                   United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT

                                ___________

                                No. 00-1294
                                ___________

Lynn M. Heaser,                        *
                                       *
            Appellant,                 *
                                       *
     v.                                * Appeal from the United States
                                       * District Court for the
The Toro Company; Toro STD Claims * District of Minnesota.
Management Plan, a Self-Insured        *
Employee Benefits Plan; Hartford Life *
and Accident Insurance Company, a      *
Connecticut corporation, as Case       *
Manager of the Toro STD Claims         *
Management Plan,                       *
                                       *
            Appellees.                 *
                                  ___________

                          Submitted: October 18, 2000

                               Filed: April 26, 2001
                                ___________

Before WOLLMAN, Chief Judge, LAY, and BEAM, Circuit Judges.
                             ___________

WOLLMAN, Chief Judge.
       Lynn M. Heaser appeals from the district court’s1 grant of summary judgment
on her employment discrimination claims under the Americans with Disabilities Act of
1990 (ADA), 42 U.S.C. §§ 12101-12213, and the Minnesota Human Rights Act
(MHRA), Minn. Stat. §§ 363.01-363.15, in favor of her former employer, Toro
Company, Inc. (Toro), and on her claims under the Employee Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461, in favor of Toro and the Toro
STD Claims Management Plan (Toro Plan). We affirm.

                                           I.

        We recite the facts in the light most favorable to Heaser. In 1990, Heaser began
working as an administrative secretary at Toro’s facility on Lyndale Avenue (Lyndale
facility) in Bloomington, Minnesota. In 1993, she was promoted to the position of
marketing services coordinator, which she held until her termination on March 14,
1997. As marketing services coordinator, Heaser ensured that Toro dealers and
distributors received marketing materials in a timely fashion. To do so, she took orders
for materials by phone and in person and processed the information on carbonless paper
forms and by computer. She also maintained the historical files of various marketing
materials and created literature racks of promotional literature.

      In 1991, Heaser developed health problems, which increased in severity during
her employment with Toro and resulted in various medical diagnoses, including
petrochemical sensitivity, fibromyalgia, allergies, and multiple chemical sensitivities.
Heaser suspected that her health problems were connected to air quality at the Lyndale
facility and alerted Toro’s management officials to her concerns.



      1
      The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.


                                          -2-
        In May of 1996, Heaser informed her supervisor that she was having trouble
remaining at work for entire days because of illness. Her supervisor inquired of the
human resources department whether working at home would be an option for Heaser
and was told that although Toro did not have a work-at-home policy, some employees
had been permitted to do so for short periods. Heaser’s supervisor relayed the
information to Heaser and told her that, temporarily, she could leave the Lyndale
facility when she was too sick to remain at work, an option that Heaser exercised for
three months. Although no performance deficiencies were noted during that time
period, Heaser admitted that she was not fully performing her job. In an attempt to
accommodate Heaser’s health concerns, Toro moved her to a different office, but this
action failed to alleviate Heaser’s difficulties. Heaser sought medical assistance from
several different physicians during 1996 and ultimately took a medical leave of absence
from Toro. From September to December of 1996, Heaser received four months of
short-term disability benefits from the Toro Plan.

       On December 31, 1996, after receiving notice that her short-term disability
benefits were being terminated, Heaser requested that she be allowed to work from her
home. On January 28, 1997, Toro denied this request, but offered to move Heaser to
a different location within the Lyndale facility. Heaser responded that the change in
location would not accommodate her needs but that she would be willing to discuss
further possible changes, including the removal of the air freshener system from one of
the women’s bathrooms, the use of non-toxic cleaning solutions in her work area, and
the installation of an air purifier in a separate office for her. Heaser also stated that she
was concerned about handling the carbonless paper used for orders. On March 6,
1997, Heaser met with her supervisor, the manager of employee relations, and Dale
Irvin, Toro’s director of human resources and facility operations, who indicated that
Toro would be willing to remove the freshener from one of the bathrooms and
encourage the use of non-toxic cleaning solutions, but expressed concern that Heaser
would remain unable to perform the job. Heaser stated that she would like to “give it


                                            -3-
a try,” and Irvin requested that Heaser provide a letter from her doctor stating that she
was fit to return to work. On March 13, 1997, Toro received from Dr. Michael Dole,
one of Heaser’s treating physicians, a March 3 letter stating that “unless [Heaser] is
able to avoid plastics, carbonless paper, copiers and their fumes, exhaust fumes, other
personnel who may be wearing perfumes, colognes, etc., it is very difficult to succeed
in gainful employment.” Immediately thereafter, Toro terminated Heaser.

      Heaser subsequently filed suit in district court, alleging disability discrimination
under federal and state laws and seeking judicial review of Toro’s denial of her short-
term disability benefits. Heaser argues that the district court erred when it granted
summary judgment in Toro’s favor because she would have been able to perform her
job with reasonable accommodation and because Toro failed to meet its obligation to
engage in an interactive process with Heaser. Heaser also contends that the court erred
when it dismissed her ERISA claims.

      We review the district court's grant of summary judgment de novo. Henerey v.
City of St. Charles, 200 F.3d 1128, 1131 (8th Cir. 1999). Summary judgment is proper
if the evidence, viewed in the light most favorable to the nonmoving party,
demonstrates that no genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law. Id.; Fed. R. Civ. P. 56(c). “[S]ummary
judgment should seldom be granted in discrimination cases.” Bassett v. City of
Minneapolis, 211 F.3d 1097, 1099 (8th Cir. 2000).




                                           -4-
                            II. Disability Discrimination2

       The ADA affords protection from discrimination to any “qualified individual
with a disability.” 42 U.S.C. § 12112(a). To establish a prima facie case of
discrimination under the ADA, Heaser must show (1) that she has a disability within
the meaning of the ADA, (2) that she is qualified to perform the essential functions of
her job, with or without reasonable accommodation, and (3) that she suffered an
adverse employment action because of her disability. Kiel v. Select Artificials, Inc.,
169 F.3d 1131, 1135 (8th Cir. 1999) (en banc). Discrimination includes “not making
reasonable accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability . . . unless [the employer] can
demonstrate that the accommodation would impose an undue hardship on the operation
of the business of [the employer].” 42 U.S.C. § 12112 (b)(5)(A). The proof necessary
for discrimination cases is flexible and varies with the specific facts of each case.
Young v. Warner-Jenkinson Co., Inc., 152 F.3d 1018, 1022 (8th Cir. 1998).

       For the purposes of this appeal, Toro does not dispute that Heaser is disabled
within the meaning of the ADA, and Heaser concedes that she is not qualified to
perform the marketing services coordinator job without reasonable accommodation.
The question presented, then, is whether Heaser has shown that she is a qualified
individual within the meaning of the ADA because she can perform the essential
functions of her job with a reasonable accommodation.

      To be a qualified individual within the meaning of the ADA, Heaser must (1)
possess the requisite skill, education, experience, and training for her position; and (2)


      2
        We have noted that the MHRA parallels the ADA, Wilking v. County of
Ramsey, 153 F.3d 869, 872 (8th Cir. 1998), and neither party contests the district
court’s treatment of Heaser’s MHRA claims as co-extensive with her ADA claims.


                                           -5-
be able to perform the essential job functions, with or without reasonable
accommodation. Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 786-87 (8th Cir.
1998). Only the second part of the definition is in question in this case. Although an
ADA plaintiff retains the ultimate burden of proving that she is a qualified individual,
an employer who disputes the plaintiff’s claim that she can perform the essential
functions of a job must put forth evidence establishing those functions. Benson v.
Northwest Airlines, Inc., 62 F.3d 1108, 1113 (8th Cir. 1995). An essential function
may be established by evidence that includes:

      (1) the employer's judgment as to which functions are essential; (2)
      written job descriptions prepared before advertising or interviewing
      applicants for the job; (3) the amount of time spent on the job performing
      the function; (4) the consequences of not requiring the incumbent to
      perform the function; and (5) the current work experience of incumbents
      in similar jobs.

Moritz, 147 F.3d at 787 (internal quotation marks omitted). A plaintiff need only make
a facial showing that a reasonable accommodation that would enable her to perform her
essential job functions is possible. Fjellestad v. Pizza Hut of America, Inc., 188 F.3d
944, 950 (8th Cir. 1999). The burden then shifts to the employer to show that it is
unable to accommodate the plaintiff. Id.

       Under the ADA, reasonable accommodations may include “job restructuring,
part-time or modified work schedules, reassignment to a vacant position, acquisition
or modification of equipment or devices, appropriate adjustment or modifications of
examinations, training materials or policies. . . .” 42 U.S.C. § 12111(9). “This does
not mean an employer is required to offer those accommodations in every case.”
Treanor v. MCI Telecomm. Corp., 200 F.3d 570, 575 (8th Cir. 2000). Job
restructuring is a possible accommodation, but an employer is not required to reallocate
essential functions of the employee’s job. Id; Benson, 62 F.3d at 1112-13. We



                                          -6-
assume, without deciding, that working from home may, in certain circumstances, be
a reasonable accommodation. See Nesser v. Trans World Airlines, Inc., 160 F.3d 442,
446 (8th Cir. 1998) (declining to decide whether working at home may be reasonable);
cf. Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 782-83 (6th
Cir. 1998) (rejecting per se rule that extended leave is not reasonable); Langon v.
Dep’t of Health & Human Servs., 959 F.2d 1053, 1060-61 (D.C. Cir. 1992) (working
at home is possible reasonable accommodation under Rehabilitation Act).

        The parties agree that Heaser’s job duties included managing the inventory
system, which involved order entry, invoicing, inventory and tracking revenues;
gathering and organizing necessary data for marketing material production, including
proofing copy; and maintaining archived and current files and filling customer orders,
which included the creation of new file folders and the receipt and unpacking of cartons
of literature.

       Heaser contends that, given current technology, working from her home is a
reasonable accommodation. She argues that she could log on to the computer system
as necessary from her home to work with materials orders, invoicing, and budget
reconciliation; courier service could have been used for other functions; and
maintaining historical files could be done in the warehouses and on CD-ROM. Heaser
further testified that the majority of her work could be done by computer or by phone,
and that she could come to the Lyndale facility sporadically, although she is unable to
be present full-time. She further asserts that Toro could have computerized the order
system so that she would not have to work with carbonless paper and that Toro was
moving to such a computerized system when they fired her.

      The district court concluded that Heaser failed to show that she is capable of
performing the essential functions of her job with reasonable accommodation because
she did not show that remote access to Toro’s computer system was feasible and


                                          -7-
because she does not dispute that she cannot work with the carbonless paper, printed
literature, and copiers that are central to her job.

       We conclude that Heaser has failed to make a prima facie case because she has
not shown that the use of a computer at her home and her avoidance of carbonless
paper are reasonable accommodations. In support of its motion for summary judgment,
Toro submitted an affidavit by an analyst in its information technology division that
stated that the computer software necessary for Heaser’s position, a program called
Dataflex, could not have been used through remote access to Toro’s computer systems.
There is some evidence in the record that Toro was investigating the use of a more
completely computerized system of order entry, but no evidence suggests that any such
change is feasible or that it has occurred. Heaser asserts that Toro could have made
the computer system work from her home and that Toro’s use of carbonless paper is
a method of communications inferior to that of computers. Both of these allegations
are supported only by her conjecture, however, and are thus insufficient to create a
genuine issue of material fact in this case. See Marler v. Missouri State Bd. of
Optometry, 102 F.3d 1453, 1457 & n.6 (8th Cir. 1996) (conjecture insufficient to
create issue of material fact); O’Bryan v. KTIV Television, 64 F.3d 1188, 1191 (8th
Cir. 1995).

       Toro was not required to make an overall change in its manner of conducting
business to accommodate Heaser. See Buckles v. First Data Resources, Inc., 176 F.3d
1098, 1101 (8th Cir. 1999). Heaser has presented insufficient evidence that
computerizing Toro’s marketing services system was a reasonable accommodation.
Job restructuring is a possible accommodation, but Toro was not required to create a
new part-time position or to reallocate the essential functions of Heaser’s job that she
could not do–that is, work with orders on carbonless paper. See Treanor, 200 F.3d at
575; Benson, 62 F.3d at 1112-13. “It is well settled that an employer is under no
obligation to reallocate the essential functions of a position that a qualified individual


                                           -8-
must perform.” Moritz, 147 F.3d at 788. We conclude, therefore, that Heaser has
failed to make a prima facie showing that working from her home was a reasonable
accommodation for her position.

       Turning to Heaser’s argument that Toro failed to engage in the necessary
interactive process regarding reasonable accommodation, we note that Heaser failed
to raise this argument in the district court. We decline to address the interactive
process arguments in the first instance on appeal. See Bankcard Sys., Inc. v.
Miller/Overfelt, Inc., 219 F.3d 770, 772 n.3 (8th Cir. 2000). Moreover, because we
have already determined that Heaser has failed to show a genuine issue of material fact
regarding reasonable accommodation, any claim based on this theory would likely fail.
See Fjellestad, 188 F.3d at 953 (“[A]n employer who acts in bad faith in the interactive
process will be liable if the jury can reasonably conclude that the employee would have
been able to perform the job with accommodations.”) (quoting Taylor v. Phoenixville
Sch. Dist., 174 F.3d 142, 163 (3d Cir. 1999)); Cravens v. Blue Cross & Blue Shield
of Kansas City, 214 F.3d 1011, 1022 (8th Cir. 2000) (discussing interactive process
claim supported by evidence that created genuine issue of material fact regarding
reasonable accommodation).

                                     III. ERISA

      Lastly, Heaser contends that the district court should have used a standard of
review less deferential than abuse of discretion when it reviewed, pursuant to 29 U.S.C.
§ 1132(a)(1)(B), the December 1996 termination of Heaser’s short-term disability
benefits. She also argues that even if the abuse of discretion standard is proper, the
court should have determined that Toro, which is the Toro Plan administrator,
unreasonably terminated Heaser’s benefits under the Toro Plan, which provides for five
months of short-term disability payments when an employee “is prevented from




                                          -9-
performing the material and substantial duties of his or her occupation due to accidental
injury or sickness.” Appellee’s App. at AA19, AA21.

       “ERISA provides a plan beneficiary with the right to judicial review of a benefits
determination.” Woo v. Deluxe Corp., 144 F.3d 1157, 1160 (8th Cir. 1998); see 29
U.S.C. § 1132(a). It is undisputed that the Toro Plan gives the administrator
discretionary authority to determine eligibility for benefits, so we would ordinarily
review the administrator’s decision for abuse of discretion. See Woo, 144 F.3d at
1160. “This deferential standard reflects our general hesitancy to interfere with the
administration of a benefits plan.” Layes v. Mead Corp., 132 F.3d 1246, 1250 (8th Cir.
1998). Under such standard, a reviewing court should consider only the evidence
before the plan administrator when the claim was denied. Id. at 1251. A plaintiff may
obtain less deferential review by presenting “material, probative evidence
demonstrating that (1) a palpable conflict of interest or a serious procedural irregularity
existed, which (2) caused a serious breach of the plan administrator’s fiduciary duty to
her.” Woo, 144 F.3d at 1160. An alleged conflict or procedural irregularity must have
some connection to the substantive decision reached. Id. at 1161. A claimant must
offer evidence that “gives rise to serious doubts as to whether the result reached was
the product of an arbitrary decision or the plan administrator’s whim” for us to apply
the less deferential standard. Layes, 132 F.3d at 1250 (internal quotation marks
omitted).

      The district court noted that when the recommending administrative officer
decided in November of 1996 that terminating benefits was appropriate, the officer had
Heaser’s medical records and had also directly contacted one of Heaser’s treating
physicians, a rehabilitation specialist who had supported Heaser’s disability from work
in August of 1996. This physician stated that he no longer considered Heaser to be
disabled and had recently told Heaser the same thing. A review of Heaser’s record was
also performed by a medical consultant specializing in pulmonary medicine. The


                                           -10-
district court concluded that, on this evidence, the administrator’s decision did not
reflect an abuse of discretion.

       Heaser contends that she is entitled to less deferential review of the
administrator’s decision because before the termination she was not examined by a
doctor with expertise relating to her condition. Heaser suggests that this constitutes a
procedural irregularity connected to the judgment analogous to that in Woo. We
conclude that Woo does not support Heaser’s argument for two reasons. First, in Woo
our decision to use a less deferential standard rested first on a demonstrated financial
conflict of interest. Id. Second, in that case we determined that a plan administrator’s
failure to obtain the opinion of a specialist constituted a procedural irregularity
connected to the decision because only the opinion of an in-house medical consultant
contradicted the remainder of the record before the administrator, which contained two
opinions from treating physicians supporting disability based on an uncommon disease.
Id. We concluded that the failure to obtain an expert opinion before denying benefits
was a failure that led to a decision “reached without reflection and judgment,” which
warranted a less deferential standard of review. Id. (citation omitted). Heaser has not
presented similar evidence here that Toro failed to thoroughly investigate her claim.

       Heaser next contends that even under the abuse of discretion standard, Toro’s
determination was unreasonable, particularly given the determination of Dr. Dole that
she could not return to work at Toro. Toro relied, however, on the opinion of another
of Heaser’s treating physicians and had before it Heaser’s medical evidence, which did
not indicate complete disability. Additionally, both the November and December of
1996 certification reports from Dr. Dole indicated only that Heaser’s condition “may
be permanent,” which is not an unequivocal endorsement of disability and does not
show that Toro abused its discretion, given the other evidence in the record. Cf. Layes,
132 F.3d at 1251-52 (holding that plan administrator not required to seek independent
medical opinion when medical evidence relied upon by claimant insufficient to support


                                         -11-
conclusion of disability). We conclude, therefore, that Heaser has shown no abuse of
discretion.

       The judgment is affirmed.

LAY, Circuit Judge, dissenting.

        The impact of today’s decision is that an employer in an ADA case, at least in
this circuit, will always win on summary judgment by simply asserting that a plaintiff-
employee cannot be reasonably accommodated. Regardless of a plaintiff’s request for
reasonable accommodation, a mere denial by the employer will always foreclose a
plaintiff’s disability claim and deny a plaintiff a jury trial and an opportunity to present
a factual issue as to whether the accommodation requested is feasible.

       There are several flaws in the majority’s holding. First and foremost, such a
ruling completely overlooks the basic principles which govern a motion for summary
judgment. It ignores the fundamental rule that summary judgment may not be granted
where the record presents a genuine dispute over a material fact. Second, it fails to
give recognition to the legal maxim that in order to grant summary judgment all the
evidence must point one way and be susceptible of no reasonable inferences sustaining
the position of the non-moving party. The obvious corollary to this principle is that a
motion for summary judgment requires the facts to be viewed in the light most
favorable to the plaintiff by affording a plaintiff the benefit of all factual inferences.
These settled principles of law need no citation.

       According to the majority, there are no genuine issues of material fact as to
whether Heaser can be reasonably accommodated in order to allow her to continue
working. In all due respect, this overlooks the factual record. Heaser’s basic request
of accommodation is that she be allowed to carry on her job at home, in an atmosphere


                                           -12-
free from carbonless paper, printed literature, copiers, and polluted air. Toro asserts
that these requested accommodations are not feasible for various reasons, including the
fact that Heaser’s job cannot be done from home or without carbonless paper. The
majority opinion, however, appears to ignore the evidence presented by Heaser while
giving sole credibility to the evidence presented by Toro. At the very least, Heaser’s
evidence demonstrates, providing all reasonable inferences to be drawn from it, factual
issues as to whether her requested accommodations are feasible and therefore
reasonable.

      A closer look at the record shows that a thorough discussion never took place
as to whether it was feasible for Heaser to work from home or without carbonless
paper. In December 1996, Toro denied Heaser’s short-term disability benefits.
Subsequently, Heaser sent Toro a letter formally requesting work accommodations in
her home. In the letter, Heaser explained that she was aware of other employees who
accessed Toro’s computer system from home. Thus, Heaser requested a phone line,
phone, computer, and fax machine to use from her home in order to fulfill her position
as Consumer Marketing Services Coordinator.

       On January 28, 1997, Toro wrote to Heaser and denied her requested
accommodation. Instead, Toro offered Heaser the alternative of returning to the
Lyndale facility, but in a different location. Toro indicated that this was the only
alternative available to Heaser and that if she did not accept this offer by February 3,
1997, Toro would conclude that she had voluntarily resigned.

      Heaser responded to Toro’s letter on February 3, 1997. In her letter, Heaser
explained that the temporary location that Toro proposed had air quality problems.
Heaser based this assertion on the health problems of another Toro employee who was
located in the same area. Heaser then outlined a series of proposed accommodations
which would enable her to return to work at Toro’s Lyndale facility. These requests


                                         -13-
included removing an air freshener from one of the women’s bathrooms, creation of a
fragrance free, chemical free area, using non-toxic cleaning formulas, installing an air
purifier, and the assignment of a resource person to whom she could bring her concerns
about the environment. Heaser proposed a thirty-day test period to try the
accommodations.

       On March 6, 1997, Toro met with Heaser to discuss her proposed
accommodations. Toro indicated that it would be willing to remove the air freshener
from one of the bathrooms and that it would talk to the cleaning crew about using
alternative cleaning solutions.3 Heaser indicated in the meeting that she was willing to
return to Toro and “give it a try.” Before Heaser returned to work, however, Toro
requested a letter from Heaser’s doctor stating that she was fit to return to work without
further risk of health problems.

       Heaser’s doctor sent Toro a letter explaining that unless Heaser could avoid
“plastics, carbonless paper, copiers and their fumes, exhaust fumes, other personnel
who may be wearing perfumes, colognes, etc., it [would be] very difficult [for her] to
succeed in gainful employment.” (Letter from Dole, M.D. to Toro at 2.)

       On March 13, 1997, Toro sent Heaser a letter stating that it did not have a
position consistent with her health requirements and that the accommodations she
sought were too broad and far-reaching. Toro further explained that it was left with no
alternative but to terminate her employment. Thus, the interactive process between
Heaser and Toro was never completed because Toro terminated Heaser before she
could return to work.


      3
       Such a response clearly falls short of a reasonable accommodation. The offer
not only makes it prohibitive for her to carry on her job but also constitutes an
unreasonable, adamant response that Toro cannot remove pollutants from the air.


                                          -14-
      In support of her request to work from home, Heaser presented evidence that she
had previously worked from home over a period of three months. During this time,
Heaser worked at the Toro facility when she was able and worked from home when she
was too sick to remain at work. Heaser believes she adequately performed her job
from home, and there is no evidence in the record to indicate that Toro had a problem
with Heaser’s performance during this time. This evidence, however, appears to have
been overlooked in the majority’s opinion.

       Further, Heaser presented evidence showing that other Toro employees have
been allowed to work from home. While these employees had different job functions
than Heaser, they were similarly situated because of their need to remotely access the
computer system. Nonetheless, the majority ignores Heaser’s claim that Toro can
provide her with adequate access to its computer system, instead labeling it
“conjecture.” Instead, the majority relies on an affidavit by an analyst from Toro’s
information technology division to conclude that Heaser could not remotely access the
software needed for her job. According to the majority’s analysis, Heaser could not
work from home because the computer software necessary for her position, a program
called Dataflex, could not be remotely accessed.

       There are two problems with the majority’s analysis. First, the evidence must
be viewed in the light most favorable to Heaser. Why is it then that Heaser’s assertion
about accessing the computer system from home is simply “conjecture,” yet Toro’s
claim that the computer system cannot be accessed remotely is considered undisputed
fact?

      Second, the affidavit the majority relies on does not say that the Dataflex
software is necessary for Heaser’s position. It says that Heaser was using the Dataflex




                                         -15-
software at the time she stopped working.4 There appears to be nothing in the record
that defines the use of Dataflex software as an essential function of Heaser’s job. It
seems possible, therefore, that Heaser could have done her job using other software
programs that could remotely access the Toro computer system. In fact, in the
affidavit, Toro’s analyst explains that other software programs have been used by
employees to remotely access Toro’s computer system.5 The evidence also indicates
that electronic documents could have been exchanged between Heaser and Toro via a
courier system. None of this evidence appears to have been considered by the
majority.

      With respect to Heaser’s request to perform her job without carbonless paper,
the majority feels that Heaser failed to show that avoiding carbonless paper is a
reasonable accommodation. Once again the majority places great weight on Toro’s
evidence while ignoring the evidence presented by Heaser. It is important to note that
using carbonless paper is not one of the functions of Heaser’s job,6 it is simply a tool


      4
       The affidavit of Toro’s analyst says in relevant part: “The principal software
Lynn Heaser used in her job at the time she stopped working, Dataflex, could not be
used from a remote location.” (Bailey Aff. ¶ 3.)
      5
        Although Toro’s analyst indicated that remotely accessed software programs
are not designed to operate all day long, the record shows that Heaser asserted she
could do the majority of her work off-line and send it to Toro’s computer system
periodically. Whether this request was reasonable should be weighed by a jury, rather
than foreclose such traditional review by holding as a matter of law that what Toro said
must be accepted as undisputed.
      6
          The record shows that the major functions of Heaser’s job were:

      Manage distribution of merchandising materials to distributors, and direct
      dealers.    Coordinate all facets of inventory system to ensure
      materials/billing are efficiently and cost effectively managed. Develop


                                          -16-
that Heaser typically used to perform one of the functions of her job - ordering
literature.

       Heaser presented sufficient evidence to show that she could place orders without
using carbonless paper. According to Heaser, she could use a computer and electronic
forms to place orders, a practice that was becoming more and more common at the time
and is practically an industry standard today. Heaser also presented evidence that with
the assistance of a phone, fax machine, courier system or e-mail, any of the ordering
could have been done without relying on carbonless paper.

       The majority, however, concluded that Heaser could not be reasonably
accommodated. The majority apparently reached this conclusion because it defined the
use of carbonless paper as an essential function of Heaser’s job, instead of a tool to
perform her job. Nowhere in the record is the use of carbonless paper defined as an
essential function of Heaser’s job. As such, it is clearly in error for the majority to
simply hold that Heaser must use carbonless paper. Instead, once Heaser proposes
using electronic forms to complete the task of ordering literature, Toro has the burden
of showing that converting its ordering system to electronic forms is too much of a
burden on its business. Before we consider whether this accommodation is a burden,
however, there is a material issue of fact that only a jury can resolve: whether Heaser
can avoid using carbonless paper by using electronic forms to do the ordering.

     Clearly, the evidence presented by Heaser is sufficient to make a prima facie
showing that she can do her job from home and without carbonless paper. This is not

      and support Co-op Sign Programs for Toro and Lawn Boy. Coordinate
      with mass order entry position on management of overall system. Provide
      support for Merchandising Manager as needed.

(Arms Aff. Ex. A.)


                                         -17-
to say that the accommodations requested by Heaser are necessarily feasible, rather the
point is that factual disputes exist as to whether Heaser can be reasonably
accommodated. As such, when material issues of fact are present, summary judgment
is not appropriate.

       With respect to the interactive process regarding reasonable accommodation, the
majority faults Heaser in her failure to assert before the district court the question of
exercising good faith by failing to engage in an interactive process. See Fjellestad v.
Pizza Hut of America, Inc., 188 F.3d 944 (8th Cir. 1999). However, examination of
the district court opinion shows that both parties presented arguments of their
participation in the interactive process. Further, Toro does not argue procedural default
on appeal.

       Implicit in the entire process of accommodation under the ADA is that the parties
enter into an interactive process. 42 U.S.C. § 12112(a). According to the record,
Heaser and Toro attempted to engage in this process, but before Heaser could attempt
to work under the conditions defined by Toro, it terminated her. In other words, the
process was never completed.

      Based on Fjellestad, when an employer acts in bad faith in the interactive
process, a jury can reasonably conclude that the employee would have been able to
perform the job with accommodations. 188 F.3d at 953. The majority never considers
whether Toro acted in bad faith because it uses waiver to sidestep the entire issue. To
ignore this issue does a complete injustice to the evidence presented by both Heaser
and Toro.

      Based on the record, Heaser informed Toro that she would “try” to work under
Toro’s terms of accommodation, yet Toro terminated her without further discussion.
The majority opinion slights the context in which this abrupt termination of negotiation


                                          -18-
took place: that the employer decided it would terminate plaintiff because they had
heard that plaintiff was going to sue them.7 This clearly presents a factual issue as to
whether Toro engaged in the interactive process in good faith.

       Nonetheless, whether Heaser waived her arguments on the interactive process
or not, there are clearly issues of material fact in this case that make summary judgment
inappropriate. As such, I would reverse the grant of summary judgment on the issue
of disability discrimination8 and remand the case to the district court for further
proceedings.

         A true copy.

                  Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




         7
       The record indicates that in the presence of over 100 Toro employees, the
director of facilities announced that Toro’s legal department had instructed him to
ignore Heaser’s concerns and pleas for help because Heaser was planning to sue the
company.
         8
             In view of my dissent on the central issue, I choose not to pass on the ERISA
issue.


                                             -19-
