1The Honorable John F. Nangle, United States District Judge for the Eastern

District of Missouri, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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Nos. 98-2230/2305

___________

Peter Cannice, *

*

Appellee/Cross-Appellant, *

* Appeals from the United States

v. * District Court for the Southern

* District of Iowa.

Norwest Bank Iowa N.A. and *

Norwest Bank Iowa N.A. Card *

Services Division, *

*

Appellants/Cross-Appellees. *

___________

Submitted: March 11, 1999

Filed: August 13, 1999

___________

Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and

NANGLE,1 District Judge.

___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

A jury awarded damages to Peter Cannice, who suffers from depression, on his

claims for harassment and discrimination under the Americans with Disabilities Act of

1990 (ADA), see 42 U.S.C. §§ 12101-12213. Norwest appeals from the trial court's
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denial of its motion for judgment as a matter of law on the harassment claim, from the

inclusion of front pay in the damages awarded to Mr. Cannice, and from the award of

attorney's fees and costs to him. (Although there are two defendants, for the sake of

simplicity we treat them as one entity in this opinion.) Mr. Cannice cross-appeals from

the trial court’s grant of judgment as a matter of law to Norwest on the discrimination

claim and on the extent of the damages to which he was entitled. We hold that there

was insufficient evidence to submit either of Mr. Cannice's claims to the jury and that,

as a result, the issues of damages, attorney’s fees, and costs are moot; we also remand

the case.

I.

The ADA provides that an employer covered by the act “shall not discriminate

against a qualified individual with a disability because of the disability of such

individual in regard to ... terms, conditions and privileges of employment.” See 42

U.S.C. § 12112(a). The act says nothing explicit, however, about harassment (or, as

it is sometimes called, hostile work environment).

We have not yet had occasion to consider whether harassment on account of a

disability is actionable under the ADA. See Moritz v. Frontier Airlines, Inc., 147 F.3d

784, 788 (8th Cir. 1998); see also Wallin v. Minnesota Department of Corrections,

153 F.3d 681, 687-88 (8th Cir. 1998), cert. denied, 119 S. Ct. 1141 (1999). It is not

necessary for us to reach that question here, however, because, in any case,

Mr. Cannice presented insufficient evidence that the alleged harassment occurred

“because of” his disability, as the plain language of the statute would require if such

harassment were actionable. See, e.g., Robinson v. Neodata Services, Inc., 94 F.3d

499, 502 (8th Cir. 1996), and Price v. S-B Power Tool, 75 F.3d 362, 365 (8th Cir.

1996), cert. denied, 519 U.S. 910 (1996).

Mr. Cannice offered evidence of a number of incidents that he maintained

constituted harassment on account of his disability. For example, he was not promoted
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to the position of group leader, although several Norwest employees testified that he

was better qualified than the person who was given this position. In addition, his lunch

breaks and bathroom breaks were more closely monitored than those of other

employees, and his desk was moved closer to that of a supervisor, both of which

occurrences were distressing to him in his depressed state. A witness also testified that

Mr. Cannice was asked to remove medication from his desk. Finally, when a friend

and colleague left Norwest to take employment elsewhere, one of the group leaders in

Mr. Cannice's department tossed a tissue into his office cubicle with a note about a

“crying towel”; Mr. Cannice believed that this was a reference to the fact that he

sometimes cried at work. 

Mr. Cannice complained to the bank's human resources department about the

tissue incident, and he maintains that the manner in which the department investigated

his complaint itself constituted harassment. First, the department asked him to put his

complaint in writing; this caused him anxiety, he says, and it took him almost a month

to comply. There was then an additional month’s delay before the department actually

began its investigation, in the course of which Mr. Cannice himself was interviewed on

several occasions about his complaint and received a formal warning about his own

allegedly inappropriate conduct. 

Although Mr. Cannice offered evidence indicating that Norwest was aware of

his mental state at the time of these incidents (see below), he did not show that this

knowledge in any way motivated the offensive conduct. Only the request to put away

his medication and the tissue incident could even colorably be connected to

Mr. Cannice’s mental condition, and we do not think that these events could be

described as either pervasive or severe. See Wallin, 153 F.3d at 688. The other

matters caused him anxiety and may have exacerbated his disability, but there is no

evidence that they happened “because of” his disability. Insensitivity alone does not

amount to harassment; the ADA, like Title VII, is not in effect a “general civility code,"

Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998, 1002 (1998). We do not
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believe, therefore, that a reasonable jury could have concluded that Mr. Cannice was

harassed because of his disability. Accordingly, we reverse the trial court's denial of

Norwest's motion for judgment as a matter of law on Mr. Cannice's harassment claim.

II.

Mr. Cannice also maintains that Norwest failed to make reasonable

accommodations to his depression and that this failure constituted discrimination on

account of his disability. This alleged discrimination, together with the alleged

harassment, he contends, caused his condition to deteriorate and eventually caused him

to take short-term and then long-term disability leave. Under the ADA, one form of

discrimination is "not making reasonable accommodations to the known physical or

mental limitations of an otherwise qualified individual with a disability who is ... an

employee," see 42 U.S.C. § 12112(b)(5)(A); this language is tracked in the regulations

applicable to the ADA, see 29 C.F.R. § 1630.9(a), and is discussed at length in the

commentary accompanying the implementation of these regulations, see 56 Fed. Reg.

35726 (overview of regulations and appendix), 35726, 35729, 35731 (1991), and in the

appendix providing interpretive guidance on, and a section-by-section analysis of,

§ 1630, see 56 Fed. Reg. 35739 (appendix), 35743-45, 35747-50 (1991). 

In order to be entitled to an accommodation, the employee must inform the

employer that an accommodation is needed. See Miller v. National Casualty Co., 61

F.3d 627, 630 (8th Cir. 1995). “Once a qualified individual with a disability has

requested provision of a reasonable accommodation," the above-noted appendix

explains, “the employer must make a reasonable effort to determine the appropriate

accommodation.” See 56 Fed. Reg. 35739, 35748 (1991). This means that the

employer should first analyze the relevant job and the specific limitations imposed by

the disability and then, in consultation with the individual, identify potential effective

accommodations. In other words, the employer and the employee must work together

in good faith to help each other determine what accommodation is necessary. See

Fjellestad v. Pizza Hut of America, Inc., No. 98-2071, 1999 WL 391911, at *5-*7 (8th
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Cir. June 16, 1999). The appendix noted above further suggests that the employer may

find it helpful to consult the federal Equal Employment Opportunity Commission or

disability constituent organizations when devising accommodations. See 56 Fed. Reg.

35739, 35748 (1991).

Mr. Cannice offered ample evidence to show that he alerted Norwest to the

existence of his disability. For example, Mary Pierson of the human resources

department recorded in her notes from one meeting with Mr. Cannice that he told her

that he had a stress syndrome. Mr. Cannice also gave information regarding the ADA

to Norma Jean Kingsley in the human resources department, and both parties agree that

he requested an unmonitored telephone line so that he could talk with his “support

network” (Norwest monitored its employees' telephone calls for training and quality

assurance purposes). Finally, Mr. Cannice had experienced a panic attack in the office

of his supervisor, occasionally cried at work, and was known to be taking medications;

these events, Mr. Cannice argues, should have alerted Norwest to his difficulty. A jury

could reasonably have found, therefore, that Mr. Cannice informed Norwest of his

disability and requested some accommodation.

The trial court, in granting Norwest's motion for judgment as a matter of law on

the discrimination claim, ruled that "the evidence does not support [the] contention that

[Mr. Cannice's] employer knew of accommodations but refused to place him in a

position that would accommodate his disability." Mr. Cannice contends that the trial

court wrongly characterized the defendants' duty, because the court suggested that

Norwest was obligated to provide only those accommodations of which it happened to

be aware. 

Mr. Cannice argues that once he informed his employer of his disability and

requested an accommodation, it became Norwest's responsibility to look actively for

a solution through the interactive process described in Fjellestad, 1999 WL 391911,

at *5-*7. The employee is not required to bear the full burden of devising suitable
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accommodation, Mr. Cannice points out, particularly when he suffers from mental

illness; the employer must meet him halfway. Cf. Taylor v. Phoenixville School

District, 174 F.3d 142, 157-58, 160-61, 163-64 (3d Cir. 1999), and Bultemeyer v. Fort

Wayne Community Schools, 100 F.3d 1281, 1285-86 (7th Cir. 1996). In particular,

Mr. Cannice suggests that Norwest should have used the ADA materials that he

supplied and that Norwest should have consulted with him about his disability and

possible accommodations, such as a more flexible work schedule. Cf. 29 C.F.R.

§ 1630.2(o) (2)(ii). Mr. Cannice concludes that Norwest's failure to take such active

steps itself constitutes disability discrimination under 42 U.S.C. § 12112(b)(5)(A). We

have recently held, however, that "there is no per se liability under the ADA if an

employer fails to engage in an interactive process," Fjellestad, 1999 WL 391911, at *5,

so this claim fails. 

Mr. Cannice, moreover, did not make out any other kind of submissible case

under the ADA, because he lacked proof that an accommodation of his disability would

have allowed him to keep his job. That was an element of his case. We emphasized

in Fjellestad, 1999 WL 391911, at *7, that the "employee still carries the burden of

showing that a particular accommodation rejected by the employer would have made

the employee qualified to perform the essential functions of the job." Mr. Cannice and

his experts testified that his condition deteriorated while he was at Norwest and that

this was at least in part due to the environment in the department where he worked. It

does not appear to us, however, that a reasonable fact finder could conclude that any

of the difficulties that he experienced there were due to Norwest's failure reasonably

to accommodate his disability or that he left his job because of such a failure to provide

an accommodation. 

Most of the incidents that Mr. Cannice describes as particularly distressing, and

thus as aggravating his condition, were also part of the basis for his harassment claim.

He appears to suggest that those incidents constitute discrimination because any type

of aggravation constitutes failure to accommodate when the disability in question is
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depression. We do not believe, however, that the obligation to make reasonable

accommodation extends to providing an aggravation-free environment. The facts, for

instance, that Mr. Cannice was frequently summoned for questioning about a sexual

harassment complaint that he made, and that he was more closely monitored than his

colleagues, do not, as a matter of law, amount to a failure by Norwest to accommodate

his disability and thus do not give rise to a claim for damages against Norwest.

Mr. Cannice names only one type of accommodation that Norwest could have

made, namely, providing him with a private, unmonitored telephone line so that he

could talk to his doctor, friends, or family if he experienced a panic attack.

Mr. Cannice requested such a private telephone line, but Norwest offered him instead

the use of the telephones in a conference room and in his manager's office.

Mr. Cannice testified that neither of these options was satisfactory because the

telephones were too far from his desk and he would have difficulty reaching them

during an attack. There is no evidence, however, that the lack of a private telephone

line impaired his ability to work or aggravated his disability. He did not testify that he

in fact ever suffered an attack after he requested a private telephone line or that he ever

had trouble reaching a telephone. At worst, he was made anxious by the knowledge

that his own telephone was monitored and that the other telephones were some distance

away. Most important, he did not say that he would have been able to continue

functioning in his job if Norwest had provided him with a private telephone line.

Mr. Cannice has identified no other accommodation that might have prevented

his condition from deteriorating and would have enabled him to stay on at Norwest.

He therefore failed to make a submissible case on his discrimination claim, and,

accordingly, we affirm the trial court's grant of judgment as a matter of law to Norwest

on that claim.
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III.

For the reasons stated, we reverse the trial court's denial of Norwest's motion for

judgment as a matter of law on Mr. Cannice's harassment claim, and we affirm the trial

court's grant of judgment as a matter of law to Norwest on Mr. Cannice's discrimination

claim. We remand the case to the trial court for the entry of a judgment consistent with

this opinion. 

A true copy.

Attest:

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