Opinion
7:98CV5044
January 2000.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the defendant's motion for summary judgment and the plaintiff's opposition thereto. Upon consideration of the pleadings, briefs, evidence and case law, the Court finds that the motion should be granted in its entirety, as explained below.
BACKGROUND
Ms. Tuck is a Kmart veteran, having worked for the company for 20 years until her position was eliminated during her recuperation from surgery for carpal tunnel syndrome. She began her employment with Kmart in May 1976, while living in New York. She transferred to the Scottsbluff, Nebraska, Kmart store in 1979 when she returned to the area to reside. Ms. Tuck's primary job position was in the "cash cage," which means that she worked in the store office handling the daily cash receipts. Her duties included allocating an appropriate amount of cash for each cash register at the beginning of the cashiers' shifts, as well as balancing cash at the end of a shift against sales during that shift. She also performed other office work and some stocking duties as necessary on her weekly 40-hour shift.
In December 1995, Ms. Tuck underwent a mastectomy and was off work until the first week of March 1996. She then returned to work on essentially a part-time basis, as she was enduring chemotherapy treatments following the surgery. Throughout the spring and summer of 1996, Ms. Tuck worked 20-30 hours a week, performing only the "cash cage" functions.
In August 1996, Ms. Tuck was diagnosed as having carpal tunnel syndrome in both wrists. She was off work after the week ending August 28, 1996. Carpal tunnel release surgery was performed on her right hand in September 1996, and on her left hand in October 1996. Her doctor released her to return to work as of November 19, 1996, noting that she should not lift more than five to ten pounds during the first three weeks and should take frequent breaks when keyboarding. During Ms. Tuck's leave, however, Kmart restructured various jobs and eliminated her "cash cage" position.
Before Ms. Tuck returned to work in another position, her doctor ordered a functional capacity test and a job site analysis. Both tests were completed in March 1997. Kmart had two positions available for Ms. Tuck: up-front manager and weekend recovery/ad set associate. The occupational therapist analyzed the managerial and cash cage duties, and concluded that with some minor accommodations, Ms. Tuck could perform either job as long as she followed her medical restrictions on lifting, carrying, and repetitive hand motion.
Kmart offered her the up-front manager position, but Ms. Tuck refused it because she believed the lifting requirements of the job surpassed her physical restrictions. She returned to work on April 7, 1997, as a stocker and service desk associate. However, her carpal tunnel syndrome flared up and she did not work for Kmart after April 23, 1997. Through workers' compensation, she received training as a cosmetologist and has worked in that capacity since December 1998.
Ms. Tuck filed a charge of discrimination with the Nebraska Equal Opportunity Commission. The NEOC, however, found insufficient evidence to support the allegations. She then filed this lawsuit in November 1998 alleging violation of the Family Medical Leave Act, 29 U.S.C. § 2611, et seq. ("FMLA"). She subsequently amended her complaint to include claims under the Americans with Disabilities Act, 42 U.S.C. § 12111, et seq. ("ADA"). Kmart has moved for summary judgment on the grounds that Plaintiff is not an eligible employee under the FMLA and was unable to perform the essential functions of the cash cage position when she sought reinstatement, and that she is not a disabled person under the ADA and even if she is, she refused the reasonable accommodation offered by the employer.
STANDARD OF REVIEW
The question before the district court is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Morgan v. Rabun, 128 F.3d 694, 696 (8th Cir. 1997), cert. denied, 523 U.S. 1124 (1998); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992); St. Paul Fire Marine Ins. Co. v. FDIC, 968 F.2d 695, 699 (8th Cir. 1992).
Summary judgment is an extreme and treacherous device, which should not be granted unless the moving party has established a right to a judgment with such clarity as to leave no room for controversy, and unless the other party is not entitled to recover under any discernible circumstances. Vette Co. v. Aetna Cas. Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980). In ruling on a motion for summary judgment, the district court must view the facts in the light most favorable to the party opposing the motion and give that party the benefit of all reasonable inferences to be drawn from the record. Id.; Widoe v. District No. 111 Otoe County Sch., 147 F.3d 726, 728 (8th Cir. 1998); Ghane v. West, 148 F.3d 979, 981 (8th Cir. 1998). Even if the district court is convinced that the moving party is entitled to judgment, the exercise of sound judicial discretion may dictate that the motion should be denied, so the case may be fully developed at trial. McLain v. Meier, 612 F.2d 349, 356 (8th Cir. 1979); Franklin v. Lockhart, 769 F.2d 509, 510 (8th Cir. 1985).
Essentially, the test is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-52. Moreover, although under Federal Rule of Civil Procedure 56 due deference must be given to the rights of litigants to have their claims adjudicated by the appropriate finder of fact, equal deference must be given under Rule 56 to the rights of those defending against such claims to have a just, speedy and inexpensive determination of the action where the claims have no factual basis. Celotex Corp. v. Catrett, 477 U.S. at 327.
The court's role is simply to determine whether the evidence in the case presents a sufficient dispute to place before the jury.
At the summary judgment stage, the court should not weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter. Rather, the court's function is to determine whether a dispute about a material fact is genuine. . . . If reasonable minds could differ as to the import of the evidence, summary judgment is inappropriate.Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir. 1996) (internal citations omitted). See also Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999) (court's function is not to weigh the evidence to determine truth of any factual issue).
A genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, meaning a reasonable jury could return a verdict for either party. RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995).
The Eighth Circuit Court of Appeals has repeatedly cautioned that summary judgment should seldom be granted in the context of employment actions, as such actions are inherently fact-based.Chock v. Northwest Airlines, Inc., 113 F.3d 861, 862 (8th Cir. 1997); Hardin v. Hussmann Corp., 45 F.3d 262, 264 (8th Cir. 1995). "Summary judgments should be sparingly used and then only in those rare instances where there is no dispute of fact and where there exists only one conclusion." Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir. 1991) (citing Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363, 364 (8th Cir. 1987), cert.denied, 488 U.S. 1004 (1989)). "Because discrimination cases often turn on inferences rather than on direct evidence, [the court must be] particularly deferential to the nonmovant." Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1205 (8th Cir. 1997) (citingCrawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994)). Such deference, however, will not preclude the entry of summary judgment when the facts of the case warrant it.
DISCUSSION Objections to Plaintiff's Affidavit
As an initial matter, the Court will consider Kmart's objections to Ms. Tuck's affidavit in opposition to the motion for summary judgment. The specific objections are delineated in the defendant's statement of objection, but Kmart essentially complains that many of Ms. Tuck's statements of fact are in actuality legal conclusions. While Defendant's points are well-taken, the objections will be overruled. The Court will, however, accord Plaintiff's affidavit the weight it deserves, bearing in mind the concerns raised by Defendant. See Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 616 (8th Cir. 1997) ("We do not believe that the District Court erred by discounting Ms. Helfter's affidavit and deposition testimony due to its conclusory nature. . . . [S]uch statements, standing alone, are insufficient to withstand a properly-supported motion for summary judgment.")
FMLA Claims Eligibility
The FMLA entitles eligible employees to take leave from their jobs when they must be absent from work for medical reasons. 29 U.S.C. § 2612(a)(1). The Act allows an "eligible employee" to take up to twelve weeks of leave during any twelve-month period for certain family or medical reasons, including "a serious health condition that makes the employee unable to perform the functions of [his or her] position". 29 U.S.C. § 2612(a)(1)(D). An employee is eligible for such leave if he or she has at least 1,250 hours of service during the twelve months prior to commencing leave. 29 U.S.C. § 2611(2)(A)(ii); Moore v. Payless Shoe Source, Inc., 139 F.3d 1210, 1213 (8th Cir. 1998), vacated on other grounds, 119 S.Ct. 2017 (1999), and reinstated, 187 F.3d 845, 848 (8th Cir. 1999), cert. denied, 120 S.Ct. 589 (1999).
The term "serious health condition" means an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice or residential medical care facility, or continuing treatment by a health care provider. 29 U.S.C. § 2611(11).
The Act also provides that upon return from FMLA leave, the employee shall be restored to the position he or she held when the leave began, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. 29 U.S.C. § 2614(a)(1). "If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA." 29 C.F.R. § 825.214(b).
When an employee seeks FMLA leave from an employer, the request need not specifically mention FMLA leave, but should provide enough information to put the employer on notice that the employee may need FMLA leave. Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1049 (8th Cir.), cert. denied, 120 S.Ct. 588 (1999).
Kmart has moved for summary judgment on this claim because Ms. Tuck is not an "eligible employee" for FMLA purposes. The evidence establishes that for the 12-month period prior to August 28, 1996, Ms. Tuck worked 1,009.25 hours. She disagrees with that sum and suggests that Kmart's records should reflect an additional 32 hours. Regardless of whether the Court uses Ms. Tuck's figures or Kmart's figures, however, the hours do not total 1,250. Ms. Tuck therefore is not an "eligible employee." Sepe v. McDonnell Douglas Corp., 176 F.3d 1113, 1115 (8th Cir. 1999), cert. denied, ___ U.S. ___, No. 99-635, 1999 WL 889647 (U.S. Dec. 13, 1999).
Ms. Tuck argues, however, that Department of Labor regulations protect her. She relies on the language of 29 C.F.R. § 825.110(d) requiring an employer to advise the employee of her eligibility or ineligibility or the employee will be deemed eligible:
The determinations of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date leave commences. If an employee notifies the employer of need for FMLA leave before the employee meets these eligibility criteria, the employer must either confirm the employee's eligibility based upon a projection that the employee will be eligible on the date leave would commence or must advise the employee when the eligibility requirement is met. If the employer confirms eligibility at the time the notice for leave is received, the employer may not subsequently challenge the employee's eligibility. . . . If the employer fails to advise the employee whether the employee is eligible prior to the date the requested leave is to commence, the employee will be deemed eligible. The employer may not, then, deny the leave.
. . .
Ms. Tuck takes the position that because Kmart did not tell her that she was ineligible for FMLA leave when she requested leave for her carpal tunnel surgery, it should be estopped from now arguing that she is ineligible. See also Sepe v. McDonnell Douglas Corp., 176 F.3d at 1115 (Plaintiff's argument not reached because court found Plaintiff was discharged for violating collective bargaining agreement, not for exercising FMLA rights). Kmart argues that Ms. Tuck did not request FMLA leave for this surgery and should not be allowed to hold Kmart liable for failing to confirm leave she never requested.
The regulations, however, put the burden on the employer to ascertain whether FMLA leave is being requested:
An employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under the FMLA or even mention the FMLA. . . . The employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken. In the case of medical conditions, the employer may find it necessary to inquire further to determine if the leave is because of a serious health condition
. . . .
Ms. Tuck provided Kmart with a doctor's note dated August 29, 1996, which stated, "Kathleen will have a carpal tunnel release (RH) on the Sept. 3rd [sic] will be off for approx 3 weeks until we will operate on the Left will need approx 6 wks following for rehab time." Def.'s Evid. in Supp. of Mot. for Summ. J., Ex. 11 (filing 22). Kmart therefore was charged with the responsibility of determining whether Ms. Tuck's notification that she needed some nine weeks off for surgery and rehabilitation was in fact a request for FMLA-qualifying leave. The Court will not punish Ms. Tuck for Kmart's lapse by granting summary judgment on the eligibility issue.
Prima facie case
Kmart does not dispute that Ms. Tuck had a "serious health condition" within the meaning of the FMLA, so the only issue before the Court is whether or not Ms. Tuck was able to perform the essential functions of her position upon her return to work. The Department of Labor standards explain the employer's duties:
(a) On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee's absence. . . .
(b) If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA. However, the employer's obligations may be governed by the [ADA].29 C.F.R. § 825.214.
At the time Ms. Tuck was released to work after what is characterized as and, for purposes of this motion, presumed to be FMLA leave, on November 19, 1996, she was severely limited in her lifting and keyboarding abilities. Def.'s Evid. in Supp. of Mot. for Summ. J., Ex. 12 (filing 22) (No lifting more than five to ten pounds for the first three weeks and frequent breaks while keyboarding.). Kmart did not return her to office or cash cage duties because only limited hours were available and because the job required some lifting. Plaintiff's doctor then ordered a job site analysis of other available positions at Kmart. As noted above, the occupational therapist determined that Ms. Tuck could perform the up-front manager (including service desk associate and lay-away associate) job with certain adjustments, including assistance with lifting anything heavy. Id. Ex. 15. Ms. Tuck, however, believed that the lifting requirements exceeded her restrictions, so she declined the positions. Ms. Tuck did work at the service desk and as a stocker upon her return to work in April 1997. However, her hands began to swell, so her doctor ordered her to decrease her repetitive lifting at work. Ms. Tuck did not return to work at Kmart after that.
The Act requires that an employee be returned to her same or equivalent job after FMLA leave. In this case, Ms. Tuck's cash cage job was not available. The company offered her similar jobs, but Ms. Tuck did not feel she was capable of doing them. For purposes of this motion, it appears Ms. Tuck was unable, or believed herself to be unable, to perform the essential functions of the jobs available to her, and therefore is not entitled to relief under the FMLA. Summary judgment will be granted in Kmart's favor on the FMLA claims, and the Court will now consider the ADA claims.
ADA Claims Prima facie case
The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). "The term `qualified individual with a disability' means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). "The term `disability' means, with respect to an individual — (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2).
To establish a prima facie case under the ADA, a plaintiff must show that (1) she is a disabled person within the meaning of the ADA; (2) she is qualified to perform the essential functions of the job either with or without reasonable accommodation; and (3) she has suffered an adverse employment action under circumstances from which an inference of unlawful discrimination arises. Belk v. Southwestern Bell Tel. Co., 194 F.3d 946, 949-50 (8th Cir. 1999); Buckles v. First Data Resources, Inc., 176 F.3d 1098, 1100 (8th Cir. 1999); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1318 (8th Cir. 1996); Robinson v. Neodata Servs., Inc., 94 F.3d 499, 501 (8th Cir. 1996).
The first step for the Court, then, is to determine whether Plaintiff is disabled within the meaning of the ADA. If Plaintiff fails to meet the ADA's definition of a disabled individual, then the Court's inquiry need go no further. To determine whether Plaintiff has a disability, I first must determine whether Plaintiff has a physical impairment, defined as "[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine", 29 C.F.R. § 1630.2(h)(1), or a mental impairment, defined as "[a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities." 29 C.F.R. § 1630.2(h)(2).
Neither party seriously disputes that Plaintiff's carpal tunnel syndrome is a physical impairment. The parties do, however, disagree on whether it is a disability under the ADA. The question of what constitutes a disability within the meaning of the ADA was recently taken up by the Supreme Court in Sutton v. United Air Lines, Inc., ___ U.S. ___, 119 S.Ct. 2139 (1999) and Murphy v. United Parcel Service, Inc., ___ U.S. ___, 119 S.Ct. 2133 (1999). In Sutton, the Supreme Court explained:
The ADA prohibits discrimination by covered entities . . . against qualified individuals with a disability. . . . A "qualified individual with a disability" is identified as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." § 12111(8). In turn, a "disability" is defined as:
"(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
"(B) a record of such an impairment; or
"(C) being regarded as having such an impairment." § 12102(2).
Accordingly, to fall within this definition one must have an actual disability (subsection (A)), have a record of a disability (subsection (B)), or be regarded as having one (subsection (C)).119 S.Ct. at 2144.
Ms. Tuck alleges all three; that is, she claims that she has a disability, that she has a record of a disability, and that she was perceived by her employer as having a disability. To establish a disability as contemplated by the ADA, the plaintiff must show that her condition "substantially limits one or more of [her] major life activities." The ADA itself does not define "major life activity," but the United States Supreme Court has interpreted the term to include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Bragdon v. Abbott, 524 U.S. 624, 638-39 (1998).
"Substantially limits" is defined as:
(i) [u]nable to perform a major life activity that the average person in the general population can perform; or
(ii) [s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.29 C.F.R. § 1630.2(j)(1).
The applicable regulations set forth three factors the Court is to consider when determining whether a plaintiff is substantially limited in a major life activity: "(i) [t]he nature and severity of the impairment; (ii) [t]he duration or expected duration of the impairment; and (iii) [t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2(j)(2). In this context, "duration" is the length of time an impairment persists, while "impact" refers to the residual effects of an impairment.
In addition, when the major life activity affected is that of working (and there are no allegations in the present case that any major life activity other than working is at issue), additional factors are to be considered. The Supreme Court also notes "some conceptual difficulty" in defining work as a major life activity because it results in a circular argument. Sutton, 119 S.Ct. at 2151. 29 C.F.R. § 1630.2(j)(3)(i) provides:
[With respect to `working'], [t]he term `substantially limits' means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
The regulations also set forth additional factors that "may" be considered in determining whether the ability to work is substantially limited: (1) the geographical area to which the plaintiff has reasonable access; (2) the job from which the plaintiff was disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the plaintiff is also disqualified because of the impairment (in other words, the class of jobs the plaintiff is precluded from performing); and/or (3) the job from which the plaintiff was disqualified because of the impairment, and the number and types of other jobs not utilizing similar training, knowledge, etc., within that geographical area, from which the plaintiff is also disqualified because of the impairment (in other words, the broad range of jobs in various classes which the plaintiff is precluded from performing). 29 C.F.R. § 1630.2(j)(3)(ii).
To demonstrate that she was substantially limited in the major life activity of working, the plaintiff must show that her condition significantly restricted her ability to perform a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable skills and training. Perkins v. St. Louis County Water Co., 160 F.3d 446, 448 (8th Cir. 1998) (citing 29 C.F.R. § 1630.2(j)(3)(i) and Olson v. Dubuque Community Sch. Dist., 137 F.3d 609, 611-12 (8th Cir. 1998)).
The Murphy and Sutton cases demonstrate that an ADA plaintiff must do more than allege he or she has a disability which inhibits his or her ability to work at a particular job.
To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual's skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs.Sutton, 119 S.Ct. at 2151.
The Court must consider the intent of the ADA when evaluating a person's ability to work.
In Webb v. Garelick Manufacturing Co., 94 F.3d 484, 488 (8th Cir. 1996), this court stated, "the ADA is concerned with preventing substantial personal hardship in the form of significant reduction in a person's real work opportunities. A court must ask `whether the particular impairment constitutes for the particular person a significant barrier to employment,'" and the person's expertise, background, and job expectations are relevant in defining the class of jobs used to determine whether the person is disabled. Id. at 488 (citations omitted). Finding that an individual is substantially limited in his or her ability to work requires a showing that his or her overall employment opportunities are limited. Miller v. City of Springfield, 146 F.3d 612, 614 (8th Cir. 1998).Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 949 (8th Cir. 1999).
Second, to be a "qualified individual" entitled to ADA protection, a plaintiff must show that her work performance met the employer's legitimate job expectations, with or without reasonable accommodation. Mole v. Buckhorn Rubber Products, Inc., 165 F.3d 1212, 1217 (8th Cir.), cert. denied, ___ U.S. ___, 120 S.Ct. 65 (1999). Here, Plaintiff has not alleged that she was qualified for the essential functions of the job, with or without accommodation.
Third, the plaintiff must show that she suffered an adverse employment action because of her disability. Belk v. Southwestern Bell Tel. Co., 194 F.3d 946, 950 (8th Cir. 1999). The Eighth Circuit has ruled that evidence of discriminatory treatment is necessarily dependent upon the situation in each case:
In Price v. S-B Power Tool, 75 F.3d 362, 365 (8th Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 274, 136 L.Ed.2d 197 (1996), we noted that "[a]n inference of discrimination may be raised by evidence that a plaintiff was replaced by or treated less favorably than similarly situated employees who are not in the plaintiff's protected class." It does not follow, however, that evidence of disparate treatment is the exclusive means by which a plaintiff may establish an inference of discrimination. See Miners v. Cargill Communications, Inc., 113 F.3d 820, 824 n. 7 (8th Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 441, 139 L.Ed.2d 378 (1997) ("[a]lthough . . . disparate treatment commonly gives rise to an inference of discrimination, it cannot be the only means of demonstrating unlawful discrimination"). In McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)], the Supreme Court recognized that the prima facie case will necessarily vary in different factual situations. 411 U.S. at 802 n. 13, 93 S.Ct. 1817. We have recognized, as well, that the proof necessary to establish a prima facie case in discrimination cases is "not inflexible" and "varies somewhat with the specific facts of each case." Hindman v. Transkrit Corp., 145 F.3d 986, 990-91 (8th Cir. 1998).Young v. Warner-Jenkinson Co., Inc., 152 F.3d 1018, 1022 (8th Cir. 1998).
We have also noted that the phrase "prima facie case" is "intended merely to be a legally mandatory, rebuttable presumption. Its purpose in the burden-shifting scheme is `to sharpen the inquiry into the elusive factual question of intentional discrimination.'" Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1332 n. 6 (8th Cir. 1996) (quoting [Texas Dep't of Community Affairs v.]Burdine, 450 U.S. [248] at 255 n. 8, 101 S.Ct. 1089).
Here, Ms. Tuck has not established that her disability was a motivating factor in the challenged employment decision.
Applicability
Under the circumstances of the present case, it is clear that Ms. Tuck has failed to establish that a genuine factual issue exists with regard to her alleged disability, in that she has not demonstrated that she is substantially limited in the major life activity of working, and she therefore is not disabled. First, the medical evidence states that Ms. Tuck has no permanent impairment based on range of wrist motion or grip strength. Def.'s Evid. in Supp. of Mot. for Summ. J., Ex. 18 (filing 22). Even if the Court assumes for purposes of this motion that the use restrictions which continue to be applicable to reduce the inflammation and swelling in Ms. Tuck's hands and wrists constitute an impairment, that impairment does not rise to the level of a disability. See Weber v. Strippit, Inc., 186 F.3d 907, 914 (8th Cir. 1999) (Moderate limitations on major life activities do not constitute ADA disability), petition for cert. filed, 68 U.S.L.W. 3311 (U.S. Oct. 27, 1999) (No. 99-73).
Second, Ms. Tuck testified in her deposition that the only Kmart job she believes she is capable of performing is the cash cage position. Id., Ex. 1, Dep. of Kathleen Tuck, 111:14-112:1. This seems to disregard the functional capacity evaluation which indicates she can perform work in the light- to medium-duty categories, lifting up to 40 pounds on an occasional basis, and protecting her hands and wrists by using proper arm positions and taking breaks every half-hour when performing repetitive handling/fingering tasks. Id. Ex. 16. Even considering these restrictions, the job site analyst found that Ms. Tuck nevertheless could perform certain of the available jobs at Kmart. There is absolutely no evidence in the record that Ms. Tuck is precluded from either a substantial class or a broad range of jobs. Indeed, this lawsuit appears to be Plaintiff's attempt to reclaim her particular job of choice at Kmart, that is, the cash cage. As noted above and explained by the Supreme Court, the ADA's purpose is not to restore employees to their jobs of choice. Rather, its purpose is to protect those qualified individuals who are discriminated against by employers solely because of their disabilities.
Plaintiff also believes the "record of" and "regarded as" prongs of the ADA test apply. The regulations define "has a record of such impairment" to mean that a person has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. 29 C.F.R. § 1630.2(k). Therefore, Plaintiff must show that at some point in the past, she was classified or misclassified as having an impairment that substantially limits a major life activity.Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1120-21 (5th Cir. 1998); Burch v. Coca-Cola Co., 119 F.3d 305, 321-22 (5th Cir. 1997), cert. denied, 522 U.S. 1084 (1998).
An individual is "regarded as having" an impairment that substantially limits her major life activities when other people treat her as having a substantially limiting impairment. 29 C.F.R. § 1630.2( l); Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995). "The focus is on the impairment's effect upon the attitudes of others." Wooten at 385. A defendant cannot be liable for discharging an employee unless it regarded the plaintiff as having a disability. Roberts v. Unidynamics Corp., 126 F.3d 1088, 1092 (8th Cir. 1997), cert. denied, 523 U.S. 1106 (1998). The plaintiff therefore must show not only that the employer perceived her as impaired, but also that the perceived impairment substantially limited a major life activity. Marschand v. Norfolk Western Ry. Co., 876 F. Supp. 1528, 1540 (N.D.Ind. 1995), aff'd, 81 F.3d 714 (7th Cir. 1996). An employer does not regard an employee as disabled simply by finding the employee incapable of satisfying the singular demands of a particular job. Mastio v. Wausau Service Corp., 948 F. Supp. 1396, 1415 (E.D.Mo. 1996). A plaintiff must demonstrate that he or she is regarded as precluded from a broad class of jobs. Shipley v. City of University City, 195 F.3d 1020, 1023 (8th Cir. 1999) (citing Sutton and Murphy). The proper test is whether the impairment, as perceived, would affect the individual's ability to find work across the spectrum of same or similar jobs. Marschand, 876 F. Supp. at 1541.
Therefore, for the plaintiff to prevail on a perceived disability claim, she must show (1) that the defendant treated her as having an impairment which substantially limited one or more of her major life activities and (2) that either (a) while she had a physical or mental impairment, it was not substantially limiting, or (b) that she did not suffer at all from a statutorily prescribed physical or mental impairment. Mastio, 948 F. Supp. at 1415 (citing Cook v. Rhode Island Dept. of Mental Health, Retardation, Hospitals, 10 F.3d 17, 23 (1st Cir. 1993) and 29 C.F.R. App. to Part 1630). Thus, "`if an individual can show that an employer . . . made an employment decision because of a perception of disability based on "myth, fear or stereotype," the individual will satisfy the "regarded as" part of the definition of disability.'" Mastio at 1415 (quoting Cook, supra, at 23).
The evidence in the present case establishes neither prong. Kmart did not treat Ms. Tuck as substantially limited in her ability to work. In fact, it attempted to accommodate her medical restrictions, but she did not believe she could perform the work even with the accommodations. Consequently, Plaintiff has failed to establish a claim under either the "regarded as" or "record of" aspects of the ADA test, and summary judgment will be granted to the defendant.
CONCLUSION
Ms. Tuck's allegations do not meet the statutory requirements for claims under either the FMLA or the ADA. She has not established that she is entitled to be restored to the same or equivalent job with Kmart under the terms of the FMLA, nor has she established that she is disabled under the terms of the ADA. For these reasons, summary judgment will be granted in Kmart's favor.
IT IS ORDERED:
Defendant's objection to Plaintiff's affidavit (filing 27) is overruled; and
Defendant's motion for summary judgment (filing 21) is granted.
Separate judgment will be entered.