Pack v. Kmart Corp., 97-7120

• Decision Date: 04 February 1999
• Docket Number: No. 97-7120,97-7120
• Citation: 166 F.3d 1300
• Parties: 8 A.D. Cases 1880, 14 NDLR P 152, 1999 CJ C.A.R. 1133 Teresita PACK, Plaintiff-Appellant, v. KMART CORPORATION, a Michigan Corporation; Steve Nicholas, an individual, Defendants-Appellees. Equal Employment Opportunity Commission, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1300

166 F.3d 1300

8 A.D. Cases 1880, 14 NDLR P 152,

1999 CJ C.A.R. 1133

Teresita PACK, Plaintiff-Appellant, v. KMART CORPORATION, a Michigan Corporation; Steve Nicholas an individual, Defendants-Appellees Equal Employment Opportunity Commission, Amicus Curiae.

No. 97-7120.

United States Court of Appeals, Tenth Circuit.

Feb. 4, 1999.

Steven A. Novick, Tulsa, Oklahoma (Douglas L. Inhofe and Mark A. Waller, Inhofe Jorgenson & Balman, Tulsa, Oklahoma, on the briefs), for the appellant.

Jon E. Brightmire, Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa Oklahoma, (Kristen L. Brightmire, with him on the brief), for the appellee.

Geoffrey L. Carter, Attorney, United States Equal Employment Opportunity Commission, (C. Gregory Stewart, General Counsel, Phillip B. Sklover, Associate General Counsel, Carolyn L. Wheeler, Assistant General Counsel, with him on the brief), for amicus curiae United States Equal Employment Opportunity Commission.

Before BRORBY, BARRETT, and EBEL, Circuit Judges.

BARRETT, Senior Circuit Judge.

ORDER

Appellant's petition for rehearing is denied.

The suggestion for rehearing en banc was transmitted to all of the judges of the court who are in regular active service as required by Fed. R. App P. 35. As no member of the panel and no member in regular active service on the court requested that the court be polled, the suggestion is also denied.

However, in order to clarify this court's opinion filed on December 29, 1998, the original opinion is withdrawn. The court's clarified opinion is attached to this order and is filed on this date.

Teresita Pack (Pack) appeals the district court's grant of judgment as a matter of law, pursuant to Fed.R.Civ.P. 50, in favor of Kmart Corporation (Kmart) on her Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., claim. ¹ For the following reasons, we affirm.

Background

In 1976, Pack began her employment with Kmart in Muskogee, Oklahoma, as a dishwasher in the cafeteria. Over the next 18 years, she worked in various positions throughout the store with an excellent record. In 1987, Pack transferred to a pharmacy technician position. In late 1993, Pack began seeing her family physician, Dr. Kuykendall, for stress-related physical and emotional problems. Dr. Kuykendall in turn referred her to Dr. Koduri, a psychiatrist, who diagnosed Pack with major depression, moderate to severe, on July 8, 1994. (App. Vol. II at 529-30.)

Also in late 1993, Pack's performance at work began to decline. She made technical errors in the pharmacy, including mislabeling prescriptions and incorrectly entering prescription data into the pharmacy computer. On June 22, 1994, Pack took a medical leave of absence from work until August 8, 1994. (App. Vol. II at 500.) On August 12, 1994, Pack received her annual evaluation, which was an unsatisfactory rating. Id. at 499. Her unsatisfactory rating was based on her errors in the pharmacy and poor concentration. Id. On September 9, 1994, Pack took a second medical leave of absence at the recommendation of Dr. Koduri. Id. at 501. Her leave was extended until January 5, 1995, at which time she returned to work with a note from Dr. Koduri restricting her to 20 hours her first week, with no restrictions thereafter. ² Id. at 502. On January 11, 1995, Dr. Koduri recommended restricting Pack's hours to 32 hours per week for the next two weeks. Id. at 503. Upon her return, Pack continued to make the same type of prescription errors. On February 2, 1995, Kmart discharged Pack based on her continued errors as a pharmacy technician. See (App. Vol. I at 154.)

On December 11, 1996, Pack filed a complaint against Kmart alleging, inter alia, that Kmart violated the ADA when it terminated her employment on February 2, 1995. (Appellee's Supp.App. at 4.) Pack alleged that she had a "nervous breakdown" in May, 1994 after which she requested a transfer as an accommodation of her disability ³ and that Kmart failed to transfer her out of her pharmacy technician position or provide other reasonable accommodation. Id. See (App. Vol. I at 12.)

On September 17, 1997, after the close of all evidence, the district court granted Kmart's oral Rule 50 motion for judgment as a matter of law. (App. Vol. II at 489.) The district court found that "periodic sleep deprivation" and "the inability to concentrate," as set forth, were not major life activities covered by the ADA. Id. The district court also found that: the evidence in this case showed Pack suffered from "periodic sleep deprivation on occasion," id.; her evidence of her inability to concentrate was "almost exclusively limited to job performance in a specific job as a pharmacy technician and the evidence does not show that [it] interferes with other aspects of her life ...," id.; and even assuming sleep and concentration are major life activities, Pack "in this case has not demonstrated that her impairment of depression substantially limits either her concentration or her ability to sleep," id. at 490. The district court determined that:

based on this record there is insufficient evidence to show an inability to perform the major life activities of sleeping and concentration. Plaintiff has offered evidence that her sleep has been disrupted on occasion, but it was not shown that it was permanent. I believe the evidence, at best, shows it was on a sporadic basis. Plaintiff has further not offered any evidence that her depression has prevented her from performing totally either sleep or concentration and, in fact, the evidence is to the contrary that the plaintiff has concentrated in other areas of her life outside of her employment in the pharmacy at Kmart, and further that there is certainly evidence that she is able to sleep even though there may be--the sleep may be disrupted occasionally.

Id. at 490-91.

On appeal, Pack contends that the district court erred: (1) in determining that sleep and concentration are not major life activities, and (2) in concluding that reasonable jurors could not find her depression substantially limited her major life activities of sleep and concentration.

We review the district court's grant of a motion for judgment as a matter of law de novo, applying the same standard as the district court. Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442, 1450 (10th Cir.1997) (citations and quotations omitted). Judgment as a matter of law is appropriate "[i]f during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party...." Fed.R.Civ.P. 50(a)(1). "[A] court may grant the motion only if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party's position." Davis v. United States Postal Serv., 142 F.3d 1334, 1339 (10th Cir.1998) (internal quotation omitted.) On review, we examine the evidence in the light most favorable to Pack, extending to her the benefit of all reasonable inferences. Id.

Discussion

The ADA prohibits discrimination "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). See Bolton v. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir.1994) (quoting 42 U.S.C. § 12112(a)), cert. denied, 513 U.S. 1152, 115 S.Ct. 1104, 130 L.Ed.2d 1071 (1995). Discrimination under the ADA includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless ... the accommodation would impose an undue hardship...." 42 U.S.C. § 12112(b)(5)(A). A "qualified individual with a disability" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). See White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995) (quoting 42 U.S.C. § 12111(8)).

To establish a claim under the ADA, Pack must show that: (1) she is a disabled person within the meaning of the ADA; (2) she is qualified, i.e., able to perform the essential functions of the job, with or without reasonable accommodation (which she must describe); and (3) Kmart discriminated against her in its employment decision (failure to transfer) because of her alleged disability. ⁴ See Siemon v. AT & T Corp., 117 F.3d 1173, 1175 (10th Cir.1997); White, 45 F.3d at 360-61.

The ADA defines a "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). The statutory requirement that disability determinations be made "with respect to the individual," contemplates an individualized, a case-by-case determination of whether a given impairment substantially limits a major life activity of the individual. Sutton v. United Air Lines, 130 F.3d 893, 897-98 (10th Cir.1997) (collecting cases), cert. granted, --- U.S. ----, 119 S.Ct. 790, 142 L.Ed.2d 653 (1999).

Pack alleged she was "disabled" within the meaning of subparagraph (A) because her depression is a mental impairment that substantially limits her major life activities of sleeping and concentration. Therefore, Pack was required to establish (1) that her depression is a "physical or mental impairment;" and (2) if her depression is an impairment, that it "substantially limits one or more of [her] major life activities." See 42 U.S.C. § 12102(2)(A).

In its motion for judgment as a matter of law, Kmart conceded that depression is a mental impairment. (App. Vol. II at 375.) Therefore, for the purposes of this appeal, we assume that Pack's...