Fjellestad v. Pizza Hut

• Citation: 188 F.3d 944
• Decision Date: 12 February 1999
• Docket Number: No. 98-2071,98-2071
• Parties: (8th Cir. 1999) Ellen Fjellestad, Appellant, v. Pizza Hut of America, Inc., Appellee. Submitted:
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 944

188 F.3d 944 (8th Cir. 1999)

Ellen Fjellestad, Appellant, v. Pizza Hut of America, Inc., Appellee.

No. 98-2071

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: February 12, 1999

Filed: August 25, 1999

Rehearing and Rehearing En Banc Denied Oct.13, 1999.^*

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Appeal from the United States District Court for the District of South Dakota.

Before MURPHY, LAY, and JOHN R. GIBSON, Circuit Judges.

AMENDED OPINION

LAY, Circuit Judge.

This court's opinion filed on June 16, 1999, is withdrawn and ordered vacated. This opinion, as amended, is now substituted and ordered filed in place of the original opinion. With the filing of the amended opinion, the petition for rehearing is denied as moot without prejudice to the rights of the parties to file a petition for rehearing as to the amended opinion.

I.

Ellen Fjellestad appeals the grant of summary judgment in favor of her former employer, Pizza Hut of America, Inc., in a suit brought under the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101 et seq. (1994). On appeal, Fjellestad urges that the district court erred in holding (1) that she was not disabled within the meaning of the ADA, and (2) that even if she was disabled, she was not a qualified individual because she failed to articulate a reasonable accommodation that would make her qualified for the job. We reverse and remand. Background

Fjellestad became unit manager of the Yankton, South Dakota, Pizza Hut restaurant in September of 1978. Her duties as the manager included ensuring customer satisfaction, supervising employees, maintaining a number of financial control measures, managing bank deposits, training and hiring employees, ensuring restaurant cleanliness, maintaining safety in the restaurant and managing general administration of the restaurant. A Pizza Hut unit manager is expected to work fifty hours per week, but may work fewer hours if they are able to accomplish their duties in less time.

Fjellestad had received district and national recognition for her managerial skills and was considered a capable and successful employee until she was seriously injured in an automobile accident on December 14, 1994. She was hospitalized for nearly a month after the accident and suffered a lacerated liver, severe chest injuries, blunt trauma to her right shoulder, and multiple broken ribs. During her hospitalization and recovery, Pizza Hut had Linda Folkers, a senior shift manager at the restaurant, serve as acting manager of the restaurant.

Fjellestad's doctors prohibited her from returning to work until April 28, 1995, when they released her to work for two hours every other day. After she fell in a. grocery store in early May, however, they again prohibited her from working. She returned to work again on June 16, 1995, but her doctors allowed her to work only four hours every other day for a total of twelve hours per week. Over the next six months, she slowly regained her ability to work. By December 29, 1995, her doctors said she was able to work thirty-five to forty hours per week, with no more than three consecutive days at work.

When Fjellestad returned to work in June 1995, Folkers continued to share some of the unit manager duties and functioned as a "co-manager" with Fjellestad until August of 1995. On August 24, 1995, when Fjellestad was released to work only twenty hours per week, she received the first of several memos from Rick Swanson, her area Pizza Hut supervisor, criticizing her for poor performance. Swanson continued to cite Fjellestad for poor performance as her work hours gradually increased.¹ Fjellestad filed a grievance with Pizza Hut on November 15, 1995, regarding Swanson's conduct and requested reasonable accommodation for her medical condition.

On December 12, 1995, a representative from Pizza Hut's human resources department called Fjellestad about the grievance and told her that she would be allowed to retain her position as unit manager because her doctor had released her to work a sufficient number of hours to perform her duties. However, she was placed on a sixty-day performance plan and Swanson evaluated her performance under the plan bi-weekly. On January 16, 1996, Fjellestad's doctor concluded that she had reached her maximum recovery. Her doctors determined that she experienced a permanent thirty. percent impairment of her upper right extremity and would have "prominent weakness in her arms long term with probably some residual deficits for the rest of her life." Swanson eventually terminated Fjellestad on February 8, 1996, (day 47 or 48 of the plan), for allegedly failing to make adequate progress in meeting the targets set forth in the performance plan. Linda Folkers was then named the unit manager of the restaurant. Following her termination, Fjellestad filed two additional grievances with Pizza Hut requesting reasonable accommodation. After they failed to take action, she filed this lawsuit.

The ADA prohibits employers from discriminating "against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. 12112(a). To establish a claim under the ADA, a plaintiff must show (1) that she is disabled within the meaning of the Act; (2) that she is qualified to perform the essential functions of the job either with or without accommodation; and (3) that she has suffered adverse employment action because of the disability. Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995). In granting summary judgment, the district court held that Fjellestad failed to establish a claim because she was not disabled under the ADA, and even if she were, she was not qualified to perform the essential functions of the job with or without reasonable accommodation. This appeal followed.

Disability Under the ADA

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). Major life activities include caring for one's self, performing manual tasks, walking, seeing, hearing, breathing, learning and working. 29 C.F.R. 1630.2(i) (1998). Sitting, standing, lifting and reaching also are considered major life activities. Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 616 (8th Cir. 1997). An impairment is "substantially limiting" if it renders an individual unable to perform a. major life activity that the average person in the general population can perform, or if it significantly restricts the condition, manner, or duration under which an individual can perform a particular major life activity as compared to an average person in the general population. 29 C.F.R. 1630.2(j)(1)(i)-(ii). The following factors are considered in determining whether a person is substantially limited in a major life activity: (1) the nature and severity of the impairment; (2) its duration or anticipated duration; and (3) its long-term impact. 29 C.F.R. 1630.2(j)(2)(i)-(iii). Additionally, the determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis. Doane v. City of Omaha, 115 F.3d 624, 627 (8th Cir. 1997), cert. denied, 118 S. Ct. 693 (1998).

Fjellestad contends that she is substantially limited in the major life activities of sleeping, bathing, sitting and working. The district court rejected each of her contentions. We find that a triable issue of fact exists regarding whether Fjellestad was substantially limited in the major life activity of working.

A person is substantially limited in working if 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." Id. The factors to be considered include: the number and type of jobs from which the impaired individual is disqualified; the geographical area to which the individual has reasonable access; and the individual's job training, experience, and expectations. Helfter, 115 F.3d at 617; 29 C.F.R. 1630.2(j)(3)(ii). In Webb v. Garelick Mfg. Co., 94 F.3d 484, 488 (8th Cir. 1996), this court stated, "the ADA is concerned with preventing substantial personal hardship in the form of significant reduction in a person's real work opportunities. A court must ask 'whether the particular impairment constitutes for the particular person a significant barrier to employment,'" and the person's expertise, background, and job expectations are relevant in defining the class of jobs used to determine whether the person is disabled. Id. at 488 (citations omitted). Finding that an individual is substantially limited in his or her ability to work requires. a showing that his or her overall employment opportunities are limited. Miller v. City of Springfield, 146 F.3d 612, 614 (8th Cir. 1998).

Fjellestad has created a factual dispute about whether her overall employment opportunities are limited. Fjellestad lives in a rural town in South Dakota. She worked nearly twenty years for Pizza Hut in the restaurant management business and adequately performed her duties prior to her accident. Her entire work training, experience, and expectations lie in restaurant management. After her accident and lengthy recovery, however, she is no longer able to work the long hours or perform her duties to the level of success she previously achieved. Furthermore, Rick Ostrander, an occupational specialist, reported that there were 28,000 available jobs in South Dakota that fit her vocational profile, but that she is eligible for only about 1,300 of these jobs due to her functional limitations. He found that this represented a 91 percent reduction in employability, and a 95 percent reduction in labor market access based on actual positions...