Lowery v. Hazelwood School District

• Decision Date: 14 December 2000
• Docket Number: No. 00-1364,00-1364
• Parties: (8th Cir. 2001) JOHN LOWERY, APPELLANT, v. HAZELWOOD SCHOOL DISTRICT, APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 654

244 F.3d 654 (8th Cir. 2001)

JOHN LOWERY, APPELLANT, v. HAZELWOOD SCHOOL DISTRICT, APPELLEE.

No. 00-1364

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: December 14, 2000

Filed: March 27, 2001

Appeal from the United States District Court for the Eastern District of Missouri. [Copyrighted Material Omitted] Before Wollman, Chief Judge, Richard S. Arnold, and Hansen, Circuit Judges.

Wollman, Chief Judge.

John Lowery appeals from the order of the district court¹ granting summary judgment against him in his claims under the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Missouri Human Rights Act (MHRA). We affirm.

I. Background

We take the facts in the light most favorable to Lowery, who suffers impairments as a result of a childhood bout with polio. Lowery has partial paralysis in his left arm and an IQ of 65, diagnosed as mild mental retardation, due to brain damage. He is therefore unable to climb a tree or a fence, paddle a canoe, lift things with his left arm alone, write a check, pay his bills, or perform simple arithmetic. Dennis Sissom, the head of the district's support services department, which includes security and custodial employees, stated in a deposition that he considered Lowery's physical impairment to be the equivalent of that of another staff member who was born without a hand.

On June 18, 1997, Lowery was terminated from his employment with Hazelwood School District, located in Florissant, Missouri, after twelve years as a district security officer. Lowery began his employment with the district in 1985 as a part-time security officer and became full-time in 1989. His duties included patrolling school campuses, assisting with traffic control, and occasionally delivering packages. He worked days and nights until 1993, when he was put on day shifts. In April of 1996, upon his request, he was put exclusively on night shifts. In the course of his employment, Lowery received occasional performance "write-ups." In 1990, he received a traffic ticket while driving a district vehicle. In 1992, he was written up twice for being late for shifts. In 1995, he was involved in a minor car accident, again while driving a department vehicle.

In 1996-97, three more-serious incidents took place. The last two weeks before graduation are known as "prank season" in the district, and graduating high school seniors traditionally attempt pranks that sometimes damage district property. Because of this tradition, security is heightened during prank season, with security officer presence increased by means of extra shifts and through the addition of off-duty police officers as temporary security officers. In May of 1996, Lowery discovered a break-in at one of the district buildings, but was unable to radio the security dispatch company for help because he was in a radio dead spot on the Hazelwood West campus and the nearest pay phone was not working. In violation of a district policy prohibiting security officers from entering unsecured buildings, Lowery went inside the building and saw four students fleeing. Lowery remained in the building for a period of hours until another security officer came on duty and then reported the incident and contacted the police. Lowery was suspended for four days for entering the building unassisted and for failing to contact police sooner. He then made a verbal request to be transferred to the custodial department, but was not transferred. In September of 1996, another district building was broken into on Lowery's watch. Lowery failed to discover the break-in because he failed to check the building, along with five other buildings assigned to him.

In June of 1997, Lowery was again on duty during prank season. Seventeen students removed a pane of glass from a door and entered a building assigned to Lowery. The students detached a twenty-foot section of railing from the tile floor it was bolted to and carried it to a nearby apartment complex. Although the prank must have required the students to remain in the building for some hours, Lowery did not discover anything amiss until they were gone. After this incident, the school board, acting on Sissom's recommendation, terminated Lowery's employment. One month later, he applied for a custodial job with the district and was interviewed but not hired. Lowery then filed the present action. The district court granted the district's motion for summary judgment, holding that Lowery had neither met his prima facie burden nor demonstrated that the district's poor-performance rationale was pretextual.

II. Discussion

On appeal, Lowery contends that the district court erred in granting summary judgment against him because he met his prima facie burden and offered evidence demonstrating the district's proffered reason for its actions was pretextual. We review a grant of summary judgment de novo, affirming the decision of the district court only if no genuine issue of material fact exists, entitling the moving party to judgment as a matter of law. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1134 (8th Cir. 1998) (en banc). In considering whether summary judgment was appropriate, we view all evidence in the light most favorable to the nonmoving party, drawing all justifiable inferences in his favor. Id.

In order to avoid summary judgment, Lowery was required to make a prima facie showing that (1) he is disabled within the meaning of the ADA,² (2) he is qualified to carry out the essential functions of his position, and (3) he suffered an adverse employment action under circumstances giving rise to an inference of unlawful discrimination. Id. at 1134-35. Sufficient evidence of discrimination may be demonstrated either through direct evidence of discrimination, or through a disparate- treatment showing that Lowery was treated differently than similarly situated employees. Allen v. Interior Constr. Servs., 214 F.3d 978, 982 (8th Cir. 2000). "An inference of discrimination arises where there is some evidence of a causal connection between a plaintiff's disability and the adverse employment action taken against the plaintiff." Id. Assuming, without deciding, that Lowery met his burden with respect to the first two elements of a prima facie case, we affirm the judgment of the district court because the circumstances of the district's actions do not support an inference of discrimination. Because Lowery did not make out a prima facie case of discrimination, we do not reach his argument that a jury could have concluded that the district's stated reason for firing him was pretextual. Cf. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147-48 (2000) (holding, in an Age Discrimination in Employment Act case, that a trier of fact may infer discriminatory intent from evidence of pretext when the employee has made out a prima facie case of discrimination).

A. Direct Evidence of Discrimination

We turn first to the question of whether Lowery presented sufficient direct evidence of discrimination to demonstrate a causal connection between an adverse employment action and his disability. Lowery alleges two distinct adverse employment actions--his termination and the district's subsequent refusal to hire him into the custodial department.³

Any credible evidence tending to establish that an employer acted adversely to an individual "on account of" his disability will suffice to provide an inference of discrimination for purposes of summary judgment. Allen, 214 F.3d at 982. The necessary inference is that the adverse action was more likely than not based on a discriminatory criterion illegal under federal law. Wallin v. Minnesota Dep't. of Corr., 153 F.3d 681, 687 (8th Cir. 1998). Our role is not to determine whether the district exercised sound business judgment, but whether its actions suggest discriminatory motives. See Lidge-Myrtil v. Deere & Co., 49 F.3d 1308, 1312 (8th Cir. 1995) (Title VII). In order to fulfill this requirement, then, Lowery's direct evidence of discrimination must be sufficient for a reasonable fact-finder to infer that he was terminated because of his disabilities.

As direct evidence of discrimination, Lowery presented (1) deposition testimony from Sissom that he contends shows a discriminatory attitude, (2) alleged inconsistencies in the district's explanations for Lowery's firing, (3) deposition statements from a school board member indicating that he had been told that the 1997 incident happened while Lowery was asleep in his car under a streetlight, and (4) derogatory remarks apparently added to a reference submitted in support of Lowery's application for the custodial position.

We conclude that the evidence Lowery presented is insufficient to support an inference of discrimination. Although Sissom did state in his deposition that he disliked unions because they...