This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Rhonda Maricle Danielson,
a New York corporation,
Hennepin County District Court
File No. EM01002515
Sonja Dunnwald Peterson, Dunnwald & Peterson, P.A., 1120E Grain Exchange Building, 412 South 4th Street, Minneapolis, MN 55415 (for appellant)
R. Scott Davies, Jason M. Hedican, Briggs and Morgan, 2400 IDS Center, 80 South 8th Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Hudson, Judge.
Appellant suffers from photophobia, a light-induced medical impairment that can result in migraine headaches and other adverse symptoms. Appellant contends that the district court improperly granted summary judgment in her disability-discrimination claim because there are genuine issues of material fact as to whether (1) respondent failed to actively participate in an interactive process with appellant to identify a reasonable accommodation, and (2) respondent’s ten-month delay in providing an accommodation was reasonable. We affirm.
In 1994, appellant Rhonda Maricle Danielson was diagnosed with photophobia, a light-induced medical impairment. When she is exposed to bright fluorescent light or sunlight, Danielson’s symptoms may include severe migraine headaches, auras, loss of vision, dizziness, nausea, vomiting, fainting, and loss of consciousness. Danielson’s photophobia symptoms can begin after only a few minutes’ exposure to fluorescent light.
Danielson has worked for respondent AT&T Corporation since November 2, 1987, most recently as a customer sales and service specialist. For the time frame relevant to this matter, Danielson worked on the fifth floor of the AT&T building, a floor where approximately 150 employees worked in identical office-style cubicles. The entire building was lighted by fluorescent lights. After being diagnosed with photophobia in 1994, Danielson informed her supervisor and was given permission to adjust the light in her work area by removing light bulbs. She, and other employees, adjusted the lighting in their cubicles for several years.
In March 2000, the AT&T manager received complaints from some employees about low office lighting. The building manager and maintenance team also expressed safety concerns about the lighting level. After testing the lighting level, AT&T determined that it was significantly below standards recommended by the American National Safety Institute. In order to correct the problem, AT&T implemented an illumination plan to return the lighting level to OSHA standards on the weekend of March 11, 2000.
On Monday, March 13, within five minutes of being exposed to the new lighting, Danielson told her immediate supervisor and the manager of human resources that she needed a medical leave of absence. Danielson left work on March 13, 2000, and did not return until January 8, 2001.
On March 31, 2000, Danielson’s doctor, Helle Lukk, M.D., sent AT&T a letter confirming Danielson’s medical condition and requesting the following accommodations: (1) no fluorescent or bright lighting, (2) moving Danielson to an area without fluorescent lights and allowing her to sit by a window with blinds to accommodate her lighting needs, or (3) providing Danielson with a private office where she would have control over the lighting. After reviewing the accommodation request, AT&T advised Danielson that none of the accommodations could be met because the entire floor had fluorescent lighting, no private offices were available, and even if one were available, placement of a union employee in a private office would violate the collective-bargaining agreement. Danielson responded that she would not return to work unless one of the requested accommodations was met.
On April 27, 2000, AT&T, through MetLife, its disability insurer, proposed to Danielson that accommodations be made in the form of filtering sunglasses and light-diffuser panels and asked that she meet with the company accommodation specialist. When Danielson summarily rejected this proposal, MetLife asked that Dr. Lukk contact MetLife’s consulting physician to discuss other accommodations. Dr. Lukk agreed with MetLife in June 2000 that the previously proposed accommodations and filtering glasses were appropriate.
After AT&T researched filtering glasses and located a manufacturer, MetLife contacted Danielson and asked her to return to work on August 10, 2000, in order to try the following accommodations with an ergonomic specialist available: (1) filtering glasses, (2) a visor, (3) diffuser panels, and (4) a cubicle near a window. Danielson refused to return to work because she had sued AT&T by then. Danielson offered to try the filtering glasses in her backyard at home, but AT&T concluded that these conditions would not adequately replicate those in the workplace.
Following some discussion, Danielson did agree to try the glasses in the office environment. By then, three months had passed due to delays caused by Danielson’s pre‑scheduled vacation, her desire to have her ophthalmologist approve the glasses, discussions about a transport plan for Danielson should she suffer from a migraine while testing the glasses, and time for AT&T to answer Danielson’s questions regarding the glasses.
Danielson arrived at work on October 25, 2000, and tried three alternative filtering glasses over the course of a half day. Two days later, AT&T added another diffuser panel and Danielson tried additional filtering glasses. On November 3, 2000, Danielson’s ophthalmologist advised AT&T that filtering glasses were a viable option. But Danielson advised AT&T that the glasses did not work.
On November 13, 2000, AT&T notified Danielson that it had a new proposed accommodation, in that it had identified a canopy manufacturer to enclose her cubicle. Danielson tried more filtration glasses on December 13, 2001, without satisfaction. Finally, the canopy was completed and Danielson returned to work on January 8, 2001.
In total, Danielson received 13 weeks full pay, and half pay between March 13 and August 10, the date on which she refused to return to work to try the filtration glasses. She also received disability-plan benefits between December 15, 2000, the date the canopy was scheduled to be completed and January 7, 2001, when it was.
Following a hearing on AT&T’s motion for summary judgment, the district court concluded that genuine issues of material fact existed as to whether Danielson is a qualified disabled person under the Minnesota Human Rights Act and whether her disability materially limits a major life activity. But the court granted AT&T’s summary-judgment motion because it held that, as a matter of law, AT&T reasonably accommodated Danielson and Danielson had failed to sustain her burden of proof on her claim of intentional infliction of emotional distress. This appeal on the dismissal of the disability-discrimination claim follows.
On appeal from summary judgment, this court must review the record to determine whether there are any genuine issues of material fact and whether the district court erred in applying the law. Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). A reviewing court should grant summary judgment if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.
Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citing Minn. R. Civ. P. 56.03). A material fact is a fact that would affect the outcome of the case. Pischke v. Kellen, 384 N.W.2d 201, 205 (Minn. App. 1986). Moreover, on a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party. N. States Power Co. v. City of Oakdale, 588 N.W.2d 534, 537 (Minn. App. 1999).
Minn. Stat. § 363.03, subd. 1 (2002), states in part:
Except when based on a bona fide occupational qualification, it is an unfair employment practice:
* * * *
(6) For an employer * * * not to make reasonable accommodation to the known disability of a qualified disabled person or job applicant unless the employer, agency, or organization can demonstrate that the accommodation would impose an undue hardship on the business, agency, or organization. “Reasonable accommodation” means steps which must be taken to accommodate the known physical or mental limitations of a qualified disabled person. “Reasonable accommodation” may include but is not limited to, nor does it necessarily require: (a) making facilities readily accessible to and usable by disabled persons; and (b) job restructuring, modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, and the provision of aides on a temporary or periodic basis.
In order to maintain a reasonable-accommodation claim under the Minnesota Human Rights Act (MHRA), Danielson must show that (1) she is a disabled person under the MHRA, (2) AT&T knew of her disability, and (3) AT&T failed to make reasonable accommodation. Hoover v. Norwest Private Mort. Banking, 632 N.W.2d 534, 547 (Minn. 2001). While AT&T challenged Danielson’s photophobia before the district court on the ground that it is not an impairment that materially limits a major life activity, that issue is not before us on appeal. Our review is focused on whether the district court erred in concluding as a matter of law that AT&T reasonably accommodated Danielson.
Danielson’s argument that AT&T failed to reasonably accommodate her is based on her contention that AT&T was obligated to provide her with one of the accommodations she or her physician proposed unless AT&T could establish that such an accommodation would impose an undue hardship on the company. But an employer is not required to provide an employee with the accommodation of her choice, and AT&T never argued that providing an accommodation would be an undue burden, but, instead, suggested a series of alternative accommodations for Danielson. See Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1019 (8th Cir. 2000) (stating that the employer need not provide employee’s requested or preferred accommodation); Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996) (stating that an employer need only provide a reasonable accommodation, not a preferred or requested accommodation).
We conclude that AT&T reasonably accommodated Danielson. First, a leave of absence can be a reasonable accommodation. See 29 C.F.R. pt. 1630, app. at 355 (2002) (noting that “other accommodations could include permitting the use of accrued paid leave or providing additional unpaid leave.”); Breiland v. Advance Circuits, Inc., 976 F. Supp. 858, 865 (D. Minn. 1997) (recognizing that a leave of absence may serve as a reasonable accommodation). Danielson received full pay for 13 weeks and then half-pay until August 10, 2000, when she refused to return to work to try the filtration glasses. Danielson’s pay was reinstated between December 15, 2000, and the completion of the canopy on January 7, 2001. Second, the record reflects that AT&T actively sought additional alternative accommodations after it determined that Danielson’s requested accommodations were not feasible. AT&T proposed and allowed appellant to test filtering glasses and light-diffuser panels. AT&T asked that Danielson meet with the company accommodation specialist. And when these accommodations failed after multiple attempts, the company enclosed her cubicle with a canopy, thus fully accommodating Danielson.
But Danielson also argues that even if there was an eventual accommodation, AT&T failed to meaningfully participate in an interactive process with appellant, thus denying her a reasonable accommodation. Through the promulgation of its regulations, the United States Equal Employment Opportunity Commission has interpreted the Americans with Disabilities Act (ADA) to provide that in order to determine the appropriate accommodation for a disabled employee
it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of an accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.
29 C.F.R. § 1630.2(o)(3) (2002). A party that “obstructs or delays the interactive process” or “fails to communicate, by way of initiation or response,” may also be acting in bad faith. Breiland, 976 F. Supp. at 864. But Danielson provides no evidence in a published case that Minnesota courts have applied this standard to the MHRA. Moreover, when the Eighth Circuit has considered an interactive process as related to the ADA, it has found no per se liability for an employer who fails to participate in the interactive process, instead stating that such a failure may be “prima facie evidence that the employer may be acting in bad faith.” Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 951-52 (8th Cir. 1999) (recognizing that some circuits “have concluded that both parties have a duty to act in good faith and assist in the search for appropriate reasonable accommodations,” while others “have concluded that no such obligation exists.”). Therefore, even if Minnesota applied the interactive-process standard to the MHRA, AT&T was involved in an interactive process by engaging Danielson’s primary physician in discussion and communicating with Danielson about potential accommodations such as light-diffuser panels, filtration glasses, and visors. When all else proved to be inadequate, AT&T constructed a fully enclosed cubicle for Danielson.
Lastly, Danielson appears to judge this final accommodation as the only accommodation made by AT&T and thus argues that her accommodation took ten months and was, therefore, untimely and unreasonable. The EEOC Enforcement Guidance provides that “[u]nnecessary delays can result in a violation of the ADA.” EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, (Oct. 17, 2002), available at http://www.eeoc.gov/docs/accommodation.html.
First, no caselaw reflects whether Minnesota has adopted this principle. Moreover, some courts have held that
[w]here an accommodation is delayed an employer does not violate the ADA, as long as the employee receives some other accommodation or at least does not suffer adverse employment action.
Hartsfield v. Miami-Dade County, 90 F. Supp. 2d 1363, 1373 (S.D. Fla. 2000) (citing Terrell v. USAir, 132 F.3d 621, 627-28 (11th Cir. 1998) (factoring in only time when plaintiff was not on leave in considering any delay in providing accommodation). We disagree with Danielson. AT&T began to accommodate Danielson immediately by allowing her a medical leave after the office-lighting plan designed to meet OSHA standards was implemented. AT&T communicated with Danielson about additional accommodations such as light-diffuser panels, filtration glasses, and visors throughout the ensuing months. The record is clear that the parties engaged in ongoing communication to determine appellant’s specific limitations and potential means of accommodating the impairment. While a significant delay in accommodating an employee might be a basis to determine that an accommodation was unreasonable, the record here does not support such a conclusion.