                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1387
                         ___________________________

                         Linda L. Faulkner, an individual

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

    Douglas County Nebraska, a political subdivision of the State of Nebraska

                        lllllllllllllllllllllDefendant - Appellee
                                       ____________

                     Appeal from United States District Court
                       for the District of Nebraska - Omaha
                                  ____________

                             Submitted: May 17, 2018
                             Filed: October 12, 2018
                                  ____________

Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.
                              ____________

BEAM, Circuit Judge.

      Linda Faulkner appeals the district court's1 grant of summary judgment in favor
of Douglas County Department of Corrections (DCDC) in this employment dispute
based upon allegations of gender, age, and, most significantly, disability

      1
        The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.
discrimination under state and federal civil rights laws. Because Faulkner cannot
perform the essential functions of her job and was not discriminated against on any
other basis, we affirm the district court.

I.    BACKGROUND

      At the time she filed her complaint, Faulkner was a 56-year old woman who
worked for DCDC from April 2003 to January 2014, as a Correctional Officer II
(COII). Based upon DCDC's job description, a COII was required to be able to
control fights between inmates and to restrain combative inmates through use of
necessary force at times. The physical requirements in the job description further
provided that a COII must be able to stand, walk, sit, climb stairs, run, kneel, stoop,
crouch, and move quickly from kneeling to standing positions; lift, grip, push, and
pull certain minimal weights and forces, including the ability to lift 20 pounds
frequently, lift up to 350 pounds occasionally as part of a team lift, push up to 100
pounds and pull up to 80 pounds occasionally, and push/pull up to 40 pounds on a
frequent to occasional basis.

      It was during a combative inmate encounter that Faulkner was injured in
August 2012. She injured her shoulder and the lumbar region of her back. She was
put on light duty for a short while, and then returned to full duty in late August. On
September 4, 2012, Faulkner was again involved in an inmate altercation that
ultimately required shoulder surgery in October 2012. She was released to return to
sedentary work in late November 2012. After many more doctor evaluations and
physical therapy, and having obtained "maximum medical improvement" in April
2013, Faulkner returned to light-duty work in May 2013.2 Faulkner's functional

      2
        Reports were filed with the Nebraska Workers' Compensation Court after both
the August and September incidents, and Faulkner received various types of workers'
compensation benefits until she reached "maximum medical improvement," pursuant
to the provisions of Nebraska law.

                                         -2-
capacity evaluation (FCE) indicated that her restrictions were: lifting objects to
shoulder level restricted to twenty pounds on an occasional basis and ten pounds on
a frequent basis, overhead lifting restricted to fifteen pounds or less on an occasional
basis, no prolonged or repetitive overhead work, and no pushing or pulling greater
than forty pounds. Faulkner continued to work light duty until July 6, 2013, when she
was removed from light-duty status because she used the maximum allowable number
of days of light duty pursuant to the terms of the Collective Bargaining Agreement
(CBA).

       Shortly thereafter, in August 2013, DCDC sent her a letter notifying her that
her FCE restrictions precluded her from being able to perform the essential functions
of the COII job. In that letter, her supervisor suggested that Faulkner advise him if
she believed some type of accommodation would allow her to perform the essential
functions of the COII position, or some other position within Douglas County. On
October 7, 2013, at a meeting with DCDC officials, Faulkner asked to be indefinitely
reassigned to the central control or lobby, or to the Douglas County Department of
Motor Vehicles (DMV) as an accommodation for her permanent injuries. Shortly
thereafter, on October 11, 2013, Faulkner underwent C5-C7 disc fusion surgery.3 On


      3
        Faulkner's treating physician, Dr. Buzzell, found that Faulkner had
degenerative disc disease which ultimately required this C5-C7 surgery in October
2013. In January 2014, Faulkner filed a claim with the Nebraska Workers'
Compensation Court to further litigate the issue of whether her cervical spine issue
was related to the two work injuries. Both Buzzell and another doctor who examined
Faulkner in the context of the workers' compensation case found that her cervical
spine injury was caused by a 2011 car accident, based upon a comparison of MRI
results in 2011 after the car accident (and before the work injuries), and post-work
injury MRI results. Accordingly, the Nebraska Workers' Compensation court found
that Faulkner's spine injuries were unrelated to the injuries that occurred on the job,
and instead originated from the 2011 car accident. She was awarded workers'
compensation benefits, including vocational rehabilitation benefits, for her left
shoulder injury, however.

                                          -3-
January 31, 2014, DCDC officials terminated Faulkner's employment. DCDC
indicated this was because she could not physically resume her regular COII duties
with or without a reasonable accommodation, she had exhausted the amount of light
duty she was entitled to under the CBA, and no positions were available at the DMV.

       On August 17, 2015, Faulkner brought this action against DCDC alleging sex,
disability, and age discrimination, as well as a retaliation claim all in violation of state
and federal civil rights laws. The district court granted summary judgment in favor
of DCDC, finding that Faulkner could not make a prima facie case of sex or age
discrimination because no similarly situated males were treated differently, and no
similarly situated persons under the age of 40 were treated differently; that she was
not physically qualified to do her job so could not prevail on her disability and
failure-to-accommodate claims; and that she abandoned her retaliation claim in
briefing.4 Faulkner appeals.

II.    DISCUSSION

      We review summary judgment de novo, taking all of the evidence and
reasonable inferences in favor of the non-moving party and only affirming if there is
no genuine issue of material fact. Crozier v. Wint, 736 F.3d 1134, 1136 (8th Cir.
2013).

       A.     Sex Discrimination

      To establish a prima facie case of discrimination under the McDonnell Douglas
framework, "a plaintiff must show (1) he is a member of a protected class, (2) he met
his employer's legitimate expectations, (3) he suffered an adverse employment action,


      4
       Faulkner does not advance retaliation arguments in her appellate briefs and
we, too, consider this claim waived.

                                            -4-
and (4) the circumstances give rise to an inference of discrimination." Pye v. Nu
Aire, Inc., 641 F.3d 1011, 1019 (8th Cir. 2011). To create an inference of
discrimination based upon disparate treatment, the plaintiff must show she was
treated differently than similarly situated persons who are not members of the
protected class. Bennett v. Nucor Corp., 656 F.3d 802, 819 (8th Cir. 2011). Once the
prima facie case is established, the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its action. Floyd-Gimon v. Univ.
of Ark. for Med. Scis. ex rel. Bd. of Trs. of Univ. of Ark., 716 F.3d 1141, 1149 (8th
Cir. 2013). If the defendant does so, the plaintiff then has the burden of proving that
the defendant's proffered reason is a pretext for discrimination. Id. The state act has
a similar framework, and Nebraska courts follow federal case law as persuasive
authority. City of Ft. Calhoun v. Collins, 500 N.W.2d 822, 825 (Neb. 1993).

       Faulkner listed seven men in her complaint who were allegedly similarly
situated to her but treated more favorably by DCDC. However, the record indicates
that six of them were not similarly situated to Faulkner, and one was treated the same.
One of the men had no injuries, four were released back to their jobs without medical
restrictions, and a sixth was released back to work with no medical restrictions until
he retired. The seventh comparator was similarly situated to Faulkner in that he, too,
could not perform the duties of a corrections officer, and was terminated. Faulkner
therefore did not establish her prima facie case of sex discrimination, and the district
court correctly granted summary judgment on her claim.5




      5
        Faulkner argues that the district court erred in this regard because the DCDC
did not assert material facts or provide argument with regard to the sex discrimination
claim. However, the record belies this claim.

                                          -5-
      B.     Failure to Accommodate/Disability

       Faulkner's claims on appeal primarily focus on the DCDC's alleged failure to
accommodate, engage in the interactive process, and her disability discrimination
claims. A plaintiff seeking to recover under the Americans with Disabilities Act
(ADA) must establish a prima facie case of discrimination, that is Faulkner must
establish: "(1) an ADA-qualifying disability; (2) qualifications to perform the
essential functions of her position with or without reasonable accommodation; and
(3) an adverse employment action due to her disability." Norman v. Union Pac. R.R.
Co., 606 F.3d 455, 459 (8th Cir. 2010). The burden then shifts to the employer to
show a nondiscriminatory reason for the adverse action and then back to the plaintiff
to show that the articulated reason is merely a pretext for discrimination. Young v.
Warner-Jenkinson Co., 152 F.3d 1018, 1021 (8th Cir. 1998) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973)). "The plaintiff retains at all
times the ultimate burden of proving that the adverse employment action was
motivated by intentional discrimination." Id. The state disability discrimination act
uses a similar framework. Father Flanagan's Boys' Home v. Goerke, 401 N.W.2d
461, 464 (Neb. 1987).

      With regard to the interactive process for a request for accommodation, an
employer must converse or interact with the individual about the availability of a
reasonable accommodation, but "an employer need not reallocate or eliminate the
essential functions of a job to accommodate a disabled employee." Fjellestad v. Pizza
Hut of Am., Inc., 188 F.3d 944, 950 (8th Cir. 1999). Indeed, the employer must make
a good faith effort to assist the employee in finding an accommodation, but the
employee must show she could have reasonably been accommodated if not for the
employer's lack of good faith. Faidley v. United Parcel Serv. of Am., Inc., 889 F.3d
933, 943-44 (8th Cir. 2018) (en banc). Thus, if Faulkner cannot show there was a
reasonable accommodation available, DCDC is not liable for failing to engage in the
good-faith interactive process. Scruggs v. Pulaski Cty., Ark., 817 F.3d 1087, 1094

                                         -6-
(8th Cir. 2016); Battle v. United Parcel Serv., Inc., 438 F.3d 856, 864 (8th Cir. 2006)
("Under the ADA, if no reasonable accommodation is available, an employer is not
liable for failing to engage in a good-faith interactive process."); Dropinski v.
Douglas Cty., 298 F.3d 704, 709-10 (8th Cir. 2002) (holding that a discussion of the
interactive process is "superfluous" where the worker cannot perform the essential job
duties, and any accommodation would result in job restructuring).

       It is undisputed that Faulkner had a disability and that her employment was
terminated due to her disability. It is also undisputed that she could not perform the
essential functions of a COII position without accommodation. The dispute centers
around whether there was an available accommodation, and whether DCDC engaged
in an interactive process to help her find such an accommodation. She argues that it
would have been reasonable for her supervisor to accommodate her by assigning her
permanently to the DCDC lobby, or to a night shift position. She argues that she
worked for several years in the lobby and on the night shift without ever having any
inmate contact, indicating that inmate contact was not, in actuality, an essential
function of the job. Faulkner cites Benson v. Northwest Airlines, Inc., 62 F.3d 1108
(8th Cir. 1995) in support of her argument in this regard. In Benson, we held that
determining whether physical qualifications are essential job functions "should be
based upon more than statements in a job description and should reflect the actual
functioning and circumstances of the particular enterprise involved." Id. at 1114
(quoting Hall v. U.S. Postal Serv., 857 F.2d 1073, 1079 (6th Cir. 1988)). However,
the record is clear that officers assigned to lobby and night shift positions must still
be able to perform the essential physical duties of a correctional officer, including the
ability to restrain offenders or stop disturbances with use of force.

       Faulkner also argues DCDC could have permitted her to work indefinitely in
light-duty assignments without inmate contact. As stated, however, the CBA limited
the number of days an employee could be assigned to light-duty work. The CBA
provides that the light-duty policy was intended to benefit employees during short-

                                          -7-
term illnesses, was not intended for long-term situations, and that a maximum of 180
days of light duty are allowed under the policy. "The ADA does not require that
[DCDC] take action inconsistent with the contractual rights of other workers under
a collective bargaining agreement . . . ." Benson, 62 F.3d at 1114.

       Faulkner's suggested accommodations were not ones that would enable her to
perform the essential functions of the COII position, but ones she perceived would
relieve her of those functions. Even though she was assigned to a post where she
coincidentally did not have inmate contact for a prolonged period of time during her
career with the DCDC, the DCDC was not obliged to contravene a current CBA to
provide Faulkner with a permanent assignment where she would be shielded from
inmate contact. Because Faulkner could not perform the essential functions of her job
with or without a reasonable accommodation, she was not a qualified employee.
Accordingly, DCDC is not liable for failing to engage in a good-faith interactive
process. Battle, 438 F.3d at 864. Faulkner's reliance upon Cravens v. Blue Cross &
Blue Shield of Kansas City, 214 F.3d 1011 (8th Cir. 2000), is thus inapposite. In
Cravens we held that the employer's failure to engage in the interactive process was
prima facie evidence of bad faith at the summary judgment stage. Id. at 1121.
However, the allegedly6 prima facie evidence of bad faith in this case is rebutted by
the incontrovertible evidence that Faulkner "could [not] have been reasonably
accommodated." Id.

      C.     Age Discrimination

       Faulkner also claims she was discriminated against on the basis of her age in
violation of the state and federal age discrimination acts. In order to establish a prima

      6
      We agree with the district court that there is "ample evidence in the record to
support a conclusion that [DCDC] engaged in an interactive process with Faulkner,"
addendum at 17, but any such discussion is "superfluous" under these facts.
Dropinski, 298 F.3d at 710.

                                          -8-
facie case under the Age Discrimination in Employment Act (ADEA), a plaintiff must
show: (1) she is over 40; (2) she was qualified for the position; (3) she suffered an
adverse employment action; and (4) substantially younger, similarly situated
employees were treated more favorably. Anderson v. Durham D & M, L.L.C., 606
F.3d 513, 523 (8th Cir. 2010); Allen v. AT & T Techs., Inc., 423 N.W.2d 424, 431
(Neb. 1988). The district court correctly rejected this claim because Faulkner could
not produce evidence of a similarly situated younger person who was treated
differently. The one comparator Faulkner did advance, a female in her 40s, was not
similarly situated because that employee was ultimately released by her physicians
with no restrictions, unlike Faulkner.

III.   CONCLUSION

       We affirm the district court's grant of summary judgment in favor of DCDC.
                       ______________________________




                                         -9-
