## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1500

___________ Kathleen Mole, * * Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Buckhorn Rubber Products, Inc., * * Defendant - Appellee. *

___________ Submitted: September 22, 1998 Filed: February 1, 1999

___________ Before BEAM, LAY, and LOKEN, Circuit Judges.

___________ LOKEN, Circuit Judge.
Kathleen Mole commenced this action alle ging that Buckhorn Rubber Products, Inc. (“Buckhorn”), violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101- 12213 (“ADA”) , and the Missouri Human Rights Act, Mo. Rev. Stat. § 213.055.1(1) ( “ MHRA”), when it fired her for persistent poor job performance despite knowledgeThe HONORABLE GEORGE F. GUNN, J R., United States District Judge for 1 the Eastern District of M issouri, who to our great regret has died since completing his work on this case. -2- of her disabilities, multiple sclerosis (“MS”) an d severe depression. The district court 1 granted summary judgment dismissingthese claims, concluding Mole failed to present sufficient evidence to establish two elements of a prima facie case of disabilit y discrimination or a triable issue of pretext. Mole appeals. We review the grant o f summary ju dgment de novo, viewing the record in the light most favorable to Mole , the non-moving party. See Aucutt v. Six Flags Over Mid -America, Inc. , 85 F.3d 1311, 1315 (8th Cir. 1996). We affirm.

Buckhorn hired

Mole in 1982 as a clerk/typist in Hannibal, Missouri. In 1987, she was promoted to customer service coordinator and transferred with the Sale s Customer Service Department to Ohio, where she later received another promotion

. In 1990, B uckhorn relocated the Sales Customer Service Department back to th e Hannibal facility, promoting Mole to senior customer service coordinator. Mol e received excellent job performance reviews throughout this period.
Mole Develops Job Performance Problems. David Johnston became Mole’s supervisor

in April 1991. In her December 1991 written Performance Appraisal , Johnston rated Mole as “needing i mprovement” in four of ten performance categories, criticiz ing her for a negative attitude towards customers and for failing to provid e le adership and direction to fellow employees. Mole rated her own performance a s good, considering the division was sh ort-staffed, but acknowledged that she needed to “handle stress better.” Johnston met with Mole numerous times in 1992, sometimes in the company of Ronald Meyer, Buckhorn’s industrial relation s manager, to comment on her unsatisfactory performance. In late 1992, Johnston sent Mole a memo in which he no ted “key mistakes in the past few months,” criticized her failure to follo w instructions, and warned her that a failure to improve could result in “appropriate-3-

dis ciplinary action.” In early 1993, Buckhorn transferred some important custome r accounts from Mole to the other customer service coordinator, Angela Dillman

. Dillman testified that she discovered errors and heard customer complaints after taking
over some of Mole’s accounts. Buckhorn’s receptionist testified that she receive d compl aints from customers who asked to be transferred to someone other than Mole.

In Jun e 1993, Johnston authored another written performance review, ratin g Mole as “nee ding improvement” in six categories, “marginal” in two, and “effective” in two. Johnston noted that Mole resisted change in the department, had a negativ e attitude with cust omers, and made errors. After stating that Mole was being demoted to customer service coordinator, the review concluded:

Kath y has been ill during the past eighteen months, and the extent t o whichher illness has contributed to her poor performance is not easil y gauged. The timing of this review is such that Kathy has just returned to work fro m her illness. If her performance should significantly improv e in the months following her return from this illness, I will gladly review her again in six to nine months.
Johnston prepared another written performance revie w in December 1993, rating Mole as “needing improvement” in six and “marginal” in four categories, and noting that she contin uedto have problems with lack of motivation, disorganized work space, an d customer relations. Meyer adde d a handwritten comment at the end of this document: “Within th e next 6 months we will determine whether Kathy will remain in he r Cu stomer Service position. Her performance must substantially improv e immedi ately.” Mole’s written self-assessment stated that she had done the job to the best of her ability and commented, “I do not feel my having M/S should be hel d against me.”

On February 10, 1994, Johnston met with Mole and delivered a memorandum detail ing five instances of significant customer order errors and concluding: “In your last review you were told that you would have to improve in all aspects of the job, and-4-

to d ate I have not noted any such improvement. Continued lack of improvement will lead to termination.”
Mole Develops MS and Depression
. In April 1993, Mole began experiencing di fficulty with her balance, memory, vision, and a weakened right leg. In early May, Meyer learned that Mole was suffering from he adaches and dizziness. He referred her to a medical specialist and, when an initial appointment suggested a need for furthe r testi ng, placed her on paid sick leave for that purpose. After Dr. Irving Ashe r diagnosedMole as having MS, Buckhorn placed her on paid sick leave for over two weeks, and she was hospitalized and treated with steroids and anti-depressan t med ication. In June 1993, Dr. Asher examined Mole again and suggested she rest at home for two weeks to alleviate her heat sensitivity and fa tigue. Buckhorn granted this request. Mole’s depression fluctuated between August and October, w hile her physical condition remained stable until November, when she was again hospitalized.

On December 15, Johnston met with Mole to discuss her health and “glean an
un derstanding of her condition.” Mole said she was feeling fine and confirmed tha t her doctor had approved her return to w ork. She was nervous and cried through much of the meeting, particularly when her handling of customers was criticized. Mol e returnedto work but suffered a seizure on December 17 and was again hospitalized. Her physical condition had improved by early January 1994, and in March she had a “normal” exam, following which Dr. Asher called Meyer at Buckhorn and found him “very supportive.” Meyer stated that Mole had “improved over the course of he r tr eatment” and suggested another leave of absence, if needed. Dr. Asher did no t suggest and Mole did not request a leave of absence.

Mole Is Te rminated. On June 10, 1994, Johnston authored a Performanc e Updat e. He stated that Mole “is putting forth her very best effort to improve he r perfor mance [but] this improvement is inadequate.” After outlining several costl y customer o rder errors, Johnston recommended that Mole be terminated. On June 30,-5-

Johnston and Meyer met with Mole and delivered a two-week notice of termination. The notice advised, “The date of your termination will be July 14, 1994, and the last day of active emplo yment will be today, June 30, 1994.” That same day, Buckhorn’s gener al manager sent Mole a letter explaining “the different insurance benefits an d welfare plans you could be eligible for if you would need to go on to total disability.” Mole met with Buckhorn officials on July 14. She asked to be accommo dated with rest breaks, days off, and the addition of a third customer service coordinator. Sh e presented a July 11 memorandum from Dr. Asher stating:

Ms. Mole has multiple sclerosis. I believe her inability to functio n adequately at work has been due to her illness. Multiple sclerosis will be a lifelong illness for her and will likely fluctuate considerably.

Buckhorn declined to reinstate her.

Mole co mmenced this action in October 1995, alleging that Buckhorn violated the A DA and the MHRA by refusing to accommodate her disability and terminatin g her. The ADA prohibits covered employers, such a s Buckhorn, from “discriminat[ing] again sta qualified individual with a disability because of the disability.” 42 U.S.C

. § 12 112 (a). A qualified individual with a disability is one “who, with or withou t reasonable accommodation, can perform the essential functions of the employmen t position.” 42U.S.C. § 12111(8). Disability discrimination is defined to include “not making reasonable accomm odations to the known physical or mental limitations of an otherwise qualified individual with a disability.” 42 U.S.C. § 12112(b)(5)(A).
To establish a prima facie case of disability discrimination under the ADA, Mole must sh ow that at the time in question she was disabled, was qualified to perform the
ess ential functions of her job with or without reasonable accommodation, and wa s terminat ed under circumstances that raise an inference of unlawful disabilit y discrimination. See Price v. S-B Power Tool , 75 F.3d 362 , 365 (8th Cir.), cert. denied ,On appeal, the parties debatewhether Mole has a “disability” as defined in the 2 ADA and therefore s atisfied the first prong of her prima facie case. The district court conclu ded this was a genuine issue of material fact, and we need not consider it. For the resolution of this i ssue in other ADA cases involving plaintiffs suffering from MS, see Mor itz v. Frontier Airlines, Inc. , 147 F.3d 784, 786 (8th Cir. 1998); Leffel v

. Valley Fin. Servs. , 113 F.3d 787, 792 (7th Cir.), cert. denied , 118 S. Ct. 416 (1997); and Kocsis v. Multi-Care Mgmt., Inc. , 97 F.3d 876, 884-85 (6th Cir. 1996). -6- 117 S. Ct. 274 (1996). The same analysis applies to claims under the MHRA. Se e Mathews v. Trilo lgy Communications, Inc. , 143 F.3d 1160, 1164 n.5 (8th Cir. 1998).

Th e district court concluded that Mole failed to establish the second and thir d prongs of her prima facie case. She was not qualified to perform the essentia l 2 fu nctions of her job, the court explained, because “her problems in the position since 1991 were well-documented and affected the ess ential functions of the job,” she “does not dispute that she made the errors or the significance of those errors,” she “did not provide in a timely

manner any suggested accommodations that would have cured the problems, ” and some of the accommodations she requested after termination wer e
unre asonable. Mole’s discharge did not give rise to an inference of disabilit y discrimination, the c ourt concluded, because her negative performance reviews began before Buckhorn knew she had MS and her assertion th at Buckhorn fired her to reduce the self-insured costs of future MS treat ment was sheer speculation. Alternatively, the
cou rt concluded that even if Mole established a prima facie case of disabilit y discrimination, Buckhorn offered a legitimate reason for termination, her poor jo b performan ce, and Mole presented insufficient evidence of pretext. After carefu l review, we agree with this assessment of the summary judgment record.
Qualified Individual with a Disability
. To be a “qualified individual” entitled to ADA p rotection, “a plaintiff must show that [her] work performance met th e employe r’s legitimate job expectations,” with or without reasonable accommodation. Wilking v. County of Ramse y , 153 F.3d 869, 873 (8th Cir. 1998) (quotation omitted).-7-

It is undisputed that Mole had the necessary experience and training for the positio n of custo mer service representative, and performed more than adequately in tha t pos itionfor many years. However, Buckhorn documented serious performanc e deficiencies beginning in 1991 and Mole’s failure to meet repeated demands fo r improved pe rformance from 1992 until she was terminated in June 1994. An AD A pla intiff may not rely upon past performance to establish that she is a qualifie d ind ividual without accommodation when the employer has produced undispute d evidence of diminished or deteriorated abilities.

Mo le argues Buckhorn failed to define the essential functions of her position

. See Ben son v. Northwest Airlines, Inc. , 62 F.3d 1108, 1113 (8th Cir. 1995). On th e facts of this case, the contention is without merit. It is undisputed that the ke y responsib ilities of a customer service coordinator were to take and enter order s
ac curately, and to respond to customer inquiries and complaints. Buckhor n documented Mole’s order inaccuracies and poor customer relations over an extended period of time. While admitting these deficiencies, Mole argues they were minor , citing testimony by co-workers and one customer expressing positive opinions about her job p erformance. However, these persons had much more limited contact with Mo le and her work than Johnston, Meyer, and Dillman. Mole bears the ultimat e burden of proof on this issue, see Benson , 62 F.3d a t 1113, and “consideration shall be given t o the employer’s judgment as to what functions of the job are essential.” 4 2 U.S.C. § 121 11(8). We agree with the district court that Mole failed to establish that she could perform her essential job functions without accommodation.

That lea ves the question whether Mole presented sufficient evidence that sh e would have been a qualified individual if Buckhorn had reasonably accommodated her disabilities. Mole concedes that Bu ckhorn helped her seek medical treatment, granted her leaves of absences for diagnosis and treatment of MS and depression, allowed her time o ff and breaks when she returned to work, and distributed some of her work t o other employees. Dr. Asher testified these were reasonable accommodations for an-8-

employee with MS. But Mole argues Buckhorn knew or should have known how to afford her further accommodations.

As the dist rict court recognized, the problem with this contention is that prio r to receivi ng a notice of termination Mole never advised Buckhorn she neede d additional accommodation, much less what accommodation speci fic to her position and workplac e was needed. “In general, it is the responsibility of the individual with the disability to inform the employer that an accommodation is needed.” Wallin v

. Minnesota Dept. of Corrections , 153 F.3d 681, 689 (8th Cir. 1998) (quot ation omitted);
see H unt-Golliday v. Metropolitan Water Reclamation Dist. of Greater Chicago , 104 F.3d 1004, 1 013 (7th Cir. 1997); Taylor v. Principal Fin. Group, Inc. , 93 F.3d 155 , 164-65 (5th Cir.), cert. denied , 117 S. Ct. 586 (1996). It is undisputed that between May 1993 and June 1994 Buckhorn wa s aware of and accommodated Mole’s medical problems. There is no evidence Buckhorn failed to make a goo d faith reasonable effort to help M ole determine if other accommodations might be needed. See Beck v

. Univer sity of Wisconsin Bd. of Regents , 75 F.3d 1130, 1135 (7th Cir. 1996). Mol e argues Buckhorn should have learned more about accommodating MS by consultin g informational pamphlets and discussing her condition with her doctors. But it i s undisputed that Buckhorn had the pamphlets and discussed her condition with Dr

. Asher. Onl y Mole could accurately identify the need for accommodations specific to he r job and workplace. Mole cannot “expect the employer to read [her] mind an d know [she] secretly wanted a particular accommodation and [then] sue the employer for not providing it.” Ferry v. Roosevelt Bank , 883 F. Supp. 435, 441 (E.D. Mo. 1995) (quotation omitted).
Mole also argues that she requested specific accommodations on July 14, 1994, the effective date of her termination -- more breaks, fully staffing the department, air
con ditioning, written instructions, and more time to test new medication. Given th e timing of the meeting, this was a reques t for reinstatement, not a timely request for onthe-job accommodations. Moreover, Mole could offer no assurance the requested-9-

accommodations would remedy her many job perf ormance deficiencies. Indeed, Mole accompanied these requests with a letter from Dr. Asher warning t hat she has a lifelong illness that “will likely fluctuate considerably.” Finally, we agree with the distric t court that some of the requests were not reasonable. An employer is not required to hire additional employees or redistribute essential functions to other employees. Se e Moritz , 147 F.3d at 788 (8th Cir. 1998). Thus , the ADA does not require an employer “to change the essential nature of the job” in order to ac commodate the personality and emotional deficiencies that may result from MS and depression. Boelman v. Manson State Bank , 522 N.W.2d 73, 81 (Iowa 1994).

On this r ecord, we agree with the district court that Mole failed to presen t suf ficient evidence she could meet Buckhorn’s legitimate job expectations with o r without reasonable accommodatio n of her alleged disabilities. Compare Wilking , 153 F.3d at 873. Accordingly, summary judgment was appropriate.

Other Grounds for Summary Judgment. To satisfy the third prong of he r prima facie case, Mole must present sufficient evidence that the circumstances of her discharge give rise to an inference of unlawful disability discrimination. In addition,
ev en if Mole presented sufficient proof of a prima facie case, to avoid summary judgmentshe must demonstrate that Buckhorn’s legitimate reason for her discharg e was pret extual, that “a discriminatory animus lies behind [its] neutral explanations. ” Wilki ng , 153 F.3d at 874. To show pretext, Mole must offer sufficient evidence fo r a reasonable trier of fact to infer intentiona l discrimination. See Christopher v. Adam’s Mark Hotels , 13 7 F.3d 1069, 1073 (8th Cir.), cert. denied , 119 S. Ct. 62 (1998). We agree with the district court that Mole failed to meet these evidentiary burdens.

It is undisputed that Mole’s poor job performance evaluations started lon g before Buckhorn knew she had MS and continued for more than a year after the initial diagnosis. Mole conceded she developed these performance problems and presented no evidence that her performance rose to an acceptable level by June 1994. Mole’sMole also argues that discharging her for performance deficiencies that wer e 3 symptoms of her MS -- lack of motivation, data entry errors, and r udeness to customers -- is as unlawful as di scharging her because of that disability. We disagree. Firing an emplo yee because of the job performance consequences of a disability such as MS , rather than the disability itself, is not actionable under the ADA. See Matthews v

. Common wealth Edison Co. , 128 F.3d 1194, 1196, 1198 (7th Cir. 1997); Mararri v

. WCI Steel, Inc. , 130 F.3d 1180, 1182-83 (6th Cir. 1997). -10- con tention “that the infractions were not serious enough to warrant a discharge . .

. merely questions the soundness of defendant’s judgment, and does not demonstrat e pretext for discrimination.” Wilking , 1 53 F.3d at 874 (quotation omitted). Supporting affidavits from fellow employees who did not deal with Mole on a systematic basis are insufficient to counter Buckho rn’s proof she was discharged because she did not meet its legitimate expectations. See Leffel , 113 F.3d at 791, 795-96. Finally, as the district court noted, Mole’s contention that Buckhorn fired her to escape the h igh medical costs of tre ating her MS is totally unsupported. Thus, the record will not support a n inference that her discharge was “based upon her perceived disability rather than upon actual shortcomings in her work.” Leffel , 113 F.3d at 795. 3
For the foregoing reasons, the judgment of the district court is AFFIRMED.
LAY, Circuit Judge, dissenting.
My basic disagreement with the trial court is in the applicati on of the McDonnell Dougl as burden-shifting analysis to the facts of this case. See McDonnell Dougla s C o rp. v. Green , 411 U.S. 792, 93 S. Ct. 1817 (1973). The majority opinion, without directl y referencing McDonnell Douglas , applies the same burden-shifting analysis

. Although our cases have given lip service to the McDonnell Douglas method o f analysis in ADA cases, under the facts of t his case it is unnecessary and inappropriate. The McDonnell Douglas analysis is designed to govern disparate treatment cases. The ultimate question served by s uch analysis is that of disparate treatment of the claimantIf a claimant und er the ADA were making a claim of disparate treatment, such 1 as an employer placing a greater burden on disabled workers than on other employees, then such a disparate treatment analysis would apply. Cf. Matthews v. Commonwealth Edison Co. , 128 F.3d 1194 (7th Cir. 1997). However, no such claim is made here. The district court holds there is a question of fact as to whether the plaintiff is 2 disa bled. The majority avoids the issue. This totally ignores the record. There is no question that plaintiff suffers from mu ltiple sclerosis and has manifested the symptoms -11- with others similarly situated. This case, however, does not involve a disparat e treatment claim, but rather a reasonab le accommodation claim that should be analyzed differently. 1

The ADA is statutorily defined and driven. An employer may no t “discriminate” against “a qualified individ ual with a disability because of the disability

. . . .” 42 U.S.C. § 12112(a). Discrimination as defined has nothing to do with th e claimant’s dis parate treatment. The ADA defines the term “discriminate” as follows:

(5)(A) not makingreasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an app licant or employee, unless [the employer] can demonstrate that th e accommodation would impose an undue hardship on th e operation of the business of [the employer]; or (B ) denying employment opportunities to a job applicant or employe e who is an otherwise qualified individual with a disability, if such denia l is base d on the need of [the employer] to make reasonabl e acc ommodationto the physical or mental impairments of the employe e or applicant. 42 U.S.C. § 12112(b)(5)(A)-(B). In most ADA cases, as here, a single qu estion becomes the focus of the inquiry: whether the employer should have reasonably accommodated t he employee’s disability but did not. In such cases, the McDonnell Douglas disparate treatment analysis is

2of

that dreaded disease. There is no refutation that her physicians have certified that she suffered depression, loss of motivation, lack of concentration, cognitiv e dysfunction, among other disabling symptoms which are inherent in that disease. Rehabilitation Act cases are relevant in analyzing the ADA “because the ADA 3 speci fically mandates that its provisions be interpreted in a manner that prevent s impos itionof inconsistent or conflicting standards for the same requirements unde r [the ADA] and the Rehabilitation Act of 1973.” Benson , 62 F.3d at 1112 n.2. The majority's dominant concern with the burden-shifting analysis probabl y 4 resultedfrom the plaintiff's assertion that the Buckhorn termination was pretextual in kind. Notwithstanding, a court should not be mislead by a party's irrelevant argument of incor rect legal principles involved in any case. Here the issue of pretextuality was a nonissue simply because plaintiff did not rest her claim upon a basis of disparat e treatment. The mere fact that she argues it demonstrates only that h er counsel confused the ap plication of the burden-shifting analysis of McDonnell Douglas to a case o f discrimination under the ADA. In doing so, howev er, the court walks down the wrong path of analysis by finding no factual proof of pretextuality within the record. Onc e again, it should be clear that pretextuality cannot be an issue in a case brought under the ADA where the statutory basis of discrimination relates to the defendant’s failure to provide reasonable accomm odation. It should be obvious that whether the claim of -12- inappropriate. See Bultemeyer v. Fort Wayne Community Schs. , 100 F.3d 1281, 1283- 84 ( 7th Cir. 1996); see also Benson v. Northwest Airlines, Inc. , 62 F.3d 1108, 111 2 ( 8 th Cir. 1995) (stating that once the plaintiff makes a facial showing that reasonable
accommo dation is possible, the burden of production shifts to the employer to sho w that it is unable to accom

modate the employee); Wood v. Omaha Sch. Dist. , 985 F.2d 437, 439 (8th Cir. 1993) (stating that und er the Rehabilitation Act a plaintiff need only make a facial showing th at reasonable accommodation is possible and finding that the plaintiff met that burden by proposing certain accommodations); Arneson v. Heckler , 879 F. 2d 393, 396 (8th Cir. 1989) (reversing dismissal of Rehabilitation Act clai m because the plaintiff was “only required to provide evidence s ufficient to make ‘at least a facial showing that reasonab le accommodation is possible’” before the burden shifts to the emp loyer to prove it is unable to make the accommodation) (citation omitted). 3 Th us, it should be clear the McDonnell Douglas method of proof is irrelevant in thi s
case
. There is no question according to Mole’s physicians that she suffers from MS 4pretextuality is factually controv erted is immaterial. This question is totally subsumed

in the determination of whether the employer provided reasonable accommodation to a qualified person’s needs under the ADA. Mole claims that even without accommodation she was able to carry on her job 5 ata satisfactory level. Mole supports her claim with affidavits from co-workers an d custo mers who dealt with her and found her work satisfactory. Judge Loken reject s Mole’s claim by observing: “Supporting affidavits from fellow employees who did not deal with Mole on a systematic basis are insufficient to counter Buckhorn’s proof she was disc harged because she did not meet its legitimate expectations.” At the ver y least, however, this is an issue that a trier of fact should decide.
In Arne son , Judge Beam noted a possible accommodation to a disable d 6 employe e was to furnish “a clerical assistant” or transfer. Yet, Judge Loken foun d Mole ’s requests to have Buckhorn return to its previous three-person staffing of th e customer service department to be unreasonable. -13- andthat her symptoms affected her job performance. The relevant inquiry the n 5 becomes whether Buckhorn could or should have reasonably accommodated Mole’s illness.

Under t he present record, the reasonableness of the extent of Buckhorn’ s accommodation should be a question for th e trier of fact. See Wood , 985 F.2d at 439- 440; see also Arneson v. Heckler , 879 F.2d 393 (8th Cir. 1989) (J. Beam). Material 6 fa ctual disputes remain concerning whether Buckhorn can reasonably accommodat e Mole. The record is replete with additional accommod ations Mole contends Buckhorn could have made. The National Multiple Sclerosis Society’s information materials , which Buckhorn admittedly possessed, list several accommodations which could beThe Multiple Sclerosis Society’s brochure offered the following suggeste d 7 accomm odations, noting that “[r]easonable accommodations can include changes i n work schedules, job duties, workplace environment and employer attitudes:” Energy saving : rest period: flexible working hours (to avoid rush hour traffic, etc.); parking space close to entrance; office location close to rest room; communication system allowing use of intercom instead o f walking.
Environmental control : air conditioning, good lighting.
Accessi bility : ramps, wide doors, adaptable work station arrangements, grab bars in bathrooms.
Job modifications : trading nonessential duties for other tasks which do not conflict with functional limitations. Technological adaptations and devices : may have some cost attache d but also may be provided by outside sources. Dr. Asher testified that necessary accommodations would change from time to 8 time due to the disease, but would include the following: (1) permitting leaves o f absence for medical treatment and follow-up; (2) allowing rest breaks during the day t o regain energy; (3) limiting hours of work; (4) permitting the use of medication; (5) providin g an air-conditioned workplace; and (6) giving written instructions t o overcome memory deficits caused by the disease. -14- mad e to assist an employee with MS. Dr. Asher also listed several possibl e 7 accommodations in his deposition testimony. 8

Howe ver, the district court and now the majority emphasize that Mole canno t
overcome the defendant’s motion for summary judgment because she failed to make requests for accommodations in a timely manner. Such a defense does not logicall y or factually

exist upon a fair review of the record. The record shows that Mole made requests for accommodation during a meet ing held on July 14, 1994, the effective date of her termination. Mole re quested rest breaks, some days off, time for her doctors toApproxima tely a month before Mole was terminated, her doctors prescribed a 9 new medication, Betaseron, to treat her illness. Mole’s doctors testified that it would take some time to determine the therapeutic effect the Betaseron would have on Mole’s symptoms. The record indicates that Mole told Buckhorn representatives during the July 14, 1994, meeting that it would take time for her doctors to establish th e appropriate prescriptions and dosages to treat her illness. Although Mole’s last day of active employment was on June 30, 1994, the date 10 on which Buckhorn gave Mol e a two-week notice of termination, the notice expressly stat ed that “the date of [Mole’s] termination will be July 14, 1994.” Arguably, Mole was still employed by Buckhorn until the end of the day on July 14, 1994. -15- det ermine the proper prescriptions and dosages to manage her illness, and full y 9 staffing the customer service department. She also submitted a note to Buckhorn from Dr. Ash er stating that her MS was causing her work problems. Unfortunately, thi s court feels her requests came too late because she made t hem after she was terminated. The r ecord reveals, however, that Mole made her requests and submitted he r physici an’s letter the very same day that her termination was to take effect. 10 Considerin g the human concerns involved here, it is difficult to accept the majority opinion’s myopic view of the record. “A few hours’ tardine ss should not be the reason for cutting off the interactive process and cutting off a person’s rights under the ADA.” Bulteme yer , 100 F.3d at 1286. Mole’s delay was not lengthy or inexcusable. Afte r Mole requested accommodation on July 14, 1994, and presented her physician’s letter, Buckhorn could have reconsid ered its decision to terminate Mole and could have then included Mole and Dr. Asher in discussions regarding reasonable accommodations

. See id. Instead, Buckhorn’s officials refused to provide Mole any furthe r accommodation.

Even assuming we cannot credit Mole’s testimony that she requeste d
accom modation (albeit on summary judgment), or if we accept the majority’s finding that Mole’ s requests came too late, the record shows that Buckhorn kne w accommodation alternatives were available p rior to its termination of Mole. Buckhorn
was in direct contact with Mole’s physicians prior to July 14, 1994. Buckhorn knew Mole suffered from multiple sclerosis, and Buckhorn possessed informational29 C.F. R. § 1630.2(o)(3) reads: 11 To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an infor mal, interactive process wit h the qualified individual with a disability in need of th e accommodation. This process should identify the precise limitation s resu lting from the disability and potential reasonable accommodation s that could overcome those limitations. -16- broc hures that specified possible accommodations such as, “changes in work schedules, job duties, workplace environment and employer attitude(s).” To suggest that Buckhorn was not alerted to the need for reasonable accommodations ignores the histor ical facts. Buckhorn had conversations with Mole before her terminatio n regarding accommodations, and Buckhorn had in fact provided some accommodations to her. However, as Mole argues, Buckhorn “runs away from its own lawful dutie s
un der 29 C.F.R. § 1630.2(o)(3) to initiate an ‘interactive process’ and affirmatively 11 find out what will work.”
This court on prior occasion s has stated that summary judgment should be used only in rare instances in employment discrimination cases. See Davis v. Flemin g Cos., Inc. , 55 F.3d 1369, 1371 (8th Cir. 1995); Oldham v. West , 47 F.3d 985, 988 (8th Cir. 1995); Crawford v. Runyon , 37 F.3d 1338, 1341 (8th Cir. 1994). This admonition certainly applies to cases aris ing under the ADA. Today we simply give lip service to our earlier admonition. A fair reading of the record and the correct application of the proper standards require a different result.-17-

A true copy.

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