                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-1109
                        ___________________________

                                  Mark Minnihan

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

                    Mediacom Communications Corporation

                      lllllllllllllllllllll Defendant - Appellee
                                     ____________

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

                         Submitted: November 13, 2014
                             Filed: March 9, 2015
                                ____________

Before RILEY, Chief Judge, BEAM and GRUENDER, Circuit Judges.
                              ____________
BEAM, Circuit Judge.

      Mark Minnihan sued his former employer, Mediacom Communications
Corporation (Mediacom), alleging discrimination in violation of the Americans with
Disabilities Act Amendments Act of 2008 (ADAAA), 42 U.S.C. §§ 12101 et seq., and
the Iowa Civil Rights Act (ICRA), Iowa Code Chapter 216. The district court1

      1
        The Honorable James E. Gritzner, Chief Judge, United States District Court
for the Southern District of Iowa.
concluded Minnihan was not a qualified individual for the purposes of the ADAAA
and the ICRA, granted summary judgment in favor of Mediacom, and dismissed the
complaint. Minnihan appeals, and we affirm.

I.    BACKGROUND

      Minnihan worked for Mediacom, a communications company, and its
predecessor, for more than thirty years. From July 2001 until May 2011, Minnihan
was a technical operations supervisor (TOS) in Mediacom's Ames, Iowa, facility.

       As a TOS, Minnihan's primary responsibilities were to supervise, train, and
support the technicians installing cable and internet services in customers' homes, as
well as to respond to customers' service needs. As part of these responsibilities,
Minnihan was required to perform thirteen to fourteen Quality Control checks (QCs)
on each technician under his supervision each quarter.2 Mediacom wanted TOSs to
conduct QCs independently. The way Minnihan performed QCs before he was
restricted from driving, and the way all other TOSs conducted QCs, was to go to the
job site after a technician completed a job to inspect the technician's work and
determine if the technician was meeting Mediacom's standards. Minnihan's duties
also required him to supervise his technicians by doing "tech ride-alongs," where
Minnihan would observe technicians performing installation and service calls on the
job site.

      Another part of Minnihan's job was to respond to customer complaints, or
escalated trouble calls. When Mediacom received such a complaint, either a different
technician or the supervising TOS of the original technician would drive to the
customer's home, discuss the complaint, and fix the technical issue if it had not


      2
        From 2008 to 2011 Minnihan was in charge of approximately twelve or
thirteen technicians.

                                         -2-
already been resolved. Other duties of the TOS position included: being on call
twenty-four hours a day, and seven days a week to respond to cable outages;
conducting accident investigations when field technicians were involved in an
accident; performing unannounced safety checks on technicians; delivering
equipment to technicians in the field; or accompanying technicians taking Mediacom
vehicles in for repairs.

       To facilitate his job, Mediacom provided Minnihan, and all individuals in the
TOS position, a company vehicle, which they expected the TOSs to use while driving
to and from work, performing their responsibilities during the day, and responding
to outages after regular work hours. Mediacom and Minnihan dispute exactly how
much of Minnihan's time was spent working out in the field, but at a minium
Minnihan agrees fifty percent of his working hours were spent outside of the office.

       On December 1, 2009, Minnihan experienced a seizure at work, and as a result
was restricted from driving for six months. Iowa law prohibits an individual who has
experienced a seizure from driving "until that person has not had an episode of loss
of consciousness or loss of voluntary control for six months." Iowa Admin. Code r.
761-600.4(4). Mediacom accommodated Minnihan's December 2009 seizure and
subsequent restriction from driving by reallocating his driving responsibilities to
other employees. This included having Minnihan ride along with the technicians he
was supervising to get to job sites, sometimes having other employees drive Minnihan
to job sites, and reassigning some of Minnihan's responsibilities to other employees.
Minnihan testified that his assistant, Dave Hutchison, and another employee, Thor
Carlstrom, were already performing some of his duties that involved driving–mainly
QCs–before his driving restriction began. To complete the QCs not already being
covered, while his driving was restricted, Minnihan would perform QCs in the
technicians' presence during tech ride-alongs.




                                         -3-
        On March 30, 2010–before Minnihan's driving restriction from the December
2009 seizure had expired–Minnihan experienced another seizure at work, which
triggered a new six-month driving restriction. After Minnihan's March 2010 seizure,
Bobby Gadams, Senior Manager of Human Resources for Mediacom's west Iowa
region; Pamela Wellman, Senior Director of Human Resources; Judith Mills, Vice
President of Human Resources; and Steve Purcell, Regional Vice President for the
west Iowa region, discussed the situation and determined that Mediacom could no
longer accommodate Minnihan. On May 7, 2010, Gadams sent a letter to Minnihan
informing him that Mediacom could no longer offer him an accommodation for his
driving restriction because driving was an essential function of the TOS position. In
the letter, Mediacom gave Minnihan fourteen days to apply for positions at Mediacom
which did not require driving. Minnihan did not apply for other positions at
Mediacom during the fourteen-day time period and, on May 20, 2010, Pamela
Walker, Minnihan's attorney, sent Mediacom a letter on Minnihan's behalf threatening
legal action unless Minnihan was allowed to remain employed with Mediacom in the
TOS position.

       From May 25, 2010, to July 25, 2010, Mediacom, Minnihan, and his attorney,
corresponded regarding Minnihan's situation. Additionally, Gadams, Tim Adreon,
Minnihan's direct supervisor, and Rod Cundy, Adreon's supervisor, met with
Minnihan on July 20, 2010, to discuss comparable non-driving jobs Minnihan could
apply for. Minnihan also received a memo at this meeting, which provided
information about two available non-driving positions in the Des Moines office, and
stated that if Minnihan did not apply for a position, or did not accept a position once
offered, his employment with Mediacom would be terminated on July 26, 2010.
There were no open positions in the Ames facility at that time. Gadams encouraged
Minnihan to use company time to learn about the available positions, and expressed
his wish that Minnihan stay with Mediacom.




                                         -4-
       On July 25, 2010, Minnihan sent Gadams an email indicating that he did not
feel the two suggested positions were feasible because they were located in Des
Moines. Minnihan's email also recommended three alternatives. First, he suggested
Mediacom continue to accommodate him in the TOS position until October when his
driving restriction would be lifted. Second, Minnihan inquired about taking Family
Medical Leave (FMLA) until October. Finally, he suggested his current TOS
position be restructured to include only non-driving duties. After receiving this
email, Mediacom decided to continue to accommodate Minnihan until October, since
it was only a few months away and they wished to retain a long-term valued
employee. Additionally, Mediacom realized that if Minnihan did take FMLA leave
until October they would be even more burdened, since they would not be able to fill
his position during the interim period. On October 4, 2010, Minnihan's doctor
cleared him to drive, and Minnihan resumed all his regular duties as a TOS.

       On April 5, 2011, Minnihan experienced a third seizure at work, and was again
restricted from driving for six months. Following Minnihan's April 2011 seizure,
Mediacom decided to transfer Minnihan to the Des Moines office as a Network
Operations Center (NOC) Operator, a non-driving position with the same pay and
benefits as the TOS position. After this offer was communicated to Minnihan,
Minnihan's attorney sent a letter to Mediacom stating that a transfer to a position in
Des Moines was not a reasonable accommodation because Minnihan's driving
restriction made him unable to commute to work in Des Moines. Mediacom
completed the paperwork to transfer Minnihan to the NOC position in Des Moines
on April 14, 2011.

       From April 15, 2011, to May 16, 2011, Mediacom gave Minnihan time to
decide if he would accept the transfer to Des Moines and arrange transportation, or
to submit paperwork to take FMLA leave. On April 26, 2011, Minnihan did not
report to work for the NOC position in Des Moines. Later that same day, Wellman
sent Minnihan a letter detailing possible transportation options between Ames and

                                         -5-
Des Moines, including the name of another Mediacom employee who commuted from
Ames to Des Moines that Minnihan could ride with, and a list of websites that
contained information on rideshares and public transportation between Ames and Des
Moines. On April 27, 2011, Minnihan sent an email to Wellman asking whether there
were any jobs that he could do out of the Ames office, and alternatively suggesting
again that Mediacom restructure his TOS position in Ames to make it non-driving,
and hire a second TOS to handle the responsibilities that required driving. Wellman
replied to Minnihan on April 29, 2011, stating that there were no open non-driving
jobs in Ames with comparable pay to his TOS position. Wellman also responded that
creating a second TOS position would cause Mediacom undue hardship, and was not
a reasonable accommodation.

       On May 2, 2011, Mediacom sent Minnihan a letter stating that if he did not
report for work at his new NOC position in Des Moines, or submit paperwork for
FMLA leave by May 10, 2011, that his employment would be terminated. On May
16, 2011, a letter terminating Minnihan's employment was sent to Minnihan by
Mediacom. The letter noted that Minnihan had neither reported for work, called in
to report an absence, nor applied for medical leave, and that the reason for his
termination was his recurring absences without notice or approved leave.

       After Minnihan's employment with Mediacom was terminated, he filed a claim
with the Iowa Civil Rights Commission (ICRC) and the Equal Employment
Opportunity Commission (EEOC) alleging Mediacom discriminated against him in
violation of the ICRA and the ADAAA. After receiving his right to sue letters from
the ICRC and the EEOC, Minnihan filed suit against Mediacom in Iowa state court.
Mediacom timely removed the action to federal court. Mediacom filed a motion for
summary judgment, arguing that Minnihan was not a qualified individual for the
purposes of disability law because he could not perform the essential functions of his
job. The district court granted summary judgment in favor of Mediacom. Minnihan
appeals.

                                         -6-
II.    DISCUSSION

       A.     Standard of Review

       We review de novo the district court's grant of summary judgment, viewing the
record in the light most favorable to Minnihan, the non-moving party. Kallail v.
Alliant Energy Corporate Servs., Inc. 691 F.3d 925, 929 (8th Cir. 2012). We must
affirm the grant of summary judgment if there are no genuine issues of material fact,
and the movant, Mediacom, is entitled to judgment as a matter of law. Id. at 929-30.
Fed. R. Civ. P. 56(c). In resisting the motion for summary judgment, the nonmoving
party must produce "sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). "[E]vidence [that] is merely colorable, [ . . . ] or is not significantly probative"
cannot be the basis for a denial of summary judgment. Id. at 249-50 (internal
citations omitted).

       B.     ADAAA3 and ICRA Claims4



       3
        In 2008, Congress amended parts of the Americans with Disabilities Act
(ADA), largely to clarify what qualified as a disability, and the updated law is now
called the ADAAA. For the purposes of the instant appeal, the analysis remains the
same under the ADA or the ADAAA. Accordingly, these terms are used
interchangeably throughout this opinion.
       4
         Minnihan makes claims of disability discrimination under both the ADAAA
and the ICRA. In the past, disability claims under the ICRA have been analyzed in
accord with the ADA. Kallail, 691 F.3d at 930. The district court and both parties
operated under the assumption that, with respect to Minnihan's case, the ICRA was
still in agreement with the ADAAA, since it is undisputed that Minnihan suffered
from a disability. Accordingly, we analyze Minnihan's ICRA claim in accord with
his ADAAA claim, but we otherwise make no legal or factual determinations about
the ICRA's relation to the ADAAA.

                                            -7-
       To establish a prima facie case of discrimination under the ADAAA, a plaintiff
must show that (1) he is a disabled person within the meaning of the ADAAA; (2) he
was qualified to perform the essential functions of the job, with or without a
reasonable accommodation; and (3) he suffered an adverse employment action
because of his disability. E.E.O.C. v. Wal-Mart Stores, Inc., 477 F.3d 561, 568 (8th
Cir. 2007). In order to be a qualified individual for the purposes of the ADAAA, the
plaintiff must "(1) possess the requisite skill, education, experience, and training for
[the] position, and (2) be able to perform the essential job functions, with or without
reasonable accommodation." Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707,
712 (8th Cir. 2003) (quotation omitted). Additionally, the inquiry of whether an
employee is a qualified individual is not limited to the employee's existing job, but
instead, under certain circumstances, may also include other company jobs that the
disabled employee desires. Cravens v. Blue Cross and Blue Shield of Kansas City,
214 F.3d 1011, 1017 (8th Cir. 2000). Mediacom argues that Minnihan was not a
qualified individual because he was not able to perform the essential functions of his
job, with or without a reasonable accommodation. Minnihan asserts that the district
court erred in concluding that driving was an essential function of the TOS position.
He contends that he was able to perform the essential functions of his position with
a reasonable accommodation.

      Essential functions are "the fundamental job duties of the employment position
the individual with a disability holds or desires." 29 C.F.R. § 1630.2(n)(1). To
determine whether a job function is essential, we consider factors from the ADA
implementing regulations, including:

      (i) [t]he employer's judgment as to which functions are essential; (ii)
      [w]ritten job descriptions prepared before advertising or interviewing
      applicants for the job; (iii) [t]he amount of time spent on the job
      performing the function; (iv) [t]he consequences of not requiring the
      incumbent to perform the function; . . . [and] (vii) [t]he current work
      experience of incumbents in similar jobs.

                                          -8-
Kallail, 691 F.3d at 930 (first, second, third, fourth and sixth alterations in original).
Although Minnihan makes a showing of contesting each of the above listed factors,
he fails to produce sufficient evidence that is more than merely colorable or that is
significantly probative enough to raise a genuine issue of material fact. The only
factor Minnihan arguably comes close to genuinely contesting is the fourth, the
consequences of not performing the function.

       During the time Minnihan was legally restricted from driving, Mediacom
accommodated Minnihan by allowing him to remain in the TOS position without
driving.5 The time period during which Mediacom accommodated Minnihan
illustrates the consequence of Minnihan not performing the function of driving in the
TOS position. The parties disagree about the effect Minnihan's accommodation had
on the company. Adreon and Hutchison testified that they and other employees
worked additional hours in order to complete Minnihan's driving-related duties.
Hutchinson also testified that he worked additional hours to make up for time spent
driving Minnihan to locations off-site. Minnihan does not dispute that other
employees had to put in extra time due to his driving restriction, but disagrees with
how much additional time they worked, or how often other employees drove him to
jobs off-site. However, Minnihan conceded in his affidavit, that during the period he
was restricted from driving, there were times when he would have to ask other
employees to perform tasks for him, or have other employees drive him to an off-site
location.

       Minnihan argues further that the mere fact Mediacom was able to accommodate
him is evidence that driving was not an essential function of the TOS position. He
relies on Kammueller v. Loomis, Fargo & Co., 383 F.3d 779 (8th Cir. 2004) for the


      5
       Aside from Minnihan, Mediacom had never previously exempted an
individual in the TOS position from driving for longer than a few weeks.

                                           -9-
proposition that Minnihan being able to "function effectively" as a TOS during the
time he was restricted from driving supports a finding that driving was not in reality
an essential function of the TOS position. In Kammueller, the court reversed the trial
court's grant of summary judgment in favor of the employer after finding a genuine
issue of material fact existed as to the consequences of the employee not performing
a job function. The employee, a driver/guard for an armored truck company, had
been previously accommodated, due to a disability, and exempted from the
employer's requirement of being able to lift up to fifty pounds. Several months after
laying off fifty employees, the employer decided it could no longer accommodate the
employee's lifting restriction, and he was terminated. Id. at 783. Ultimately, the court
in Kammueller concluded that there was a material question of fact as to whether "the
consequences of excusing [the employee] from certain job functions were sufficiently
severe to consider those job functions essential." Id. at 787.

        However, Kammueller is distinguishable from the instant case. In Kammueller,
the employee was exempted from the lifting requirement for a period of six years.
Just months before he was terminated, the employer agreed to continue the
employee's accommodation, even after a significant reduction in force. Then, for
unexplained reasons, the employer changed its mind and decided to enforce the lifting
requirement against the employee, thus resulting in his termination. In the instant
case, Mediacom exempted Minnihan from driving off and on for a total period of ten
months. Unlike in Kammueller, Mediacom did not abruptly and inexplicably change
its mind about accommodating Minnihan; Mediacom informed Minnihan within the
first five months of his driving restriction that it would be unable to permanently
accommodate his driving restriction. More importantly, there was no evidence in
Kammueller that the employee's accommodation resulted in other employees having
to assume additional duties, or work additional hours. In Minnihan's case, even
though he disputes the amount of extra time other employees worked due to his
accommodation and how often it was necessary for him to work in the field, he
conceded that while he was restricted there were times when he would have to ask

                                         -10-
employees to perform tasks for him, or have an employee drive him to a job off-site.
Thus, Kammueller does not bear the weight Minnihan attempts to place on it.

       At bottom, for established public policy reasons, "[a]n employer does not
concede that a job function is non-essential simply by voluntarily assuming the
limited burden associated with a temporary accommodation, nor thereby acknowledge
that the burden associated with a permanent accommodation would not be unduly
onerous." Rehrs v. Iams Co., 486 F.3d 353, 358 (8th Cir. 2007) (alteration in
original) (quotation and internal quotation omitted). We have held that "to find
otherwise would unacceptably punish employers from doing more than the ADA
requires, and might discourage such an undertaking on the part of the employers."
Id. (quotation omitted). For these important reasons, Minnihan's arguments that
Mediacom was able to conduct business while accommodating him does not raise a
material question of fact on this issue.

       "The employer's judgment about an essential job function is considered highly
probative." Knutson v. Schwan's Home Serv., Inc., 711 F.3d 911, 914 (8th Cir. 2013)
(internal quotation omitted). But, the employer's judgment is not conclusive.
Kammueller, 383 F.3d at 786. In the instant case, it is undisputed that Mediacom
considered driving an essential function of the TOS position. The essential nature of
driving to the TOS job is further illustrated in the written job description for the
position. While the ability to drive is not specifically listed, the TOS job description
states "[v]alid driver's license with good driving required." J.A. at 471 (emphasis
added). Furthermore, many of the specific responsibilities set out in the job
description could only be performed on location in customers' homes, which supports
a finding that driving was an essential function of the job. See Dropinski v. Douglas
Cnty, Neb., 298 F.3d 704, 708-09 (8th Cir. 2002) (finding certain job functions were
essential, even though they were not listed in the written job description, because they
were inherently required to perform the written job functions).



                                         -11-
       We have held that a task may be an essential function even if the employee
performs it for only a few minutes each week, and even if other employees are
available to perform the task for the disabled employee. See Summerville v. Trans
World Airlines, Inc., 219 F.3d 855, 858-59 (8th Cir. 2000). Neither party, nor the
district court, established with any specificity how much time Minnihan, or any TOS,
spent actually driving. While it is unclear how much time Minnihan spent driving in
the TOS position, it is clear from the record that the time Minnihan spent driving
facilitated his ability to be out in the field, which Minnihan agreed was where he
spent at least fifty percent of his working hours. Minnihan's allegation that the
instances in which he was required to leave the office to complete his responsibilities
were "rare" is of no consequence in our analysis, because it is the general experience
and expectations of all individuals in the TOS position, not Minnihan's personal
experience, which establishes the essential functions of the job. Dropinski, 298 F.3d
at 709. Given all these factors, we find that driving was an essential function of the
TOS position.

       Even with our finding that driving was an essential function of the TOS
position, Minnihan could still be considered a qualified individual for the purposes
of the ADAAA and the ICRA, if he made a facial showing that he was able to
complete the essential function of his job with or without an accommodation. Kallail,
691 F.3d at 932. Minnihan makes no such showing. Iowa law made it illegal for
Minnihan to drive, an essential function of his job, during the time of his restriction,
and no accommodation could change that. He contends that restructuring his TOS
position to only include non-driving duties would have been a reasonable
accommodation. Although restructuring is one of the possible accommodations under
the ADAAA, an employer "is not required to reallocate the essential functions of a
job." Dropinski, 298 F.3d at 707 (quotation omitted). Additionally, we have held
that "an accommodation that would cause other employees to work harder, longer, or
be deprived of opportunities is not mandated" under the ADA. Rehrs, 486 F.3d at
357. Minnihan conceded that during the time Mediacom accommodated him other

                                         -12-
employees had to perform tasks for him, or drive him to off-site locations. He also
conceded that other employees at times had to work additional hours as a result of his
accommodation.
       Thus, given that driving was an essential function of the TOS position, and that
Minnihan was unable to complete this function with a reasonable accommodation, we
find that Minnihan was not a qualified individual under the ADAAA and the ICRA.
Accordingly, Minnihan failed to present a prima facie case of disability
discrimination and Mediacom was entitled to judgment as a matter of law.6

      C.     Reasonable Accommodation and Mediacom's Engagement in the
             Interactive Process

     Lastly, Minnihan asserts that Mediacom failed to offer Minnihan a reasonable
accommodation or engage in the interactive process in good faith. We disagree.

       There is no per se liability under the ADA if an employer fails to engage in the
interactive process. Cravens, 214 F.3d at 1021. However, at the summary judgment
stage "the failure of an employer to engage in an interactive process to determine
whether reasonable accommodations are possible is prima facie evidence that the
employer may be acting in bad faith." Id. (quotation omitted). An employee with a
disability must show the following elements to establish his employer failed to
participate in the interactive process:

      (1) the employer knew about the employee's disability; (2) the employee
      requested accommodation or assistance for his or her disability; (3) the


      6
        Minnihan also argued that the district court erred in finding that he had not
suffered an adverse employment action when Mediacom decided to transfer Minnihan
to the non-driving NOC position in Des Moines. Since we have already determined
that Minnihan failed to establish a prima facie case for disability discrimination, we
decline to address this issue.

                                         -13-
      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.

Id. It is not disputed that Mediacom knew about Minnihan's disability, and that
Minnihan requested assistance for his disability. Minnihan argues that Mediacom
failed to participate in an interactive process because it did not determine how to
retain him in the TOS position. However, "a disabled individual is not entitled to an
accommodation of his choice." Rehrs, 486 F.3d at 359. As discussed above,
Mediacom was not required to restructure the TOS job to accommodate Minnihan,
because it would have required Mediacom to reallocate essential functions of the job.
Viewing the evidence in the light most favorable to Minnihan, the record is clear that
Mediacom made a good faith effort to assist Minnihan in finding a reasonable
accommodation. Several members of Mediacom's Human Resources department, as
well as Minnihan's supervisors, spoke with him over a period of months regarding
possible accommodations. In addition to responding to his inquires about the
availability of other positions in the Ames office and the possibility of restructuring
his TOS position, Mediacom provided Minnihan with information about other jobs
within the company, as well as giving him time on the job to apply for other positions.
This evidence shows that Mediacom did engage in an interactive process with
Minnihan to find an accommodation.

       In fact, not only did Mediacom engage in an interactive process, the record
shows Mediacom offered Minnihan a reasonable accommodation, which he declined
to accept. We have found that in certain situations, reassignment to a vacant position
can be a reasonable accommodation, where the employee can perform the essential
functions of the new position. Cravens, 214 F.3d at 1017-20. Reassignment is not
required of employers in every instance, however, and is "an accommodation of last
resort" when the employee cannot be accommodated in his existing position. Id. at
1019. In the case of a reassignment, the employer is not required to create a new


                                         -14-
position or move other employees from their jobs in order to open up a position. Id.
Rather, reassignment to another position is a required accommodation only if there
is a vacant position for which the employee is otherwise qualified. Id.

       Because Minnihan could not drive–an essential function of the TOS
position–with or without a reasonable accommodation, Mediacom could not, and was
not required, to accommodate him in the TOS position. Given this situation,
transferring Minnihan to a different position was the only reasonable accommodation
available. However, Minnihan declined to accept Mediacom's transfer to the NOC
position by failing to report for work, or request leave time, and as a result he was
terminated. In order for an employee to prevail on an ADA claim where the employer
has offered the employee reassignment as a reasonable accommodation, "the
employee must offer evidence showing both that the position offered was inferior to
[his] former job and that a comparable position for which the employee was qualified,
was open." Rehrs, 486 F.3d at 359 (alteration in original) (quotation omitted).
Minnihan provides no evidence that the NOC position was inferior to the TOS
position, and the record is clear that there were no comparable, non-driving positions
open in the Ames office during the time Minnihan and Mediacom were engaged in
the interactive process to find a reasonable accommodation. Thus, Minnihan has
failed to show that Mediacom did not offer him a reasonable accommodation.

III.   CONCLUSION

       For all the reasons set out above, we affirm.
                        ______________________________




                                        -15-
