Citations
- 787 F. Supp. 2d 929
Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
MARK W. BENNETT, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION..........................................................934
A. Factual Background...................................................934
B. Procedural Background................................................938
II. LEGAL ANALYSIS........................................................939
A. Standards For Summary Judgment.....................................939
B. The ADA And The ICRA...............................................941
C. Magnussen’s Disparate Treatment Claim ...............................942
1. The analytical framework..........................................942
2. Magnussen’s prima facie case ......................................942
a. Magnussen’s “disability”.......................................942
i.Types of disability ........................................942
ii. Magnussen’s impairment..................................944
iii. Magnussen’s substantial limitations........................944
b. Magnussen’s “qualification”....................................948
3. Magnussen’s showing of “pretext” ..................................950
a. Arguments of the parties .......... 951
b. Analysis ......................................................951
D. Magnussen’s Failure-To-Accommodate Claim...........................953
1. Analytical framework..............................................953
2. Arguments of the parties...........................................954
3. Analysis..........................................................955
a. Disability and qualification ....................................955
b. Failure to accommodate........................................956
E. Magnussen’s Retaliation Claim ........................................958
1. Arguments of the parties...........................................958
2. Analysis..........................................................959
III. CONCLUSION............................................................961
In this case involving claims of disparate treatment, failure to accommodate, and retaliation in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., applying pre-amendment standards, and the Iowa Civil Rights Act (ICRA), Iowa Code Ch. 216, central questions are whether the plaintiff was even “disabled” because of a “flare up” of a back condition and whether the plaintiff was terminated from her position as the manager of a convenience store for discriminatory or retaliatory reasons rather than for leaving shift vacancies uncovered. The defendants, the employing company and the plaintiffs area manager, assert that they are entitled to summary judgment on all of the plaintiffs claims, while the plaintiff asserts that a reasonable jury could find in her favor on all of her claims.
I. INTRODUCTION
A. Factual Background
I will not attempt here an exhaustive dissertation on the undisputed and disputed facts in this case. Rather, I will set forth sufficient of the facts, both undisputed and disputed, to put in context the parties’ arguments concerning the defendants’ motion for summary judgment. Unless expressly indicated otherwise, the parties agree that the facts stated are undisputed.
Plaintiff Wendeline Magnussen applied for employment as a store manager at defendant Casey’s Marketing Company’s Casey’s General Store in Sergeant Bluff, Iowa, on October 26, 2007. She was interviewed for that position by Tina Krings, the Regional Manager, and defendant Monica Von Seggern, the Area Manager. During the interview, Magnussen disclosed that she had had a back injury in the past and that, for periods of time in the past, she had had medical restrictions on lifting and standing, but that she had always recovered. In fact, from 1993 through 2008, Magnussen suffered approximately four periods of “incapacity” of approximately one to two weeks in bed followed by temporary standing and lifting restrictions, due to “flare ups” of her back condition. Magnussen stated in her interview that her back injury would limit her ability to lift more than fifty pounds, but that she could perform the essential functions of the job, including standing for an extended period of time. Following the interview process, Von Seggern and Ms. Krings made the decision to offer Magnussen the store manager position, and Magnussen accepted. Magnussen began working as the store manager at the Casey’s store in Sergeant Bluff in November 2007. Ms. Krings sent Magnussen a Letter of Understanding concerning her employment, dated November 8, 2007, which included a Job Description for the store manager position, stating, among other things, that the store manager “[m]ust be able to stand for an extended period of time and to lift up to 50 pounds.” Defendants’ Appendix at 47. Magnussen signed and returned the Letter of Understanding and the Job Description on November 28, 2007.
The Sergeant Bluff Casey’s store was normally staffed with just two employees at any given time, one to work out in front at the register, and one to work in the kitchen. The responsibilities of the store manager at each location were, among other things, to ensure that all shifts were covered, including working additional hours to cover shifts if the store manager could not find another employee to fill the shift. Magnussen testified that, during an average ten-hour shift, she would stand approximately eight hours, including three to five hours standing in one place behind the cash register. The defendants assert that Magnussen was “required” to stand for approximately eight hours, but Magnussen points out that neither her deposition testimony nor any other evidence cited by the defendants states that standing for that length of time was a specified job requirement.
Magnussen did not have any physician’s restrictions on her work activity because of her back condition during the first six months of her employment with Casey’s, although she did, on occasion, ask other employees to perform tasks that involved lifting items over fifty pounds. That period ended in May 2008, when Magnussen missed work for several days beginning on May 14, 2008, owing to a “flare-up” of her back condition. She was released by her doctor to return to work on May 23, 2008, with temporary restrictions on her activity because she was temporarily unable to take pain pills as needed while her doctor was evaluating her liver. Magnussen’s temporary restrictions required no standing for more than three hours at a time, no lifting more than ten pounds, and no working for more than nine hours per day, five days per week. On July 17, 2008, Magnussen submitted another doctor’s note that restricted her to standing no more than three hours in a day (instead of at a time) and lifting no more than ten pounds. Casey’s abided by those restrictions.
Other than these restrictions, Magnussen’s physician did not place any other restrictions on her activities as a result of her back condition during the summer of 2008. Magnussen admits that these restrictions are the only ones set forth in the physician’s notes, but contends that she was restricted in more activities than the notes address. Both Magnussen and the defendants understood and believed that the work-related restrictions imposed by Magnussen’s physician on May 23 and July 17, 2008, were temporary. The defendants did not have any knowledge that Magnussen had any restrictions related to any medical conditions other than the standing and lifting restrictions imposed by her physician on May 23 and July 17, 2008, related to her back condition. The parties dispute whether the physician’s restrictions meant that Magnussen could not perform the essential functions of her job requiring her to stand and work the register for an extended period of time, because, for example, the defendants characterize the “standing” requirement as standing for up to eight hours a day, but Magnussen contends that standing for three hours per day is standing for “an extended period of time,” as specified in her Job Description.
The defendants granted all job modifications and accommodations related to her back condition and related restrictions that Magnussen requested during her employment. Specifically, to accommodate Magnussen’s temporary restrictions, Magnussen scheduled and Casey’s paid for an extra employee to come in and work in addition to Magnussen for part of her shift to perform the functions that Magnussen could not perform, primarily working the register after Magnussen’s three hours of standing had been exhausted. Magnussen points out that she still worked the forty-five hours per week permitted under her physician’s restrictions. Prior to her termination, Magnussen did not propose, request, or accept any accommodation of her restrictions other than Casey’s paying an extra person to work in addition to her to perform the functions of her position that she was unable to perform. In July of 2008, Casey’s provided Magnussen with a stool to sit on while operating the register to allow her to perform her job within her restrictions, but she declined to use the stool, because she believed that use of the stool alone did not work. Therefore, Casey’s continued to pay an extra employee and continued Magnussen’s temporary light duty job.
On July 24, 2008, Von Seggern told Magnussen that Casey’s could no longer continue her light duty arrangement by paying an extra person to come in to perform the duties that Magnussen could not perform. Instead, Casey’s offered to continue to pay Magnussen as store manager until July 30, 2008, but then move Magnussen into a part-time position that she could fully perform with her restrictions in place. Magnussen was not interested in a part-time position, because it would have resulted in reduced pay and benefits. Magnussen contends that she told Von Seggern that she questioned whether Von Seggern could legally demote her to part-time work, when she was only subject to temporary restrictions. The defendants deny that such a conversation ever took place. The parties dispute whether Von Seggern told Magnussen that her demotion to part-time work would be effective immediately or not until July 30, 2008. After her conversation with Von Seggern on July 24, 2008, Magnussen called the Casey’s human resources office to discuss the situation and was told that she had until July 30, 2008, to clarify her restrictions and whether she could continue as store manager. Magnussen felt that her job was threatened at that point.
Magnussen was never actually demoted, however, because on July 28, 2008, Magnussen notified the defendants that she had been released by her physician to return to work with no restrictions, and on July 29, 2008, she provided the defendants with a copy of the physician’s release, dated July 25, 2008. Magnussen contends that she felt forced to obtain a full release from her physician to keep her job. The defendants deny that the physician could or would simply change Magnussen’s medical restrictions without regard to her actual condition and assert that Magnussen’s explanation that the physician advised her that it was not the best thing to do, but that he would do so at her request, is inadmissible hearsay.
Prior to July 2008, Magnussen and Von Seggern had a good working relationship. However, Magnussen thought that Von Seggern was getting “frustrated” with her continuing work restrictions by that time. The defendants deny that Von Seggern was “frustrated” with Magnussen or her restrictions. On July 28, 2008, Von Seggern “wrote up” Magnussen for exceeding her physician’s restrictions on July 24, 2008, and on August 1, 2008, Von Seggern also “wrote up” Magnussen as the result of a customer complaint. The customer in question was a former employee of the Casey’s store in Sergeant Bluff who had been fired after a “sting” operation for selling cigarettes to a minor. Magnussen denies being rude to the customer and contends that Von Seggern never spoke to her in her investigation of the incident, which Von Seggern denies. Neither of these “write ups” caused any change in the terms or conditions of Magnussen’s employment.
Magnussen filed a charge of discrimination with the Iowa Civil Rights Commission (ICRC) on July 30, 2008, apparently arising from the threats to demote her to a part-time position. Magnussen contends that she told one of her workers, Kathy Reynolds, and her assistant manager, Brenda Husman, that she had filed the charge, but the defendants have submitted affidavits from Reynolds and Husman in which they deny being told that Magnussen had filed the ICRC charge. Von Seggern was not aware of Magnussen’s charge of discrimination with the ICRC until after August 8, 2008, because it was not mailed to Casey’s by the ICRC until August 8, 2008, and was not received by Casey’s until after that date.
On August 6, 2008, Magnussen learned that the evening “pizza shift” would be vacant for approximately one hour before the scheduled employee would arrive. Casey’s contends that Magnussen failed to make arrangements to cover the shift during the vacancy, either by calling in another employee or by working the shift herself, so that the vacancy persisted for about an hour. Magnussen contends that she had another employee lined up to come in to fill the shift and believed that the vacancy would only be for about half an hour before that employee could arrive.
Casey’s also contends that, on August 7, 2008, Magnussen again left the store knowing that the pizza shift would be vacant for approximately an hour and a half before the scheduled employee would arrive, and failed to make arrangements to cover the shift during the vacancy, either by calling in another employee or by staying to work the shift herself. Magnussen contends that she was unable to make pizzas herself and had found somebody to come in to fill the vacancy. She contends that she attempted to cover the shift when it started at 4:00 p.m. and started calling people to come to fill the shift, eventually finding someone who could come in at 5:30 p.m. Magnussen contends that when she left the store about 5:00 p.m., she believed that somebody would be in the store within half an hour to make pizzas and that Brenda Husman, her assistant manager, had the pizza situation covered. Magnussen contends that, at the time that she left the store on August 7, 2008, she had been on duty since 5:00 a.m. The defendants dispute Magnussen’s version of these events, contending that, although Magnussen had not received any training from management regarding baking pizzas, Magnussen had been “briefed” on making pizza by another employee and had performed that task before, that she left the store knowing that the pizza shift would be uncovered for more than an hour, and that she admitted in her deposition testimony that she “probably should not have done that....” Magnussen admits that she could have worked the gap by staying to work the register while Ms. Husman worked in the kitchen, but she did not do so, because she believed that she had the shift properly covered.
On August 7, 2008, Von Seggern spoke by telephone with Husman, the assistant manager, who told her that the pizza shift was currently not covered, that she was alone in the store, and that the same thing had happened the day before. After Von Seggern spoke with Ms. Husman on August 7, 2008, she terminated Magnussen’s employment. Again, at the time that Von Seggern terminated Magnussen, Von Seggern was not aware of Magnussen’s charge of discrimination with the ICRC.
Magnussen asserts that other short vacancies in shifts had occurred before at her store and other Casey’s stores, and that she had told Von Seggern about the ones at her store, but neither she nor anyone else had received disciplinary action for such vacancies. The defendants contend that the other incidents of temporary shift vacancies are distinguishable, because the managers involved behaved properly by trying to cover the shifts quickly, instead of simply going home when the stores were understaffed, as Magnussen had done.
As of the middle of August 2008, Magnussen remained unable to stand for more than two to three hours without the pain becoming intolerable, even though her physician had released her to work without restrictions on July 25, 2008. The Social Security Administration eventually found that Magnussen was disabled as of August 7, 2008.
B. Procedural Background
Magnussen filed her Complaint (docket no. 1) commencing this action on October 5, 2009, naming as defendants Casey’s Marketing Company, doing business as Casey’s General Store, and Monica Von Seggern. In Count I of her Complaint, Magnussen asserts that Casey’s Marketing Company violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112, by failing to accommodate her, issuing her warnings, demoting her, and terminating her employment because of her physical disabilities, record of disability, and perceived disability. In Count II, another ADA claim against defendant Casey’s Marketing Company, Magnussen asserts that she engaged in protected activity, “namely requesting accommodations, objections and filing the Civil Rights Complaint,” and that, because of her opposition to Casey’s Marketing Company’s unlawful employment practice, she was warned and terminated. In Count III, designated as supplemental claims against defendant Casey’s Marketing Company and individual defendant Monica Von Seggern, Magnussen asserts that the defendants violated Iowa Code Ch. 216, the Iowa Civil Rights Act (ICRA), by failing to accommodate her, warning her, demoting her, and terminating her employment because of her physical disability, and by retaliating against her because she requested accommodations and opposed unlawful discrimination. On each of her claims, Magnussen seeks compensatory damages for economic losses, including back pay with interest, front pay, lost benefits, training, promotions, and seniority, and for non-pecuniary losses, including past and future suffering, emotional distress, and loss of enjoyment of life, costs and expenses, including reasonable attorney’s fees, and such other relief as the court may deem proper. She also seeks punitive damages on her ADA claim in Count I, for “intentional and reckless” conduct, liquidated damages on her ADA claim in Count II, for “willful” conduct, and punitive damages on her ICRA claim in Count III, for “willful” conduct. Defendants Von Seggern and Casey’s Marketing Company filed separate Answers (docket nos. 6 and 7) to the claims against them on December 23, 2009. A jury trial in this matter has been set to begin on July 11, 2011.
On February 11, 2011, defendants Casey’s Marketing Company and Von Seggern jointly filed a Motion For Summary Judgment (docket no. 13), which is now before me, seeking summary judgment on all of Magnussen’s claims. After an extension of time to do so, Magnussen filed her Resistance (docket no. 19) to the defendants’ Motion For Summary Judgment on March 14, 2011. Also after an extension of time to do so, the defendants filed a Reply (docket no. 23) in further support of their Motion For Summary Judgment on March 28, 2011.
No party requested oral arguments on the defendants’ Motion For Summary Judgment in the manner required by applicable local rules. Therefore, I will resolve the motion on the parties’ written submissions.
II. LEGAL ANALYSIS
A. Standards For Summary Judgment
Motions for summary judgment essentially “define disputed facts and issues and ... dispose of unmeritorious claims [or defenses].” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 585, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses.... ”). Summary judgment is only appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c) (emphasis added); see Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005) (“Summary judgment is appropriate if viewing the record in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.”). A fact is material when it “ ‘might affect the outcome of the suit under the governing law.’ ” Johnson v. Crooks, 326 F.3d 995, 1005 (8th Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Thus, “the substantive law will identify which facts are material.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. An issue of material fact is genuine if it has a real basis in the record, Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), or when “ ‘a reasonable jury could return a verdict for the nonmoving part/ on the question,” Woods, 409 F.3d at 990 (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505); see Diesel Machinery, Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir.2005) (stating genuineness depends on “whether a reasonable jury could return a verdict for the non-moving party based on the evidence”).
Procedurally, the moving party bears “the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue,” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548), and demonstrating that it is entitled to judgment according to law. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (“[T]he motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied.”). Once the moving party has successfully carried its burden under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the pleadings and by depositions, affidavits, or otherwise, designate “specific facts showing that there is a genuine issue for trial.” Fed. R.CivP. 56(e); Mosley v. City of Northwoods, Missouri, 415 F.3d 908, 910 (8th Cir.2005) (“The nonmoving party may not ‘rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.’ ” (quoting Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir.1995))). In considering whether a genuine issue of material fact is present the court must view all the evidence in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences. Matsushita, 475 U.S. at 587-88, 106 S.Ct. 1348; Mosley, 415 F.3d at 910. However, the court does not weigh the evidence, assess credibility, or determine the truth of the matters presented. Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir.2004); Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir.1996).
I recognize “that summary judgment is disfavored in employment discrimination cases.” Simpson v. Des Moines Water Works, 425 F.3d 538, 542 (8th Cir.2005); see Woods v. Perry, 375 F.3d 671, 674 (8th Cir.2004) (“[SJummary judgment should be used sparingly in employment discrimination cases.... ”); Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994) (“[Summary judgment should seldom be used in employment discrimination cases.”). This is so, “[bjecause discrimination cases often turn on inferences rather than on direct evidence....,” E.E.O.C. v. Woodbridge Corp., 263 F.3d 812, 814 (8th Cir.2001) (en banc) (citing Crawford, 37 F.3d at 1341; Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir.1999)), and because “intent” is generally a central issue in employment discrimination cases. Christopher v. Adam’s Mark Hotels, 137 F.3d 1069, 1071 (8th Cir.1998) (citing Gill v. Reorganized Sch. Dist. R-6, Festus, Mo., 32 F.3d 376, 378 (8th Cir.1994)); see Simpson, 425 F.3d at 542 (noting summary judgment is disfavored in employment discrimination cases because they are “ ‘inherently fact-based.’” (quoting Mayer v. Nextel W. Corp., 318 F.3d 803, 806 (8th Cir.2003))). Nevertheless, even in employment discrimination cases, “ ‘the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).
I will apply these standards to the defendants’ Motion For Summary Judgment.
B. The ADA And The ICRA
The ADA prohibits an employer from discriminating “against a qualified individual on the basis of disability 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); Tusing v. Des Moines Indep. Community Sch. Dist., 639 F.3d 507, 518 (8th Cir.2011). Congress enacted amendments to the ADA in 2008, which became effective January 1, 2009. See ADA Amendments Act (ADAAA) of 2008, Pub.L. No. 110-325, § 8, 122 Stat. 3553, 3559 (2008). “The amendments broadened the definition of what constitutes a disability and rejected the strict standards the Supreme Court set forth in Toyota [Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002) ].” Nyrop v. Independent Sch. Dist. No. 11, 616 F.3d 728, 734 n. 4 (8th Cir.2010) (citing 122 Stat. at 3554). The defendants assert that the ADAAA is not applicable here, because the events involved occurred in 2008, before the ADAAA became effective, and Magnussen agrees. As the parties recognize, in Nyrop, the Eighth Circuit Court of Appeals joined several other Circuit Courts of Appeals in holding that the ADAAA “is not retroactive” and, thus is “inapplicable” to claims of alleged disability discrimination before the effective date of the amendments. Id. I agree with the parties that pre-ADAAA standards are applicable here, because the claims involve conduct before the ADAAA became effective.
The prohibition on disability discrimination in the Iowa Civil Rights Act (ICRA), Iowa Code Ch. 216, is similar to the prohibition in the ADA:
It shall be an unfair or discriminatory practice for any ... [pjerson to refuse to hire, accept, register, classify, or refer for employment, to discharge any employee, or to otherwise discriminate in employment against any applicant for employment or any employee because of the ... disability of such applicant or employee, unless based upon the nature of the occupation.
Iowa Code § 216.6(l)(a). As the Eighth Circuit Court of Appeals and the Iowa Supreme Court had both recognized, at least before the ADAAA became effective, “ADA and ICRA disability claims are analyzed under the same standards.” Tjemagel v. Gates Corp., 533 F.3d 666, 671 (8th Cir.2008); accord Tusing, 639 F.3d at 517-18; Nuzum v. Ozark Automotive Distribs., Inc., 432 F.3d 839, 842 n. 2 (8th Cir.2005); Schlitzer v. University of Iowa Hospitals & Clinics, 641 N.W.2d 525, 529 (Iowa 2002) (“The common goals of the Federal ADA and our civil rights act have encouraged us to look to the federal statutory and regulatory standards in applying our statute”). Consequently, because the ADAAA is inapplicable here, my discussion of Magnussen’s “disability” claims applies equally to Magnussen’s claims under the ADA and the ICRA.
C. Magnussen’s Disparate Treatment Claim
1. The analytical framework
Because “[t]he key element” in a disparate treatment disability discrimination claim is “discriminatory intent,” see Peebles v. Potter, 354 F.3d 761, 765 (8th Cir.2004), a disparate treatment claim under the ADA, such as Magnussen’s, that is based on circumstantial evidence is analyzed using the McDonnell Douglas burden-shifting framework. Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1044 (8th Cir.2005) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). That framework requires the plaintiff to develop a prima facie case of disparate treatment. Id. If the plaintiff establishes a prima facie case, the burden of production shifts to the employer to proffer a legitimate, nondiscriminatory reason for adverse employment action, and if it, does, then the plaintiff must show that the proffered reason is a pretext for disability discrimination. Id.
2. Magnussen’s prima facie case
As the Eighth Circuit Court of Appeals has explained,
To establish a prima facie case [of disparate treatment] under the ADA, a plaintiff must show “(1) that [she] has a disability within the meaning of the ADA; (2) that [s]he is qualified to perform the essential functions of the job, with or without reasonable accommodation; and (3) that [s]he suffered an adverse employment action due to a disability.” Chalfant [v. Titan Distrib., Inc.], 475 F.3d [982,] 988 [(8th Cir.2007) ] (internal quotations and citation omitted).
fusing, 639 F.3d at 518. The defendants challenge Magnussen’s ability to generate genuine issues of material fact on the first two elements of her prima facie case, “disability” and “qualification.”
a. Magnussen’s “disability”
i. Types of disability. As to the first element of the plaintiffs prima facie case, the Eighth Circuit Court of Appeals has explained,
An individual does not prove that he or she has a disability simply by showing an impairment that makes it impossible to do his or her particular job without accommodation. Rather, establishing “disability” is a significant hurdle that can prevent a person who was denied a job because of an impairment from being covered by the ADA.
Tjemagel, 533 F.3d at 671 (quoting Nuzum, 432 F.3d at 842-43, with citations omitted).
A person is disabled within the meaning of the pre-2009 version of the ADA if (1) she has “a physical or mental impairment that substantially limits one or more of [her] major life activities”; (2) she has “a record of such an impairment”; or (3) she is “regarded as having such an impairment.” Chalfant, 475 F.3d at 988 (internal quotations and citation omitted). We have previously noted that, under the pre-2009 interpretation of the ADA, “[t]he terms ‘major life activities’ and ‘substantial limitation’ must be ‘interpreted strictly to create a demanding standard for qualifying as disabled....’” Gretillat v. Care Initiatives, 481 F.3d 649, 652 (8th Cir.2007) (quoting Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002)).
fusing, 639 F.3d at 518 (footnote omitted); see also 42 U.S.C. § 12102(2)(A)-(C) (defining “disability” 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.”). Magnussen contends that she was disabled under all three of these definitions.
The Eighth Circuit Court of Appeals has explained the pre-ADAAA requirements to prove “actual” disability, as follows:
Under the ADA and ICRA, a disability means an “individual must have (1) ‘a physical or mental impairment’ that (2) ‘substantially limits one or more major life activities’ of the individual.” [Nuzum v. Ozark Automotive Distribs., Inc., 432 F.3d 839,] 843 [ (8th Cir.2005) ] (citing 42 U.S.C. § 12102(2)). Having a physical or mental impairment is not enough because the impairment must also comprise a substantial limitation of a major life activity. See id.
Tjemagel, 533 F.3d at 671-72. Moreover,
Under the ADA, a temporary impairment with little or no long-term impact does not constitute a disability. 29 C.F.R. § 1630.2(j)(2)(ii)-(iii). Rather, “[t]he impairment’s impact must ... be permanent or long term.” [Toyota Motor Mfg., Kentucky, Inc. v.] Williams, 534 U.S. [184,] 198, 122 S.Ct. 681[, 151 L.Ed.2d 615 (2002) ].
Pittari v. American Eagle Airlines, Inc., 468 F.3d 1056, 1063 (8th Cir.2006).
The Eighth Circuit Court of Appeals has explained the pre-ADAAA definition of “regarded as” or “perceived” disability, as follows:
“In order to be regarded as disabled ... the employer must mistakenly believe that the actual impairment substantially limits the employee’s ability to work.” Chalfant v. Titan Distrib., Inc., 475 F.3d 982, 989 (8th Cir.2007) (internal citations omitted). “A substantial limitation is present only when the employee is ‘significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes.’ ” Id. (quoting Conant v. City of Hibbing, 271 F.3d 782, 784-85 (8th Cir.2001) (per curiam)). “If an employer believes that an employee is unable to perform ‘one specific job,’ then the employee is not regarded as disabled.” Id. (citation omitted).
Tjemagel, 533 F.3d at 672; accord Nyrop, 616 F.3d at 733-36 (also including in the definition of “regarded as” disabled that the employee “[h]as a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment” and that the employee “ ‘[h]as none of the [covered] impairments ... but is treated by a covered entity as having a substantially limiting impairment.’ ” (quoting 29 C.F.R. § 1630.2(1))). More specifically,
The [employer’s] awareness of [the plaintiffs] physical impairments does not establish the [employer] regarded [the plaintiff] as disabled. See Milholland [v. Sumner County Bd. of Educ.], 569 F.3d [562,] 567-68 [ (6th Cir.2009) ]. Nor does the [the employer’s] allowance of accommodations establish such. See Cigan v. Chippewa Falls Sch. Dist., 388 F.3d 331, 335 (7th Cir.2004).
Nyrop, 616 F.3d at 736. Just as temporary restrictions will not establish “actual disability,” where an employer did not regard an employee’s impairment as more than a temporary condition, the employer did not regard the employee as disabled, and a “perceived disability” claim also fails. Pittari, 468 F.3d at 1063.
Finally, the Eighth Circuit Court of Appeals has explained that, under preADAAA standards, “[i]n order to show that she has a record of disability, [the third definition of ‘disability’ under the ADA], [the plaintiff] must establish she ‘has a history of ... [a] physical impairment that substantially limits one or more major life activities.’ ” Nyrop, 616 F.3d at 735 (quoting 29 C.F.R. § 1630.2(k)). The court had previously explained that “simply being hospitalized [does not] establish ] a record of an impairment under the ADA.” Heisler v. Metropolitan Council, 339 F.3d 622, 630 (8th Cir.2003) (internal quotation marks and citations omitted). Rather, “the record must be of an impairment that substantially limits a major life activity.” Id. Logically, then, to have a record of an impairment that substantially limits a major life activity, the record must be of a permanent or long-term impairment, not just a temporary one. Cf. Pittari, 468 F.3d at 1063 (a temporary impairment will not sustain an actual disability or perceived disability claim).
ii. Magnussen’s impairment. There does not appear to be any dispute that Magnussen has a physical or mental impairment, in the form of impairment of her ability to stand and lift arising from a back problem, as required for a disability discrimination claim based on an “actual” disability, a “perceived” disability (at least as presented here), or a “record- of’ disability. See fusing, 639 F.3d at 517-18. Therefore, I will pass on to the next step in the analysis.
Hi. Magnussen’s substantial limitations. The next question, and the more significant one here, is whether Magnussen’s impairment either substantially limited one or more major life activities, was mistakenly believed by Casey’s Marketing Company to substantially limit one or more major life activities, or established a record of an impairment that substantially limits one or more major life activities. See Tjernagel, 533 F.3d at 671-72 (having a physical or mental impairment is required, but is not enough to prove actual or perceived disability, because the plaintiff must show that the impairment did or was perceived to substantially limit a major life activity); Heisler, 339 F.3d at 630 (more than a record of hospitalizations is required to show a “record of disability,” because the record must be of an impairment that is substantially limiting). On this issue, there is considerable dispute between the parties.
The defendants contend that the evidence in this case undisputably establishes that, during the period of her employment with Casey’s, Magnussen suffered from no physical or mental impairment that substantially limited any major life activity. They point out that Magnussen did not even identify a major life activity in which she was substantially limited in either her Complaint or in her ICRA submissions. The defendants contend that, at most, Magnussen has identified impairments of a temporary nature that, for example, only gave rise to four short episodes of bed rest, followed by short-term work restrictions, over fifteen years. They contend that temporary or sporadic restrictions are not enough to establish actual disability. Even if Magnussen could overcome the temporary nature of her restrictions, the defendants argue that those restrictions did not substantially limit any major life activities, such as standing, lifting, or working, as Magnussen’s specific medical restrictions were not very substantial. As to “record of’ disability, the defendants contend that the only records they ever received indicated that Magnussen’s restrictions were temporary and that they actually received a copy of a release for Magnussen to return to work without restrictions. Similarly, they contend that, as to “perceived” or “regarded as” disability, Magnussen admits that the defendants had no misperceptions about her back condition or her restrictions and did not believe that she suffered from any additional or different impairments during her employment. They argue, again, that their only perception was that Magnussen suffered from temporary restrictions. Moreover, they argue that their offer of part-time employment to Magnussen, to accommodate her temporary restrictions, destroys any claim that they perceived her to be substantially limited in the major life activity of working.
In contrast, Magnussen contends that there are genuine issues of material fact as to whether or not she was “disabled” within the meaning of the ADA and the ICRA. She contends that there are genuine issues of material fact as to “actual disability” and, specifically, as to whether or not she was substantially limited in the major life activity of working. She contends that her medical records during and, more particularly, shortly after her employment with Casey’s Marketing Company show that her disabilities were not temporary. She also argues that the defendants concentrate on the “flare ups” of her back condition, but ignore her other chronic disabling conditions, including spinal stenosis, fibromyalgia, and osteoarthritis, which caused her to take so much medication to keep it under control that it was damaging her liver. She contends that the record shows that, by the summer of 2008, she was suffering from disabling conditions that had a substantial impact on major life activities, including standing, walking, bending, lifting, stooping, and working. She also contends that, although she received a note releasing her to work without restrictions at the end of July 2008, a jury hearing all of the facts of this case could easily find that this physician’s note did not mean that she was not suffering from a disabling condition, because the record will show that she felt that she had no choice but to ask her physician to release her to go back to work with no restrictions in order to save her job. She contends that her restrictions are sufficient for a jury to find that she was substantially limited in major life activities, even if the court doubts the extent of her disabilities. She contends that her application for and eventual receipt of Social Security disability benefits does not preclude her ADA claim as a matter of law, because they do not mean that she could not perform the essential functions of her job at Casey’s.
As to a record of disability, Magnussen contends that there is undisputed evidence that the defendants knew of her back condition from the time she started working, and she contends Casey’s knew that her back condition was causing her substantial limitations in her ability to stand and lift. She argues that the physician’s note at the end of July 2008 did not eliminate this record of her impairment. As to her claim that the defendants regarded her as disabled, Magnussen points to Von Seggern’s “knee jerk” reaction of demoting her to part-time employment based on a restriction that she could not stand for more than three hours a day. Magnussen contends that Von Seggern’s reaction indicates that Von Seggern mistakenly believed that Magnussen was permanently unable to perform the functions of her job as store manager and was treating her as having a substantially limiting impairment.
In reply, the defendants argue that Magnussen’s medical records from after her employment with Casey’s Marketing Company are both irrelevant to her condition during her employment and inadmissible hearsay, without adequate authentication, so that they cannot properly be considered on summary judgment. They also contend that Magnussen is improperly attempting to expand her list of physical ailments, when only her back condition was ever at issue during her employment. They contend that, in any event, Magnussen still has not provided any evidence that any chronic condition had anything more than sporadic or temporary impact on any major life activities.
I find that the record evidence falls well short of generating any genuine issue of material fact that, during her employment with Casey’s, Magnussen suffered from any impairment that actually substantially limited any major life activity, that there was a record of any such impairment, or that the defendants perceived Magnussen to be suffering from any such impairment. To the contrary, Magnussen admits, and the record shows, that both Magnussen and the defendants understood and believed that the work-related restrictions imposed by Magnussen’s physician on May 23 and July 17, 2008, concerning Magnussen’s hours per week, standing, and lifting, were temporary; that Magnussen’s physician did not place any other restrictions on her activities as a result of her back condition during the summer of 2008; that these restrictions are the only ones set forth in the physician’s notes; and that the defendants did not have any knowledge that Magnussen had any restrictions related to any medical conditions other than the standing and lifting restrictions imposed by her physician on May 23 and July 17, 2008, related to her back condition. These concessions are fatal to Magnussen’s disability discrimination claim, because temporary restrictions will not establish any form of disability. See Pittari, 468 F.3d at 1063 (holding that temporary impairments with little or no long-term impact do not constitute an actual disability, because the impairment’s impact must be permanent or long term, and where an employer did not regard an employee’s impairments as more than temporary, the employer did not regard the employee as disabled); see supra, page 944 (concluding that, because disability based on a “record of disability” requires a record of an impairment that substantially limits a major life activity, the record must show impairment that is permanent or long term). Indeed, at the time that the defendants purportedly took adverse employment action against her because of her disability, the defendants knew that Magnussen had been released by her physician to work without restrictions. Although Magnussen contends that she would be able to show that she felt compelled to get a work release to save her job, she has failed to generate a genuine issue of material fact that the defendants would have had any reason to believe that the release reflected anything other than a professional assessment of her ability to work.
The defendants’ attempts to accommodate Magnussen’s temporary restrictions also do not, as a matter of law, demonstrate that they perceived Magnussen to be disabled. Nyrop, 616 F.3d at 736 (the employer’s allowance of accommodations does not establish that the employer regarded the employee as disabled). If the employer’s attempts to accommodate impairments do not establish that an employer regarded an employee as disabled, then logically, they also do not, as a matter of law, amount to concessions by the employer that the employee had either an actual disability or a record of a disability.
Magnussen tries to escape the conclusion that she is not disabled, at least as to “perceived” or “regarded as” disability, by arguing that Von Seggern’s “knee jerk” reaction of demoting her to part-time employment based on a restriction that she could not stand for more than three hours a day indicates that Von Seggern mistakenly believed that Magnussen was permanently unable to perform the functions of her job as store manager and was treating her as having a substantially limiting impairment. This argument fails, as a matter of law, in the absence of any evidence from which a reasonable factfinder could infer that part-time work was offered as anything other than an accommodation to a temporary standing restriction, ie., that the “demotion” was intended to be permanent, not just another form of “light duty” accommodation. Moreover, Von Seggern’s belief that Magnussen could not perform the particular job of store manager does not demonstrate or support an inference that she regarded Magnussen as disabled. See Tjemagel, 533 F.3d at 672 (“ ‘If an employer believes that an employee is unable to perform “one specific job,” then the employee is not regarded as disabled.’ ” (quoting Chalfant, 475 F.3d at 989 with internal citations omitted)).
Similarly, Magnussen cannot escape the conclusion that she is not disabled on the basis of a “record of’ disability, because a record of only a handful of prior, temporary periods of restrictions from back problems in the preceding fifteen years does not give rise to any reasonable inferences that the impairments from back problems were permanent or long-term, instead of simply temporary and brief. Magnussen admits that she expressly told Von Seggern and Ms. Krings in her job interview that she had always come back from brief periods off work or working with restrictions because of her back problems. Thus, Magnussen herself went out of her way to create the impression in the people who hired her that she had suffered from nothing more than brief, temporary restrictions in the past. In other words, the “history” of impairments known to Casey’s Marketing Company and Von Seggern was not a “ ‘history of ... [a] physical impairment that substantially limit[ed] one or more major life activities,’ ” Nyrop, 616 F.3d at 735 (quoting 29 C.F.R. § 1630.2(k)), but a history of a very few, sporadic incidents of temporary restrictions over fifteen years.
Even if a reasonable juror could infer that Magnussen’s impairments from her back condition were more than temporary, a reasonable juror could not infer that those impairments substantially limited any major life activities. As a preliminary matter, only impairments from Magnussen’s back condition are relevant, because Magnussen conceded that the defendants did not have any knowledge that Magnussen had any restrictions related to any medical conditions other than the standing and lifting restrictions imposed by her physician on May 23 and July 17, 2008, related to her back condition. Disability discrimination claims cannot be based on impairments that the employer knew nothing about, because an employer cannot intentionally discriminate on the basis of an impairment it knows nothing about. See Peebles, 354 F.3d at 765 (noting that “[t]he key element” in a disability discrimination claim is “discriminatory intent”). Similarly, because an employer could not have been aware of impairments diagnosed only after the employee was terminated or that were only determined to be long-term or permanent after the employee was terminated, those impairments shed no light on the employer’s intent to discriminate at the time that it made an adverse employment decision.
Here, the impairments that Casey’s knew about at the time that it terminated Magnussen did not, as a matter of law, substantially limit Magnussen’s major life activities. Although standing is a major life activity, “[a] limited standing limitation,” such as Magnussen’s limitation to standing for no more than three hours a day, “does not amount to a disability.” Gretillat v. Care Initiatives, 481 F.3d 649, 653 (8th Cir.2007) (holding that a physician’s order restricting the plaintiff from standing for more than an hour without rest did not substantially limit the major life activity of standing, and citing cases holding that restrictions on standing for more than one hour and standing for no more than an hour without a break did not substantially limit the major life activity of walking). Similarly, at least under preADAAA law in this circuit, a lifting restriction alone is not sufficient to substantially limit a major life activity, but must be considered together with limitations on other basic motor functions to determine whether there is a triable issue of disability based on whether, in the aggregate, all of the limitations prevent or severely restrict the plaintiff from doing the set of manual skills that are of central importance to most people’s daily lives. Breitkreutz v. Cambrex Charles City, Inc., 450 F.3d 780, 783 (8th Cir.2006). Even considered together, Magnussen’s lifting and standing restrictions do not demonstrate or raise a triable issue that she was prevented or severely limited from doing the set of manual skills that are of central importance to most people’s daily lives. Id.
The defendants are entitled to summary judgment on Magnussen’s disparate treatment disability discrimination claim on the ground that Magnussen has failed to generate genuine issues of material fact on the first element of her prima facie case, that she was “disabled” within the meaning of the ADA.
b. Magnussen’s “qualification”
Although my determination that Magnussen was not “disabled,” as a matter of law, is fully dispositive of Magnussen’s disparate treatment claim, I will nevertheless consider the defendants’ alternative grounds for summary judgment on that claim. One of those alternative grounds is that Magnussen has not generated genuine issues of material fact on the second element of her prima facie case, that she was “qualified” for her position at the Casey’s General Store in Sergeant Bluff. See fusing, 639 F.3d at 517-18 (explaining that the second element of the plaintiffs prima facie case of disparate treatment because of disability is to show that she was “qualified” to perform the essential functions of her job, either with or without reasonable accommodation).
The defendants contend that Magnussen was not “qualified” for her position at Casey’s, either with or without reasonable accommodation. They argue that this is so, because an essential function of Magnussen’s job as store manager was to stand for an extended period of time, typically eight hours a day, but she could only stand for three hours a day. They contend that Magnussen has not identified any reasonable accommodation that would have allowed her to meet this requirement (and she rejected the defendants’ suggestion that she use a stool to extend the period of time that she could work the register). Magnussen contends that her Job Description expressly required only standing for “an extended period of time,” not standing for eight hours a day, and a reasonable juror could find that standing for three hours a day was standing for “an extended period of time.”
As the Eighth Circuit Court of Appeals has explained, determination of “qualification” depends upon (1) whether the individual possesses the requisite skills, education, certification, or experience necessary for the job, and (2) whether the individual can, despite impairments, perform the essential functions of the job, either with or without reasonable accommodation. See EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561, 568 (8th Cir.2007). The “essential functions” of a job are not determined solely by a written job description, but by the employer’s judgment as to which functions are essential; the amount of time spent on the job performing the function; the consequences of not requiring the incumbent to perform the function; and the current work experience of incumbents in similar jobs. Id. at 568-69. Here, Magnussen testified that, during an average ten-hour shift, she would stand approximately eight hours, including three to five hours standing in one place behind the cash register. Moreover, the parties do not dispute that the Sergeant Bluff Casey’s store was normally staffed with just two employees at any given time, one to work out in front at the register, and one to work in the kitchen. The record also shows, beyond dispute, that a third person was required when Magnussen could not stand for the period of time ordinarily required, because of her temporary standing restrictions. On this record, I find that the defendants have met their burden to put forth evidence establishing that standing for approximately eight hours in a ten-hour shift was an essential function of the store manager job, but Magnussen has failed to carry her burden to show that she could perform this essential function, either with or without reasonable accommodation. Id. (establishing each party’s burden).
On this point, as I explain in somewhat more detail below, beginning on page 43, in my analysis of Magnussen’s failure-to-accommodate claim, the record also shows that the defendants attempted to engage in the interactive process to determine reasonable accommodations, by offering Magnussen a stool to use while working the register, but she rejected that offer with no suggestion of an alternative, and the defendants also tried to accommodate Magnussen by offering her a third employee to “cover” the parts of her shift that she could not stand, until doing so became a hardship for the defendants. Prior to her termination, Magnussen did not propose, request, or accept any accommodation of her restrictions other than Casey’s paying an extra person to work in addition to her to perform the functions of her position that she was unable to perform. Thus, Magnussen’s disparate treatment claim also fails as a matter of law on the ground that Magnussen did not participate in the interactive process to determine whether she was qualified for her position with appropriate accommodations. See Kratzer, 398 F.3d at 1045.
In my view, another insurmountable problem with Magnussen’s contention that she was “qualified” is that Magnussen is trying to have it both ways, by asserting that she was completely disabled as of the moment that she was terminated, for purposes of obtaining Social Security benefits, which requires the Commissioner to find that there are no jobs in significant numbers in the national economy that she could perform, see 20 C.F.R. § 416.920(q), and attempting to use that disability determination to show that she was also disabled within the meaning of the ADA, but was nevertheless able to perform the essential functions of her job at the Sergeant Bluff Casey’s General Store. A subsequent application for and receipt of Social Security disability benefits, based on a representation that the plaintiff is unable to perform the essential functions of any job, does not necessarily preclude a plaintiff from proving that she could perform the essential functions of the job from which she was terminated, with reasonable accommodation, before she made the Social Security application. See Hill v. Kansas City Area Transp. Auth., 181 F.3d 891, 893 (8th Cir.1999) (citing Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999)). Nevertheless, the representation in the subsequent Social Security application does not support a plaintiffs ADA claim, without some explanation for the apparent contradiction. Id.
Magnussen does not even attempt to explain the contradiction between her ADA claim and her Social Security disability claim, for example, by demonstrating that the Social Security disability determination involved matters determinative of her ability to find jobs available in significant numbers in the national economy, such as her age, education, experience, and residual functional capacity, that were not relevant to her qualifications for her job as a store manager of the Casey’s General Store in Sergeant Bluff. Cf. Finan, 565 F.3d at 1079 (citing Cleveland for the proposition that an earlier application for Social Security disability did not preclude an ADA claim, if the plaintiff provided sufficient explanation for the apparent contradiction, and finding in that case that a sufficient explanation had been given, because “the Social Security Administration did not find that Finan was incapable of performing the essential functions of his job at Good Earth, [but only that] the Administration determined that considering his age, education, work experience, and residual functional capacity, there are not a significant number of jobs in the national economy that he could perform,” as well as evidence that his medical condition changed over time, so that the Administration found that he was not disabled prior to his termination, but only after that). Where Magnussen has failed to generate any explanation for the apparent contradiction, she has failed to generate any genuine issue of material fact as to her qualification for the job at Casey’s General Store despite her subsequent Social Security disability claim, which followed immediately on the heels of her termination.
In short, Magnussen has failed to generate any genuine issues of material fact on the “qualification” element of her prima facie case of disparate treatment.
Because Magnussen has failed to generate genuine issues of material fact on the “disability” and “qualification” elements of her prima facie case of disparate treatment, the defendants are entitled to summary judgment on her disparate treatment claim. Whatever reluctance to grant summary judgment might ordinarily be appropriate in employment discrimination cases, where the case turns on issues of discriminatory intent, see Simpson, 425 F.3d at 542; Woodbridge Corp., 263 F.3d at 814, no such reluctance is appropriate here, where the plaintiff has failed to generate genuine issues of material fact on her fundamental qualification for the disability protections of the ADA and ICRA.
3. Magnussen’s showing of “pretext”
Although I concluded that Magnussen has failed to generate genuine issues of material fact on her prima facie case of disparate treatment, I will nevertheless consider the defendants’ alternative contention that, even if Magnussen can establish a prima facie case of disparate treatment because of disab