McPherson v. O'Reilly Automotive, Inc.

• Decision Date: 02 July 2007
• Docket Number: No. 06-3846.,06-3846.
• Citation: 491 F.3d 726
• Parties: James McPHERSON, Plaintiff-Appellant, v. O'REILLY AUTOMOTIVE, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

491 F.3d 726

James McPHERSON, Plaintiff-Appellant, v. O'REILLY AUTOMOTIVE, INC., Defendant-Appellee.

No. 06-3846.

United States Court of Appeals, Eighth Circuit.

Submitted: June 13, 2007.

Filed: July 2, 2007.

Counsel who presented argument on behalf of the appellant was Steven Williby, Kansas City, MO.

Counsel who presented argument on behalf of the appellee was Larry M. Schumaker, Kansas City, MO.

Before MURPHY, BEAM, and SHEPHERD, Circuit Judges.

MURPHY, Circuit Judge.

James McPherson injured his back in September 2001 while working for O'Reilly Automotive, Inc. (O'Reilly) and subsequently underwent extended treatment and surgery. O'Reilly first placed him on leave but eventually terminated his employment in 2002, informing him that it had no open job position for someone with his medical restrictions. McPherson then commenced this action, claiming violations of the Americans with Disabilities Act of 1990. The district court¹ granted summary judgment to O'Reilly, and McPherson appeals. We affirm.

I.

O'Reilly is an auto parts retailer and wholesaler headquartered in Springfield, Missouri. James McPherson began working for O'Reilly in 1986 in a sales position and was later promoted to assistant manager of a store and in 1990 to territory assistant sales manager (TSM). The TSM position required McPherson to sell products and provide services to wholesale customers at their places of business and to conduct sales seminars for other employees. McPherson's typical day involved driving from O'Reilly's regional office to one of the stores in the greater Kansas City metropolitan area, where he would work for the rest of the day. On some days he would spend half the day at one store and the other half at another. A TSM is also required to perform some lifting of car parts weighing no more than five to ten pounds.

On September 20, 2001, McPherson injured his back on the job. He filled out a workers compensation report the next day but sought no medical attention until November 13, when he was seen by an occupational medicine specialist at O'Reilly's behest. McPherson continued working and seeing this specialist through the end of 2001. O'Reilly placed McPherson on a medical leave of absence beginning January 14, 2002. McPherson received a series of epidural injections in February and March 2002, and his physician told him on February 8 that he was not to return to work until medically authorized to do so. On March 12 his physician referred McPherson to a surgeon and again advised him not to go back to work until medically released. He saw the surgeon on April 17 and decided to have back surgery because he understood it would enable a quicker recovery from his condition.

O'Reilly placed McPherson on workers compensation leave on April 8 and reassigned his sales territory to other managers. Then on April 21, it promoted another employee to McPherson's TSM position. The parties agree that these actions complied with the Family and Medical Leave Act of 1993. McPherson testified that around this time, O'Reilly's regional sales manager Tom Bollinger told him that his job would be protected and that he could return to the same job after surgery and physical rehabilitation. McPherson further testified that he would not have undergone surgery if Bollinger had not made this representation.

McPherson's back surgery was performed on May 22, and he was not released to return to work in any capacity until July 22. After that date he would be able to return with significant physical restrictions. On September 27 a functional capacity evaluation was performed by an occupational therapist who concluded that McPherson could function in the Department of Labor's "heavy work" category. McPherson was given the following permanent work restrictions by his physician on October 8: no prolonged sitting or standing; no repetitive bending or stooping; and no lifting of more than 50 to 60 pounds occasionally. His physician also noted that McPherson appeared to be "appropriate for his prior job description."

After receiving the functional capacity evaluation and permanent work restrictions, O'Reilly offered McPherson a position at one of its stores as an installer service specialist (ISS). The ISS position requires a worker to stand 5 to 6 hours in an eight hour workday, to bend or stoop for 1 to 2 hours per day, and to lift and carry 51 to 75 pounds frequently. McPherson asked O'Reilly's regional manager, Buddy Ball, whether accommodations could be made to the job's physical duties. Ball answered that accommodations were possible, but no written agreement or memorandum was made on the topic.

McPherson's physician wrote a letter to O'Reilly on October 21, stating that he would not release McPherson to work as an ISS because of the job's physical demands. An administrative assistant at O'Reilly's regional office told McPherson that unless he was released to return to work without any limitations, there would be no job available for him. A benefits manager at O'Reilly, Shari Reaves, explained to McPherson that his TSM position had been filled and there were no available positions matching the restrictions laid out in his doctor's October 21 letter. McPherson told regional manager Ball that Tom Bollinger had said he could return to the TSM position. Ball said that it was his responsibility to make such a decision rather than Bollinger's. When McPherson returned to Bollinger to ask him about that, Bollinger told him, "Buddy [Ball] overrode my decision."

On November 11, O'Reilly sent McPherson a letter terminating his employment. The letter stated that an ISS position could not be offered him since his physician had not released him for it, and that "[c]onsidering the information provided by your physician, we do not have a position open at this time for which you qualify." O'Reilly benefits manager Reaves filled out a document entitled "Termination Report" on November 26, checking a box labeled, "Disability—Permanent and cannot return to work" and adding the handwritten notation: "Exhausted FMLA / Permanent restrictions / w/c injury."

McPherson disputes O'Reilly's position that there were no vacancies at this time for positions he could perform. In his deposition he testified that there were vacancies for positions as store manager, that he had seen postings for vacancies in O'Reilly's warehouse, and that an EEOC employee, Terri Wilke, had told him there were vacancies for store manager, assistant store manager, machine shop manager, product buyer, and inventory control. McPherson said that he had the necessary experience for all these managerial positions. He points to no evidence that he ever expressed an interest to O'Reilly in any of these positions, however. In reporting on her conversation with McPherson in October 2002, benefits manager Reaves declared that "it seemed clear that he did not want to return in any capacity other than the TSM job."

McPherson began a search for new employment in 2003. The Missouri Department of Rehabilitation put him in touch with Jewish Vocational Services (JVS), in July 2003. McPherson's vocational counselor at JVS was Colleen Prewett. With McPherson's authorization, Prewett called O'Reilly's offices in September 2003 to verify his employment information. She testified that when making such calls she would typically identify herself as a vocational counselor with JVS who was helping a client look for a new job, but she could not recall whether she specifically did so when calling O'Reilly. Because it was her first contact with O'Reilly, however, and she wanted to know what information it was sharing with McPherson's prospective employers, she "may not have been forthcoming" about her identity as McPherson's vocational counselor. Prewett testified that she spoke with a female in O'Reilly's human resources office. When she asked about McPherson's employment history with O'Reilly, the employee replied that he was "completely disabled" and that was the reason he had left his job. O'Reilly's policy regarding requests for references about former employees states that such information may be released "only with the team member's consent or to meet legal requirements."

During his search for employment, McPherson interviewed with Champion Chemicals in Clinton, Missouri. McPherson testified that the people there told him they liked his record, his performance, and "everything about him," but wanted to check his references. McPherson called Champion back several times over a two to three week period but was eventually told the position had gone to another applicant. McPherson also had numerous telephone interviews during his search, including one with Jiffy Lube. McPherson worked with JVS to try to find a job until November 2004, when he decided to discontinue the search and apply for social security disability benefits.

On July 5, 2003, McPherson filled out an EEOC intake questionnaire and filed his charge of discrimination on October 28, 2003.² The EEOC issued him a right to sue letter in 2005, and McPherson subsequently brought this action. He alleged that O'Reilly violated the Americans with Disabilities Act of 1990(ADA) in three ways: first, by terminating him instead of offering him vacant positions because it regarded him as disabled, 42 U.S.C. § 12112(a), second, by disclosing confidential medical information about him, id. § 12112(d)(3)-(4), and third, by retaliating against him for exercising his statutory rights. Id. § 12203(a). After discovery, O'Reilly successfully moved for summary judgment on all claims. The district court concluded that McPherson had not shown any genuine issue of material fact on whether O'Reilly regarded him as disabled and thus had not established a prima facie case of disability discrimination. It concluded proof was lacking that O'Reilly had...