Submitted: February 13, 2018
from United States District Court for the District of
Minnesota - Minneapolis
SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.
COLLOTON, CIRCUIT JUDGE
Sharbono sued his former employer, Northern States Power
Company, alleging that Northern failed to accommodate his
disability in violation of the Americans with Disabilities
Act ("ADA"), 42 U.S.C. § 12101 et
seq., and the Minnesota Human Rights Act, Minn. Stat.
§ 363A.01 et seq. The district
courtgranted summary judgment in favor of
Northern and dismissed the complaint. We affirm.
recite the facts in the light most favorable to Sharbono.
Sharbono was injured by an electric shock on a jobsite in
1991. He suffered damage to his left foot that required the
amputation of several toes and surgical reconstruction of the
foot. After rehabilitation, Sharbono returned to work as a
journeyman lineman with several different employers, although
he carried a medical restriction that he not wear steel-toed
boots. Sharbono started working for Northern in 1993 and
became a full-time journeyman lineman with Northern in 1997.
policy before 2008 required certain employees facing
hazardous work conditions to wear "safety-toe
footwear" that met the requirements of American National
Standards Institute standard Z-41. Northern, however, allowed
an exception based on a "statement from the
employee's doctor stating he/she cannot wear safety toe
footwear." Sharbono did not wear a steel-toed boot on
his left foot while working for Northern before 2008.
2008, however, Northern's policy no longer provided for
exceptions. The company's personal protective equipment
policy mandated that certain employees, including Sharbono,
wear safety footwear. The policy also required that the
footwear be marked with a stamp that showed compliance with
an international performance standard for safety footwear
known as ASTM F2413.
then required Sharbono to begin wearing steel-toed boots.
Through a disability consultant, Northern offered Sharbono
several suggestions to help mitigate the impact of the
steel-toed boots. Sharbono also obtained modified boots, but
the boots were not certified as compliant with the ASTM
standard, and Northern did not allow him to wear them.
Sharbono began to wear steel-toed boots that were stamped as
compliant, but started to experience discomfort in his left
foot. Over the next several years, Sharbono continued to
experience pain from wearing the steel-toed boots.
2011, Sharbono increasingly used his sick leave to cover
absences from work. In November of that year, Sharbono began
taking leave intermittently under the Family and Medical
Leave Act. Sharbono requested accommodation from Northern for
his foot impairment in an April 2012 meeting with a
supervisor. Sharbono submitted an additional doctor's
note that said it was medically necessary for Sharbono to
cease wearing the steel-toed boots, but he received no
response from the supervisor.
June 2012, Sharbono's union requested on his behalf that
the company waive the steel-toed boot requirement. In August,
Northern denied Sharbono's request for accommodation.
Northern followed up with a letter saying that the company
denied the request because it "cannot eliminate the
potential foot hazards that are present in the daily work of
a lineman." Northern explained that "granting this
waiver would be a violation of Company policy and a violation
of OSHA standard 1910.136."
October 2012, Northern offered to help Sharbono find another
job at the company during what the Northern called a
ninety-day job search. In this same meeting, Northern
informed Sharbono that he was eligible under the collective
bargaining agreement for "disability retirement
benefits," including pay at roughly fifty percent of his
base income and insurance benefits. Sharbono chose to retire
and receive the disability retirement benefits.
November, company representatives discussed Sharbono's
request to retire and receive the disability retirement
benefits. Northern arranged a medical appointment for
Sharbono, and the evaluating doctor opined that Sharbono
should be able to obtain a compliant, modified boot from an
orthotics company. When Northern's manager of disability
solutions contacted the orthotics company, the company first
told Northern that it could acquire the desired boots. On
further inquiry, however, a manufacturer told the orthotics
company that the boots could be stamped with the "ASTM
F2413-11 stamp" only if "someone from OSHA"
observed the boot-making process. The orthotics company then
informed Northern that while a custom boot ...