                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-2655
                                    ___________

Michael D. Maziarka,                     *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Mills Fleet Farm, Inc.,                  *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: October 16, 2000

                                   Filed: April 3, 2001
                                    ___________

Before WOLLMAN, Chief Judge, BEAM, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                             ___________

WOLLMAN, Chief Judge.

       Michael D. Maziarka appeals from the district court’s1 grant of summary
judgment on his employment discrimination claims under the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213, and the Minnesota Human
Rights Act (MHRA), Minn. Stat. §§ 363.01-363.15, in favor of his former employer,
Mills Fleet Farm, Inc. (Fleet Farm). We affirm, but for a reason other than that relied

      1
      The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
upon by the district court. See Phillips v. Marist Soc’y, 80 F.3d 274, 275 (8th Cir.
1996).

                                           I.

       We recite the facts in the light most favorable to Maziarka. Maziarka suffers
from a condition known as irritable bowel syndrome that causes diarrhea, severe
cramping, and vomiting. Less common symptoms include nausea, joint pain, and fever,
all of which afflict Maziarka. According to Maziarka’s treating physician, Dr. Mark
Liebow of the Mayo Clinic, one-sixth of the population suffers from irritable bowel
syndrome, but Maziarka’s case is unusually severe, one of the cases that “represent
less than 1/10 of 1% of all those suffering with irritable bowel syndrome.” Treatment
may alleviate the symptoms, but the condition is incurable and flares up unpredictably.
When Maziarka is symptomatic, he is essentially bedridden for a period of time, often
as long as two days.

       In November of 1995, Fleet Farm hired Maziarka as a full-time clerk in the
hardware department of its store in Winona, Minnesota. In December of 1995,
Maziarka was absent from work due to illness on four occasions and twice left early
for the same reason. A performance review for this month noted this absenteeism as
unsatisfactory. Maziarka received a good performance review for January of 1996,
however, having arrived late to work on only two occasions and having no absences
related to illness. In early 1996, Maziarka was transferred to the receiving department.

       According to the written job description for receiving clerk, Maziarka’s primary
job responsibility was “to receive and properly record merchandise off the carrier’s
manifest.” Receiving clerks inspect freight bills and merchandise shipments, have the
freight driver acknowledge any discrepancies in the order, check in and scan
merchandise, and respond to calls for help in all areas of the store. Performance is
judged on accuracy and speed and on the ability to follow up on damage and other

                                          -2-
discrepancies. Maziarka stated that the workload was sporadic; some days were busy,
particularly during July when holiday merchandise arrives, but some days Maziarka
“pushed a broom for eight hours.” The receiving department’s work depended on the
arrival of various delivery trucks, and thus the level of work varied with no
recognizable pattern. The department consisted of three to four full-time employees
plus a couple of part-time employees, who generally worked alone or with one other
person during their shifts. The assistant manager stated that he had called in other
receiving clerks to fill in for absent employees only once or twice. Clerks from other
departments were not trained to fill in for absent receiving department employees.

       From February 9, 1996, to Maziarka’s termination date, December 9, 1996,
Maziarka was absent from work because of illness an average of two days per month
and left early or arrived late approximately six times. Maziarka’s performance reviews
during this time marked his “attendance/dependability” as unsatisfactory. Although
Maziarka brought in numerous notes from Dr. Liebow explaining his condition and
excusing his absences, he received repeated oral warnings about his absenteeism and
received numerous written disciplinary warnings. In September of 1996, Maziarka
received a final written warning that required him to provide a written medical excuse
for every absence. Maziarka met this requirement and called Fleet Farm promptly
when he would be absent from work. Also in September, Maziarka filed for medical
leave on an intermittent basis, which was denied because he had not worked for Fleet
Farm for a year.2 Maziarka was told during one of his meetings with the store manager
that “[i]f you knew you had this condition, you should have never applied here.”

        On December 5 and 6 of 1996, Maziarka was unable to come to work because
of a flare up of irritable bowel syndrome. On December 9, 1996, Fleet Farm fired him
for excessive absenteeism.


      2
       Maziarka also filed for medical leave in December of 1996, but was terminated
before he received a response.

                                         -3-
       Maziarka brought claims under the ADA and the MHRA against Fleet Farm for
terminating him because of his disability and for failing to accommodate his disability.
The district court granted summary judgment to Fleet Farm, concluding that Maziarka
had failed to show that he was substantially limited in any major life activities.

                                          II.

       We review the district court’s grant of summary judgment de novo. Henerey v.
City of St. Charles, 200 F.3d 1128, 1131 (8th Cir. 1999). Summary judgment is proper
if the evidence, viewed in the light most favorable to the nonmoving party,
demonstrates that no genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law. Id.; Fed. R. Civ. P. 56(c).

       The ADA3 affords protection from discrimination to any “qualified individual
with a disability.” 42 U.S.C. § 12112(a). To establish a prima facie case of
discrimination under the ADA, Maziarka must show (1) that he has a disability within
the meaning of the ADA, (2) that he is qualified to perform the essential functions of
his job, with or without reasonable accommodation, and (3) that he suffered an adverse
employment action because of his disability. Kiel v. Select Artificials, Inc., 169 F.3d
1131, 1135 (8th Cir. 1999) (en banc). Discrimination includes “not making reasonable
accommodations to the known physical and mental limitations of an otherwise qualified
individual with a disability . . . unless [the employer] can demonstrate that the
accommodation would impose an undue hardship on the operation of the business of
[the employer].” 42 U.S.C. § 12112(b)(5)(A). The proof necessary to establish a




      3
       We have noted that the MHRA parallels the ADA, Wilking v. County of
Ramsey, 153 F.3d 869, 872 (8th Cir. 1998), and thus we conclude that the district court
properly treated Maziarka’s MHRA claim as co-extensive with his ADA claims.
Neither party contests this treatment on appeal.

                                          -4-
prima facie case in discrimination cases is flexible and varies with the specific facts of
each case. Young v. Warner-Jenkinson Co., Inc., 152 F.3d 1018, 1022 (8th Cir. 1998).

       Maziarka contends that there are genuine issues of fact about whether he is
disabled within the meaning of the ADA and about whether he could perform the
essential functions of the job with reasonable accommodation.

                                      A. Disability

       The relevant statutory definition of disability in this case is: “a physical or
mental impairment that substantially limits one or more of the major life activities of
[an] individual. . . .” 42 U.S.C. § 12102(2)(A). Fleet Farm does not dispute that
Maziarka suffers from a physical impairment, that is, a “condition . . . affecting one or
more of the following body systems: . . . digestive.” 29 C.F.R. § 1630.2(h).
According to the regulations that guide the interpretation of the ADA, an impairment
is “substantially limiting” if it renders an individual unable to perform a major life
activity that the average person in the general population can perform, or if it
significantly restricts the condition, manner, or duration under which an individual can
perform such an activity compared to the general population. 29 C.F.R. §
1630.2(j)(1)(i)-(ii). Major life activities include caring for oneself, performing manual
tasks, walking, seeing, hearing, breathing, learning, and working, 29 C.F.R. §
1630.2(i), as well as sitting, standing, lifting, and reaching. Fjellestad v. Pizza Hut of
America, Inc., 188 F.3d 944, 948 (8th Cir. 1999).

       Several factors are considered in determining whether a person is substantially
limited in a major life activity: (1) the nature and severity of the impairment; (2) its
duration or anticipated duration; and (3) its long-term impact. 29 C.F.R. §
1630.2(j)(2)(i)-(iii). To be substantially limited in the life activity of working, a
plaintiff must be “significantly restricted in the ability to perform either a class of jobs
or a broad range of jobs in various classes as compared to the average person having

                                            -5-
comparable training, skills and abilities.” 29 C.F.R. § 1630.2(j)(3)(i). Inability to
perform one particular job does not constitute a substantial limitation on working. Id.
A plaintiff must show that because of his impairment he has suffered a significant
reduction in meaningful employment opportunities. Webb v. Garelick Mfg. Co., 94
F.3d 484, 488 (8th Cir. 1996).

       Fleet Farm contends that because the flare ups in Maziarka’s condition are too
infrequent to constitute a substantial limitation, his periods of incapacitation do not
demonstrate that he is substantially limited in any life activity. The determination of
disability is a highly fact-intensive one, Land v. Baptist Med. Ctr., 164 F.3d 423, 425
(8th Cir. 1999), and thus a conclusion that a certain condition, or a particular
manifestation of a condition, does not substantially limit a particular plaintiff does not
foreclose a determination that another individual with the same or analogous condition
may be disabled within the meaning of the ADA. Otting v. J.C. Penney Co., 223 F.3d
704, 710-11 & n.4 (8th Cir. 2000) (discussing epilepsy). The cases on which Fleet
Farm relies, therefore, do not foreclose Maziarka’s claim. E.g., Zirpel v. Toshiba
America Info. Sys., Inc., 111 F.3d 80, 81 (8th Cir. 1997) (panic disorder “very
manageable;” attacks infrequent and mild); Todd v. Academy Corp., 57 F. Supp. 2d
448, 453 (S.D. Tex. 1999) (epilepsy under control; seizures very brief and plaintiff
aware of their approach).

        Maziarka’s irritable bowel syndrome is chronic, incurable, and unusually severe.
Although he is afflicted with flare ups only a few days per month on average, he may
also be incapacitated for longer periods of time. These periods of incapacitation are
unpredictable and will vex Maziarka for the rest of his life. During his periods of
incapacity, Maziarka is prevented from leaving his home to go to work, performing
manual tasks, or interacting with supervisors, co-workers, and store patrons, and is
afflicted with substantial pain and intestinal discomfort. When compared to the average
person in the general population, we cannot say that Maziarka’s limitations are solely


                                           -6-
“moderate” ones. See Weber v. Strippit, Inc., 186 F.3d 907, 914 (8th Cir. 1999)
(discussion of moderate limitation), cert. denied, 120 S. Ct. 794 (2000).

       Maziarka has also presented evidence that he is precluded from performing a
broad range of jobs, not simply the receiving job at Fleet Farm. He offered the affidavit
of John Peterson, a rehabilitation consultant, who determined that Maziarka’s
unexpected absences would preclude him from a range of jobs in smaller
organizations, or in departments with a small number of employees. Peterson also
opined that Maziarka would be unable to perform jobs that would require him to work
independently, respond immediately to emergencies, or be available for employment
at unpredictable times of unpredictable duration, such as the jobs of fire-fighter and
truck driver. Maziarka is now taking college classes and training for law enforcement
work, but his job history for the past decade shows a series of what have apparently
been short-term jobs. Maziarka has reported that his current part-time job as a jailer
at a county detention facility is flexible enough that he has not yet had any difficulty
because of his condition.

       A permissible inference from the foregoing evidence is that Maziarka is
substantially limited in the life activity of working. Indeed, as the (former) store
manager succinctly stated, “[d]ependability is a priority when it comes to working.”
This is not a case, then, in which a plaintiff’s condition causes difficulty with a single
aspect of a single job position. E.g., Castro v. Local 1199, Nat’l Health & Human
Servs. Employees Union, 964 F. Supp. 719, 725 (S.D.N.Y. 1997). Accordingly, we
conclude that Maziarka has presented evidence that would allow a trier of fact to find
Maziarka to be disabled--substantially limited in the major life activity of working--
within the meaning of the ADA.




                                           -7-
                          B. Essential Functions of his Job

       To be a “qualified individual” within the meaning of the ADA, Maziarka must
(1) possess the requisite skill, education, experience, and training for his position; and
(2) be able to perform the essential job functions, with or without reasonable
accommodation. Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 786-87 (8th Cir.
1998). Only the second part of the definition is in question here. Although an ADA
plaintiff retains the ultimate burden of proving that he is a qualified individual, an
employer who disputes the plaintiff’s claim that he can perform the essential functions
must put forth evidence establishing those functions. Benson v. Northwest Airlines,
Inc., 62 F.3d 1108, 1113 (8th Cir. 1995). An essential function may be established by
evidence that includes:

      (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 incumbent to
      perform the function; and (5) the current work experience of incumbents
      in similar jobs.

Moritz, 147 F.3d at 787 (internal quotation marks omitted).

        Maziarka contends that attendance is not an essential function of the job and that
Fleet Farm could and should have allowed him to take unscheduled leave without pay
when his syndrome flared up, followed by his making up the time when he had
recovered. He argues that because shipments of merchandise arrived sufficiently prior
to the time they were needed on the store shelves, his unexpected absence for a day or
two did not disrupt the store’s inventory schedule. He points to the assistant manager’s
statement that he called other employees to fill in for an absent employee on only one
or two occasions. Fleet Farm counters by pointing out that an essential function of the
job of a receiving clerk is to be present when merchandise arrives. Fleet Farm notes

                                           -8-
that the only accommodation Maziarka requested was time off without pay when his
sick leave was used up.

       We conclude that although this case does not involve a situation in which
“attendance was so erratic as to make [the plaintiff] unqualified for any position,” Carr
v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994), Maziarka has failed to present a triable
issue of fact about whether he could perform the essential functions of his job with
reasonable accommodation. We have noted that dependable attendance is often an
essential part of a job. Buckles v. First Data Resources, Inc., 176 F.3d 1098, 1100-01
(8th Cir. 1999); Moore v. Payless Shoe Source, Inc., 187 F.3d 845, 848 (8th Cir.
1999). In discussing the essential functions of a housekeeping aide position, the
Eleventh Circuit stated that “[u]nlike other jobs that can be performed off site or
deferred until a later day, the tasks of a housekeeping aide by their very nature must be
performed daily at a specific location.” Jackson v. Veterans Admin., 22 F.3d 277, 279
(11th Cir. 1994). Maziarka’s job similarly requires that he be capable of regular and
predictable attendance at a specified location in order to perform the tasks of a
receiving clerk.

      A number of factors support Fleet Farm’s contention that regular attendance was
an essential function of the job of Maziarka’s position. See Moritz, 147 F.3d at 787
(describing employer expectations, consequences of accommodation, and limited
number of available employees as some pertinent factors). Few Fleet Farm employees
were trained to work in the receiving department. See 29 C.F.R. § 1630.2(n)(2)(ii)
(limited number of employees is relevant inquiry). The receiving department had only
three or four full-time employees, including Maziarka, and most would be already
scheduled to work on any given day. Additionally, Fleet Farm’s written job description
for receiving clerk, prepared before Maziarka was hired, and the seriousness with
which Fleet Farm treated Maziarka’s absences (e.g., numerous warnings, meetings, and
discussions), indicate that dependability and attendance are essential for receiving
clerks. The job description states that the primary responsibility of a receiving clerk

                                          -9-
is to receive, inspect, and record merchandise when it arrives. By its very nature, a
receiving clerk’s job is to be present to receive and sort merchandise upon arrival and
to interact with freight drivers. Clerks are then judged on their speed, accuracy, and
follow-up. See Moritz, 147 F.3d at 787 (job description and nature relevant).

       Maziarka’s suggested accommodation--that he be allowed to be absent and make
up the time missed later--does not provide a reasonable alternative in this situation. His
proposed accommodation does not address the crucial problem--the unpredictability
of Maziarka’s absences--which left Fleet Farm unable to rely on its schedule in order
to efficiently receive and process merchandise. His proposal instead presumes that
regular, predictable attendance is not an essential function of his job. “It is well settled
that an employer is under no obligation to reallocate the essential functions of a position
that a qualified individual must perform.” Moritz, 147 F.3d at 788. Fleet Farm is also
not obligated to hire additional employees or reassign existing workers in order to
compensate for Maziarka’s unexpected absences. Id. Maziarka has suggested no other
accommodation that could overcome the difficulty of his unpredictable absences.

       Accordingly, because Maziarka has failed to present evidence that would allow
a fact-finder to conclude that he can perform the essential functions of his position with
reasonable accommodation, we conclude that Fleet Farm was entitled to summary
judgment.

       The judgment is affirmed.

       A true copy.

              Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.


                                           -10-
