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Fischer v. Minneapolis Public Schools

United States Court of Appeals, Eighth Circuit

July 8, 2015

Danny Fischer, Plaintiff - Appellant
Minneapolis Public Schools, Defendant - Appellee

Submitted February 11, 2015.

Appeal from United States District Court for the District of Minnesota - Minneapolis.

For Danny Fischer, Plaintiff - Appellant: Thomas E. Marshall, Engelmeier & Umanah, Minneapolis, MN.

For Minneapolis Public Schools, Defendant - Appellee: Jonathan Paul Norrie, Alan Irving Silver, Bassford & Remele, Minneapolis, MN.

Before GRUENDER, SHEPHERD, and KELLY, Circuit Judges.


GRUENDER, Circuit Judge.

Danny Fischer sued Minneapolis Public Schools (" MPS" ) claiming that MPS violated the Americans with Disabilities Act (" ADA" ) and the Minnesota Human Rights Act (" MHRA" ) by refusing to reinstate him as a Janitor Engineer. The district court[1] granted MPS's motion for summary judgment. Fischer appeals this decision, and we affirm.


This employment dispute began with MPS's decision not to reinstate Danny Fischer as a Janitor Engineer after he failed a strength test. Fischer worked for MPS as a Janitor Engineer from March 2008 until July 2010. During this time, Fischer completed his duties satisfactorily. On July 1, Fischer was laid off for fiscal reasons, but he was eligible to be recalled and reinstated later.

On December 8, 2011, Fischer received a letter from Mary Alfredson, a human-resources employee at MPS, explaining that Fischer's name had been reached on the list of former employees who were subject to recall and thus Fischer was eligible for a vacant Janitor Engineer position. The letter further explained that Fischer's reinstatement was conditioned on his possession of a boilers license and his completion of a strength test created by Cost Reduction Technology (" CRT" ). Alfredson's letter stated, " if you pass [the CRT test] at the required level and have a current boilers license, we will proceed with the recall from layoff." Enclosed with the letter was a referral form that described the CRT test and included directions to the testing location. The form explained that the CRT test measured the " maximum force-producing capability of muscles" and also advised Fischer to wear workout clothes, rest, and drink plenty of water.

On the day of the CRT test, Fischer arrived and read a document explaining the test. He signed this document below a statement that said, " I have read the above information and I understand that I will be asked to give maximum effort and that I will be performing short bouts of strenuous exercise." Fischer completed the test, which required him to operate a machine by performing repetitions using his arms, legs, and back. Fischer called Alfredson later that day to let her know he had completed the test, and Alfredson promised to contact him when the results arrived. Alfredson called Fischer several days later and left a voice message explaining that Fischer did not pass the CRT test and was accordingly being bypassed for recall. Fischer took this to mean that " I would not be getting my job back." Fischer returned the phone call and was again told that he " was not going to get [his] job back and that [Alfredson] was going to be sending [him] a termination letter."

Fischer's CRT test yielded a composite score of 197.5, which corresponded with medium strength, just shy of the 201 score needed for the medium-heavy strength designation that MPS required for its Janitor Engineers. Before requiring the CRT test for recalled Janitor Engineers in August 2011, MPS decided that, given the position's physical demands, a CRT strength level of medium-heavy was appropriate for its Janitor Engineers based on a job-task analysis. CRT created these strength-level categories based on Department of Labor definitions of physical-demand requirements. There are eight such strength levels in total, ranging from sedentary to very heavy. Of the eight strength levels, medium-heavy is the third highest and is just above medium. According to CRT's definitions, a medium-heavy strength worker is able to exert 51 to 75 pounds of force on occasion, up to 100 times in eight hours, and 31 to 45 pounds of force frequently, up to 300 times in eight hours. By comparison, a medium strength worker is able to exert 36 to 50 pounds of force occasionally and 22 to 30 pounds of force frequently. The CRT test accordingly was designed to test a worker's physical ability relative to a given position's demands. Here, the medium-heavy strength designation was designed to match the demands of a Janitor Engineer's various physical tasks such as lifting a full five-gallon bucket, carrying trash to outside dumpsters, and moving racks of chairs and tables.

After Fischer learned from Alfredson that he would not be getting his job back, Fischer spoke to several MPS employees and his union representatives about the possibility of a retest. According to Fischer, several MPS employees told him or his mother that he failed the CRT test because of his back and that because of his failed CRT score, he was more likely to be injured on the job. Specifically, Fischer alleges that MPS employees told him that he was not reinstated because of his back, that he was " incapable of pulling, carrying, pushing, or lifting a heavy load," and that his employment would " create[] a substantial risk of injury in the work place." Eventually, Fischer contacted the president of CRT and was told that he failed to achieve a composite score of 201 because his score on the portion of the test that measured back strength was lower than his score for his arms and legs. CRT's president explained that Fischer's back score was not poor " but it's up to the company if they want to re-hire you or not." During this time after Fischer learned he would not be reinstated, he spoke to multiple MPS managers and employees about the unfairness of his situation, and he requested the opportunity to retake the CRT test. MPS denied his request for a retest.

Fischer sued MPS alleging that MPS violated the ADA, see 42 U.S.C. § 12101 et seq., and the MHRA, see Minn. Stat. § 363A.01et seq., by deciding not to reinstate him based on MPS's perception that Fischer was disabled. Fischer also alleged that MPS violated the MHRA by retaliating against him following his complaints about ...

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