LeBlanc v. McDonough

39 F.4th 1071

Jesse LEBLANC, Plaintiff - Appellant,

v.Denis MCDONOUGH, in his official capacity as Secretary of the United States Department of Veterans Affairs, Defendant - Appellee.

No. 21-2965

United States Court of Appeals, Eighth Circuit.

Submitted: March 16, 2022

Filed: July 14, 2022

Taylor Brandt Cunningham, Stacy Deery Stennes, Conlin Law Firm, Minneapolis, MN, for Plaintiff-Appellant.

Ana H. Voss, Assistant U.S. Attorney, U.S. Attorney's Office, District of Minnesota, Minneapolis, MN, for Defendant-Appellee.

Before GRASZ, STRAS, and KOBES, Circuit Judges.

KOBES, Circuit Judge.

Jesse LeBlanc, an employee of the Department of Veterans Affairs, sued Denis McDonough, Secretary of the Department of Veterans Affairs, for disability discrimination. LeBlanc alleged three violations of the Rehabilitation Act:¹ failure to accommodate; disability discrimination; and retaliation for requesting an accommodation. The district court² granted summary judgment to Secretary McDonough. We affirm.

I.

LeBlanc worked for the Department of Veterans Affairs Police Department (VAPD). Under the VAPD's "Panama Schedule," officers work either only day shifts from 8:00 a.m. to 8:00 p.m., or night shifts from 8:00 p.m. to 8:00 a.m. Every two weeks, officers switch between days and nights.

Six years after starting his job with the VAPD, LeBlanc was diagnosed with vestibular dysfunction, which causes dizziness and blurred vision. LeBlanc realized that his irregular hours were exacerbating his symptoms, and requested accommodations from the VAPD, mainly that he "work [a] schedule with a stable pattern."³ LeBlanc clarified in an email that working exclusively day shifts was the "main accommodation" he was seeking. The VAPD temporarily let LeBlanc work days while it considered his request. LeBlanc reported that his symptoms improved during that time and that he had "never felt better."

A few months after LeBlanc was put on day shifts, Eric Blumke, the acting Chief of Police of the VAPD, expressed concerns about the arrangement. He told Dr. Charity Hovre, a VAPD Accommodation Coordinator, that LeBlanc's accommodation caused gaps in police coverage and required other officers to cover extra nights. The VAPD's legal team later advised Chief Blumke and Dr. Hovre to deny LeBlanc's request. The lawyers believed that giving LeBlanc exclusively day shifts would violate the VAPD's collective bargaining agreement, which dictates that "[s]cheduled off-tours shall be rotated fairly and equitably among affected employees, i.e., day/evening, day/night." They worried that LeBlanc's requested accommodations would continue to force other employees to cover his nights, potentially in breach of the collective bargaining agreement. So, the VAPD provided LeBlanc with an alternative accommodation—reassignment to another position. Chief Blumke told LeBlanc that this accommodation would meet his needs without violating the VAPD's collective bargaining agreement.

Unhappy with his reassignment, LeBlanc asked the VAPD to reconsider. He argued that he and his doctors never said that he couldn't work night shifts; rather, they said that a day shift schedule might improve his symptoms. He also offered to get notes from four doctors saying that he could work night shifts, and said that he interpreted his prior doctors’ notes as conveying only that it "would be nice to have [day shifts]." The Associate Director of the Medical Center considered the relevant evidence and denied LeBlanc's request for reconsideration, concluding that reassignment to a position with stable day shifts was "appropriate and justified."

LeBlanc accepted the offer of reassignment and was hired as a transportation assistant at the VA. Around that time, he applied for jobs as a detective and as a training instructor with the VAPD. Two other people, Mason Hlady and Edward Weaver, also applied for both positions.

A panel of three then-current and former VAPD employees interviewed the applicants for the detective position. Chief Blumke was not a panelist, but retained ultimate authority over hiring. Each applicant was given a numerical score representing his qualifications. Hlady scored the highest, with a 99; LeBlanc scored 90 and Weaver scored 74. Chief Blumke hired Hlady.

The hiring process for the training instructor position involved the same applicants, the same panelists, and the same scoring method. This time, LeBlanc scored 131, and Weaver scored 114.⁴ Chief Blumke acknowledged that LeBlanc's score was "significantly higher" than Weaver's. But then Chief Blumke received some disturbing news. According to a rumor he heard "third or fourth hand," LeBlanc said during the interview process that he would flee if there were an active shooter. Chief Blumke followed up on this by emailing Nicole Hlady (the wife of candidate Mason Hlady), who said that a VA nurse had told her that LeBlanc had said that. Chief Blumke contacted the nurse, who confirmed that LeBlanc said that VAPD officers are not required to confront active shooters and that, if he were involved in such a situation, he would flee. LeBlanc denies ever saying that.

In light of these allegations, Chief Blumke held a second round of interviews for the training instructor position. Instead of the original panelists, Chief Blumke and Jeff Smith, an administrative officer, conducted the interview themselves. Chief Blumke asked questions that hinted at the underlying allegations against LeBlanc, including: "[i]f you had an employee who was found to be promoting a message that is contrary to what has been trained, how would you handle that situation?" and "[w]hat would you do if you did not agree with the training or how it was to be presented?" Ultimately, LeBlanc received a score of 49 and Weaver scored 62. Suspiciously (at least to LeBlanc), both interviewers gave identical scores across all 17 categories.

Also unlike the first round of interviews, Chief Blumke requested references for each candidate. The first reference gave a positive recommendation for Weaver but had less favorable things to say about LeBlanc, noting that attention to detail and personal motivation were "not a strong suit of Officer LeBlanc," and that he "was more inclined to be independent of others, and not so much inclined to align himself with others or to promote himself as a team member." The second reference gave positive recommendations for both applicants.

The third reference gave a positive recommendation for Weaver, but a less favorable one for LeBlanc, stating: "I don't believe Jesse [LeBlanc] interacts with medical staff too well from what I've observed .... Jesse is very concerned about his ‘image’ and doesn't seem to accept a team-work philosophy in the work setting." After considering these references, Chief Blumke hired Weaver.

LeBlanc sued Secretary McDonough in his official capacity, alleging that: (1) the VAPD failed to provide him a reasonable accommodation for his disability; (2) the VAPD discriminated against him on the basis of his disability when it didn't hire him as a training instructor; and (3) the VAPD's decision not to hire him was retaliation for his accommodation request. The district court granted summary judgment to Secretary McDonough on all claims. It reasoned that the VAPD provided a legitimate, non-discriminatory reason for not hiring LeBlanc—that he wasn't the best applicant based on his recommendations, second round scores, and alleged comments at the first interview. It concluded that LeBlanc had not shown that the VAPD's proffered reason was pretextual, so there was no genuine dispute of material fact sufficient to survive summary judgment. LeBlanc appeals, arguing that the district court erred by granting summary judgment on his failure to accommodate and failure to hire claims.⁵

II.

We review the grant of summary judgment de novo , drawing all reasonable inferences in favor of LeBlanc. Correia v. Jones , 943 F.3d 845, 847 (8th Cir. 2019). "Summary judgment is only appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Id. (quotation omitted).

A.

LeBlanc first argues that the VAPD failed to reasonably accommodate his vestibular dysfunction.⁶ The Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability ... be subjected to discrimination ... under any program or activity conducted by any Executive agency." 29 U.S.C. § 794(a). The VAPD therefore must provide reasonable accommodations for employees with a disability unless it "can demonstrate that the accommodation would impose an undue hardship." 29 C.F.R. § 1630.9(a).

We conclude that LeBlanc's requested accommodation was not required under the Rehabilitation Act because it would impose an undue hardship on the VAPD. His request was primarily for exemptions from the VAPD's Panama Schedule. LeBlanc asked for "[a] work schedule with a stable pattern" rather than rotating between night and day shifts. He also asked for "[l]imited night shifts," "[l]imited overtime," "[l]imited weekend shifts," and the "[a]bility to call in for sick leave on short notice, if needed." But those accommodations would have violated the VAPD's collective bargaining agreement, which requires that "[s]cheduled off-tours shall be rotated fairly and equitably among affected employees, i.e., day/evening, day/night." LeBlanc's requested accommodations are therefore presumptively unreasonable. See US Airways, Inc. v. Barnett , 535 U.S. 391, 394, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002) ("[T]o show that a requested accommodation conflicts with the rules of a seniority system is ordinarily to show that the accommodation is not ‘reasonable.’ "); see also Faulkner v. Douglas Cnty. , 906 F.3d 728, 734 (8th Cir. 2018) ("[T]he ADA does not require that [employers] take action inconsistent with the contractual rights of other workers under a collective bargaining...