                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2152
                         ___________________________

                                     Sheena Lipp

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

                        Cargill Meat Solutions Corporation

                        lllllllllllllllllllllDefendant - Appellee
                                       ____________

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

                             Submitted: June 12, 2018
                             Filed: December 19, 2018
                                   ____________

Before LOKEN, ERICKSON, and GRASZ, Circuit Judges.
                           ____________

GRASZ, Circuit Judge.

      Sheena Lipp sued her former employer, Cargill Meat Solutions Corporation
(“Cargill”), for disability discrimination under the Americans with Disabilities Act
(“ADA”) and the Iowa Civil Rights Act (“ICRA”). Lipp appeals the district court’s1


      1
      The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
grant of summary judgment in favor of Cargill. For the reasons discussed below, we
affirm.

                                I. BACKGROUND

       From 1995 until her termination in 2014, Lipp worked for Cargill’s meat and
processing facility in Ottumwa, Iowa.2 Throughout her employment, Lipp’s job
duties involved stacking and supplying empty boxes to the production line, labeling
boxes, and sometimes manually moving pallets and packed boxes.

       In 2000 Lipp was diagnosed with an incurable lung disease known as
eosinophilic granuloma. This disease makes it difficult for Lipp to walk, run, or
otherwise exert herself physically, especially during “flare ups.” Beginning in
October 2012, Lipp’s lung disease required several work restrictions. Specifically,
she needed to attend three to four out-of-town doctor’s appointments per year. She
also needed days off during her flare ups, which would occur two to four times per
year and last two to four days per occurrence. Lipp also needed to work no more than
eight hours a day, five days a week, in a clean working environment free from dust
or dirt, with lifting assistance whenever she was required to move pallets. Lipp
agrees that Cargill accommodated all of these needs—at least until she was
terminated in November 2014.

       Central to this case is Cargill’s work attendance policy and its application to
Lipp as well as its interaction with the ADA. Cargill maintains a written attendance
policy with progressive disciplinary action for unplanned absences. The policy states
that “[p]unctuality and regular attendance is crucial for efficient plant operations,


      2
     We portray the facts of this case in the light most favorable to Lipp, the
nonmoving party appealing Cargill’s successful motion for summary judgment.
Oehmke v. Medtronic, Inc., 844 F.3d 748, 750 (8th Cir. 2016).

                                         -2-
safety, and moral[e].” Employees must report their absences daily using Cargill’s
automated call-in system at least a half-hour before the start of their shifts, unless they
are on approved extended leave. The call-in system prompts employees to press
buttons on their phones corresponding to the reason for their absences, including
illness, injury, personal business (including vacation), and leave of absence. Under
the policy, an employee is charged one “occurrence” point for each “unplanned”
absence (as distinct from “planned” absences such as vacation, jury duty, or family
and medical leave).

       An employee may accrue up to six occurrence points in a calendar year without
disciplinary action. An employee’s seventh and eighth points each result in written
warnings, and the ninth point results in termination. Violations and written warnings
remain effective for one year after the date they occur and freeze an employee’s point
total across calendar years until the disciplinary period expires. An employee may
take up to five single days of vacation in addition to the six occurrence absences in
a year, but no vacation days are allowed after accruing seven occurrence points.

       Cargill’s attendance policy provides that employees “may be required to verify
any absences from work.” (Emphasis added.) It also states that all verification “must
be presented upon the first day the employee returns to work,” and “[a]ll medical
verification must be brought to the nursing department.” (Emphasis added.) The
policy additionally states that a doctor’s note can reduce, but not eliminate, the
number of occurrence points accrued for unplanned sick days.

       On January 19, 2014, Lipp began what turned out to be roughly a nine-month,
unplanned leave of absence unrelated to her medical condition, in order to care for
her elderly mother, who had significant health issues. During the first six months of
her absence, Lipp provided Cargill with three successive notes from her mother’s
doctor explaining her absence and predicting how long she would need to care for her
mother, including a first note on January 30 (saying she would be needed through

                                           -3-
February 19), another on February 20 (saying she would be needed through March
21), and another on August 25 (saying she would return to regular work duty on
October 15). Lipp called in to work every day to report her absences and continued
to pay for her health insurance. By April of 2014 she had exhausted her twelve weeks
of available leave under the FMLA.

       Upon Lipp’s return to work on October 15, Cargill provided her with a series
of written notifications and warnings informing her of multiple attendance violations
dating back to the previous year, explaining that as of October 15, 2014, Lipp had
accumulated 194 occurrence points and was being “place[d] on Last Chance for
attendance.” The note further provided that “Employee needs to understand that any
call ins, lates[,] leave early without authorization will violate the last chance
agreement and will terminate her employment.”

       Lipp refused to sign any of the notifications and warnings, including the “last
chance” notice. She asked a human resources representative, “what about if I have
to take off for my breathing or my lungs or [go] to a doctor appointment?” She was
told she needed “to get permission from [her] foreman.” Within a week after
returning to work Lipp attended a doctor’s appointment for her lung disease with
Cargill’s permission. She verified the appointment with a doctor’s note and did not
receive an occurrence point. However, Lipp also asked her supervisor about the
possibility of missing work because of a breathing flare-up and was told “it didn’t
matter,” that “[o]ne day missed with non-approval was termination.”3

       Shortly thereafter, on October 30, Lipp used Cargill’s automated call-in system
to report being absent. Lipp believes she reported being “sick” because of a breathing

      3
       The district court found that because the “last chance” notice prohibited only
“unauthorized” absences, it allowed disability-related absences given that Cargill had
authorized such absences in the past and allowed Lipp to attend a medical
appointment even after she returned from her nine-month leave.

                                         -4-
flare-up. Cargill says Lipp reported being absent for “vacation.” Lipp acknowledges
“it is possible” she keyed in the wrong buttons on Cargill’s automated call-in system.4

       When Lipp returned to work after this absence, she did not provide medical
verification of her absence to the nursing department, as required by Cargill’s
attendance policy verification provision. On November 4, Cargill issued Lipp
termination paperwork at a meeting that included a human resources representative,
a union representative, and her supervisor. The paperwork stated that Lipp was being
fired for “[v]iolation of the Company Attendance policy” and that she had
accumulated a 195th occurrence point without sufficient documentation, in violation
of the “last chance” notice. Lipp was informed at the meeting that she received her
195th point because she called in for “vacation” on October 30.

       Lipp maintains that during the meeting, she quickly explained she had been
absent because of a breathing flare up and not vacation. Cargill responds that it gave
Lipp an opportunity to submit medical verification, but that she failed to do so. Lipp
did eventually submit two doctor’s notes, but not until well after her termination.
Lipp submitted one note on November 24, 2014 simply restating her general work
restrictions. Months later, on February 3, 2015, she submitted another note
explaining that she contacted her doctor’s office on October 30, 2014 about
increasing breathing difficulties and that arrangements were made for testing and
follow-up visits.

      Lipp was not reinstated following the second note, and she timely filed an
action alleging intentional discrimination and failure to accommodate under ICRA
and the ADA. After the completion of discovery, Cargill moved for summary

      4
       Lipp points to the deposition testimony of one of Cargill’s Fed. R. Civ. P.
30(b)(6) corporate representatives indicating that sometimes Cargill employees
mistakenly keyed in the reason for their absence on the automated system, and that
they were allowed to correct the record when they returned to work.

                                         -5-
judgment, arguing that “(1) Lipp cannot show she could perform the essential
functions of her job; (2) she did not suffer an adverse action because of her disability;
and (3) Cargill had a legitimate, nondiscriminatory reason for terminating Lipp’s
employment.” The district court “agree[d] with Cargill’s latter two arguments,”
ruling that Lipp could not establish that the reason for her termination related to her
lung disease rather than to excessive absenteeism. The district court also ruled that
Lipp’s “tardy explanation” for the reason for her October 30 absence was at best a
request for reinstatement rather than a timely request for accommodation as required
under the ADA and ICRA. Lipp now appeals, maintaining her claims for both
intentional discrimination and failure to accommodate.

                                  II. DISCUSSION

       We review the district court’s grant of summary judgment de novo. Kiel v.
Select Artificials, Inc., 169 F.3d 1131, 1134 (8th Cir. 1999) (en banc). We may affirm
the district court on any ground supported by the record. Wages v. Stuart Mgmt.
Corp., 798 F.3d 675, 679 (8th Cir. 2015).

       Summary judgment is appropriate if there are no genuine disputes of material
fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
If the moving party identifies portions of the record “which it believes demonstrate
the absence of a genuine issue of material fact,” see Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)), the nonmovant “must come forward with ‘specific facts
showing that there is a genuine issue for trial.’” Id. (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)).




                                          -6-
      With this standard in mind, we must determine whether Lipp suffered
discrimination or was denied accommodation under the provisions of the ADA, 42
U.S.C. §§ 12101 et seq., or ICRA, Iowa Code §§ 216.1 et seq.5

                                            A.
      The ADA prohibits covered employers from discriminating against a “qualified
individual” on the basis of disability. 42 U.S.C. § 12112(a). A “qualified individual”
is a person “who, with or without reasonable accommodation, can perform the
essential functions” of his or her job. 42 U.S.C. § 12111(8). Under the ADA,
prohibited discrimination includes discrimination against a qualified individual
because of his or her disability (i.e., intentional discrimination), see 42 U.S.C. §
12112(a)–(b)(1), as shown by evidence of disparate treatment or other proof that will
vary according to the specific facts of the case. Young v. Warner-Jenkinson Co., Inc.,
152 F.3d 1018, 1022 (8th Cir. 1998). Prohibited discrimination also includes “not
making reasonable accommodations to the known physical or mental limitations of
an otherwise qualified individual with a disability” unless doing so “would impose
an undue hardship on the operation of the” employer’s business. 42 U.S.C. §
12112(b)(5).

      This court has “long recognized” that a party may prove intentional
discrimination under the ADA either by direct or indirect evidence. Griffith v. City
of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004). “Direct evidence includes
‘evidence of conduct or statements by persons involved in the decisionmaking
process that may be viewed as directly reflecting the alleged discriminatory attitude,’
where it is sufficient to support an inference that discriminatory attitude more likely
than not was a motivating factor.” Schierhoff v. GlaxoSmithKline Consumer


      5
       “ADA and ICRA disability discrimination claims are analyzed in the same
fashion.” Faidley v. United Parcel Serv. of Am., Inc., 889 F.3d 933, 940 (8th Cir.
2018) (en banc).

                                         -7-
Healthcare, L.P., 444 F.3d 961, 966 (8th Cir. 2006) (quoting Radabaugh v. Zip Feed
Mills, Inc., 997 F.2d 444, 449 (8th Cir. 1993)).

       Lipp argues she presents direct evidence of disability discrimination. We
disagree. Lipp’s argument turns on her position that she reported being “sick” on
October 30 and was fired for that reason. However, Cargill presented deposition
testimony from two corporate representatives, as well as two sworn declarations
based on personal knowledge from Cargill human resources employees, all stating
that Lipp reported being absent for “vacation” that day. Lipp responds not with
specific facts showing otherwise, but only with an acknowledgment that “it is
possible” she unintentionally keyed in the wrong buttons on Cargill’s automated call-
in system. Therefore, Lipp has not presented direct evidence of discrimination at the
summary judgment stage.6

       In the absence of direct evidence, we next address whether there is indirect
evidence of disability discrimination. Where a plaintiff must rely on indirect
evidence to prove intentional discrimination under the ADA, we apply the burden-
shifting framework provided in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Schierhoff, 444 F.3d at 964. Under the McDonnell Douglas framework,
the plaintiff must first establish a prima facie case of discrimination by demonstrating
“(1) that the plaintiff was disabled within the meaning of the ADA; (2) that the
plaintiff was qualified to perform the essential functions of the job [with or without

      6
       Lipp also contends that all of Cargill’s evidence tending to establish its belief
that Lipp reported being absent for “vacation” on October 30, 2014 is inadmissible
hearsay. Lipp’s argument fails for two reasons. First, even if Lipp is correct, “the
standard is not whether the evidence at the summary judgment stage would be
admissible at trial—it is whether it could be presented at trial in an admissible form.”
Gannon Int’l, Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012) (citing Fed. R. Civ.
P. 56(c)(2)). Second, she failed to raise this issue before the district court. Her
objection in the first instance on appeal is thus foreclosed. See Dautremont v.
Broadlawns Hosp., 827 F.2d 291, 294–295 (8th Cir. 1987).

                                          -8-
a reasonable accommodation]; and (3) a causal connection between an adverse
employment action and the disability.” Oehmke, 844 F.3d at 755. If the plaintiff
succeeds, “the burden of production then shifts to the employer to show a legitimate,
nondiscriminatory reason for the adverse action.” Id. The burden then returns to the
plaintiff to show that the employer’s proffered reason was a pretext for
discrimination. Id.

       With this framework as the guide, we turn to Lipp’s prima facie case. The
parties do not dispute whether Lipp is disabled within the meaning of the ADA.
However, the parties do contest whether Lipp was a “qualified individual” protected
by the ADA. Ultimately, we conclude she was not a qualified individual. Lipp has
not demonstrated that at the time of her termination she could regularly and reliably
attend work, an essential function of her employment.

       This court has consistently stated that “regular and reliable attendance is a
necessary element of most jobs.” Greer v. Emerson Elec. Co., 185 F.3d 917, 921 (8th
Cir. 1999) (quoting Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445 (8th Cir.
1998)). The ADA provides that “consideration shall be given to the employer’s
judgment as to what functions of a job are essential.” 42 U.S.C. § 12111(8). The
ADA’s implementing regulations further provide that evidence of whether a function
is essential includes, among other things, “[w]ritten job descriptions prepared before
advertising or interviewing applicants for the job.” 29 C.F.R. § 1630.2(n)(3).

      Here, Cargill maintained a written attendance policy stating that “regular
attendance is crucial” to its operations. It enforced its policy with a system of
progressive discipline, culminating in termination after accruing nine “occurrence”
points. In addition, all of Lipp’s listed job activities in Cargill’s written job
description, including labeling boxes and moving pallets, required being present on
Cargill’s premises. Thus, we are convinced that regular and reliable attendance was
an essential function of Lipp’s job. See Greer, 185 F.3d at 922 (concluding the same

                                         -9-
where former employee’s factory “maintained a policy and progressive discipline
practice regarding absenteeism”).

       Lipp argues that her 194 absences in 2014 were not excessive. She explains
that she reported her absences daily, provided notes from her mother’s doctor, and
was never told (until she returned to work) that her absences were unauthorized.
“Simply put,” she says, by missing nine months of work to care for her ailing mother,
she “did nothing wrong.” On the contrary, Lipp’s 195 unauthorized absences far
exceeded what qualified for termination under Cargill’s policy. Moreover, this court
has recognized that persistent absences from work can be excessive “even when the
absences are with the employer’s permission.” Schierhoff, 444 F.3d at 966; accord
Pickens v. Soo Line R.R. Co., 264 F.3d 773, 777 (8th Cir. 2001).

       In Schierhoff, a packaging mechanic missed 172 days of work in less than two
years for various medical and personal reasons, including recovery from surgery and
other injuries. 444 F.3d at 964. He was eventually fired for absenteeism. Id. He
brought suit alleging age and disability discrimination, arguing in part that regular
attendance was not actually required where his employer never warned him that his
absences were excessive. Id. at 963–64. We disagreed, holding that the packaging
mechanic’s numerous absences “amounted to an inability to perform [his] job,” id.
at 966, and noting that the employer’s published policy “clearly indicated” that
excessive absences were cause for termination. Id. at 967.

       Here, despite Cargill’s written attendance policy providing for terminable
action after nine occurrences of unplanned leave, Lipp took nine months of unplanned
leave for reasons unrelated to her disability. Within two weeks of returning to work,
she missed another day without providing medical verification (at least not until
several months later) in violation of the “last chance” notice. Lipp’s 195 days of
unplanned absences for both personal and medical reasons in less than one year far



                                        -10-
exceed the mechanic’s 172 missed days in two years that we found disqualifying in
Schierhoff, thus amounting to an inability to perform her job.

                                            B.
       Lipp also argues Cargill failed to provide her with a reasonable accommodation
after she returned to work—i.e., intermittent time off for her breathing flare ups.7

       Under the ADA, a request8 for “a medical leave of absence might, in some
circumstances, be a reasonable accommodation.” Brannon v. Luco Mop Co., 521
F.3d 843, 849 (8th Cir. 2008) (emphasis added). An individual requesting an
accommodation must “make a facial showing that reasonable accommodation is
possible and that the accommodation will allow her to perform the essential functions
of the job.” Burchett v. Target Corp., 340 F.3d 510, 517 (8th Cir. 2003). But the
ADA does not require employers to provide an unlimited absentee policy. Brannon,
521 F.3d at 849. Moreover, an employee invoking ADA protection must show she
can perform her essential job functions “at the time of her termination.” Browning
v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1048–49 (8th Cir. 1999) (emphasis added).
“[A]n employer need not . . . 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).




      7
        She notes that her mother entered a nursing home in October 2014, and thus
that she no longer needed long-term leave. Lipp’s supervisor also acknowledged in
deposition testimony that Cargill could have continued to accommodate Lipp’s flare-
up related absences two to four times per year lasting two to four days per occurrence.
      8
       We assume for the sake of argument, but do not decide, that Lipp satisfied her
threshold burden of making a sufficient request for accommodation. See Kratzer v.
Rockwell Collins, Inc., 398 F.3d 1040, 1045 (8th Cir. 2005).

                                         -11-
       Here, Lipp’s desired accommodation at the time of her termination—i.e.,
additional flare-up related absences without timely medical verification9 and almost
immediately following 194 days of unplanned absences—was “not one[] that would
enable her to perform the essential function[]” of regular and reliable attendance, but
“would relieve her of [that] function[].” Faulkner v. Douglas Cty. Neb., 906 F.3d
728, 734 (8th Cir. 2018) (emphasis added). The ADA’s protections do not extend
that far. See Pickens, 264 F.3d at 778 (holding that disabled train conductor’s
desired accommodation of remaining unavailable for a given time period, and
returning to work whenever he chose was “unreasonable as a matter of law”);
Browning, 178 F.3d at 1048 (holding that ADA did not protect presumptively
disabled employee while recovering from surgery but “prior to the point in her
recovery when she could once again perform the essential functions of her job”).

       As this court recently stated, “[i]f 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.’” Faidley, 889 F.3d at 943 (quoting Vande Zande v. Wis. Dep’t of
Admin., 44 F.3d 538, 545 (7th Cir. 1995)). Here, instead of terminating Lipp, as it
could have done, Cargill gave Lipp a “Last Chance for attendance” and continued to
permit “authorized” disability-related absences despite her excessive absenteeism.
This did not, however, make additional unverified absences a reasonable

      9
       Lipp argues that requiring medical verification when she returned to work
following her flare-up (five days later) was too burdensome because her doctor was
located out of town and she merely needed to stay home, rest, and take her
medication. But “an employer has only to provide an accommodation that is
reasonable, not an accommodation the employee prefers,” Faidley, 889 F.3d at
942–43 (internal quotations omitted). While it’s not clear if Cargill required Lipp to
produce any form of medical verification before her extended unplanned leave,
requiring her to do so afterwards—consistent with company policy, and particularly
while she was under a “last chance” notice—was not unreasonable. See Pickens, 264
F.3d at 776.
                                         -12-
accommodation at that time, no matter how many absences (verified or not) Cargill
had permitted to that point or was willing to permit in the future. To hold otherwise
would be to punish Cargill for giving Lipp another chance instead of terminating her
employment before she returned. We do not read the ADA to apply in such a manner.

                               III. CONCLUSION

      We affirm the district court’s grant of summary judgment in favor of Cargill.



                       ______________________________




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