen needed to be completed
before her employment with Allina. The fact that her job was ultimately terminated
after the merger occurred, when Allina officials discovered Hustvet’s failure to
complete the health screen, does not change the fact that Allina had required action
before her placement as an Allina employee.
Ultimately, however, we need not resolve this question because the health
screen was permissible even if Hustvet was considered Allina’s employee at that
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time. As to employees, “[t]he 3 ADA prohibits employers from ‘requiring a medical
examination . . . unless such examination . . . is shown to be job-related and consistent
with business necessity.’” Parker v. Crete Carrier Corp., 839 F.3d 717, 722 (8th Cir.
2016) (quoting 42 U.S.C. § 12112(d)(4)(A)). The employer must establish the exam
or inquiry is job-related, the business necessity for the exam or inquiry is vital to the
business, and the exam or inquiry is no broader or more intrusive than necessary. See
id. “Courts will readily find a business necessity if an employer can demonstrate . . .
a medical examination or inquiry is necessary to determine . . . whether the employee
can perform job-related duties when the employer can identify legitimate, nondiscriminatory
reasons to doubt the employee’s capacity to perform his or her duties.”
Id. (ellipses in original) (quoting Thomas, 483 F.3d at 527). The examination or
inquiry must be a reasonably effective way to accomplish the employer’s goals. See
id.
Further, we have explained that “[w]hen an employer requires a class of
employees to submit to a medical exam, it also ‘must show that it has reasons
consistent with business necessity for defining the class in the way that it has.’” Id.
3As mentioned above, the requirements are less strict if the exam or inquiry is
given to prospective employees who have already been offered jobs. See, e.g., EEOC
v. BNSF Railway Co., 902 F.3d 916, 922 (9th Cir. 2018) (“Unlike examinations
conducted at any other time, an employment entrance examination need not be
concerned solely with the individual’s ability to perform job-related functions . . . nor
must it be job-related or consistent with business necessity.”) (internal quotation
omitted). Subsection (d)(3) generally permits an employer to make its offer of
employment conditional upon the results of a medical examination (and/or inquiry)
so long as certain conditions are met, such as that all employees are subjected to the
examination (and/or inquiry) regardless of disability, the information is kept
confidential, and the criteria used to screen employees are job-related and consistent
with business necessity. See 42 U.S.C. §§ 12112(d)(3)(A)–(C); 29 C.F.R.
§ 1630.14(b). Minnesota law also expressly permits post-offer, pre-employment
medical examinations that test for essential job-related abilities. Minn. Stat.
§ 363A.20, subdiv. 8.
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(quoting Conroy v. N.Y. State Dep’t of Corr. Servs., 333 F.3d 88, 101 (2d Cir. 2003)).
This burden is satisfied when the employer can show “a ‘reasonable basis for
concluding’ that the class poses a genuine safety risk and the exam requirement
allows the employer to decrease that risk effectively.” Id. at 722–23 (quoting Conroy,
333 F.3d at 101.) When defining the class, we do not require precision, as defining
the class in a reasonable manner is sufficient.
In Parker, we affirmed the grant of summary judgment to a trucking company
on its employee’s claim that the trucking company violated the ADA by requiring all
employees with a Body Mass Index over a certain criteria undergo a sleep study
examination to test for sleep apnea. 839 F.3d at 719–20. We concluded the
mandatory sleep study in Parker was job-related because it dealt with a condition that
could impair its drivers’ ability to operate their vehicles and it was consistent with a
business necessity because the sleep study was needed to decide whether the drivers
had a condition that posed a public safety hazard. Id. at 723. We reasoned the exam
was not more intrusive than necessary because the sleep study exam was the best way
to test for the condition. Id.
As in Parker, we believe Allina’s decision to force a class of employees (those
employees with client contact who merged into the company) to undergo a health
screen was job-related and consistent with a business necessity. The information
requested and the medical exam, which tested for immunity to infectious diseases,
were related to essential, job-related abilities. The undisputed evidence shows that
the purposes of Allina’s health screen were to (a) ensure that incoming employees
who might come into contact with clients had immunity to communicable diseases
as recommended by the Centers for Disease Control and Prevention (“CDC”) and
Joint Commission accreditation requirements, as well as in furtherance of Allina’s
overarching internal policy of ensuring employee and patient safety by decreasing the
risk of communicable disease exposure and transmission; and (b) determine whether
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it was medically safe for incoming employees who may come into contact with clients
to wear a respirator in the event of an emerging disease outbreak.
Allina’s testing of future employees who work with clients for immunization
to certain diseases, including rubella, would reveal if they posed a risk of spreading
those diseases to Allina’s clients. The fact that rubella has been eliminated in the
United States does not mean testing for immunity to this specific disease was
unnecessary or more intrusive than necessary. While the evidence shows that “[a]s
a result of widespread immunization, rubella does not circulate in the United States,”
it “remains a common disease in many parts of the world,” “can be contracted through
foreign travel” and is particularly dangerous to expectant mothers and infants. The
CDC recommends that the “[r]ubella vaccine should be given to people without
evidence of immunity, and everyone should be brought up to date with ageappropriate
vaccination (one or two doses) unless contraindicated or risk outweighs
the benefit due to precautions.” This is particularly true for healthcare professionals
and those working in heathcare settings.
In light of this evidence, we conclude that Allina’s decision to require those
incoming Courage Center employees with client contact to complete an inquiry and
exam was job-related, consistent with business necessity, and no more intrusive than
necessary. We therefore affirm the summary judgment awarded to Allina.
For similar reasons, we affirm the grant of summary judgment to Allina on
Hustvet’s MHRA claim. Minnesota law provides that “[e]xcept when based on a
bona fide occupational qualification, it is an unfair employment practice for an
employer . . . , before a person is employed by an employer . . . to . . . require or
request the person to furnish information that pertains to . . . disability . . . , or, subject
to section 363A.20, to require or request a person undergo a physical examination.”
Minn. Stat. § 363A.08, subd. 4(a)(1). Under Minnesota law, where consideration for
the public safety is involved, an employer who attempts to rely on the bona fide
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occupational qualification must only establish “there is a rational basis in fact to
believe that elimination [of the bona fide qualification] would increase the likelihood
of risk of harm” to the employer’s clients. Lewis ex rel. Welles v. Metro. Transit
Comm’n, 320 N.W.2d 426, 431 (Minn. 1982). For the reasons discussed above, we
conclude there was a rational basis in fact to believe the elimination of the immunity
and respirator-fit requirements would increase the risk of harm to Allina’s immunitycompromised
patients.
B. Failure-to-Accommodate Claims
We next address Hustvet’s failure-to-accommodate claims. Both the ADA and
the MHRA prohibit employers from discriminating against qualified individuals on
the basis of disability. See 42 U.S.C. § 12112(a); Minn. Stat. § 363A.08, subd. 2.
“This includes ‘not making reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with a disability who is an
applicant or employee.’” Kelleher v. Wal-Mart Stores, Inc., 817 F.3d 624, 631 (8th
Cir. 2016) (quoting 42 U.S.C. § 12112(b)(5)(A)). See also Minn. Stat. § 363A.08,
subd. 6 (setting forth the MHRA’s reasonable accommodation standard).
“As a threshold matter, [Hustvet] must produce sufficient evidence to
demonstrate that [she] has a disability within the meaning of the ADA.” Fenney v.
Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 713 (8th Cir. 2003). A person is disabled
for purposes of an accommodation claim if he or she has “[a] physical or mental
impairment that substantially limits one or more of the major life activities of such
individual” or has “record of such an impairment.” 29 C.F.R. § 1630.2(g)(1)(i) and
(ii). See also 29 C.F.R. § 1630.2(o)(4) (providing that a covered entity “is not
required to provide a reasonable accommodation to an individual who meets the
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definition of disability solely under the ‘regarded as’ prong (paragraph (g)(1)(iii) of
this section)”).4
A plaintiff “must also establish a failure to accommodate [her] disability.”
Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 906 (8th Cir. 2015). To
determine the necessity of an accommodation, the employee and employer must
engage in an interactive process. Id. “This interactive, accommodation-seeking
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.” Id.
A disabled employee must demonstrate the following factors to show
that an employer failed to participate in the interactive process: 1) the
employer knew about the employee’s disability; 2) the employee
requested accommodations or assistance for his or her disability; 3) the
employer did not make a good faith effort to assist the employee in
seeking accommodations; and 4) the employee could have been
reasonably accommodated but for the employer’s lack of good faith.
4The MHRA defines a “disability” as “any condition or characteristic that
renders a person disabled.” Minn. Stat. § 363A.03, subd. 12. “A disabled person is
any person who (1) has a physical, sensory, or mental impairment which materially
limits one or more major life activities; (2) has a record of such an impairment; or (3)
is regarded as having such an impairment.” Id. As the district court noted, the
Minnesota Supreme Court at one point did state that because of its use of “materially”
instead of “substantially,” the MHRA’s standard is “less stringent” than the ADA
standard. See Sigurdson v Carl Bolander & Sons Co., 532 N.W.2d 225, 228 (Minn.
1995). However, Congress has since amended the ADA by lowering the
“substantially” standard in 2008. See 42 U.S.C. § 12102(4)(B) (incorporating ADA
Amendments Act of 2008, Pub. L. No. 110-325, § 2, 122 Stat. 3553). We agree with
the district court that “[b]ecause the standards now appear to align, and because
Hustvet does not make any argument that she is materially (as opposed to
substantially) limited in her performance of major life activities, the Court analyzes
her claims under the amended ADA standard.” Hustvet v. Allina Health Sys., 283 F.
Supp. 3d 734, 739 n.2 (D. Minn. 2017).
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Peyton v. Fred’s Stores of Ark., Inc., 561 F.3d 900, 902 (8th Cir. 2009) (quotation
omitted).
Furthermore, in order for the accommodation to be reasonable, the request must
relate to the individual’s disability. See Peebles v. Potter, 354 F.3d 761, 769 (8th Cir.
2004) (explaining “an exception to a rule that is not necessitated by the individual’s
disability is presumptively unreasonable”); Allen v. Interior Constr. Servs. Ltd., 214
F.3d 978, 982 (8th Cir. 2000). See also Liljedal v. Ryder Student Transp. Servs. Inc.,
341 F.3d 836, 842 (8th Cir. 2003) (stating “[t]he MHRA requires an employer to
accommodate known limitations so an employee can perform her job, but a requested
accommodation must relate to the limitation”). When the “accommodation requested
is unrelated to the limitation, we do not believe an ADA action may lie. Put another
way, there must be a causal connection between the major life activity that is limited,
and the accommodation sought.” Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 687
(8th Cir. 2007); accord Liljedal, 341 F.3d at 842.
Hustvet argues on appeal that she is in fact disabled because her chemical
sensitivities and allergies derive from an immune system disability and she suffers
from a seizure disorder. Hustvet maintains that she appropriately requested an
accommodation for these disabilities to Allina, by asking it to permit her to forgo
becoming immunized to rubella.
There is insufficient evidence in the record to support the conclusion that
Hustvet’s chemical sensitivities or allergies substantially or materially limit her
ability to perform major life activities. She has never been hospitalized due to an
allergic or chemical reaction, never seen an allergy specialist, and never been
prescribed an EpiPen. Nor has she ever sought any significant medical attention
when experiencing a chemical sensitivity, taken prescription medication because of
a serious reaction, or had to leave work early because of a reaction. Instead, the
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record reveals that Hustvet has garden-variety allergies to various items that
moderately impact her daily living. This is not enough for a reasonable fact-finder
to conclude she is disabled.
As to Hustvet’s claim that she suffers from a seizure disorder, assuming it
qualifies as a disability, we conclude that this purported disability cannot support a
failure-to-accommodate claim for two reasons. First, Hustvet did not tell Allina that
she needed an accommodation because she had a seizure disorder, nor did she plead
it as part of her case. Second, the record shows her issue with seizures was decades
ago and there is no evidence supporting the notion that Allina had reason to know
about her past episodes. “The ADA does not require clairvoyance,” and considering
these circumstances, Allina “was not obligated to divine the presence” of Hustvet’s
past seizure disorder as a disability requiring an accommodation. Miller v. Nat’l Cas.
Co., 61 F.3d 627, 630 (8th Cir. 1995) (quotation omitted). Allina cannot be faulted
for failing to accommodate a disability of which it was not aware.
In addition, the accommodation she sought did not sufficiently relate to her
purported disability. As the district court explained, while the live virus in the MMR
vaccine presents a “very small, but possible risk, of having a seizure,” the CDC does
not consider past seizures to be a contraindication or even a precaution for the
vaccine. We are unconvinced the accommodation sought related to her purported
disability in a meaningful way.
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For all of these reasons, we affirm the district court’s grant of summary
judgment on Hustvet’s failure-to-accommodate claims under the ADA and MHRA.5
C. Retaliation Claims
Finally, we address Hustvet’s argument that she was retaliated against under
the ADA and MHRA for refusing to comply with Allina’s health screen requirements,
which she maintains was protected conduct. The ADA and the MHRA forbid
employers from discriminating against any individual because that individual “has
opposed any act or practice made unlawful by this chapter or because such individual
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing.” 42 U.S.C. § 12203(a).
To prevail on a retaliation claim, “there must either be direct evidence of
retaliation or an inference of retaliation must be created under the McDonnell
Douglas burden-shifting framework.” EEOC v. Product Fabricators, Inc., 763 F.3d
963, 972 (8th Cir. 2014). Under the burden-shifting test, the plaintiff must first
produce evidence of a prima facie case by showing three elements: (1) the plaintiff
5We also reject Hustvet’s argument that Allina’s purported “no-accommodate”
policy toward requiring immunity to certain diseases is akin to a “100% healed”
policy, under which employees are forbidden to work until they are fully healed.
Courts have found such a policy impermissible as a matter of law. See McGregor v.
Nat’l R.R. Passenger Corp., 187 F.3d 1113, 1116 (9th Cir. 1999). Courts have
reasoned that “[a] ‘100% healed’ or ‘fully healed’ policy discriminates against
qualified individuals with disabilities because such a policy permits employers to
substitute a determination of whether the qualified individual is ‘100% healed’ from
their injury for the required individualized assessment whether the qualified
individual is able to perform the essential function of his or her job either with or
without accommodation.” Id. However, as the district court explained, “per se
violations in the form of 100% healed policies involve the context of workplace
injury and subsequent return-to-work requests,” which Hustvet’s claims do not.
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engaged in statutorily protected activity; (2) the employer took an adverse action
against the plaintiff; and (3) there existed a causal connection between the adverse
action and the protected activity. See id. This same standard applies to MHRA
retaliation claims. See Oehmke v. Medtronic, Inc., 844 F.3d 748, 759 (8th Cir. 2016).
“A retaliation claim under the ADA requires a but-for causal connection between the
employee’s assertion of her ADA rights and an adverse action by the employer.”
Oehmke, 844 F.3d at 758.6
Once the plaintiff establishes a prima facie case, the employer has the burden
to produce a non-retaliatory reason for the discharge. See Product Fabricators, 763
F.3d. at 974. Finally, if the employer shows such a reason, the burden of production
shifts again to the plaintiff, who must then present evidence that the proffered reason
for termination was pretext. See id. “A plaintiff may show pretext, among other
ways, by showing that an employer (1) failed to follow its own policies, [or] (2)
treated similarly-situated employees in a disparate manner. . . .” Id. at 970 (alteration
in original) (quoting Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010)).
Hustvet cannot prevail on her retaliation claims because she cannot show the
proffered non-retaliatory reason for her termination was pretextual. Even if we
construe Hustvet’s opposition to the health screen and immunization requirement as
a request for accommodation and thus protected conduct, and even if we assume that
she did so based on a good faith, reasonable belief that she was entitled to the
accommodation, see Heisler v. Metro. Council, 339 F.3d 622, 632 (8th Cir. 2003), our
de novo review of the record does not support a conclusion that Allina terminated her
employment because she requested the accommodation. Instead, the evidence shows
6We are not aware of any Minnesota case addressing whether but-for causation
is required under a retaliation claim under the MHRA. See Oehmke, 844 F.3d at 759.
As in Oehmke, it is unnecessary to determine whether the but-for causation standard
would apply to the MHRA claim because we find no evidence to support causation
even under a mixed-motive standard.
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Allina terminated Hustvet’s employment because her job required her to work with
potentially vulnerable clients and she refused to comply with Allina policy by
completing the required health screen and becoming immunized to rubella. Hustvet
does not point to any evidence that this non-retaliatory reason was a mere pretext.
The evidence shows she was terminated because of her failure to comply with this
legitimate policy, not because she opposed it and requested an accommodation
exempting her from it. Thus, her retaliation claims fail as a matter of law and
summary judgment in favor of Allina was proper.
Outcome: We affirm the judgment of the district court.
Plaintiff's Experts:
Defendant's Experts:
Comments: