Kells v. Buick
| Decision Date | 13 March 2000 |
| Docket Number | No. 99-2795,99-2795 |
| Citation | 210 F.3d 827 |
| Parties | (8th Cir. 2000) Larry Kells, Appellant, v. Sinclair Buick - GMC Truck, Inc., Appellee. Submitted: |
| Court | U.S. Court of Appeals — Eighth Circuit |
Appeal from the United States District Court for the Eastern District of Missouri. [Copyrighted Material Omitted] Before McMILLIAN and HEANEY, Circuit Judges, and BOGUE,1 District Judge.
This is an employment discrimination case. The Plaintiff, Larry Kells charged the Defendant with discrimination on account of age and disability. The district court 2 granted the Defendant's motion for summary judgment on each count of the Plaintiff's Complaint. For the reasons set forth below, we affirm in part and reverse in part.
In April 1993, Defendant Sinclair Buick-GMC Truck, Inc. ("Sinclair-Buick") acquired Art Haack Buick, where Larry Kells worked as a used car salesman. Part owner Dave Sinclair Jr. became the dealership's new manager, and in March 1994 he offered Kells the opportunity to work as a finance and insurance ("F&I") manager. Kells accepted. He joined Greg Gorham, the other F&I manager.
The F&I department was responsible for selling car buyers additional services such as financing, insurance, and extended warranties. Sometime in 1994, Dave Sinclair Jr. was contacted by General Motors Holding Division, the investment department at General Motors, which advised him that his F&I department was underperforming. General Motors Holding Division recommended that he engage an independent financing and consulting firm called Maximum Achievable Profits, Inc. ("MAP") to review the department and train the Sinclair-Buick F&I employees. Sinclair Jr. hired MAP in December 1994.
Two MAP consultants arrived, Vern Hutson and Leo Norath. They reviewed and trained Kells and his coworker, Gorham for an eight month period ending in August 1995. MAP noted problems with both Gorham's and Kells' performance, but believed that Kells exhibited a more serious attitude problem. On or about August 4, Sinclair Jr. removed Kells from the F&I department and reinstated him in his former position as a used car salesperson.
Subsequently, a September 8 MAP "letter of findings" from Leo Norath was issued. The letter criticized the accuracy of Kells' and Gorham's "daily logs" and made additional remarks concerning Kells' performance. During a September 17 meeting between Sinclair Jr. and MAP consultant Hutson, Sinclair Jr. expressed his concerns with regard to a possible lawsuit from Kells as well as community perceptions surrounding Kells' transfer. A second MAP "letter of findings" was generated following this meeting which described how Kells would not use procedures properly with customers, did not take a great interest in improving, and had a negative attitude. This letter contained the first written MAP recommendation that Kells be removed from his F&I position.
Kells' new supervisor was Mike Ruhland, who was also critical of Kells' abilities. Ruhland told Kells that he was "useless," "done with the business" and that he did not want Kells in the used car department because he could not wait on customers fast enough or keep up with the other Sinclair-Buick employees. Kells has muscular dystrophy and found some duties connected with his new position difficult. Ruhland denied repeated requests for a ramp into the used car building, the use of a cart, and authorization to use a canopy-covered parking space in order to accommodate Kells' disability.
Kells worked in the used car department for nearly five more months before submitting a letter of resignation in December. In the letter, Kells complained that despite his genuine dedication to Sinclair-Buick, he had been demoted "under dubious pretexes" [sic] so that his income would decline and he would be forced to resign.Following Kells' resignation, Dave Sinclair Sr., Dave Sinclair Jr.'s father and a part owner of the dealership, called Kells at home. Sinclair Sr. asked Kells how old he was"Fifty," Kells replied. "When you get that age, those things happen to you in our company," Sinclair Sr. responded.
In March of the following year, Kells filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and the Missouri Commission on Human Rights (MCHR). He filed a four count Amended Complaint with the District Court for the Eastern District of Missouri, alleging wrongful demotion, harassment, and constructive discharge in violation of the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and comparable provisions of the Missouri Human Rights Act (MHRA). In three separate orders, the district court granted summary judgment on all counts of Kells' Complaint.3 This appeal followed.
We review a district court's grant of summary judgment de novo. Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1331 (8 th Cir. 1996). Summary judgment may issue only when "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. "[S]ummary judgment should seldom be granted in the context of employment actions, as such actions are inherently fact based." Hindman v. Transkirt Corp., 145 F.3d 986, 990 (8 th Cir. 1998). When the evidence would support conflicting conclusions, summary judgment should be denied. See Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8 th Cir. 1991) ("All the evidence must point one way and be susceptible of no reasonable inferences sustaining the position of the nonmoving party [before summary judgment is appropriate].").
The Defendant does not dispute that Kells is a qualified individual with a disability within the meaning of the ADA. See 42 U.S.C. 12102(2)(A) (). Kells has insulin-dependent diabetes and muscular dystrophy, both recognized ADA impairments. See Torcasio v. Murray, 57 F.3d 1340, 1354 (4 th Cir. 1995), cert. denied, 516 U.S. 1071, 116 S.Ct. 772, 113 L.Ed.2d 724 (1996), citing 28 C.F.R. 35.104 (muscular dystrophy); Burroughs v. City of Springfield, 163 F.3d 505, 507 (8 th Cir. 1998) (diabetes). As a result of his muscular dystrophy, Kells has diminished use of the muscles in the lower part of his body. He wears braces on both legs and walks using two canes. Despite these mitigating devices, the Defendant concedes, Kells' impairments substantially limit one or more of his major life activities, such as walking. As such, Kells has a disability.
What the parties dispute is whether Kells was demoted and ultimately constructively discharged because of his disability. See 42 U.S.C. 12112(a) (). In support of his claim, Kells points to statements by Mike Ruhland, the used car department manager, that Kells was "useless," "done with the business," and could not wait on customers fast enough or keep up with other employees. In addition, Kells cites to instances in the record which suggest that Sinclair Buick failed to provide reasonable accommodations for his disability. Kells further attempts to create a genuine issue of material fact with regard to the timing of MAP's recommendation that he be transferred out of the F&I department. Before reviewing the district court's grant of summary judgment on Kells' ADA claim, we first examine these factual issues.
The following facts are clearly undisputed. Kells was transferred back to the used car department on August 4, 1995. On September 8, MAP issued a letter of findings which contained criticisms of Kells, as well as criticisms of Greg Gorham. On September 17, Vernon Huston met with Dave Sinclair Jr. and discussed Sinclair Jr.'s concerns about a possible lawsuit from Kells. On September 27, MAP issued a second letter of findings recommending Kells' transfer.
What is not entirely clear is whether MAP consultants orally recommended that Kells be transferred before Sinclair Jr. carried out Kells' transfer. Sinclair-Buick's defense theory depends, in part, upon their reliance on MAP's objective conclusions concerning Kells' professional shortcomings. Sinclair-Buick argues that its reliance on MAP's recommendation to transfer Kells out of the F&I department refutes Kells' claim that it was motivated by any sort of discriminatory animus. In support of this theory, Sinclair-Buick contends that the record plainly establishes that it received a verbal recommendation to transfer Kells prior to taking that action. The district court agreed, and found that this was the only reasonable reading of the record.
Sinclair-Buick cites to affidavits by MAP consultants Leo Norath and Vernon Hutson which it originally attached to its reply brief to Plaintiff's brief in opposition to Defendant's motion for summary judgment. In the Norath affidavit, Norath swore that he verbally advised Sinclair Jr. to remove Kells from the F&I department in approximately April of 1995, some four months before Kells was finally transferred.In the Hutson affidavit, Hutson stated that he verbally advised Sinclair Jr. to transfer Kells as early as February 1995. Because Kells could offer no evidence to contradict these assertions, the district court concluded that there was no genuine issue as to when the MAP consultants recommended Kells' transfer.
Part of the difficulty with the district court's conclusion as to this aspect of the record lies in Norath's and Hutson's prior deposition testimony. Hutson was asked about his notes of the September 17 meeting:
A. It was one of my follow-up visits and, again, it was things we discussed so I made notes.
Q. It goes on to state that, the very third sentence from the bottom, ...
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