Mole v. Buckhorn Rubber Products, Inc.

• Decision Date: 01 February 1999
• Docket Number: No. 98-1500,98-1500
• Citation: 165 F.3d 1212
• Parties: 8 A.D. Cases 1873, 14 NDLR P 139 Kathleen MOLE, Plaintiff - Appellant, v. BUCKHORN RUBBER PRODUCTS, INC., Defendant - Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1212

165 F.3d 1212

8 A.D. Cases 1873, 14 NDLR P 139

Kathleen MOLE, Plaintiff - Appellant, v. BUCKHORN RUBBER PRODUCTS, INC., Defendant - Appellee.

No. 98-1500.

United States Court of Appeals, Eighth Circuit.

Submitted Sept. 22, 1998.

Decided Feb. 1, 1999.

Roger G. Brown, Jefferson City, MO, argued (Keith W. Brunstrom, on the brief), for appellant.

Robert J. Valerian, Cleveland, OH, argued (Steven M. Moss, on the brief), for appellee.

BEFORE: BEAM, LAY, and LOKEN, Circuit Judges.

LOKEN, Circuit J.

Kathleen Mole commenced this action alleging that Buckhorn Rubber Products, Inc. ("Buckhorn"), violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 ("ADA"), and the Missouri Human Rights Act, Mo.Rev.Stat. § 213.055.1(1) ("MHRA"), when it fired her for persistent poor job performance despite knowledge of her disabilities, multiple sclerosis ("MS") and severe depression. The district court ¹ granted summary judgment dismissing these claims, concluding Mole failed to present sufficient evidence to establish two elements of a prima facie case of disability discrimination or a triable issue of pretext. Mole appeals. We review the grant of summary judgment de novo, viewing the record in the light most favorable to Mole, the non-moving party. See Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1315 (8th Cir.1996). We affirm.

Buckhorn hired Mole in 1982 as a clerk/typist in Hannibal, Missouri. In 1987, she was promoted to customer service coordinator and transferred with the Sales Customer Service Department to Ohio, where she later received another promotion. In 1990, Buckhorn relocated the Sales Customer Service Department back to the Hannibal facility, promoting Mole to senior customer service coordinator. Mole received excellent job performance reviews throughout this period.

Mole Develops Job Performance Problems. David Johnston became Mole's supervisor in April 1991. In her December 1991 written Performance Appraisal, Johnston rated Mole as "needing improvement" in four of ten performance categories, criticizing her for a negative attitude towards customers and for failing to provide leadership and direction to fellow employees. Mole rated her own performance as good, considering the division was short-staffed, but acknowledged that she needed to "handle stress better." Johnston met with Mole numerous times in 1992, sometimes in the company of Ronald Meyer, Buckhorn's industrial relations manager, to comment on her unsatisfactory performance. In late 1992, Johnston sent Mole a memo in which he noted "key mistakes in the past few months," criticized her failure to follow instructions, and warned her that a failure to improve could result in "appropriate disciplinary action." In early 1993, Buckhorn transferred some important customer accounts from Mole to the other customer service coordinator, Angela Dillman. Dillman testified that she discovered errors and heard customer complaints after taking over some of Mole's accounts. Buckhorn's receptionist testified that she received complaints from customers who asked to be transferred to someone other than Mole.

In June 1993, Johnston authored another written performance review, rating Mole as "needing improvement" in six categories, "marginal" in two, and "effective" in two. Johnston noted that Mole resisted change in the department, had a negative attitude with customers, and made errors. After stating that Mole was being demoted to customer service coordinator, the review concluded:

Kathy has been ill during the past eighteen months, and the extent to which her illness has contributed to her poor performance is not easily gauged. The timing of this review is such that Kathy has just returned to work from her illness. If her performance should significantly improve in the months following her return from this illness, I will gladly review her again in six to nine months.

Johnston prepared another written performance review in December 1993, rating Mole as "needing improvement" in six and "marginal" in four categories, and noting that she continued to have problems with lack of motivation, disorganized work space, and customer relations. Meyer added a handwritten comment at the end of this document: "Within the next 6 months we will determine whether Kathy will remain in her Customer Service position. Her performance must substantially improve immediately." Mole's written self-assessment stated that she had done the job to the best of her ability and commented, "I do not feel my having M/S should be held against me."

On February 10, 1994, Johnston met with Mole and delivered a memorandum detailing five instances of significant customer order errors and concluding: "In your last review you were told that you would have to improve in all aspects of the job, and to date I have not noted any such improvement. Continued lack of improvement will lead to termination."

Mole Develops MS and Depression. In April 1993, Mole began experiencing difficulty with her balance, memory, vision, and a weakened right leg. In early May, Meyer learned that Mole was suffering from headaches and dizziness. He referred her to a medical specialist and, when an initial appointment suggested a need for further testing, placed her on paid sick leave for that purpose. After Dr. Irving Asher diagnosed Mole as having MS, Buckhorn placed her on paid sick leave for over two weeks, and she was hospitalized and treated with steroids and anti-depressant medication. In June 1993, Dr. Asher examined Mole again and suggested she rest at home for two weeks to alleviate her heat sensitivity and fatigue. Buckhorn granted this request. Mole's depression fluctuated between August and October, while her physical condition remained stable until November, when she was again hospitalized.

On December 15, Johnston met with Mole to discuss her health and "glean an understanding of her condition." Mole said she was feeling fine and confirmed that her doctor had approved her return to work. She was nervous and cried through much of the meeting, particularly when her handling of customers was criticized. Mole returned to work but suffered a seizure on December 17 and was again hospitalized. Her physical condition had improved by early January 1994, and in March she had a "normal" exam, following which Dr. Asher called Meyer at Buckhorn and found him "very supportive." Meyer stated that Mole had "improved over the course of her treatment" and suggested another leave of absence, if needed. Dr. Asher did not suggest and Mole did not request a leave of absence.

Mole Is Terminated. On June 10, 1994, Johnston authored a Performance Update. He stated that Mole "is putting forth her very best effort to improve her performance [but] this improvement is inadequate." After outlining several costly customer order errors, Johnston recommended that Mole be terminated. On June 30, Johnston and Meyer met with Mole and delivered a two-week notice of termination. The notice advised, "The date of your termination will be July 14, 1994, and the last day of active employment will be today, June 30, 1994." That same day, Buckhorn's general manager sent Mole a letter explaining "the different insurance benefits and welfare plans you could be eligible for if you would need to go on to total disability." Mole met with Buckhorn officials on July 14. She asked to be accommodated with rest breaks, days off, and the addition of a third customer service coordinator. She presented a July 11 memorandum from Dr. Asher stating:

Ms. Mole has multiple sclerosis. I believe her inability to function adequately at work has been due to her illness. Multiple sclerosis will be a lifelong illness for her and will likely fluctuate considerably.

Buckhorn declined to reinstate her.

Mole commenced this action in October 1995, alleging that Buckhorn violated the ADA and the MHRA by refusing to accommodate her disability and terminating her. The ADA prohibits covered employers, such as Buckhorn, from "discriminat[ing] against a qualified individual with a disability because of the disability." 42 U.S.C. § 12112(a). A qualified individual with a disability is one "who, with or without reasonable accommodation, can perform the essential functions of the employment position." 42 U.S.C. § 12111(8). Disability discrimination is defined to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. § 12112(b)(5)(A).

To establish a prima facie case of disability discrimination under the ADA, Mole must show that at the time in question she was disabled, was qualified to perform the essential functions of her job with or without reasonable accommodation, and was terminated under circumstances that raise an inference of unlawful disability discrimination. See Price v. S-B Power Tool, 75 F.3d 362, 365 (8th Cir.), cert. denied, 519 U.S. 910, 117 S.Ct. 274, 136 L.Ed.2d 197 (1996). The same analysis applies to claims under the MHRA. See Mathews v. Trilolgy Communications, Inc., 143 F.3d 1160, 1164 n. 5 (8th Cir.1998).

The district court concluded that Mole failed to establish the second and third prongs of her prima facie case. ² She was not qualified to perform the essential functions of her job, the court explained, because "her problems in the position since 1991 were well-documented and affected the essential functions of the job," she "does not dispute that she made the errors or the significance of those errors," she "did not provide in a timely manner any suggested accommodations that would have cured the problems," and some of the accommodations she requested after termination were unreasonable. Mole's discharge did not give rise to an inference of disability discrimination, the court concluded, because her negative performance reviews began before Buckhorn knew she had MS and her assertion that Buckhorn fired her to reduce the...