David Weber v. StrippitDavid Weber v. Strippit
David Weber appeals from the district court‘s entry of judgment on a jury verdict for his former employer on age and perceived disability discrimination claims and from the district court‘s grant of defendants’ motion for judgment as a matter of law on his actual disability discrimination claim. We affirm.1
In May 1990, Weber was hired by defendant Strippit, Inc. as an international sales manager for various Asian markets. Strippit is engaged in the manufacture of a broad range of tooling and machinery used to punch, bend, and shear sheet metal and employs approximately 400 hourly and salaried employees. After an initial training period at Strippit‘s headquarters in Akron, New York, Weber was officed out of his home in Minnesota.
On February 2, 1993, Weber, then 54 years old, suffered a major heart attack. Weber remained in intensive care for about nine days and was placed on physical and work restrictions. About a month later, Weber was again hospitalized for his heart condition and spent six days in intensive care. Following his second hospital stay, Weber was placed on strict physical limitations and was advised by his doctor not to work for nearly two months. On numerous occasions in 1993 and 1994, Weber was hospitalized for his heart disease, hypertension, anxiety, and related conditions. Weber continued to perform his job responsibilities throughout this period.
Beginning in October 1993, several months after Weber had returned to work following his second hospitalization, defendants required Weber to complete further training and advised him of the possibility that he would be required to relocate to Akron.2 In January 1994, Strippit reduced Weber‘s commissions and informed him that
Prior to trial, the district court dismissed numerous Minnesota tort law claims asserted by Weber. After Weber had presented his case at trial, the district court granted judgment as a matter of law for defendants on Weber‘s actual disability claim under the Americans with Disabilities Act (“ADA“) and Minnesota Human Rights Act (“MHRA“) but denied defendants’ motion for judgment on Weber‘s perceived disability and age discrimination claims. At the conclusion of trial, the jury returned a unanimous verdict for defendants. Weber filed a post-trial motion for judgment as a matter of law or, in the alternative, for a new trial, which the district court denied. Weber timely appealed.
II. DISCUSSION
On appeal, Weber contends that defendants violated the equal protection clause when they exercised their peremptory challenges to remove jurors over the age of fifty. Weber also asserts that the district court erred in granting judgment as a matter of law on his actual disability claim and in charging the jury.
A. Peremptory challenges
In Batson, the Supreme Court held that the equal protection clause forbids prosecutors from striking jurors solely on account of their race. Batson, 476 U.S. at 93-94. The Court subsequently extended Batson to counsel participating in jury selection in civil cases, see Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 628 (1991), and to peremptory challenges based on gender, see J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 141-42 (1994). Where Batson applies, the party asserting an equal protection violation must make a prima facie showing that the other party exercised a peremptory challenge on the basis of race or gender; the burden then shifts to the challenging party to offer a non-pretextual race or gender-neutral explanation for their strikes. See Davidson v. Harris, 30 F.3d 963, 965 (8th Cir. 1994); United States v. Brooks, 2 F.3d 838, 840-41 (8th Cir. 1993).
Neither the Supreme Court nor any other court has extended Batson to peremptory challenges based on age. Several circuits, in fact, have expressly considered and rejected the claim that Batson applies to age-based challenges, and other circuits have accepted age as a legitimate race or gender-neutral factor for exercising peremptory challenges. See, e.g., United States v. Maxwell, 160 F.3d 1071, 1075-76 (6th Cir. 1998); Howard v. Moore, 131 F.3d 399, 408 (4th Cir. 1997); United States v. Cresta, 825 F.2d 538, 544-45 (1st Cir. 1987); see also Barker v. Yukins, 993 F. Supp. 592, 605 n.12 (E.D. Mich. 1998); State v. Everett, 472 N.W.2d 864, 869 (Minn. 1991).
Even if Batson were extended to age-based peremptory challenges, the district court assessed the age-neutral reasons for defendants’ exercise of their peremptory challenges and found them non-pretextual. Defendants had requested, for instance, that one of the three jurors be excluded because her brother-in-law had made claims of age discrimination against a former employer; when the court declined to strike the juror for cause, defendants exercised a peremptory challenge to exclude the juror. The district court further found that all three jurors’ answers during voir dire could support defense counsel‘s view that the jurors were predisposed to rule against defendants. Because the district court‘s findings on discriminatory purpose were not clearly erroneous, see United States v. Wiggins, 104 F.3d 174, 176 (8th Cir. 1997), even a cognizable Batson claim would fail.
B. Actual disability claim
Weber‘s primary contention on appeal is that the district court erred in granting judgment as a matter of law for defendants on his actual disability claim under the ADA and MHRA. Specifically, Weber contends that his heart disease automatically qualifies as a disability under the ADA and, even if it does not, that he presented sufficient evidence that his heart disease substantially interfered with one or more major life
We review the district court‘s grant of a motion for judgment as a matter of law de novo. See Schulz v. Long, 44 F.3d 643, 647 (8th Cir. 1995). Judgment as a matter of law is appropriate if there is insufficient evidence to support a verdict for the non-moving party. See Gray v. Bicknell, 86 F.3d 1472, 1478 (8th Cir. 1996). The evidence is insufficient if no reasonable juror could have returned a verdict for the non-moving party. Morse v. Southern Union Co., 174 F.3d 917, 922 (8th Cir. 1999). In making this determination, we view all facts and resolve all conflicts in favor of the non-moving party, giving him the benefit of all reasonable inferences. See Varner v. National Super Markets, Inc., 94 F.3d 1209, 1212 (8th Cir. 1996).
The ADA proscribes discrimination by an employer “against a qualified individual with a disability because of the disability of such individual.”
To obtain relief under the ADA, a plaintiff must prove that he was disabled within the meaning of the ADA, that with or without reasonable accommodation he was able to perform the essential functions of his job, and that the employer discharged him in whole or in part because of his disability. See, e.g., Katz v. City Metal Co., Inc., 87 F.3d 26, 30 (1st Cir. 1996). The threshold issue is whether plaintiff had a “disability,” which the ADA defines as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;4 - (B) a record of such an impairment; or
- (C) being regarded as having such an impairment.
Guidance as to the meaning of “substantially limits one or more major life activities” is found in the regulations promulgated under the ADA. “Major life activities” include “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”
“Substantially limited” is defined as:
- (i) Unable to perform a major life activity that the average person in the general population can perform; or
- (ii) Significantly 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
the same major life activity.
- (i) The nature and severity of the impairment;
- (ii) The duration or expected duration of the impairment;
- (iii) The permanent or long term impact, or the expected long term impact of or resulting from the impairment.
At the close of Weber‘s case, defendants moved for judgment as a matter of law on Weber‘s disability and age discrimination claims. With respect to Weber‘s claim of actual disability, defendants conceded that Weber‘s heart disease constituted an impairment under the ADA. Defendants argued, however, that Weber had not shown the impairment to substantially limit any major life activity. Defendants focused, in particular, on the major life activity of working. Defendants noted that Weber claimed only to be unable to relocate to a particular location and not to be restricted from working in an entire class or broad range of jobs. The district court granted defendants’ motion for judgment as a matter of law on the actual disability claim.
On appeal, Weber asserts the curious claim that “[h]aving a fully functioning cardiovascular system is a major life activity,” such that his heart disease qualifies per se as an actual disability under the ADA. This claim stems from his confusion among the terms “impairment,” “major life activity,” and “disability” as used in the ADA and
The district court found, and Weber concedes, that Weber‘s impairment did not substantially limit the major life activity of working. However, Weber claims that the district court should have considered major life activities other than working and that, based on the testimony of Weber and his physician, a reasonable jury could have found that he was substantially limited in one or more major life activities. While Weber‘s physician offered his opinion that Weber was substantially limited in one or more major life activities, he repeatedly failed to identify any particular activity in which Weber was restricted as to condition, manner, or duration as compared to the average person in the general population. Weber did identify specific activities that were impacted by his heart disease, including eating, walking up stairs, shoveling snow, gardening, mowing the lawn, playing tennis, fishing, and hiking. Aside from eating and walking, however, none of these activities qualify as major life activities.
While Weber did face dietary restrictions and difficulty walking long distances or climbing stairs without getting fatigued, these moderate limitations on major life activities do not suffice to constitute a “disability” under the ADA. See, e.g., Land v. Baptist Medical Ctr., 164 F.3d 423, 425 (8th Cir. 1999) (holding that an individual is not actually disabled where, despite a severe allergic reaction to foods containing peanuts or peanut by-products, she can consume other foods and her physical ability to eat is not in any way restricted); Kelly v. Drexel Univ., 94 F.3d 102, 106-08 (3d Cir. 1996) (affirming summary judgment for defendants on actual disability claim where impairment prevented plaintiff from walking more than a mile or so, altogether prevented him from jogging, and required him to pace himself on stairs). Moreover,
Because Weber “failed to present sufficient evidence to establish that the nature, duration, and long-term impact of his medical problems caused him to be substantially limited in a major life activity,” Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir. 1996), the district court did not err in granting judgment as a matter of law.
C. Jury charge
Weber next claims that the district court erred in charging the jury by giving a flawed instruction on perceived disability and failing to give instructions on “record of disability,” “reasonable accommodations,” the McDonnell-Douglas burden-shifting framework, and mixed motives.
1. Perceived disability
A person may be disabled under the ADA if, notwithstanding the absence of an actual disability, he is perceived or “regarded as” having an impairment that substantially limits a major life activity. See Sutton, 1999 WL 407488, at *12. Weber claims that the district court‘s instruction on perceived disability was flawed in that it emphasized the major life activity of “working” and was more akin to an actual disability instruction than a perceived disability instruction.
The references in the district court‘s instruction to the major life activity of working were not improper. Although Weber did not claim that his heart condition in fact limited his ability to work, he did claim (and continues to claim) that defendants treated him as if it did. Because the jury was at least implicitly invited to find that defendants treated Weber as if he was unable to work, and because the regulations set
Additionally, the district court did not limit its instruction to the major life activity of working. Rather, the court instructed the jury that it should find Weber disabled if defendants regarded his impairment as substantially limiting any major life activity, “such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, sitting, standing, lifting, reaching, or working.” Thus, “the instructions, taken as a whole and viewed in light of the evidence and applicable law, fairly and adequately submitted the issues in the case to the jury.” Morse, 174 F.3d at 926.
Weber‘s claim that the court‘s instruction was more akin to an actual disability instruction than a perceived disability instruction also fails. Weber contends that the test for perceived disability is whether defendant treated plaintiff adversely because of his or her feelings about the plaintiff‘s physical or mental impairment. This is not the test. Rather, the test is whether defendant treated plaintiff adversely because it regarded him as having an impairment that substantially limits one or more major life activities. See Murphy v. United Parcel Serv., Inc., __ U.S. __, 1999 WL 407472, at *4 (June 22, 1999); Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995); see also O‘Keefe v. Varian Assocs., Inc., 1998 WL 417498, at *18 (N.D. Ill. 1998) (“For an employee to be disabled under this definition, it is not sufficient that an employer
The court‘s instruction to the jury -- that “it is your duty to determine whether defendants regarded plaintiff as having a physical impairment that substantially or materially limits a major activity . . . [n]ot whether plaintiff actually has such an impairment” -- thus stated the proper test for a perceived disability claim.
2. Record of disability
Weber next claims that the district court erred in failing to give a “record of disability” instruction based upon his hospitalizations during his employment at Strippit. The ADA does proscribe discrimination based upon a documented history of having a physical or mental impairment that substantially limits one or more of the major life activities. However, regardless of whether the evidence in this case would have supported a record of disability instruction, Weber never requested the instruction below. Thus, our review is for plain error. See Morse, 174 F.3d at 926.
In order to have a record of disability under the ADA, a plaintiff‘s medical documentation must show that he has a history of, or has been misclassified as having, a physical or mental impairment that substantially limits one or more major life activities.
3. Reasonable accommodations
The first element of a prima facie case of disability discrimination required Weber to demonstrate that he was “disabled” within the meaning of the ADA. The second element, which is the focus of the present analysis, required him to demonstrate that he was a “qualified individual,” which the ADA defines as an individual “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”
The reasonable accommodation requirement is easily applied in a case of an actual disability. Where an employee suffers from an actual disability (i.e., an impairment that substantially limits a major life activity), the employer cannot terminate the employee on account of the disability without first making reasonable accommodations that would enable the employee to continue performing the essential functions of his job. Thus, it is enough to make out a prima facie case of disability
The reasonable accommodation requirement makes considerably less sense in the perceived disability context. Imposing liability on employers who fail to accommodate non-disabled employees who are simply regarded as disabled would lead to bizarre results. Assume, for instance, that Weber‘s heart condition prevented him from relocating to Akron but did not substantially limit any major life activity. Absent a perceived disability, defendants could terminate Weber without exposing themselves to liability under the ADA. If the hypothetical is altered, however, such that defendants mistakenly perceive Weber‘s heart condition as substantially limiting one or more major life activities, defendants would be required to reasonably accommodate Weber‘s condition by, for instance, delaying his relocation to Akron. Although Weber‘s impairment is no more severe in this example than in the first, Weber would now be entitled to accommodations for a non-disabling impairment that no similarly situated employees would enjoy.
No court has squarely addressed whether employers must reasonably accommodate perceived disabilities, and the two circuits that have indirectly considered the issue have suggested different outcomes. In Katz v. City Metal Co., Inc., supra, plaintiff sought an accommodation from his employer in the form of a reduced work schedule after suffering a heart attack. 87 F.3d at 29. The employer denied plaintiff‘s request for an accommodation and terminated his employment. Id. Plaintiff sued under the ADA and, at the end of his case, the court granted the employer‘s motion for judgment as a matter of law, holding that the plaintiff had failed to show that he was disabled. Id. The First Circuit reversed, finding sufficient
The Third Circuit faced a similar situation in Deane, supra. Plaintiff was working as a nurse when she tore the cartilage in her wrist and missed nearly a year of work. 142 F.3d at 141. Plaintiff‘s doctor eventually released her to return to “light duty” work but limited her lifting to 15-20 pounds or less. Id. Defendants determined that plaintiff could not be accommodated in any position available and terminated her. Id. Plaintiff focused her case on her employer‘s perception that she was disabled and argued that she was entitled to reasonable accommodations either in her previous position or another position, so long as no heavy lifting would be required. Id. at 142. The district court entered summary judgment for defendants. Id.
On appeal, a divided panel of the Third Circuit held that: (1) in order to be considered qualified under the ADA, a “regarded as” plaintiff must show that she is able to perform all the functions of the relevant position; and (2) a “regarded as” plaintiff is not statutorily entitled to accommodation from her employer. Id. at 140-41. The Third Circuit granted rehearing en banc and reversed the panel, holding that a plaintiff is qualified under the ADA so long as she is able to perform the essential functions of the relevant position. Because this holding alone required remand, the court did not reach “the more difficult question . . . whether ‘regarded as’ disabled plaintiffs must be accommodated by their employers if they cannot perform the essential functions of their jobs.” Id. at 148-49 n.12.
The Third Circuit nonetheless discussed this issue in some detail and acknowledged that there is “considerable force” to the argument that “regarded as” disabled plaintiffs are not entitled to accommodations. Id. Among the court‘s concerns were that adopting plaintiff‘s interpretation of the ADA would: “(1) permit healthy
The ADA cannot reasonably have been intended to create a disparity in treatment among impaired but non-disabled employees, denying most the right to reasonable accommodations but granting to others, because of their employers’ misperceptions, a right to reasonable accommodations no more limited than those afforded actually disabled employees. Accordingly, we hold that “regarded as” disabled plaintiffs are not entitled to reasonable accommodations and that the district court did not err in failing to give a reasonable accommodation instruction.
4. Burden-shifting and mixed motive
Weber‘s final claims of instructional error are that the district court should have instructed the jury on the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and should have given a mixed motive instruction. Although Weber lists these alleged errors in his opening brief, he fails to discuss either until his reply brief. Accordingly, these claims have been waived. See United States v. Brown, 108 F.3d 863, 867 (8th Cir. 1997).
In any event, these claims fail on the merits. We have previously rejected the claim that a district court should instruct the jury on the McDonnell Douglas burden-
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court judgment in all respects.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.