This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C2-96-421

James D. Miller,
Appellant,

vs.

Honeywell, Inc.,
Respondent.

Filed August 27, 1996

Affirmed
Toussaint, Chief Judge

Hennepin County District Court
File No. 945656

Thomas B. Wieser, John C. Gunderson, Meier, Kennedy & Quinn, Chartered, 2200 North Central Life Tower, 445 Minnesota St., St. Paul, MN 55101 (for appellant)

Thomas M. Sipkins, John M. Elliott, Popham, Haik, Schnobrich & Kaufman, Ltd., 3300 Piper Jaffray Tower, 222 S. Ninth St., Minneapolis, MN 55402 (for respondent)

Considered and decided by Toussaint, Chief Judge, Norton, Judge, and Foley, Judge. 1

U N P U B L I S H E D O P I N I O N

TOUSSAINT , Chief Judge
Respondent employer was granted summary judgment on the grounds that appellant employee was not qualified and therefore not entitled to disability protection and that respondent had reasonably accommodated appellant's disability. Because we see no genuine issues of material fact precluding either determination, we affirm.

D E C I S I O N

Appellant James D. Miller, a Vietnam veteran, was an employee of respondent Honeywell, Inc. from 1979 to 1993. Miller was hospitalized for treatment of his post-traumatic stress disorder (PTSD) at the VA hospital for three months in 1986 and four months in 1987. When Miller returned to work in 1987, he did not resume the Manager of Sales Training position he had left; instead, he chose to resume the less stressful Instructor Specialist position that he had held previously. Miller continued to complain about the stress level of this position to his medical advisors at the VA hospital.
In 1990, Miller chose to leave the Instructor Specialist position for a better paid position in sales at Honeywell. After a few months, he was hospitalized for a ten-week period. When he returned to work in early 1991, he again wanted to resume the Instructor Specialist position, and Honeywell permitted him to do so. He was hospitalized briefly in late 1991 and in May 1992. Miller discharged himself, was readmitted a few days later, and was discharged by the hospital on June 17, 1992. He was treated as an outpatient during July and August. Through all Miller's hospitalizations and outpatient treatments, Honeywell placed him on medical leave with full pay.
A return-to-work plan for Miller was devised by Honeywell's employee psychologist, its Vietnam veterans' liaison, its human resources representative, its disability specialist, its benefits administrator, and the manager of Miller's division. An outside psychologist and an outside psychiatrist hired by Honeywell to examine Miller also assisted in developing the plan.
The plan had two major components: First, it required the coordination of all Miller's medical care through one provider at the VA's Veterans' Center, Dr. Ernie Boswell, whom the VA hospital medical staff had recommended earlier to Miller because of his expertise in counseling PTSD patients. Second, the plan provided Miller with a new Course Designer position, which involved some of the same type of work as the Instructor Specialist position but was less stressful. 2 Miller's performance requirements included compliance with the medical/psychological component of the plan, selecting and maintaining consistent work hours, and providing weekly written activity reports to his supervisor.
The plan provided for Miller's immediate return to work, but was altered at his request to give him four additional weeks to complete an out-patient program he had begun. While Miller claims he was "coerced" into accepting the plan and was not permitted to negotiate, there is evidence that Honeywell did negotiate the return date and there is no evidence that Miller made any other objection to any part of the plan, either when he was informed of it or in the four weeks before he returned to work. 3

Miller returned to work in March 1993, but did not meet the performance requirements. He objected to establishing work hours and asked to work at home; this was denied in light of Miller's previous employment history and the psychologist's recommendation that he not become withdrawn and isolated. Miller also objected to coordinating his treatment through Dr. Boswell: Dr. Boswell noted that at their first meeting Miller was contemptuous, hostile, and defensive, and also, that Miller said he was planning to sue Honeywell.
Miller did little work during April and May 1993, refused further treatment with Dr. Boswell, and checked himself into a hospital without notifying Dr. Boswell as required by the return-to-work plan. Honeywell terminated Miller for his refusal to comply with the plan.
Miller brought this action against Honeywell. Honeywell moved successfully for summary judgment on the grounds that Miller was not qualified for his job because of his frequent and lengthy absences and that Honeywell had reasonably accommodated his disabilities. Miller argues that genuine issues of material fact preclude summary judgment on both grounds. 4

This court reviews a summary judgment by asking whether there are any genuine issues of material fact and whether there was an error in the application of the law. State by Cooper v. French , 460 N.W.2d 2, 4 (Minn. 1990). If a fact will not affect the outcome of the case because the law precludes that outcome, the fact is not material. Rathbun v. W.T. Grant Co. , 300 Minn. 223, 229, 219 N.W.2d 641, 646 (1974). If the plaintiff in a disability discrimination case fails to present a prima facie case, summary judgment is appropriate. Helgerson v. Bridon Cordage, Inc. , 518 N.W.2d 869, 871 (Minn. App. 1994) , review denied (Minn. Aug. 24, 1994).
1. Miller's status as a "qualified" employee. 5

The Americans with Disabilities Act, 42 U.S.C. § 12112 (a), (b)(5)(A) (Supp. II 1990), the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Minnesota Human Rights Act, Minn. Stat. § 363.03, subd. 1(6) (1992), all provide that employers must assist employees who are both disabled and qualified by making reasonable accommodations for the disability to allow the employees to perform their jobs. The same laws prohibit employers from terminating qualified disabled employees without offering or adopting reasonable accommodation. 42 U.S.C. § 12112 (a), (b)(5)(B); 29 U.S.C. § 794 (d) (Supp. IV 1994); Minn. Stat. §subd. 1(2)(b).
Miller argues that he is qualified for the Instructor Specialist position. 6 Honeywell claims that Miller's attendance record establishes his lack of one essential qualification, i.e., the ability to be at work. Miller does not dispute his attendance record, nor does he allege that he was either at work or working while on medical leave. He argues instead that because Honeywell's records showed him as "on leave" rather than as "absent," he was not absent, and cannot be considered disqualified or be terminated as a result of his non-attendance.

Attendance problems may be a legitimate basis for an employer's decision to terminate an employee. Moreover, the fact that the employee's absences were caused by her disability does not automatically render [the employer's] articulated reason for her termination to be discriminatory. Problems caused by a disability may be legitimate nondiscriminatory bases for termination.

Lindgren v. Harmon Glass Co ., 489 N.W.2d 804, 808-09 (Minn. App. 1992) (citation omitted), review denied (Minn. Oct. 20, 1992); see also Schockency v. Jefferson Lines , 439 N.W.2d 715, 719 (Minn. 1989) (when principal justification for employee's termination was poor attendance record, employer was held to have articulated legitimate nondiscriminatory reason). Miller attempts to distinguish Lindgren on the ground that the employer there did not have an established disability leave policy, but he does not explain why having a disability leave policy would deprive an employer of the right to terminate for absenteeism. We are not persuaded by Miller's unsupported argument that being absent from work and being on disability leave are mutually exclusive.
Nor are we persuaded by Miller's alternative argument, that attendance was not an essential function of the Instructor Specialist job. As its name implies, an integral component of that job was instructing other employees: Miller had to be where the other employees were. The record provides ample evidence of Miller's inability or unwillingness to travel to the other locations of employees or to be present at regular hours in his own office. Attendance was an essential function of the Instructor Specialist job; Miller's inability to attend rendered him unqualified for it. We see no genuine issue of material fact precluding the determination that Miller was not qualified for the Instructor Specialist job.
2. Honeywell's reasonable accommodation of Miller's disability
Miller claims that genuine issues of material fact preclude the court from finding that the conditions of the return-to-work plan were reasonable accommodation. He argues that the Course Designer position was not reasonable accommodation because he should have been allowed to return to his Instructor Specialist's position. However, Miller twice chose to leave that position; he repeatedly told his medical care providers that the stress of that position was excessive, and he was frequently hospitalized during the time he held the position. Honeywell's team of seven specialists, acting with the recommendations of the psychiatrist and the psychologist, therefore found Miller another less stressful position rather than restructure the Instructor Specialist position, which was the accommodation of Miller's choice.
However, "'[r]easonable accommodation' may include but is not limited to, nor does it necessarily require * * * job restructuring." Minn. Stat. § 363.03, subd. 1(6) (emphasis added). While we find no Minnesota case law interpreting this provision, case law from other jurisdictions refutes Miller's view that a disabled employee is entitled to the accommodation of his choice. See, e.g., Vande Zande v. Wisconsin Dep't of Admin., 851 F.Supp. 353, 359-60 (W.D. Wis. 1994) (employer of paraplegic who had already made alterations to workplace facilities and allowed employee to work part-time at home not required to purchase home office equipment or permit full-time at-home work), aff'd, 44 F.3d 538 (7th Cir. 1995).
The fact that "reasonable accommodation" does not necessarily mean "accommodation of the employee's choice" is also dispositive of Miller's argument that Honeywell should have allowed him to work at home at the Instructor Specialist job rather than adhere to a daily schedule. Moreover, Miller has the burden of showing that permitting him to do work at home would have succeeded in enabling him to do the Instructor Specialist's job where Honeywell's numerous other efforts at accommodation had failed. See White v. York Int'l Corp ., 45 F.3d 357, 362-63 (10th Cir. 1995). He provides no evidence to meet this burden.
Miller challenges the reasonableness of Honeywell's requirement that he undergo a chemical dependency evaluation. Minn. Stat. § 363.02, subd. 1 (8)(ii) (1992), provides that employers may require medical examinations of employees "for purposes of assessing the need to reasonably accommodate an employee" or for "other legitimate business reason[s]." The reports from the independent psychologist and psychiatrist indicated that Miller had used illegal drugs in the past and was consuming significant quantities of alcohol five or six nights a week. The Honeywell Vietnam veterans' liaison stated that he thought Miller had a chemical dependency issue. Miller's own psychiatrist said that PTSD could not be treated without considering chemical dependency. Honeywell's requirement that Miller have a chemical dependency evaluation as part of its plan to accommodate him was not unreasonable and was based on a legitimate business reason.
Finally, Miller objects to Honeywell's interference with his treatment at the VA hospital. He argues that with his inpatient and outpatient treatment, he was able to function effectively in the Instructor Specialist position. Miller's repeated need for extended hospitalization itself contradicts this statement: six years of treatment did not result in his being able to remain on the job. Honeywell asserts that it required the coordination of all Miller's medical treatment in an effort to facilitate his return to work and that the requirement was based on the recommendations of the outside psychologist, the outside psychiatrist, and Honeywell's own psychologist. An employer is entitled to rely on the recommendations of medical care experts. See Gilmore v. Control Data Corp. , 442 N.W.2d 835, 839 (Minn. App. 1989). Again, the fact that Miller would have chosen an accommodation other than that recommended by these professionals is not dispositive.
We see no genuine issue of material fact precluding the district court's determination that Honeywell reasonably accommodated Miller's disability.
Affirmed.


1
  • *
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

2 Miller was also required to undergo a chemical dependency evaluation, which he did; it was determined that he was not chemically dependent.

3 At the time he learned of the return-to-work plan, Miller was communicating with and represented by legal counsel.

4 On appeal, Miller for the first time alleges that Honeywell failed to comply with the Vietnam Era Veteran's Readjustment Act, 38 U.S.C. §4212(a) (Supp. III 1991). Miller's claim under this act was not mentioned in the complaint or in the summary judgment process. Since it was neither addressed by nor presented to the district court, this court need not consider it on review. Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988).

5 While Miller claims that genuine issues of material fact preclude a determination that he was not qualified, he does not specify any facts relevant to his qualification that are actually disputed.

6 Miller apparently does not dispute his lack of qualification for the Course Designer position.