                   United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                ____________

                                  No. 03-3472
                                 ____________

Mac Arthur Kammueller,               *
                                     *
           Plaintiff - Appellant,    *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * District of Minnesota.
                                     *
Loomis, Fargo & Co.,                 *
                                     *
           Defendant - Appellee. *
                                  ____________

                          Submitted : June 14, 2004
                              Filed : August 25, 2004
                                ____________

Before MURPHY, BRIGHT, and MELLOY, Circuit Judges.
                           ____________

MELLOY, Circuit Judge.

       Plaintiff-Appellant, Mac Kammueller, appeals from a Motion for Summary
Judgment granted in favor of Defendant-Appellee, Loomis, Fargo & Co. (“Loomis”),
on his reasonable accomodation and disability discrimination claims under the
Minnesota Human Rights Act (“MHRA”).1 Kammueller, who worked for Loomis
for thirty-one years until his discharge in 2002, has polycystic kidney disease
(“PKD”). Kammueller’s PKD caused renal failure in 1995 and forced him to submit

      1
      Kammueller did not raise any federal claims. Loomis is a Texas corporation,
headquartered in Texas, with local management in St. Paul, Minnesota.
to three-and-a-half hours of dialysis three days each week. We find that, as a matter
of law, Kammueller is disabled under the MHRA. Additionally, we hold that there
is a genuine issue of material fact as to whether Kammueller was qualified to perform
the essential functions of his job with a reasonable accommodation and whether his
termination was because of his disability. Accordingly, we reverse.

                                      I. Facts

       Kammueller was born with PKD. It is a permanent physical impairment,
which, since his kidneys failed in 1995, requires dialysis three afternoons per week
for three-and-a-half hours. He necessarily spends additional recovery time in the
hospital following treatment as well as time to travel to and from the hospital prior
to and following treatment. His dialysis schedule is determined by the availability of
the machine and is inflexible. The rigorous treatment prevents him from working
during and following dialysis. The treatment renders him exhausted and unable to
return immediately to work after it is completed. After dialysis he goes to sleep.
Kammueller has a shunt in his right arm which, in combination with his kidney
disorder, prevents him from lifting over forty pounds. He requires at least thirteen
different medications and is unable to miss a dialysis appointment, at risk of death.
He may consume limited kinds of food and beverages and only twelve ounces of
liquids per day.

       Loomis is a company that maintains a fleet of armored trucks that regularly
services banks and financial institutions. Prior to 2000, Loomis employed
“driver/guards” to drive armored trucks and serve as guards. Loomis also employed
“custodians” to ride in the back of the armored trucks with the cargo and take and
retrieve cargo from customers. The record is unclear regarding the extent to which
Loomis maintained a strict division of labor between the custodians and the
driver/guards. In 2000, however, Loomis formally consolidated the functions of these
two positions and began to refer to the one resultant position as an Armored Service

                                         -2-
Technician (“AST”). Accordingly, after 2000, the tasks of the ASTs included driving
the armored trucks, picking up and delivering cargo, guarding other ASTs during
loading and unloading, recording information about the cargo, and lifting and
carrying up to fifty pounds.

       Kammueller began work for Loomis in 1968 as a driver/guard. He also held
a supervisory position from 1970-1973. The record does not reflect the extent to
which Kammueller did or did not perform the full spectrum of duties as a driver/guard
and/or custodian prior to 1986. He left Loomis from 1986 until 1988 in an attempt
to earn more money as an over-the-road driver. In 1988, he resumed employment
with Loomis as a driver/guard. Between 1988 and 1995, except on one isolated
occasion, Kammueller did not perform any lifting duties; he only drove. Kammueller
does not allege that medical limitations prior to 1995 prevented him from performing
the full range of driver/guard and/or custodian duties, nor does he allege that his
limited duties were due to an accomodation.

        Beginning in 1995, after Kammueller’s kidneys failed and after he started on
dialysis, his job description changed to match his limited duties – driving only. With
his altered job description, from 1995 to 2001, Loomis did not require Kammueller
to lift over forty pounds. In addition, the local general manager in Minnesota, Tim
Maurer, assigned Kammueller to the three o’clock until eleven o’clock a.m. shift to
accommodate the dialysis schedule. This altered schedule was also a benefit to
Loomis because the early morning shift was unpopular and difficult to fill. Further,
the early morning shift was in place at the request of a customer, MTC, not merely
as an accommodation for Kammueller. Kammueller performed his job satisfactorily
for at least the six years from 1995 to 2001.

       In September 2001, Loomis lost the business of an important client, Wells
Fargo. Wells Fargo accounted for a significant portion of Loomis’s business. The
loss required a substantial reduction in force. The staff reduction affected fifty

                                         -3-
employees, about half of Loomis’s workers, through termination or attrition.
Corporate management in Texas directed the local management in Minnesota to
terminate employees in order of reverse seniority and require all ASTs to perform all
of functions of the position. Curt Deaver, the local operations manager in Minnesota,
and Chuck Hedlund, the local human resources manager in Minnesota, advised
Kammueller of this change. Kammueller had the seniority to survive layoffs that
occurred following the loss of Wells Fargo’s business but could not meet the fifty
pound lifting requirement for the AST position. Kammueller informed them that he
could not lift more than forty pounds and requested continued accommodation. At
the time, Loomis considered the possibility of retaining Kammueller. Mauer and
Deaver agreed that Loomis could continue to accommodate and employ Kammueller
after the reduction in force. They modified his position; he drove for four hours, from
three o’clock to seven o’clock a.m., and he worked on paperwork in the vault from
seven o’clock to eleven o’clock a.m. Kammueller remained in this modified position
for several months after the loss of the Wells Fargo account.

       The record has conflicting testimony as to whether there was adequate driving
and vault work to occupy Kammueller’s time in his modified position. There is no
clear indication of what then led to Loomis’s subsequent decision to revisit the issue
of an accommodation for Kammueller and enforce the lifting requirement against
Kammueller. However, the local managers apparently renewed discussions with
corporate managers in Texas regarding their inability to conceive of a solution to the
application of the lifting requirement to Kammueller. Human resources managers at
the corporate level in Texas authorized the elimination of Kammueller’s modified
position and gave permission for his termination. In a termination letter to
Kammueller, Hedlund cited Kammueller’s inability to meet the minimum lifting
requirement as the reason for termination. In this litigation, but not in the termination
letter, Loomis also cites scheduling inflexibility as an additional ground for
termination.



                                          -4-
       The record does show, however, that operations manager Deaver was
dissatisfied with the decision to terminate Kammueller because a driver for the early
route was necessary, the position was difficult to fill, and Deaver thought there was
adequate vault work to occupy Kammueller’s remaining hours. At his deposition,
Deaver testified that he continues to believe Kammueller’s disability could be
accommodated.

                               II. Standard of Review

       We review the grant of the motion for summary judgment de novo and we view
the facts in a light most favorable to the non-moving party. Equal Employment
Opportunity Comm’n v. Liberal R-II Sch. Dist., 314 F.3d 920, 922 (8th Cir. 2002).
We affirm only if there is a genuine issue of material fact or if no material factual
dispute exists and the moving party is entitled to judgment as a matter of law. Mayer
v. Nextel W. Corp., 318 F.3d 803, 806 (8th Cir. 2003); Fed. R. Civ. Pro. 56(c). At
summary judgment, because we view the facts in the light most favorable to the non-
moving party, we do not weigh the evidence or attempt to determine the credibility
of the witnesses. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir. 1996).

                                   III. Discussion

       Kammueller raised claims under the MHRA for failure to accommodate and
disability discrimination. Kammueller may use direct or circumstantial evidence to
prove his claims. Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534,
542 (Minn. 2001). Using circumstantial evidence to establish his prima facie case,
which is a requirement under both claims, Kammueller must present evidence
sufficient to permit a reasonable jury to conclude that he was (1) disabled within the
meaning of the MHRA, (2) qualified to perform the essential functions of the job with
or without reasonable accommodation, and (3) suffered an adverse employment
action because of his disability. Liljedahl v. Ryder Student Transp. Services, Inc., 341

                                          -5-
F.3d 836, 841 (8th Cir. 2003). Under the failure to accommodate claim, Kammueller
must also show that his employer knew of, and failed to reasonably accommodate, his
disability. Minn. Stat. § 363A.08 subd. 6. Under the claim of disability
discrimination, we apply the McDonald Douglas burden shifting analysis. Hoover,
632 N.W.2d at 542. We address these claims in turn below.

                            A. Failure to Accommodate
                             i. Disabled Under MHRA

       The MHRA provides, in relevant part, that an individual is disabled if he or she
has a “physical, sensory, or mental impairment which materially limits one or more
major life activities.” Minn. Stat. § 363A.03 subd. 12 (2003). The MHRA
“materially limits” standard is less stringent than the Americans with Disabilities Act
(“ADA”) “substantially limits” standard. Liljedahl, 341 F.3d at 841 n.3. Otherwise,
we analyze cases under the ADA and MHRA with the same standard. Philip v. Ford
Motor Co., 328 F.3d 1020, 1023 n.3 (8th Cir. 2003); Fenney v. Dakota, Minn. & E.
R.R. Co., 327 F.3d 707, 711 n.5 (8th Cir. 2003). The Rehabilitation Act, 29 U.S.C.
§ 701, et seq., is also a source of guidance for interpretion of these statutes. Toyota
Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 193 (2002); 42 U.S.C. § 12117(b)
(provisions of the ADA must be interpreted in a manner that “prevents imposition of
inconsistent or conflicting standards for the same requirements under [the ADA] and
the Rehabilitation Act of 1973.”); Johnson v. U.S. Steel Corp., 943 F.Supp. 1108,
1114 n.2 (D. Minn. 1996) (cases interpreting the Rehabilitation Act are relevant to
cases interpreting the ADA).

      The ability to care for oneself is a major life activity under the MHRA. Ordahl
v. Forward Tech. Indus., Inc., 301 F. Supp. 2d 1022, 1027-28 (D. Minn. 2004). A
person is substantially limited if he has a long term or permanent “impairment that
prevents or severely restricts the individual from doing activities that are of central
importance to most people’s daily lives.” Fenney, 327 F.3d at 714 (quoting Toyota

                                         -6-
534 U.S. at 198).2 In Fenney, the plaintiff lost a thumb and half of his middle finger
on his dominant hand and irreparably damaged his right arm. According to his
physician, because of this impairment,

      Mr. Fenney requires more time during the winter to do changes [sic] in
      regards to his clothing. The lack of his right thumb makes it difficult for
      him to do certain types of grasping motions which would delay him in
      terms of being able to change his clothes in cold weather.

Id. at 715-16. Fenney requires “twice as long as an average person to perform his
‘taking care of himself’ tasks - bathing, shaving, preparing a meal, dressing, and
going to the restroom,” and needs an extra thirty minutes to arrive to work. Id. at 716.
The Eighth Circuit held that Fenney’s extra thirty minutes to prepare himself for work
in the morning could create a genuine issue of material fact as to whether he was
substantially limited in caring for himself. Id.

       Here, Kammueller’s kidney failure demands that he spend ten and a half hours
per week in dialysis and four to five additional hours in the hospital and travel time
to and from the hospital. He goes straight to sleep following dialysis and is not able
to work during that time. In addition, he is prescribed over thirteen different
medications and has severe dietary and fluid intake restrictions. Together, these
restrictions render Kammueller incapable of doing activities of central importance to
a person’s life, such as cleansing one’s own blood cells. There is no factual dispute
as to the existence of Kammueller’s limitations. Kammueller demonstrates greater
restrictions than those present in Fenney, an ADA case under the more stringent
“substantially limits” standard. The severity of Kammueller’s restrictions viewed


      2
       Following Eighth Circuit and Supreme Court precedent, we use this test for
“substantial limitation” rather than the “condition, manner, or duration” test of the
Equal Employment Opportunity Commission (EEOC) as suggested in Appellant’s
brief. Toyota, 534 U.S. at 194-203; Fenney, 327 F.3d at 714.

                                          -7-
under the less stringent “material limits” standard of the MHRA, clearly demonstrate
a disability.

       Further, although not binding, ADA and Rehabilitation Act rulings on this
issue from other courts suggest that PKD is, in fact, disabling. The Second Circuit
stated, “We are inclined to view persons whose kidneys would cease to function
without mechanical assistance or whose kidneys do not function sufficiently to rid
their bodies of waste matter without regular dialysis, as being substantially limited
in their ability to care for themselves.” Gilbert v. Frank, 949 F.2d 637, 641 (2d Cir.
1991). The Southern District of New York found it “inconceivable that persons who
suffer from chronic conditions involving organ failure, like . . . kidney failure, are not
‘substantially limited’ in certain major life activities, simply because they can lead
relatively normal lives by . . . hooking themselves up to dialysis machines.” Saks v.
Franklin Covey Co., 117 F. Supp. 2d 318, 325 (S.D.N.Y. 2000). Similarly, in the
District of Massachusetts, end stage renal failure from PKD requiring dialysis three
times per week, “clearly qualif[ies] as [a] disabilit[y].” McDonald v. Menino, No. 96-
10825, 1997 WL 106955, *1-2 (D. Mass. 1997). Because the MHRA uses a more
lenient “materially limits” standard than the ADA’s and Rehabilitation Act’s
“substantially limits” standard, we find as a matter of law that Minnesota’s courts
would adopt the position of the courts cited above. Accordingly, we find as a matter
of law that end stage renal failure due to PKD is disabling.

      Finally, if PKD were not in and of itself disabling, the severity of treatment,
such as the dialysis in this case, renders the condition disabling under the MHRA.
The Seventh Circuit held,

      [I]f a medical condition that is not itself disabling nevertheless requires,
      in the prudent judgment of the medical profession, treatment that is
      disabling, then the individual has a disability within the meaning of the
      Act, even though the disability is, as it were, at one remove [sic] from


                                           -8-
      the condition. We cannot find a case on the question, but the answer
      seems obvious--maybe that's why there are no cases.

Christian v. St. Anthony Med. Ctr., Inc., 117 F.3d 1051, 1052 (7th Cir. 1997); see
also Gordon v. E.L. Hamm & Assoc., Inc., 100 F.3d 907, 912 (11th Cir. 1996) (noting
that chemotherapy treatment for a cancer not itself shown to be disabling could be
disabling within the meaning of the ADA). We think it is clear that the nature and
severity of Kammueller’s PKD therapy also renders him disabled under the MHRA.

      Loomis does not dispute the facts of Kammueller’s physical impairment or
treatments. Loomis disputes only the conclusions to be drawn from Kammueller’s
impairment and treatments. Under the first element of the prima facie case, the
showing of disability, we find as a matter of law that Kammueller satisfied this first
element of his prima facie case.

             ii. Essential Functions with Reasonable Accommodation

       To make a prima facie showing that he is qualified for the job, Kammueller
must demonstrate that he meets the essential prerequisites for the job, such as basic
education, experience and training, and that he can perform the essential functions of
the job with or without a reasonable accommodation. Cravens v. Blue Cross & Blue
Shield of Kansas City, 214 F.3d 1011, 1016 (8th Cir. 2000). If he requires an
accommodation, he must make a facial showing that an accommodation is possible,
and, with it, he can perform the essential functions of the job. Burchett v. Target
Corp., 340 F.3d 510, 517 (8th Cir. 2003). Essential functions of the job are
“fundamental job duties,” and the employer’s judgment in this regard is considered
“highly probative.” Alexander v. The Northland Inn, 321 F.3d 723, 727 (8th Cir.
2003). Evidence to consider in this determination may include: “(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
                                         -9-
incumbent to perform the function; and (5) the current work experience of
incumbents in similar jobs.” Heaser v. The Toro Co., 247 F.3d 826, 831 (8th Cir.
2001).

       Eighth Circuit cases generally give deference to the employer’s judgment of
essential job functions, especially when staffing is problematic. See Moritz v. Frontier
Airlines, Inc., 147 F.3d 784, 787 (8th Cir. 1998) (stating that limited staffing and
budget for staffing should be considered in evaluating the consequences of not
requiring the incumbent to perform the job functions and citing EEOC regulations to
the same effect). The employer’s judgment, however, although highly probative, is
merely evidence and is not conclusive. Rather, we also emphasize the results upon
the employer’s business of eliminating that job function; “the consequence of not
requiring [plaintiff] to perform these functions demonstrates that they are, indeed,
essential.” Dropinski v Douglas Cty., 298 F.3d 704, 709 (8th Cir. 2002) (summary
judgment is appropriate if plaintiff cannot perform “many” of the eighteen written job
requirements and can lift less than half of the minimum lifting requirement).

       In the present case, viewing the facts in the light most favorable to the non-
moving party, there is a material question of fact as to whether the consequences of
allowing Mr. Kammueller to continue his morning shift in the vault and lift less than
forty pounds are severe enough to consider this duty “essential.” Prior to the
restructuring, the consequences of the lifting limitation were not problematic. In fact,
Loomis actually benefitted from his willingness to work the night shift, which was
notoriously difficult to fill. Following the restructuring, Loomis capably
accommodated Kammueller’s lifting restriction and dialysis schedule. What exactly
happened following the restructuring that caused local managers in Minnesota to
revisit the issue of accommodation and renew discussions with corporate managers
in Texas is unclear. The provision, and subsequent elimination, of Kammueller’s
accommodation after the reduction in force, at a minimum, creates a jury question as
to whether the consequences of excusing Kammueller from certain job functions were

                                         -10-
sufficiently severe to consider those job functions essential. Were we to give
conclusive weight to the employer’s opinion on this issue, Loomis, and in fact, any
employer, would escape ADA and MHRA liability simply by defining job duties in
a manner that excludes disabled employees.

       Further, even assuming that lifting fifty pounds is an essential function of the
job, the jury must still decide whether there is a reasonable accommodation available
that would enable Kammueller to perform the job. Burchett, 340 F.3d at 517.
Reasonable accommodations under the MHRA may include, “(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.” Minn. Stat. § 363A.08 subd. 6 (2003). An employer, however, is not
required to make such an accommodation when it will result in an “undue hardship.”
Id. Prior to and for several months following restructuring, Kammueller did perform
all essential functions of his job with accommodations for his schedule and lifting
limitation. He drove an early morning shift, and after restructuring also did
paperwork and worked in the vault where he used a cart to transport coins. The early
morning shift still exists, as do at least some vault duties and paperwork. Returning
Kammueller to this position, which he successfully held for six years, including
several months after the loss of the Wells Fargo business, is a potentially reasonable
accommodation. Accordingly, a material question of fact remains as to whether a
reasonable accommodation exists.

       In its defense, Loomis contends that accommodating Kammueller would be
unduly burdensome. Loomis “is under no obligation to reallocate the essential
functions of a position that a qualified individual must perform.” Moritz, 147 F.3d
at 788. However, the statute plainly states that modification of hours and job
restructuring may be reasonable accommodations. Minn. Stat. § 363A.08 subd. 6
(2003). Further, other than nonspecific references to “reallocation of essential

                                         -11-
functions,” Loomis has not offered any evidence to demonstrate that an
accommodation would be burdensome. Rather, evidence shows that the operations
manager, Curt Deaver, testified that there was adequate work for Kammueller
following restructuring, that he is capable of performing it, and in fact was fulfilling
the duties of the job, and that it could be beneficial to the company to keep him on the
unpopular morning shift. The credibility of this testimony and whether
accommodations that were available once are still available in a changed economy
are questions of fact to be resolved by the jury.

                          iii. Adverse Employment Action

       Kammueller must show that he suffered an adverse employment action because
of his disability. Liljedahl, 341 F.3d at 841. “An adverse employment action is one
that causes a material change in the terms or conditions of employment.” Brown v.
Lester E. Cox Med. Ctrs., 286 F.3d 1040, 1045 (8th Cir. 2002). Here, it is clear that
Kammueller suffered an adverse employment action; he was fired despite his
seniority. Under Fenney, it is not necessary to apply the McDonnell Douglas
framework to the prima facie case for a reasonable accommodation claim. Fenney,
327 F.3d at 712. Rather, the plaintiff “at all times retains the burden of persuading
the trier of fact that he has been the victim of illegal discrimination due to his
disability.” Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995)
(citations omitted). Here, Kammueller satisfied his burden adequately to survive a
motion for summary judgment.




                                         -12-
                            B. Disability Discrimination

       In a disability discrimination claim, unlike a reasonable accommodation claim,
we apply the McDonnell Douglas burden-shifting framework.3 Hoover v. Norwest
Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn. 2001). After the plaintiff
establishes a prima facie case, the employer must then “rebut the presumption of
discrimination by articulating a legitimate, non-discriminatory reason for the adverse
employment action.” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1134-35 (8th Cir.
1999) (en banc). The plaintiff must then demonstrate that the non-discriminatory
reason is actually pretextual. Id.

       Loomis offered a legitimate reason for the adverse action: that restructuring,
due to the loss of a major client, required the elimination of employees other than
those with flexible schedules who could meet all minimum lifting requirements.
Kammueller, however, created a material question of fact as to whether that
explanation is pretextual. First, he presented evidence of discriminatory comments
and derogatory statements about his disability. Also, there is evidence that
Kammueller’s shift was not dependent on the business of Wells Fargo, i.e., Loomis
instituted the night shift at the request of a customer other than Wells Fargo. Finally,
Kammueller’s retention for a period of months following the restructuring establishes
a question of fact as to whether Loomis’s articulated reason was pretext.
Kammueller’s showing is sufficient to survive summary judgment.

      Accordingly, the judgment of the district court is reversed.
                      ______________________________



      3
      We will not address the issue of whether Desert Palace, Inc. v. Costa, 539 U.S.
90 (2003), alters the burden shifting analysis of McDonnell Douglas. For the
purposes of this opinion it is not relevant.
                                         -13-
