United States Court of Appeals

For the Eighth Circuit

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No. 11-2202

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Terri Kallail

lllllllllllllllllllll Plaintiff - Appellant

v.

Alliant Energy Corporate Services, Inc.

lllllllllllllllllllll Defendant - Appellee

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 Appeal from United States District Court 

for the Northern District of Iowa - Cedar Rapids

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 Submitted: January 12, 2012

 Filed: September 4, 2012 

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Before BYE, SMITH, and COLLOTON, Circuit Judges.

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COLLOTON, Circuit Judge.

Terri Kallail sued her employer, Alliant EnergyCorporate Services(“Alliant”),

alleging disability discrimination, in violation of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12101-12213, and the Iowa Civil Rights Act (“ICRA”), Iowa
Code § 216 et seq. The district court granted summary judgment in favor of Alliant 1

and dismissed the complaint. Kallail appeals, and we affirm. 

I.

Because we are reviewing a grant of summary judgment, we describe the facts

in the light most favorable to Kallail. Kallail began working at Alliant in 1996 as a

Customer Service Consultant in Alliant’s customer service center in Cedar Rapids,

Iowa. She was promoted three times, ultimately rising to the position of Resource

Coordinator at the Distribution Dispatch Center (“DDC”) in Cedar Rapids. 

Employees in the DDC monitor the distribution of electricity, gas, and steam

throughout the service territory, schedule and route resources to respond to routine

and emergency work, and handle outage and other emergency situations so as to

restore service and maintain system integrity. 

To provide coverage twenty-four hours per day, seven days a week, Alliant

requires Resource Coordinators at the DDC to work a rotating schedule. Resource

Coordinators work in teams of two on nine-week schedules that rotate between

twelve-hour and eight-hour shifts, and day and night shifts. During the first week, the

team assists with storm work or outages and fills in for other Resource Coordinators

who are absent from work. The second week is for training; the team travels to

different service areas to learn about the areas and meet the employees who work in

them. In the remaining weeks, Resource Coordinators work shifts differing in length,

time of day, and day of the week. 

The Honorable Jon Stuart Scoles, United States Magistrate Judge for the

1

Northern District of Iowa, sitting by consent of the parties pursuant to 28 U.S.C.

§ 636(c).

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Kallail has Type I diabetes and is dependent on insulin. To maintain

acceptable blood sugar levels, Kallail must test her blood sugar six to eight times per

day, and must carefully manage the timing, frequency, quantity, carbohydrate count,

and quality of the food and drink that she consumes. Kallail also suffers from

Peripheral Vascular Disease (“PVD”), which significantly limits circulation to her

legs and feet. As a result of her PVD, it is difficult for Kallail to walk or do anything

else that causes her to lose blood flow to her legs. By the fall of 2004, Kallail had

increased difficulty managing her diabetes while working a rotating shift. The

rotating shift was causing her to experience erratic changes in blood pressure and

blood sugar, and it put her at a higher risk for diabetic complications and death. 

In November 2004, Kallail contacted someone in the company’s human

resource department about a possible accommodation related to her diabetes. On

November 17, 2004, Heidi Hofland, a Senior Human Resources Generalist for

Alliant, requested that Kallail’s physician complete a medical certification form and

return it to the company. Kallail’s physician, Dr. Melanie Stahlberg, completed and

submitted the form, recommending that Kallail work only straight day shifts. At one

point, Dr. Stahlberg spoke with Hofland and told her that a rotating shift “caused

erratic changes in [Kallail’s] blood pressure and blood sugar and caused her to be at

a higher risk for diabetic complications and overall mortality.”

On April 12, 2005, Alliant, in a letter from Jill Breitbach, Senior Human

Resources Generalist, denied Kallail’s request for a straight day shift as an

accommodation. The letter stated that “[t]he Resource Coordinator’s essential

functions require rotating shifts and emergency call-ins to support daily electric and

gas operations 24 hours a day 7 days a week to meet company and public safety

requirements.” As an alternative accommodation, Alliant said it would consider

reassigning Kallail “to another vacant position with a straight day shift for which she

was qualified.” Breitbach asked Kallial to e-mail a request if she wanted “to proceed

with identifying possible vacant positions for reassignments.” On May 12, 2005,

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Kallail requested that Sue Kleisch, Human Resources Compliance Manager, review

the decision.

On August 9, 2005, in response to the April 12 letter from Breitbach, Kallail

notified Breitbach that she would consider reassignment to another position. Kallail

told Breitbach that she had requested review of the April 12 decision, but had

received no response from Kleisch. Kallail then spoke to Kleisch about her request

for reassignment. The company later provided Kallail with a list of three open

positions for which she could apply through the normal process. Kallail informed

Kleisch that she was not interested in any of the three positions because one required

walking, which she was unable to do, one paid less than her current position, and one

would have required her to relocate or to commute a significant distance to work.

Due to surgery on her leg, Kallail commenced leave under the Family and

Medical Leave Act on September 12, 2005. During her recovery from surgery,

Kallail suffered an infected toe that doctors ultimately amputated. Kallail was

initially scheduled to return to work on December 5, 2005, but Alliant granted her

request to extend the leave through February 13, 2006.

While on leave, Kallail applied for a DDC Administrator position. The

position had a straight eight-hour day shift schedule, and was two job grades higher

than Kallail’s current Resource Coordinator position. Kallail was one of six

applicants to receive an interview, but Alliant hired another candidate. 

Kallail returned to work on February 13, 2006, pursuant to a release from her

physician, with a restriction thatshe work only an eight-hour day-shift schedule until

May 13, 2006. Alliant gave Kallail a temporary light-duty assignment, subject to her

physician’s restrictions, in which she performed certain administrative tasks. The

tasks—training new hires and drafting training materials, among others—were

different from her normal work responsibilities as a Resource Coordinator.

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On March 20, 2006, Kallail submitted to Alliant a second request for

accommodation, and again requested a permanent day shift. Kallail then submitted

a proposed schedule in which she, along with a teammate, would work a regular

eight-hour day shift, while the remaining Resource Coordinators continued to work

rotating shifts. 

When Kallail’s temporary light-duty assignment expired, Dr. Stahlberg again

recommended that Kallail be permanently limited to straight day shifts to protect her

from complications and risk throughout the rest of her life. Based on this restriction,

Alliant did not reinstate Kallail to her Resource Coordinator position, and allowed her

to use paid leave benefits while Alliant explored possible open positions for which

she was qualified and to which she could be reassigned. 

On June 19, 2006, Alliant offered Kallail reassignment to a Customer

Operations Assistant II position in Cedar Rapids. Kallail declined the position, and

applied for and received short-termdisability benefits beginning June 23, 2006. Over

the following several months, Kleisch and Breitbach continued to work with Kallail

to find a position at Alliant. They forwarded her information about a Team Lead

Billing position, but Kallail decided not to apply for the position because she would

not have been qualified. Breitbach and Kleisch also offered Kallail a position as a

Construction Specialist, but she declined the offer because of new health

complications. Kallail did not apply for any other positions with Alliant, and,

effective January 1, 2007, she began to receive long-term disability benefits under

Alliant’s disability plan. 

Kallail filed charges against Alliant with the Cedar Rapids Civil Rights

Commission (“CRCRC”), the Iowa Civil Rights Commission (“ICRC”), and the

Equal Employment Opportunity Commission (“EEOC”), alleging that Alliant

discriminated against her based on disability by failing to provide her with a

reasonable accommodation. After these agencies took no action and advised Kallail

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of her right to sue, she filed a complaint in Iowa District Court, alleging that Alliant

failed to make reasonable accommodation for Kallail’s disability. Alliant removed

the case to federal court. Alliant then moved for summary judgment, arguing that

Kallail was not a qualified individual under the ADA, because she could not perform

an essential function of her position. The district court granted summary judgment

in favor of Alliant.

II.

We review the district court’s grant ofsummary judgment de novo, viewing the

evidence and drawing all reasonable inferencesin the light most favorable to Kallail,

the nonmoving party. Kirkeberg v. Canadian Pac. Ry., 619 F.3d 898, 903 (8th Cir.

2010). 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). 

Kallail alleges disability discrimination under both the ADA and the ICRA. 

“[D]isability claims under the ICRA are generally analyzed in accord with the ADA,” 

Gretillat v. Care Initiatives, 481 F.3d 649, 652 (8th Cir. 2007), and Kallail does not

urge any distinction between the two claims.

The ADA makesit unlawful for a private employer to discriminate against any

“qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). 

“Discrimination” is defined to include “not making reasonable accommodations to

the known physical or mental limitations of an otherwise qualified individual with a

disability.” Id. § 12112(b)(5)(A). To establish a prima facie case of discrimination

under the ADA, an employee must show that she (1) is disabled within the meaning

of the ADA, (2) is a qualified individual under the ADA, and (3) has suffered an

adverse employment decision because of the disability. Huber v. Wal-Mart Stores,

Inc., 486 F.3d 480, 482 (8th Cir. 2007). To be a qualified individual under the ADA,

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an employee must “(1) possess the requisite skill, education, experience, and training

for [her] position; and (2) be able to perform the essential job functions, with or

without reasonable accommodation.” Fenney v. Dakota, Minn. & E. R.R. Co., 327

F.3d 707, 712 (8th Cir. 2003) (internal quotation omitted); see also 42 U.S.C.

§ 12111(8). 

Kallail claims that Alliant violated the ADA by refusing to accept her proposal

to work a regular eight-hour day shift as a Resource Coordinator. For purposes of

this appeal, Alliant does not dispute that Kallail is disabled or that she has suffered

an adverse employment action. Alliant also does not dispute that Kallail possessed

the requisite skill, education, experience, and training for her position. The disputed

issue, then, is whether Kallail was able “to perform the essential functions of her job,

with or without reasonable accommodation.” Fenney, 327 F.3d at 712. 

Kallail argues that the district court erred in concluding that the rotating shift

was an essential function of the Resource Coordinator position. She contends that

she was able to perform the essential functions of the position, which did not include

the rotating shift, with a reasonable accommodation. 

We first address whether the rotating shift was an essential function of Kallail’s

position. Although an employee retains the ultimate burden of persuading the trier

of fact that he or she can perform the essential functions of a position, “much of the

information which determines those essential functions lies uniquely with the

employer.” Benson v. Nw. Airlines, Inc., 62 F.3d 1108, 1113 (8th Cir. 1995). 

Essential functions of a position are the fundamental duties of the job, but not its

marginalfunctions. Canny v. Dr. Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894,

900 (8th Cir. 2006). In determining whether a job function is essential, we must

consider, among other evidence, the following:

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(i) [t]he employer’s judgment as to which functions are essential; (ii)

[w]ritten job descriptions prepared before advertising or interviewing

applicants for the job; (iii) [t]he amount of time spent on the job

performing the function; (iv) [t]he consequences of not requiring the

incumbent to perform the function; (v) [t]he terms of a collective

bargaining agreement; (vi) [t]he work experience of past incumbents on

the job; and/or (vii) [t]he current work experience of incumbents in

similar jobs. 

29 C.F.R. § 1630.2(n)(3); see also Rehrs v. Iams Co., 486 F.3d 353, 356 (8th Cir.

2007). 

A rotating shift can be an essential function of a position, Rehrs, 486 F.3d at

359, and we agree with the district court that it was an essential function of the

Resource Coordinator position at Alliant. Alliant has determined that the rotating

shift is essential to the Resource Coordinator position, and lists it as a requirement on

the written job description for the position. According to Alliant, the rotating shift

provides enhanced experience and training for Resource Coordinators by allowing

them to become familiar with all geographic territories in Alliant’s service area, and

to receive on-the-job training by working with different partners and Senior Resource

Coordinators. This enhanced training also allows Alliant to handle emergenciesmore

effectively, because each Resource Coordinator summoned during an emergencywill

have experience working in all geographic areas and with all personnel. Shift

rotation also enhances the non-work life of Resource Coordinators by spreading the

less desirable shifts—nights and weekends—among all Resource Coordinators. If

Kallail were switched to a straight day shift and not required to work the rotating

shift, then other Resource Coordinators would have to work more night and weekend

shifts.

Kallail argues that there is a genuine issue of material fact as to whether a

rotating shift was an essential function of the Resource Coordinator position. 

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According to Kallail, Alliant’s prior consideration of a proposal to create straight day

shifts, the Wisconsin DDC’s use of straight day shifts, and statements from Alliant

employees about the possibility of Kallail working a straight shift all undercut

Alliant’s claim that the rotating shift was an essential function.

Kallail first points to Alliant’s 2002 consideration of a proposal to create two

permanent straight day shifts for Resource Coordinators. According to Kallail, a

committee considered the costs and benefits of adding the shifts, and a consensus

emerged that the addition would better serve the business needs of Alliant. Alliant

was prepared to add the shifts, but the company abandoned the proposal after

employees objected to the proposed method for determining which Resource

Coordinators would receive the shifts. Kallail faults the district court for placing too

much weight on testimony from Alliant employees that the company made the

decision to continue with rotating shifts based on Alliant’s business needs. Kallail’s

explanation for the abandonment of the proposed addition of the day shifts, however,

does not conflict with the explanation from Alliant. To avoid employee complaints

and maintain morale are legitimate business reasons for a scheduling decision. The

fact remains that, despite considering the proposal, Alliant chose not to add the day

shifts for reasons unrelated to disability. So long as Alliant’s decision in 2002 was

not discriminatory, “[i]t is not the province of the court to . . . determine what is the

most productive or efficient shift schedule for a facility.” Rehrs, 486 F.3d at 358. 

Kallail next pointsto the fact that the Alliant DDC operating in Wisconsin uses

permanent eight-hour shifts. But the DDC facility in Wisconsin makesits scheduling

decisions based on a different set of circumstances. It provides emergency

dispatching in a different manner by turning the task over to field operations during

all storms, while the DDC in Cedar Rapids shifts the responsibility to field operations

only for major storms. The two DDC facilities had independent business reasons for

their different scheduling decisions. The difference in scheduling isthusinsufficient

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to show that the rotating shift at the DDC in Cedar Rapids was not an essential

function of the Resource Coordinator position.

Kallail also points to a series of statements made by Alliant employees

regarding the possibility of Kallail working a straight shift instead of a rotating shift. 

These statementsinclude (1) a letter from Kallail’s doctor, Dr. Stahlberg, that Alliant

told her a straight night shift was available for Kallail, (2) a statement from a human

resources employee at Alliant to Dr. Stahlberg that Alliant “may be able to

accommodate a straight evening/night shift” for Kallail, (3) a statement from Vern

Gephart, a Vice President at Alliant, to Kallail’s husband that a “new job” with

straight day shifts would be available to Kallail when she returned from her medical

leave, (4) a statement from Mark Reynolds, Kallail’s supervisor, that a straight day

shift would have been possible in 2005 with some creativity in crafting the schedule

for the year, and would not have been a problem in 2006, and (5) a statement from

Gary Heinrichs, DDC Manager, that Kallail’s proposed straight day shift was

dismissed because Alliant did “not want to” do it. 

Kallail argues that this evidence shows, according to Alliant’s own statements,

that a straight shift was possible, and that a rotating shift was therefore not an

essential function. Kallail does not claim, however, that Alliant provided a formal

offer that she could work a straight shift in her Resource Coordinator position. The

statement from Gephart that a position with straight day shifts would be available to

Kallail when she returned from medical leave referred to a “new job,” not to the

Resource Coordinator position. At most, therefore, the statements of Alliant

employees show that the company considered the possibility of providing a straight

day shift for Kallail in the Resource Coordinator position, but chose not to do so. As

with Alliant’s 2002 consideration of a proposal to create permanent day shifts, it is

not the role of the courts to question Alliant’s legitimate business reasons for making

this decision.

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In sum, the evidence presented by Kallail—Alliant’s 2002 consideration of a

straight day shift proposal, the fact that the DDC in Wisconsin uses a straight day

shift, and evidence that Alliant considered a straight day shift for Kallail—is

insufficient to raise a genuine issue of material fact. We thus conclude that the

rotating shift was an essential function of the Resource Coordinator position. 

Because we conclude that the rotating shift is an essential function of Kallail’s

position, and Kallail concedes that she is unable to work a rotating shift without a

reasonable accommodation, we next address whether Kallail could perform the

essential functions with a reasonable accommodation. See Fjellstad v. Pizza Hut of

Am., Inc., 188 F.3d 944, 950 (8th Cir. 1999). Kallail must “make a facial showing

thatreasonable accommodation is possible and that the accommodation will allow her

to perform the essential functions of the job.” Burchett v. Target Corp., 340 F.3d

510, 517 (8th Cir. 2003). 

Kallail initially sought a straight day shift as an accommodation for her

disability. This accommodation would not have allowed Kallail to perform the

essentialfunctions of her current position, however, because it would have eliminated

one of those functions—the rotating shift. While job restructuring is a possible

accommodation under the ADA, an employer “need not reallocate or eliminate the

essential functions of a job to accommodate a disabled employee.” Fjellstad, 188

F.3d at 950; see also Rehrs, 486 F.3d at 358; Benson, 62 F.3d at 1112-13. Kallail

therefore failed to make a facialshowing thatshe can be accommodated in her current

position. 

Even though an accommodation was not possible in her current position,

reassignment to a vacant positionmay be a reasonable accommodation. Burchett, 340

F.3d at 517; see also Cravens v. Blue Cross & Blue Shield of Kan. City, 214 F.3d

1011, 1018 (8th Cir. 2000). Alliant offered to reassign Kallail to another position as

a Customer Operations Assistant II. If an employer has offered reassignment as a

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reasonable accommodation, then “the employee must offer evidence showing both

that the position offered was inferior to [her] former job and that a comparable

position for which the employee was qualified[] was open.” Rehrs, 486 F.3d at 359. 

Kallail did not present such evidence. Kallail does argue that Alliant should have

accommodated her by hiring her for the DDC Administrator position, but a company

need not make a promotion to satisfy the ADA. Cravens, 214 F.3d at 1019.

Kallail also argues that Alliant failed to engage in an interactive process with

her to determine whether a reasonable accommodation was possible. There is no per

se liability under the ADA if an employer failsto engage in an interactive process, but

“the failure of an employer to engage in an interactive process to determine whether

reasonable accommodations are possible is prima facie evidence that the employer

may be acting in bad faith.” Fjellstad, 188 F.3d at 952. To show that an employer

failed to participate in the interactive process, an employee must show that: (1) the

employer knew of the employee’s disability; (2) the employee requested

accommodations or assistance; (3) the employer did not in good faith assist the

employee in seeking accommodations; and (4) the employee could have been

reasonably accommodated but for the employer’s lack of good faith. Ballard v.

Rubin, 284 F.3d 957, 960 (8th Cir. 2002). Kallail is unable to meet the fourth

requirement, because Alliant did reasonably accommodate Kallail by offering her the

position of Customer Operations Assistant II. We therefore conclude that Kallail has

failed to show that Alliant did not engage in an appropriate interactive process with

her.

Because Kallail was unable to perform the essential functions of her position,

with or without reasonable accommodation, she has failed to make a prima facie

showing of discrimination under the ADA.

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III.

Kallail also argues on appeal that Alliant violated the ADA by refusing to hire

her as the DDC Administrator because of her disability. Apart from an employer’s

duty to make reasonable accommodations to the disability of an otherwise qualified

applicant or employee, an employer may not refuse to hire a qualified individual

because she has a disability. Chalfant v. Titan Distrib., Inc., 475 F.3d 982, 990 (8th

Cir. 2007). Kallail, however, did not raise a claim based on the latter prohibition in

the district court, and the district court never addressed it. In her complaint, Kallail

listed only one count of discrimination, and described it as follows: “Defendant

Alliant Energy Corporate Services, Inc. was aware that Plaintiff had Diabetes, and

Plaintiff sought to be reasonably accommodated for her disability. Defendant failed

to reasonably accommodate Plaintiff.” R. Doc. 2, ¶ 50 (emphases added). In

response to Alliant’s motion for summary judgment, Kallail discussed the company’s

refusal to hire Kallail for the DDC Administrator position, but only in the context of

Alliant’s alleged failure to make reasonable accommodation for Kallail. She argued

that “[r]efusing to hire the superior applicant because of a disability cannot be

construed as a reasonable accommodation.” The district court understandably did not

address a separate claim that Alliant violated the ADA by refusing to hire Kallail

because of her disability, and we decline to consider it for the first time on appeal. 

See Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 725 (8th Cir. 2002).

* * *

For these reasons, the judgment of the district court is affirmed.

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