author: WOLLMAN, Circuit Judge. BEAM, Circuit Judge,

text:
    Branden KITTLE-AIKELEY; Michael Barrett, IV; Jacob Curliss; John Doe, Plaintiffs-Appellees v. Dr. Shawn STRONG, in his official capacity as President of State Technical College of Missouri; Toni R. Schwartz, in her official capacity as member of the State Technical College of Missouri Board of Regents; John Klebba, in his official capacity as member of the State Technical College of Missouri Board of Regents, Defendants-Appellants Christopher T. Davidson, Defendant Bruce Darrough, in his official capacity as member of the State Technical College of Missouri Board of Regents; Mark J. Collom, in his official capacity as member of the State Technical College of Missouri Board of Regents; Erick V. Kern, in his official capacity as member of the State Technical College of Missouri Board of Regents; J. Scott Christianson, in his official capacity as member of the State Technical College of Missouri Board of Regents, Defendants-Appellants Member, in his/her official capacity as member of the State Technical College of Missouri Board of Regents, Defendant Branden Kittle-Aikeley; Michael Barrett, IV; Jacob Curliss; John Doe, Plaintiffs-Appellees v. Dr. Shawn Strong, in his official capacity as President of State Technical College of Missouri; Toni R. Schwartz, in her official capacity as member of the State Technical College of Missouri Board of Regents; John Klebba, in his official capacity as member of the State Technical College of Missouri Board of Regents, Defendants-Appellants Christopher T. Davidson, Defendant Bruce Darrough, in his official capacity as member of the State Technical College of Missouri Board of Regents; Mark J. Collom, in his official capacity as member of the State Technical College of Missouri Board of Regents; Erick V. Kern, in his official capacity as member of the State Technical College of Missouri Board of Regents; J. Scott Christianson, in his official capacity as member of the State Technical College of Missouri Board of Regents, Defendants-Appellants Member, in his/her official capacity as member of the State Technical College of Missouri Board of Regents, Defendant
    No. 13-3264, No. 14-1145
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 13, 2016
    Filed: December 22, 2016

      Kent L. Brown, Jefferson City, MO, argued (Judith Anne Willis, on the brief), for appellants.
    Anthony E. Rothert, American Civil Liberties Union of Missouri Foundation, St. Louis, MO, argued (Grant R. Doty, American Civil Liberties Union , of Missouri Foundation, St. Louis, MO, Jason D. Williamson, American Civil Liberties Union, New York, N.Y., Gillian R. Wilcox, American Civil Liberties Union of Missouri Foundation, Kansas City, MO, on the brief), for appellees.
    Before RILEY, Chief Judge, WOLLMAN, BEAM, LOKEN, MURPHY, SMITH, COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges, En Banc.

      . President Shawn Strong is -substituted for his predecessor, Donald M. Claycomb. See Fed. R. App. P. 43(c)(2). Linn State Technical College has been renamed and is now known as State Technical College of Missouri. See Mo. Rev. Stat. § 178.631.

      . Board member Bruce Darrough is substituted for his predecessor, Diane Benetz. See Fed. R. App. P. 43(c)(2).

   WOLLMAN, Circuit Judge.

Shawn Strong, in his official capacity as President, pf, State .Technical College of Missouri (Linn State), along with members of the Board of Regents of Linn State, also in their official capacities, appeal from the district court’s grant of a permanent injunction and subsequent tentative grant of attorneys’ fees in favor of the plaintiffs, a class of current and future Linn State students (collectively, the Students). The permanent injunction prohibits Linn State from fully implementing a new drug-testing policy, which requires incoming students to submit to urinalysis. A divided panel of this court reversed both the permanent injunction and the fee award. Kittle-Aikeley v. Claycomb, 807 F.3d 913 (8th Cir. 2015). We granted the Students’ petition for rehearing en banc, and we now affirm the judgment, except to the extent that it orders the defendants to refund any fees that Linn State had charged for unconstitutional drug testing. We dismiss for lack of jurisdiction Linn State’s appeal from the tentative grant Of attorneys’ fees and costs.

I. Background

Linn State is a two-year technical college whose main campus is located in Linn, Missouri. It was established by" statute in 1961 and remains a publicly funded institution. Its purpose is to “make available to students from all areas of the state exceptional educational opportunities through highly specialized and advanced technical education and training at the certificate and associate degree level in'both emerging and traditional technologies with particular emphasis on technical and vocational programs not commonly offered by community colleges or area vocational technical schools.” Mo. Rev. Stat. § 178.636(1). The technical and vocatiohal programs that Linn State offers “lead[ ] to the granting of certificates, diplomas, and applied science associate degrees.” Id. § 178.636(2). Between 1,150 and 1,200 students were enrolled in Linn State in 2011, and approximately 500 new students enroll each year.

Linn State.offers at least twenty-eight educational programs, which are divided into the following five divisions: Mechanical, Electrical, Civil, Computer, and General . Education. Many of the programs involve practical, hands-on training. For example, students in the Aviation Maintenance program spend roughly 62% of their time doing hands-on training, working in close proximity to active propeller blades. Those students are also required .to “taxi” airplanes by moving them along a runway. Students in the Industrial Electricity, program spend about half their time, engaged in hands-on training. They work with live electricity and occasionally perform electrical services for members of the community. Students in the Design Drafting Technology program spend 61% of their time in the lab, where they complete manual drafting, using a pencil and paper, and computer-aided drafting, using computer software.

A. Drug Testing and Drug Use at Linn State

In addition to the mandatory drug-testing policy at issue in this case, Linn State has a discretionary drug-testing policy that allows the college to drug test students who are" involved in an accident on campus or with • a Linn State vehicle. Linn State also has required drug testing of students who appear to be impaired. Students who enroll in the college’s Heavy Equipment Operations program must undergo drug testing as a condition of obtaining commercial driver’s licenses. Some employers require students to be drug tested before beginning internships, but those tests are completed by the employer and do not involve Linn State.

Accidents are not common at Linn State, and the college has not attributed any accidents to student drug use. Donald Claycomb, who served as President of Linn State from July 1993 until July 2016, could not recall any serious accidents like those involving death or loss of a limb. He estimated that the college recommended that a student seek medical attention in five to ten cases per year, but he did not know whether Linn State had drug tested any students following an accident. He also did not know whether any on-campus accidents could be attributed to student drug use. Richard Pemberton, Associate Dean of Student Affairs, recounted the injuries that three students had suffered in separate accidents, but as far as he knew, none of those accidents involved drugs or alcohol. Several Linn State instructors were asked whether they knew of any accidents caused by student drug use, but none did. Moreover, there was no indication of student drug use in any of Linn State’s fifty-one accident reports dating back to 2001.

Although Linn State had no reason to believe that it had a student drug-use problem greater than any other college’s, Dean Pemberton began investigating in 2010 whether Linn State nevertheless should require its incoming students to be drug tested. The impetus, he explained, was his review of responses to a survey of Linn State advisory council members. The survey had asked whether Linn State should drug test its students, and most of the members who responded said that- it should. After Dean Pemberton discussed the matter with members of Linn State’s faculty and administration, he-began developing a drug-testing policy that, would require all incoming degree- or certificate-seeking students to be tested. He also worked on implementation procedures and materials to explain the new policy to students.

B. Linn State’s Mandatory Drug-Testing Policy

On June 17, 2011, Linn State’s Board of Regents adopted the following drug-testing policy:

Linn State Technical College will begin a drug screening program in the fall semester of 2011 for students who are newly classified as degree or certificate seeking and degree or certificate seeking students returning after one or more semesters of non-enrollment at the Linn State Technical College campus or any Linn State Technical College location.

According to Linn State, the purpose of the policy is “to provide a safe, healthy[,] and productive environment for everyone who learns and works at Linn State Technical College by detecting, preventing[,] and deterring drug use and abuse among students.” Linn State advanced four rationales for the policy: to maintain a safe, secure, drug-free, and crime-free school; to deter and prevent student drug use and abuse; to identify students who need assistance; and to promote student health. The policy’s goals focused on encouraging students to be drug free, as well as, improving Linn State’s retention and graduation rates.

Linn State set forth the procedures by which it planned to implement the policy. Within the first ten days of the 2011 fall semester, incoming students would be required to submit a urine sample, which would thereafter be tested for eleven drugs. Any student who tested positive for one or more drugs would be notified of the results and placed on .disciplinary probation. To remain enrolled at Linn State, the student would be required to complete a drug-awareness course or attend counseling, provide a second urine sample within forty-five days, and submit to a random drug test sometime thereafter. If the results from the student’s second or random drug tests were positive, the student would be required to withdraw or would be administratively withdrawn from Linn State and would be ineligible to enroll at the college for at least one semester. Although Linn State did not intend to use its drug-testing program for any law-enforcement purposes, the college reserved the right to notify the parents of students under the age of twenty-one of a drug-positive test.

Students who refused to submit a urine sample would not be allowed to remain enrolled at Linn State unless the college waived the drug-testing requirement. Students could seek a waiver by petitioning the Office of the President. According to the college, its students could “advance, any justification for the request,” including “unique health issues, technical concerns, participation in another similar program, exclusive participation in campus programs which do not pose unique health and safety issues, moral objections, philosophical objections, religious objections, and legal objections.” The president would then decide whether to waive the drug-testing requirement. Alternatively, students could follow Linn State’s general grievance procedure. Neither the petition process nor the grievance procedure guaranteed that a student who refused to be drug tested could remain enrolled.

Beginning in the fall of 2011, Linn State students were required to sign a form acknowledging that Linn State had adopted a new drug-testing policy and that refusal to undergo drug testing would result in student-initiated or administrative withdrawal. Linn State also developed a “frequently asked questions” document that explained the drug-testing procedures and stated that no one would be present “during the urine collection process.”

Linn State began drug testing students on September 7, 2011. Students were assessed a $50 fee, even though Linn State’s cost was only $28 per test. Five hundred fifty-eight students paid the fee and provided urine samples.

C. Procedural History

On September 14, 2011, after providing urine samples in accordance with the policy, Branden Kittle-Aikeley and ' other named individuals filed a class-action complaint against President Claycómb and members of Linn State’s Board of Regents. The complaint alleged that' Linn State’s suspicionless drug-testing policy violated the Fourth Amendment’s prohibition of unreasonable searches! The Students sought a declaration that the policy was facially unconstitutional and also sought injunctive relief, as well as class certification. The district court granted a temporary restraining order, which prohibited “any further testing of samples and any reporting of results to the school.”

During the preliminary-injunction hearing held on October 25, 2011, Linn State explained that the college had adopted a presumption that all of its students were enrolled' in or participated in safety-sensitive classes or activities. The college believed that the students themselves were in a better position to determine whether they had enrolled only in non-safety-sensitive classes. According to Linn State, students who made such a determination were permitted to petition for a waiver of the drug-testing requirement. President Claycómb, Dean Pemberton, and several Linn State department chairpersons and instructors testified in support of the college’s drug-testing program. Linn State concluded its argument as follows:

[Linn State] put together what we believe is the most effective administrative scheme to identify programs that are a threat to the health and safety of students and to further that educational value. There has to be some level of inaccuracy. We minimize that as much as possible, and we ask the students to let us know if they don’t agree with our decision and to provide the information ... to allow us to evaluate [their objections].

At the close of the hearing, the district court indicated that it intended to grant the motion for a preliminary injunction. The court extended the temporary restraining order and later set a date for the bench trial. It also granted the Students’ motion to certify a class of current and future “students of Linn State Technical College who are, or will be, seeking degrees or certificates” from Linn State. D. Ct. Order of Nov. 15, 2011. On November 18, 2011, the district court entered a written order granting the preliminary injunction, and Linn State appealed.

A panel of this court vacated the preliminary injunction, concluding that the Students were unlikely to succeed on the merits of their facial challenge because Linn State’s drug-testing policy could conceivably be implemented in such a way as to comply with the Fourth Amendment. Barrett v. Claycomb, 705 F.3d 315 (8th Cir. 2013). The panel determined that, “[although Linn State’s drug-testing policy may have some unconstitutional applications, we are unable to say that it is unconstitutional on its face in every conceivable circumstance.” Id. at 324. The panel indicated that an as-applied challenge—“focusing only on those current students whose studies did not involve a safety-sensitive program”—would be more appropriate. Id. at 324-25. The Students thereafter amended their complaint to “make[] clear that Plaintiffs seek as-applied relief.”

The district court conducted a bench trial on July 1, 2013, at which Linn State did not present evidence about the safety concerns associated with each of its educational programs. It instead urged the district court to presume that all Linn State students were enrolled in safety-sensitive programs or otherwise participating in safety-sensitive activities. Linn State maintained that it was the individual student’s burden to petition the president for a waiver of the drug-testing requirement and to make the case that his or her course of study did not involve any safety-sensitive activities. Linn State then would decide' “whether on those certain circumstances the Fourth Amendment is implicated.” The Students argued" that Linn State had failed' to demonstrate that any of its educational programs implicated the special need of deterring drug use among students enrolled in safety-sensitive programs. Moreover, they argued, the petition process did not save the unconstitutional drug-testing policy, becausé such a procedure would allow “a state actor [to] impose a mandatory, suspicionless search on a broad population so long as it [also] permits the targets of the search to make a discretionary appeal to the actor conducting the search.”

The district court considered whether Linn State’s drug-testing program served the special need of “deterring drug use among students engaged in programs posing significant safety risks to others.” D. Ct. Order of Sept, 13, 2013, at 1 (quoting Barrett, 705 F.3d at 322). The court declined to presume that all incoming students would be enrolled in safety-sensitive programs, as Linn State had suggested, and instead considered each program individually to determine whether Linn State had established a safety concern sufficient to justify drug testing the students enrolled in that program. For those programs that posed significant safety risks, the district court balanced the risk of harm to others with the intrusion on the students’ privacy expectations to discern whether the drug-testing policy was constitutional as applied. The district court found that the challenged policy did not apply to those students enrolled in the Heavy Equipment Operations program, and thus the court did not reach the question whether the policy was constitutional as applied to those students.

The district court upheld the drug-testing requirement as applied to students enrolled in the following programs: Aviation Maintenance, Electrical Distribution Systems, Industrial Electricity, Power Sports, and CAT Dealer Service Technician. It determined, however, that drug testing students enrolled in the Remaining programs would result in an unconstitutional, search in light of Linn State’s failure to show that those programs pose significant safety risks to others. Accordingly, the district court permanently enjoined Linn State from drug testing students who had enrolled in those programs and ordered Linn State to refund the $50 fee that it had collected from any of those students. The district court also granted prospective injunctive relief, prohibiting Linn State from drug testing any students who enroll in the non-safety-sensitive programs in the future.

Over Linn State’s objection, the district court also granted in part the Students’ post-trial motion for attorneys’ fees, tentatively awarding class counsel $171,274.48 in fees and costs, subject to objections by the class members. After setting forth the method for notifying class members, see Fed. R. Civ. P. 23(h), and receiving one pro se objection to the tentative award of fees and costs, the district court stayed the proceedings, pending resolution of Linn State’s appeal.

A divided panel of this court concluded that the district court erred in conducting a program-by-program analysis, stating that courts “cannot and do not operate as course-of-study-content experts discerning the relative safety issues in various programs offered at a technical school where significant safety risks abound.” Kittle-Aikeley, 807 F.3d at 923. The panel determined that “testing the entire student population entering Linn State is reasonable and hence constitutional and an effective means of addressing Linn State’s interest in providing ‘a safe, healthy, and productive environment for everyone who learns and works at LSTC by detecting, preventing, and deterring drug use and abuse among students.’ ” Id. at 926.

We granted the Students’ petition for rehearing en banc. The panel decision has been vacated, and the matter is' now presented to the full court for review.

II. Discussion

A. Standard of Review

We review a district court’s grant of a permanent injunction for abuse of discretion. Int’l Ass’n of Machinists & Aerospace Workers, Dist. Lodge No. 19 v. Soo Line R.R. Co., 850 F.2d 368, 374 (8th Cir. 1988) (en banc); Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d 899, 906 (8th Cir. 2012). A district court abuses its discretion if it “reaches its conclusion by applying erroneous legal principles or relying on clearly erroneous factual findings.” Capitol Records, 692 F.3d at 906 (quoting Fogie v. THORN Ams., Inc., 95 F.3d 645, 649 (8th Cir. 1996)). Where “the determinative question is purely legal, our review is more accurately 'characterized as de novo.” Qwest Corp. v. Scott, 380 F.3d 367, 370 (8th Cir. 2004).

B. Special-Needs Analysis

The Fourth Amendment protects “[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures.” Linn State’s collection and testing of urine is a search under the Fourth Amendment. See Chandler v. Miller, 520 U.S. 305, 313, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997). While the Constitution generally prohibits searches conducted without individualized suspicion, the Supreme Court has recognized exceptions to the general rule in certain well-defined circumstances, including those in which the government has “special needs, beyond the normal need for law enforcement.” Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (Blackmun, J., concurring)). In those cases in which special needs have been shown, “it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.” Nat’l Treasury Union v. Von Raab, 489 U.S. 656, 665-66, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). Linn State argues that the need to enhance safety and the need to foster a drug-free environment constitute the special needs that justify drug testing all incoming students without any individualized suspicion of drug use.

“The special needs doctrine recognizes that, ‘[i]n limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.’ ” Lebron v. Sec’y of Fla. Dep’t of Children & Families, 772 F.3d 1352, 1361 (11th Cir. 2014) (quoting Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 624, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)). In determining whether the special-needs requirement has been satisfied, courts engage in “a context-specific inquiry, examining closely the competing private and public interests advanced by the parties.” Chandler, 520 U.S. at 314, 117 S.Ct. 1295. Supreme Court “precedents establish that the proffered special need for drug testing must be substantial—important enough to override the individual’s acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendment’s normal requirement of individualized suspicion.” Id. at 318, 117 S.Ct. 1295.

1. Safety as a Special Need

In Skinner v. Railway Executives’ Association, the Supreme Court upheld federal regulations that required blood and urine testing of railroad employees involved in train accidents, as well as related regulations that allowed railroads to conduct breath and urine tests of employees who violated certain safety rules. 489 U.S. at 634, 109 S.Ct. 1402. The regulations were adopted in response to evidence of drug and alcohol abuse by railroad employees, including on-the-job intoxication, evidence linking drug- and alcohol-impaired employees to train accidents and incidents, and recognition of the obvious safety risk posed by drug- or alcohol-impaired employees. Id. at 606-08, 109 S.Ct. 1402. The Court determined that “[t]he Government’s interest in regulating the conduct of railroad employees to ensure safety” presented special needs justifying the search without a showing of individualized suspicion. Id. at 620, 109 S.Ct. 1402. In considering the government’s interest in drug and alcohol testing, the Court explained that “[ejmployees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.” Id. at 628, 109 S.Ct. 1402.

In National Treasury Union v. Von Raab, the Court upheld drug testing of United States Customs Service employees who sought transfer or promotion to positions that directly involved drug interdiction or that required the carrying of firearms. 489 U.S. at 679, 109 S.Ct. 1384. “While the Service’s regime was not-prompted by a demonstrated drug abuse problem, it was developed for an agency with an ‘almost unique mission,’ as the ‘first, line of defense’ against the smuggling of illicit drugs into the United States.” Chandler, 520 U.S. at 815-16, 117 S.Ct. 1295 (quoting Von Raab, 489 U.S. at 674, 668, 109 S.Ct. 1384) (citations omitted). The Court recounted evidence of injury and death by Service employees, as well as evidence that Service employees had been the targets of bribes by drug smugglers. Von Raab, 489 U.S. at 669-70, 109 S.Ct. 1384. The Court found it “readily apparent that the Government has a compelling interest in ensuring that front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment.” Id. at 670, 109 S.Ct. 1384. With respect to the employees who carry firearms, the Court said that “[t]he public interest likewise demands effective measures to prevent the promotion of drug users to positions that require the incumbent to carry a firearm” because—like the railroad employees in Skinner—those Service employees “discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.” Id. at 671, 109 S.Ct. 1384 (quoting Skinner, 489 U.S. at 628, 109 S.Ct. 1402).

The Supreme Court thus has made clear that the public has “surpassing safety interests” in ensuring that those in “safety-sensitive” positions have unimpaired judgment. Skinner, 489 U.S. at 634, 633, 109 S.Ct. 1402; see also Von Raab, 489 U.S. at 668-71, 109 S.Ct. 1384; Chandler, 520 U.S. at 314-16, 117 S.Ct. 1295. In light of this precedent, district courts and courts of appeals have allowed suspicionless drug testing of individuals employed in safety-sensitive occupations. See Krieg v. Seybold, 481 F.3d 512, 518 (7th Cir. 2007) (collecting cases that allowed testing of aviation personnel, railroad safety inspectors, highway and motor carrier' safety specialists, lock and dam operators, forklift operators, tractor operators, engineering operators, and crane operators); see also Rushton v. Neb. Pub. Power Dist., 844 F.2d 562, 566-67 (8th Cir. 1988) (upholding drug testing of nuclear power plant employees who had access to protected areas of the plant); McDonell v. Hunter, 809 F.2d 1302, 1307 (8th Cir. 1987) (upholding drug testing of correctional institution employees). Similarly, we conclude that “the public has a valid interest in deterring drug use among students engaged in programs posing significant safety risks to others,” Barrett, 705 F.3d at 322, and that this interest constitutes- a “special need.”

Linn State argues that the district court should have taken into account the risk of harm to the students themselves in determining whether Linn State had shown a special need of ensuring safety. Although the Supreme Court mentioned the safety of the individual employees in Skinner and Von Raab, the Court upheld the suspicion-less drug testing in those cases- based on the broader interests of public safety and security. See Skinner, 489 U.S. at 621, 628-630, 109 S.Ct. 1402; Von Raab, 489 U.S. at 668-71, 109 S.Ct. 1384. We thus find no error in the district court’s refusal “to uphold the drug-testing policy based on [the risk of harm to the individual' students themselves]” or its decision to “focus, as the Eighth Circuit did, on whether a particular program poses a significant safety-risk to others.” D. Ct. Order of Sept. 13, 2013, at 14.

2. Fostering a Drug-Free Environment as a Special Need

As set forth above, the stated purpose of Linn State’s drug-testing policy is “to provide a safe, healthy[,] and productive environment for everyone who learns and works at Linn State Technical College by detecting, preventingt,] and deterring drug use and abuse among students.” Linn State argues that fostering a drug-free environment constitutes an additional special need that justifies departure from the usual warrant and probable-cause requirements.

We find the Supreme Court’s decision in Chandler v. Miller instructive in deciding whether Linn State has established the existence of this alleged special need. Chandler involved a Georgia statute that required candidates for designated state offices to certify that they had taken a drug test and that the test results were negative. 520 U.S. at 308, 117 S.Ct. 1295. Georgia had defended the statute on grounds that “the use of illegal drugs draws into question an official’s judgment and integrity; jeopardizes the discharge of public functions, including antidrug law enforcement efforts; and undermines public confidence and trust in elected officials.” Id. at 318, 117 S.Ct. 1295. According to Georgia, the statute served “to deter unlawful drug users from becoming candidates and thus stop[ped] them from attaining high state office.” Id. After conducting a “close review” of Georgia’s reasons for the certification requirement and considering the efficacy of the drug tests to “ferret out- lawbreakers,” the Court held that the certification requirement was not warranted by a special need. Id. at 321, 320, 117 S.Ct. 1295.

Georgia asserts no evidence of a drug problem among the State’s elected officials, those officials typically do not perform high-risk, safety-sensitive' tasks, and the required certification immediately aids no interdiction effort. The need revealed, in short, is symbolic, not “special,” as that term draws meaning from our case law.

Id. at 321-22, 117 S.Ct. 1295.

Similarly, Linn State has not shown that fostering a drug-free environment on its campus constitutes a “special need,” as defined by the Supreme Court. We note that no crisis sparked the Board of Regents’ decision to adopt the drug-testing policy and that Linn State does not believe it has a student drug-use problem greater than that experienced by other colleges. See Chandler, 520 U.S. at 318-19, 117 S.Ct. 1295 (“Notably lacking ... is any indication of a concrete danger demanding departure from the Fourth Amendment’s main rule.”). The record indicates instead that Linn State began pursuing a drug-testing policy after Dean Pemberton reviewed responses to a survey of advisory council members that indicated support of such a policy. “A demonstrated problem of drug use, while not in all cases necessary to the validity of a testing regime, would shore up an assertion of special need for a suspicionless general search program.” Id. at 319, 117 S.Ct. 1295. Evidence of a problem, the Supreme Court has said, “may help to clarify—and to substantiate—the precise hazards posed by such use.” Id.

Linn State argues that its drug-testing program helps “prepare the students for the realities of the workplace,” where “[t]here is a high likelihood graduates will be tested before they can land and keep good jobs.” Appellants’ Br. 33. Linn State asks, “Why bother to give people degrees if they can never get jobs in the real world, only because they cannot pass a drug test?” Id This question presupposes that student-age drug use constitutes an irrevocable decision to continue in such use after one enters the adult workforce. Indeed, while Linn State presented evidence that some professions for which it trains its students require drug testing as a condition of employment, it presented only weak, anecdotal evidence that any of its students were not hired because they could not pass a potential employer’s drug test. Even assuming that Linn State had made such a showing, we nonetheless conclude that its interest in protecting adults from disadvantaging themselves in future employment contexts does not constitute a special need sufficient to justify its drug-testing policy.

Linn State argues that drug testing “helps instructors focus their time on instructing, instead of having only themselves to rely on in trying to discern whether or not students have issues with drugs.” Appellants’ Br. 33. Without any evidence that such a concérn distracted its instructors, however, we cannot say that it is a “concrete danger demanding departure from the Fourth Amendment’s main rule.” See Chandler, 520 U.S. at 319, 117 S.Ct. 1295. Linn State also argues that when students choose to attend Linn State, they accept “a package deal” that includes drug testing. Appellants’ Br. 34. Stated differently, Linn State argues the students who enroll in its educational programs consent to the drug-testing program. If a search is unreasonable under the Fourth Amendment, however, Linn State, as a state actor, cannot require its students to consent to that search as a condition of enrollment. See McDonell, 809 F.2d at 1310 (“If a search is unreasonable, a government .employer cannot require that its employees consent to that search as a condition of employment.”); see also Am. Fed’n of State, Cty. & Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 873 (11th Cir. 2013) (“[W]e do not agree that employees’ submission -to. drug testing,- on pain i of termination, constitutes consent under governing Supreme Court case law.”).

The facts in this case are substantially different from those in Vernonia School District v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), and Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002). In Vernonia, the Court upheld a school board-policy that required public high school students to. consent to suspi-cionless drug testing in order, to participate in' the school district’s athletics programs. 515 U.S. at 664-65, 115 S.Ct. 2386. “An .‘immediate crisis’ caused by ‘a sharp increase in drug use’ in the school district sparked - installation of the program.” Chandler, 520 U.S. at 316, 117 S.Ct. 1295 (quoting Vernonia, 515 U.S. at 663, 648, 115 S.Ct. 2386) (citations omitted). Central to the Court’s decision to uphold the policy in Vernonia was the fact that its subjects were “(1) children, who (2) ha[d] been committed to the temporary custody of the State as schoolmaster.” Vernonia, 515 U.S. at 654, 115 S.Ct. 2386. Similarly, the Supreme Court upheld in Earls a policy requiring drug tests for all public middle and high school students who participated in competitive extracurricular activities, Including athletics, band, choir, and Future Farmers of America. 536 U.S. at 825-26, 122 S.Ct. 2559. The Court-noted that “[t]he drug abuse problem among our Nation’s youth has hardly abated since Vernonia was decided in 1995.” Id. at 834, 122 S.Ct. 2559. It then recounted specific evidence of drug use that the school had presented and ultimately “declin[ed] to second-guess the finding of the District Court that ... the School District was faced with a drug problem when it adopted the Policy.” Id. at 834, 122 S.Ct. 2559 (internal quotation marks and citation omitted). Moreover, “[a]s in Vernonia, ‘the necessity for the State to act'[wa]s magnified by the fact that this evil is being visited ... upon children for whom it ha[d] undertaken a special responsibility of care and direction.’ ” Id. at 835, 122 S.Ct. 2559 (quoting Vernonia, 515 U.S. at 662, 115 S.Ct. 2386). In contrast- to Vernonia and Earls, Linn State’s drug-testing policy was not developed in response to any crisis and, most significantly, Linn State’s students are not children committed to the temporary custody of the state. See Vernonia 515 U.S. at 665, 115 S.Ct. 2386 (“cautioning] against the assumption that suspicionless drag testing will readily pass constitutional muster in other contexts” and reiterating that “the most significant element” in Ver-nonia was “that the Policy was undertaken in furtherance of the government’s responsibilities, under a public school system, as guardian and tutor of children entrusted to its care”).

Linn State desires that its student body be drug free or be taking steps to become drug free. Linn State believes that its drug-testing policy would have the effect of increasing campus safety, that the drug-testing policy would both encourage students to avoid using drugs and help identify those students who are using drugs and are in need of assistance, and that the policy would boost the college’s recruitment, retention, and graduation rates.

Fostering a drug-free environment is surely a laudable goal, but our review of Linn State’s drag-testing program and its asserted justification for conducting suspi-cionless searches leads us to conclude that Linn State has not demonstrated that fostering a drug-free environment is a special need, as that term has been defined by the Supreme Court -in Skinner, Von Baab, and Chandler. See Ferguson v. City of Charleston, 532 U.S. 67, 81, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) (explaining that the Supreme Court in Chandler “did not simply accept the State’s invocation of a ‘special need,’ ” but rather “carried out a ‘close review’ of the scheme , at issue before concluding that the need was not ‘special,’ as that term ha[d] been defined in [Supreme Court] cases” (quoting Chandler, 520 U.S. at 322, 117 S.Ct. 1295)).

3. Program-by-Program Analysis.

Linn State argues that the district court erred in considering its educational programs individually and instead should have applied a presumption that “all students . will be involved in safety-sensitive programs, classes, and activities.” Appellants’ Br. 37. It contends that the district court overlooked the unique .nature of the college, where “[t]he majority of programs offered ... require students to work with extraordinarily dangerous components” and to “perform tasks fraught with risk.” Id. at 6, 22. Linn State maintains that its relatively small student body should have been considered as a whole because the “entire school is peppered with dangerous instrumentalities” and because “the general purpose of the school is to prepare students for jobs which, for the most part, will involve some physical danger.” Id. at 28.

When assessing whether a suspi-cionless drug-testing policy is reasonable under the Fourth Amendment in the employment context, the Supreme Court has differentiated between job categories designated for testing. In Von Raab, for example, the Court considered separately the three categories of Customs Service positions that required drag tests as a condition of placement or employment and, as set forth above, upheld the drug testing of employees who sought transfer or promotion to positions that directly involved drug interdiction or that required the incumbent to carry firearms. 489 U.S. at 677, 109 S.Ct. 1384. The third category of employees were required to handle classified material and included the following positions: accountants, accounting technicians, animal caretakers, attorneys, baggage clerks, coop students, electric equipment repairers, mail clerks/assistants, and messengers. Id. at 677-78, 109 S.Ct. 1384. Because it was “not evident that those occupying these positions [were] likely to gain access to sensitive information, and this -apparent discrepancy raise[d] ... the question whether the Service ha[d] defined this category of employees more broadly than [wa]s necessary to meet the purposes of the Commissioner’s directive,” the Court remanded the case for further proceedings. Id. at 678, 109 S.Ct. 1384. Von Raab thus teaches that the special-needs analysis is not conducted at a high order of generality, but in a more specific and categorical manner. Id.; see also Scott, 717 F.3d at 873 (“[Skinner and its progeny] conducted the special-needs balancing test not at a high order of generality but in a fact-intensive manner that paid due consideration to the characteristics of a particular job category (e.g., the degree of risk that mistakes on the job pose to public safety), the important privacy interests at stake, and other context-specific concerns (e.g. evidence of a preexisting drug problem).”); Nat’l Fed’n of Fed. Emps. v. Vilsack, 681 F.3d 483, 498 (D.C. Cir. 2012) (“For [certain] categories of employees ..., the chain of causation between misconduct and injury is considerably more attenuated.” (internal quotation marks and citation omitted)).

We conclude that the district court properly applied Von Raab when it conducted a program-by-program analysis. The category of students who may be drug tested as a condition of attending Linn State is composed only of those students who enroll in safety-sensitive educational programs. By requiring all incoming students to be drug tested, Linn State defined the category of students to be tested more broadly than was necessary to meet the valid special need of deterring drug use among students enrolled in safety-sensitive programs. Take, for example, students such as those enrolled in Linn State’s Design Drafting program. It was not evident that the program’s course work would require them to perform tasks fraught with risk, and the district court found that, based on Linn State’s evidence, the greatest danger the program presented was “that a student might accidentally trip and fall while navigating uneven ground during a site visit.” D. Ct. Order of Sept. 13, 2013, at 47. In the absence of evidence that the Design Drafting program involved a substantial safety concern, Linn State failed to justify drug testing all students enrolled in that program.

By applying a program-by-program approach, the district court also properly followed the panel decision that vacated the preliminary injunction. The panel indicated that “Linn State’s drug-testing policy, may have some unconstitutional applications” and suggested that if the Students “wanted to challenge the drug-testing policy on the specific facts, focusing only on those current students whose studies did not involve a safety-sensitive program, they could have lodged an as-applied challenge.” Barrett, 705 F.3d at 324-25.

We find unpersuasive Linn State’s argument that the possibility of cross-enrollment renders its drug-testing policy reasonable under the Fourth Amendment. According to Linn State, students enrolled in non-safety-sensitive programs “can and do enroll in classes outside their own programs.” Appellant’s Br. 25. In response to the district court’s finding that the possibility of cross-enrollment was “abstract and unsubstantiated,” D, Ct. Order of Sept. 13, 2013, at 50, Linn State argues that it was not required to present evidence of cross-enrollment, stating that “surely the school is in a position to know whether cross-enrollment actually happens, without having to present student-specific occasions of it.” Appellants’ Br. 25. What the college is in a position to know, and what it can establish by way of evidence, are not one and the same. Linn State’s ' unsupported assertions regarding cross-enrollment are insufficient to justify the mandatory drug testing of all incoming students.

Finally, although Linn State argues that the district court erred in declining to consider whether students enrolled in the Heavy Equipment Operations program could be tested under the mandatory drug-testing policy, we find no clear error in the court’s factual determination that students enrolled in that program were not tested under the policy and were instead tested under a separate drug-testing policy that the Students have not challenged. In light of this finding, the district court did not err in declining to decide whether the policy- could be applied constitutionally to those students.

III. Conclusion

We affirm the district court’s order permanently enjoining Linn State from drug testing students “who were not,* are not, or will not be enrolled” in safety-sensitive programs. See D. Ct. Order of Sept. 13, 2013, at 61. We reverse and vacate the order to the extent it requires Linn State “to refund the $50.00 fee ... any students were assessed for the unconstitutional drug testing.” Id. at 62: see Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (“[A] suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.”); Treleven v. Univ. of Minn., 73 F.3d 816, 818 (8th Cir. 1996) (“[T]he Eleventh Amendment prohibits federal-court lawsuits seeking monetary damages from individual state officers in their official capacities because such lawsuits are essentially ‘for the recovery of money from the state.’” (quoting Ford Motor Co. v. Dep’t of the Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945))). We dismiss for lack of jurisdiction Linn State’s appeal from the tentative award of attorneys’ fees and costs. See Gates v. Cent. States Teamsters Pension Fund, 788 F.2d 1341, 1343 (8th Cir. 1986) (award of attorneys’ fees is not appealable where the amount is not quantified).

BEAM, Circuit Judge,

with whom Judge LOKEN joins, concurring and dissenting.

I concur in the court’s affirmance of the district court’s validation of State Technical College of Missouri’s (formerly and herein referred to as Linn State or College) drug-testing requirements as applied to members of the purported Rule 23(b)(2) class enrolled in the educational programs of the College designated as Aviation Maintenance, Electrical Distribution Systems, Industrial Electricity, Power Sports and CAT Dealer Service Technician. Ante at 735. I also concur in the court’s rulings concerning student-paid fee refunds and awards of attorneys’ fees and costs to lawyers of the purported class. I dissent from the court’s affirmance of the district court’s grant of prospective injunctive relief, prohibiting Linn State from drug testing and screening any students who are enrolled, or in the future enroll, in non-safety-sensitive programs, presumably all other Linn State educational programs except those named above.

I. INTRODUCTION

More than twenty-seven years ago the Supreme Court began generally validating the suspicionless drug testing and screening being carried on by America’s government, business, service and educational institutions saying there is no dispute, “nor can there be doubt, that [illicit] drug abuse is one of the most serious problems confronting our society today.” Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 674, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). Fast forwarding to the present and taking judicial notice of the United States Surgeon General’s Report on Alcohol, Drugs, and Health of November 2016, tackling drug addiction, we know that “[i]n 2015, over 27 million people in the United States reported current use of illicit drugs or misuse of prescription drugs” from which “[i]t is estimated that the yearly economic impact of substance misuse and substance use disorders is ... $193 billion.” Executive Summary at ES-1.

Indeed, further judicial notice indicates that this year Congress overwhelmingly enacted the Comprehensive Addiction and Recovery Act of 2016 noting, among other things in doing so, that “[tjhere were more than 47,000 U.S. drug abuse fatalities in 2014 - double the death rate in 2000_ The bill authorizes $181 million in new spending [to deliver life-saving prevention and treatment services], ... [a]t a, time when drug overdoses claim 129 American lives every day.” Associated Press, Congress Passes Opioid Abuse Bill, NBCNews.com (July 13, 2016), http://www. nbcnews.com/pages/print (last visited Nov. 30,2016).

Finally, the United States Sentencing Commission Statistical Information Packet for fiscal year 2015 indicates that the drug offenders’ category for this Circuit is 34%, a number that is more than twice as large than the net next largest offender group.

Thus, in rejecting Linn State’s reasoned conclusion that its suspicionless drug testing and screening program ensures safety and deters harm to every student and future student, individually, not just those participants in programs posing safety risks to others, the court significantly eirs.

In the ambience emphasized by the Surgeon General’s Report and the Comprehensive Addiction and Recovery Act of 2016, illicit drug use by students at any public academic institution inevitably damages a “broader interest! ] of public safety and security,” an interest that the court mentions, but then seems to abandon. Ante at 737. And, this broad public interest is especially at work at Linn State with its wide and deep mix of dangerous, nondan-gerous and support programs that are always in place, together and apart, on Linn State’s campus.

While the court states that “Linn State ha[s] no reason to believe that it had a student drug-use problem greater than any other college’s,” ante at 732, a drug use comparable to other public colleges in America today almost certainly presents Linn State’s governing apparatus and its executive administrators with substantial health, safety and, security problems, all of which are specifically ameliorated by the College’s well-conceived drug-testing and screening program.

Further, the Supreme Court does not require specific evidence of drug use or abuse among those tested to .support a drug-testing policy as that in place at Linn State. Indeed, the level of evidence required by the Supreme Court is often inversely related to a governmental interest at issue, as is the case here. That is, this great immediacy, as here undeniably dramatized by the recent Surgeon General’s Report, prompts the need for less specific evidence of a demonstrated drug-use problem. Von Raab, 489 U.S. at 673-75, 109 S.Ct. 1384. I concede that the Court, in Chandler v. Miller, stated “while [a demonstrated problem of drug use is] not in all cases necessary” such “would shore up an assertion of special need for a suspicionless general search program.” 520 U.S. 305, 319, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997). However, Chandler presented political-candidate requirement issues wholly unrelated to the intimate mix of dangerous and nondangerous educational activities at work at Linn State.

II. DISCUSSION

A. The Testing/Screening

The record indicates that in the face.of the undeniable burgeoning of illicit drug use, especially among younger Americans, Linn State’s governing Board of Regents, along with administrative and educational staff participation, commenced an analysis of the illicit drug menace at the institution and the need for drug screening through a reasonably conceived student drug-testing program. Such effort produced the testing/screening program at issue in this litigation. The testing formulations are fully explicated in both the vacated panel opinion and the court’s current work product and need not be repeated in detail here. The record indicates that after the drug screening was formally instituted at Linn State, but before the procedures had actually begun, the American Civil Liberties Union sent Linn State a letter threatening litigation in full-throated opposition to the program.

B. The Class

The record further indicates that several lawyers associated with the ACLU spent several days on the Linn State campus attempting to recruit students to represent a Rule 23(b)(2) class opposing the testing without success. But finally after several attempts, the lawyers managed to recruit four students who agreed to become the purported class.

It is now virtually certain that no named class plaintiff is any longer a student at Linn State. Thus, the members of the class individually lack standing. While this does not totally doom the case, Oetting v. Norton, 795 F.3d 886, 891 (8th Cir. 2015), it at least makes the issues now presented by the ACLU barely, if at all, justiciable. When faced with the class’s allegations in this case, it became clear that the ACLU’s attorneys’ agenda and the interests of the purported class members were in irreconcilable conflict. The district court in response to this problem sought to mitigate this issue as follows: “it is ultimately the Plaintiffs that control settlement and prosecution of the [class action] lawsuit, not their attorneys.” In this particular case, I believe this pronouncement was, and remains, fanciful. I also believe that it would not be a gross departure from fact to conclude that this litigation, as it is now positioned, could reasonably be captioned ACLU v. Linn State College.

Indeed, taking judicial notice of www. aclu.org and related web sites, one finds from these publicly published sources that the organization, with regularity, aligns itself in opposition to drug testing and screening in most, if not every, conceivable situation that arises, especially when educational endeavors are at stake, such as at Linn State. My search of its public emanations fails to identify even one piece of ACLU-sponsored litigation- that supports drug testing and screening. Perhaps there may be a matter or two, but a diligent search of these public emanations failed to isolate a single, reasonably discernible instance in which the organization supported drug testing or screening.

C. This Litigation

1. Court Action to Date

As noted in the court’s “Procedural History,” ante at 733, the district court readily embraced the ACLU’s siren song of absolute opposition to Linn State’s drug testing and screening policies and procedures. In this regard, the ACLU’s purported class sought a declaration that Linn State’s policy was facially unconstitutional and sought injunctive relief. Soon thereafter, as explained by the court, the district court granted the requested across-the-board injunction. Ante at 733-34.

A unanimous panel of this court then reversed the district court and remanded the dispute for further consideration. Ante at 733-34. The purported class immediately amended its complaint to “make[ ] clear that Plaintiffs seek as-applied relief.” Ante at 734. In such posture, the district court upheld Linn State’s drug-testing requirement for students in what it termed Linn State’s “safety-sensitive” programs, ante at 734-35, and permanently enjoined, as unconstitutional, Linn State’s requirement of drug testing in non-safety-sensitive programs. Ante at 735. A divided panel of this court again reversed this program-by-program analysis. See Kittle-Aikeley v. Claycomb, 807 F.3d 913 (8th Cir. 2015). But, the court en banc vacates the panel opinion, grants rehearing en bane and now improvidently joins the district court in concluding that the court is better equipped than the governing body and staff of the College to provide a safe, healthy and productive educational environment for Linn State students.

But, just as the divided panel majority correctly explicated, using Title VII employment litigation by example, this court does not sit as a super-governing body or Board of Regents in replacement of those already duly and - legally selected. Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 955 (8th Cir. 2012). And the court should not, and cannot, operate as course-of-study-content experts discerning the relative safety issues arising from or around various programs, educational or otherwise, offered at a technical school where significant safety risks abound.

2. Further Issues

As earlier stated, I concur in the court’s conclusion that Linn State easily satisfies any requirements concerning drug testing and screening of students participating in the College’s so-called safety-sensitive programs, specifically those programs posing significant safety risks to others. Ante at 737-38. However, I dissent from the court’s reasoning in support of the district court’s refusal to uphold student drug testing directed at (1) risk of harm to themselves, other students, instructors and other involved individuals, ante at 737-38, and (2) testing and screening designed to foster “a drug-free environment” ori Linn State’s campus, ante at 738.

The court contends that Linn State has not shown that fostering a drug-free campus environment is a need defined and protected by Supreme Court precedent given the facts at work in this ease. In support, the court states “[w]e note that no crisis sparked the [Linn State] Board of Regents’ decision to adopt the drug-testing policy and that Linn State does not believe it has a student drug-use problem greater than that experienced by other colleges.” Ante at 738. Based upon the Supreme Court’s drug abuse finding in Von Raab, 489 U.S. at 674, 109 S.Ct. 1384, the Surgeon General’s Report, The Comprehensive Addiction and Recovery Act of 2016 and the Sentencing Commission Statistical Information Packet set forth in the Introduction, the above-quoted “no crisis” court language is totally incorrect. A severe, relevant and discernible drug crisis supportive of Linn State’s actions does exist and has existed every moment relevant to this litigation. And, contrary to the court’s quotation from Chandler, 520 U.S. at 319, 117 S.Ct. 1295, ante at 738-39, concerning, in that case, a notable lack of evidence sufficient to establish a concrete danger of damages sufficient to demand a departure from Fourth Amendment rules, the ambience outlined in the Introduction to this dissent makes Chandler factually inappo-site here.

The court concedes that a stated purpose of Linn State’s drug-testing policy is “to provide a. safe, healthy, and productive environment for everyone who learns and works at Linn State Technical College by detecting, preventing, and deterring drug use and abuse among students.” Ante at 732. In this regard, Linn State argues that fostering such an environment in all educational departments, and not just those that are safety sensitive, justifies disregarding warrant and probable cause requirements. The district court, and now this court, disagree, citing Chandler. Chandler is inapposite in this cáse.

Quoting from Chandler, the court says: Georgia asserts no evidence of a drug problem among the State’s elected officials, those officials typically do not perform . high-risk, safety-sensitive tasks, and the required certification immediately aids no interdiction effort. The need revealed, in short, is symbolic, not “special,” as that term draws meaning from our case law.

Ante at 738 (quoting Chandler, 520 U.S. at 321-22, 117 S.Ct. 1295).

The court seems to ignore the fact that the Board of Regents administers an educational program involving at least five high-risk safety-sensitive programs intermixed with several other less safety-sensitive courses of study in the midst of a drug crisis on many, if not most, college campuses, including Linn State, that it seeks not to recognize. From these conclusions by the court, I dissent.

3. Program-by-Program Analysis

The court improvidently rejects Linn State’s concerns bottomed upon the management of an intermixed student population pursuing educational endeavors consisting of drug-tested, safety-sensitive and untested, rion-safety-sensitive enrollments living and studying, in some cases, side-by-side or with each other, on a daily basis.

The court justifies the college management role that it and the district court have undertaken in this case based upon precedent it purportedly derives from Von Raab. In Von Raab, the Court separated its analysis into three categories, mandating testing in two categories based upon sensitive knowledge obtained, or sensitive equipment used by, employees. 489 U.S. at 660-61, 667, 109 S.Ct. 1384.

The third category of employees in Von Raab handled classified material,’ the commodity that required drug interdiction (i.e., drug testing), but it included a very broad range of positions including, to name but a few, accountants, animal caretakers, attorneys, baggage clerks, co-op students, and four other similar jobs. Id. at 678, 109 S.Ct. 1384. While the Supreme Court determined that the government had demonstrated a compelling interest in safeguarding the country’s borders, it also determined that on the “present record” it was unable “to assess the reasonableness of the Government’s testing program.” Id. at 677, 109 S.Ct. 1384. Accordingly, the matter was remanded to the Fifth Circuit from whence it had appealed. Id. at 677-79, 109 S.Ct. 1384.

The Circuit, in turn, remanded the case to the District Court for the Eastern District of Louisiana for further consideration. Nat’l Treasury Emps. Union v. Von Raab, 876 F.2d 376 (6th Cir. 1989). The employee Union in Von Raab, like the ACLU in this case, argued for limited testing of members of the Union, seeking to eliminate many of the positions from the testing program. Nat’l Treasury Emps. Union v. Hallett, 756 F.Supp. 947, 953 (E.D. La. 1991). Upon remand, however, it was determined that a much larger aggregation, not the smaller group demanded by the Union, should be tested. Id. The district court found that the Union’s view of the class to be tested was much “too narrow” and that employment background information, possibly akin to college enrollment applications, significantly reduced the employees “privacy expectation” with regard to the testing. Id.

The court contends that <{Von Raab .., teaches that the special-needs analysis is not conducted at a high order of generality, but in a more specific and categorical manner.” Ante at 741. But, if anything, Von Raab, properly interpreted, actually demands a high order of generality in the matter of permitting testing, not the tightly specific categorical view, adopted by the court in this case.

III. EPILOGUE

By affirming at least part of Linn State’s drug testing effort, the court appears to fully accept Von Raab’s analysis of the existence of an illicit drug-abuse problem at the College like that found at most other public colleges and universities in America. Otherwise, there would be no bases for the court’s affirmance of the district court’s validation of Linn State’s drug-testing requirements for its “safety-sensitive educational programs.” Ante at 741.

There is no reason, however, to assume that Linn State’s students pursuing an education in its non-safety-sensitive programs are not likewise fully impacted by the same illicit drug-abuse crisis. Indeed, there' is no evidence that they are not. Thus, the court’s various emanations in its opinion that these students suffer no drug crisis is, as earlier indicated, factually unsupportable. But, nonetheless, the court chooses to enjoin the College from also requiring the same drug-testing and screening program as for the safety-sensitive program students.

It is almost certain that a non-safety-sensitive student "affected by illicit drug ■abuse and addiction will be just as likely as a safety-sensitive student to injure or be injured by a classmate, teacher, or stranger, or to misuse a motor vehicle, become physically or mentally impaired or perform myriad other untoward acts damaging to self or others on the Linn State campus.

The court seeks to duck this inconsistent and untoward result through its “misclassi-fieation” approach based upon precedent purportedly gleaned from Von Raab. For the reasons fully set forth earlier, this course of action by the court is simply untenable.

I continue to believe that the court’s prior opinion in this matter was correctly reasoned • and formulated. Accordingly, I dissent and.concur as stated above.

      . We will continue to refer to the college as Linn State,' even though ' its name has changed.

      . The Honorable Nanette K. Laughréy, United States District Judge for the Western District of. Missouri.

      . According to Dean Pemberton, Linn State surveyed 333 advisory council members. "[T]here was a 49 percent return rate; and of those, 83 percent were in favor of Linn State” pursuing a drug-testing program.


source: Caselaw Access Project

author: BEAM, Circuit Judge.

license: Public Domain

text:
    Norah C. OEHMKE, Plaintiff-Appellant v. MEDTRONIC, INC., Defendant-Appellee
    No. 16-1052
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 19, 2016
    Filed: December 22, 2016

      Counsel who presented argument on behalf of the appellant was John D. Thompson, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was Marko J. Mrko-nich, of Minneapolis, MN. The following attorneys also appeared on the appellee brief; Susan Fitzke and Benjamin D. San-dahl, of Minneapolis, MN.
    Before GRUENDER, BEAM, and SHEPHERD, Circuit Judges.
   BEAM, Circuit Judge.

Norah Oehmke appeals the district court’s adverse grant of summary judgment in her suit against Medtronic, Inc., for disability discrimination and retaliation under the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRÁ). We affirm.

I. BACKGROUND

Because this case comes before us on Medtronic’s motion for summary judgment, we portray the facts in the light most favorable to Oehmke. Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th Cir. 2006). Oehmke was diagnosed in 1997 with Hodgkin’s lymphoma, for which she received chemotherapy and radiation treatment and a bone-marrow transplant. The cancer has been in remission since 1999. Her treatment resulted in adverse, long-term health effects, including a suppressed immune system and cardiomyopathy. Medtronic, a medical device manufacturer, hired Oehmke as a Credit Representative in 2003. Oehmke informed Medtronic at that time of her disability as a cancer survivor with long-term health effects. Oehmke excelled in this position, winning awards for customer satisfaction and cost efficiency. In 2005. Oehmke took the position of Senior Patient Services Specialist, in which she answered patient telephone calls and e-mails concerning implantable devices, warranty claims, or unreimbursed medical claims. At the time she was hired for this position, she again communicated her disability to her hiring supervisor.

Oehmke’s direct supervisor in this position was Mavis Klemmensen. Patient Services was part of the Technical Services and Patient Services Department, managed by Lyn Stepaniak. Klemmensen and Oehmke got along well and she consistently gave Oehmke positive performance evaluations. She allowed Oehmke to work from home (“telework”) on days when Oehmke was ill. Because of her suppressed immune system, Oehmke became sick easily and it took her longer than normal to recover. Medtronic’s policy was to limit teleworking to two days per week, but Klemmensen allowed Oehmke to do so more often if needed. Throughout this period—roughly 2005 to 2008—Oehmke often took medical leave for medical appointments.

Oehmke applied for a higher position, Operations Lead, in April 2008. Klemmen-sen talked Oehmke out of applying for the position, explaining that Oehmke was already slated to be promoted to Principal Patient Services Specialist that July. During this conversation, Klemmensen stated that she perceived Oehmke as desiring power in the workplace, and made a reference to Nazis or'Hitler. Although the parties dispute the context around and intent behind that reference, Oehmke understood the reference to be directed at her. Being of German heritage, she took especial exception to the statement, and this apparently initiated a deterioration in Oehmke and Klemmensen’s working, relationship. Klemmensen selected another, less qualified candidate for the Operations Lead position. That candidate also was a cancer survivor. Several nondisabled members of Oehmke’s department were promoted in May 2008.

Medtronic management received three customer complaints referencing calls handled by Oehmke in July, August, arid September of 2008. Oehmke disputes the accuracy of these complaints. Two calls involved upset patients, and although it does not appear from the record that Oehmke necessarily caused their agitated state, one of the' responsibilities of a Patient Services Specialist is to use empathy to calm down upset customers. Another complaint referenced Oehmke’s failure to call the patient back. In regard to one of these^ calls, Oehmke had written down in her call notes that the eustoirier was “rude.” This violated Medtronic’s policy of using purely objective language in call notes, which are discoverable. Additionally, Klemmensen received complaints from other employees regarding Oehmke’s blunt communication style. In July 2008, Klemmensen told Oehmke that she would not, in fact, be promoted to Principal Patient Services Specialist, giving as a reason for her decision one of the patient complaints.

Oehmke met with Stepaniak and Klem-mensen in September 2008 to discuss why she was not promoted. Klemmensen discussed the customer complaints and Oehmke’s use of the term- “rude” in her call notes. Klemmensen informed Oehmke that she would begin enforcing the two-days-a-week limit on teleworking until Oehmke demonstrated that she was consistently empathetic in dealing with patient phone calls. Oehmke requested that she continue to be able to telework as she needed, and Klemmensen later granted the request on the condition that Oehmke’s calls handled from home be recorded. Oehmke agreed, although she considered this to be unfair treatment because other teleworkers were not recorded. In March 2009, Medtronic began recording all patient-services calls. Later in September 2008, another meeting occurred between Oehmke and Klemmensen at which Step-aniak was present. Stepaniak claimed that during this meeting Oehmke leaned forward toward Klemmensen in a physically intimidating manner, causing Stepaniak to be concerned that Oehmke might assault Klemmensen. Oehmke disputes this but admitted she understood that Stepaniak and Klemmensen felt physically intimidated by and fearful of her. An employee from the human-resources department was brought in at Oehmke’s request for the remainder of the meeting.

Oehmke took a three-week leave of absence for illness in October 2008. Oehmke stated she had whooping cough, although this is not corroborated by medical evidence. In November 2008, Oehmke was rear ended in a car accident, causing injury to her rotator cuff and a herniated disk. In January 2009, Oehmke had a meeting with Klemmensen and an employee from human resources, Kim Durkee. During that meeting Klemmensen presented Oehmke with a spreadsheet documenting what klemmensen said was a high absenteeism rate of 6.3% of available time to work over the previous year. Oehmke points out that this spreadsheet counted days missed for medical leave under the Family and Medical Leave Act (FMLÁ), which do not count as absences under Medtronic’s absenteeism policy. Stepaniak agreed in her deposition that the spreadsheet was inaccurate; Oehmke’s actual absenteeism rate was 4.75%. Under Med-tronic’s policy, absenteeism in excess of 2% of available time to work over, a twelvemonth period is considered “excessive,” and Stepaniak’s policy regarding her department was to discuss with any employee absenteeism approaching 4%.

Because of Oehmke’s injuries from her car accident and an unrelated and unspecified medical issue not related to her disability, she took a leave of absence from late February 2009 to mid-June 2009. While Oehmke was on leave, Klemmensen retired and was replaced by Patti Peltier. When Oehmke returned from leave, she made an informal request for accommodations based on her doctor’s recommendation. Oehmke was told that she needed to put in a formal request. In the past, Oehmke had always been granted accommodations without going through the formal request process. After Oehmke returned from leave, Peltier changed Oehmke’s old 7:00 a.m. to 4:00 p.m. schedule to 8:00 a.m. to 5:00 p.m. Oehmke claims other employees who returned from leave were allowed to keep their old schedules.

In August 2009, Oehmke received a negative performance evaluation. The evaluation contained comments from Stepaniak, who performed the review because of Klemmensen’s retirement. Stepaniak, as the department manager, did not directly supervise Oehmke and so did not have the same degree of familiarity with Oehmke’s work performance as Klemmensen, Oehmke disputed the accuracy of that evaluation and Durkee, in the presence of Oehmke and Stepaniak, stated that the evaluation was too hard on Oehmke. Step-aniak revised the evaluation. The revised evaluation removed' some positive comments and was more negative than the first. The evaluation cited a greater than 8% absenteeism rate, but the spreadsheet on which that figure was based showed only a 6.3% rate. This was, presumably, the same inaccurate 6,3% absenteeism rate discussed above. The evaluation stated Oehmke violated the sick-leave call-in policy during her leave for whooping cough in October 2008, but Oehmke stated she had covered her shifts by communicating via email, which was consistent with past practice. Finally, the evaluation stated Oehmke had violated the telework policy, but Oehmke claims this was only due to the rescission of the past accommodation of her need to telework often. When questioned about the evaluation in a deposition, Oehmke admitted that she “sometimes” attempted to undermine, leadership in her workplace.

In September 2009 Oehmke gave incorrect information to a patient’s wife concerning the minimum safe distance between a fork lift and a pacemaker. The correct distance is two feet; Oehmke told the patient’s wife it was six inches. Oehmke admits she gave incorrect information. While on vacation in Ireland later that month, Oehmke contracted an unidentified lung illness, for which she took medical leave from late September 2009 to early November 2009. During this absence, Oehmke exhausted her leave under the FMLA. On October 22, 2009, Stepaniak notified Oehmke that because her FMLA leave was exhausted, her position was no longer being held but that if a same or similar position was available ■ when Oehmke was ready to return, it would be offered to her. Medtronic cites the business need to promptly fill the position due to a high volume of customer calls. On October 23 Stepaniak began conducting interviews for the position. On October 28 Oehmke notified Stepaniak that she would return on November 2. Two days later, on October 30, Stepaniak hired a replacement for Oehmke’s position. This new hire took over two weeks to train and was not ready to begin her position until November 18.

Oehmke - claims this delay undercuts Medtronic’s business-need justification, arguing it is inconsistent for Medtronic to, in one breath, claim a need to fill a position quickly because of high call volume and, in the next, hire someone who could not be prepared to take calls until more than two weeks after Oehmke’s return. Further, an administrative assistant, Kim Jinks, testified that she overheard Peltier and Step-aniak creating with relish a new position for Oehmke that they intentionally made miserable and difficult in the hope that Oehmke would quit or that they could use her inability to fulfill the position’s responsibilities as a reason to fire her. Jinks testified that Stepaniak’s and Peltier’s treatment of Oehmke “was unethical and was possibly harassment.” Further, • Step-aniak and Peltier also told Jinks directly that they wanted Oehmke gone. Oehmke argues that these facts support the inference that Stepaniak and Peltier had it in for her. In addition, Stepaniak gave deposition testimony from which it could reasonably be inferred that she doubted whether Oehmke in fact ever had cancer and that she believed Oehmke might have been lying about it. Stepaniak also told Oehmke.that Oehmke was not disabled.

The new position Stepaniak and Peltier created for Oehmke was called CareLink Specialist. Oehmke accepted the new position, which she took when she returned from leave in November 2009. She received the same pay as before, was in the same department, and reported to the same supervisors. The exact responsibilities, however, were, as Oehmke puts it, a “demotion.” CareLink is a system that remotely monitors patients’ heart devices and transmits information about them. Oehmke was assigned the job of handling incoming and outgoing patient telephone calls about the system, as well as attending to “Logcasters,” which logged errors in CareLink transmissions. Additionally, Oehmke was tasked with answering all emails that came in to Medtronic.com and Patient Services. She was not permitted to leave at the end Of the day until all these tasks were completed. Furthermore, she was the only employee in the department to be required to stay in the queue of incoming telephone calls while working on other assignments. According 'to testimony from Jinks, the Logcasters responsibility was an impossibly large amount of work for a single employee. One Logcasters entry could take anywhere from five to thirty minutes to process, and Jinks—who was assigned to Logcasters at one point—reported getting roughly twenty to eighty a day. Peltier, however, testified that there were ten or less Logcasters reports a day. Soon after Oehmke took the position, she notified Peltier that she was unable to respond to certain e-mails, and she failed to keep up with her assignments.

Oehmke had submitted a letter from her physician requesting certain accommodations when she returned from her medical leave. Medtronic granted all of these except her request for a 7:00 a.m. to 4:00 p.m. schedule. Instead, she was put on a 9:00 a.m, to 6:00 p.m. schedule so that she could schedule her medical appointments in the' morning before work. After receiving another letter from Oehmke’s physician, Medtronic put her on a 7-to-4 schedule for one month to attend already-scheduled appointments, but then returned her to a 9-to-6 schedule afterward, with afternoons off for appointments if a morning appointment was not available. Oehmke voiced her discontent with that arrangement to both Durkee and Peltier. Oehmke claims that the 9-to-6 schedule caused her to miss more work than she would on a 7-to-4 schedule, because her appointments were often lengthy, and so morning appointments would extend beyond her 9:00 a.m. start time. Had she been able to work 7 to 4 and schedule her appointments in the late afternoon, she would have been able to complete more work. Medtronic states that it needed Oehmke to work the 9-to-6 schedule because call volumes are higher in the afternoon and because, in light of Oehmke’s need for frequent absences, it is difficult to find coverage for the 7:00 a.m. shift. ■

On January 8, 2010, Peltier placed Oehmke on a Performance Improvement Plan (“PIP”). The PIP referenced numerous violations of Medtronic’s patient-call policies dating back to August 2009—pro-viding incorrect information; giving medical advice; making unnecessary comments to patients; failing to be empathetic—as well as failing to meet the responsibilities of the CareLink Specialist ' position. Oehmke refused to sign the PIP. Also in January, Stepaniak provided Oehmke with calculations showing Oehmke had a 6% absenteeism rate, and, Peltier criticized Oehmke for taking medical leave too often. This 6% figure was, like the 6.3% figure described earlier, inaccurately calculated because it included days, taken for FMLA leave. The figure should have been 3.7%. On January 21, 2010, Stepaniak barred Oehmke from all meetings until her work was caught up. Around this time Medtronic’s legal team notified Peltier and Stepan-iak that they should grant Oehmke’s request for a 7-to-4 schedule, noting that they did not understand why it was such a “big deal” to Peltier and Stepaniak.

On January 22, 2010, Oehmke met with Peltier and Durkee. Peltier testified that she wanted the meeting to take place in the presence of Durkee because of a previous incident in which Oehmke had leaned toward her with a raised voice, startling Peltier. Peltier discussed Oehmke’s continuing performance issues, including her failure-to stick to the scripted statements Oehmke was supposed to use for.-telephone calls. .Peltier informed Oehmke that she would be allowed to have the 7-to-4 schedule but that she would no longer be allowed to telework. Peltier also stated that Oehmke was not permitted to discuss her workload with other employees, as she had heard complaints from other employees that Oehmke had been interrupting them during the day to complain about her workload. Peltier testified that Oehmke was taunting toward Peltier and laughed at everything she said. Durkee, who was present, stated that Oehmke asked a lot of questions and never stated agreement with or understanding of Peltier’s stateménts. Durkee testified that Oehmke did laugh and that it was a laugh that could be perceived as “sarcastic” and “belligerent.” Stepaniak testified that Peltier told her that Oehmke had said she was “totally protected” because she was disabled. Oehmke disputes Peltier’s and Durkee’s accounts of her conduct at the meeting. Later that day, Peltier and Stepaniak approached Oehmke with a security guard and told her she was suspended. Oehmke was escorted off of the premises by the security guard. Durkee stated she was surprised to learn that Peltier and Stepaniak had suspended Oehmke, and that they did so directly without going through human resources.

Oehmke and her attorney met with Medtronic’s in-house, counsel, Anthony Branch,. on February 24, 2010. At this meeting Oehmke explained her desire to be employed in a different department of Medtronic so she could avoid the toxic relationship that had developed between her and Stepaniak and Peltier.- Oehmke left the meeting with the understanding that Branch was going to.set up an informational interview between her and a Medtronic employee about a Clinical Specialist position. Oehmke testified that at no point during the meeting did the parties discuss her leaving Medtronic. On March 2, -2010, Oehmke received a letter from Branch with a proposed separation agreement and release. On March 22, Oehmke wrote an e-mail to Branch in which she stated that she could not agree to the settlement terms. Oehmke received a letter from Durkee stating: “Since you have rejected Medtronic’s settlement offer, Medtronic will terminate your employment effective today March 26,2010.”

Oehmke filed this action, bringing claims under the ADA and MHRA against Med-tronic, claiming as a disability her status as a cancer survivor. The district court granted Medtronic’s motion for summary judgment. It found Oehmke’s claims time barred with respect to all of Medtronic’s alleged discriminatory acts except. for Oehmke’s termination on March 26. As to Oehmke’s discrimination claim, it concluded that Oehmke had not made out a.prima facie case of discrimination because she had not raised a dispute as to causation between her disability and her termination. In the alternative, it concluded that even if she had shown causation, she had failed to raise a dispute as to pretext. As to Oehmke’s retaliation claim, the district court concluded Oehmke had again failed to raise a dispute as to causation between her protected activity and her termination.

II. DISCUSSION

We review the district court’s grant of summary judgment de novo, reading the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in the nonmoving party’s favor. Montgomery v. City of Ames, 749 F.3d 689, 694 (8th Cir. 2014). A movant is entitled to summary judgment if the record, so construed, “shows that 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).

A. Discrimination Claim

The ADA prohibits covered employers from “discriminating] against a qualified individual on the basis of. disability in regard to ... [the] discharge of employees.” 42 U.S.C. § 12112(a). In the absence of direct evidence of discrimination, we apply the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to disability-discrimination claims of disparate treatment, Wenzel v. Mo.-Am. Water Co., 404 F.3d 1038, 1040 (8th Cir. 2005). The plaintiff first has the burden of establishing a pri-ma facie case: (1) that the plaintiff was disabled within the meaning of the ADA; (2) that the plaintiff was qualified to perform the essential functions of the job; and (3) a causal connection between an adverse employment action and the disability. Id. The burden of production then shifts to the employer to show a legitimate, nondiscriminatory réason for the adverse action. Id. Finally, the burden shifts back to the employee to show that the proffered reason was, in reality, a pretext for discrimination. Id. We employ this same analysis, with one difference of no consequence here, to discrimination claims under the MHRA. Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004).

Oehmke’s theory of disability discrimination is that her bout with cancer left lingering, long-term effects—a suppressed immune system,' cardiomyopathy, and other unspecified side effects from her treatment—which caused frequent absences from work for medical appointments, and which left her in need of certain accommodations such as'teleworking and a schedule that allowed her to attend her appointments without missing work; Oehmke claims Medtronic terminated her because it did not want to accommodate her scheduling needs, thereby discriminating against her on the basis of her disability. The district court decided Oehmke failed to prove both the causation element of a pri-ma facie discrimination claim and, in the alternative, that Medtronic’s proffered reason for termination was pretextual. The parties dispute these two issues as well as the nature of Oehmke’s disability.

1. Oehmke’s Disability

The ADA defines disability as “a physical or mental impairment that substantially limits one or more major life activities of [an] individual.” 42 U.S.C. § 12102(1)(A). Cancer is an impairment, 29 C.F.R. § 1630.2(h)(1), the functioning of one’s immune system is a major life activity, 42 U.S.C. § 12102(2)(B), and Congress has instructed the courts to determine whether a limitation is substantial in light of its command to interpret disability broadly, 42 U.S.C. § 12102(4)(B); ADA Amendments Act of 2008, Pub. L. No. Í10-325, 122 Stat. 3553. Further,, “an impairment that is ... in remission,” as is Oehmke’s cancer, “is a disability if it would substantially limit a major life activity when active.” 42 U.S.C. § 12102(4)(D). Therefore, Oehmke’s cancer, even while in remission, is clearly a covered disability under the ADA.

In her briefing, Oehmke argues her disability as a cancer survivor includes its lingering effects on her health and her suppressed immune system. She argues that the district court took an inappropriately narrow view of her disability, treating it as a past event when in fact it was a continuing condition with extended effects. Essentially, Oehmké appears to argue that both her cancer and the substantial limitations it has placed on her health are “disabilities” under the ADA. Medtronic responds that Oehmke did not make this argument below and that she only alleged her bout with cancer itself as a disability. Ultimately, however, it does not matter how we characterize the effects of Oehmke’s bout with cancer. There is evidence in the record supporting a causal connection between the cancer and certain of her long-term health problems, and so in either event the causation element of Oehmke’s prima facie claim rises or falls on the existence of a causal connection between the challenged employment action and those long-term health problems.

2. Causation

We apply a mixed-motive causation standard, allowing claims based on an adverse employment action that was motivated by both permissible and impermissible factors. See Pedigo v. P.A.M. Transport, Inc., 60 F.3d 1300, 1301 (8th Cir. 1995). The issue, then, is whether the record supports the conclusion that absences caused by Oehmke’s cancer-related health problems and her need for accommodations motivated Medtronic’s decision to terminate her. The record discloses that the decision to terminate Oehmke was made because of her rejection of Medtronic’s settlement offer, which in turn was caused by her suspension for failing to meet the requirements of her CareLink Specialist position and her PIP. Giving Oehmke the benefit of all reasonable inferences, we assume that the CareLink Specialist position carried impossibly difficult responsibilities, and that Stepaniak and Peltier assigned Oehmke to that position in the hopes of having cause to suspend or terminate her. We will not consider, therefore, Oehmke’s inability to keep up with her duties in that position as the true cause of her termination.

It is clear that Stepaniak and Peltier had myriad concerns with Oehmke’s performance that provide a permissible motive for her termination. She gave incorrect and potentially life-threatening advice concerning a patient’s pacemaker; she was perceived by her managers as insolent, threatening, and she admitted to attempting to undermine their authority; she failed to follow Medtronic’s procedures such as using objective language in call notes and sticking to call scripts; and she was repeatedly present in interactions with customers that gave rise to complaints. These problems certainly provided a permissible basis for concern from Medtronic.

Oehmke argues that evidence in the record supports the inference that Medtronic had impermissible motives. She points to two indications that Stepaniak and Peltier were motivated by Oehmke’s frequent need to be absent for medical appointments and for .scheduling and other accommodations. First, there does appear in the record evidence that Oehmke’s absenteeism, in part, motivated Stepaniak and Pel-tier’s negative view of Oehmke’s performance. Stepaniak and Peltier brought up Oehmke’s absenteeism to her on at least two occasions, and on three occasions, Stepaniak overestimated Oehmke’s absenteeism rate. What is less clear is the causal connection between Oehmke’s absences and her disability. Oehmke makes a generalized claim that she needed to make frequent medical appointments because of health problems caused by her struggle with cancer, testifying that she was ill a minimum of four times a year and that she saw her physician every four weeks due to a risk of stroke or heart attack related to her fight with cancer. But this claim is not supported by particularized medical evidence of any specific appointments and the health issues for which they were necessary. Were we to extend the reach of reasonable inference to the questionable conclusion that any illness-related absence of Oehmke’s was necessarily caused by her suppressed immune system, this conclusion would only reach her absences for whooping cough and an unidentified lung illness. Oehmke presents no medical evidence diagnosing her with either of these alleged afflictions, and no evidence connects her absences for other identified medical issues to her disability.

Second, Oehmke argues that Stepaniak’s belief that Oehmke might not have had cancer and was lying about it could give rise to an inference that Stepaniak did not think Oehmke’s accommodations were necessary, that she did not want to provide those accommodations, and that this in turn caused her to take a negative view of Oehmke’s performance. This inference is supported by Stepaniak’s reluctance to provide Oehmke with an exception to Med-tronic’s teleworking policy and to accommodate her requested 7-to-4 schedule. But other evidence undercuts this inference. Medtronic granted nearly eveiy accommodation request made by Oehmke and its insistence on a 9-to-6 schedule had a legitimate, business-need justification. Further, the 9-to-6 schedule accommodated Oehmke’s need to attend medical appointments, just not precisely in the manner Oehmke would have preferred. We also noté that Stepaniak’s statement questioning whether Oehmke had suffered from cancer were made in a deposition years after the events in question, minimizing its relevance.

In this context, we agree with the district court that there does not exist a strong enough causal connection sufficient as a matter of law to establish a prima facie case. Therefore we affirm the grant of summary judgment for Medtronic on Oehmke’s disability discrimination claims under the ADA and MHRA, and we find it unnecessary to address the alternate ground for affirmance of pretext.

B. Retaliation Claim

Oehmke also claims that Med-tronic terminated her in retaliation for asserting her rights under the , ADA and MHRA at her meeting with Branch.and for her rejection of Medtronic’s settlement offer. The ADA provides that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter.” 42 U.S.C. § 12203(a). A retaliation claim follows the same direct evidence or burden-shifting analysis employed in discrimination claims. EEOC v. Prod. Fabricators, Inc., 763 F.3d 963, 972 (8th Cir. 2014). A prima facie ease of retaliation requires the plaintiff to show (1) she engaged in statutorily protected activity; (2) she suffered an adverse employment action; and (3) a causal connection between the two. Hill v. Walker, 737 F.3d 1209, 1218 (8th Cir. 2013). A retaliation claim under the ADA requires a but-for causal connection between the employee’s assertion of her ADA rights and an adverse action by the employer. Univ. of Tex. Sw. Med. Ctr. v. Nassar, — U.S. -, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013). The district court determined Oehmke could not show causation. As we have- already stated, Medtronic had cause to terminate Oehmke due to her performance issues. Oehmke presented no evidence that any purported statements she made to Branch at their meeting motivated Medtronic’s decision to terminate her, and her .rejection of Medtronic’s proposed settlement agreement is not an activity protected under the ADA.

Claims for retaliation are analyzed in the same manner under the MHRA. Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 444 (Minn. 1983). Although the Minnesota Supreme Court has looked to claims under Title I of the ADA in interpreting the MHRA, Kolton v. County of Anoka, 645 N.W.2d 403, 408 (Minn. 2002), no Minnesota case we are aware of has addressed whether Nasser’s application of the but-for causation standard to ADA claims applies to MHRA claims as well. But there is no evidence of a retaliatory motive on Medtronic’s part to support a showing of causation even under a mixed-motive standard. We therefore affirm judgment for Medtronic on this claim as well.

III. CONCLUSION

For the foregoing reasons, we affirm.

      . The Honorable Michael J. Davis, United States District Judge for the District of Minnesota.

      , Cardiomyopathy is "a general diagnostic term designating primary noninflammatory disease of the heart muscle.” Cardiomyopathy, Dorland’s Illustrated Medical Dictionary (32d ed. 2012).

      . Direct evidence is evidence that establishes a specific link between alleged discriminatory animus and an adverse action of such causal strength that the plaintiff can forgo the burden-shifting framework. St. Martin v. City of St. Paul, 680 F.3d 1027, 1033 (8th Cir. 2012). The district court concluded there was no direct evidence, and we agree. Oehmke points to evidence showing Stepaniak, despite 'medical documentation provided Medtronic, did not believe Oehmke had had cancer and that she suspected Oehmke may have been lying about it. But this shows Stepaniak might have targeted Oehmke because she believed Oehmke was untruthful, not because of her disability. Such a statement fails to prove a sufficiently strong causal connection as to rise to the level of direct evidence. Because Oehmke did not present direct evidence of discrimination, we do not reach Medtronic's argument that in the context of the ADA a plaintiff may not use direct evidence to forgo the McDonnell Douglas burden-shifting framework.

      . The MHRA applies a less stringent “materially limits” standard in determining whether a plaintiff is disabled. Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004).

      . Because the only action of Medtronic’s that was within the limitations period is its termination of Oehmke's employment, Oehmke’s claim does not cover any alleged failure of Medtronic to accommodate her , needs. We therefore understand her claim as one based on a theory of disparate treatment, rather than a failure to accommodate.

      . Medtronic argues that under the Supreme Court's holding in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), ADA discrimination claims require a but-for causation standard. Gross's reasoning, which it applied to the “because of" language in the Age Discrimination in Employment Act, arguably could be extended to the comparable “on the basis of” language in the ADA. See Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1002 (8th Cir. 2012) (“We have our doubts about the vitality of the pre-Gross [ADA] precedent.”); see also Gentry v. E.W. Partners Club Mgmt. Co., 816 F.3d 228, 233-36 (4th Cir. 2016) (holding, in reliance on Gross, ADA discrimination claims require a showing 'of but-for causation); Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 317-22 (6th Cir. 2012) (en banc) (same for earlier, differently worded version of ADA); Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 958-63 (7th Cir. 2010) (same for earlier version). Because the potential effect of Gross on our interpretation of the ADA has been only cursorily briefed by Medtronic and because we agree with the district court that Medtronic is entitled to summary judgment even under the less restrictive mixed-motive causation standard, we decline to address this important question at this time.

      . Because we affirm, we do not reach Med-tronic’s alternate argument that all of Oehmke’s claims are time barred.