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Sharbono v. Northern States Power Co.

United States Court of Appeals, Eighth Circuit

September 6, 2018

James Sharbono, Plaintiff- Appellant,
Northern States Power Company, doing business as Xcel Energy, Inc., Defendant-Appellee.

          Submitted: February 13, 2018

          Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges. [*]


         James 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 court[1]granted summary judgment in favor of Northern and dismissed the complaint. We affirm.


         We 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.

         Northern's 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.

         As of 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.

         Northern 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.

         In 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.

         In late 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."

         In 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.

         In 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 ...

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