                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-2240
                        ___________________________

                                    Jeff Knutson

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

                          Schwan's Home Service, Inc.;
                             Schwan Food Company

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                    Appeal from United States District Court
                   for the District of Minnesota - Minneapolis
                                  ____________

                          Submitted: December 11, 2012
                              Filed: April 3, 2013
                                 ____________

Before WOLLMAN, BYE, and BENTON, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

      Jeffrey D. Knutson argues on appeal that Schwan’s Home Service, Inc. (Home
Service), terminated him contrary to the Americans with Disabilities Act, 42 U.S.C.
§§ 12101, et seq., and that Home Service breached his contract. The district court1
had granted summary judgment to Home Service on all claims. Knutson asserts that
he is disabled and qualified to perform the essential functions of his job, and that
Home Service breached his contract by not reimbursing mileage or paying a bonus.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

                                          I.

       Home Service delivers frozen food to end-user customers at home or work.
Home Service employed Knutson as a Location General Manager of a depot. He
excelled in this position. The position description states that a Manager “[m]ust meet
the Federal Department of Transportation eligibility requirements, including
appropriate driver’s license and corresponding medical certification as a condition of
employment for this position.” Knutson’s “Conditional Offer of Employment”
required him to be “DOT Qualified” for trucks weighing over 10,000 pounds and
explained that the offer was “expressly conditioned on . . . meeting [DOT] and
Company standards for a . . . physical examination.” He held a Medical Examiner’s
Certificate (MEC) and was fully DOT qualified through July 2009.

       In March 2008, he suffered a penetrating eye injury. “Any driver whose ability
to perform his/her normal duties has been impaired by a physical or mental injury”
must be “medically examined and certified.” 49 C.F.R. § 391.45. In December, an
eye doctor refused to give Knutson an MEC or a waiver. On January 6, 2009, Home
Service placed him on a 30-day leave of absence to obtain either an MEC or a non-
DOT-qualified job at the company. He failed to obtain either within 30 days. Home
Service fired him. His final paycheck did not include mileage reimbursement or a
bonus.


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

                                         -2-
                                        II.

       Knutson argues that the district court erred in granting summary judgment to
Home Service on his ADA claim. “This court reviews a district court’s grant of
summary judgment de novo and may affirm the district court on any basis supported
by the record.” St. Martin v. City of St. Paul, 680 F.3d 1027, 1032 (8th Cir. 2012).
“Summary judgment is appropriate only when no genuine issue of material fact exists,
and the moving party is entitled to judgment as a matter of law.” Duello v.
Buchanan Cnty. Bd. of Sup’rs, 628 F.3d 968, 972 (8th Cir. 2010). To establish a
prima facie case under the ADA, Knutson was required to show that he was disabled
“within the meaning of the ADA, was qualified to perform the essential functions of
his job, and suffered an adverse employment action because of his disability.” Finan
v. Good Earth Tools, Inc., 565 F.3d 1076, 1079 (8th Cir. 2009).

      Knutson contends that he qualifies as disabled under the ADA Amendments
Act of 2008 (ADAAA). See Pub. L. No. 110-325, 122 Stat. 3553 (2008) (codified
at 42 U.S.C. § 12101); see, e.g., Fleishman v. Continental Cas. Co., 698 F.3d 598,
606 n.3 (7th Cir. 2012) (noting that the ADAAA relaxed the requirements for
showing a disability). Home Service terminated him after the ADAAA took effect.
However, this court need not decide whether he was disabled under the ADAAA,
because assuming, without deciding, that he was disabled, he was not qualified to
perform an essential function of his job.

      Knutson claims that being DOT qualified to drive a delivery truck – and thus
obtaining an MEC – was not an essential function of the Manager’s position.
“Essential functions” are “the fundamental job duties of the employment position the
individual with a disability holds.” 29 C.F.R. § 1630.2(n)(1).

      Evidence to consider in this determination may include: (1) the
      employer’s judgment as to which functions are essential; (2) written job

                                        -3-
      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.

Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 786 (8th Cir. 2004); see
generally 29 C.F.R. § 1630.2(n)(3). The employer’s judgment about an essential job
function “is considered highly probative.” Duello, 628 F.3d at 972.

       The “Position Description” for Knutson’s position states that Managers “[m]ust
meet the [DOT] eligibility requirements, including . . . corresponding medical
certification as a condition of employment for this position.” The “Conditional Offer
of Employment” signed by Knutson required him to meet DOT “and Company
standards for a pre-employment . . . physical examination.” The conditional offer also
stated that he must be “DOT Qualified” for driving trucks weighing over 10,000
pounds. The DOT requires that a driver of a “commercial motor vehicle” be
“medically certified as physically qualified to do so.” 49 C.F.R. §§ 391.41, 391.43
(detailing DOT requirements for an MEC, including a medical exam for “visual
acuity”). A “commercial motor vehicle” is a vehicle weighing 10,001 pounds or
greater and used in interstate commerce. Id. § 390.5. It is undisputed that Home
Service’s delivery trucks weigh over 10,000 pounds.

      This court previously considered whether the DOT regulations apply to
Knutson’s Manager position (then called a Sales Manager). Guyton v. Schwan Food
Co., Inc., 125 Fed. Appx. 84, 85 (8th Cir. 2005) (per curiam), aff’g, No. 03-5523,
2004 WL 533942 (D. Minn. Mar. 16, 2004). In Guyton, the district court found that
Managers use Home Service’s delivery trucks in interstate commerce. Guyton, 2004
WL 533942, at *7. The district court opined, “While sales managers do not
necessarily drive the delivery trucks every day or even every week, [they] are
required, at the very least, to drive the vehicles from ‘time to time.’” Id. at *6. The

                                         -4-
court concluded, “[A] sales manager’s duties include driving route delivery trucks .
. . and it is undisputed that sales managers actually engage in that activity.” Id. This
court affirmed the district court’s ruling that Managers “are employees [for] ‘whom
the Secretary of Transportation has power to establish qualifications.’” Id. at *7,
quoting 29 U.S.C. § 213(b)(1). After this court decided Guyton, Home Service
required all Managers to obtain DOT qualification.2

        Home Service supervisors testified that Managers drive delivery trucks to
deliver product and train new employees. If Managers did not drive trucks, Home
Service would deliver less product, affecting sales, and would have to restructure how
it trains new drivers. See id. at *1. The record also showed that all other Managers
were DOT qualified when Knutson was terminated.3

      Knutson claims he managed his depot successfully without driving a delivery
truck. However, he was DOT qualified at the time of his eye injury, admitted to
delivering product in his personal vehicle, and testified that, since November 2007,
he had driven a truck “less than 50 [times]” while serving as a Manager. See
Dropinski v. Douglas Cnty., Neb., 298 F.3d 704, 708-09 (8th Cir. 2002) (holding


      2
       The Manager’s “Position Description” differentiates between being “DOT
Qualified” and “DOT Certified.” DOT certification is required only for driving
trucks weighing over 26,001 pounds — irrelevant in this case. See 49 C.F.R. §
383.5.
      3
        Knutson asserts that Home Service employed Managers who were not DOT
qualified. He cites only his own testimony claiming that he heard from others about
non-DOT-qualified Managers working at some time in the past. See Mason v. Corr.
Med. Services, Inc., 559 F.3d 880, 885 (8th Cir. 2009) (holding that the plaintiff’s
own testimony was “inadmissible hearsay” and that he could not “rely on [it] to avoid
summary judgment”). Even if this evidence were not hearsay, he still fails to
introduce evidence that Home Service employed a non-DOT-qualified Manager
within years before he was terminated.

                                          -5-
that, though the employee claimed he “never performed” some of the job functions,
they were still essential because he “may be required” to perform them). Knutson’s
“specific personal experience is of no consequence in the essential functions
equation.” Id. at 709. “Instead, it is the written job description, the employer’s
judgment, and the experience and expectations of all [Managers] generally [that]
establish the essential functions of the job.” Id.

       No genuine issue of material fact exists that being DOT qualified to drive a
delivery truck is an essential function of Knutson’s position. See Guyton, 125 Fed.
Appx. at 85; see also Alexander v. Northland Inn, 321 F.3d 723, 727 (8th Cir. 2003)
(affirming summary judgment because vacuuming was an essential job function the
employee was not qualified to perform, though she vacuumed less frequently than
similarly situated employees); Summerville v. Trans World Airlines, Inc., 219 F.3d
855, 858-59 (8th Cir. 2000) (assisting passengers was an essential job function,
though it required only a few minutes each week). Because Knutson admits he did
not obtain an MEC – and therefore was not DOT qualified – he was not qualified to
perform an essential job function. See Guyton, 125 Fed. Appx. at 85; Bay v. Cassens
Transport Co., 212 F.3d 969, 974 (7th Cir. 2000) (“Under applicable DOT
regulations, [the employer] was not allowed to permit [the employee] to resume
driving until he produced a copy of a doctor’s certificate indicating he was physically
qualified to drive, and nothing in the ADA purports to change that obligation.”
(internal citations and quotation marks omitted)); 49 C.F.R. § 391.11(a) (“A person
shall not drive a commercial motor vehicle unless he/she is qualified to drive a
commercial motor vehicle.”).

       Knutson attacks Home Service for allowing him to remain a Manager for over
nine months after his eye injury. See 49 C.F.R. § 391.45 (requiring recertification of
an MEC following an injury). Home Service claims it was “optimistic” about his
recovery. After an eye doctor refused to give him an MEC or a waiver, Home Service
did place Knutson on leave to obtain an MEC (or another job at the company).

                                         -6-
       Knutson argues that Home Service did not make reasonable accommodations
for him or engage in an interactive dialogue. See EEOC v. Convergys, 491 F.3d 790,
795 (8th Cir. 2007). “Once the employer is made aware of the legitimate need for an
accommodation, the employer must make a reasonable effort to determine the
appropriate accommodation.” Id. Knutson’s requested accommodation was to
perform his job without being DOT qualified, because he asserts that after his injury
he was able to work as a Manager without needing to drive a delivery truck. But “an
accommodation is unreasonable if it requires the employer to eliminate an essential
function of the job.” Id. at 796. Moreover, the employer “is not required to reassign
existing workers to assist [the employee] in his essential duties.” Dropinski, 298 F.3d
at 709; Alexander, 321 F.3d at 727-28 (holding the requested accommodation
unreasonable “because it would have required [the employer] to assign [the
employee’s] vacuuming responsibilities to other employees”). Eliminating the
essential job function of being DOT qualified would be an unreasonable
accommodation. See Bay, 212 F.3d at 974.

        Regardless, Home Service attempted to accommodate him and engaged in an
interactive dialogue by giving him the option of applying for non-DOT-qualified jobs
at the company. See Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 954 (8th Cir.
1999) (explaining that employers must “make a good faith effort to seek
accommodations”); see also Huber v. Wal-Mart, 486 F.3d 480, 484 (8th Cir. 2007)
(“[T]he ADA . . . does not require an employer to reassign a qualified disabled
employee to a vacant position . . . .”). The district court did not err in granting
summary judgment to Home Service, because Knutson was not qualified to perform
an essential function of his job.4

      4
       He also claims that the district court incorrectly found that he needed a
Commercial Driver’s License (CDL) for the Manager’s position. See 49 C.F.R. §
383.5 (requiring a CDL only for commercial motor vehicles that weigh over 26,001
pounds). The court made no such finding. See Knutson v. Schwan’s Home Service,


                                         -7-
                                         III.

      Knutson argues that the district court erred in granting summary judgment to
Home Service on his breach of contract claims. This court reviews “de novo a district
court’s grant of summary judgment, as well as its interpretation of state law and the
terms of a contract.” Employers Reinsurance Co. v. Massachusetts Mut. Life Ins.
Co., 654 F.3d 782, 789 (8th Cir. 2011). “Summary judgment is proper if, viewing the
record in the light most favorable to [Knutson], there is no genuine issue of material
fact and [Home Service] is entitled to judgment as a matter of law.” Myers v.
Richland Cnty., 429 F.3d 740, 750 (8th Cir. 2005). A breach of contract requires (1)
formation of a contract, (2) performance of conditions precedent, and (3) breach of
the contract. Zinter v. Univ. of Minn., 799 N.W.2d 243, 245 (Minn. Ct. App. 2011).

       Knutson claims that, when he was terminated, Home Service owed him
$255.36 for mileage. Home Service argued below that no contract existed relating
to mileage reimbursement. Knutson admits he had no written contract. Rather, he
contends he had an oral contract because Home Service previously reimbursed him
for mileage. See Bergstedt, Wahlberg, Berquist Assocs., Inc. v. Rothchild, 225
N.W.2d 261, 263 (Minn. 1975) (“[W]here the evidence fails to disclose an express
agreement, the law may imply a contract from the circumstances or acts of the
parties.” (citation omitted)).

      To support his claim for the disputed mileage reimbursement, he cites only his
own deposition. Even assuming, without deciding, that an oral contract existed, he
admitted in his deposition that a supervisor must still approve mileage reimbursement
requests. See Torgerson v. City of Rochester, 643 F.3d 1031, 1052-53 (8th Cir.

Inc., 870 F. Supp. 2d 685, 691-92 (D. Minn. 2012) (“[Although] the DOT regulations
do not require a CDL to operate the . . . delivery vehicles, they are still commercial
motor vehicles for other DOT purposes . . . requiring a[n] [MEC].”).


                                         -8-
2011) (en banc) (admissions in the plaintiff’s own deposition may conclusively
resolve the nature of the plaintiff’s claim). He testified only that he requested the
disputed reimbursement, not that a supervisor approved it. Nothing in the record
shows that Home Service approved the disputed mileage. See Scott v. Missouri
Valley Physicians, P.C., 460 F.3d 968, 970 (8th Cir. 2006) (holding summary
judgment appropriate where the employee “brought forth no evidence other than his
own deposition and affidavits,” failing to show his actions constituted whistleblowing
under state law); Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 411 (Minn.
1994) (holding summary judgment appropriate where the plaintiff provided “only .
. . his own deposition testimony” and failed to provide any supporting “documentary
evidence”). Although determining whether a contract is implied “is usually a
question . . . [for] the trier of fact,” Bergstedt, 225 N.W.2d at 263, Knutson “has
failed to present material evidence upon which a reasonable jury could find” that he
was entitled to mileage reimbursement. Myers, 429 F.3d at 751. The district court
did not err in granting summary judgment on his mileage reimbursement claim.

      Knutson also claims that Home Service owed him a bonus. An employer owes
an employee “wages or commission actually earned and unpaid at the time of
discharge.” Minn. Stat. § 181.13. The Minnesota Supreme Court “held that ‘section
181.13(a) is a timing statute, mandating not what an employer must pay a discharged
employee, but when an employer must pay a discharged employee.’” Caldas v.
Affordable Granite & Stone, Inc, 820 N.W.2d 826, 837 (Minn. 2012) (emphases in
original), quoting Lee v. Fresenius Medical Care, Inc., 741 N.W.2d 117, 125 (Minn.
2007). Thus, the “wages that an employee has actually earned are defined by the
employment contract between the employer and the employee . . . .” Lee, 741
N.W.2d at 127-28.

      Knutson admits that, under Home Service’s plan, bonuses are not earned unless
the employee was “employed when the bonus was determined.” He also admits that


                                         -9-
Home Service determined the bonus at issue in March 2009 — after he was fired. See
Jenkins v. Mabus, 646 F.3d 1023, 1026 (8th Cir. 2011) (holding that the plaintiff’s
own admissions defeated her argument). Nonetheless, he contends – again citing
only his own deposition – he qualifies for the bonus because an exception exists if he
had a “total disability as defined by [Home Service’s] Long Term disability plan.”
But he provides neither Home Service’s definition of a long-term disability, nor any
evidence that he met that definition. See Scott, 460 F.3d at 970; see also Pope v. ESA
Services, Inc., 406 F.3d 1001, 1012 (8th Cir. 2005) (affirming summary judgment in
a defamation case where the plaintiff, in his own deposition, made “only vague
references” to evidence that his employer harmed him), abrogated on other grounds
by Torgerson, 643 F.3d 1031. Because Knutson has failed to present sufficient
evidence to show a genuine issue of material fact, the district court did not err in
granting summary judgment on his bonus claim.

                                    *******

      The judgment of the district court is affirmed.
                     ______________________________




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