Browning v. Liberty Mut. Ins. Co.

• Decision Date: 02 June 1999
• Docket Number: Nos. 97-3567,97-4071 and 97-4197,97-3620,s. 97-3567
• Citation: 178 F.3d 1043
• Parties: , 5 Wage & Hour Cas.2d (BNA) 552, 9 A.D. Cases 730 Winifred BROWNING, Appellee/Cross-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellant/Cross-Appellee. Equal Employment Opportunity Commission, Amicus Curiae.
• Court: U.S. Court of Appeals — Eighth Circuit

178 F.3d 1043,

5 Wage & Hour Cas.2d (BNA) 552, 9 A.D. Cases 730

Winifred BROWNING, Appellee/Cross-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellant/Cross-Appellee Equal Employment Opportunity Commission, Amicus Curiae.

Nos. 97-3567, 97-3620, 97-4071 and 97-4197.

United States Court of Appeals, Eighth Circuit.

Submitted Dec. 16, 1998.

Filed June 2, 1999.

Abraham William Bogoslavsky, Little Rock, Arkansas, argued (Donna S. Galchus, on the brief), for appellant/cross-appellee.

Luther Oneal Sutter, Little Rock, Arkansas, argued, for appellee/cross-appellant.

Before: BEAM, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

BEAM, Circuit Judge.

Winifred Browning was a long-term employee of Liberty Mutual. She underwent surgery to treat cubital tunnel syndrome and returned to work part time. Her employment was soon terminated and she commenced this action based on the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA). After a trial, the jury found for Browning on the ADA claim. Liberty Mutual appeals. Browning cross-appeals the district court's denial of her motion for judgment as a matter of law on the FMLA claim. Because we find that Browning failed to establish that she was a qualified individual with a disability for purposes of the ADA, we affirm in part and reverse in part.

I. BACKGROUND

Browning began working at Liberty Mutual in 1985 as a data entry clerk. She performed well and was given several promotions and awards. She eventually attained the position of Claims Representative II. This position involved working with another representative as a two-person team to manage a certain class of claims. This entailed heavy phone contact, computer keyboard work, and manual note taking. When she received or placed a call relating to a claim, the computer needed to be searched to bring up information pertaining to that claim, client, or policy. Information taken from that call was then entered into the computer. If the amount of information was too great, or if she was otherwise unable to enter it all into the computer simultaneously, she would take handwritten notes and enter the information into the computer as soon after the call as possible. Accurate and up-to-date information in the computer is critical so that if someone else receives the next call regarding that claim, all current information is available.

The repetitive motion of her job injured the tendons in Browning's arm, and she developed cubital tunnel syndrome in her right arm. ¹ Browning was placed on worker's compensation leave, and Dr. Hixon performed a cubital tunnel release on April 26 1995. Dr. Hixon allowed Browning to return to work beginning May 30 for four hours per day for two weeks, then six hours per day for two weeks, and eventually to full-time work by the end of June. In addition, she was provided with a telephone headset and a dictaphone to record the information from her calls for later entry into the computer by someone else. Dr. Hixon provided a work release to Browning that limited her to no use of her right arm. However, the memo Dr. Hixon sent to Liberty Mutual stated "minimal use of right arm."

Upon her return to work on May 30, Browning was told that she would be working on property claims rather than injury claims, and that she would receive all her assignments from her supervisor, rather than work with her partner. She was assigned a markedly reduced number of claims and told that all her work would be reviewed on a daily basis. The next day when asked what she was doing, Browning commented that "I'm bored silly and I'm not doing anything." During the resulting conversation with Mr. Hedrick, the claims manager, he leaned over his desk and yelled at Browning "So what are you doing besides nothing? I didn't hire you for four hours a day for you to sit there and do nothing." In the same conversation, Hedrick realized the discrepancy between the release Dr. Hixon gave to Browning and the memo Dr. Hixon gave to Liberty Mutual concerning the restriction on the use of her right arm. Browning was told to stay home until the discrepancy could be resolved. She did not work the next day, June 1, while Liberty Mutual sought clarification from Dr. Hixon's office. On June 2, Browning reported to work and spent the day primarily filling out a multi-page survey. That was the last day Browning worked at Liberty Mutual.

Browning experienced pain and numbness in her arm over the weekend. On June 5, while she was being driven to work by her sister, Browning's arm became very painful and numb, such that she could not work. Browning became emotional and began to cry. Browning did not report for work, and this condition continued throughout the week. On Thursday, June 8, Browning had an appointment with Dr. Hixon. Browning testified, "I told her I needed more time. I told her I couldn't do it like it was right now."

Liberty Mutual has a call-in policy whereby employees must call and speak to their supervisors if they are going to miss work. Since Browning did not have a phone in her home, she would call from her sister's house or have her sister call for her. On Monday, June 5, Browning's sister called her supervisor to explain that Browning's arm had gone numb, she had "broken down," and that she would not be in that day. On June 6 and 7, Browning attempted to call in, but was placed on hold, or was otherwise unable to contact her supervisor or her manager, Hedrick. When Browning failed to report on the 6, Hedrick spoke with Dr. Hixon's nurse to see if the doctor had withdrawn the work release. The nurse reported that Browning had called the doctor the day before, but the doctor did not change any of the restrictions. Browning's supervisor contacted Dr. Hixon again on June 8, after Browning's scheduled appointment. Dr. Hixon's office told her that Browning's restrictions had not changed, and that Browning had stated to them that she quit her job at Liberty Mutual.

Liberty Mutual issued a termination notice on June 9, citing job abandonment. At trial, Browning introduced evidence which indicated that the different treatment upon her return, and her termination, were due to her cubital tunnel injury and the resulting lack of productivity.

Browning tried unsuccessfully to look for work, then enrolled in college in August 1995. In January 1996, Dr. Hixon determined that Browning had reached her maximum level of recovery and assigned a ten percent loss of use to her right arm. In August 1996, a Functional Capacity Exam was performed on Browning which determined that her ability to lift was limited to ten pounds with her right hand and a twenty-pound limit over all. This limitation, as well as varying degrees of continued pain and sensitivity were determined to be permanent.

After trial, a jury found for Browning on her ADA claim and awarded her damages. The jury found for Liberty Mutual on the FMLA claim. Both sides moved for judgment as a matter of law, and both were denied. Liberty Mutual appeals the denial of its motion for judgment as a matter of law on the ADA claim, and Browning cross-appeals on the FMLA claim.

II. DISCUSSION

A. The ADA Claim

We review the denial of a motion for judgment as a matter of law de novo using the same standard as the district court. See Cox v. Dubuque Bank & Trust Co., 163 F.3d 492, 495-96 (8th Cir.1998). We review questions of fact only to determine whether the verdict is supported by substantial evidence, and we view the evidence in the light most favorable to sustaining the verdict. See id. In order for a plaintiff to recover on an ADA claim, she must establish that, at the time of the adverse employment action: (1) she was a qualified individual; (2) she was disabled within the meaning of the ADA; and (3) she was terminated because of her disability. See, e.g., Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir.1995).

Both parties spent great time and effort arguing over whether Browning's impairment was a disability under the ADA, and whether she was terminated because of her disability. We need not reach these issues because we find that Browning failed to establish that she was a qualified individual under the ADA at the time of her termination. Under the ADA, a qualified individual is an individual who, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds." 42 U.S.C. § 12111(8). The determination of whether an individual is qualified for purposes of the ADA is a two-step process, and should be made as of the time of the employment decision. See 29 C.F.R § 1630.2(m) App. The first inquiry is to determine if the individual possesses the requisite skills, education, certification or experience necessary for the job. See id. This is easily established by the fact that Browning previously held the position and performed well. The second inquiry is to determine whether the individual can, despite her impairments, perform the essential functions of the job either with or without reasonable accommodation. See id. An ADA plaintiff may not rely on past performance alone to establish that she is a qualified individual when the record clearly reflects diminished or deteriorated abilities. See Mole v. Buckhorn Rubber Prods., Inc., 165 F.3d 1212, 1217 (8th Cir.1999). The job for which Browning must be qualified at the time of her discharge is not the temporary part-time position which she tried and failed to return to, but rather the job she held prior to her surgery. See Bowers v.. Bethany Med. Ctr., 959 F.Supp. 1385, 1390 (D.Kan.1997). Thus Browning had the burden...