1

The Honorable David R. Hansen stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on March 31,

2003. He has been succeeded by the Honorable James B. Loken.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 02-1256

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Kathy Heisler,

Appellant,

v.

Metropolitan Council,

Appellee.

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Appeal from the United States

District Court for the

District of Minnesota.

 [PUBLISHED]

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Submitted: October 10, 2002

 Filed: July 3, 2003 

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Before HANSEN,1

 Chief Judge, MAGILL and BYE, Circuit Judges. 

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HANSEN, Circuit Judge.

Kathy Heisler filed an employment discrimination case under the Americans

With Disabilities Act, see 42 U.S.C. §§ 12101-12213 (2000), and the Minnesota

Human Rights Act, see Minn. Stat. Ann. §§ 363.01-363.20 (West 1991 & Supp.

2002), alleging that her employer, the Metropolitan Council failed to accommodate

her disability and retaliated against her when she asked for a reasonable
2

accommodation. The district court granted summary judgment to Metropolitan

Council and Ms. Heisler appealed. We affirm the district court's grant of summary

judgment as to Ms. Heisler's disability claim but reverse and remand Ms. Heisler's

retaliation claim to the district court.

I.

Ms. Heisler began her employment with Metropolitan Council ("Met Council")

in 1988, working as a Fare Collection Supervisor. Met Council is a political

subdivision of the State of Minnesota that, among other things, oversees public

transportation in Minneapolis and St. Paul. Ms. Heisler's position required her to

work from 4:30 p.m. until 2:30 a.m., as her duties involved supervising vault pullers,

who removed fare boxes from city buses when they returned to the garage in the

evening. The bulk of the vault pulling occurred between 5:00 p.m. and 7:30 p.m. All

four of Met Council's Fare Collection Supervisors worked the same hours.

Ms. Heisler has suffered from some form of depression for over twenty years

and has been in therapy and on medication for much of that time. In February 1998,

she was diagnosed with "major depressive disorder, recurrent, without full interepisode of recovery, with seasonal pattern." (Appellant's App. at 117.) In March

1998, Heisler's medications were changed in an attempt to better manage her

depression. She was also diagnosed with dyssomnia and referred for a sleep disorder

evaluation at that time. (Id. at 115.) In June 1998, Heisler was prescribed Ritalin in

addition to her existing anti-depressant medications and agreed to resume using ten

thousand lux lights, which are bright lights Heisler had in her apartment that

simulated sunlight. She was also encouraged to spend more time outside of her

apartment in the sunlight and to resume an exercise regimen. (Id. at 114.) 

Heisler's depression worsened the following winter, and she was hospitalized

for six days in January 1999 after her suicidal ideations increased significantly. Met
3

Council allowed her to take medical leave under the Family Medical Leave Act.

Heisler's doctor released her to return to work for four hours per day on February 12.

Met Council accommodated the doctor's restrictions by allowing Heisler to work from

4:00 p.m. to 8:00 p.m., when the bulk of the vault pulling was completed, and allowed

Heisler to use sick leave and vacation leave to remain at full-time pay and benefits.

Heisler's physician released her to work full time beginning March 22 but

limited her to day-shift hours because working at night seemed to exacerbate her

depression. Her physician recommended continuing the part-time 4:00 p.m. to 8:00

p.m. shift until April 2 to give Met Council time to make the accommodation.

Heisler's supervisor, Scott Peterson, suggested that Heisler continue the part-time

schedule until April 30, with which Heisler agreed. Heisler continued that schedule

through June, as Peterson informed her that Met Council was unable to accommodate

her request for day-shift work because an essential function of a Fare Collection

Supervisor was supervising the vault puller operation that occurred only during the

evening and nighttime hours. Met Council provided Heisler with job listings and

encouraged her to apply for other open positions through the regular employee

selection process. Heisler applied for various day-shift positions, but was not hired

for any of them for various reasons. 

On June 10, Met Council received notice from Heisler's physician that Heisler

needed a one-week FMLA leave of absence beginning June 14, and that as of June

21, Heisler would be cleared to work only between 8:00 a.m. and 5:00 p.m., as she

was disabled from working evening or night shifts. Heisler did not return to work for

Met Council after the one-week leave.

On July 8, Met Council informed Heisler that she was being "disqualified"

from the position of Fare Collection Supervisor, as she was unable to work the

required hours. This effectively discharged Heisler from employment with Met

Council. Heisler appealed the discharge and requested a hearing pursuant to the
2

Heisler's complaint actually included two retaliation claims, one under the

ADA and one under the MHRA. The allegations of the two claims are identical and

we treat them as one claim for purposes of this opinion.

4

Minnesota Veterans Preference Act, as she had previously served in the military.

Following a hearing, the hearing officer determined that Met Council acted

reasonably in discharging Heisler for being "incompetent" as defined by the Veterans

Preference Act, because she was physically incapable of doing her job. Heisler filed

discrimination charges with the Equal Employment Opportunity Commission

("EEOC") and ultimately sued Met Council in federal court. The district court

granted Met Council's motion for summary judgment, from which Heisler now

appeals.

II.

Heisler's complaint alleged that Met Council refused to accommodate her and

retaliated against her for engaging in statutorily protected activity in violation of both

the Americans With Disabilities Act ("ADA") and the Minnesota Human Rights Act

("MHRA"). Both parties filed motions for summary judgment. The district court

granted summary judgment to Met Council, finding that Heisler did not suffer from

a disability within the meaning of the ADA or the MHRA. The district court noted

that Heisler "assert[ed] in passing that she was also retaliated against," Heisler v.

Metropolitan Council, No. 00-2749, 2001 WL 1690052, at *6 n.11 (D. Minn. Dec.

14, 2001), and granted summary judgment on the retaliation claim.2

 On appeal,

Heisler argues that the district court erred in finding she was not disabled and that the

district court erred in granting summary judgment on the retaliation claim because

Met Council did not raise the issue in its summary judgment motion. 

We review de novo a district court's grant of summary judgment, construing

the record in the light most favorable to the non-moving party. Mohr v. Dustrol, Inc.,
3

Minnesota courts facing disability claims under the MHRA apply the same

standards federal courts apply to ADA claims. See Somers v. City of Minneapolis,

245 F.3d 782, 788 (8th Cir. 2001). Although we refer only to the ADA, our analysis

applies to Heisler's claims under both the ADA and the MHRA.

5

306 F.3d 636, 639 (8th Cir. 2002). The moving party bears the burden of establishing

its entitlement to judgment as a matter of law and the absence of any issues of

material fact. Stone Motor Co. v. General Motors Corp., 293 F.3d 456, 465 (8th Cir.

2002). The burden is then shifted to the non-moving party, who may not rest on the

pleadings, but must provide specific facts showing that issues of material fact exist

for trial. Id.; see also Fed. R. Civ. P. 56(e). Summary judgment is appropriate when

"the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(c). 

A. Disability Under the ADA3

The ADA prohibits an employer from discriminating "against a qualified

individual with a disability because of the disability of such individual." 42 U.S.C.

§ 12112(a). "To establish a prima facie case of discrimination under the ADA,

[Heisler] must establish that (1) [s]he is disabled within the meaning of the ADA; (2)

[s]he is qualified to perform the essential functions of h[er] job with or without

reasonable accommodation; and (3) [s]he suffered an adverse employment action

under circumstances that give rise to an inference of unlawful discrimination based

on disability." Dropinski v. Douglas County, 298 F.3d 704, 706-07 (8th Cir. 2002).

The district court found that Heisler was not disabled within the meaning of the

ADA, which defines a disability as "(A) a physical or mental impairment that

substantially limits one or more of the major life activities of such individual; (B) a

record of such an impairment; or (C) being regarded as having such an impairment."
6

42 U.S.C. § 12102(2). This threshold inquiry requires an individualized analysis of

the effects of the claimed impairment on the individual's life activities. Sutton v.

United Airlines, Inc., 527 U.S. 471, 483 (1999); Mathieu v. Gopher News Co., 273

F.3d 769, 775 (8th Cir. 2001). What disables one person does not necessarily disable

another. Further, the Supreme Court has instructed that we analyze only those major

life activities which the plaintiff asserts are limited by the claimed impairment. See

Bragdon v. Abbott, 524 U.S. 624, 638 (1998) (limiting review to the question of

whether reproduction is a major life activity where that was the only issue raised and

discussed below). The parties do not dispute that major depressive disorder is a

mental impairment. The focus of this appeal is whether Heisler's major depressive

disorder substantially limits any of her major life activities.

Under the regulations that guide the interpretation of the ADA, to which we

have repeatedly looked for guidance, an impairment is substantially limiting if it

renders a person "(i) [u]nable to perform a major life activity that the average person

in the general population can perform; or (ii) [s]ignificantly restricted as to the

condition, manner or duration under which an individual can perform a particular

major life activity as compared to the condition, manner, or duration under which the

average person in the general population can perform that same major life activity."

29 C.F.R. § 1630.2(j)(1) (2003). See also Cooper v. Olin Corp., Winchester Div., 246

F.3d 1083, 1088 (8th Cir. 2001). The regulations counsel us to consider "(i) [t]he

nature and severity of the impairment; (ii) [t]he duration or expected duration of the

impairment; and (iii) [t]he permanent or long term impact, or the expected permanent

or long term impact of or resulting from the impairment," 29 C.F.R. § 1630.2(j)(2),

in determining whether an individual is substantially limited in a major life activity.

Heisler argues that the district court erred in assessing her credibility and

should have taken her testimony about the effects of her depression on various life

activities at face value. She further argues that evidence about her work ability was

irrelevant because she was not claiming that her depression substantially limited her
4

Heisler has repeatedly denied that her depression substantially limits her

ability to work, where her psychologist has released her to work 40-hour weeks, but

limited her to the hours between 6:00 a.m. and 5:00 p.m. And rightly so, as we have

repeatedly held that "[a]n employee is not substantially limited in the major life

activity of working by virtue of being limited to a forty-hour work week." Kellogg

v. Union Pacific R.R. Co., 233 F.3d 1083, 1087 (8th Cir. 2000). See also Taylor v.

Nimock's Oil Co., 214 F.3d 957, 960-61 (8th Cir. 2000); Berg v. Norand Corp., 169

F.3d 1140, 1145 (8th Cir.), cert. denied, 528 U.S. 872 (1999).

7

ability to work.4 Although a district court reviewing a summary judgment motion is

to assess the evidence in the light most favorable to the nonmoving party, that does

not mean that the district court must ignore other evidence. Even though Heisler is

not claiming that her depression substantially limits her ability to work, her work

activities are relevant in assessing the extent that her depression limits the condition,

manner, or duration of her ability to perform other life activities. Further, bald

assertions that one is limited in a major life activity are insufficient to withstand

summary judgment. See Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 616 (8th

Cir. 1997) (holding that district court did not err in discounting conclusory statements

in affidavits or deposition testimony in assessing whether claimant was substantially

limited in a major life activity). We turn then to the major life activities that Heisler

claims are substantially limited by her depression. 

Heisler alleges that her depression substantially limits her ability to sleep,

interact with others, concentrate, and care for herself. We assume for the purposes

of this opinion that each of these activities is a major life activity as contemplated by

the ADA. See Swanson v. Univ. of Cincinnati, 268 F.3d 307, 316 (6th Cir. 2001)

(sleeping); Moysis v. DTG Datanet, 278 F.3d 819, 825 (8th Cir. 2002) (approving

of the Seventh Circuit's treatment of interacting with others and concentrating as

activities that "feed into the major life activities of learning and working"); Cooper,

246 F.3d at 1088 (caring for oneself). We must decide whether Heisler's depression

substantially limited her ability to perform any of these activities. 
8

We agree with the district court that Heisler's assertions that she has difficulty

sleeping are too conclusory to meet her burden of coming forward with evidence that

her depression substantially limits her ability to sleep. Heisler's medical records

reflect that she had disturbed sleep, was diagnosed with sleep apnea, and was taking

medication to help her sleep. However, Heisler did not even mention sleeping as one

of the negative effects caused by her depression during either her deposition or her

Veterans Preference hearing. (Appellant's App. at 213, 353.) The record does not

reveal the severity of her sleep apnea or whether her sleeping has improved with

medication. Heisler has simply failed to establish that her depression, or any other

impairment, significantly restricted her ability to sleep as compared to the general

population. See Swanson, 268 F.3d at 316 (holding that depression did not

substantially limit ability to sleep where medical resident alleged that he slept less

than five hours per night and that the quality of his sleep improved "somewhat" with

medication); Pack v. Kmart Corp., 166 F.3d 1300, 1306 (10th Cir.) (holding that

"[w]hile the evidence showed Pack had episodes of sleep disruption and/or waking

without feeling rested during 1994 and January 1995, there is no indication that her

sleep problems were severe, long term, or had a permanent impact" although Pack

testified that she often got only two to three hours of sleep in a night), cert. denied,

528 U.S. 811 (1999); Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 644 (2d

Cir. 1998) (holding that plaintiff's use of medication as a sleep aid and his testimony

that he got a "tough night's sleep" did not establish that his back condition

substantially limited his ability to sleep compared to the general population), cert.

denied, 526 U.S. 1018 (1999).

Regardless of whether we treat interacting with others as a separate major life

activity or a subset of the broader activities of learning or working, Heisler has

similarly failed to provide sufficient evidence that her major depressive disorder has

substantially limited her ability to interact with others or caused her to experience

"high levels of hostility, social withdrawal, or failure to communicate when

necessary." McAlindin v. County of San Diego, 192 F.3d 1226, 1235 (9th Cir. 1999)
9

(internal quotations omitted), amended by 201 F.3d 1211 (9th Cir.), cert. denied, 530

U.S. 1243 (2000). She testified during her deposition that she had "feelings of great

sadness and isolating [her]self and not talking to anybody or calling anybody."

(Appellant's App. at 213.) However, she also testified that she was still able to

perform her job duties, which required her to supervise other employees. When asked

if she had a support network, Heisler testified that she "call[s] a couple of good

friends or [her] brother or even [her] friend's mom." (Id.) Further, Heisler's

psychologist, in informing Met Council why it was necessary for Heisler to work

during the day shift, stated that Heisler is isolated because she worked the night shift,

not because of her depression. She also stated that Heisler's "known support system

works during the day and is difficult to connect with when they are working at

opposite shifts." (Id. at 201.) Thus, Heisler was isolated because her support

network worked during a different shift than she did, not because of her depression.

Heisler has failed to meet her burden of establishing that her depression significantly

restricted her ability to interact with others as compared to the general population.

See Doyal v. Okla. Heart, Inc., 213 F.3d 492, 496 (10th Cir. 2000) (holding that

assertions that plaintiff stopped visiting with friends was insufficient to meet burden

in summary judgment, where employer introduced uncontroverted evidence that

employee interacted normally at work). 

Heisler next claims that her depression substantially limited her ability to

concentrate. Again, Heisler has failed to produce evidence that her depression

significantly restricts her ability to concentrate (or learn or work) as compared to the

general population. Heisler testified at her deposition that her depression affected her

ability to concentrate, causing her to take twice as much time to perform a task or

making it difficult to make a decision. (Appellant's App. at 215.) She testified during

the Veterans Preference hearing that the depression caused a "lack of concentration,"

(id. at 353), but did not elaborate on how her depression affected the "condition,

manner or duration" of her ability to concentrate. Further, she testified that she could

perform her job, including ensuring that money and data were collected, coordinating
10

maintenance staff to fix things, and ensuring that the employees she supervised

complied with policies and procedures (id. at 353-54), which no doubt required

concentration, and she received only favorable performance reviews. Heisler must

do more than assert that her depression makes it difficult to concentrate to survive

summary judgment. Her conclusory statements that she has difficulty concentrating,

coupled with her own testimony that she could perform her job, does not suffice to

establish that her major depressive disorder significantly restricted her ability to

concentrate–either in and of itself or as a subset of learning or working–as compared

to the general population.

Lastly, Heisler argues that her major depressive disorder substantially limits her

ability to take care of herself. Heisler testified during the Veterans Preference hearing

that "[w]ith depression it's just hard to perform manual tasks, everyday tasks like

taking the garbage out and sweeping the floor, daily hygiene" (id. at 353), and during

her deposition that "it is hard to get out of bed" (id. at 213). However, Heisler also

testified that she has suffered from depression for twenty years, yet has lived on her

own and maintained employment during that time. She has presented no evidence

that she has ever needed help in caring for herself. Her conclusory statements that it

is sometimes hard to get out of bed and that is difficult to maintain daily hygiene

simply do not provide sufficient evidence that her depression substantially limits her

ability to care for herself. See Cooper, 246 F.3d at 1088 (holding that plaintiff failed

to establish that depression substantially limited plaintiff's ability to care for herself

where she lived independently and successfully cared for her livestock and farm).

Heisler no doubt suffers from major depressive disorder that makes her life

difficult. However, she has failed to present evidence sufficient to establish that those

difficulties rise to the level of substantially limiting that is required to maintain a

claim under the ADA. See Cody v. Cigna Healthcare of St. Louis, Inc., 139 F.3d 595,

598 (8th Cir. 1998) ("While [plaintiff's] statements, viewed in the light most

favorable to her, demonstrate that her depression caused difficulties in her life, she
11

did not show it was such a substantial impairment as to amount to a disability under

the ADA.").

B. Record of Impairment

Heisler also claims that she is disabled under the ADA because she has a record

of a qualifying impairment. See 42 U.S.C. § 12102(2)(B). To have a record of an

impairment, an employee must "ha[ve] a history of . . . a mental or physical

impairment that substantially limits one or more major life activities." 29 C.F.R. §

1630.2(k). See also Taylor, 214 F.3d at 961. Heisler argues that her numerous

hospitalizations establish that she has a record of an impairment. First, "simply being

hospitalized [does not] establish[] a record of an impairment under the ADA."

Gutridge v. Clure, 153 F.3d 898, 901 (8th Cir. 1998), cert. denied, 526 U.S. 1113

(1999). Second, the record must be of an impairment that substantially limits a major

life activity. Being hospitalized on four occasions for short periods of time, taking

medications, and receiving shock therapy treatments do not in and of themselves

establish that Heisler's depression has ever substantially limited the major life

activities she has asserted in this litigation. Nor does having a history of depression

qualify Heisler as disabled. She has worked and lived independently throughout the

twenty years that she has suffered from depression and has provided no evidence that

any major life activities were substantially limited during that time. We do not mean

to minimize the effects of Ms. Heisler's major depressive disorder. However, she has

failed to establish that it qualifies her as disabled for purposes of the ADA. 

Because Heisler has failed to establish that she was disabled under the ADA,

Met Council had no obligation to make accommodations for her and we need not
5

This same reasoning does not apply to Heisler's retaliation claim. Although

Met Council had no obligation to accommodate Heisler because she was not disabled,

the ADA prohibits an employer from retaliating against an employee who seeks an

accommodation in good faith, even if it is subsequently determined that the employee

is not disabled under the Act, as discussed in subpart C infra.

12

address her claims that Met Council should have assigned her to a day-shift position

as a reasonable accommodation.5

C. Retaliation Claim

Heisler argues that the district court erred in dismissing her retaliation claim

because the court's dismissal was sua sponte as Met Council never raised the issue in

its summary judgment motion. In dismissing Heisler's allegations of retaliation, the

district court stated that she did not plead a retaliation claim in her complaint, make

separate arguments in her summary judgment briefs as to the elements of a retaliation

claim, or introduce evidence sufficient to allow a retaliation claim to go to a jury.

However, we agree with Heisler that the district court erred in stating that she did not

plead a claim of retaliation in her complaint. Counts III and IV of her complaint are

entitled "Retaliation/Minnesota Human Rights Act" and "Retaliation/Americans with

Disabilities Act" respectively. The complaint further alleges that Met Council 

retaliated against [her] for her accommodation request. [She] engaged

in statutorily protected activity for which she is entitled to protections

against reprisal from her employer. Termination of employment and

failure to hire her in other positions was [sic] an adverse action. The

timing of [her] requests to be placed in a different position and [Met

Council's] denials and termination of her show that these adverse actions

were causally connected to [her] protected activity. 

(Id. at 5, ¶20.) These statements in Heisler's complaint easily meet the requirements

for notice pleading of a retaliation claim. 
13

Met Council argues that even if Heisler stated a claim of retaliation, the district

court's grant of summary judgment on the claim was not sua sponte, because Met

Council moved for summary judgment on all of Heisler's claims. Even though Met

Council asked the court to "grant its motion in its entirety and put an end to this

lawsuit" in its Memorandum of Law in Support of Defendant's Motion for Summary

Judgment (R. Doc. 27 at 24), nowhere in any of the summary judgment pleadings did

Met Council discuss or even mention the retaliation claim. "[A] party seeking

summary judgment always bears the initial responsibility of informing the district

court of the basis for its motion, and identifying those portions of 'the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any,' which it believes demonstrate the absence of a genuine issue of

material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R.

Civ. P. 56(c)). Met Council's request that the court dismiss the lawsuit in its entirety,

without specifically mentioning or arguing the retaliation claim, was insufficient to

put the issue before the district court. 

We have repeatedly held that in the Eighth Circuit, a district court commits

reversible error when it grants summary judgment on an issue not raised or discussed

by the parties. See Am. Red Cross v. Cmty. Blood Ctr. of the Ozarks, 257 F.3d 859,

863 (8th Cir. 2001) (reversing the grant of summary judgment on three issues not

raised in the moving party's motion); Walker v. Mo. Dep't of Corr., 138 F.3d 740, 742

(8th Cir. 1998) (reversing summary judgment on ADA claim where district court

based its decision on plaintiff's failure to establish an adverse employment action and

the parties' summary judgment submissions discussed only the issue of whether

plaintiff was a qualified individual with a disability). It is fundamentally unfair to the

nonmoving party to require her to address issues not addressed by the moving party

in anticipation that the district court might rely on some unidentified issue to grant

the motion. See Williams v. City of St. Louis, 783 F.2d 114, 116 (8th Cir. 1986)

("[T]he District Court . . . should have provided plaintiffs with notice of its intention

to consider the . . . issue and with a meaningful opportunity to address that issue.").
6

These same elements are required to establish a retaliation claim under the

MHRA. See Minn. Stat. Ann. § 363.03 subdiv. 7; Thorn v. Amalgamated Transit

Union, 305 F.3d 826, 831 (8th Cir. 2002).

14

Met Council asserts that even if the retaliation claim was not properly raised

in its summary judgment motion, summary judgment is appropriate because the claim

is precluded as a matter of law if the district court is correct that Heisler is not a

qualified individual with a disability. Met Council's premise is correct–it would be

an exercise in futility and a waste of judicial resources to reverse a grant of summary

judgment on an issue not properly raised in the summary judgment motion if the

district court's findings on properly addressed issues foreclose the unraised issue. See

Interco Inc. v. Nat'l Sur. Corp., 900 F.2d 1264, 1269 (8th Cir. 1990) (affirming

district court's grant of summary judgment on claim not raised by the parties where

the claim was dependant on a claim properly dismissed by the court). However, Met

Council is mistaken that the district court's conclusion that Heisler was not a qualified

individual with a disability necessarily precludes the retaliation claim. "An individual

who is adjudged not to be a 'qualified individual with a disability' may still pursue a

retaliation claim under the ADA," Mondzelewski v. Pathmark Stores, Inc., 162 F.3d

778, 786 (3d Cir. 1998) (internal quotations omitted), as long as she had a good faith

belief that the requested accommodation was appropriate, see Shellenberger v.

Summit Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 2003). There is no indication in

the record or by the parties that Heisler's request for day-shift hours was not made in

a good faith belief that it was an appropriate accommodation under the ADA. 

Thus, as long as Heisler properly pleaded a retaliation claim, the district court

should not have granted summary judgment on that claim. To state a claim of

retaliation under the ADA, Heisler must establish that she engaged in a protected

activity, suffered an adverse employment action, and that there is a causal connection

between the two. Scroggins v. Univ. of Minn., 221 F.3d 1042, 1044 (8th Cir. 2000)

(ADA).6

 See also 42 U.S.C. § 12203(a). Heisler claimed that Met Council retaliated
15

against her after she requested an accommodation for her depression by refusing to

hire her for a day-shift position and eventually terminating her. Requesting an

accommodation is a protected activity, see Shellenberger, 318 F.3d at 191, and

termination is certainly an adverse employment action. Heisler claimed that the

temporal proximity of the events establishes the causal connection. "Because

[Heisler] alleged all of the elements of a prima facie case but did not have sufficient

notice that the [claim] was in issue, we conclude that the district court's ruling as to

the [retaliation] claim was procedurally improper." Walker, 138 F.3d at 742. 

Met Council's argument that there is no evidence of retaliation demonstrates

precisely why summary judgment must be reversed on the retaliation claim. Heisler

did not get a chance to develop the record or point out material issues of fact

contained in the record related to the elements of her retaliation claim because she

was not on notice that the retaliation claim was at issue in the summary judgment

proceedings. It may well be that Heisler will be unable to establish a genuine issue

of fact regarding the retaliation claim, but she must at least be given a chance to try.

III.

The district court's judgment is affirmed in part, reversed in part, and remanded

for further proceedings consistent with this opinion. 

 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.