124 F.3d 957 (8th Cir. 1997), 96-3289, Dush v. Appleton Elec. Co.

Docket Nº:96-3289.
Citation:124 F.3d 957
Party Name:Stella A. DUSH, Plaintiff-Appellant, v. APPLETON ELECTRIC COMPANY, Defendant-Appellee.
Case Date:August 28, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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124 F.3d 957 (8th Cir. 1997)

Stella A. DUSH, Plaintiff-Appellant,



No. 96-3289.

United States Court of Appeals, Eighth Circuit

August 28, 1997

Submitted March 14, 1997.

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Robin L. Binning, Bellevue, NE, argued (Van A. Schroeder, on the brief), for Plaintiff-Appellant.

Thomas O. McCarthy, St. Louis, MO, argued (Shelley M. Roither, William T. Oakes, and Jeffrey R. Carius, on the brief), for Defendant-Appellee.

Before McMILLIAN, FLOYD R. GIBSON, and HANSEN, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

Appellant Stella A. Dush filed this lawsuit against her former employer, appellee Appleton Electric Company ("Appleton"), claiming that Appleton fired 1 her in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101-12213 (1994 & Supp. I 1995). On motion for summary judgment, the district court 2 ruled that Dush's characterization of herself as "totally disabled" in a previous workers' compensation proceeding estopped her from introducing evidence in this action that she was, for purposes of the ADA, a "qualified individual with a disability" at the time of her discharge. Accordingly, the court reasoned that it would be impossible for Dush to establish a prima facie case of unlawful discrimination; it thus entered summary judgment in favor of Appleton, and this appeal followed. Based on our conclusion that Dush has failed to demonstrate the existence of a genuine issue of material fact as to an essential element of her claim, we affirm the district court's judgment.


Dush injured her back at some uncertain time in December of 1991 while performing a "straight pack" job at Appleton's Columbus, Nebraska plant. As a result, Dush contacted her family physician, Dr. Klutman, during January of 1992. Dr. Klutman referred Dush for physical therapy to Columbus Community Hospital. On doctor's orders, Dush was off work from January 7, 1992 until January 19, 1992, and throughout that period attended seven physical therapy sessions. Dush's physical therapist, Terri Buck, released her to commence light duty work for four hours per day beginning January 21, 1992. Appleton honored these restrictions and promptly transferred Dush to a part-time light duty job.

Upon returning to work, Dush found that her labors caused her to experience severe back pain. Therefore, on January 27, 1992, she once again visited Dr. Klutman, and a CAT scan he ordered revealed a ruptured disc in Dush's lower spine. Though Dush's treating physicians approved her to resume light duty work on February 10, 1992, the discovery of the ruptured disc prompted Dr. Klutman to refer Dush to a neurosurgeon, Dr. John Fox, for treatment. Dr. Fox did not feel that Dush's ailment required surgery,

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so he, in turn, instructed Dush to see Dr. Antonio Manahan, a specialist in rehabilitative medicine, for conservative care.

Dush was again off work from March 3, 1992, the date of her first appointment with Dr. Manahan, until April 19 of that year. On April 19, Dr. Manahan cleared Dush to return to work for four hours per day with the restriction that she not lift more than five to ten pounds. In addition, Dr. Manahan suggested that, over time, Dush might attempt to increase her working hours from four to six and, eventually, eight per day. For the remainder of her tenure with Appleton, however, Dush was unable to regularly perform her job for shifts exceeding four hours.

Between May 1992 and January 1993, Dush submitted to physical exams by three doctors hired by Appleton. She saw Dr. Richard Cimpl on May 4, 1992, and she visited Dr. Michael O'Neil in October. Both of these orthopedic surgeons concurred in the course of treatment chosen by Dr. Manahan. But given Dush's minimal medical improvement over a significant period of time, Appleton asked her to consult Dr. Anil Agarwal on January 5, 1993. Following this appointment, Dr. Agarwal issued a report in which he advised the company that Dush could immediately start working six hour days and could, within two weeks, return to full eight hour shifts. At the same time, though, Dush's personal physician, Dr. Manahan, continued to recommend that she work no more than four hours per day, 3 and Dush faithfully notified Appleton of Dr. Manahan's advice to her.

Despite her knowledge of the contents of Dr. Agarwal's report, and based upon Dr. Manahan's contradictory instructions, Dush maintained her schedule of four hour work days. On March 1, 1993, Dush's supervisors informed her that if she did not begin working eight hours per day she would be subject to disciplinary action under Appleton's absentee policy. Dush still declined to undertake a customary working schedule. Consequently, in reliance upon Dr. Agarwal's conclusions, the company disciplined Dush in four progressive steps, beginning with an employee consultation on March 18, 1993, and ending with her discharge for absenteeism on May 21, 1993.

On October 19, 1993, Dush filed with the Nebraska Workers' Compensation Court a petition seeking an award of temporary total disability benefits and recovery of medical expenses resulting from the back injury she suffered while employed at Appleton, which was named as the defendant. In her petition, Dush alleged that an accident on January 6, 1992 rendered her "temporarily and totally disabled." Appellant's App. at 214. To support her claim, Dush submitted to the court, inter alia, a "Vocational Evaluation and Earning Capacity Assessment" prepared by North Central Rehabilitation, Inc. This report summarized Dush's subjective complaints of pain as follows:

Regarding physical abilities and limitations, the injured worker indicated that she experiences pain following standing for 10-15 minutes, is unable to climb stairs, unable to bend, cannot reach when it requires her to bend her back, experiences numbness in her legs and feet when sitting, has difficulty walking, except with a grocery cart that she uses for support when grocery shopping, can only lift a maximum of 5-10 pounds, without twisting, bending and stooping and is unable to drive because of her inability to use foot pedals.

Id. at 217-18. Not surprisingly, the author of the assessment, Gail Leonhardt, surmised that Dush was "unemployable" when she lost her job at Appleton. Id. at 220.

The workers' compensation court agreed. Following an adversarial hearing, the court determined that Dush was temporarily totally disabled and awarded her medical expenses and appropriate benefits for (1) certain

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periods of time while she was employed at Appleton, but on medical leave, (2) a period spanning from the date of her termination until the date of the hearing, and (3) "thereafter and in addition thereto, ... for so long in the future as [Dush] shall remain totally disabled as a result of said accident and injury." 4 Id. at 73. In approving this award, the court took note of the fact that Dush had worked for some time in a light duty, reduced hours job at Appleton. Nonetheless, the presiding officer resolved that, given Dush's "pain and continuing treatment," she would be "unable to continue this light duty employment on any long term sustained basis." Id. at 71.

In early 1995, Dush initiated this suit against Appleton, alleging that the company violated the ADA by "discriminating" against her because of her back injury. Specifically, Dush claimed that the company failed to provide her with appropriate accommodations, wrongfully terminated her due to her disability, 5 and harassed her. Elaborating upon her claim of harassment, Dush alleged that Appleton's behavior caused her to overextend her physical abilities, "which resulted in her complete, total and permanent disability." Id. at 3. Dush further explicated that she had "sustained significant physical injury resulting in her permanent disability," id. at 3-4, and she sought relief by way of, among other things, compensation for her "loss of earnings because of her permanent and total disability, and her loss of wages throughout [her] working life," id. at 4. 6

On motion for summary judgment, Appleton asserted that Dush could not recover because she would be unable to prove that she was, at the time of her discharge, a "qualified individual with a disability" under the ADA. In...

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