                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-1609
                                   ___________

Murray Rehrs,                            *
                                         *
             Appellant,                  *
                                         *
      v.                                 *   Appeal from the United States
                                         *   District Court for the
The Iams Company;                        *   District of Nebraska.
Procter1 and Gamble, Inc.,               *
                                         *
          Appellees.                     *
____________________                     *
                                         *
Equal Employment                         *
Opportunity Commission,                  *
                                         *
             Amicus on Behalf of         *
             Appellant,                  *
                                         *
Equal Employment                         *
Advisory Council,                        *
                                         *



      1
        We note the parties spell the name of the appellee parent corporation as both
“Procter” and “Proctor.” Our research shows Procter and Gamble, an American
business partnership, was founded in 1937 by William Procter, a candlemaker, and
James Gamble, a soapmaker. See Procter and Gamble’s history available at
http://www.pg.com/company/who_we_are/ourhistory.jhtml. We have not found
anything suggesting the company changed the business name spelling from co-
founder William Procter’s name; thus, we choose to use Mr. Procter’s spelling of his
last name in our caption.
             Amicus of Behalf of          *
             Appellees.                   *
                                      __________

                               Submitted: November 17, 2006
                                  Filed: May 15, 2007
                                   ___________

Before RILEY, HANSEN, and SMITH, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

      Murray Rehrs (Rehrs) appeals the district court’s2 entry of summary judgment
in favor of Procter and Gamble, Inc. (P&G) on Rehrs’s claim of disability
discrimination under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.
§§ 12101-12213, and the Nebraska Fair Employment Practices Act (NFEPA), Neb.
Rev. Stat. §§ 48-1101 to 48-1126. Finding no error, we affirm.

I.     BACKGROUND
       Rehrs, who suffers from Type I diabetes, worked as a warehouse technician for
the Iams Company (Iams) in Aurora, Nebraska, from 1997 until 2003. Iams operated
the facility on a 24-hour basis using a straight-shift schedule, i.e., three daily shifts.
From 1997 until 1999, Rehrs worked a fixed schedule from 4 p.m. to midnight.

       In August 1999, P&G acquired Iams, and in January 2000, P&G implemented
a rotating-shift schedule for all warehouse technicians. The rotating-shift schedule
consisted of two daily twelve hour shifts, one from 6:00 a.m. to 6:00 p.m. and the
other from 6:00 p.m. to 6:00 a.m. Employees on this schedule worked two days, were



      2
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.

                                           -2-
off two days, and worked alternating weekends. Every two weeks the first and second
shift workers rotated.

       Rehrs worked the rotating shift from January 2000 to February 2002 when he
suffered a heart attack. Rehrs underwent bypass surgery and had a defibrillator and
pacemaker implanted. Due to his medical condition, and at Rehrs’s request, P&G
placed Rehrs on short-term disability leave.

      Rehrs returned to work by early August 2003. However, in September 2003,
Rehrs’s doctor submitted a letter to P&G, requesting Rehrs be placed on a fixed
daytime schedule because his diabetes had become difficult to control. Rehrs’s doctor
believed a routine or fixed schedule would enhance the efforts to control Rehrs’s
blood sugar level. Rehrs was granted this accommodation and worked a straight
eight-hour shift for sixty days. When P&G learned Rehrs’s doctor intended for the
requested accommodation to be permanent, P&G informed Rehrs that his
accommodation would not continue because shift rotation was an essential part of his
job.

       As Rehrs’s temporary accommodation was about to end, P&G encouraged
Rehrs to apply for a straight shift sanitation position at the facility that would last six
to nine months. Rehrs declined, indicating he did not want to clean toilets. Rehrs
applied for, and was granted, temporary partial disability leave. While Rehrs was on
partial disability leave, P&G sent him notices of other vacant fixed schedule day-shift
jobs. Rehrs applied for two of these positions. He was denied one position due to his
lack of experience, and he withdrew his application from the other citing a lack of
interest. Rehrs remained on partial disability until February 2005, when his doctors
declared Rehrs totally incapable of working, and Rehrs was granted total disability
leave and benefits. In March 2005, P&G outsourced the operation of the Aurora
facility to Excel, which operates the facility using a straight-shift schedule.



                                           -3-
       Rehrs filed a lawsuit against P&G claiming discrimination under the ADA and
NFEPA when P&G refused to grant his requested accommodation to work a straight
shift schedule. Rehrs and P&G filed cross-motions for summary judgment. In
granting P&G’s motion, the district court concluded, even assuming Rehrs’s diabetes
was a disability within the meaning of the ADA, Rehrs was not a qualified individual
under the ADA because Rehrs could not perform an essential function of the job,
specifically, shift rotation at the Aurora facility.

       Rehrs appeals,3 arguing the district court erred in finding shift rotation is an
essential function of his P&G warehouse technician job. Rehrs contends he was a
qualified individual under the ADA. The Equal Employment Opportunity
Commission (EEOC) filed an amicus brief supporting Rehrs’s position and the Equal
Employment Advisory Council filed an amicus brief in support of P&G’s position.

II.    DISCUSSION
       We review a grant of a motion for summary judgment de novo. Pope v. ESA
Servs., Inc., 406 F.3d 1001, 1006 (8th Cir. 2005). Summary judgment is proper if,
after viewing the evidence and drawing all reasonable inferences in the light most
favorable to the nonmovant, no genuine issue of material fact exists and the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Pope, 406 F.3d at
1006.




      3
         Although Rehrs appeals the district court’s decision denying his motion for
summary judgment, that decision is not appealable because it is not a final order. See
Wright v. S. Ark. Reg. Health Ctr., Inc., 800 F.2d 199, 202 (8th Cir. 1986). However,
the district court’s decision to grant P&G’s motion for summary judgment results in
a final decision on the merits of the case over which we do have jurisdiction. Dowling
v. Davis, 19 F.3d 445, 446 n.2 (9th Cir. 1994); Stroehmann Bakeries, Inc. v. Local
776, Int’l Bhd. of Teamsters, 969 F.2d 1436, 1440 (3d Cir. 1992).

                                         -4-
        The ADA4 prohibits an employer from discriminating against an employee
“‘because of the disability of such individual.’” Wood v. Crown Redi-Mix, Inc., 339
F.3d 682, 686 (8th Cir. 2003) (quoting 42 U.S.C. § 12112(a)). In the absence of
evidence of direct discrimination, we analyze ADA claims under the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1044 (8th Cir. 2005). Under this
framework, a plaintiff bears the burden of establishing a prima facie case showing he
(1) had a disability within the meaning of the ADA; (2) was qualified, with or without
a reasonable accommodation, to perform the essential job functions of the position in
question; and (3) suffered an adverse employment action because of his disability.
Cravens v. Blue Cross & Blue Shield of Kan. City, 214 F.3d 1011, 1016 (8th Cir.
2000). The burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the employer’s actions. Kratzer, 398 F.3d at 1044-45.
If the employer articulates such a reason, the burden returns to the employee to show
the employer’s justification is a pretext. Id.

       An individual is qualified if he satisfies the requisite skill, experience,
education, and other job-related requirements, and “can perform the essential job
functions, with or without reasonable accommodation.” Cravens, 214 F.3d at 1016.
Essential functions are the fundamental job duties but not the marginal functions of
a particular job. Canny v. Dr Pepper/Seven-Up Bottling Group, 439 F.3d 894, 900
(8th Cir. 2006) (citing 29 C.F.R. § 1630.2(n)(1)). An employer has the burden of
showing a particular job function is an essential function of the job. Benson v. Nw.
Airlines, Inc., 62 F.3d 1108, 1113 (8th Cir. 1995). Evidence of whether a particular
function is essential includes, but is not limited to, (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

      4
       We analyze disability discrimination claims under NFEPA using the same
framework as claims brought under the ADA. See Orr v. Wal-Mart Stores, Inc., 297
F.3d 720, 723 (8th Cir. 2002).

                                          -5-
performing the function; (4) the consequences of not requiring the incumbent to
perform the function; (5) the terms of a collective bargaining agreement; (6) the work
experience of past incumbents in the job; and (7) the current work experience of
incumbents in similar jobs. 29 C.F.R. § 1630.2(n)(3); Heaser v. Toro Co., 247 F.3d
826, 831 (8th Cir. 2001).

       For summary judgment purposes, it is undisputed that, aside from his inability
to work a rotating shift schedule, Rehrs satisfactorily discharged the responsibilities
of his warehouse technician position. Thus, the only question is whether the rotating
shift implemented by P&G is an essential function of Rehr’s technician job.

       The record indicates P&G acquired the facility in August 1999 and
implemented shift rotation in January 2000. Rehrs knew of the new change, and he
worked the shift rotation schedule for more than two years until he suffered a heart-
attack. The record further shows all production-level technicians, like Rehrs, worked
the rotating shift schedule from its inception. There were no permanent exceptions
to this rule.

        P&G claims shift rotation was an essential function of the positions at the
Aurora facility during the relevant period because all P&G subsidiaries operated under
a High Performance Work System (HPWS), and shift rotation was a component of
this system. According to P&G, it had employed shift rotation since the 1960s in its
new production facilities, and in the 1980s began transitioning its existing production
facilities from traditional work systems to HPWS. P&G contends shift rotation
exposes employees to management, and to more resources, suppliers, and outside
customers with whom the company only interfaces during the day shift. P&G
believes this type of exposure provides all employees with additional opportunities for
training and development to further their career opportunities in the company and, in
turn, increases productivity. P&G asserts that not implementing shift rotation for all
warehouse technicians would harm the company from a production standpoint and
allowing an employee to work a straight shift would undermine the team concept.
                                           -6-
P&G further claims not enforcing shift rotation would adversely affect other
technicians, creating inequities, because these other technicians would be forced to
work the night shift exclusively or for longer periods and lose the benefits of shift
rotation, thereby decreasing their opportunities for promotion and development.5

       All of these factors weigh heavily in favor of finding shift rotation in the P&G
work culture is an essential function of working as a warehouse technician.
Commencing in January 2000, the facility did not have a straight day-shift technician
position–all technician positions were on rotating shifts. Allowing Rehrs to work a
straight day-shift schedule would have placed a heavier or unfavorable burden on
other technicians at the facility. Under the ADA, an accommodation that would cause
other employees to work harder, longer, or be deprived of opportunities is not
mandated. Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996)
(citing Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995), and 29 C.F.R.
§ 1630.2(p)(2)(v)).

       Based on the affidavits of two co-workers, Rehrs claims shift rotation is not an
essential function of his warehouse technician job. Rehrs argues the plant operated
on a straight-shift schedule before P&G’s acquisition of the plant and again after P&G
outsourced the facility to Excel, while all other functions of the facility, with the
exception of the shift rotation, remained the same. However, as the district court

      5
        Michael Lindsey, a global human resources director for P&G, and Kimberly
Schanaman, a former human resources director at the Aurora facility, provided
affidavits giving reasons for P&G’s implementation of a rotating shift at the facility.
Rehrs contends these affidavits are irrelevant and the district court should not have
admitted them. As P&G notes, Rehrs’s argument is actually an attempt to appeal the
district court’s ruling regarding these affidavits. We conclude the district court
properly considered these affidavits and did not abuse its discretion, because the
persons providing the affidavits clearly had personal knowledge of the reasons for
implementing the rotating shift and the legitimacy of those reasons was potentially at
issue. See Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1317-18 (8th
Cir. 1996); see also Fed. R. Civ. P. 56(e).
                                          -7-
noted, the fact that straight shifts were in effect at the Aurora facility before and after
P&G ran the facility has little relevance. P&G does not have to exercise the same
business judgment as other employers who may believe a straight shift is more
productive. It is not the province of the court to question the legitimate operation of
a production facility or determine what is the most productive or efficient shift
schedule for a facility. See Milton, 53 F.3d at 1124.

      Rehrs also contends the duties performed at the facility on the day shift were
the same duties performed on the night shift. He contends essential functions are
duties to be performed and a rotating shift is not performed. See 29 C.F.R.
§ 1630.2(n)(1). Thus, Rehrs asserts, shift rotation is not an essential part of the job.
However, the term essential function encompasses more than core job requirements;
indeed, it also may include scheduling flexibility. Laurin v. Providence Hosp., 150
F.3d 52, 59 n.6 (1st Cir. 1998).

       Rehrs also argues P&G allowed him a temporary exception from shift rotation,
which demonstrates shift rotation is not essential. However, “[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.” Id. at 60-61 (citing Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)).
 “To find otherwise would unacceptably punish employers from doing more than the
ADA requires, and might discourage such an undertaking on the part of employers.”
Phelps v. Optima Health, Inc., 251 F.3d 21, 26 (1st Cir. 2001) (citations omitted).

       Here, P&G required all employees in Rehrs’s position to rotate shifts. Such a
generally applicable requirement was not discriminatory. The ADA does not require
P&G to create a new straight shift position for Rehrs. Fjellestad v. Pizza Hut of Am.,
Inc., 188 F.3d 944, 950 (8th Cir. 1999) (holding an employer is not obligated to create
a new position, or to transform a temporary position into a permanent position as an
accommodation, or to eliminate or reallocate the essential functions of a job to
                                          -8-
accommodate its disabled employees); Malabarba v. Chi. Tribune Co., 149 F.3d 690,
696 (7th Cir. 1998) (“[T]he ADA does not require that employers transform temporary
work assignments into permanent positions.”); Dalton v. Subaru-Isuzu Auto., Inc., 141
F.3d 667, 680 (7th Cir. 1998) (stating the ADA does not require employers to create
full-time positions to accommodate disabled employees). “The [ADA] does not
require affirmative action in favor of individuals with disabilities. It merely prohibits
employment discrimination against qualified individuals with disabilities, no more and
no less.” Turco, 101 F.3d at 1094 (citing Daugherty v. City of El Paso, 56 F.3d 695,
700 (5th Cir. 1995)).

       In its amicus brief, the EEOC argues P&G should have reassigned Rehrs to a
vacant, comparable position as an alternative accommodation. Rehrs, however, did
not make this argument in the district court, and it is axiomatic a party generally may
not raise new arguments on appeal of an order granting summary judgment. Orr, 297
F.3d at 725. Thus, relying on this general rule, neither Rehrs nor amicus can make
this argument now.

       However, even assuming Rehrs could make this argument, it fails because the
record indicates P&G encouraged Rehrs to apply for other positions not requiring a
shift rotation, including a straight-shift sanitation job that would last six to nine
months. Rehrs declined. Instead, Rehrs applied for, and was granted, temporary
partial disability leave. While Rehrs was on partial disability leave, P&G again
encouraged Rehrs to apply for other positions by sending him notices of vacant fixed
schedule day-shift jobs. The EEOC contends the sanitation job and the notices sent
to Rehrs fall short of P&G’s duty to reassign. “[T]o prevail on an ADA claim where
the employer has offered 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.”
Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 99 (2d Cir. 1999). Here, Rehrs
has not provided evidence of a comparable open position for which he was qualified.
Instead, Rehrs wants P&G to create a straight-shift position for him. P&G did not
                                          -9-
have any other positions available that appealed to Rehrs, and P&G was not required
to eliminate an essential function of the warehouse technician job to accommodate its
disabled employee nor was P&G required to create a new straight-shift technician
position or similar position to accommodate Rehrs. Fjellestad, 188 F.3d at 950;
Malabarba, 149 F.3d at 701; Dalton, 141 F.3d at 680. As the EEOC notes, a disabled
individual is not entitled to an accommodation of his choice. Cravens, 214 F.3d at
1019.

       Viewing the facts in the light most favorable to Rehrs, we conclude shift
rotation was a non-discriminatory essential function of Rehrs’s technician job at P&G
and Rehrs’s restrictions to work only a straight shift rendered him unqualified to carry
out all the essential functions of his P&G technician job. Thus, summary judgment
was appropriate.

III.   CONCLUSION
       Based on the foregoing, we affirm the judgment of the district court.
                       ______________________________




                                         -10-
