The full case caption appears at the
end of this opinion. Wanda K. Taylor appeals from the district court’s
[FOOTNOTE 1] grant of summary judgmenton her claim of employment discrimination under the Americans with Disabilities Act.(ADA), 42 U.S.C. �� 12101-12213, in favor of her former employer, Nimock’s Oil Co.(Nimock). We affirm. I. We recite the facts in the light most favorable to Taylor. From 1989 to 1996,Taylor worked as cashier in one of Nimock’s convenience stores. By late 1995, shealso performed “head cashier work,” which essentially involved running the store, inparticular when the manager was absent. In November of 1995, Taylor suffered a heartattack and was hospitalized. Nimock sent her a “get well” card in late 1995, signed bymanagement and employees. On December 18, 1995, Taylor’s doctor gave her arelease to return to work on January 3, 1996, with certain restrictions. On January 2 or 3, 1996, Taylor stopped in at the store to discuss the workschedule with her supervisor, Brad Hudspeth. Although that store needed someonewho would be able run the store (i.e. act as head cashier), there were no regular cashierpositions available. Taylor, however, would not do head cashier work, explaining thather doctor had said that she could “run the register only.” Hudspeth told her that therewere no positions available at that time that met that description. Hudspeth also latercontacted Taylor’s doctor’s office about the release note and was of the opinion thatwhat the nurse described as Taylor’s restrictions were not what Taylor had said theywere, although he did not immediately tell Taylor about this conversation. Hudspethsuggested to Taylor that she return when she had a full release to return to work, andhe wrote for Taylor a note that she used to obtain unemployment benefits. Taylorcontinued treatment for her heart disease, and she will likely always require medicationfor it. In March of 1996, Taylor received a full release from her doctor to return towork without restriction. At this point, no cashier or head cashier positions wereavailable. Hudspeth informed Taylor that he would offer her a cashier position when.one became available but that she would have to accept a pay cut in her hourly wage.From March to August of 1996, Taylor was not offered a position at the conveniencestore despite Nimock’s hiring of several new cashiers during those months. In Augustof 1996, Taylor contacted Hudspeth to determine her employment status because shehad heard that she had been fired. Hudspeth confirmed that she had been terminated.Later that month, Taylor began work as a front end manager at Hays Food Center.In October of 1996, Taylor filed a discrimination charge with the EqualEmployment Opportunity Commission (EEOC). She received a right-to-sue letter inMay of 1997 and subsequently brought suit in federal district court, alleging thatNimock had violated the ADA by terminating her employment and failing toaccommodate her. The district court granted summary judgment in favor of Nimock, finding thatTaylor had not established that she suffered from a disability within the meaning of theADA and thus could not establish a prima facie case. The court also found no evidenceto support Taylor’s contention that relevant employment decisions were motivated byimproper animus. II. We review the district court’s grant of summary judgment de novo. See Henereyv. City of St. Charles, 200 F.3d 1128, 1131 (8th Cir. 1999). Summary judgment isproper if the evidence, viewed in the light most favorable to the nonmoving party,demonstrates that no genuine issue of material fact exists and the moving party isentitled to judgment as a matter of law. See id.; Fed. R. Civ. P. 56(c). Taylor’s discrimination claims are analyzed under the familiar burden-shiftingframework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). SeeFloyd v. Missouri Dept. of Soc. Servs., 188 F.3d 932, 936 (8th Cir. 1999). Initially,Taylor must establish a prima facie case of discrimination. The burden then shifts tothe employer to articulate a legitimate, nondiscriminatory reason for its action, and ifit succeeds in meeting its burden of production, then the plaintiff must show that thereason put forth is pretextual. At all times the burden of persuasion remains with theplaintiff. See id. To establish a prima facie case of discrimination, Taylor must show (1) that shehad a disability within the meaning of the ADA, (2) that she was qualified to performthe essential functions of her job, with or without reasonable accommodation, and (3)that she suffered an adverse employment action because of her disability. See Kiel v.Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999) (en banc).Under the ADA, disability is defined as: “(A) a physical or mental impairmentthat substantially limits one or more of the major life activities of such individual; (B)a record of such impairment; or (C) being regarded as having such an impairment.” 42U.S.C. � 12102(2). According to the regulations that guide the interpretation of theADA, an impairment is “substantially limiting” if it renders an individual unable toperform a major life activity that the average person in the general population canperform, or if it significantly restricts the condition, manner, or duration under whichan individual can perform such an activity compared to the general population. 29C.F.R. � 1630.2(j)(1)(i)-(ii). Major life activities include caring for oneself, performingmanual tasks, walking, seeing, hearing, breathing, learning, and working, 29 C.F.R. �1630.2(i), as well as sitting, standing, lifting, and reaching. See Fjellestad v. Pizza Hutof America, Inc., 188 F.3d 944, 948 (8th Cir. 1999). Several factors are considered in determining whether a person is substantiallylimited in a major life activity: (1) the nature and severity of the impairment; (2) itsduration or anticipated duration; and (3) its long-term impact. 29 C.F.R. �1630.2(j)(2)(i)-(iii). Whether an individual is substantially limited in a major lifeactivity must take into account mitigating measures such as medication and assistingdevices. See Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139,2146 (1999). Heart disease is an impairment that, if it substantially limits a major lifeactivity, may constitute a disability. See Weber v. Strippit, Inc., 186 F.3d 907, 913 (8thCir. 1999), cert. denied, 120 S. Ct. 794 (2000). Taylor argues that she is substantially limited in the life activities of breathing,walking, doing yard work, cleaning house, and having sex. Taylor also admitted,however, that she can walk and has walked long distances, including approximately amile to work, and can perform the activities listed above, although she may have toperform them in moderation. In Weber, we noted that the employee could not walklong distances or climb stairs without becoming fatigued and was subject to certaindietary restrictions, but held that “these moderate limitations on major life activities donot suffice to constitute a ‘disability’ under the ADA.” See id. at 914. We concludethat Taylor’s limitations in the above-listed areas are likewise moderate and thus do notqualify as substantial limitations on a major life activity other than work.Taylor also contends that she is substantially limited in the major life activity ofworking. To be so limited, she must be “significantly restricted in the ability to performeither a class of jobs or a broad range of jobs in various classes as compared to theaverage person having comparable training, skills and abilities.” 29 C.F.R. �1630.2(j)(3)(i). Inability to perform one particular job does not constitute a substantiallimitation on working. See id.; Weber, 186 F.3d at 913. We note, first, that Taylor does not dispute that as of late March of 1996, shecould work without restriction, at least so long as she continued to take her medication.Thus, after that time she cannot be considered to have a disability within the meaningof the ADA as it pertains to the life activity of working. Indeed, Taylor has obtainedand retained full-time employment. Second, during the time period of January to March of 1996, Taylor was limitedin the life activity of working only to the extent of her restrictions, which were that shecould work only 40 hours per week and lift no more than 10 pounds. Althoughovertime hours may be the normal practice for many jobs, we conclude that Taylor’slimitations on working were not substantially limiting within the meaning of the ADA. See Berg v. Norand Corp., 169 F.3d 1140, 1145 (8th Cir. 1999) (“We find it hard tosay that being limited to a 40- to 50-hour work week substantially limits one’s abilityto work.”). Taylor’s restrictions were applicable to her only while she was recoveringand lasted only a few months, relevant factors under 29 C.F.R. � 1630.2(j)(2) that cutagainst a finding of substantial limitation. Taylor has not shown that working 40 hoursa week and lifting no more than 10 pounds limits her employment opportunities in hergeographical area. Accordingly, we conclude that Taylor has presented no evidenceto create a genuine issue of material fact about whether she could perform a class ofjobs with her restrictions. See Berg, 169 F.3d at 1145; Aucutt v. Six Flags Over Mid-America,Inc., 85 F.3d 1311, 1319 (8th Cir. 1996) (lifting restriction of 25 pounds notsufficient to demonstrate plaintiff was unable to perform a class of jobs); Helfter v.United Parcel Service, Inc., 115 F.3d 613, 617-18 (8th Cir. 1997) (inability to performsustained repetitive action with either hand and heavy lifting not enough to show issueof fact about substantial limitation in life activity of work). Taylor has also failed to show that Nimock regarded her as having a disabilitywithin the meaning of the ADA or that there was a record of her disability on the basisof which Nimock acted. Taylor points to Nimock’s knowledge of her heart attack, the”get well” card sent by Nimock, and the note that Hudspeth wrote in January of 1996to enable Taylor to receive unemployment benefits, in which he stated that it would bein Taylor’s best interest not to return to work with her current restrictions.The ADA regulation pertaining to whether Nimock regarded Taylor as disabledrequires that Taylor have an impairment that “does not substantially limit major lifeactivities but is treated by a covered entity as constituting such limitation.” 29 C.F.R.� 1630.2(l)(1); see Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 598-99(8th Cir. 1998). The evidence that Taylor cites in support of this proposition does notdemonstrate that Nimock considered Taylor to be disabled and unable to work. InCody, we found that an employee who was offered paid medical leave and required tosee a psychologist before returning to work was not regarded by her employer ashaving a substantially limiting impairment. See Cody, 139 F.3d at 599. We concludethat knowing that an employee may be having medical difficulties and expressingconcern, whether through an offer of medical leave or, as here, sending a “get well”card, does not amount to treating an employee as if she has a permanent disability thatsubstantially limits her life activities. Having a record of a qualifying impairment means that an employee “has ahistory of, or has been misclassified as having, a mental or physical impairment thatsubstantially limits one or more major life activities.” 29 C.F.R. � 1630.2(k). In orderto have a record of a disability, an employee’s “documentation must show” that she hasa history of or has been subject to misclassification as disabled. See Weber, 186 F.3dat 915. We do not believe that Nimock’s mere knowledge of Taylor’s heart attack,coupled with the sending of a get-well card and a note about her job duties, constitutessufficient documentation that Taylor had a history of disability or that Nimockmisclassified her as disabled within the meaning of the ADA. To the contrary, thisevidence supports the proposition that Nimock acknowledged that Taylor was sufferingmedical problems but expected that she would return to work when she had sufficientlyhealed. See, e.g., Gutridge v. Clure, 153 F.3d 898, 901-02 (8th Cir. 1998) (record ofimpairment not established during period of recovery and treatment following a workinjury because this type of impairment is not a permanent disability), cert. denied, 526U.S. 1113 (1999). Taylor has failed to establish a genuine issue of material fact on whether she hasa disability within the meaning of the ADA. Thus, she has failed to make a thresholdcase of discrimination, and we need not address other parts of the test for a prima facie.case. Similarly, we need not address Nimock’s contention that Taylor’s claim shouldfail because it was untimely filed. :::FOOTNOTES:::
FN1 The Honorable Elsijane Trimble Roy, United States District Judge for theEastern District of Arkansas.
Taylor v. Nimock`s Oil Co. United States Court of Appeals for the Eighth Circuit No. 99-2018 Wanda K. Taylor, Appellant, v. Nimock’s Oil Co., an Arkansas corporation, Appellee. Appeal From: United States District Court for the Eastern District of Arkansas Submitted: February 17, 2000 Filed: June 2, 2000 Before: WOLLMAN, Chief Judge, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
