Pohlen v. Mayorkas
U.S. District Court, District of Minnesota
Pohlen v. Mayorkas
Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Michelle Pohlen, Civ. No. 22-2185 (PAM/LIB)
Plaintiff,
v. MEMORANDUM AND ORDER
Alejandro N. Mayorkas, Secretary, United
States Department of Homeland Security,
Defendant.
This matter is before the Court on Defendant’s Motion for Summary Judgment. For
the following reasons, the Motion is granted.
BACKGROUND
Plaintiff Michelle Pohlen was an investigator with the Department of Homeland
Security’s investigative arm, Homeland Security Investigations (“HSI”), stationed in Rapid
City, South Dakota.1 She asserts that after a March 2020 sexual assault perpetrated by
another HSI employee, she began suffering panic attacks and other mental-health issues.
She alleged in her complaint that her condition was exacerbated by having to view images
of child pornography in the course of her assigned criminal investigations. (Am. Compl.
(Docket No. 12) ¶ 29.)
On March 11, 2021, Pohlen called her supervisor and told him that she had come
close to suicide the previous evening because of the way he treated her. (Id. ¶ 45.) As
DHS policy required, Pohlen then had to surrender her weapon and her credentials. Pohlen
1 A more complete recitation of the factual background is found in the Order granting
Defendant’s partial Motion to Dismiss. (Docket No. 23.)
requested FMLA leave to attend residential treatment, and also asked for a transfer to St.
Paul, Minnesota, as a “reasonable accommodation” for her mental-health issues. (Id. ¶¶
47, 48.) At that time, Pohlen did not request that HSI remove her from investigating sex
crimes.
In October 2021, as part of her request for an accommodation, Pohlen underwent an
independent psychological exam to determine whether she was fit for duty. (Holt Decl.
Ex. E (Docket No. 42).) The examiner found that Pohlen could perform the duties of an
investigator, but that she should not be required to “investigat[e] sexual crimes such as
child exploitation in the future due to her own past sexual trauma.” (Id. at 2.) Pohlen
amended her accommodation request in January 2022 asking that she “not be assigned to
sexual crimes due to my own past sexual trauma.” 2 (Docket No. 41-9.)
Because HSI considers the ability to investigate sex crimes an essential job
responsibility, HSI determined that Pohlen was no longer qualified to do the job, and
denied her transfer request. (Holt. Decl. Ex. F (Docket No. 41-5).) HSI offered Pohlen a
position in Duluth, Minnesota, that would not have required her to investigate sex crimes
(id. at 2), but she refused. HSI subsequently terminated Pohlen’s employment.
Pohlen filed this lawsuit in September 2022, shortly before her termination. Her
Amended Complaint initially raised four claims: hostile work environment and retaliation
in violation of Title VII, 42 U.S.C. § 2000e et seq., and disability discrimination and
2 Pohlen also requested reassignment to a Federal Air Marshal position in Edina, MN, but
as Defendant points out, the Air Marshals are a different division to which HSI has no
authority to reassign its employees.
retaliation in violation of the Rehabilitation Act, 42 U.S.C. § 12112(a). After the Court
granted Defendant’s partial motion to dismiss, the only claim that remains for resolution is
Pohlen’s claim that HSI failed to accommodate her disability in violation of the
Rehabilitation Act.
DISCUSSION
Summary judgment is proper if there are no disputed issues of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The Court
must view the evidence and inferences that “may be reasonably drawn from the evidence
in the light most favorable to the nonmoving party.” Enter. Bank v. Magna Bank of Mo.,
92 F.3d 743, 747(8th Cir. 1996). The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,477 U.S. 317, 323
(1986). A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials, but must set forth specific facts in the record showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 256
(1986).
At issue in this Motion is whether Pohlen can establish the prima facie elements of
her Rehabilitation Act claim that Defendant failed to accommodate her disability.
Defendant asks the Court to determine that Pohlen was not a qualified individual under the
Rehabilitation Act as a matter of law. Pohlen asserts that this determination is fact-based
and is premature given that discovery is in its early stages.
The Rehabilitation Act, similar to the Americans with Disabilities Act (“ADA”),3
prohibits discrimination against an “otherwise qualified individual with a disability . . . ,
solely by reason of her or his disability.” 29 U.S.C. § 794. Discrimination under the Act encompasses an employer’s failure to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.”42 U.S.C. § 12112
(b)(5)(A). Thus, an essential element of a disability-discrimination claim is that the aggrieved employee be “otherwise qualified” for the position. To be so qualified, the employee must “(1) possess the requisite skill, education, experience, and training for [her] position, and (2) be able to perform the essential job functions, with or without reasonable accommodation.” Fenney v. Dakota, Minn. & E. R.R. Co.,327 F.3d 707, 712
(8th Cir. 2003) (internal quotation omitted); see also42 U.S.C. § 12111
(8).
The question here is whether Pohlen could avoid investigating sex crimes and still
perform the essential functions of her job. The regulations provide several factors to
consider when determining whether a function is essential:
(i) The employer’s judgment as to which functions are essential; (ii) Written
job descriptions prepared before advertising or interviewing applicants for
the job; (iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the
function; (v) The terms of a collective bargaining agreement; (vi) The work
experience of past incumbents in the job; and/or (vii) The current work
experience of incumbents in similar jobs.
29 C.F.R. § 1630.2(n)(3). “Essential functions of a position are the fundamental duties of 3 “[D]ecisions interpreting either the ADA or the Rehabilitation Act are applicable and interchangeable to claims under each statute.” Hill v. Walker,737 F.3d 1209, 1216
(8th Cir. 2013) (quotation omitted). the job, but not its marginal functions and ‘much of the information which determines those essential functions lies uniquely with the employer.’” Hill v. Walker,737 F.3d 1209, 1217
(8th Cir. 2013) (quoting Kallail v. Alliant Energy Corp. Servs., Inc.,691 F.3d 925, 930
(8th Cir. 2012)) (internal citation omitted). Indeed, “the employer’s judgment [as to what constitutes the essential functions of a job] is considered ‘highly probative.’” Kammueller v. Loomis, Fargo & Co.,383 F.3d 779, 786
(8th Cir. 2004) (quoting Alexander v. The Northland Inn,321 F.3d 723, 727
(8th Cir. 2003).
Defendant has proffered evidence that it considered the ability to investigate sex
crimes an essential function. Defendant argues that the job description for the position
indicated as such by citing to the job requirements of familiarity with and investigations of
violations of the federal criminal code, which includes sex crimes. (Brown Decl. Ex. A
(Docket No. 38-1); see also Holt Decl. Ex. A (Docket No. 41-1) at 3 (describing
investigator’s responsibility to investigate “human trafficking and smuggling”); id. at 7
(investigators are required to have “knowledge of a wide-range of criminal statutes”
including those prohibiting sex trafficking).) The job description for HSI investigator
provides that investigators are
responsible for the conduct of criminal investigations that protect the United
States (U.S.) against terrorism, criminals and criminal organizations that
threaten the nation’s safety and national security, combatting transnational
criminal enterprises that seek to exploit America’s legitimate trade, travel
and financial systems; and upholding and enforcing U.S. customs and
immigration laws at and beyond our nation’s borders.
(Holt Aff. Ex. A at 2.) This broad description undoubtedly encompasses investigating sex
trafficking. And Pohlen concedes that she investigated sex crimes as part of her job duties,
when she estimated that investigating sex crimes “constituted less than 5% of my overall
investigative workload.” (Docket No. 48 ¶ 10 (emphases omitted).)
Pohlen first responds that she could investigate sex crimes but sought only to avoid
looking at child pornography.4 Second, she asserts that she requires additional discovery
to determine the amount of time other investigators in her office spent investigating sex
crimes, and the work experience of others in the same job with regard to the investigation
of sex crimes. Her attorney filed an affidavit under Fed. R. Civ. P. 56(d) attesting to the
discovery Pohlen contends is necessary before summary judgment may be entered.
(Docket No. 47.)
The record belies Pohlen’s first contention that she was not precluded from
investigating sex crimes. The independent psychological examiner concluded that Pohlen
should not be required to “investigat[e] sexual crimes such as child exploitation in the
future due to her own past sexual trauma.” (Holt Aff. Ex. E.) When Pohlen inquired of
the examiner whether he meant all sex crimes or just child pornography, he reiterated that
he “does not recommend [Pohlen] be assigned to sexual crimes.” (Docket No. 41-6.) And
Pohlen herself amended her accommodation request “requesting not to be assigned to
sexual crimes” (Docket No. 41-9), not merely to be exempt from viewing child
pornography.
Pohlen underwent another psychological examination in January 2023 to support
her allegations in this lawsuit. This psychologist reiterated that “investigations of sex
4 Pohlen notes that HSI has a program allowing its investigators to opt out of viewing child
pornography.
crimes would certainly exacerbate [Pohlen’s] conditions and reactivate her PTSD.”
(Docket No. 39 at 10.) Indeed, the psychologist opined that “[t]hese types of work
activities would be disqualifying because it would risk reactivating [Pohlen’s] trauma.”
(Id.) Pohlen’s expressed willingness to investigate sex crimes is beside the point. See
Denson v. Steak ’n Shake, Inc., 910 F.3d 368, 371(8th Cir. 2018) (noting that “an employee’s subjective belief that he or she can perform the essential functions of the job is irrelevant”); see also Alexander,321 F.3d at 727
(8th Cir. 2003) (finding 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”). There is no genuine issue of fact as to whether
Pohlen could investigate sex crimes; the only evidence in the record is that she could not
do so.5
The record is also clear that the investigation of sex crimes is an essential function
of Pohlen’s position, and no further discovery will change that conclusion. “A job function
may be essential if the reason the position exists is to perform that function.” Hill, 737
F.3d at 1217. The facts of Hill are instructive. Hill, a case worker in the Arkansas Department of Human Services, requested that the Department reassign one of her cases because she was experiencing “frequent anxiety and panic attacks” as a result of that client’s harassment and verbal abuse.Id. at 1214
. When the Department refused, Hill 5 Although Pohlen’s Rule 56(d) affidavit claims that Defendant’s interpretation of the independent psychological examiner’s report is a matter that warrants further discovery, the report was not ambiguous, and both the initial examining psychologist and Pohlen’s expert psychologist confirm the report’s opinion regarding Pohlen’s inability to investigate sex crimes. Further discovery on this issue is unnecessary. brought suit under the ADA and Rehabilitation Act. The Eighth Circuit Court of Appeals affirmed the grant of summary judgment in favor of the employer, finding that Hill was not a “qualified individual” under the statute. Although Hill had requested only to be removed from a single particularly stressful case, the Court of Appeals determined that “Hill’s suggestion that the Department must carve out her work on one stressful case and deem it a nonessential function is inconsistent with the nature of the position.”Id. at 1217
. And “[b]ecause removing Hill from the case would have required assumption of that function by another Family Service Worker, removal was not a reasonable accommodation.”Id.
The Court therefore found that the “handling of stressful cases, including this particular case, was an essential function of [Hill’s] position.”Id.
The same result obtains here: HSI cannot “carve out” work on sex crimes for its
investigators. An employer “need not reallocate or eliminate the essential functions of a
job to accommodate a disabled employee.” Kallail, 691 F.3d at 932(internal quotation omitted). And although Pohlen insists that she spent very little time investigating sex crimes during her tenure as an investigator, her “specific personal experience is of no consequence in the essential functions equation.” See Dropinski v. Douglas Cnty., Neb.,298 F.3d 704, 709
(8th Cir. 2002). As Defendant points out, an investigator must be able
to investigate all aspects of federal crimes wherever that investigation leads. If, for
example, a drug-trafficking conspiracy is discovered to have a sex-trafficking component,
the assigned investigator must investigate that sex trafficking. Reassigning a case mid-
stream is not feasible or tenable. (See Brown Decl. Ex. A at 6 (job description noting that
investigators “focus on suspected major offenses or violations of Federal laws where the
investigative assignment requires an extended period of time, i.e., days, weeks, or months,
for completion”).)
HSI offered Pohlen a transfer to a different job that would have accommodated her
stated inability to investigate sex crimes. But similar to Hill, Pohlen refused to accept any
accommodation other than being excused from investigating sex crimes. As such, she
“cannot show that she was able to perform the essential function of her position with a
reasonable accommodation,” and her claim fails. Hill, 737 F.3d at 1217-18. More
discovery will not change this conclusion.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant’s Motion for Summary Judgment (Docket No. 35) is GRANTED;
and
2. This matter is DISMISSED with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: February 22, 2024 s/Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Michelle Pohlen, Civ. No. 22-2185 (PAM/LIB)
Plaintiff,
v. MEMORANDUM AND ORDER
Alejandro N. Mayorkas, Secretary, United
States Department of Homeland Security,
Defendant.
This matter is before the Court on Defendant’s Motion for Summary Judgment. For
the following reasons, the Motion is granted.
BACKGROUND
Plaintiff Michelle Pohlen was an investigator with the Department of Homeland
Security’s investigative arm, Homeland Security Investigations (“HSI”), stationed in Rapid
City, South Dakota.1 She asserts that after a March 2020 sexual assault perpetrated by
another HSI employee, she began suffering panic attacks and other mental-health issues.
She alleged in her complaint that her condition was exacerbated by having to view images
of child pornography in the course of her assigned criminal investigations. (Am. Compl.
(Docket No. 12) ¶ 29.)
On March 11, 2021, Pohlen called her supervisor and told him that she had come
close to suicide the previous evening because of the way he treated her. (Id. ¶ 45.) As
DHS policy required, Pohlen then had to surrender her weapon and her credentials. Pohlen
1 A more complete recitation of the factual background is found in the Order granting
Defendant’s partial Motion to Dismiss. (Docket No. 23.)
requested FMLA leave to attend residential treatment, and also asked for a transfer to St.
Paul, Minnesota, as a “reasonable accommodation” for her mental-health issues. (Id. ¶¶
47, 48.) At that time, Pohlen did not request that HSI remove her from investigating sex
crimes.
In October 2021, as part of her request for an accommodation, Pohlen underwent an
independent psychological exam to determine whether she was fit for duty. (Holt Decl.
Ex. E (Docket No. 42).) The examiner found that Pohlen could perform the duties of an
investigator, but that she should not be required to “investigat[e] sexual crimes such as
child exploitation in the future due to her own past sexual trauma.” (Id. at 2.) Pohlen
amended her accommodation request in January 2022 asking that she “not be assigned to
sexual crimes due to my own past sexual trauma.” 2 (Docket No. 41-9.)
Because HSI considers the ability to investigate sex crimes an essential job
responsibility, HSI determined that Pohlen was no longer qualified to do the job, and
denied her transfer request. (Holt. Decl. Ex. F (Docket No. 41-5).) HSI offered Pohlen a
position in Duluth, Minnesota, that would not have required her to investigate sex crimes
(id. at 2), but she refused. HSI subsequently terminated Pohlen’s employment.
Pohlen filed this lawsuit in September 2022, shortly before her termination. Her
Amended Complaint initially raised four claims: hostile work environment and retaliation
in violation of Title VII, 42 U.S.C. § 2000e et seq., and disability discrimination and
2 Pohlen also requested reassignment to a Federal Air Marshal position in Edina, MN, but
as Defendant points out, the Air Marshals are a different division to which HSI has no
authority to reassign its employees.
retaliation in violation of the Rehabilitation Act, 42 U.S.C. § 12112(a). After the Court
granted Defendant’s partial motion to dismiss, the only claim that remains for resolution is
Pohlen’s claim that HSI failed to accommodate her disability in violation of the
Rehabilitation Act.
DISCUSSION
Summary judgment is proper if there are no disputed issues of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The Court
must view the evidence and inferences that “may be reasonably drawn from the evidence
in the light most favorable to the nonmoving party.” Enter. Bank v. Magna Bank of Mo.,
92 F.3d 743, 747(8th Cir. 1996). The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,477 U.S. 317, 323
(1986). A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials, but must set forth specific facts in the record showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 256
(1986).
At issue in this Motion is whether Pohlen can establish the prima facie elements of
her Rehabilitation Act claim that Defendant failed to accommodate her disability.
Defendant asks the Court to determine that Pohlen was not a qualified individual under the
Rehabilitation Act as a matter of law. Pohlen asserts that this determination is fact-based
and is premature given that discovery is in its early stages.
The Rehabilitation Act, similar to the Americans with Disabilities Act (“ADA”),3
prohibits discrimination against an “otherwise qualified individual with a disability . . . ,
solely by reason of her or his disability.” 29 U.S.C. § 794. Discrimination under the Act encompasses an employer’s failure to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.”42 U.S.C. § 12112
(b)(5)(A). Thus, an essential element of a disability-discrimination claim is that the aggrieved employee be “otherwise qualified” for the position. To be so qualified, the employee must “(1) possess the requisite skill, education, experience, and training for [her] position, and (2) be able to perform the essential job functions, with or without reasonable accommodation.” Fenney v. Dakota, Minn. & E. R.R. Co.,327 F.3d 707, 712
(8th Cir. 2003) (internal quotation omitted); see also42 U.S.C. § 12111
(8).
The question here is whether Pohlen could avoid investigating sex crimes and still
perform the essential functions of her job. The regulations provide several factors to
consider when determining whether a function is essential:
(i) The employer’s judgment as to which functions are essential; (ii) Written
job descriptions prepared before advertising or interviewing applicants for
the job; (iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the
function; (v) The terms of a collective bargaining agreement; (vi) The work
experience of past incumbents in the job; and/or (vii) The current work
experience of incumbents in similar jobs.
29 C.F.R. § 1630.2(n)(3). “Essential functions of a position are the fundamental duties of 3 “[D]ecisions interpreting either the ADA or the Rehabilitation Act are applicable and interchangeable to claims under each statute.” Hill v. Walker,737 F.3d 1209, 1216
(8th Cir. 2013) (quotation omitted). the job, but not its marginal functions and ‘much of the information which determines those essential functions lies uniquely with the employer.’” Hill v. Walker,737 F.3d 1209, 1217
(8th Cir. 2013) (quoting Kallail v. Alliant Energy Corp. Servs., Inc.,691 F.3d 925, 930
(8th Cir. 2012)) (internal citation omitted). Indeed, “the employer’s judgment [as to what constitutes the essential functions of a job] is considered ‘highly probative.’” Kammueller v. Loomis, Fargo & Co.,383 F.3d 779, 786
(8th Cir. 2004) (quoting Alexander v. The Northland Inn,321 F.3d 723, 727
(8th Cir. 2003).
Defendant has proffered evidence that it considered the ability to investigate sex
crimes an essential function. Defendant argues that the job description for the position
indicated as such by citing to the job requirements of familiarity with and investigations of
violations of the federal criminal code, which includes sex crimes. (Brown Decl. Ex. A
(Docket No. 38-1); see also Holt Decl. Ex. A (Docket No. 41-1) at 3 (describing
investigator’s responsibility to investigate “human trafficking and smuggling”); id. at 7
(investigators are required to have “knowledge of a wide-range of criminal statutes”
including those prohibiting sex trafficking).) The job description for HSI investigator
provides that investigators are
responsible for the conduct of criminal investigations that protect the United
States (U.S.) against terrorism, criminals and criminal organizations that
threaten the nation’s safety and national security, combatting transnational
criminal enterprises that seek to exploit America’s legitimate trade, travel
and financial systems; and upholding and enforcing U.S. customs and
immigration laws at and beyond our nation’s borders.
(Holt Aff. Ex. A at 2.) This broad description undoubtedly encompasses investigating sex
trafficking. And Pohlen concedes that she investigated sex crimes as part of her job duties,
when she estimated that investigating sex crimes “constituted less than 5% of my overall
investigative workload.” (Docket No. 48 ¶ 10 (emphases omitted).)
Pohlen first responds that she could investigate sex crimes but sought only to avoid
looking at child pornography.4 Second, she asserts that she requires additional discovery
to determine the amount of time other investigators in her office spent investigating sex
crimes, and the work experience of others in the same job with regard to the investigation
of sex crimes. Her attorney filed an affidavit under Fed. R. Civ. P. 56(d) attesting to the
discovery Pohlen contends is necessary before summary judgment may be entered.
(Docket No. 47.)
The record belies Pohlen’s first contention that she was not precluded from
investigating sex crimes. The independent psychological examiner concluded that Pohlen
should not be required to “investigat[e] sexual crimes such as child exploitation in the
future due to her own past sexual trauma.” (Holt Aff. Ex. E.) When Pohlen inquired of
the examiner whether he meant all sex crimes or just child pornography, he reiterated that
he “does not recommend [Pohlen] be assigned to sexual crimes.” (Docket No. 41-6.) And
Pohlen herself amended her accommodation request “requesting not to be assigned to
sexual crimes” (Docket No. 41-9), not merely to be exempt from viewing child
pornography.
Pohlen underwent another psychological examination in January 2023 to support
her allegations in this lawsuit. This psychologist reiterated that “investigations of sex
4 Pohlen notes that HSI has a program allowing its investigators to opt out of viewing child
pornography.
crimes would certainly exacerbate [Pohlen’s] conditions and reactivate her PTSD.”
(Docket No. 39 at 10.) Indeed, the psychologist opined that “[t]hese types of work
activities would be disqualifying because it would risk reactivating [Pohlen’s] trauma.”
(Id.) Pohlen’s expressed willingness to investigate sex crimes is beside the point. See
Denson v. Steak ’n Shake, Inc., 910 F.3d 368, 371(8th Cir. 2018) (noting that “an employee’s subjective belief that he or she can perform the essential functions of the job is irrelevant”); see also Alexander,321 F.3d at 727
(8th Cir. 2003) (finding 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”). There is no genuine issue of fact as to whether
Pohlen could investigate sex crimes; the only evidence in the record is that she could not
do so.5
The record is also clear that the investigation of sex crimes is an essential function
of Pohlen’s position, and no further discovery will change that conclusion. “A job function
may be essential if the reason the position exists is to perform that function.” Hill, 737
F.3d at 1217. The facts of Hill are instructive. Hill, a case worker in the Arkansas Department of Human Services, requested that the Department reassign one of her cases because she was experiencing “frequent anxiety and panic attacks” as a result of that client’s harassment and verbal abuse.Id. at 1214
. When the Department refused, Hill 5 Although Pohlen’s Rule 56(d) affidavit claims that Defendant’s interpretation of the independent psychological examiner’s report is a matter that warrants further discovery, the report was not ambiguous, and both the initial examining psychologist and Pohlen’s expert psychologist confirm the report’s opinion regarding Pohlen’s inability to investigate sex crimes. Further discovery on this issue is unnecessary. brought suit under the ADA and Rehabilitation Act. The Eighth Circuit Court of Appeals affirmed the grant of summary judgment in favor of the employer, finding that Hill was not a “qualified individual” under the statute. Although Hill had requested only to be removed from a single particularly stressful case, the Court of Appeals determined that “Hill’s suggestion that the Department must carve out her work on one stressful case and deem it a nonessential function is inconsistent with the nature of the position.”Id. at 1217
. And “[b]ecause removing Hill from the case would have required assumption of that function by another Family Service Worker, removal was not a reasonable accommodation.”Id.
The Court therefore found that the “handling of stressful cases, including this particular case, was an essential function of [Hill’s] position.”Id.
The same result obtains here: HSI cannot “carve out” work on sex crimes for its
investigators. An employer “need not reallocate or eliminate the essential functions of a
job to accommodate a disabled employee.” Kallail, 691 F.3d at 932(internal quotation omitted). And although Pohlen insists that she spent very little time investigating sex crimes during her tenure as an investigator, her “specific personal experience is of no consequence in the essential functions equation.” See Dropinski v. Douglas Cnty., Neb.,298 F.3d 704, 709
(8th Cir. 2002). As Defendant points out, an investigator must be able
to investigate all aspects of federal crimes wherever that investigation leads. If, for
example, a drug-trafficking conspiracy is discovered to have a sex-trafficking component,
the assigned investigator must investigate that sex trafficking. Reassigning a case mid-
stream is not feasible or tenable. (See Brown Decl. Ex. A at 6 (job description noting that
investigators “focus on suspected major offenses or violations of Federal laws where the
investigative assignment requires an extended period of time, i.e., days, weeks, or months,
for completion”).)
HSI offered Pohlen a transfer to a different job that would have accommodated her
stated inability to investigate sex crimes. But similar to Hill, Pohlen refused to accept any
accommodation other than being excused from investigating sex crimes. As such, she
“cannot show that she was able to perform the essential function of her position with a
reasonable accommodation,” and her claim fails. Hill, 737 F.3d at 1217-18. More
discovery will not change this conclusion.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant’s Motion for Summary Judgment (Docket No. 35) is GRANTED;
and
2. This matter is DISMISSED with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: February 22, 2024 s/Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge Reference
- Status
- Unknown