United States Court of Appeals

For the Eighth Circuit

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No. 16-4532

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James Sharbono,

lllllllllllllllllllllPlaintiff - Appellant,

v.

Northern States Power Company, doing business as Xcel Energy, Inc.,

lllllllllllllllllllllDefendant - Appellee.

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Appeal from United States District Court 

for the District of Minnesota - Minneapolis

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Submitted: February 13, 2018

Filed: September 6, 2018

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

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COLLOTON, Circuit Judge.

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

This opinion is filed by Chief Judge Smith and Judge Colloton under Eighth

*

Circuit Rule 47E.
Minnesota Human Rights Act, Minn. Stat. § 363A.01 et seq. The district court

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granted summary judgment in favor of Northern and dismissed the complaint. We

affirm.

I.

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 steeltoed 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 conditionsto 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.

The Honorable Richard H. Kyle, United States District Judge for the District 1

of Minnesota.

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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 steeltoed 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

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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 could be manufactured, it could not be stamped with the ASTM stamp. 

Northern then informed Sharbono that it was placing him in a retired status with

disability retirement benefits.

Sharbono sued, alleging several violations of the Americans with Disabilities

Act and the Minnesota Human Rights Act. The district court granted summary

judgment in favor of Northern on all claims. Sharbono appeals only his claims that

Northern failed to accommodate his disability as required by the federal and state

statutes. We review a district court’s grant of summary judgment de novo, viewing

the evidence and drawing all reasonable inferences in the light most favorable to

Sharbono. Mackey v. Johnson, 868 F.3d 726, 729 (8th Cir. 2017). Summary

judgment is appropriate if “the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a).

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II.

Sharbono alleges a claim under both the ADA and the Minnesota Human

Rights Act. Where a plaintiff is disabled under the ADA, we have applied the same

standards to disability claims under both statutes, see Kobus v. Coll. of St.

Scholastica, Inc., 608 F.3d 1034, 1038 (8th Cir. 2010), but a recent Minnesota Court

of Appeals decision held that the state statute places fewer duties on employers than

does the ADA. See McBee v. Team Indus., Inc., 906 N.W.2d 880, 887 (Minn. Ct.

App. 2018), petition for review granted, No. A17-0060 (Minn. Mar. 28, 2018). 

Because we conclude that Northern satisfied all of the ADA’s requirements, we need

not decide whether claims under the ADA and the Minnesota Human Rights Act

concerning the interactive process should now be analyzed differently. 

The ADA prohibits employers from discriminating against qualified

individuals on the basis of disability. 42 U.S.C. § 12112(a). Discrimination includes

“not making reasonable accommodations to the known physical or mental

limitations” of an employee, unless the employer can “demonstrate that the

accommodation would impose an undue hardship on the operation of the business.”

Id. § 12112(b)(5)(A).

“To determine whether an accommodation for the employee is necessary, and

if so, what that accommodation might be, it is necessary for the employer and

employee to engage in an ‘interactive process.’” Peyton v. Fred’s Stores of Ark., Inc.,

561 F.3d 900, 902 (8th Cir. 2009) (quoting Fjellestad v. Pizza Hut of Am., Inc., 188

F.3d 944, 951 (8th Cir. 1999)). To establish that an employer failed to participate in

the interactive process, an employee must demonstrate that the employer knew about

his disability, and that the employee requested an accommodation for his disability. 

Id. There is no dispute here about those elements. The employee must then prove

that the employer “did not make a good faith effort to assist the employee in seeking

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accommodations.” Id. (quoting Fjellestad, 188 F.3d at 952). The district court ruled

that Sharbono failed to generate a material dispute on this element. 

Sharbono raises three arguments why Northern did not make a good faith

effort. He first contends that Northern engaged in “inexcusable delay,” because the

company did not timely respond to a request for accommodation in October 2011. 

Sharbono did not present sufficient evidence, however, that he made a request at that

time. He could not recall whether he asked for an accommodation in an October 2011

meeting with his supervisor, and the supervisor’s notes do not mention such a request. 

The employer is not required to undertake the interactive process until the employee

makes a request for accommodation. EEOC v. Prod. Fabricators, Inc., 763 F.3d 963,

971 (8th Cir. 2014). The earliest requestsupported by the evidence occurred in April

2012. Northern responded within four months, and Sharbono was paid during the

interim while using sick leave. Under the circumstances, the timing of Northern’s

response is insufficient to support a finding that the company did not act in good

faith. See Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 737 (5th Cir. 1999).

Sharbono next argues that Northern prematurely abandoned the interactive

process. He complainsthat after the orthotics company notified Northern in February

2013 that it could not produce a boot that qualified for the ASTM stamp, Northern

failed to pursue more options to find a conforming boot. But once Northern was

informed by an expert in the industry that it could not produce a boot that met

Sharbono’s needs and qualified for the ASTM stamp, it was reasonable for the

company to discontinue its efforts. Northern tried in good faith to find a solution that

would permit Sharbono to work. The company ceased looking only when it was

informed that the objective of a stamped, compliant boot was not achievable. This

evidence does not support a finding that the company failed to make good faith

efforts.

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Sharbono contends finally that Northern erroneously claimed that federal

regulationsrequire its employees to wear stamped boots, and that Northern’s reliance

on the regulation shows its lack of good faith. The regulation seems to permit

footwear if an “employer demonstrates” that the footwear “is at least as effective as

protective footwear that is constructed in accordance with one of” several enumerated

industry safety standards. 29 C.F.R. § 1910.136(b)(2). But Sharbono never disputed

the company’s interpretation of the regulation during the interactive process, and the

employer made good faith effortsto secure a boot that met the performance standards

for safety footwear and bore the ASTM stamp. Under the circumstances, that

Northern did not attempt to demonstrate thatsome other boot would be “as effective”

as a boot that conformed to the performance standards is insufficient to show a lack

of good faith in the interactive process.

We thus agree with the district court that Northern interacted in good faith as

a matter of law. Northern met twice with Sharbono in 2013 about his request for

accommodation and offered to help Sharbono with the process of applying for a

different job with the company. After Sharbono elected to retire with disability

retirement benefits, Northern still attempted to obtain a boot that would allow him to

work. For the reasons discussed, Sharbono’s arguments do not establish a genuine

dispute of material fact for trial. Sharbono complains that the district court failed to

construe the facts in the light most favorable to him as the non-movant, but the facts

that he identifies are not material to the legal dispute. The record supportsthe district

court’s conclusion.

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The judgment of the district court is affirmed. The motion to supplement the

record on appeal with evidence that was not presented to the district court is denied. 

See Barry v. Barry, 78 F.3d 375, 379 (8th Cir. 1996). 

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