United States Court of Appeals

For the Eighth Circuit

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No. 18-1039

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Garry Denson

lllllllllllllllllllllPlaintiff - Appellant

v.

Steak ‘n Shake, Inc.

lllllllllllllllllllllDefendant - Appellee

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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Submitted: September 27, 2018

Filed: December 3, 2018

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Before WOLLMAN, KELLY, and ERICKSON, Circuit Judges.

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WOLLMAN, Circuit Judge.

Garry Denson appeals fromthe district court’s order granting Steak ‘n Shake’s 1

motion for summary judgment on his Americans with Disabilities Act (ADA)

discrimination claim and his Missouri Workers’ Compensation claim. We affirm.

The HonorableCatherine D. Perry, UnitedStatesDistrict Judge for the Eastern 1

District of Missouri.
Denson broke his hip in 2010 and underwent total hip replacement surgery. 

His surgeon determined that Denson had reached “maximum medical improvement”

in the fall of 2011 and permanently restricted Denson to clerical or sedentary work,

with no lifting. An administrative law judge deemed Denson disabled in September

2012 and awarded him Social Security benefits.

In November 2014, Steak ‘n Shake hired Denson as a fountain operator at its

O’Fallon, Missouri, location. The fountain operator job required employees to stand,

bend, stretch, and walk throughout the shift, as well as to lift and carry up to thirty

pounds. Denson informed Steak ‘n Shake that he suffered back problems and had

undergone hip replacement surgery. In contrast with his permanent medical

restrictions, Denson stated that he could lift approximately fifteen to thirty pounds. 

Denson fell twice at Steak ‘n Shake in early 2015. Denson commenced

physical therapy in October 2015 through Steak ‘n Shake’s workers’ compensation

program. In January 2016, David King, M.D., examined Denson and initially

restricted himto: no lifting more than thirty pounds; no kneeling, squatting, stooping,

or climbing; and no walking or standing for more than forty-five minutes per hour. 

Dr. King examined Denson again on February 5, 2016, and concluded that he had

reached “maximum medical improvement.” Dr. King rescinded his former opinion

and recommended that Denson remain on the original surgeon’s medical restrictions

of clerical or sedentary work with no lifting. Steak ‘n Shake thereafter removed

Denson fromthe work schedule for a safety evaluation and later terminated Denson’s

employment.

Denson subsequently filed a discrimination charge with the Missouri

Commission on Human Rights and the Equal Employment Opportunity Commission

(EEOC). In the charge questionnaire, Denson claimed that Steak ‘n Shake could have

accommodated his disability by transferring him to “the host, dishroom, and/or prep

person” position, all of which required periods of standing. The EEOC issued

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Denson a right to sue letter. Denson then filed suit in federal district court, alleging

that Steak ‘n Shake had terminated his employment because of his disability in

violation of the ADA and that Steak ‘n Shake had retaliated against him in violation

of the Missouri Workers’ Compensation statute. Steak ‘n Shake moved for summary

judgment on both claims.2

We review de novo the grant of summary judgment, “viewing all evidence and

reasonable inferences in the light most favorable to the nonmoving party.” Barstad

v. Murray Cty., 420 F.3d 880, 883 (8th Cir. 2005). Summary judgment is appropriate

where “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).

To establish a prima facie case of disability discrimination, a plaintiff “must

show that he (1) has a ‘disability’ within the meaning of the ADA, (2) is a ‘qualified

individual’ under the ADA, and (3) ‘suffered an adverse employment action as a

result of the disability.’” Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 711

(8th Cir. 2003) (quoting Duty v. Norton–Alcoa Proppants, 293 F.3d 481, 490 (8th

Cir. 2002)). “To be a ‘qualified individual’ within the meaning of the ADA, an

employee must ‘(1) possess the requisite skill, education, experience, and training for

h[is] position, and (2) be able to perform the essential job functions, with or without

reasonable accommodation.’” Id. at 712 (alteration in original) (quoting Heaser v.

Toro Co., 247 F.3d 826, 830 (8th Cir. 2001)). 

Denson failed to show that he was a qualified individual within the meaning

of the ADA. Although he believed that he could perform the essential job functions

of the fountain operator, Denson’s permanent medical restrictions barred him from

Denson did not respond to Steak ‘n Shake’s argumentsin support ofsummary 2

judgment on the retaliation claim, and the district court correctly deemed the claim

waived. 

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performing the dutieslaid out in the job description, which he admitted were accurate. 

We have held that “[t]he ADA does not require an employer to permit an employee

to perform a job function that the employee’s physician has forbidden” and that an

employee’s subjective belief that he or she can perform the essential functions of the

job is irrelevant. Alexander v. Northland Inn, 321 F.3d 723, 727 (8th Cir. 2003). 

Denson also argued that Steak ‘n Shake could have accommodated him by

transferring him to the dish room, prep person, or host position at any Steak ‘n Shake

location within the St. Louis metropolitan area. But Denson admitted that these jobs

were not sedentary or clerical when he conceded that these positions required

employees to stand for long periods of time. According to his medical restrictions,

Denson could not perform the essential functions of these jobs. Denson was thus not

a qualified individual and his prima facie case of discrimination fails. For the same

reasons, a failure-to-accommodate claim would also fail. See Moses v. Dassault

Falcon Jet-Wilmington Corp., 894 F.3d 911, 921, 924 (8th Cir. 2018) (concluding

that plaintiff’s failure-to-accommodate claim failed when plaintiff could not show he

was a qualified individual).

The judgment is affirmed. 

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