Kellogg v. Union Pacific Railroad Co.

• Decision Date: 23 October 2000
• Docket Number: No. 00-1893,PLAINTIFF-APPELLAN,DEFENDANT-APPELLEE,V,00-1893
• Citation: 233 F.3d 1083
• Parties: (8th Cir. 2000) CLYDE M. KELLOGG,UNION PACIFIC RAILROAD COMPANY, A CORPORATION, Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1083

233 F.3d 1083 (8th Cir. 2000)

CLYDE M. KELLOGG, PLAINTIFF-APPELLANT,

V.

UNION PACIFIC RAILROAD COMPANY, A CORPORATION, DEFENDANT-APPELLEE.

No. 00-1893

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: October 23, 2000

Filed: December 4, 2000

Appeal from the United States District Court for the District of Nebraska. [Copyrighted Material Omitted] Before Wollman, Chief Judge, Lay and Beam, Circuit Judges.

Per Curiam.

Clyde M. Kellogg (Kellogg) appeals the district court's ¹ order granting summary judgment to Union Pacific Railroad (Union Pacific) on his claim of discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. 12101-12117 (2000). Kellogg also maintains that summary judgment was improper because an earlier agreement with Union Pacific guaranteed his continued employment with the company. We affirm the judgment of the district court.

I.

Kellogg was a third-generation employee of Union Pacific whose career with the company spanned twenty-six years. Beginning as a switchman/brakeman in 1973, Kellogg ascended through the ranks at Union Pacific to conductor in 1978, and then to management in 1992.

In 1996, Kellogg was promoted to Senior Manager of Intermodal Stack Train Operations at Union Pacific's Harriman Dispatch Center in Omaha, Nebraska. In that position, Kellogg oversaw all freight traffic for Union Pacific's biggest client, American Presidential Lines (APL). His job required him to work sixty to eighty hours per week and to be on call twenty-four hours per day. When he was not at the Harriman Center, Kellogg took calls and monitored business by computer at home, and attended to APL on many of his vacation days. He was commended by APL for his unusual support and dedication.

On September 2, 1997, Kellogg was at work when he experienced symptoms of a heart attack and was taken by ambulance to the hospital. It was later determined that he had suffered a severe panic attack. Doctors diagnosed him with major depression and anxiety, and prescribed counseling, medication, and a leave of absence from work.

Kellogg returned to the Harriman Center on September 29, 1997, temporarily restricted by his doctors to a forty-hour, daylight only work week. About a month later, Kellogg's doctors ordered him off work again so that his medications could be adjusted. When Kellogg attempted to return to work on January 6, 1998 with the same conditions as before, ² his supervisor, Byron Schroeder, said that Union Pacific no longer could accommodate Kellogg's working restrictions.

Four days later, Kellogg wrote a letter to his director at Union Pacific expressing his willingness to return to work and emphasizing that his work restrictions were not absolute. Union Pacific did not respond. Kellogg continued to write to Union Pacific indicating his desire to return to work, to no avail. During the same period, Kellogg unsuccessfully applied, but was not hired, for eight other positions within the company. In March of 1998, Kellogg was placed on Union Pacific's Long-Term Disability Plan. On May 5, 1998, the company sent a letter to Kellogg, informing him that he was entitled to short-term disability benefits. When Kellogg's long-term disability benefits expired on March 4, 1999, Union Pacific terminated him.

Kellogg filed charges with the Nebraska Equal Opportunity Commission (NEOC) claiming Union Pacific's actions violated the ADA. The NEOC, in turn, issued Kellogg a right-to-sue letter.

Kellogg brought suit against Union Pacific in the United States District Court for the District of Nebraska, claiming that Union Pacific violated the ADA because, due to his anxiety and depression, the company refused to allow him to return to his job as Senior Manager of Intermodal Stack Train Operations, and failed to hire him to work in any other position for which he applied. Kellogg also alleged that Union Pacific's actions violated a Release and Settlement agreement the parties signed subsequent to a separate injury Kellogg suffered on the job in 1991. The district court granted Union Pacific's motion for summary judgment on grounds that Kellogg had not shown he was disabled under the ADA. The court also found that the Release and Settlement agreement between Kellogg and Union Pacific did not entitle Kellogg to continued employment with Union Pacific. This appeal followed.

II.

This court reviews a district court's grant of summary judgment de novo. See Treanor v. MCI Telecomm. Corp., 200 F.3d 570, 573 (8th Cir. 2000). In doing so, we apply the same standard as the district court. See id. Thus, we will affirm a grant of summary judgment when the evidence, viewed in the light most favorable to the nonmoving party, shows that there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

III.

To establish a claim under the ADA, Kellogg must make a prima facie showing that (1) he is disabled within the meaning of the ADA; (2) he is qualified to perform the essential functions of his job, with or without reasonable accommodation; and (3) he suffered adverse employment action because of his disability. See Gutridge v. Clure, 153 F.3d 898, 900 (8th Cir. 1998). If Kellogg fails to establish any element of his prima facie case, summary judgment is proper. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1134-35 (8th Cir.1999) (en banc). If Kellogg meets his burden, a rebuttable presumption of discrimination emerges and Union Pacific must articulate a legitimate, nondiscriminatory reason for the adverse employment action taken against him. See id. at 1135. If Union Pacific rebuts the presumption, Kellogg must demonstrate that the company's nondiscriminatory reason was pretextual. See id.

As a first step, Kellogg must show that he is disabled within the meaning of the ADA by establishing that: (A) he is physically or mentally impaired such that he is substantially limited in one or more major life activity; (B) he has a record of such an impairment; or (C) he is regarded as having such an impairment. See 42 U.S.C. 12102(2).

We assume, without deciding, working is a major life activity under the ADA. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 492 (1999) (assuming, without deciding, that working is a major life activity); 29 C.F.R. 1630.2(i) (1999). According to the Equal Employment Opportunity Commission (EEOC), an individual is substantially limited in the major life activity of working if he or she is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. 1630.2(j)(3)(i) (1999). See also Sutton, 527 U.S. at 492 (assuming but not deciding that this regulation is reasonable). It is important to note that "[t]he inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. 1630.2(j)(3)(i).

In evaluating whether an individual is substantially limited in the major life activity of working, the EEOC regulations direct that we consider the nature, severity, duration and impact of the disability itself. See 29 C.F.R. 1630.2(j)(2)(i)-(iii) (1999). Other considerations include: (A) the geographical area to which the individual has reasonable access; (B) the job from which the individual has been disqualified because of the impairment and the class of similar jobs from which the individual also is disqualified because of the impairment; and/or (C) the job from which the individual has been disqualified and the broad range of jobs in various classes from which the individual also is disqualified because of the impairment. See 29 C.F.R. 1630.2(j)(3)(ii) (1999). Given the numerous factors a court must weigh, the determination of whether an individual is substantially limited in the major life activity of working is made on a case by case basis. See Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 949 (8th Cir. 1999). At bottom, a court must ask "whether the particular impairment constitutes for the particular person a significant barrier to employment." Id. (citation omitted).

To show that his mental condition substantially limits him in the major life activity of working, Kellogg submits the affidavit of James T. Rogers (Rogers), a certified professional counselor, which concludes that Kellogg's limitation to a forty- hour work week "would have a significant and seriously deleterious effect on his potential for employment in a broad range of jobs across many categories of work particularly managerial, professional, technical and skilled craft work positions and not merely a narrow or single class of jobs." Rogers supports his affidavit with a vocational assessment based upon a medical diagnosis, doctors' work restrictions, and a personal interview with Kellogg, as well as Rogers's own curriculum vita summarizing his thirty years experience in the vocational counseling field.

Union Pacific concedes that Kellogg has a mental impairment. However, the company argues that Kellogg's mental impairment, and his subsequent limitation to a forty-hour work week, does not substantially limit him in the major life activity of working.

An employee is not substantially limited in the major life activity of working by virtue of being limited to a forty-hour work week. See Taylor v. Nimock's Oil Co., 214 F.3d 957, 960-61 (8th Cir. 2000); Berg v. Norand Corp., 169 F.3d 1140, 1145 (8th Cir. 1999). See also Tardie v. Rehab. Hosp. of Rhode Island, 168 F.3d 538, 542 (1st Cir. 1999). Although "overtime hours may be the normal practice for many jobs," an impairment that prohibits an individual from working over forty hours per week is "not substantially limiting within the meaning of the ADA." Taylor, 214 F.3d at 960-61.

The parties in the present case agree...