Nuzum v. Ozark Automotive Distributors

• Decision Date: 27 December 2005
• Docket Number: No. 04-2850.,04-2850.
• Parties: Steven NUZUM, Sr., Plaintiff-Appellant, v. OZARK AUTOMOTIVE DISTRIBUTORS, INC., doing business as O'Reilly Auto Parts, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

432 F.3d 839

Steven NUZUM, Sr., Plaintiff-Appellant, v. OZARK AUTOMOTIVE DISTRIBUTORS, INC., doing business as O'Reilly Auto Parts, Defendant-Appellee.

No. 04-2850.

United States Court of Appeals, Eighth Circuit.

Submitted: March 18, 2005.

Filed: December 27, 2005.

COPYRIGHT MATERIAL OMITTED

Jill M. Zwagerman, argued, West Des Moines, IA (Mark D. Sherinian, on the brief), for appellant.

Nathan J. Overberg, argued, Des Moines, IA (Elizabeth Gregg Kennedy, on the brief), for appellee.

Before WOLLMAN, JOHN R. GIBSON, and COLLOTON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

The question in this case is whether Steven Nuzum, Sr., has an impairment that substantially limits a major life activity, thus entitling him to the protections of the Americans with Disabilities Act, known as the "ADA," 42 U.S.C. § 12101-12213. Nuzum appeals from the district court's¹ entry of summary judgment against him on his ADA claim against his former employer, Ozark Automobile Distributors, Inc., which does business under the name "O'Reilly Auto Parts." We hold that Nuzum failed to show his impairment — tendinitis of his left elbow — resulted in a substantial limitation on any major life activity; accordingly, we affirm the judgment of the district court.

I.

Nuzum worked for Ozark as an order-picker, collecting auto parts from a warehouse to be distributed to retail stores and manually loading "totes" full of parts onto a conveyor belt. His job required him to lift as much as 60 pounds at a time. He hurt his elbow while lifting a heavy auto starter at work on about May 1, 2000. The pain continued, and on June 8, 2000 he visited a doctor, who diagnosed him with tendinitis. The doctor sent him to physical therapy and told him to avoid lifting, pushing, or pulling more than fifteen pounds with his left hand, which is his dominant hand. Over the next two years, he pursued medical treatment and remedies, and his condition fluctuated. As his injury waxed and waned, he asked for modification of his duties at work and received temporary assignments that did not require him to lift as much as usual.

On April 2, 2002, Nuzum's doctor pronounced him recovered to the maximum extent that could be expected. The doctor issued permanent medical restrictions: Nuzum was limited to lifting ten pounds constantly, twenty pounds frequently, and forty pounds occasionally. At Nuzum's deposition he described his impairment as follows:

Right now, I still don't mow the lawn. To push a lawn mower I cannot do. Some household chores can be too strenuous to be lifting certain items. Even a basketful of laundry can hurt. . . . I don't do it . . . .

Well, there's some things I don't do as much of, and that's just the normal little things I've always done, work on my car and my sons' cars.

. . .

I've been [coaching baseball, football, and basketball] for about 11 or 12 years, coaching year-round, and I don't think the past couple years I've been as effective as a coach because I've been unable to have any hands-on and demonstrate certain abilities of things that the kids need to know, because I can't throw a baseball like I used to, I can't throw a football, I can't shoot a basketball like I used to.

. . .

Like I miss, hugging my wife is different, can't pull her as tight, and so there's things that have changed, yeah.

The doctor who conducted an independent medical examination of Nuzum recounted that Nuzum's sleep was disturbed by rolling onto his elbow while asleep; Nuzum reported sleeping about two and a half hours at a time, for a total of four to five hours' sleep per night.

Nuzum and Ozark agree that the order picker job required Nuzum to lift up to sixty pounds and was therefore not within his now-restricted capabilities. Because Nuzum was not expected to improve, Ozark was no longer willing to allow Nuzum to do the modified jobs it had offered him while he was convalescing. Ozark offered him a part-time security guard position at a lower pay rate, which Nuzum declined. Ozark eventually offered Nuzum three choices: voluntary resignation, application for twelve weeks of Family and Medical Leave Act leave, or two weeks' time to look for work within Ozark compatible with his restrictions. Nuzum chose the latter option, but he was not able to find another job at Ozark within two weeks. At the end of the period, Ozark terminated his employment.

Nuzum brought this action under the ADA and the Iowa Civil Rights Act, Iowa Code § 216, alleging that he was disabled and that Ozark had failed to accommodate his disability. The district court entered summary judgment against him. Nuzum v. Ozark Auto. Distrib., Inc., 320 F.Supp.2d 852 (S.D.Iowa 2004).

II.

Summary judgment should be entered only if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. F.R. Civ. P. 56(c). We review de novo the district court's entry of summary judgment. Brunko v. Mercy Hosp., 260 F.3d 939, 941 (8th Cir.2001).

Title I of the ADA² prohibits discrimination by a covered employer "against a qualified individual with a disability because of the disability." 42 U.S.C. § 12112(a) (2000). An employer can discriminate by failing to make reasonable accommodation to the known limitations of an employee, 42 U.S.C. § 12112(b)(5)(A), which is the kind of discrimination Nuzum alleges. An individual does not prove that he or she has a disability simply by showing an impairment that makes it impossible to do his or her particular job without accommodation. See, e.g., Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 201, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). Rather, establishing "disability" is a significant hurdle that can prevent a person who was denied a job because of an impairment from being covered by the ADA. E.g., Sutton v. United Air Lines, Inc., 527 U.S. 471, 476, 494, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (employer refused to offer plaintiffs jobs because of myopia, yet plaintiffs were not "disabled"); Shipley v. City of Univ. City, 195 F.3d 1020, 1023 (8th Cir.1999) (plaintiff not disabled although impairments prevented him from being able to perform former job as firefighter).

The principal meaning of "disability" consists of two parts: the individual must have (1) "a physical or mental impairment" that (2) "substantially limits one or more major life activities" of the individual. 42 U.S.C. § 12102(2).³ In this case, there is no doubt that Nuzum suffers from a physical impairment. The disputed questions are (1) whether the impairment has affected a major life activity and (2) whether that effect is a "substantial limitation." § 12102(2)(A).

A.

"Major life activity" has proven to be an elusive concept that has engendered a good deal of litigation. The EEOC definition⁴ includes a disparate range of activities from the elemental to the complex: "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i) (2002). The EEOC definition includes some of the most elemental bodily, motor, and mental functions, such as breathing, seeing, and learning. At the middle level of complexity, the EEOC definition of "major life activity" includes some tasks that require the ability to perform a set of basic motor functions, such as "caring for oneself," which might include walking to the bathtub, lifting oneself into the water, reaching to wash one's hair, etc. Finally, at the high end of complexity, the EEOC definition includes "major life activities" that require the ability to do entire sets of middle-level tasks. For instance, "working" includes the ability to do the component tasks of "a class of jobs or a broad range of jobs in various classes." Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 949 (8th Cir.1999); 29 C.F.R. § 1630.2(j)(3)(i). Similarly, in Williams, the Supreme Court interpreted the major life activity of "performing manual tasks" to include ability to do a particular set of middle-level tasks, to wit, the "variety of tasks central to most people's daily lives." 534 U.S. at 200, 122 S.Ct. 681.

The Supreme Court has interpreted "major" as meaning of "comparative importance," Bragdon v. Abbott, 524 U.S. 624, 638, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998); see also Williams, 534 U.S. at 197, 122 S.Ct. 681, so that inability to do an activity of little importance cannot establish disability.

Nuzum lists a number of household chores and recreational activities that he cannot do or cannot do as well, as much, or as long as he used to. In light of Williams, we regard the ability to perform "manual tasks" as encompassing the ability to perform a particular set of tasks — "the variety of tasks central to most people's daily lives," 534 U.S. at 200, 122 S.Ct. 681, rather than considering each individual task as a discrete major life activity. Thus, we ask not whether Nuzum can work on his car or mow his lawn, as he argues he cannot, but whether his overall ability to do the manual tasks central to most people's lives is substantially limited. See Philip v. Ford Motor Co., 328 F.3d 1020, 1025 (8th Cir.2003) ("The type of evidence most relevant to establishing a substantial limitation in the major life activity of performing manual tasks, includes, for example, an individual's ability to do household chores, bathe, brush one's teeth, prepare meals, do laundry, etc."). Whether the individual can work on cars is one small part of a big inquiry that asks what manual tasks most people do and what manual tasks the ADA plaintiff can do. Even though throwing is recreational rather than a "task," we have grouped limits on recreational activities together with limits on home or personal maintenance activities involving a similar degree of importance in daily life for purposes of the Williams analysis. See Philip, 328 F.3d at 1025 (...