                 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
                                      ____________

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

                          Submitted: December 15, 2016
                              Filed: April 4, 2017
                                 ____________

Before KELLY and MURPHY, Circuit Judges, and MONTGOMERY,1 District
Judge.
                          ____________

MURPHY, Circuit Judge.

      Plaintiff Jerry Faidley worked as a delivery driver for defendant United Parcel
Service of America (UPS). His doctor restricted his work activity after he hurt his

      1
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota, sitting by designation.
back, and UPS did not offer him another full time position that he was able to
perform. He sued for disability discrimination and retaliation. The district court
granted summary judgment to UPS on all claims. Faidley appeals, and we affirm in
part, reverse in part, and remand.

                                          I.

       Jerry Faidley worked for UPS as a package delivery driver. After he injured
his back twice and had hip surgery, his doctor restricted his work day to eight hours.
When UPS learned of this restriction in 2012, it prohibited him from working as a
delivery driver because that position requires employees able to work nine and a half
hours per day. His manager also told him that his career at UPS was over because the
company would not employ someone with a permanent restriction.

       Faidley went on unpaid leave and sought a disability accommodation. He
proposed working either as a delivery driver with a daily limit of eight hours or at a
less physically demanding position without accommodations. One of the other jobs
UPS considered was feeder driver, which involves driving trailers between UPS
locations and is less physically strenuous than the delivery driver role. The company
did not offer Faidley this position, however, because it was unavailable at the time.
UPS then offered him a part time job that would have reduced his seniority. He
declined to accept that position and sued UPS under the Americans with Disabilities
Act (ADA) and Iowa Civil Rights Act (ICRA) for a failure to accommodate his
disability.

      Several months later, Faidley's doctor issued a new restriction that allowed him
to work with no limit on his hours at any job other than delivery driver. In early 2013
Faidley found a new position at UPS as a combined pre loader and loader. In the pre
loader role, he loaded packages into delivery trucks. As a loader, he stacked
packages in semi trailers. This combined role proved too physically demanding and

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caused Faidley a great deal of pain. His doctor then limited him to working four
hours per day for five weeks as a pre loader rather than a loader. Faidley asked to
work a reduced schedule but UPS refused because he had previously used all of his
available time in its temporary alternative work program.

      Faidley later received another set of work restrictions. UPS then reinitiated the
accommodation process, but no full time positions that fit his restrictions were
available. UPS offered him a part time position that he declined. Faidley retired later
that year. He then sued UPS a second time under the ICRA for disability
discrimination and retaliation arising from its alleged failure to accommodate him in
2013. The district court consolidated the 2012 and 2013 actions and granted
summary judgment to UPS. Faidley appeals.

                                          II.

       We review the "grant of summary judgment de novo, viewing the facts in the
light most favorable to the nonmoving party and making every reasonable inference
in his favor." McPherson v. O'Reilly Auto., Inc., 491 F.3d 726, 730 (8th Cir. 2007).
Summary judgment is warranted "if the record shows there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law." Id.; see
also Torgerson v. City of Rochester, 643 F.3d 1031, 1042–43 (8th Cir. 2011) (en
banc).

                                          A.

      We first address Faidley's 2012 disability discrimination claim. We use the
same standards to analyze ADA and ICRA discrimination claims. Tjernagel v. Gates
Corp., 533 F.3d 666, 671 (8th Cir. 2008). The ADA prohibits private employers from
discriminating against qualified individuals based on disability. Kallail v. Alliant
Energy Corp. Servs., Inc., 691 F.3d 925, 930 (8th Cir. 2012). Discrimination includes

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a failure to provide "reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability." Id. (quoting 42
U.S.C. § 12112(b)(5)(A)). 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) (internal quotation marks omitted). Neither party disputes that
Faidley was disabled and thus satisfies the first element of this claim.

       With respect to the second element, 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, 691 F.3d at 930 (quoting Fenney, 327
F.3d at 712). Essential job functions "are the fundamental duties of the job, but not
its marginal functions." Id.

       Faidley claims to have been qualified to perform the jobs of feeder driver and
delivery driver in 2012. The district court correctly concluded as a matter of law that
Faidley was not qualified to perform the essential job functions for the delivery driver
position. That job required the ability to work more than eight hours per day, and the
record is clear that Faidley was limited to working no more than eight hours per day.

       We conclude, 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. UPS claims that Faidley was unqualified for this position because it
sometimes required working more than eight hours per day. 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 manager Vince Blood wrote on a 2012
accommodation worksheet, however, that Faidley "preliminarily appear[ed] capable
of performing the essential job functions" of the feeder driver role. On the same

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form, he wrote that Faidley could work no more than eight hours per day. We
conclude that 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.

       UPS argues that we should not consider the feeder driver position because it
was not available when Faidley went through the accommodation process. In accord
with guidance from the Equal Employment Opportunity Commission, 29 C.F.R.
Pt. 1630 app. § 1630.2(o), other circuits have considered as available "positions that
the employer reasonably anticipates will become vacant in the fairly immediate
future." Smith v. Midland Brake, Inc., 180 F.3d 1154, 1175 (10th Cir. 1999) (en
banc); see also Dark v. Curry Cty., 451 F.3d 1078, 1089–90 (9th Cir. 2006). We also
adopt the agency's guidance to consider such positions. In this case, Faidley has
presented evidence that UPS expected that feeder driver positions would become
open in the near future. We therefore conclude that Faidley has provided evidence
to show that he satisfied the second element of his 2012 claim for disability
discrimination.

      An employee satisfies the third element of a disability discrimination claim if
he shows that he suffered an adverse employment action, which "is defined as a
tangible change in working conditions that produces a material employment
disadvantage, including but not limited to, termination, cuts in pay or benefits, and
changes that affect an employee's future career prospects, as well as circumstances
amounting to a constructive discharge." Jackman v. Fifth Judicial Dist. Dep't of Corr.
Servs., 728 F.3d 800, 804 (8th Cir. 2013). We conclude that Faidley has established
a genuine issue of material fact as to this element. Faidley has alleged and provided
evidence that UPS rejected his bids for full time positions and offered him only a part
time position that would have eliminated his seniority and reduced his benefits and




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pension.2 The company effectively forced him to reduce his hours significantly and
he thus suffered an adverse employment action. He also suffered such an action by
the company's material reduction of his benefits. See id. Because Faidley has
provided evidence to support every element of his 2012 disability discrimination
claim, we conclude that the district court erred in granting summary judgment to UPS
on that claim.

                                          B.

       We next address Faidley's 2013 discrimination claim. We agree with the
district court that this claim fails as a matter of law because Faidley has not offered
sufficient evidence that he was qualified to perform the essential job functions of any
available job. The only available job he claims he could have performed was a
combination loader and pre loader position on a reduced schedule for several weeks.
The record shows, however, that Faidley's restrictions prohibited him from
performing the role of loader. Even on a reduced schedule, he would have been
unable to perform half of the combination loader and pre loader job. UPS was not
required to reallocate the essential functions of this combined position. See Minnihan
v. Mediacom Commc'ns Corp., 779 F.3d 803, 813 (8th Cir. 2015). Because Faidley
has not provided evidence that he could have performed the essential job functions
of any available job, he has not satisfied the second element of his 2013
discrimination claim.

      2
        The district court determined that Faidley did not allege UPS took an adverse
employment action against him by forcing him into part time work. Faidley did
allege, however, that UPS' failure to accommodate his disability affected the "terms
and conditions of his employment." He attached to his complaint the discrimination
claim he had filed with the Iowa Civil Rights Commission, which specifically stated
that UPS had offered him only a part time position, and that accepting that position
would have eliminated his seniority and bidding rights and reduced his benefits and
pension. These allegations are sufficient to encompass Faidley's theory that UPS took
an adverse employment action against him by not allowing him to work full time.

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       Faidley also argues that UPS failed to engage him in the interactive
accommodation process required by the ADA. Although "[t]here is no per se liability
under the ADA if an employer fails to engage in the interactive process," an
employer's failure to engage in the interactive process at the summary judgment stage
"is prima facie evidence that the employer may be acting in bad faith." Minnihan,
779 F.3d at 813. To show that an employer failed to participate in the interactive
process, an employee must show:

      (1) the employer knew about the employee's disability; (2) the employee
      requested accommodation or assistance for his or her disability; (3) the
      employer did not make a good faith effort to assist the employee in
      seeking accommodation; and (4) the employee could have been
      reasonably accommodated but for the employer's lack of good faith.

Cravens v. Blue Cross & Blue Shield of Kan. City, 214 F.3d 1011, 1021 (8th Cir.
2000). The employee is not necessarily entitled to the accommodation of his choice.
Minnihan, 779 F.3d at 813.

       Faidley has not presented evidence to show that UPS failed to make a good
faith effort to help him in seeking an accommodation. He acknowledges that UPS
met with him and identified positions that he and his doctor thought he could
perform. Two positions which fit the restrictions were not available. UPS told
Faidley that it would inform him if these positions became available, and there is no
evidence that they became available before he retired. When Faidley suggested other
positions he thought he could perform, UPS promptly responded that the essential
functions of those positions conflicted with his restrictions. This record shows that
UPS made a good faith effort to assist Faidley in seeking an accommodation. Since
Faidley has failed to present a genuine issue of material fact on his 2013
discrimination claim, summary judgment is appropriate.




                                         -7-
                                          C.

     Faidley finally claimed before the district court that in 2013 UPS did not
accommodate him in retaliation for his 2012 discrimination complaint. He did not
meaningfully address this claim in his opening brief, however, and therefore he has
waived it. See Ahlberg v. Chrysler Corp., 481 F.3d 630, 634 (8th Cir. 2007).

                                          III.

      For these reasons we affirm with respect to the retaliation and the 2013
discrimination claims, reverse with respect to the 2012 discrimination claim, and
remand for further proceedings consistent with this opinion.

KELLY, Circuit Judge, concurring in part and dissenting in part.

       Like the district court and the parties did, I would treat this case as involving
a single disability discrimination claim—based on events spanning 2012 and
2013—rather than as two discrete disability discrimination claims—one based on
events occurring in 2012, and one based on events occurring in 2013. Therefore,
because Faidley produced evidence that he was qualified for the feeder driver
position, I would reverse and remand the entire matter of the alleged disability
discrimination to the district court. I otherwise concur in all other aspects of the
court's opinion. I appreciate the separate partial dissent's concern that employers
should not be punished for exceeding the requirements of the ADA, but I think
Blood's belief that Faidley could perform the job functions of a feeder driver is
sufficient evidence that he was qualified for that position to survive summary
judgment.




                                          -8-
MONTGOMERY, District Judge, concurring in part and dissenting in part.

       I concur that Faidley’s 2013 discrimination claim fails as a matter of law, but
I respectfully disagree that Faidley has raised a genuine issue of material fact on the
"qualified" element of his 2012 disability discrimination claim.

       The majority concludes that there is a fact question as to whether Faidley was
able to perform the essential job functions of the feeder driver position. To reach its
conclusion, the majority cites the 2012 accommodation worksheet where Human
Resources Manager Vince Blood noted that Faidley "preliminarily appear[ed] capable
of performing the essential job functions" of that position. However, it is undisputed
that an essential function of the feeder driver position was the ability to work 9.5
hours per day. It is also undisputed that at the time the checklist was completed in
July 2012, Faidley’s physician had permanently restricted him from working over
eight hours per day. This was solely a time-based restriction; Faidley was not
medically restricted by his physician from performing strenuous activities. Thus, the
essential functions of the feeder driver position exceeded Faidley’s medical
limitations. Based on this undisputed evidence, Faidley was not qualified as a matter
of law to perform the essential functions of the feeder driver position for the same
reason that he was not qualified as a matter of law to perform the essential functions
of the delivery driver position: "That job required the ability to work more than eight
hours per day, and the record is clear that Faidley was limited to working not more
than eight hours per day." Ante, at 4. Vince Blood’s notation on the accommodation
worksheet that Faidley "preliminarily appear[ed] capable of performing the essential
job functions" does not create a fact question on this issue.

       In completing the accommodation worksheet, Blood was exploring positions
that exceeded Faidley’s express medical restriction. This was more than required by
the ADA because "[t]he ADA does not require an employer to permit an employee
to perform a job function that the employee’s physician has forbidden." Alexander

                                         -9-
v. Northland Inn, 321 F.3d 723, 727 (8th Cir. 2003). Allowing Faidley’s claim to
proceed based upon Blood’s willingness to consider positions that were beyond
Faidley’s physician’s restriction effectively punishes Blood for attempting to do more
for Faidley than demanded by the ADA. Other circuits have cautioned against such
a result. See Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1023 (7th Cir. 1997)
("Employers should not be discouraged from doing more than the ADA requires.");
Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1257 n.3 (11th Cir. 2001) ("Good
deeds ought not be punished, and an employer who goes beyond the demands of the
law to help a disabled employee incurs no legal obligation to continue doing so.").

       For these reasons, the district court was correct to conclude as a matter of law
that Faidley was unable to perform the essential functions of the feeder driver
position. Accordingly, I would affirm the judgment of the district court.
                       ______________________________




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