Filed: Jul. 06, 2000
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 99-2699 _ Randall Boersig, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Union Electric Company; * International Brotherhood of Electrical * Workers, Local 1439, * * Appellees. * _ Submitted: April 13, 2000 Filed: _ Before BOWMAN, MAGILL, and HANSEN, Circuit Judges. _ MAGILL, Circuit Judge. Randall Boersig appeals from the district court's1 grant of summary judgment in favor
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 99-2699 _ Randall Boersig, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Union Electric Company; * International Brotherhood of Electrical * Workers, Local 1439, * * Appellees. * _ Submitted: April 13, 2000 Filed: _ Before BOWMAN, MAGILL, and HANSEN, Circuit Judges. _ MAGILL, Circuit Judge. Randall Boersig appeals from the district court's1 grant of summary judgment in favor ..
More
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-2699
___________
Randall Boersig, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Union Electric Company; *
International Brotherhood of Electrical *
Workers, Local 1439, *
*
Appellees. *
___________
Submitted: April 13, 2000
Filed:
___________
Before BOWMAN, MAGILL, and HANSEN, Circuit Judges.
___________
MAGILL, Circuit Judge.
Randall Boersig appeals from the district court's1 grant of summary judgment in
favor of Union Electric Company (Union Electric) and the International Brotherhood
of Electrical Workers, Local 1439 (Local 1439), on his claims under the Americans
with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. For reasons to be discussed,
1
The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
we affirm.
I. BACKGROUND
A. Randall Boersig's Physical Disabilities and Related Work Restrictions
Boersig, a forty-three year old white male, began working for Union Electric in
1986 as an automotive mechanic helper. He remained in that position until
approximately November 1989, at which time he joined Union Electric's Meter Testing
and Installation Department (Meter Division) as a Meter and Installation Helper
(Helper). The Helper job is an entry-level position, and Helpers are the lowest paid
workers in the Meter Division. Understandably, after working for approximately one
decade as a Helper, Boersig wanted to move into other higher paying positions within
the Meter Division.
Since the mid-1980s, Boersig has been involved in a series of automobile and
workplace accidents which have left him with physical impairments affecting both his
knees, both his wrists, his right hip and his left shoulder. He has undergone multiple
surgeries to these parts of his body. Boersig's physical impairments culminated in
permanent medical restrictions forbidding the following conduct: 1) kneeling, 2)
squatting, and 3) lifting over twenty-five pounds. In addition to these permanent
medical restrictions, the record reveals that Boersig has claimed difficulty climbing
ladders and handling tools. Notwithstanding these medical restrictions, Boersig is able
to perform the Helper job functions with accommodations provided by Union Electric.
He uses a stool or sits on the floor to avoid kneeling and squatting, and Union Electric
reassigns tasks involving heavy lifting to Boersig's coworkers.
B. Union Electric's Promotional System
The Meter Division constitutes a promotional series with the following positions:
-2-
1) Meter Helper, 2) Meter Installer, 3) Meter Repairman, 4) Power Meterman, and 5)
Meter Standards Tester. The promotional system at issue in this case is the product
of a collective bargaining agreement (CBA) between Union Electric and Local 1439.
Under the CBA, when a vacancy occurs within a particular promotional series, it is first
offered to members at the next highest level of the promotional series on the basis of
their "promotional series seniority." If no one at that level is interested, the position is
similarly offered to members at the next highest level, and so on.2 If no employee
within the relevant promotional series is qualified or interested, the vacancy is placed
on a bid list, copies of which are posted for five working days on bulletin boards
accessible to all employees covered by the CBA. The position is then filled by the
bidder with the most seniority, provided that he or she has the ability and qualifications
to do the job.
C. Boersig Denied Promotion to Meter Installer Because of Disability
Sometime during the first half of 1994, Boersig expressed interest in promotion
to the position of Meter Installer (Installer). In May 1994, when an Installer position
became available, Boersig was wearing a leg brace and had just returned from wrist
surgery. Richard Guenther, the superintendent of the Meter Department at that time,
knew Boersig was interested, but also knew about Boersig's injuries and was concerned
that Boersig would not be able to handle the physical requirements of the Installer job.3
2
For example, if a Meter Repairman position becomes available, the CBA
requires that it be offered to all Meter Installers on the basis of their promotional series
seniority before it is offered to any Helper.
3
The Meter Installer job involves installing, repairing, and removing residential
and commercial electric meters. An Installer generally works alone, driving between
job sites in a company van containing the Installer's tools and a fiberglass ladder. The
fiberglass ladder currently used by Union Electric's Installers is nineteen feet long and
weighs forty-eight pounds. The ladder can be broken down into two sections.
(continued...)
-3-
In late June or early July 1994, Boersig asked Ed LaFaver, Meter Shop supervisor, to
permit him to "go outside" and observe or try the Installer job so that he could
determine whether he could do it despite his physical limitations. Boersig suggested
to LaFaver that he could perform the Installer job by climbing ladders "one-legged."
LaFaver told plaintiff that he did not want to train someone who would be unable to
perform the job.
Union Electric asked Dr. Bryan Rogers to review the Installer Job Description
and consult with Boersig's physicians to determine whether Boersig could safely
perform the Installer position. Based on Dr. Roger's report, the restrictions from
Boersig's physicians, and the observations of Boersig's supervisors, Union Electric
determined that Boersig could not safely perform the Installer job. On July 25, 1994,
after consulting with Boersig and Boersig's physicians, Guenther sent plaintiff a letter
that stated:
On July 11, 1994, we met in Ed LaFaver's office to inform you of our
determination as to your fitness for promotion to fill a vacancy in the
position of Electric Meter Installer, Grade II. It was our determination
that your physical limitations would prevent you from safely and
effectively performing these job duties. Therefore, promotion was denied.
From that time on, Union Electric filled vacancies that occurred in its Installer
3
(...continued)
Meter Installers are required to reconnect service at service outlets. Although
the meter is usually at eye level, the service outlet to which the meter is connected can
be up to eighteen feet off the ground. In situations such as these, the Installer must
transport his ladder from his van to the location of the service outlet, set up the ladder,
and then ascend it to gain access to the outlet itself. Once up the ladder, the Installer
"makes up" the outlet by installing wire into a "split bolt connector" and then covers
and tapes the connector. Service is usually energized at 240 volts while the Installer
is working.
-4-
positions with Helpers who had less seniority than plaintiff. Boersig never filed a
grievance with Local 1439 or a charge with the Equal Employment Opportunity
Commission (EEOC) or the Missouri Commission on Human Rights (MCHR). When
future Installer positions became available, Boersig failed to request any reasonable
accommodations to allow him to successfully perform the job.
D. Boersig Denied Promotion to Meter Repairman Because of CBA's Seniority
Provision
In 1996, a Meter Repairman position became available. In accordance with the
CBA, Union Electric offered it to employees then working on the same promotional
level series. Gina Perry, who had been promoted to an Installer position in February
1995 (after plaintiff would have been promoted but for the alleged discrimination),
sought and received the Repairman job.
On December 10, 1996, Boersig submitted a grievance report to Local 1439.
Boersig wrote, "The company has denied promotion. This action has resulted in
employees with less dept[artmental] seniority to advance in the promotional series. The
denial of promotion dates to July 1994." Plaintiff requested as a remedy "promotion
to Repairman status."
On December 20, 1996, Boersig filed another charge of discrimination with the
EEOC. In the charge, plaintiff alleged that he had "been denied consideration for
promotion to both Meter Installer and to Meter Repairman." Plaintiff explained, "On
Monday, November 25, 1996, Gina Perry was to begin as Meter Repairman, having
passed me over for promotion." Plaintiff described the discrimination as continual
since April 5, 1996.
On October 7, 1997, Boersig commenced the instant action against defendants
Union Electric and Local 1439, alleging unlawful denial of promotion to Repairman
-5-
and Installer. The district court granted defendants' motions for summary judgment on
both claims. This appeal followed.
II. ANALYSIS
A. Repairman Position
1. Reasonable Accommodation
The ADA prohibits an employer from discriminating against a qualified
individual with a disability by failing to make "reasonable accommodations to the
known physical or mental limitations" of that individual. 42 U.S.C. § 12112(b)(5)(A).
The issue before us is whether this provision requires an employer to provide an
accommodation to a disabled employee that would directly violate the promotional
series seniority system maintained by an employer and a union under the terms of a
CBA. We hold that it does not.
Boersig first argues that Union Electric should have accommodated him by
promoting him instead of Gina Perry to the Repairman position in November 1996. At
the time the Repairman position became available, Boersig was a Helper and Perry
worked as an Installer. Boersig acknowledges that the CBA required Union Electric
to give hiring preferences to Installers over Helpers when filling vacant Repairman
positions. However, Boersig argues that he should have been awarded the Installer
position in 1994 or 1995. If he had been promoted at that time, Boersig would have
had more promotional series seniority than Perry when Union Electric filled the
Repairman position.
Insofar as Boersig's argument relies on Union Electric's alleged failure to
promote him to Installer in 1994 and 1995, his argument fails. In granting summary
judgment in favor of the defendants, the district court concluded that Boersig's
-6-
reasonable accommodation claim was time-barred because Boersig filed his EEOC
complaint more than 300 days after the effective date of Union Electric's unlawful
actions. See 42 U.S.C. § 2000e-5(e)(1) (applicable to ADA claims under 42 U.S.C.
§ 12117(a)). We agree with the district court. Boersig cannot now resurrect his time-
barred claims by challenging Union Electric's adherence to the promotional system
clearly set forth in the CBA.
Boersig also argues that Union Electric should accommodate his disability by
simply promoting him directly from Helper to Repairman. Boersig argues that he is
fully capable of performing all Repairman duties in a safe and effective manner, and,
thus, Union Electric should promote him to Repairman ahead of Installers who would
otherwise be entitled to the position under the CBA's promotional system. In light of
unambiguous Eighth Circuit precedent, we reject Boersig's arguments.
In Benson v. Northwest Airlines, Inc., 62 F.3d 1108 (8th Cir. 1995), we held that
the ADA does not require an employer to accommodate a disabled employee by
violating a "bona fide" seniority system. A "bona fide" seniority system has been
defined as "one that was created for legitimate purposes, rather than for the purpose of
discrimination." Eckles v. Consolidated Rail,
94 F.3d 1041, 1046 n.7 (7th Cir. 1996).
Boersig offers no evidence that Union Electric and Local 1439 incorporated the
promotion system at issue in this case to discriminate against the disabled. Thus,
Boersig has failed to demonstrate that the promotion system is not "bona fide."
Moreover, although the CBA's promotional system is based on departmental seniority
rather than total length of employment, we find that this CBA creates a seniority system
which Union Electric was not required to violate to accommodate Boersig's disability.
See
Benson, 62 F.3d at 1114.
2. Disparate Impact
Boersig attempts to avoid the rule announced in Benson, a reasonable
-7-
accommodation case, by invoking a disparate impact theory of ADA liability, which
defines discrimination as including the use of "selection criteria that screen out or tend
to screen out an individual with a disability or a class of individuals with disabilities"
unless such criteria are "shown to be job-related for the position in question and [are]
consistent with business necessity." 42 U.S.C. § 12112(b)(6). Boersig argues that,
because employees with his disability are unable to perform the duties of an Installer,
the CBA's requirement that Union Electric offer vacant Repairman positions to
Installers before Helpers is a selection criterion that is "unlawful as applied to him"
because it has "the effect of discriminating against him because of his disability without
any sound business justification." We reject Boersig's argument.
Although the term "selection criteria" is used in both Title VII and the ADA,
Boersig has cited no cases to this Court supporting his argument that a bona fide
seniority system fits within the definition of "selection criteria." Boersig has not
convinced us that seniority systems should be considered "selection criteria" for
purposes of 42 U.S.C. § 12112(b)(6). Including seniority systems within the definition
of "selection criteria" would jeopardize many carefully negotiated CBAs because
virtually all seniority systems contain prerequisites for movement between jobs. Many
of these prerequisites "screen out" disabled employees from certain jobs within the
seniority system. Unless an employer renegotiates this kind of seniority system with
the union to allow certain accommodations for disabled employees, Boersig's "disparate
impact" argument would require an employer to accommodate a disabled employee by
violating the express terms of a CBA. However, we have repeatedly held that the ADA
does not require an employer to "take action inconsistent with the contractual rights of
other workers under a collective bargaining agreement." See, e.g., Benson, 62 F.3d at
1114. For similar reasons, the ADA does not require an employer to renegotiate a bona
fide seniority system to avoid "screening out" a disabled employee who may not be able
to reach the highest rung on a promotional series because of disability.
Seniority systems contained in CBAs, such as the one involved in the instant
-8-
case, create rights in union members which are protected by the National Labor
Relations Act (NLRA), 29 U.S.C. § 151-187. Our Benson decision recognizes the
importance of protecting these rights from unnecessary interference arising from the
perceived need to accommodate a disabled employee under the ADA. We believe that
these rights are entitled to protection regardless of whether a plaintiff seeks a
reasonable accommodation or claims the seniority system has a disparate impact on
disabled employees. In either case, the plaintiff invites the court to disrupt a carefully
negotiated agreement between union and employer at the expense of other union
employees who hold legitimate expectations of advancement based on the governing
CBA. This sort of judicial intrusion into labor relations is unwarranted unless an
employee can show that a seniority system was designed to discriminate against the
disabled. Because we find the promotional system in the instant case is a bona fide
seniority system, we reject Boersig's disparate impact claim.
B. Installer Position
Boersig also argues that Union Electric unlawfully failed to promote him when
Installer positions became available in 1996 and 1997. The district court granted
summary judgment against Boersig, finding that Boersig failed to propose or request
reasonable accommodation in order to perform the Installer positions. After a review
of the record and the parties' briefs, we affirm. See 8th Cir. R. 47B.
III. CONCLUSION
In sum, we affirm the district court's rulings in their entirety.4
4
After careful consideration of the record and the parties' briefs, we reject all
other arguments Boersig raises in this appeal without further comment.
-9-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-10-
