The HONORABLE JOSEPH H. BATAILLON, United States District Judg e for 1 the District of Nebraska, sitting by designation. The Honorable Patrick

A. Conmy, United States District Judge for the District 2 of North Dakota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2989

___________ Judith Moritz, * * Appellant, * * Appeal from the United States v. * District Court for the * District of North Dakota. Frontier Airlines, Inc., * * Appellee. *

___________ Submitted: March 9, 1998 Filed: July 7, 1998

___________ Before WOLLMAN and LOKEN, Circuit Judges, and BATAILLON, District Judge. 1

___________ WOLLMAN, Circuit Judge.
Judith Moritz appeals from the district court’s grant of summary judgment i n 2 fa vor of Frontier Airlines, Inc. (Frontier) on her claims of discrimination under th e Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. , and the North-2-

Dak otaHuman Rights Act (NDHRA), N.D. Cent. Code §§ 14-02.4-01 et seq. W e affirm.

I.

Moritz wa s diagnosed with multiple sclerosis in 1990. In late 1993 and earl y 199 4, this diagnosis was questioned and Moritz became unsure of her condition. She later learned that Frontier planned to introduce flight service to Bismarck, North Dakota. Convincedthat she was in good health, she applied for and was given a position as a Fronti er station agent on June 6, 1994. At the time, Frontier represented that the jo b respon sibilities for that position included ticket counter and gate duties only. Later, it added baggage and aircraft servicing (ramp duties) to the responsibili ties of the position. In late 1994 or early 1995, Frontier published a “Frontier Airlines Job Posting” t o advertise openings for future station agent positions in Bismarck. This document stated that the position “will encompass involvement in our ENTIRE f light activity operation.” Appellee’s A ppendix at 1 (emphasis in original). The job posting also detailed th e statio n agent duties, which included ticketing, gate check-in, passenger assistance , bagga ge handling, and mail and freight handling. Ticket counter work was primaril y limited to checking in passengers, loading their bags onto a conveyor behind th e counter, completing paperwork, and, if necessary, running a late-arriving passenger’s bag to the aircraft. Gate work co nsisted primarily of taking passengers’ tickets as they boarded the flights and assisting handicappe d passengers on and off the aircraft. Ramp work involved the most strenuous duties, including the loading and unloading o f baggage and freight from the aircraft.
Moritz was hired by Frontier during the start-up of its Bi smarck flight operations. All stat ion agents were permitted to bid on job shifts at Bismarck under a seniorit y system devised b y Frontier management. The seniority system was based solely upon employee age. Moritz, who was third in seni ority, bid a shift that included ramp, ticket counter, and departure gate duties. In the fall of 1994, Moritz’s multiple sclerosis-3-

worsened and she began to experien ce weakness in her right leg. With the approval of Lyle Beyerle, Frontier’s Bisma rck station manager, she traded shifts with a co-worker, enabling her to work additional time at the ticket counter rather than the ramp.

In November of 1994, a new flight schedule required that all of the Bismarc k station agents re-bid their job shifts. Moritz bid and received a shift that allowed her to work exclusively inside at the ticket counter and gate. As a result of the shift change, Ken Wolbaum , a co-worker of Moritz’s, was forced to take a shift with more ramp duties. After the shift change was initiated, Wolbaum continually expressed hi s dissatisfaction with the senio rity system and frequently targeted Moritz with degrading and harassing remarks.

In January of 1995, Moritz’s physician confirmed the diagnosis of multipl e sclerosis. Mor

itz informed Beyerle of the diagnosis and her need for accommodation. Specificall y, she requested that she be relieved from gate duties. Her requests wer e supported by a letter from her physician. Although Beyerle informed Moritzthat he was unable to guarantee her a long-term slot in an inside shift, he assured her that he would make every effort to keep her at the ticket counter or the gate, even if it meant infringing the seniority system. Moritz continued working her gate duty on Sundays and was able to perform her job with the he lp of Sara Thiel, a part-time co-worker, who volunteered to help Moritz by assisting passengers who needed help boarding and dep laning aircraft.
Meanwhile, Moritz had discussed Wolbaum’s harassment with Beyerle an d requested that something be done about it. Beyerle held a meeting with a number o f employees, including Wolbaum, to discuss the ADA and Moritz’s health. Morit z alleges that the harassment continued and that her repeated complaints to Beyerle were i n effective. Beyerle maintains that he was not apprised of the continuing harassment.-4-

On March 20, 1995, Moritz wrote a letter to Terry White, Frontier’s regiona l direc tor, explaining the dispute over the seniority system and complaining o f Wo lbaum’s conduct. After informing Moritz that he would handle the situation, a n employee in Frontier’s Human Resources Department contacted Wolbaum and told him his harassing behavior would no longer be tolerated. Although it is disputed whether Wolb aum continued his improper behavior, we assume for our purposes that i t continued.

In April of 1995, the shifts were again rebid and Moritz was able to retain he r shift. This time, however, the flight schedule change resulted in Thiel’s reassignment to another shift. Moritz alleges that she informed Beyerle that she could not work gate duty w ithout assistance and requested that an assistant be put back on gate duty or, in the alternative, that she be permitted to work the ticket counter exclusively. Morit z resigne d her position on April 29, 1995, apparently as the result of Wolbaum’ s haras sment

and the difficulties she faced performing gate duties without Thiel’ s assistance.

Moritz filed charges against Frontier with the Equal Employment Opportunity Commission and received a “right to sue” letter. She th en filed this action, alleging that Frontier’ s actions (and inaction with respect to Wolbaum’s harassment) were i n violation of t he ADA and the NDHRA. She also alleged that Frontier was liable fo r intentional infliction of emotiona l distress. The district court granted Frontier’s motion for summary judgment on Moritz’s discrimination claims and declined to retai n jurisdiction over her emotional distress claims under 28 U.S.C. § 1367(c)(3).

II.
We review the grant of su mmary judgment de novo , applying the same standard
as the district court, affirming if the facts, viewed in a light most favorable to Moritz, reveal no genuine issues of material fact and demonstrate that Frontier is entitled toUnder the ADA, a disability is: 3 (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. 42 U.S.C. § 12102(2). -5- judgment as a matter of law. See The Prudential Ins. Co. of America v. Doe , 140 F.3d 785, 790 (8th Cir. 1998). In order to prevail on her claim, Moritz must establish that she is disabled as defined in 42 U.S.C. § 12102(2); that she is qualified to perform the essential functions of the job, with or without reasonable accommodation; and that she ha s suffered adverse employment action as a result of her disability. See Benson v

. Northwest Airlines, Inc. , 62 F.3d 1108, 1112 (8th Cir. 1995).
There appears to be no dispute that Moritz, as a result of her confirmed diagnosis of multiple sclerosis, i s considered a person with a disability within the meaning of the ADA. The ADA affords prote ction to any “qualified individual with a disability.” 42 3 U.S.C. § 12112(a). To be considered a qualified individual, Moritz must (1) possess the re quisite skill, education, experience, and training for the position; and (2) be able to perform the essential job functions, with or without reasonable accommodation. See 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m). The parties agree that Moritz meets the first element of qualification.

The decisive issue, then, is whether Moritz was able to perform the essentia l functions of

her job, with or without reasonable accommodation. See Cassidy v

. Detroit Ediso n Co. , 138 F.3d 629, 633-34 (6th Cir. 1998) (employee “bears the initial burden of proposing an accommodation and showing that the accommodation i s objectively rea sonable.”). An essential function “means the fundamental job duties of the employment position the individual with a disability holds or desires. The term-6-

‘essential functions’ does not include the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1). Frontier asserts that Moritz cannot perform the essential functions of a station agent either with or without reasonab le accommodation. Moritz responds that with a reason able accommodation she could perform the job. The district court found that the essential functions of Moritz’s position included only her duties as a ticket agent and gate agent. Because it appears undisputed that Moritz was able to satisfactoril y perform her ticket counter duties, we direct our inquiry to her gate duties. The task s that comprised this function included taking tickets, counting passengers, and assisting elde rly and disabled passengers during boarding and deplaning. Moritz contends that passenger assistance is not an essential function of the station agent position.

An essential function may be established by evidence that includes: (1) “[t]h e employer’s judgment as to which functions are essential”; (2) [w]ritten job descriptions prepared before ad vertising or interviewing applicants for the job”; (3) “the amount of time spent on th e job performing the function”; (4) “the consequences of not requiring the incumbent to perform the function”; and (5) “the current work experience o f incumbents in similar jobs.” 29 C.F.R. § 1630.2(n)(3). Moritz reli es upon the last three factors in support of her argument. First, she asserts that she needed help in assisting passenger s for only a few minutes per week. Second, she contends that becaus e Frontier knew that she was being assisted by Thiel, the airline would not suffer a detriment by s upplying her with a helper. Finally, Moritz argues that because Beyerle served a s an additional helping hand during weekdays, she should be entitled to th e same assistance.

A number of factors support a different conclusion. First, it is apparent that i n Fr ontier’s judgment, passenger assistance is an essential function of the station agen t pos ition. Station agents were expected to perform a wide variety of duties as th e situation at Bi smarck changed. Indeed, Moritz was informed when she was hired that the position would include gate duties. Moritz als o fails to consider Frontier’s situation-7-

as a st artup airline with a limited budget for staffing its Bismarck operations, for th e consequences of not requiring a station agent to assist passengers are evident

. Moreover, the reg ulations direct that “[a] job function may be considered essential for any of sever al reasons, including but not limited to the following: . . . (ii) The function may b e essential because a limited number of employees available among whom th e perfor mance of that job function can be distributed.” 29 C.F.R. § 1630.2(n)(2). W e believe that Frontier’s efforts to support a seven-day flight schedul e with its limited staff fall squ arely within the situation contemplated by the regulation. Accordingly, w e conclude that the district court correctly determined that passenger assistance was an essential function of Moritz’s job.
We turn to the ques tion whether Moritz could assist Frontier’s passengers, with
or without a reasonable accommodation. Her own testimony establishes that she was unab le to satisfactorily facilitate passenger boarding and deplaning without th e assistan ce of a co-worker. This limitation was also observed by her physician

. Moreover, Moritz admitted that she had difficulty performing other gate duties tha t involved walking up and do wn the jetways that led from the gate to the aircraft. Thus, the district court correctly determined that she could not perform the essential functions of her position without accommodation.
Finally, we conclude that

the district court correctly found that Moritz could not perform the essential fu nctions of her position with a reasonable accommodation. The po ssibility of a reasonable accommodation is part of Moritz’s initial burden whe n presenting her prima facie case of disability discrimination. See Cody v. Cign a Healthcare of St. Louis, Inc. , 139 F.3d 595, 598 (8th Cir. 1998). Her only suggestions for accommodation include the request that Frontier either allow her to work exclusively at the ticket counter or else to provide her with an assistant while performing her gate duties. Neither of these accommodations can be considered reasonable and, in fact , both fail to comport with established ADA discrimination law.Moritz’s argument that she only r equired a helper for a few minutes each week 4 is unpersuasive. It is unrealistic to suggest that Frontier either hire or reassign a n employee to cover two twenty-minute shifts during Front ier’s Sunday flight operations. -8- It is well settled that an employer is under no obligation to re allocate the essential functions of a position that a qualified individual must perform. See Benson , 62 F.3d at 1112-13; 29 C.F.R. pt. 1630, app. § 1630.2(o); Holbrook v. City of Alpharetta , Georgia , 112 F.3d 1522, 1528 (11th Cir. 1997) (small police department with thre e detectives not required to eliminate essential function of crime scene investigation for disabled detective). As a result, Frontier is not required to revise its bidding system or to e liminate Moritz’s gate duties. See Wooten v. Farmland Foods , 58 F.3d 382, 38 6 (8th Cir. 1995) (“employer is not required to make accommodations that would violate the rights of other employees”). Furthermore, Frontier is not obl igated to hire additional employees or reassign existing workers to assist her in her gate duties. See Cochrum
v. O ld Ben Coal Co. , 102 F.3d 908, 912 (7th Cir. 1996) (assignment of helper no t reasonable accommodation); Gilbert v. Frank , 949 F.2d 637, 644 (2d Cir. 1991 ) (reass igning tasks to co-workers was not reasonable accommodation unde r Rehabilitation Act of 1973); Cassidy , 1 38 F.3d at 634; Harden v. Delta Air Lines, Inc. , 900 F. Supp. 493, 498 (S.D. Ga. 1995) (airline customer service agent required t o perform all job duties when needed to assist in other areas). Accordingly, Morit z 4

cann ot show that she is a qualified individual under the ADA and therefore has no t established a prima facie case of disability discrimination. See Price v. S-B Powe r Tool , 7 5 F.3d 362, 365 (8th Cir.), cert. denied , 117 S. Ct. 274 (1996). Likewise , because the North Dakota Supreme Court has adopted a similar analysis under th e NDHRA, Moritz’s claim under state law must also fai l. See Zimmerman v. Minot Pub. Sch. Dist. No.1 , 574 N.W.2d 797, 799 (N.D. 1998).-9- III.

Moritz contends th at the district court erroneously disregarded her ADA hostile environme nt

harassment claim. Although we are uncertain whether such a cause o f action exis ts, our conclusion that Moritz has failed to establish a prima facie case o f discrimination suffices to render her harassment argument meritless. “I n all constructive discharge and hara ssment cases under the ADA, . . . the plaintiff must first make out a prima facie case of discrimination or face dismissal of her claim.” Cody , 139 F.3d at 598. Moritz may not seek the protections of the ADA for her harassment claim an y more than she may for her discriminatio n claim. Finally, it is important to note that our holding does not completely prevent Moritz from seeking redress in state court fo r Wolbaum’s behavior or Frontier’s alleged failure to curtail it.
The judgment is affirmed.
A true copy.

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