                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 01-3983
                                 ___________

Timothy J. Dropinski,                   *
                                        *
             Appellant,                 *
                                        *
       v.                               * Appeal from the United States
                                        * District Court for the District
Douglas County, Nebraska, a             * of Nebraska.
Political Subdivision of the State      *
of Nebraska,                            *
                                        *
             Appellee.                  *
                                   ___________

                           Submitted: June 12, 2002

                                Filed: August 5, 2002
                                 ___________

Before RILEY, BEAM, and MELLOY, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

     Appellant Timothy Dropinski appeals the district court's1 order granting
Douglas County's motion for summary judgment and denying Dropinski's similar
motion. For the reasons set forth below, we affirm.



      1
       The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
I.    BACKGROUND

       Dropinski filed this claim under the Americans with Disabilities Act ("ADA"),
42 U.S.C. § 12101 et. seq., Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e) et.
seq., and the Nebraska Fair Employment Practices Act, Neb. Rev. Stat. § 48-1101 et.
seq., for damages for unlawful discrimination on the basis of disability. In
accordance with our standard of review, we recite the facts in the light most favorable
to Dropinski.

       Dropinski worked for Douglas County as an Automatic Equipment Operator
(AEO II). On December 1, 1997, Dropinski slipped and fell while cleaning the
windshield of his truck, injuring his back. As a result of that injury, Dropinski was
off work until January 19, 1998. When Dropinski returned to work, he began to
experience back pain and visited a doctor on January 28, 1998. The doctor
recommended that Dropinski work no more than forty hours per week and Dropinski
made this request to Douglas County. Dropinski alleges that Douglas County refused
this accommodation and he returned to working twelve-hour shifts as required.
Thereafter, Dropinski continually experienced back pain while performing his
essential job requirements. Dropinski claims that at all times Douglas County was
notified of his pain and resulting limitations and that when Dropinski sought
accommodation, Douglas County refused.

       On October 19, 1998, Dropinski received further treatment for his back injury
and the doctor recommended that Dropinski be restricted from frequent bending,
twisting, squatting, and lifting more than forty pounds while working. Dropinski
again relayed these restrictions to Douglas County seeking accommodation. Douglas
County responded by placing Dropinski on leave beginning October 21, 1998, until
he reached full recovery and was able to work without restriction. Dropinski
remained on leave until January 27, 2000, at which time he was terminated from
employment with Douglas County.

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      The district court held that there was sufficient evidence in the record to create
a genuine issue of material fact as to whether Dropinski is disabled under the ADA.
However, the court ultimately determined that Dropinski was unable to perform the
essential functions of the AEO II position, holding that due to the extent of
Dropinski's restrictions, any accommodation would amount to a restructuring of the
AEO II job, and place an undue burden on Douglas County. Thus, the district court
concluded that no reasonable jury could find that Dropinski was a qualified individual
under the ADA and granted Douglas County's motion for summary judgment.

II.   DISCUSSION

       This court reviews the district court's grant of summary judgment de novo.
Harder v. Acands, 179 F.3d 609, 611 (8th Cir. 1999). In doing so, we apply the same
standard as the district court, viewing the evidence in the light most favorable to the
nonmoving party and giving that party the benefit of all inferences that may
reasonably be drawn. Fed. R. Civ. P. 56(c); Wallace v. Dorsey Trailers Southeast,
Inc., 849 F.2d 341, 342 (8th Cir. 1988). A moving party is entitled to summary
judgment "if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of
law." Fed. R. Civ. P. 56(c).

       The ADA prohibits employers from discriminating "against a qualified
individual with a disability because of the disability of such individual." 42 U.S.C.
§ 12112(a). To establish a prima facie case of discrimination under the ADA,
Dropinski must establish that (1) he is disabled within the meaning of the ADA; (2)
he is qualified to perform the essential functions of his job with or without reasonable
accommodation; and (3) he suffered an adverse employment action under
circumstances that give rise to an inference of unlawful discrimination based on
disability. Greer v. Emerson Elec. Co., 185 F.3d 917, 921 (8th Cir. 1999).

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"Discrimination includes 'not making reasonable accommodations to the known
physical or 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].'" Heaser v. The
Toro Co., 247 F.3d 826, 830 (8th Cir. 2001) (quoting 42 U.S.C. § 12112(b)(5)(A))
(alterations in original).

       Under the first element of a prima facie ADA case, we agree with the district
court for purposes of this opinion that there is sufficient evidence in the record to
create a genuine issue of material fact as to whether Dropinski was disabled under the
ADA.2 We also conclude that Dropinski's ultimate termination satisfies the third
requirement of a prima facie ADA case–that he suffered an adverse employment
action under circumstances giving rise to an inference of unlawful discrimination
based on disability. The issue before this court, then, is whether there is a question
of fact regarding Dropinski's ability to perform the essential functions of his job with
or without accommodation.




       2
         We note that this assumption is based upon Dropinski's articulation at oral
argument that his limitations are, and always have included, lifting, bending, and
twisting. These limitations are critical in our assumption because it appears from the
record before this court that the focus is on Dropinski's lifting restriction alone. If
that is so, Dropinski might not be considered "disabled" for ADA purposes. Under
this court's precedent, "a 'general lifting restriction imposed by a physician, without
more, is insufficient to constitute a disability.'" Mellon v. Federal Express Corp., 239
F.3d 954, 957 (8th Cir. 2001) (quoting Snow v. Ridgeview Med. Ctr., 128 F.3d 1201,
1207 (8th Cir. 1997)); but see Webner v. Titan Distrib., Inc., 267 F.3d 828, 834 (8th
Cir. 2001) (recognizing that a back injury that substantially limits a person's ability
to work, to twist, to bend, and to stand, in addition to limiting their ability to lift could
constitute a physical impairment that substantially limits one or more major life
activities).

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      Although Dropinski retains the ultimate burden of proving that he is a qualified
individual, an employer who disputes his claim that he can perform the essential
functions of the job must put forth evidence establishing those functions. Heaser, 247
F.3d at 831. This evidence may include:

      (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.

Id. (quoting Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 787 (8th Cir. 1998)
(internal quotation marks omitted)).

       Douglas County denies that Dropinski is able to perform the essential functions
of the AEO II position. The County assessed Dropinski's bending, twisting,
squatting, and lifting restrictions and determined that it was unable to accommodate
Dropinski in the AEO II position without undue burden. However, Dropinski asserts
that many of the functions Douglas County claims to be essential to the AEO II
position are in fact marginal. "'Restructuring frequently involves reallocating the
marginal functions of a job,' [but] an employer is not required to reallocate the
essential functions of a job." Treanor v. MCI Telecommunications Corp., 200 F.3d
570, 575 (8th Cir. 2000) (quoting Benson v. Northwest Airlines, Inc., 62 F.3d 1108,
1112-13 (8th Cir. 1995)).

      The job description of an AEO II reads as follows:

      Duties and Responsibilities
      1.    Safely and efficiently operate tandem axle dump trucks and other
            equipment/machinery, including, but not limited to: flusher truck,


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      asphalt lay down machine, oil distributor, crack sealer, self
      propelled roller, skid steer, tractors and related attachments such
      as mower, auger, seeder, etc.
2.    Operate assigned equipment for the removal of ice and snow from
      roadways.
3.    Occasionally operate heavy equipment, including, but not limited
      to, front end loader as directed.
4.    Perform semi-skilled and unskilled laborer tasks incidental to
      equipment operation or as assigned.
5.    Assist maintenance personnel in making mechanical repairs and
      adjustments to equipment as required. Report maintenance and
      repair needs to supervisors.
6.    Assist mechanics in minor repairs and maintenance to
      equipment.
7.    Assist in cleaning of job sites and equipment.
8.    Occasionally direct groups of one or more fellow workers.
9.    Perform other related duties as assigned.

Basic Skills and Abilities Required
1.    Ability to work and complete duties with minimum supervision.
2.    Ability to follow written and oral instructions.
3.    Ability to conform to scheduling demands which may include
      weekends, emergency call-in and overtime.
4.    Ability to learn the geography of Douglas County,
      Nebraska.
5.    Ability to lift objects weighing up to 100 pounds.
6.    Considerable knowledge of the operation, maintenance and use
      of tandem and single axle trucks and related equipment.
7.    Physical strength and agility necessary to perform manual labor
      out-of-doors in varying weather conditions.
8.    Knowledge of traffic laws and regulations governing
      equipment operations.
9.    Considerable knowledge of the occupational hazards involved
      and safety precautions necessary for the proper operation of
      single and tandem axle trucks and other equipment.




                                  -6-
       Given Dropinski's limitations, he is unable to perform several of the above-
mentioned functions without accommodation including, for example, any semi-skilled
and unskilled labor tasks involving lifting over fifty pounds, and frequent twisting,
bending or squatting. Many of the functions included in the written job description
inherently include the possibility of physical exertion that exceeds Dropinski's
limitations.

       In addition to the written job description, it is Douglas County's judgment that
all AEO II's be able to perform general labor functions such as using a pick to pry
open sewer covers, operating a jackhammer, being able to lift 100 pounds, and
moving tree limbs and pieces of concrete, to name a few. In response, Dropinski says
the County focuses on tasks that an AEO II almost never has to perform and that, in
fact, Dropinski has never performed some of those functions during his five years of
employment with Douglas County. The fact remains, though, that the potential for
these functions exist in the AEO II position and that it is difficult for the County to
describe with precision exactly what an AEO II will encounter while out working on
the rural roads in Douglas County. For example, an AEO II may be required on any
given day to move tree branches, adjust tailgates, move culverts, maneuver snow
plows, haul and dump dirt or rock from one job site to another, and mount a sander
on a truck. Each of these functions entails potential bending, twisting, squatting, and
lifting over fifty pounds. Dropinski's specific personal experience is of no
consequence in the essential functions equation. Instead, it is the written job
description, the employer's judgment, and the experience and expectations of all AEO
II's generally which establish the essential functions of the job. See Heaser, 247 F.3d
at 831.

      We find that the essential functions of an AEO II employee include those
general labor functions described in the job description and those articulated by
Douglas County and that it is reasonable to expect any AEO II employee to perform
those general functions. We note that even though there may not be a significant

                                         -7-
amount of time on this job performing one or more of these tasks routinely, id.
(recognizing that the amount of time spent on the job performing the function may
be evidence of its essentiality), the consequence of not requiring Dropinski to perform
these functions demonstrates that they are, indeed, essential. Id. Further, under our
review of the record, the current work experience of the other AEO II's demonstrates
that these employees must have the ability to perform the above-mentioned tasks.
Under these facts, prior to considering any accommodation that may be available to
Dropinski, it is apparent that he is unable to perform the essential functions of the
AEO II position given the bending, twisting, squatting, and lifting restrictions
proscribed by his doctor.

       Articulating the essential functions of an AEO II is not the end of our inquiry.
We next turn to whether Dropinski has made a facial showing that a reasonable
accommodation would enable him to perform his essential job functions. Id. It is
Dropinski's position that the accommodations he seeks would not unduly burden the
County. Although not set forth by Dropinski directly, these accommodations seem to
include taking short breaks each hour while driving the trucks, receiving assistance
with lifting more than fifty pounds when the occasion arises, and alternating crew
responsibilities when use of the striping machine is required so that Dropinski could
drive either the front of the striping machine or the follow-up truck during the
process. At one time, Dropinski also requested that Douglas County limit his hours
to forty hours per week. Douglas County, on the other hand, argues that "[i]t would
be unduly burdensome . . . and a safety risk, to schedule Dropinski on any AEO II
assignment knowing that Dropinski's medical limitations will not permit him to
handle what can be encountered while driving a truck on a rural Douglas County
road." The County notes, for example, that an AEO II does not always work as a
member of a team and that Dropinski would certainly be unable to perform certain
functions while out on a job alone. Further, the County points out that even though
some of the functions they deem essential are not performed on a regular basis, an



                                         -8-
AEO II must possess the physical strength and agility necessary to perform these
functions and that any accommodation would result in job restructuring.

       "While job restructuring is a possible accommodation under the ADA, this
court has held that an employer need not reallocate or eliminate the essential
functions of a job to accommodate a disabled employee." Fjellestad v. Pizza Hut of
America, Inc., 188 F.3d 944, 950 (8th Cir. 1999). Douglas County is not required to
reassign existing workers to assist Dropinski in his essential duties, id., and it is clear
any accommodation would result in just that. Even if Douglas County could routinely
assign Dropinski to the back of the striper truck and allow him to take frequent breaks
while driving the trucks, for example, these are only a few of many functions required
of an AEO II. It would be unduly burdensome on Douglas County to make the
necessary bending, twisting, squatting, and lifting accommodations Dropinski would
require as an AEO II. Under this standard, we agree with the district court that no
reasonable jury could find that Dropinski was a qualified individual under the ADA
because of his inability to perform the essential functions of the job with or without
accommodation.

       To the extent Dropinski claims that Douglas County failed to engage in an
interactive process to determine reasonable accommodation, see id. at 950-954, we
conclude that Dropinski failed to create a genuine question of fact on this issue.
Douglas County knew of Dropinski's limitations and, in response, indicated that
because Dropinski could not perform the job of an AEO II under those restrictions,
and because it was unable to accommodate him without undue burden, it would allow
him to take a leave of absence until such time as he was able to return to work and
perform the essential functions of the position without restrictions. Fjellestad's
discussion of the interactive process required under the ADA is inapposite under
these facts. In Fjellestad, the plaintiff made a facial showing and created a genuine
issue of material fact as to whether Pizza Hut could have reassigned her to a different
position as an accommodation. The issue was whether this accommodation was

                                           -9-
reasonable and Pizza Hut offered no evidence to suggest that Fjellestad was unable
to perform the requested position. Id. at 951. In the instant case, we have already
determined as a matter of law that the accommodations noted by Dropinski would
place an undue burden on Douglas County. Thus any discussion concerning the
interactive process under these facts is superfluous.

III.     CONCLUSION

         For the reasons set forth in this opinion, we affirm the order of the district
court.

         A true copy.

               Attest:

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




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