Berg v. Norand Corp.

• Citation: 169 F.3d 1140
• Decision Date: 05 March 1999
• Docket Number: No. 98-1232,98-1232
• Parties: 9 A.D. Cases 207, 14 NDLR P 215 Rebecca A. BERG, Appellant, v. NORAND CORPORATION, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1140

169 F.3d 1140

9 A.D. Cases 207, 14 NDLR P 215

Rebecca A. BERG, Appellant, v. NORAND CORPORATION, Appellee.

No. 98-1232.

United States Court of Appeals, Eighth Circuit.

Submitted Oct. 15, 1998.

Decided March 5, 1999.

Rodney H. Powell, Norwalk, Iowa, argued, for Appellant.

Kevin James Visser, Cedar Rapids, Iowa, argued (Paul D. Gamez, on the brief), for Appellee.

Before: BOWMAN, Chief Judge, HANSEN, Circuit Judge, and VIETOR, ¹ District Judge.

HANSEN, Circuit Judge.

Rebecca Berg brought this employment discrimination claim against Norand Corporation (Norand), alleging Norand discriminated against her based on her disability (Berg is a non-insulin dependant diabetic) and her sex. The district court ² granted summary judgment in favor of Norand on its second motion for summary judgment and Berg appeals. ³ We affirm.

I.

Because the district court granted summary judgment in favor of Norand, we state the facts in the light most favorable to Berg, the nonmoving party. See Burroughs v. City of Springfield, 163 F.3d 505, 506 (8th Cir.1998). Norand hired Berg to manage its tax department in March 1990 and added the management of Norand's payroll and risk management departments to her responsibilities in September 1991. Berg routinely worked 70 to 80 hours per week to meet the demands of her job. By early 1993, Berg's health began to deteriorate and she was unable to continue the 70- to 80-hour pace. Berg took a medical leave of absence in February 1993. In March 1993, after returning to work, Berg received her first ever poor performance reviews for failing to keep up with her workload. Norand placed her on probation and set specific goals for improving her performance. Norand also relieved Berg of her payroll department responsibilities to help her timely complete her priority projects. Berg still failed to meet Norand's expectations. Berg was diagnosed with diabetes in May 1993, and she immediately informed her supervisors.

On August 2, 1993, Berg tendered her written resignation to Bob Hurd, her immediate supervisor, because of the stress from the long hours and her work environment. In her resignation, Berg agreed to stay until her year-end projects were completed, tentatively through October. Hurd verbally accepted her resignation. Berg attempted to withdraw her resignation on August 19, asking instead for an accommodation of reduced work hours to 40 to 50 hours per week. This was Berg's first request for an accommodation. During the August 19 meeting with Mike Wakefield, the director of human resources, Berg discussed her suicidal tendencies. Berg met with Hurd to discuss the attempted withdrawal of her resignation on the following Monday, August 23. The record is unclear as to the exact date, but Berg had discussed her suicidal tendencies with Hurd a few days before the August 23 meeting. Shortly after his meeting with Berg, Hurd discussed her situation with Wakefield. They placed Berg on immediate medical leave and insisted that she see a psychiatrist that afternoon, though she had an appointment with her own doctor the next day. Because the psychiatrist Berg was to see was unavailable, Berg was admitted to the hospital overnight, allegedly against her will. She saw her own doctor and was released the following morning.

Berg returned to work a week later. No one discussed Berg's pending resignation or her attempt to withdraw her resignation following her return. Berg was terminated on December 7, 1993, purportedly because of her resignation and continued poor performance.

Berg filed disability discrimination claims against Norand under the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. §§ 12101-12213 (1994), and the Iowa Civil Rights Act of 1965 (ICRA), Iowa Code §§ 216.1-.20(1993). Berg alleged sex discrimination based on unequal pay under the ICRA; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1994); the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201-19 (1994); and the Equal Pay Act of 1963, 29 U.S.C. § 206 (1994). Finally, Berg brought supplemental state law claims of negligent misrepresentation, breach of implied contract, and false imprisonment. The FLSA claim was dismissed on an earlier Fed.R.Civ.P. 12(b)(6) motion. The district court granted summary judgment in favor of Norand on Berg's remaining claims. Berg does not appeal the dismissal of the sex discrimination claims brought under the ICRA, Title VII, ⁴ and the FLSA.

II.

We review de novo the district court's grant of summary judgment in favor of Norand, using the same standards used by the district court. See Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir.1999). "Summary judgment is proper if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Id. (citations omitted); Fed.R.Civ.P. 56(c). While we have said that summary judgment is generally inappropriate in discrimination cases because they are often based on inferences that the fact finder may or may not draw, see Breeding, 164 F.3d at 1156, there is no "discrimination case exception" to the application of Fed.R.Civ.P. 56, and it remains a useful pretrial tool to determine whether or not any case, including one alleging discrimination, merits a trial.

A. Disability Discrimination

To state a claim under either the ADA or the ICRA, ⁵ Berg "must demonstrate that [she] has a disability as defined in the ADA; that [she] is qualified to perform the essential functions of the job at issue, either with or without reasonable accommodation; and that 'because of' [her] disability, [she] suffered an adverse employment action." Burroughs, 163 F.3d at 507 (citations omitted). The ADA defines 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." 42 U.S.C. § 12102(2). Iowa uses similar criteria under the ICRA to define disability. See Bearshield v. John Morrell & Co., 570 N.W.2d 915, 918 (Iowa 1997) (citing Iowa Admin.Code § 161-8.26(1) (1993)). The Equal Employment Opportunity Commission (EEOC) regulations define "major life activities" to include "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i) (1998). To establish that she is substantially limited in the life activity of working, Berg must show that she is limited from performing a class of jobs or a broad range of jobs within various classes. "The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." § 1630.2(j)(3)(i).

Berg claims that her diabetes is disabling because it limits her major life activity of working by: limiting her to a 40- to 50-hour work week; causing her continuous joint pain; causing her difficulty with her speech; and making it difficult to focus on her job due to the pain. However, she admits that she could effectively perform her duties at Norand if her work load was reduced to 40 to 50 hours per week. (See J.A. at 85.) Berg's only request for an accommodation is for reduced hours. (See id. at 286-87.)

"Not every physical or mental impairment 'counts' for ADA purposes, because most disabilities from which people suffer (bad vision, impaired hearing, arthritic joints, diabetes) do not have a substantial enough effect on their major life activities." Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 675 (7th Cir.1998). Such is the case with Ms. Berg. In her resistance to summary judgment, Berg only claimed that her diabetes limited her major life activity of working. (See J.A. at 177, 180.) Subsequent to her termination from Norand, Berg started her own tax and accounting practice and became the chief financial officer of a construction company. She concedes that she has never been unemployed. (See J .A. at 194.) Berg has failed to show any class of jobs or broad range of jobs from different classes from which she is excluded because of her diabetes. See 29 C.F.R. § 1630.2(j)(3)(ii) (listing factors for determining whether an individual is limited in the life activity of working). Thus, Berg is not substantially limited in the major life activity of working. See Gutridge v. Clure, 153 F.3d 898, 901 (8th Cir.1998) (finding no substantial limitation where the plaintiff found a similar job); Miller v. City of Springfield, 146 F.3d 612, 614-15 (8th Cir.1998) (disqualification from one's job of choice is not substantially limiting). We find it hard to say that being limited to a 40- to 50-hour work week substantially limits one's ability to work. See, e.g., Muthler v. Ann Arbor Mach., Inc., 18 F.Supp.2d 722, 729 (E.D.Mich.1998) (heart condition that restricted management employee to 40-hour week did not substantially limit major life activity of working); Kolpas v. G.D. Searle & Co., 959 F.Supp. 525, 529 (N.D.Ill.1997) (same); Brennan v. National Telephone Directory Corp., 850 F.Supp. 331, 343 (E.D.Pa.1994) ("The inability to work overtime hardly makes plaintiff handicapped.").

Berg asserts for the first time on appeal that Norand perceived her as disabled and thus she fits within the ADA's definition of disabled. ⁶ See 42 U.S.C. § 12102(2)(C). We will not entertain a new argument on appeal from the grant of summary judgment. See O.R.S. Distilling Co. v. Brown-Forman Corp., 972 F.2d 924, 926 (8th Cir.1992). Thus, we hold that the district court properly granted summary judgment in favor of Norand on Berg's disability claims under the ADA and the ICRA.

B. Wage Discrimination

To establish a prima facie case under the Equal Pay Act, Berg must meet her burden of showing that Norand paid male employees higher wages than it paid her for jobs "requir[ing] equal...