                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1584
                         ___________________________

                                   Roberta Kowitz,

                        lllllllllllllllllllll Plaintiff - Appellant,

                                            v.

               Trinity Health; Douglas Reinertson; Mark Waldera,

                     lllllllllllllllllllll Defendants - Appellees.
                                      ____________

                    Appeal from United States District Court
                   for the District of North Dakota - Bismarck
                                  ____________

                              Submitted: May 16, 2016
                               Filed: October 17, 2016
                                   ____________

Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
                              ____________


KELLY, Circuit Judge.

      Roberta Kowitz appeals the district court’s adverse grant of summary judgment
on her claims that her former employer, Trinity Health, and former supervisors,
Douglas Reinertson and Mark Waldera, violated her rights under the Americans with
Disabilities Act (ADA) and the North Dakota Human Rights Act. The district court
concluded that Kowitz failed to show she was capable of performing the essential
functions of her position, and that Trinity did not have a duty to reassign Kowitz to
an alternate position. Because we conclude that Kowitz produced evidence that she
could have performed the essential functions of her position with reasonable
accommodation, we reverse.

                                  I. Background

      Kowitz began working for Trinity Health in 2007 as a respiratory therapist in
the cardiopulmonary department. She later assumed additional duties as a lead
technician in the blood gas laboratory. Her direct supervisor was Reinertson, and
Reinertson’s direct supervisor was Waldera.

      Kowitz had cervical spinal stenosis, a degenerative disease of the spine. On
July 21, 2010, Kowitz requested leave under the Family and Medical Leave Act
(FMLA) to have corrective neck surgery. Trinity approved her request to take leave
from July 27, 2010 through September 10, 2010. On September 7, 2010, Kowitz’s
doctor determined she could not return to work until October 18, 2010. Kowitz
requested an extension of her leave time until October 19, 2010. Trinity granted this
request. After the extension, Kowitz had used all of the leave time available to her
under the FMLA.

       When she returned to work, Kowitz provided Trinity with a Return to Work
Form, in which her doctor outlined her physical restrictions. The form stated that up
until November 29, 2010, Kowitz would be restricted to working eight-hour shifts,
and lifting, carrying, pulling, or pushing no more than ten pounds, among other
restrictions. Kowitz also verbally informed Reinertson that she would be unable to
work twelve-hour shifts until approved to do so by her doctor. Trinity assigned
Kowitz to eight-hour shifts, rather than twelve-hour shifts, though Reinertson
informed her that Trinity would not be able to accommodate the eight-hour shifts
indefinitely.

                                         -2-
       On November 19, 2010, Reinertson posted a memorandum in the
cardiopulmonary department’s communication book directing department employees
to provide updated copies of their basic life support certifications by November 26,
2010. The memorandum stated, “If you are not up to date on your BLS you will need
to submit a letter indicating why you are not up to date and the date you are scheduled
to take the BLS class.” Several respiratory therapists, including Kowitz, did not have
up-to-date basic life support certifications.

       “Basic life support” refers to cardiopulmonary resuscitation, or CPR.
Renewing a basic life support certification required taking a written examination and
performing a physical demonstration of CPR. After Reinertson posted the
memorandum, Kowitz took and passed the written examination. On November 30,
2010, Kowitz submitted a letter to Reinertson informing him that she would be unable
to take the physical portion of the examination until cleared to do so by her doctor.
Kowitz copied Waldera on the letter, as well as Trinity’s human resources
department. The letter stated, in part,

      This is to inform you that I will not be able to do the physical part of
      BLS until I have clearance from Dr[.] Transfeldt. I have an appointment
      with him on December 2. I will inform you via fax hopefully that day.

      Thank you for understanding my condition. It has been very stressful
      for me these past months. I am trying my best but at the same time I
      want to protect the surgery I had on my neck. I do go home after a[n] 8
      hour shift and I have a lot of tightness in my neck and times when we
      are very busy, I have pain.

       On December 2, 2010, Kowitz’s doctor determined that she would need to
complete at least four additional months of physical therapy before she would be able
to complete the physical portion of the basic life support certification. Immediately
after the appointment, Kowitz left Reinertson a voicemail message relaying her
doctor’s instructions. On December 3, 2010, Reinertson and Waldera informed

                                         -3-
Kowitz that her employment was terminated because she was unable to perform basic
life support.

       Kowitz brought suit against Trinity, Reinertson, and Waldera, alleging, among
other things, that she was unlawfully terminated on the basis of her disability. The
district court granted summary judgment in favor of the defendants, concluding that
Kowitz was not qualified to perform the essential functions of either of her positions
because she was not certified to provide basic life support. The district court
additionally concluded that because Kowitz never requested a transfer to another
position within Trinity, Trinity was under no obligation to reassign her to a position
that did not require basic life support certification.

                                 II. Discussion

       The ADA and the North Dakota Human Rights Act prohibit employers from
discriminating against employees on the basis of disability. 42 U.S.C. § 12112(a);
N.D. Cent. Code § 14-02.4-03(1). Because North Dakota courts look to case law
interpreting the ADA for guidance in interpreting the state statute, see Schweigert v.
Provident Life Ins. Co., 503 N.W.2d 225, 227 (N.D. 1993), we will consider the
claims together.

       To establish a prima facie case of discrimination on the basis of a disability, a
plaintiff must show that she “(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) (quoting Duty v. Norton–Alcoa Proppants,
293 F.3d 481, 490 (8th Cir. 2002)). For an employee to be a qualified individual
under the ADA, she must “(1) possess the requisite skill, education, experience, and
training for h[er] position, and (2) be able to perform the essential job functions, with



                                          -4-
or without reasonable accommodation.” Id. at 712 (quoting Heaser v. Toro Co., 247
F.3d 826, 830 (8th Cir. 2001)).

       Trinity argues that Kowitz was not a qualified individual under the ADA,
because performing basic life support was an essential function of both of her
positions. Essential functions “are the fundamental duties of the job, but not its
marginal functions.” Kallail v. Alliant Energy Corp. Servs., Inc., 691 F.3d 925, 930
(8th Cir. 2012). In determining whether a job function is essential, we consider
several factors, including “what functions the employer thinks are essential, written
job descriptions, how much time an employee spends on the job performing the
function, the consequences of not having the employee perform the function, and
whether other current employees in similar jobs perform the function.” Scruggs v.
Pulaski Cty., 817 F.3d 1087, 1092 (8th Cir. 2016).

       The job description for Kowitz’s position as lead technician in the blood gas
laboratory states that basic life support certification is required. For the respiratory
therapist position, Kowitz produced one job description that states basic life support
certification is “preferred, but not required.” The defendants, on the other hand,
submitted other versions of the job description, which state that basic life support
certification is required, or would be required within 30 days of hiring. Additionally,
Reinertson and Waldera both testified that certification was necessary for respiratory
therapists to ensure the safety of their critically ill patients.

       There is some dispute as to how often respiratory therapists might be required
to perform chest compressions. Another respiratory therapist testified that she was
required to perform basic life support independently up to five times per year, and as
part of a team up to ten times per year. She testified that, depending on how many
employees were assisting in administering basic life support, respiratory therapists
could be required to perform chest compressions and airway management. Waldera,
on the other hand, testified that he was unaware of any respiratory therapist

                                          -5-
performing chest compressions during his twelve years at Trinity. Nonetheless,
Waldera testified that regardless of how frequently it was required, respiratory
therapists were expected to perform basic life support independently when necessary
to save a patient’s life. Finally, even though several respiratory therapists’
certifications had lapsed at the time Reinertson posted his memorandum, every
respiratory therapist except for Kowitz obtained an updated certification by the
November 26, 2010 deadline. Given this evidence, there was no genuine issue of
material fact as to whether the certification was an essential function of both of
Kowitz’s positions.

       The question, then, is whether Kowitz could have performed this essential
function with an accommodation, and if so, whether Trinity failed to reasonably
accommodate her. According to Kowitz, Trinity should have allowed her additional
time to complete her basic life support certification, or reassigned her to another
position that did not require the certification. The district court rejected this
argument, concluding that Kowitz produced no evidence that she ever requested an
accommodation for her inability to perform basic life support.

        When a disabled employee requests an accommodation for her disability, the
employer must engage in an interactive process with the employee to determine
whether a reasonable accommodation is possible. E.E.O.C. v. Convergys Customer
Mgmt. Grp., Inc., 491 F.3d 790, 795 (8th Cir. 2007). The employee is responsible for
initiating the process “by making [her] employer aware of the need for an
accommodation.” Id. The employee “must provide relevant details of [her] disability
and, if not obvious, the reason that [her] disability requires an accommodation” so
that the employer can identify and propose potential options, but she need not use
technical language to make the request or suggest what accommodation might be
appropriate. Id. This is in keeping with the logic of the interactive process, which
is intended to be “informal and flexible”—the employee is responsible for providing
relevant information about her condition and needs, and once aware of those needs

                                        -6-
the employer is responsible for considering how best to accommodate them. Kratzer
v. Rockwell Collins, Inc., 398 F.3d 1040, 1045 (8th Cir. 2005); see Convergys, 491
F.3d at 795.

       Kowitz has presented sufficient evidence to raise a genuine issue of material
fact as to whether she requested an accommodation. Upon being told that her basic
life support certification was due, Kowitz notified her supervisor in writing that she
was unable to complete the physical component of the certification until she had been
cleared to do so by her doctor. At this point, Trinity was already aware of Kowitz’s
disability based on her prior FMLA leave for neck surgery and the information
provided in her Return to Work Form. Kowitz advised her supervisor that she had
an appointment scheduled with her doctor in a few days, and would inform him of her
clearance that day. Kowitz also indicated that she was still experiencing neck pain,
and thanked her supervisor for understanding her condition. After her doctor’s
appointment, Kowitz called her supervisor and left a voicemail notifying him that she
required four months of physical therapy before she would be able to complete the
life support certification. The next day, Kowitz was terminated from her position at
Trinity, with no further discussion.

       Based on these facts, a reasonable jury could conclude that Kowitz had “[made
her] employer aware of the need for an accommodation.” Convergys, 491 F.3d at
795. Though Kowitz did not ask for a reasonable accommodation of her condition
in so many words, viewing the facts in the light most favorable to Kowitz, her
notification to her supervisor that she would not be able to obtain the required
certification until she had completed physical therapy implied that an accommodation
would be required until then. Though we have held that an employer’s duty to
accommodate an employee is not triggered until the employee clearly requests an
accommodation, in those cases the ostensible requests were significantly more
ambiguous. See E.E.O.C. v. Prod. Fabricators, Inc., 763 F.3d 963, 968 (8th Cir.
2014) (the employee said that he was “fine,” never requested an accommodation, and

                                         -7-
did not seek evaluation for his condition until after his termination); Ballard v. Rubin,
284 F.3d 957, 962 (8th Cir. 2002) (the employee specifically stated that he did not
want an accommodation, while also stating that it was “appropriate” for him to
consider his doctor’s recommendations); Mole v. Buckhorn Rubber Prods., Inc., 165
F.3d 1212, 1216 (8th Cir. 1999) (the employee never requested an accommodation,
but rather told her supervisor that she was “feeling fine” and had been approved to
return to work).

       By contrast, in this case there was evidence from which a jury could find that
Trinity should have understood—or did understand—Kowitz’s communications to
be a request for an accommodation. Trinity was aware of Kowitz’s specific
condition, as well as the general nature of the limitations it placed on her. Kowitz
referred to her surgery, prior leave, and ongoing pain in her written notification that
she would be unable to complete the life support certification without medical
clearance. Kowitz’s Return to Work Form, completed less than two months before
her termination, stated that she could not lift, carry, pull, or push more than ten
pounds. While the Return to Work Form did not explicitly say that Kowitz could not
complete the physical component of basic life support certification, there is nothing
in the record to show that she knew, at the time the form was completed, that she
would be required to recertify by a date certain and before she was physically able to
do so. Indeed, the evidence suggests that the certification requirement had not been
rigorously enforced; rather, Reinertson required an updated certification from
employees only after realizing that several therapists had expired certifications. The
record does show that Kowitz advised her supervisor of her inability to complete the
certification requirement on November 30, and again on December 2—several days
after the November 26 deadline for providing an up-to-date certification. But
Kowitz’s delay is not dispositive of whether she made the request, and it is for a jury
to decide how to reconcile that fact with the rest of the evidence.




                                          -8-
       An employee is required only to “provide[] the employer with enough
information that, under the circumstances, the employer can be fairly said to know of
both the disability and desire for an accommodation.” Ballard, 284 F.3d at 962
(quoting Taylor v. Phoenixville Sch. Dist., 174 F.3d 142 (3d Cir.), vacated on other
grounds, 184 F.3d 296 (3d Cir. 1999)). This determination necessarily accounts for
the employer’s knowledge of the disability and the employee’s prior communications
about the disability, and is not limited to the precise words spoken by the employee
at the time of the request. When Kowitz advised her supervisor that she would be
unable to complete the physical requirements of her basic life support certification
until she had done four months of physical therapy, she was not required to “formally
invoke the magic words ‘reasonable accommodation’” to transform that notification
into a request for accommodation. Id. (quoting Taylor, 174 F.3d at 158). Viewed in
context, Kowitz’s written notification that she would be unable to complete the basic
life support certification without medical clearance, and her statement that she
required four months of physical therapy before completing the certification, could
readily have been understood to constitute a request for a reasonable accommodation
of her condition.1

                                  III. Conclusion

     Because there remains a genuine issue of material fact as to whether Kowitz
made a request for an accommodation sufficient to trigger Trinity’s duty to engage


      1
        The dissent asserts that this conclusion collapses the distinction between the
requirement that the employer know of the employee’s disability, and the requirement
that the employee request a reasonable accommodation. But our holding is not so
broad: We conclude merely that a reasonable jury could find that Trinity understood
Kowitz’s communications to be a request for accommodation, and not simply an
additional notification of her disability.


                                         -9-
in the interactive process of identifying a reasonable accommodation, the judgment
of the district court is reversed and remanded for further proceedings.

COLLOTON, Circuit Judge, dissenting.

       The court’s opinion is significant doctrinally, because it collapses two elements
of a disability discrimination claim. The decision effectively eliminates what this
court consistently has called a “predicate requirement”—i.e., that an employee
seeking a reasonable accommodation from her employer must clearly request
accommodation before the employer has an obligation to engage in the “interactive
process” contemplated by the Americans with Disabilities Act. Because Roberta
Kowitz never requested an accommodation for the disability that made her unable to
perform an essential function of her job, I would affirm the judgment of the district
court.

       Kowitz could not perform basic life support, which was an essential function
of her job as a respiratory therapist and lead technician in the blood gas lab at Trinity
Health. Trinity required that all employees provide a basic life support certification
by November 26, 2010, and Kowitz failed to do so. After Kowitz informed her
supervisor on December 2 that she could not complete her certification until she had
completed at least four months of physical therapy, Trinity terminated her
employment.

        Kowitz now argues that Trinity failed to make a reasonable accommodation of
her disability. See 42 U.S.C. § 12112(b)(5)(A). Kowitz asserts that Trinity should
have given her a longer grace period within which to obtain her basic life support
certification or reassigned her to an open position that did not require performance
of life support.




                                          -10-
       An employee alleging that an employer failed to make a reasonable
accommodation must prove, among other things, two separate elements: (1) that the
employer knew about her disability, and (2) that she requested an accommodation or
assistance for her disability. Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899,
906 (8th Cir. 2015). A request for accommodation is a “predicate requirement” to
initiate the interactive process. EEOC v. Prod. Fabricators, Inc., 763 F.3d 963, 971
(8th Cir. 2014); Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1045 (8th Cir.
2005); Ballard v. Rubin, 284 F.3d 957, 960 (8th Cir. 2002); see also Walz v.
Ameriprise Fin., Inc., 779 F.3d 842, 847 (8th Cir. 2015). Quoting the EEOC’s
interpretive guidelines, we have explained: “Once a qualified individual with a
disability has requested provision of a reasonable accommodation, the employer
must make a reasonable effort to determine the appropriate accommodation.”
Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 951 (8th Cir. 1999) (emphasis
added) (quoting 29 C.F.R. § 1630, App. § 1630.9).

       This is not an onerous burden on the employee. There is no requirement to use
magic words like “reasonable accommodation,” but the employee’s notice must
“make it clear to the employer that the employee wants assistance for his or her
disability.” Id. at 952 n.5 (emphasis added); accord Ballard, 284 F.3d at 962
(explaining that notice to the employer “must make clear that the employee wants
assistance for his or her disability”) (emphasis added). We affirmed a summary
judgment in Product Fabricators because the evidence did “not indicate that [the
employee] made a specific request for an accommodation.” 763 F.3d at 971
(emphasis added). In the court’s favored precedent, EEOC v. Convergys Customer
Management Group, Inc., 491 F.3d 790 (8th Cir. 2007), the employee did not merely
notify his employer of an inability to work due to disability and then claim that the
employer should have inferred a request for assistance; he “testified at trial that he
requested an accommodation because of limitations created by his wheelchair, thus
meeting his initial burden.” Id. at 795. The plaintiff in Ballard generated an issue of



                                         -11-
fact on the request element by asking the employer to account for his doctor’s
recommendations of curtailing travel and to take his physical limitations into account
before requiring out-of-town travel. 284 F.3d at 962.

       It is undisputed that Kowitz never requested an accommodation for her
inability to perform basic life support. She merely informed supervisor Reinertson
that she was unable to attempt to obtain a basic life support certification until she had
completed four months of physical therapy. That notification of Kowitz’s disability
does not create a genuine issue of fact concerning whether Kowitz requested an
accommodation. As the district court explained, “Kowitz admits she never made a
request or even mentioned to Waldera, Reinertson, or the Trinity Health HR
Department she was interested in transferring to a vacant position within Trinity
Health.” R. Doc. 75, at 14. And “Kowitz never applied for any positions with Trinity
Health despite knowing job vacancies were posted on Trinity’s website which she
was familiar with and had access to.” Id.

        In rejecting the district court’s judgment, the court conflates the employer’s
knowledge of an employee’s disability with the requirement that an employee must
make a clear request for accommodation. Any employee who notifies an employer
that she cannot work because of a disability can be said in some sense to have made
her employer “aware of the need for an accommodation.” Ante, at 7. But we have
never said that merely notifying the employer of a disability is an “implied” request,
id., sufficient to trigger an employer’s duty to engage in the interactive process. We
have said precisely the opposite: an employee must make it clear that she wants
assistance or accommodation. Even where an employer previously has made
reasonable accommodation, an employee who wants additional assistance cannot
“expect the employer to read her mind and know she secretly wanted a particular
accommodation and then sue the employer for not providing it.” Mole v. Buckhorn
Rubber Prods., Inc., 165 F.3d 1212, 1218 (8th Cir. 1999) (internal quotation and



                                          -12-
brackets omitted). It is not the court’s place to impose a rule based on how a
beneficent employer would treat an employee who notifies the employer of a
disability, even if some employers might well take it upon themselves to initiate an
interactive process without a request from the employee.

        People should be entitled to clarity in the law. Employers and employees rely
on predictability to make efficient decisions and to avoid costly and burdensome
litigation. There is no practical difference between asserting that this record creates
a genuine issue of fact for trial, ante, at 9 n.1, and collapsing what heretofore have
been two separate elements of a disability discrimination claim. By eliminating the
requirement of a clear request for accommodation that is distinct from notice of
disability, the court generates regrettable uncertainty. I would affirm the judgment.
                           _________________________




                                         -13-
