Liljedahl v. Ryder Student Transp. Services, Inc., 02-3804.

• Decision Date: 10 September 2003
• Docket Number: No. 02-3804.,02-3804.
• Citation: 341 F.3d 836
• Parties: Elaine LILJEDAHL, Appellant, v. RYDER STUDENT TRANSPORTATION SERVICES, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

341 F.3d 836

Elaine LILJEDAHL, Appellant, v. RYDER STUDENT TRANSPORTATION SERVICES, INC., Appellee.

No. 02-3804.

United States Court of Appeals, Eighth Circuit.

Submitted: June 13, 2003.

Filed: September 10, 2003.

COPYRIGHT MATERIAL OMITTED

Carolyn E. Guy, argued, Minneapolis, MN, for appellant.

Frank Vogl, argued, Minneapolis, MN (Sarah C. Madison, on the brief), for appellee.

Before RILEY and HEANEY, Circuit Judges, and ERICKSEN,¹ District Judge.

RILEY, Circuit Judge.

After Ryder Student Transportation Services, Inc. (Ryder) discharged Elaine Liljedahl (Liljedahl), Liljedahl sued Ryder for age discrimination, disability discrimination, and retaliation. The district court² granted summary judgment to Ryder. We affirm.

I. BACKGROUND

Ryder provides school bus transportation services for school districts. Liljedahl worked for Ryder and its predecessor for twenty-three years, the last eleven as a manager in the Oakdale, Minnesota, terminal. In August 1996, Dr. Nancy Nelson, Liljedahl's primary care physician, diagnosed Liljedahl with emphysema. In December 1996, Liljedahl was diagnosed with lung cancer. Later that month, Dr. John Shearen, Liljedahl's surgeon, removed Liljedahl's lymph nodes and half of her left lung during lung resection surgery. The cancer surgery was curative. Liljedahl was on paid medical leave from December 1996 to March 1997.

On February 19, 1997, Liljedahl wrote her supervisor, Bruce Dischinger (Dischinger), a hand-written note saying "I'm due back 3/3 `half time'—which in my mind means `as tolerated.'" She included with her letter a note dated February 17, 1997, from Dr. Nelson, which reads in full: "Ms. Liljedahl has been recuperating from surgery. I have recommended she return to work half-time on March 3." On February 20, 1997, Liljedahl submitted a "Request for Leave of Absence," listing her reason for leave as a "Thoracotomy for the removal of left upper lung." On April 2, 1997, Dr. Nelson completed Ryder's Family and Medical Leave Certificate, listing lung cancer as Liljedahl's diagnosis, stating "12-26-96" was when the condition commenced, and listing March 1997 as the probable duration of the condition. A section of the certificate entitled "Regimen of Treatment to be Prescribed" requested "a schedule of visits or treatment if it is medically necessary for the employee to be off work on an intermittent basis or to work less than the employee's normal schedule of hours per day or days per week." Responding to this request, Dr. Nelson listed "For Lung Resection Surgery [and] Recuperation."

From early April to June 1997, Ryder assigned Tom TerHorst to assist Liljedahl in the Oakdale terminal. Dischinger never asked Liljedahl about her need for an accommodation, never sought clarification of the February 17, 1997 doctor's note, and never sought additional medical documentation. On May 16, 1997, Liljedahl wrote a ten-paragraph memorandum to Dischinger responding to Dischinger's memoranda on work issues. In a paragraph discussing her hectic dispatch schedule, Liljedahl wrote the following statement: "I work between 9 and 12 hours a day now without coming in any earlier. There is enough experience between Greg and Bart to do the job. And, if I remember correctly, I still have not gotten full time plus overtime clearance from my doctor."

The Oakdale terminal's two largest customers, the North St. Paul School District (North St. Paul) and the St. Paul School District (St.Paul), made significant complaints about the Oakdale terminal for the 1996-1997 school year. On December 5, 1996, North St. Paul wrote Ryder regarding the seventeen most common problems. On June 21, 1997, St. Paul wrote Ryder complaining of poor service and stating the "level of service must significantly improve next school year or severe nonperformance consequences will occur." Based on the Oakdale terminal's unsatisfactory performance, St. Paul assessed the largest nonperformance penalty in its history against any terminal. In a July 17, 1997 memo to Liljedahl, Dischinger wrote: "We are out of time ... virtually all of your customers have expressed a serious service concern. We must do something about it now!"

Also in July 1997, Dischinger conducted an employee survey of the Oakdale terminal, which produced scores in five categories from 1.44 to 2.39 on a 4.0 scale (with the lowest scores for "Sensitivity to your needs," "Fairness" and "Overall Professionalism"). On August 5, 1997, Dischinger appraised Liljedahl's job performance and placed her on a ninety-day probation period to review her performance. He also sought a response by August 28, 1997. On August 27, 1997, Liljedahl responded by memorandum, which included the following statement: "You also say my physical status has nothing to do with how much I was able to do? I am still healing and am on pain medication. A person can run out of time as a Minnesota manager short of drivers, dispatching 3 to 5 hours a day and filling in where ever [sic] necessary to keep staff's work done." Based on Liljedahl's "defiant response," which indicated "she was not interested in working on any of the problems that [Dischinger] had outlined," Dischinger discharged Liljedahl on September 3, 1997.

On July 30, 1998, Liljedahl, with the assistance of her attorney, filed a charge against Ryder with the Minnesota Department of Human Rights (MDHR), alleging age discrimination, disability discrimination, and retaliation. The charge contended Ryder's "true motivation" for discharging Liljedahl was because "Ryder and Mr. Dischinger did not want the `liability' of a 58 year-old female cancer patient under its employ." The charge did not mention emphysema or breathing problems, but focused on cancer. On August 10, 1999, MDHR issued a no-cause determination.

On September 3, 1999, Liljedahl sued Ryder for age and disability discrimination, as well as retaliation, in violation of the Americans with Disabilities Act of 1990(ADA), the Age Discrimination in Employment Act of 1967, Title VII of the Civil Rights Act of 1964, and the Minnesota Human Rights Act (MHRA). Liljedahl's First Amended Complaint, dated January 4, 2000, did not mention emphysema or breathing problems, but focused on cancer. Like the MDHR charge, the complaint alleged Ryder "unlawfully terminated [Liljedahl] because [Ryder] did not want the liability of an old woman with cancer on its payroll." Under the disability count based on the MHRA, Liljedahl claimed her impairment "materially limited one or more of her major life activities, including, but not limited to, employment and recreational activities." Liljedahl later moved to file a Second Amended Complaint, dated January 11, 2002, which removed her federal claims and included new factual allegations: "Plaintiff had minor breathing problems and emphysema prior to being diagnosed with lung cancer in 1996. In December 1996, she had surgery for the cancer, which resulted in the surgical removal of nearly half of one of her lungs and an exacerbation of her symptoms resulting from the emphysema...." Liljedahl also claimed she had an impairment which materially limited the major life activities of "walking, sleeping and breathing."

Dr. Nelson testified in her deposition that Liljedahl's respiratory condition, a life-long impairment, is substantial, limits her exercise tolerance, and puts her at risk for repeated infections. Dr. Nelson said an inhaler helps Liljedahl's breathing, "but it does not, in no way, correct her breathing to normal, or reasonably close to it." Finally, Dr. Nelson testified Liljedahl is using maximal therapy for her breathing. Dr. Shearen testified in his deposition that Liljedahl's pre-operative breathing capacity was 54% of normal capacity for people the same age and size. He said Liljedahl's "breathing tests preoperatively define her breathing impairment," noting the only breathing capacity tests were conducted on December 20, 1996. He said surgery in this instance would not have improved Liljedahl's breathing capacity.

Dr. Nelson, who "never actually directly treated [Liljedahl] for cancer," testified Liljedahl's emphysema worsened because part of her lung was removed. The cancer surgeon, Dr. Shearen, stated the removal of half of Liljedahl's lung "wouldn't necessarily increase her symptoms of emphysema," but recognized removing half a lung could potentially make a breathing problem more pronounced. Without post-operative breathing tests, Dr. Shearen said it was impossible for him to say whether Liljedahl's breathing impairment had been altered by the surgery.

Liljedahl moved for partial summary judgment on two issues: (1) she is a qualified individual with a disability; and (2) Ryder had a duty to provide a reasonable accommodation. Ryder moved for summary judgment on all claims. The district court granted Ryder's motion for summary judgment and denied Liljedahl's motion for partial summary judgment. The district court determined Liljedahl's federal claims were time-barred and she failed to establish a prima facie case of age discrimination or retaliation. Addressing Liljedahl's disability claims under the MHRA, the court concluded Liljedahl was not disabled because of her cancer. Recognizing Liljedahl's new theory that her emphysema and respiratory problems were caused by the cancer surgery, the court held Liljedahl had no impairment materially limiting a major life activity, and that her respiratory problems were controlled by medication. The court determined that, even if Liljedahl had a respiratory disability, Liljedahl never gave Ryder notice of the respiratory disability or requested an accommodation for it. On appeal, Liljedahl has abandoned all claims except her MHRA disability discrimination claims.

II. DISCUSSION

The district court's grant of summary judgment to Ryder must be reviewed de novo. Mayer v. Nextel West Corp., 318 F.3d 803, 806 (8th Cir.2003). Summary judgment for Ryder is proper if the evidence, viewed in the...