IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

HENRY JAMES FOLSOM,

Appellant,

v.

MISSOURI STATE HIGHWAY 

PATROL and SARAH 

EBERHARD,

Respondents.

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WD82081

FILED: August 20, 2019

Appeal from the Circuit Court of Cole County

The Honorable Jon E. Beetem, Judge

Before Division Four: Karen King Mitchell, C.J., and

Alok Ahuja and Anthony Rex Gabbert, JJ.

Henry Folsom sued his former employer, the Missouri State Highway Patrol, 

and his Highway Patrol supervisor, Major Sarah Eberhard (collectively “the 

Highway Patrol”), in the Circuit Court of Cole County. Folsom claimed that the 

Highway Patrol discriminated against him on the basis of his disability (posttraumatic stress disorder) when it terminated his employment as a Trooper. 

Folsom alleged that the Highway Patrol’s actions violated the Missouri Human 

Rights Act, chapter 213, RSMo.

The circuit court granted summary judgment to the Highway Patrol. Folsom 

appeals. He contends that summary judgment was inappropriate because there 

was a genuine issue of material fact whether the Highway Patrol should have 

offered him an alternative position in which he was capable of working, as a 

reasonable accommodation for his disability. We conclude that Folsom failed to 
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present a genuine factual issue whether an alternative position was available which 

would have accommodated the highly restrictive conditions under which he was 

able to work. We accordingly affirm the circuit court’s grant of summary judgment 

to the Patrol.

Factual Background

Folsom was employed as a Trooper with the Highway Patrol starting in

January 1997. Folsom was diagnosed with post-traumatic stress disorder (“PTSD”) 

after he was involved in a work-related shooting in 2000. In September 2012, when 

Folsom had the rank of sergeant and was a criminal investigator with the Highway 

Patrol, he was involved in a second work-related shooting. This second shooting 

incident exacerbated his PTSD. Folsom did not return to work at the Patrol after 

the 2012 shooting. Once he used up his available leave time, Folsom’s employment 

with the Highway Patrol was terminated in December 2014.

Folsom testified that he asked for an accommodation for his PTSD in late 

2012 and in 2013, but was told by his supervisors that if he could not perform his 

duties as a Trooper, no other accommodation would be made for him.

Following the 2012 shooting, Folsom saw a series of mental health 

professionals, each of whom concluded that he was incapable of performing his 

former duties with the Highway Patrol. First, Folsom saw Dr. Steven Akeson, a 

clinical psychologist. On January 21, 2013, following his third session with Folsom, 

Dr. Akeson noted that “[a]t this time it is my opinion that [Folsom] is not yet ready 

to return to work.” Dr. Akeson did, however, note that “[a] graduated return to 

work related duties would be anticipated but more specific limitations would 

depend on progress.”

In December 2013, Dr. David Lutz, a clinical psychologist, conducted a fitness 

for duty evaluation on Folsom at the request of the Highway Patrol. During the 

examination, Dr. Lutz noted that Folsom,
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would have great difficulty returning to his job in a safe and effective 

manner. He had made it clear that he will not put himself in such a 

situation [where use of a firearm might be required] again. The fact 

that he has gone through two shooting incidents heightens his 

vulnerability for symptoms even further. If he were [to] return to his 

job, he likely would put himself and others at risk. The job description 

contains statements such as, “Ability to function effectively in highpressure and stressful situations.” [Folsom] would not be able to 

function effectively in such a situation, as his symptoms, including 

hypervigilance and hyperresponsiveness, are likely to be reactivated 

even more easily.

Dr. Lutz concluded that Folsom “is not psychologically capable of returning to his

job with the Missouri State Highway Patrol.” 

In June 2014, Folsom met with Dr. Wayne Stillings. According to Dr. 

Stillings’ report, Folsom told him that because of his experience in the two prior 

shooting incidents, “he will never work in law enforcement again. Because his 

PTSD gives him false signals of being under threat, he is fearful of pulling a gun 

and shooting someone when they are merely reaching into their back pocket for a 

wallet, etc.” 

Between October and December 2014, Dr. Edwin Wolfgram interviewed 

Folsom. In his report, Dr. Wolfgram indicated that Folsom would not be able: “to 

understand, remember, and carry out simple instructions”; “to make judgments that 

are commensurate with the functions of unskilled work – i.e., simple work related 

decisions”; “to respond appropriately to supervision, coworkers and usual work 

situations”; or “to deal with changes in a routine work setting.” 

In addition, in May 2015 Folsom was seen by Phillip Eldred, a certified 

rehabilitation counselor. After reviewing Folsom’s medical records, Eldred 

concluded that Folsom “has not been able to work for approximately one and onehalf years and as a practical matter he will not be able to return to competitive, 

gainful employment.” 
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Folsom testified that he was receiving disability benefits from the Social 

Security Administration, from the Veterans Administration, and from a private 

disability insurance policy. Folsom also received an award of an unspecified 

amount as a result of a worker’s compensation claim that he filed.

After his employment with the Highway Patrol was terminated in December 

2014, Folsom filed a complaint with the Missouri Human Rights Commission, 

alleging disability discrimination in violation of the Missouri Human Rights Act. 

After receiving a right to sue letter, Folsom filed his petition against the Patrol in 

the Circuit Court of Cole County.

During discovery, the Highway Patrol served an interrogatory on Folsom 

which asked him to “[s]tate each accommodation [he] maintain[s] would have 

permitted [him] to return to duty and fulfill the ordinary requirements of [his] 

employment.” Folsom responded by stating: “If I had been granted a position with 

limited social contact, as my treatment providers indicated, I could have possibly 

digressed [sic] my PTSD to a point where I could have returned to full duty.” 

During his deposition, Folsom was asked about the treatment plan referenced 

in this interrogatory response. Folsom testified that Dr. Akeson had a plan,

[w]here I would, like, come back to work for maybe four hours the first 

week, eight hours the next week and kind of gradually assimilate back 

into the work force. And a lot of it was – so like in the beginning I 

would have no social contact, no enforcement duties, no contact with 

citizens. Just basically showing up, being acclimatized to being back 

at work. And then it would kind of digress [sic] from there, more 

hours, maybe a little bit more social contact then eventually dealing 

with the public.

Although he was found to be unfit for duty as a Trooper, Folsom stated in his 

deposition that the Highway Patrol could have accommodated him “like they do for 

other people.” He stated in his deposition that he “[c]ould have answered the 

telephone[,] [c]ould have filed papers[,] [or] could have stuffed envelopes.” Folsom 

claimed the Highway Patrol had previously accommodated other Troopers who had 
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physical or mental health issues (including pregnancies, serious cancer diagnoses, 

or orthopedic injuries) by letting those employees perform clerical or other 

administrative work, so that they did not have to consume their sick leave until 

they were able to resume their duties as Troopers.

When asked for the jobs to which he requested a transfer, Folsom stated that 

he “didn’t say any specific jobs. I just said another job in Jefferson City. I knew 

they had all kinds of jobs there, but I didn’t specifically request a job.” When asked 

to clarify what he meant by “all kinds of jobs there,” Folsom stated “answer 

telephone, CQ duty at the academy. You know, there’s always something go –

somebody hurt up there working or doing something. I knew that they had 

something I could do up there probably.” 

After the close of discovery, the Highway Patrol moved for summary 

judgment, contending that the undisputed evidence established that, because of his 

PTSD, Folsom was unable to work for the Patrol even with a reasonable 

accommodation. The circuit court granted the motion. Folsom appeals.

Standard of Review

“This Court reviews a grant of summary judgment de novo.” Gall v. Steele, 

547 S.W.3d 564, 567 (Mo. 2018) (citing ITT Commercial Fin. Corp. v. Mid-Am. 

Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. 1993)). “Summary judgment shall 

be entered if there is no genuine issue as to any material fact and the moving party 

is entitled to judgment as a matter of law.” Wilmes v. Consumers Oil Co. of 

Maryville, 473 S.W.3d 705, 714 (Mo. App. W.D. 2015) (citation and internal 

quotation marks omitted); see Rule 74.04(c)(6).

A defending party can demonstrate entitlement to summary judgment 

by showing: (1) facts negating any of the claimant’s necessary 

elements; (2) the claimant, after an adequate period of discovery, has 

been unable, and will not be able, to produce evidence sufficient to 

allow the trier of fact to find the existence of any one of the claimant’s 

elements; or (3) there is no genuine dispute of the existence of facts 
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required to support the defending party’s properly pleaded affirmative 

defense.

Scottsdale Ins. Co. v. Addison Ins. Co., 448 S.W.3d 818, 826 (Mo. 2014) (citing ITT 

Commercial, 854 S.W.2d at 381). 

Analysis

Folsom argues that the circuit court erred in granting the Highway Patrol’s 

motion for summary judgment. He contends that genuine issues of material fact 

existed as to whether he could have maintained his employment if the Patrol had 

reasonably accommodated his PTSD by placing him in a non-Trooper position.

The Missouri Human Rights Act prohibits an employer from discharging or 

otherwise discriminating against an employee because of the employee’s disability. 

§ 213.055.1(1)(a), RSMo. “To establish a prima facie case under the [Missouri 

Human Rights Act] the plaintiff must show that: (1) he is legally disabled; (2) he 

was discharged or suffered an adverse employment action; and (3) the disability was 

a factor in his discharge or adverse employment action.” Baldridge v. Kansas City 

Pub. Sch., 552 S.W.3d 699, 710 (Mo. App. W.D. 2018) (citing Harvey v. Mo Dep’t of 

Corr., 379 S.W.3d 156, 160 (Mo. 2012)).1 The Act defines a disability as “a physical 

or mental impairment which substantially limits one or more of a person’s major 

life activities . . . which with or without reasonable accommodation does not 

interfere with performing the job . . . .” § 213.010(5), RSMo. “Reviewing courts 

have interpreted this statutory definition of disability as having two parts: 1) a 

person must have an impairment that limits major life activity; and 2) with or 

 

1 Under the interpretation of the Missouri Human Rights Act prevailing at the 

time of Folsom’s termination, “to establish a claim of employment discrimination an 

employee was required to establish that his or her membership in a protected class was a 

contributing factor in the employer’s decision to take adverse action against the employee.” 

Davis v. Walgreen Co., No. WD81341, 2019 WL 1768405, at *8 (Mo. App. W.D. Apr. 23, 

2019) (citation omitted). The “contributing factor” causation standard was abrogated by the 

General Assembly in 2017. Id. *8 n.3 (citing § 213.101.4, RSMo Cum. Supp. 2018). We 

have not applied the 2017 amendment retroactively to claims which arose before it took 

effect. Id. (citing Bram v. AT & T Mobility Servs., LLC, 564 S.W.3d 787, 795 (Mo. App. 

W.D. 2018)).
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without reasonable accommodation, that impairment must not interfere with 

performing the job . . . .” Wells v. Lester E. Cox Med. Ctrs., 379 S.W.3d 919, 924 (Mo.

App. S.D. 2012) (citations omitted). Unlike its counterpart federal statutes, the 

Missouri Human Rights Act “makes the question of whether the job can be 

performed with or without reasonable accommodation a part of the test to 

determine whether an employee is disabled.” Medley v. Valentine Radford 

Comm’ns., Inc., 173 S.W.3d 315, 320 (Mo. App. W.D. 2005).

“A ‘reasonable accommodation’ is an accommodation that does not impose 

undue financial and administrative burdens on the employer or require 

fundamental alterations in the nature of the program.” Wells, 379 S.W.3d at 924 

(citations and internal quotations omitted). An accommodation may include “job 

restructuring, part-time or modified work schedules, acquisition or modification of 

equipment or devices, the provision of readers or interpreters and other similar 

actions.” 8 CSR 60-3.060(G)(2); see also Devor v. Blue Cross & Blue Shield of 

Kansas City, 943 S.W.2d 662, 666 (Mo. App. W.D. 1997).

In its summary judgment motion, the Highway Patrol contended that Folsom 

was not “disabled” within the meaning of the Human Rights Act because the 

uncontroverted facts established that he was unable to perform his job duties, even 

with a reasonable accommodation. The evidence is undisputed that from the time 

of Folsom’s second work-related shooting incident in September 2012 until his 

termination in December 2014, he was incapable of performing his duties as a 

Highway Patrol Trooper. The summary judgment record indicates that Folsom told 

multiple mental health professionals that he did not believe he was capable of 

carrying a firearm, or of responding appropriately to the sort of stressful and 

confrontational situations to which a Trooper is required to respond. Based on 

Folsom’s statements and their own evaluations, the mental health professionals 

uniformly agreed that Folsom was unfit for duty as a Trooper. In his briefing to 
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this Court, Folsom concedes that as a result of the exacerbation of his PTSD 

following the 2012 shooting, “he was not able to perform his then current duties as 

an enforcement officer.”

Although he does not dispute that he was incapable of serving as a Trooper, 

Folsom argues that the Highway Patrol could have accommodated him by 

transferring him to another position within the Patrol, such as in a clerical, 

administrative, or building maintenance function.

Reasonable accommodation does not require an employer to find 

another job for an employee who is unable to perform the job he was 

doing, but an employer cannot deny an employee alternative 

employment opportunities reasonably available under the employer’s 

existing policies. A plaintiff must show not only that an alternative 

position was vacant, but that he was qualified for that position.

Snyder v. ICI Explosives USA, Inc., 938 S.W.2d 946, 949 (Mo. App. S.D. 1997) 

(citing Berkowski v. St. Louis Cnty. Bd. of Election Comm’rs, 854 S.W.2d 819, 826-

27 (Mo. App. E.D. 1993), in turn citing Umphries v. Jones, 804 S.W.2d 38, 41 (Mo. 

App. E.D. 1991)).

Folsom failed to present a genuine factual issue as to whether there was an 

available, vacant position to which he could have been transferred under the 

Highway Patrol’s existing policies. Folsom testified in his deposition that the 

Highway Patrol had an established practice of transferring Troopers with health 

issues to other positions (such as clerical or administrative positions) until the 

Troopers’ health issues resolved and they could return to service as Troopers, so 

that they “didn’t have to burn sick leave.” In his deposition, however, Folsom only 

identified the attributes of the type of position he was seeking (that it involve 

limited or no social contact), and the type of tasks he was capable of performing 

(such as clerical, administrative, or maintenance work). When he was specifically 

asked to identify the particular jobs to which he requested a transfer, Folsom stated 

that he “didn’t say any specific jobs. [He] just said another job in Jefferson City. 
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[He] knew they had all kinds of jobs there, but [he] didn’t specifically request a job.” 

When pressed, Folsom was unable to identify any particular, available position into 

which he could have been transferred, but instead testified that “I knew that they 

had something I could do up there probably.” Folsom failed to identify an available 

position simply by expressing his general belief that there was “probably” 

“something [he] could do” at the Highway Patrol’s Jefferson City headquarters. See 

Noel v. AT & T Corp., No. 4:12-CV-1673 CAS, 2014 WL 117606, at *13 (E.D. Mo. 

Jan. 13, 2014), aff’d, 774 F.3d 920 (8th Cir. 2014) (“Plaintiff cannot create a genuine 

issue of material fact . . . simply by arguing that his employer is a larger company 

and people have moved around before, so surely he could have transferred to 

another job. To create an issue of fact, plaintiff must proffer evidence that there 

was an available job for which he was qualified . . . .” (record citation omitted)).

In addition, Folsom failed to show that the Highway Patrol’s policy would 

have required an accommodation in his circumstances. All of the examples Folsom 

gave of employees being transferred to light-duty positions involved temporary

transfers to permit an employee to recover from a physical or mental health 

condition. In Folsom’s case, however, it appears that he would have required a 

permanent, or at least long-term, reassignment to a position which isolated him 

from some of the core functions of a Highway Patrol Trooper: carrying a firearm;

and responding to stressful, confrontational, and potentially dangerous situations. 

Folsom did not identify any prior example where a Trooper experiencing health 

problems was given the sort of long-term job re-assignment to which he claims he 

was entitled.

More importantly, Folsom testified that he would have been capable of 

returning to the Highway Patrol following the 2012 shooting in only an extremely 

limited capacity. Thus, he testified that Dr. Akeson had formulated a plan
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[w]here I would, like, come back to work for maybe four hours the first 

week, eight hours the next week and kind of gradually assimilate back 

into the work force. And a lot of it was – so like in the beginning I 

would have no social contact, no enforcement duties, no contact with 

citizens. Just basically showing up, being acclimatized to being back 

at work. And then it would kind of digress [sic] from there, more 

hours, maybe a little bit more social contact then eventually dealing 

with the public.

As Folsom’s counsel conceded at oral argument, Folsom did not identify any 

prior case in which an injured employee was given a light-duty assignment that was 

anything other than full-time. Thus, Folsom cited no precedent for the extremely 

limited hours, and extremely limited work, that he would have been able to perform 

for an indefinite period of time. Given Folsom’s own testimony as to the severe 

limitations on his ability to work for the Patrol in any capacity, he failed to 

demonstrate that there was a genuine factual dispute as to whether a “reasonable 

accommodation” would have allowed him to retain his employment with the 

Highway Patrol.2

The Highway Patrol showed that, on the undisputed facts, Folsom would be 

unable to prove that he was “disabled,” meaning that he had “a physical or mental 

impairment . . . which with or without reasonable accommodation does not interfere 

with performing the job . . . .” § 213.010(5), RSMo. The circuit court did not err in 

granting the Highway Patrol’s motion for summary judgment.

 

2 Folsom relies on Berger v. Emerson Climate Technologies, 508 S.W.3d 136 

(Mo. App. S.D. 2016). But in Berger, the Southern District held only that a petition should 

not have been dismissed for failure to state a claim where the plaintiff alleged that 

available positions existed which he was capable of performing, and that the employer 

denied him a reasonable accommodation by refusing to transfer him to one of those 

available positions. Id. at 145-46. Berger addressed only the sufficiency of a plaintiff’s 

petition, not the factual showing a plaintiff must make, after full discovery, to avoid a 

properly supported summary judgment motion.
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Conclusion

The judgment of the circuit court is affirmed.

_________________________________

Alok Ahuja, Judge

All concur