Epps v. City of Pine Lawn

• Decision Date: 19 December 2003
• Docket Number: No. 02-3064.,02-3064.
• Citation: 353 F.3d 588
• Parties: Dennis EPPS, Appellant, v. THE CITY OF PINE LAWN, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 588

353 F.3d 588

Dennis EPPS, Appellant, v. THE CITY OF PINE LAWN, Appellee.

No. 02-3064.

United States Court of Appeals, Eighth Circuit.

Submitted: June 13, 2003.

Filed: December 19, 2003.

Allthea P. Johns, argued, St. Louis, Missouri, for appellant.

Priscilla F. Gunn, argued, St. Louis, Missouri (Brain D. Kennedy, on the brief), for appellee.

Before MELLOY, BEAM, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Dennis Epps appeals the district court's¹ summary judgment in favor of the City of Pine Lawn, Missouri ("Pine Lawn"), in Epps's discrimination and workers' compensation claims. We affirm.

I. Background

Epps served the City of Pine Lawn as a police officer for over thirteen years. Epps suffered numerous injuries during his employment. Epps filed workers' compensation claims for at least two of the injuries. Eventually, Epps's injuries left him unable to perform his job duties. Thereafter, Pine Lawn terminated him.²

Epps's first pertinent injury occurred August 1, 1998, when he was involved in an automobile accident while on duty. Epps injured his neck and back. Pine Lawn's workers' compensation insurance covered the injuries, and Epps received benefits. The injuries prevented Epps from performing his duties as a police officer, and he was placed on leave from August 26, 1998, to November 15, 1998. Dr. Peter Mirkin, Pine Lawn's designated workers' compensation physician, released Epps to return to work on November 9, 1998, without restrictions, but recommended that he work not as a patrolman but "as a detective."

Epps's next relevant injury occurred on April 13, 1999, when he aggravated the earlier injuries to his neck and back. However, Epps did not immediately seek medical attention. Instead, several months later, he visited Dr. Mirkin and complained of back and neck pain. He described that bending, stooping, or squatting aggravated the pain. Epps also complained that he had difficulty carrying his gun belt. According to the record, Epps paid for this visit and subsequent treatment with private health insurance.

Dr. Mirkin diagnosed Epps as having degenerative disk disease, and he concluded that Epps would very likely need to seek a different type of occupation. Initially, Dr. Mirkin prescribed conservative medical treatment, and he did not initially recommend surgery. However, in November 1999, Dr. Mirkin operated on Epps's neck. According to his reports, Dr. Mirkin did not consider Epps's complaints work-related, and consequently Pine Lawn's workers' compensation carrier denied liability for the treatment and surgery.

Donald Hardy became Chief of Police in July 1999. When he started work, he reviewed the personnel files of his officers and noticed that Epps "had filed quite a few workers' compensation claims, and that he missed a lot of work." He also reviewed Dr. Mirkin's note that Epps had degenerative disk disease, and that he would likely need to seek a different occupation. On September 29, 1999, Hardy wrote a memorandum to the Mayor and Board of Aldermen recommending Epps's termination. Hardy referred to Dr. Mirkin's note, the extensive amount of sick time used by Epps, and the number of workers' compensation claims Epps filed in concluding that Epps was unable to perform his duties. The Mayor and Board of Aldermen did not accept Hardy's recommendation, and Epps remained employed with Pine Lawn. Epps never returned to work after late September 1999.

After Epps's neck surgery in November 1999, Hardy prepared a second memorandum to the Mayor and Board of Alderman on March 17, 2000. In this memorandum, Hardy again recommended termination after noting that there were no light-duty assignments available, and that the department's officers were required as part of their full duties to bend, squat, and run. Hardy again referred to Dr. Mirkin's note before concluding that Epps would never be able to function as a regular officer. On March 21, 2000, the Mayor and Board of Aldermen voted to accept Hardy's recommendation to terminate Epps and then dismissed him. Epps appealed the termination under the Pine Lawn Municipal Code. Following a hearing, the Board denied the appeal.

On February 27, 2001, Epps sued Pine Lawn alleging four separate claims. Specifically, he claimed that his termination in May of 2000 violated the Americans with Disabilities Act ("ADA") and the Missouri Human Rights Act ("MHRA"). He also claimed that the termination constituted unlawful retaliation under Missouri Revised Statutes § 287.780 for filing a workers' compensation claim, and amounted to the intentional infliction of emotional distress under Missouri common law. Pine Lawn moved for summary judgment on all counts. In granting Pine Lawn's motion, the district court ruled that Epps could not prevail on his ADA and MHRA claims because he could not establish that Pine Lawn regarded him as disabled. The district court also held that Missouri's sovereign immunity statute barred Epps's workers' compensation retaliation and intentional infliction of emotional distress claims.

II. Standard of Review

We review the district court's grant of summary judgment de novo. Dropinski v. Douglas County, Neb., 298 F.3d 704, 706 (8th Cir.2002); Harder v. Acands, 179 F.3d 609, 611 (8th Cir.1999). In doing so, we apply the same standard as the district court, viewing the evidence in the light most favorable to the nonmoving party and giving that party the benefit of all inferences that may reasonably be drawn. Wallace v. Dorsey Trailers Southeast, Inc., 849 F.2d 341, 342 (8th Cir.1988). A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

III. Discussion

Epps argues that the district court erred in finding that he did not establish a prima facie case of discrimination under the ADA and MHRA. Specifically, the court found that Epps failed to prove that Pine Lawn perceived him to be disabled.³ In addition, Epps argues that the court erred in determining that Pine Lawn enjoys discretionary immunity, a more restrictive type of sovereign immunity recognized in Missouri, from Epps's retaliatory-discharge claim.

A. ADA and MHRA Claims

Epps first argues that the facts showed that Pine Lawn perceived him to be disabled, thus establishing that particular element of his prima facie case under the ADA and MHRA. To establish a prima facie case of employment discrimination under the ADA and MHRA, we use the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework, Epps must show (1) that he has a disability within the meaning of the ADA, (2) that he is qualified to perform the essential functions of the job, with or without reasonable accommodation, and (3) that he suffered an adverse employment action because of his disability. Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 711 (8th Cir.2003); Cooper v. Olin Corp., Winchester Div., 246 F.3d 1083, 1087 (8th Cir.2001).

Within the meaning of the ADA, the term "disability" includes, among other things, "being regarded as having," 42 U.S.C. § 12102(2)(C) (1994), "a physical or mental impairment that substantially limits one or more of the major life activities" of the individual. 42 U.S.C. § 12102(2)(A). Thus, individuals who are "regarded as" having a disability, but who are not actually disabled, can still fall within the protection of the ADA. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999); Conant v. City of Hibbing, 271 F.3d 782, 784-785 (8th Cir.2001). "Major life activities" include "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i); accord, 45 C.F.R. § 84.3(j)(2)(ii) (regulation interpreting the Rehabilitation Act of 1973, 29 U.S.C. § 790).⁴

An individual is substantially limited in performing a major life activity where that individual is "[u]nable to perform" or is "[s]ignificantly restricted as to the condition, manner or duration under which" he can perform a particular major life activity. Id. § 1630.2(j)(1)(i), (ii). A substantial limitation on the major life activity of working means that an individual must be "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes." Id. § 1630.2(j)(3)(i). In "regarded as" actions, the plaintiff must show that the employer or potential employer "entertain[ed] misperceptions about the individual—it must [have] believe[d] either that one ha[d] a substantially limiting impairment that one [did] not have or that one ha[d] a substantially limiting impairment when, in fact, the impairment [was] not so limiting." Conant, 271 F.3d at 785 (quoting Sutton, 527 U.S. at 489, 119 S.Ct. 2139).

Summary judgment is proper if a plaintiff fails to establish any element of his prima facie case. Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445 (8th Cir.1998). We hold that the district court properly granted summary judgment to Pine Lawn because Epps failed to establish that Pine Lawn perceived him to be disabled within the meaning of the ADA or MHRA. Pine Lawn concluded that Epps could not perform the particular job of a Pine Lawn police officer. This, however, is insufficient to establish an ADA or MHRA claim. "The inability to perform a single, particular job does not constitute a substantial limitation on the major life activity of working." 29 C.F.R. § 1630.2(j)(3)(i). "There is a distinction between being regarded as an individual unqualified for a particular job because of a limiting physical impairment and being regarded as `disabled' within the meaning of the ADA." Conant, 271 F.3d at...