Sсott ST. MARTIN, Plaintiff-Appellant, v. CITY OF ST. PAUL, Defendant-Appellee.
No. 11-1716
United States Court of Appeals, Eighth Circuit
June 5, 2012
Submitted: Dec. 14, 2011.
Hamilton argues that the IJ and the BIA applied the wrong legal standard in concluding that she had failed to show “extreme hаrdship” by employing a “partial circumstances test” instead of evaluating the totality of the circumstances. The regulations provide that to establish extreme hardship an applicant “must demonstrate that deportation would result in a degree of hardship beyond that typically associated with deportation” and list a number of factors that may be considered in making this determination. See
The agency‘s determination that Hamilton would not bе subjected to extreme hardship upon removal is discretionary and thus not reviewable by our court. See Zacarias-Velasquez v. Mukasey, 509 F.3d 429, 434 (8th Cir.2007). Hamilton attempts to overcome this jurisdictional bar by framing her argument as a legal one, arguing that the agency applied the wrong legal standard. The BIA had cited the relevant regulation on hardship, however, and concluded that given the evidence presented, Hamilton had not shown that she would experience hardship “beyond that typically associated with deportation.” See
Hamilton‘s argument is really a challenge to the way in which the BIA weighed the relevant factors. For example, she contends that more weight should have been given to the unrest in Kenya, the scarcity of employment opportunities there and lack of availability of professional help, her ties to the United States, and her good moral character. Since Hamilton‘s hardship argument is essentially a challenge to the BIA‘s weighing of evidence, we lack jurisdiction to review it. See Gomez-Perez v. Holder, 569 F.3d 370, 373 (8th Cir.2009); see
Hamilton also argues that the IJ and the BIA applied an unconstitutional “heightened evidentiary standard” to assess her marriage, that the IJ erred in making an adverse credibility finding, and that the IJ erred by concluding that she had nоt been subjected to extreme cruelty. Since we conclude that we do not have jurisdiction to review the agency‘s determination that Hamilton has not met the extreme hardship element required for VAWA cancellation, we do not reach her other arguments.
Accordingly, we dismiss the petition for review for lack of jurisdiction.
Patrick Thomas Tierney, argued, Sarah J. McEllistrem, on the brief, St. Paul, MN, for appellant.
Louise Toscano Seeba, argued, St. Paul, MN, for appellee.
Before LOKEN, BRIGHT and SHEPHERD, Circuit Judges.
BRIGHT, Circuit Judge.
BACKGROUND
St. Martin began working as a firefighter for the City in 1992 and was promoted to captain in 1999. In 2006, he injured his right knee and underwent reconstructive surgery. Consequently, he received workers’ compensation from the City. After the surgery, St. Martin returned to work on a light-duty schedule, performing administrative duties at the fire department. Thereafter, he worked briefly as an arson investigator.
In 2007, the City announced an opening for a fire district chief position, which is one rank above captain. St. Martin applied for the position and took a four-part examination. Based on his scores, St. Martin ranked second out of twenty-one candidates. Department chief Timothy Butler then added an interview portion to the exam, and the top five candidates were interviewed by a panel consisting of Butler, three deputy chiefs, and the assistant fire chief of operations. By the time of the interview in February 2008, two additional fire district chief positions had opened up, and as required by the City, St. Martin took a physical exam and received medical clearance from the City‘s physician. During the interview, Butler asked about St. Martin‘s knee condition and whether he would need accommodations if he was promoted to fire district chief. Despite being the panel‘s first choice for the position, St. Martin was not promoted; instead, Butler, who had ultimate authority to make the decision, promoted those candidates ranked numbers three, four, and five. According to a union representative for the local fire fighters’ union, Butler told her at some point after the interview that he was going to give St. Martin “the disability benefits he wants.”
We are at an impasse with [St. Martin]: he cannot do the job, and we shouldn‘t order him to complete training that certifies him to do a job we cannot let him do, AND we don‘t want to fail in our duty to gеt him the recert he needs as a term and condition of his employment. There is no guarantee that he‘ll make district chief, and to be frank, I would not willingly promote him unless I was forced to. I would prefer he retire, take his disability, and open up further options on the district chief list.
(Appellant‘s App. 220). In May 2009, St. Martin interviewed for a fire district chief position for the third time and, again, Butler did not promote St. Martin.
St. Martin testified that at all relevant times he sought work with the City in any capacity. However, he only received work as a commercial vehicle inspector in January 2010. He was let go from that position after only two weeks because of his knee injury. St. Martin also worked at his brother‘s landscaping company during a few off-season months, but did not perform any actual landscaping work. St. Martin took disability retirement in December 2009 and now works as a fire inspector for the City.
Before his May 2009 interview, St. Martin filed a disability discrimination charge against the City with the Equal Employment Opportunity Commission (EEOC). The EEOC dismissed the claim, but notified St. Martin of his right to file suit. St. Martin then filed a complaint in Minnesota setting forth two counts: (1) disability discrimination by the City in violation of the MHRA by refusing to hire him as fire district chief and failing to reasonably accommodate him, and (2) disability discrimination by the City in constructively terminating his employment in violation of the ADA and failing to reasonably accommodate him, all because of his disability and/or perception thereof. Based on St. Martin‘s federal ADA claim, which relies on the same facts as his MHRA claim, the City timely removed the case to the United States District Court for the District of Minnesota.
The district court granted the City‘s motion for summary judgment, finding: (1) St. Martin was not disabled under the ADA because his knee injury does not substantially limit his ability to work a broad class of jobs and the City did not regard him as being disabled, and (2) the City was not required to accommodate St. Martin‘s disability. The district court dismissеd St. Martin‘s MHRA claim, finding he did not satisfy the MHRA‘s less stringent definition of disability. The district court also found that because the May 2009 interview was not part of St. Martin‘s discrimination charge before the EEOC, his ADA claim arising out of the May 2009 interview necessarily fails for failure to exhaust administrative remedies. St. Martin now appeals the district court‘s order granting the City‘s motion for summary judgment.2
This court reviews a district court‘s grant of summary judgment de novo and may affirm the district court on any basis supported by the record. Figg v. Russell, 433 F.3d 593, 597 (8th Cir.2006). Summary judgment is proper if the movant shows that there is no genuine dispute of any material fact and that he is entitled to judgment as a matter of law.
A.
St. Martin contends there are sufficient factual disputes regarding whether he is disabled under the ADA, which should be resolved by a jury. The ADA prоhibits an employer from discriminating against an employee because of the employee‘s disability.
The parties do not dispute that St. Martin‘s knee injury is a physical impairment. The question is whether the physical impairment substantially limits his ability to work. St. Martin contends the knee injury (1) restricted him from performing the positions of a firefighter and fire captain within the City, (2) caused him to be decertified to work as a commercial vehicle inspector in Minnesota, and (3) made him unable to perform landscaping services. However, St. Martin must show an inability to work a broad class of jobs. See Knutson, 394 F.3d at 1051; Shipley v. City of Univ. City, 195 F.3d 1020, 1022-23 (8th Cir.1999) (affirming summary judgment where the record showed that appellant was able to perform a variety of jobs including car wash attendant, salesman, dry cleaner, and dish washer repairman). The fact that St. Martin worked briefly as an arson investigator for the City without accommodation after his surgery and is currently employed as the fire inspector for the City, undermines his contention. Adding to it is the fact that St. Martin was medically cleared to work as fire district chief. Further, St. Martin also worked in his brother‘s landscaping company, even if he did not perform actual landscaping
St. Martin also contends the City perceived him as disabled based on Butler‘s statements during and after the interviews, and on the City‘s refusal to employ him in any capacity for two years. The third prong of the ADA‘s definition of disability requires St. Martin show he “has been subjected to an action prohibited under [the ADA] chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”
Direct evidence is that which shows “a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.” Id. (quotation omitted). Direct “refers to the causal strength of the proof, not whether it is ‘circumstantial’ evidence.” Id. Alternatively, “if the plaintiff lacks evidence that clearly points to the presence of an illegal motive, he must avoid summary judgment by creating the requisite inference of unlawful discriminаtion through the McDonnell Douglas analysis, including sufficient evidence of pretext.” Id. This means St. Martin must allege facts supporting the underlying elements of his ADA claim. See Lors, 595 F.3d at 834 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). If he can do so, the burden shifts to the City to articulate some legitimate, nondiscriminatory reason for its action. Id. If the City articulates such a reason, the burden shifts back to St. Martin to show the City‘s justification is a pretext. Id.
St. Martin relies on Butler‘s oral and written statements as direct evidence of discrimination. St. Mаrtin argues Butler‘s statements reflect his belief, as the decision-maker, that St. Martin could not handle the fire district chief job and shows the direct link between the discriminatory motive and failure to hire and employ St. Martin. Indeed, Butler‘s statements reflect his view that St. Martin is not the best candidate for the job. However, Butler‘s inquiries concerning St. Martin‘s knee injury during the 2008 interview and Butler‘s statements to St. Martin thereafter included suggestions on how St. Martin could make himself a better candidatе, thereby improving his chances for a promotion. And Butler‘s statements to third parties—the union representative and human resources contact person—about St. Martin‘s medical status and giving St. Martin the disability he wanted, without more, do not show that Butler considered St. Martin‘s knee injury a substantial limit on his ability to work a broad range of jobs. See Nyrop v. Indep. Sch. Dist. No. 11, 616 F.3d 728, 736 (8th Cir.2010) (concluding that isolating comments made by principal did not show the school district regarded teacher as disabled). St. Martin offers no direct evidence that connects his inability to obtain a job outside the fire department with his physical impairment.
St. Martin also contends Butler‘s decisions were pretext for unlawful discrimination. Even assuming he could establish a prima facie case of discrimination, St. Martin acknowledges the City articulated a nondiscriminatory reason for its
B.
St. Martin does not dispute that he failed to exhaust his administrative remedies under the ADA as to the May 2009 interview, but contends the district court erred in dismissing his MHRA claim. In contrast to his ADA claim, St. Martin need not exhaust his administrative remedies so long as he files an administrative charge or brings a lawsuit within one year of the alleged discrimination.
Like the ADA, the MHRA prohibits discrimination in employment because of one‘s disability.
St. Martin argues the reduction in employment opportunities and his inability to secure work with the City due to his disability or perception thereof meets the MHRA‘s less stringent standard of disability. However, as discussed, even when viewеd in the light most favorable to St. Martin, the facts here do not show how he was materially limited in the major life activity of working or regarded as such. Therefore, the district court correctly dismissed St. Martin‘s MHRA claim.
CONCLUSION
For the foregoing reasons, we affirm the district court‘s judgment.
SHEPHERD, Circuit Judge, concurring in part and dissenting in part.
Because St. Martin failed to exhaust his administrative remedies as to the final job opening, I concur in the majority decision, affirming the district court‘s grant of summary judgment as to that ADA claim. However, I believe there was direct evidence that Butler did not promote St. Martin because he regarded him as disabled. Accordingly, I would reverse and allow a jury to decide St. Martin‘s ADA claims as to the first two job openings and all of his MHRA claims.
Under the ADA, an employee can recover from an employer that treats the em-
An employee can survive summary judgment on an ADA claim by presenting direct evidence of discrimination. Libel v. Adventure Lands of Am., Inc., 482 F.3d 1028, 1034 (8th Cir.2007). “[D]irect evidence is evidence showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a rеasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.” Id. (quoting Griffith v. City of Des Moines, 387 F.3d 733, 736-37 (8th Cir.2004)). “‘[D]irect’ refers to the causal strength of proof, not [to] whether it is ‘circumstantial’ evidence.” Griffith, 387 F.3d at 736. Use of a burden shifting framework is not necessary for the plaintiff to get his case to the jury where direct evidence exists; a plaintiff with direct evidence is entitled to get to the jury based on that evidence alone. See id.
St. Martin offered evidence of multiple statements related to his disability made by Butler, who was the decisionmaker in the hiring process. During St. Martin‘s interviews for the several openings, Butler repeatedly questioned St. Martin about his knee injury. Butler told St. Martin that he did not believe St. Martin “could physically do the job” of fire chief. In discussing how St. Martin might improve himself as a candidate for future fire chief openings, Butler told St. Martin he could make an “investment in personal professional development and department involvement” but stated that given St. Martin‘s “medical status” such development would “prove difficult.” Butler sent an email to human resources stating St. Martin “cannot do the job.... I would not willingly promote him unless I was forced to. I would prefer he retire, take his disability, and open up further options on the district chief list.” St. Martin was required to get medical clearance before being allowed to interview for the fire district chief positions although other applicants were not required to do so. Additionally, St. Martin was the second highest scoring candidate on the aptitude exam, was the first choice of the interview panels, and had a history of “outstanding” reviews during his eighteen-year career with the Fire Department.
The majority characterizes Butler‘s statements as stray remarks and concludes that the statements by Butler are not direct evidence linking Butler‘s discriminatory animus to his failure to promоte St. Martin. See Ante at 1033. I disagree and would conclude Butler‘s remarks are direct evidence sufficiently linking Butler‘s animus to his failure to promote St. Martin.
Certainly, “[n]ot every prejudiced remark made at work supports an inference
In this case, the evidence is direct because the discriminatory statements were made by the sole decisionmaker and directly related to St. Martin‘s ability to do the job. Specifically, Butler stated that St. Martin could not “physically do the job” of fire chief. Moreover, Butler‘s view of St. Martin as disabled was not limited to his perceived inability to perform one specific job. Instead, St. Martin has offered evidence that Butler regarded him as unable to perform a broad class of jobs. Butler stated that there was “no return to work” option for St. Martin. These were not stray or isolated remarks; they were repeated statements directly addressing St. Martin‘s ability to perform the major life function of working, and they were statements made by the decisionmаker.
Whether Butler‘s proffered reasons for not promoting St. Martin were his actual reasons or whether he did not promote St. Martin because he regarded St. Martin as disabled is a question of fact for the jury. To affirm the grant of summary judgment in this case erroneously takes away from the jury a question of fact and denies St. Martin the trial to which he is entitled based on the direct evidence he has offered.
BRIGHT
CIRCUIT JUDGE