                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 16-1073
                       ___________________________

                                 Jerry Lee Faidley

                      lllllllllllllllllllll Plaintiff - Appellant

                                          v.

                    United Parcel Service of America, Inc.

                      lllllllllllllllllllll Defendant - Appellee

                            ------------------------------

           United States Equal Employment Opportunity Commission

                 lllllllllllllllllllllAmicus on Behalf of Appellant
                                      ____________

                   Appeal from United States District Court
                for the Southern District of Iowa - Des Moines
                                ____________

                          Submitted: October 17, 2017
                             Filed: May 11, 2018
                               ____________

Before SMITH, Chief Judge, WOLLMAN, LOKEN, MURPHY, COLLOTON,
GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges, En Banc.*
                             ____________

     *
      Judge Erickson, Judge Grasz, and Judge Stras did not participate in the
consideration or decision of this matter.
LOKEN, Circuit Judge.

       Jerry Faidley brought two state court actions against his former employer,
United Parcel Service of America, Inc. (UPS), alleging that UPS violated the Iowa
Civil Rights Act (ICRA), Iowa Code § 216, when it placed him on medical leave from
his long time position as a package car driver and then failed to reasonably
accommodate his physical disability. After UPS removed the actions based on
diversity of citizenship, Faidley filed an amended complaint in the first action adding
claims of disability discrimination in violation of the Americans with Disabilities Act
(ADA), 42 U.S.C. §§ 12101 et seq. The two actions were consolidated and the
district court1 granted summary judgment in favor of UPS. Faidley appealed. A
divided panel of this court reversed in part and remanded. Faidley v. United Parcel
Serv. of Am., Inc., 853 F.3d 447 (8th Cir. 2017). We granted rehearing en banc and
vacated the panel opinion. The Equal Employment Opportunity Commission (EEOC)
has submitted an amicus brief in support of plaintiff Faidley. Reviewing the grant of
summary judgment de novo, we affirm the district court.

                                   I. Background

      A. The First Action. Faidley began working as a UPS package car driver in
1987, making residential and business deliveries and picking up commercial
packages. He suffered a work-related back injury in February 2010 and was assigned
to temporary alternate work (TAW) until April 2010. In February 2011, he suffered
another work-related injury and was off work receiving worker’s compensation
benefits until June 2011. In October 2011, he had hip replacement surgery to treat
a degenerative hip condition, which he described as “a different medical issue than
the back pain” in 2010. He began physical therapy in November 2011. His

      1
        The Honorable John A. Jarvey, Chief Judge of the United States District Court
for the Southern District of Iowa.

                                         -2-
orthopaedic surgeon, Dr. Devon Goetz, released Faidley to return to work with no
restrictions on April 26, 2012.

       Faidley testified that when he returned to work as a package car driver, he
requested an eight-hour day the first day he drove, and UPS gave him a lighter-than-
normal day that he completed in 8.27 hours. His second day of driving was
exceptionally heavy, taking 9.65 hours to complete and leaving him “sore and [with]
some pain in my back.” He worked 6.12 hours the third day. When Faidley saw that
his fourth “plan day” was scheduled to be almost 12 hours, he told his supervisor,
“The way I’m feeling there’s no way I can get that done.” After consulting the union
steward and an occupational nurse, UPS made an appointment for Faidley to see Dr.
Goetz on May 15 and told him, “You are done until you get in to the doctor.”
However, UPS contacted Faidley when it was short drivers the following week and
offered to “take it easy on you” if he returned to work. Faidley said he was feeling
better and returned to his package car position, working between 6.84 and 9.53 hours
from May 7 to 14, 2012.

       On May 15, Faidley visited Dr. Goetz with a nurse hired by UPS. The three
discussed the trouble Faidley was having and concluded that Dr. Goetz should issue
a “Patient Status Report” stating that Faidley could return to work but with a
permanent restriction limiting him to working no more than eight hours a day.
Faidley testified that he handed Dr. Goetz’s Status Report to his station manager,
Scott Schmitz, at work the following morning. Schmitz said, “Congratulations, your
career at UPS is now over. . . . UPS won’t allow anybody to work with a permanent
restriction.” Schmitz told Faidley he could not work with that restriction. They
consulted the union steward, who said to Faidley, “Go home.”

      On May 17, Faidley faxed UPS that he “would still like to continue working
at UPS even if it means a job with-in or out-side my current classification. I am
hopeful that . . . there is something available for me.” Properly treating this as an

                                         -3-
employee request for an ADA accommodation, UPS immediately sent Faidley a
Request for Medical Information form to be completed by his physician. On June 18,
Faidley returned the form to UPS.2 On July 24, Faidley attended an “accommodation
checklist meeting” with UPS Occupational Health Supervisors Jurgen Rosner and
Terra Vellema, and District Human Resources Manager Vince Blood. The purpose
of the meeting, as stated in UPS’s ADA Procedural Compliance Manual, was:

      to engage in a good faith, interactive meeting with the employee in order
      to determine whether the employee can be accommodated in his current
      job and, if not, to determine whether there are any other positions that
      are currently available, or that will become available within a reasonable
      period of time for which he is qualified, and for which he can perform
      the essential job functions with or without accommodation.

Faidley submitted an Accommodation Checklist stating that he requested an
accommodation because of “my hip replacement surgery and my lumbar degenerative
disk disease and right hip osteoarthritis,” that he had hip and back pain “after 8 hours
of repetitive lifting, walking, climbing, standing,” and that he “could currently do my
bid route if it was dispatched between 8 and 8.50 hours of work a day.” With regard
to other UPS positions, Faidley stated:

      with an 8.0 hr accommodation, I believe I could do any job at UPS that
      I’m aware of such as car washer, porter jobs, preload airdriver - air ramp
      or hub positions. Without an accommodation, I’m not aware of any jobs
      that I would be able to do. Preload-air driver is best position I could
      think of.

The day after the meeting, Faidley sent an email to the three UPS attendees urging
UPS to grant his request for an eight-hour accommodation as a package car driver:



      2
          We cannot find a copy of this document in either party’s Appendix.

                                          -4-
      I really believe that UPS should put [m]e back to working the delivery
      driver position i have held for 25 years. During the time that i held that
      position i rarely had to work overtime. In fact, i regularly earned the
      production bonus because i completed my stops in eight hours or less.
      There are around 100 drivers at the Des Moines center and i am sure that
      any additional work could be managed by other drivers who want to
      work overtime. I would appreciate it if the company would reconsider
      its position that all drivers have to work overtime.

       After the meeting, the UPS regional review committee determined that Faidley
could not be accommodated in his current package car driver position, because its
essential functions included being able to work nine and one-half hours a day, and
sometimes more. The committee discussed reassigning Faidley to other positions as
a possible accommodation. The positions identified by Faidley -- car washer, porter,
and preload air-driver inside or hub jobs -- were identified as full-time eight-hour jobs
for which Faidley was qualified, and he was encouraged to bid on those jobs when
available. In addition, Blood raised the possibility of Faidley becoming a “feeder
driver” who drives semi-tractor trailers between UPS locations, a job that requires
working more than eight hours a day and for which Faidley would need training, but
one that does not require as much walking, lifting, and climbing in and out of the
truck as the package car driver job. Blood testified that he was asked whether feeder
jobs were “currently available” and was told not to list that job when he answered
“No.” In opposing summary judgment, Faidley submitted an affidavit averring he
“was unaware that UPS considered the position of a Feeder Driver as a potential
accommodation” and opining, “I could have performed that position” for the required
9.5 hours per day “because it did not require me to get in and out of the truck
frequently [nor] require me to do any significant lifting.”

      Faidley was unable to obtain reassignment to any of the alternative full-time
jobs he had suggested. Some had no vacancies, and he lacked the seniority to
successfully bid on others. As a result, UPS instead offered him a part-time inside job


                                          -5-
on August 9, 2012. He declined that offer because it would reduce his seniority and
bidding rights. Faidley remained a UPS employee on medical leave. He filed the first
action in January 2013. As amended after removal, Faidley claims that UPS failed
to accommodate his disability in violation of the ADA and the ICRA.

        B. The Second Action. Faidley testified that he filed a grievance with the
local union objecting to not being able to work. At a state-level proceeding, UPS and
union representatives stated that his eight-hour work restriction was “the biggest
drawback” to successfully bidding on other full-time UPS positions. Faidley returned
to Dr. Goetz in January 2013. They reviewed other non-driver positions, including
“car washer, porter, loader, unloader, preloader.” On January 24, Dr. Goetz issued
revised restrictions stating that Faidley could perform any job other than package car
driver with no hourly restriction.3 Faidley then bid on a number of positions and won
a full-time combined loader/preloader position on February 4, 2013.

       The loader position required stacking packages in semi-trailer trucks, while the
preloader position required loading packages into delivery trucks. When the
combined position caused Faidley too much pain, he returned to Dr. Goetz, who
issued a Patient Status Report recommending that Faidley “work 4 hrs/day at pre-
loader job (not as repetitive and strenuous as Loader Job)” until his next visit on
March 28. In response to an email from Faidley’s worker’s compensation lawyer,
UPS’s worker’s compensation lawyer advised that Faidley’s combination job “is not
an accommodated position that he received through the ADA process” because Dr.
Goetz had stated that Faidley could do any job other than package car driver without
an eight-hour restriction, and that UPS “is unable to accommodate the current 4-hour
restriction” because Faidley had used all of his TAW time.4 In response, Faidley’s

      3
          We cannot find a copy of this document in either party’s Appendix.
      4
       Temporary alternate work time is defined and limited under UPS’s collective
bargaining agreement with the International Brotherhood of Teamsters.

                                          -6-
ADA attorney wrote UPS’s ADA attorney asserting (i) UPS “stubbornly refuses to
recognize” Faidley’s ability to perform the essential functions of the package car
driver position with an eight-hour accommodation; (ii) UPS has refused to engage in
the accommodation process required by the ADA and instead “has left Mr. Faidley
to blindly apply for positions”; and (iii) Dr. Goetz’s authorization of a return to work
for four hours per day for five weeks “is an accommodation request for part-time
work as a work-hardening program.”

       Faidley returned to Dr. Goetz on March 3, 2013. Dr. Goetz issued a “Physician
Note” stating that he and Faidley had agreed on the following permanent restrictions:
no hourly restriction; minimal lifting above shoulder height (no more than twice per
hour); and no lifting greater than seventy pounds. UPS then began a second ADA
accommodation process and met with Faidley in May 2013. His Accommodation
Checklist listed his current job as “Article 22-3, midnight loader-preload.” He
identified as possible other positions Car Washer, Porter, Clerk, Spa, Air Driver, and
his former delivery route minus a commercial customer that involved picking up
heavy packages. After an exchange of emails, Blood’s successor advised Faidley on
July 10 that UPS was looking for available full-time Car Washer, Porter, Clerk, and
Spa positions but determined he could not perform the essential functions of the other
positions because of his medical lifting restrictions. In September 2013, having
found no full-time position on which Faidley could successfully bid, UPS offered him
another part-time position. He declined, electing instead to retire in November 2013.

      In February 2014, Faidley filed the second action, alleging ICRA disability
discrimination. He also alleged unlawful retaliation because he had pursued an
accommodation and filed his first complaint.5 The district court granted summary

      5
       On appeal, the panel in Part II.C. of its opinion unanimously concluded that
Faidley did not address the ICRA retaliation claim in his opening brief and therefore
waived it. We reinstate Part II.C. of the panel’s opinion.


                                          -7-
judgment in favor of UPS, concluding (i) Faidley was not constructively discharged
and therefore suffered no adverse employment action; (ii) working more than eight
hours a day was an essential job function of the package car driver position that could
not be accommodated; (iii) Faidley was not qualified for reassignment to a feeder
driver position because working nine to ten-hour days was an essential job function
and Dr. Goetz had unambiguously limited Faidley to working no more than eight
hours per day; (iv) UPS’s TAW program exceeds ADA requirements and its
parameters are therefore irrelevant; (v) because the part-time positions UPS offered
Faidley were reasonable accommodations, Faidley “was not qualified to remain at
UPS” after he rejected them; and (vi) a reasonable jury could not find that UPS acted
in bad faith in conducting an interactive accommodation process.

       On appeal, a divided panel reversed in part and remanded. As to the 2012
disability discrimination claim, the panel agreed that Faidley was not qualified to be
a package car driver because he could not perform the essential job function of
working more than eight hours per day. However, the majority concluded, the district
court erred in granting summary judgment because there was evidence that Faidley
appeared capable of performing the essential job functions of the feeder driver
position, and that feeder driver positions would become open in the near future. The
panel affirmed the dismissal of the 2013 disability discrimination claim because
Faidley failed to offer sufficient evidence that he was able to perform the essential job
functions of any available position, or that UPS failed to make a good faith effort to
help him in seeking an accommodation. This rehearing en banc followed.

                                    II. Discussion

      The ADA bars private employers from discriminating against a “qualified
individual on the basis of disability.” 42 U.S.C. § 12112(a). Discrimination is
defined to include “not making reasonable accommodations to the known physical



                                          -8-
or mental limitations of an otherwise qualified [employee] with a disability.” 42
U.S.C. § 12112(b)(5)(A). To establish a prima facie case of discrimination under the
ADA, Faidley must show that he “(1) is disabled within the meaning of the ADA, (2)
is a qualified individual under the ADA, and (3) suffered an adverse employment
decision because of the disability.” Kallail v. Alliant Energy Corp. Servs., Inc., 691
F.3d 925, 930 (8th Cir. 2012). A “qualified individual” is a person “who, with or
without reasonable accommodation, can perform the essential functions of the
employment position that [he] holds or desires.” 42 U.S.C. § 12111(8). ADA and
ICRA disability discrimination claims are analyzed in the same fashion. Kallail, 691
F.3d at 930.

       A. UPS does not dispute that Faidley’s physical impairments were disabling.
To be a qualified individual under the ADA, Faidley must “possess the requisite skill,
education, experience, and training for [his] position.” Id. (quotation omitted). UPS
also does not dispute that Faidley possessed the requisite skill, education, experience
and training to continue performing his package car driver position. Thus, the first
issue on appeal -- and Faidley’s primary focus throughout this litigation -- is whether
UPS discriminated against Faidley on account of his disability when it refused to
accommodate his request that he be permitted to work as a package car driver subject
to Dr. Goetz’s May 15, 2012 restriction limiting Faidley to an eight-hour work day.

       UPS declined Faidley’s requested accommodation based on its determination
that being able to work more than eight hours a day was an “essential function” of the
package car driver job. In moving for summary judgment on this issue, UPS
explained that overtime is an essential function of the package car driver position
because daily package car workloads can increase unpredictably, particularly during
the year-end holiday busy season, and drivers encounter unpredictable weather
conditions while completing their routes. If a driver is unable to deliver all the
packages in his vehicle within eight hours, and is restricted from working overtime,



                                         -9-
other drivers must be sent to finish the deliveries, or packages will not be timely
delivered; either alternative adversely affects UPS’s business. The requirement to
work overtime was listed in UPS’s package car driver job description, and the issue
was collectively bargained with the Teamsters Union, with UPS agreeing to assign
package car drivers less than 9.5 hour work days and permitting drivers to request
two workdays without overtime per month. Faidley argued that working overtime
was not an essential job function because he usually completed his route in less than
eight hours. But he admitted that he did work overtime, as the above-summarized
work days in April and May 2012 make clear, and that additional work would have
to be reassigned to other drivers in the field if he was prohibited from working
overtime and could not complete his deliveries in eight hours.

       The district court concluded that a reasonable jury could only find that the
ability to work overtime was an essential function of Faidley’s package car driver job.
The panel agreed, see Faidley, 853 F.3d at 450, and we confirm that ruling. We agree
with the district court that UPS satisfied its burden of proof on this fact-intensive
issue, which turns on factors such as the employer’s judgment, its written job
description, the terms of any applicable collective bargaining agreement, and the
consequences of not requiring the incumbent to perform the function. See Scruggs
v. Pulaski Cty., 817 F.3d 1087, 1092-93 (8th Cir. 2016); Rehrs v. Iams Co., 486 F.3d
353, 356 (8th Cir. 2007). “[A] task may be an essential function even if the employee
performs it for only a few minutes each week.” Minnihan v. Mediacom Commc’ns
Corp., 779 F.3d 803, 812 (8th Cir. 2015). Therefore, UPS did not violate the ADA
or ICRA by refusing Faidley’s request for an eight-hour work day because that
accommodation would have made him unqualified to perform the essential job
functions of a package car driver.6



      6
          The EEOC as amicus did not address this issue.


                                         -10-
       B. Faidley further argues that UPS failed to reasonably accommodate him
when it did not offer the feeder driver position identified by Human Resources
Director Blood in preparing for the July 2012 accommodation checklist meeting with
Faidley. When an accommodation is not possible in an employee’s current position,
“reassignment to a vacant position” may be a reasonable accommodation. 42 U.S.C.
§ 12111(9)(B); see Kallail, 691 F.3d at 933. “[T]he definition of ‘qualified individual
with a disability’ includes a disabled employee who cannot do his or her current job,
but who desires and can perform, with or without reasonable accommodation, the
essential functions of a vacant job within the company to which he or she could be
reassigned.” Cravens v. Blue Cross & Blue Shield of Kan. City, 214 F.3d 1011, 1018
(8th Cir. 2000).

        The ADA did not require UPS to offer Faidley a position for which he was
unqualified. See Minnihan, 779 F.3d at 814; Cravens, 214 F.3d at 1019 (“employee
must be otherwise ‘qualified’ for the reassignment position”). When UPS made its
first accommodation decision in July 2012, there appeared to be three reasons Faidley
was not qualified for reassignment to a feeder driver position -- he could not meet the
essential job function of working up to 9.5 hours per day with the eight-hour
accommodation he requested based on Dr. Goetz’s permanent medical restriction; he
would need additional training to possess the requisite skill, education, and training
for this position; and there were no available feeder driver vacancies. The panel
concluded there was a genuine issue of material fact requiring remand on this issue
because Blood wrote on his accommodation worksheet that Faidley “preliminarily
appear[ed] capable of performing the essential job functions” of a feeder driver, and
there was evidence that feeder driver positions would become open in the near future.
The EEOC supports this decision. However, we conclude that it is not supported by
the summary judgment record and therefore Faidley was not qualified for the feeder
driver job as a matter of law.




                                         -11-
       It is undisputed that the ability to work 9.5 hours a day was an essential
function of the feeder driver job. Dr. Goetz’s May 15, 2012 Status Report
permanently restricted Faidley from working more than eight hours a day. The
document gave no indication it was limited to Faidley’s current package car driver
position. Faidley and the EEOC argue it was ambiguous whether Dr. Goetz intended
the medical restriction to apply to any job other than package car driver. But this
contention flies in the face of Dr. Goetz’s deposition testimony that he intended the
eight-hour restriction to apply to other jobs:

      Q: [A]s long as this [restriction] was in place, you understood that
      [Faidley] wasn’t going to be able to work in a job more than eight hours;
      right?

      A: Right.

      Q: And that’s what you intended to convey with that; correct?

      A: Correct.7

Moreover, before UPS offered Faidley reassignment to other full-time positions
which did not require overtime, Faidley submitted to the UPS accommodation review
committee an Accommodation Checklist stating, “with an 8.0 hr accommodation, I
believe I could do any job at UPS that I’m aware of . . . . Without an accommodation,
I’m not aware of any jobs that I would be able to do.” (emphasis added). Thus,



      7
        Faidley cites another portion of Dr. Goetz’s deposition in which he states he
crafted the restriction with the package car driver position in mind and had no reason
to believe Faidley could not perform the less strenuous feeder driver job. But he
failed to present this evidence to the district court, so it is not part of the summary
judgment record on appeal. Bath Junkie Branson, L.L.C. v. Bath Junkie, Inc., 528
F.3d 556, 559-60 (8th Cir. 2008).


                                         -12-
Faidley’s own accommodation request adopted and confirmed that Dr. Goetz had
unambiguously limited him to working eight hours a day at any position.

       We have stated in prior cases that “[t]he ADA does not require an employer to
permit an employee to perform a job function that the employee’s physician has
forbidden.” Scruggs, 817 F.3d at 1094, quoting Alexander v. Northland Inn, 321
F.3d 723, 727 (8th Cir. 2003). We acknowledge that substantial objective evidence
that conflicts with a physician’s statement may create a genuine issue of material fact
whether the employee is qualified to perform a particular job. Cf. Holiday v. City of
Chattanooga, 206 F.3d 637, 644-45 (6th Cir. 2000) (substantial evidence plaintiff was
qualified to serve as a police officer created genuine dispute, notwithstanding
contrary assessment by employer’s contract physician). But Vince Blood’s note
stating that Faidley “preliminarily appear[ed] capable of performing the essential job
functions” of feeder driver is insufficient to create a material fact dispute about
Faidley’s qualifications. It was a preliminary subjective opinion, unsupported by
objective evidence, not materially different than the employee’s subjective assessment
that was insufficient to create a material dispute with his physician’s restrictions in
Otto v. City of Victoria, 685 F.3d 755, 758 (8th Cir. 2012). Moreover, reading
Blood’s ambiguous note for summary judgment purposes as opining that Faidley
could work 9.5 hours a day as a feeder driver, it does not create a material fact
dispute when Faidley, the employee requesting accommodation, and his physician
declared that Faidley could not perform this essential function of the feeder driver
position. On this record, Dr. Goetz’s facially unambiguous restriction established that
Faidley was not qualified to be reassigned to a feeder driver position.

      Of course, nothing precluded UPS from pursuing Blood’s notation that the less
strenuous duties of a feeder driver might permit reassignment to that position, for
example, if Dr. Goetz were to modify his eight-hour permanent restriction, as
happened several months later. But UPS was under no ADA duty to pursue that



                                         -13-
unlikely accommodation -- which would require training Faidley and waiting for a
position to open up -- rather than pursue the inside full-time positions that Faidley
listed in his accommodation checklist and for which he was immediately qualified.
“[A]n employer only has to provide an accommodation that is reasonable,” not an
accommodation the employee prefers. Scruggs, 817 F.3d at 1093; see Minnihan, 779
F.3d at 814. The ADA prohibits disability discrimination. If an employer “bends
over backwards to accommodate a disabled worker . . . it must not be punished for its
generosity by being deemed to have conceded the reasonableness of so far-reaching
an accommodation.” Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 545 (7th
Cir. 1995).

       Faidley and the EEOC argue the testimony that the UPS review committee did
not list the feeder driver job because it was unavailable was contrary to the principle
that “reassignment to a vacant position,” 42 U.S.C. § 12111(9)(B), includes a position
“the employer reasonably anticipates will become vacant in a short period of time.”
Cravens, 214 F.3d at 1019 n.5 (quotation omitted). The principle is sound but does
not affect this case. Faidley was not qualified for the feeder driver position because
of his permanent eight-hour restriction, so UPS had no ADA duty to propose that
accommodation. Moreover, from a practical standpoint, Faidley wanted to return to
work immediately, he proposed only full-time inside jobs as alternative
accommodations if he could not return to work as a package car driver with an eight-
hour restriction, and it was doubtful he would be found qualified for a feeder driver
position even if one came open (as next happened in September 2012). No
reasonable jury could find that UPS’s decision to instead pursue reassignment to full-
time jobs which Faidley had suggested, and for which he was immediately qualified,
was disability discrimination.

     C. Turning to the 2013 claim of disability discrimination, Faidley argues that
UPS violated the ADA when it refused to accommodate Dr. Goetz’s temporary



                                         -14-
restrictions of working four hours per day for five weeks at the combined loader-
preloader job Faidley won after Dr. Goetz eliminated the permanent eight-hour per
day restriction in January 2013. Faidley argues that UPS’s excuse -- that TAW
policies under the collective bargaining agreement precluded this accommodation --
was both factually and legally insufficient. The panel majority upheld the district
court’s grant of summary judgment on this issue, concluding (i) that UPS was not
required to reallocate the essential functions of the combined position, and (ii) that
Faidley did not present evidence that he could perform the essential functions of any
available jobs with the permanent lifting restrictions Dr. Goetz imposed in 2013,
including the package car driver and feeder driver positions at issue in resolving the
2012 claim. Faidley, 853 F.3d at 452, citing Minnihan, 779 F.3d at 813. We agree.

       D. Finally, Faidley argues the district court erred in granting summary
judgment on his claim that UPS committed disability discrimination by failing to
engage in good faith in the required interactive accommodation process. See Peyton
v. Fred’s Stores of Ark., Inc., 561 F.3d 900, 902 (8th Cir.), cert. denied, 558 U.S. 876
(2009); Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 951-52 (8th Cir. 1999).
We disagree.

       “There is no per se liability under the ADA if an employer fails to engage in the
interactive process,” but at the summary judgment stage such a failure is “prima facie
evidence that the employer may be acting in bad faith.” Minnihan, 779 F.3d at 813
(quotation omitted). To establish that an employer failed to participate in an
interactive process, a disabled employee who requested an accommodation, such as
Faidley, must show that “the employer did not make a good faith effort to assist the
employee in seeking accommodation; and . . . the employee could have been
reasonably accommodated but for the employer’s lack of good faith.” Cravens, 214
F.3d at 1021.




                                          -15-
       Here, UPS participated in the interactive process prescribed in its ADA
Procedural Compliance Manual when Faidley requested an accommodation in May
2012 and again in March 2013. The UPS accommodation committee met with Faidley
in July 2012 and May 2013 to assess whether accommodations consistent with Dr.
Goetz’s restrictions were available, including reassignment to other jobs suggested by
Faidley or identified by the committee. Full-time jobs for which Faidley was qualified
were identified; he bid on several positions but lacked the seniority to obtain them.
After the May 2013 meeting, when full-time positions Faidley could have performed
with his lifting restrictions were not available, UPS told him it would notify him if any
position became available and again offered him a part-time job that he rejected.
Given these extensive efforts, we agree with the district court that a reasonable jury
could not find that UPS acted in bad faith.

                                   III. Conclusion

      For the foregoing reasons, the judgment of the district court is affirmed.

MURPHY, Circuit Judge, with whom SMITH, Chief Judge, and KELLY, Circuit
Judge, join, concurring in part and dissenting in part.

       I agree that the district court correctly concluded that Faidley was unqualified
for the package car driver and the combination loader and pre loader positions. I also
agree that Faidley did not present evidence showing that UPS failed to make a good
faith effort to help him in seeking an accommodation. I believe, however, that the
district court erred by determining as a matter of law that Faidley was unable to
perform the essential job functions of the feeder driver position. I therefore dissent
from the majority opinion part II.B.




                                          -16-
       To prove disability discrimination, an employee must establish "that he (1) has
a 'disability' within the meaning of the ADA, (2) is a 'qualified individual' under the
ADA, and (3) 'suffered an adverse employment action as a result of the disability.'"
Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 711 (8th Cir. 2003) (quoting
Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 490 (8th Cir. 2002)). An employee
is a qualified individual under the ADA if he "(1) possess[es] the requisite skill,
education, experience, and training for [his] position; and (2) [is] able to perform the
essential job functions, with or without reasonable accommodation." Kallail v. Alliant
Energy Corp. Servs., Inc., 691 F.3d 925, 930 (8th Cir. 2012) (quoting Fenney, 327
F.3d at 712). Essential job functions "are the fundamental duties of the job, but not
its marginal functions." Id. Reasonable accommodation may require "reassignment
to a vacant position," 42 U.S.C. § 12111(9)(B); vacant positions include positions
"that the employer reasonably anticipates 'will become vacant in a short period of
time.'" Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1019 n.5
(8th Cir. 2000) (quoting Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1187 (6th
Cir. 1996)).

       The majority concluded that Faidley was unqualified for the feeder driver
position because the position sometimes required working more than eight hours per
day. As the majority notes, a good deal of evidence supports this claim. Faidley
referred in his affidavit to "the required 9.5 hours per day for that position." Human
resources manage Vince Blood wrote on a 2012 accommodation worksheet, however,
that Faidley "preliminarily appear[ed] capable of performing the essential job
functions" of the feeder role. On the same form, he wrote that Faidley could work no
more than eight hours per day. I believe that this is sufficient to create a genuine issue
of material fact on Faidley's claim that he was qualified to perform the essential
functions of the feeder driver position. For this reason, I would reverse and remand
Faidley's discrimination claim to the district court.
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