Perkins v. St. Louis County Water Co., 98-1903

• Decision Date: 10 November 1998
• Docket Number: No. 98-1903,98-1903
• Parties: 8 A.D. Cases 1345, 13 NDLR P 280 Eugene PERKINS, Appellant, v. ST. LOUIS COUNTY WATER COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 446

160 F.3d 446

8 A.D. Cases 1345, 13 NDLR P 280

Eugene PERKINS, Appellant, v. ST. LOUIS COUNTY WATER COMPANY, Appellee.

No. 98-1903.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 22, 1998.

Decided Nov. 10, 1998.

Clyde E. Craig, St. Louis, MO, argued, for appellant.

John B. Renick, St. Louis, MO, argued, for appellee.

Before HANSEN, BRIGHT, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Eugene Perkins worked for the St. Louis County Water Company in construction and maintenance for almost three years, and during that time he was repeatedly absent from work. Under St. Louis County's "progressive discipline policy" for addressing employee attendance deficiencies, a worker who is repeatedly absent is subject to verbal counseling, oral and written warnings, suspensions, and, ultimately, if the worker's attendance still shows no sign of improvement, termination of employment. Mr. Perkins was repeatedly counseled, was given numerous written warnings, and was suspended on three occasions for excessive absenteeism. Finally, he was fired when he failed to show up for work, and to notify his supervisor of his need to be absent, over a Memorial Day weekend.

Mr. Perkins sued, contending that he was fired in violation of the Americans with Disabilities Act (ADA), see 42 U.S.C. §§ 12101-12213, especially § 12112(a), and the Rehabilitation Act, see 29 U.S.C. §§ 701-797b, especially § 794(a), § 794(b)(1)(A). We refer in this opinion only to Mr. Perkins's ADA claim, but the legal principles applicable to it are equally applicable to his Rehabilitation Act claim. See Allison v. Dep't of Corrections, 94 F.3d 494, 497 (8th Cir.1996); see also 29 U.S.C. § 794(d). We therefore do not address his Rehabilitation Act claim separately.

The district court granted summary judgment for St. Louis County, ruling that because Mr. Perkins was unable to attend work on a reliable basis, which was one of the essential functions of his job, he was not a qualified individual under either the ADA or the Rehabilitation Act. Mr. Perkins appeals, and we affirm the judgment of the district court. ¹

I.

Mr. Perkins has Meniere's disease, a condition that causes occasional episodes of vertigo and vomiting. He also suffers from a permanent slight hearing loss, and his hearing worsens to some degree when he is in the midst of a Meniere's-related episode. Mr. Perkins first contends that two of his absences (including the final Memorial Day incident) were caused by Meniere's-related episodes, and that St. Louis County should have accommodated him by "excusing" those absences, that is, by not counting them against him in determining that he had exhausted the options under St. Louis County's progressive discipline policy and was thus subject to termination. In particular, Mr. Perkins asserts that he was absent over the Memorial Day weekend because of a Meniere's-related episode, and that he was unable to use the telephone to call his supervisor because his condition had affected his hearing. Mr. Perkins admits that none of his other, numerous absences from work was related to his disability.

To make out a prima facie case for a violation of the ADA, Mr. Perkins must show that he was disabled within the meaning of the statute. See Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1318 (8th Cir.1996). The ADA defines a disability as "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual." See 42 U.S.C. § 12102(2)(A). Mr. Perkins maintains that he was disabled because his Meniere's-related episodes interfered with his ability to work on two occasions. But to demonstrate that he was "substantially limit[ed]" in the major life activity of working, more is required: Mr. Perkins must show that his condition significantly restricted his ability to perform a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable skills and training. See 29 C.F.R. § 1630.2(j)(3)(i); see also Olson v. Dubuque Community Sch. Dist., 137 F.3d 609, 611-12 (8th Cir.1998).

We do not believe that Mr. Perkins has produced evidence from which a reasonable fact finder could conclude that Meniere's disease disabled him within the meaning of the ADA. During his three years of employment with St. Louis County, Mr. Perkins suffered only two Meniere's-related episodes: The first episode caused him to miss two weeks of work, and the second, which occurred almost a year later, caused him to miss three days. We believe that a medical condition that causes an individual to miss two and one-half weeks of work in a three-year period is not sufficient to render that individual disabled under the ADA. In short, we see no evidence that his disability rendered Mr. Perkins "unable to do [his] particular job, much less ... unable to do a broad range of jobs," Olson, 137 F.3d at 612. Nor has Mr. Perkins produced any evidence that the Meniere's-related episodes substantially limited any other major life activity of his.

We therefore hold that Mr. Perkins has not offered evidence sufficient to lead a reasonable fact finder to conclude that his Meniere's disease constituted a disability within the meaning of the ADA.

II.

Mr. Perkins also maintains that St. Louis County discriminated against him because of his permanent hearing loss. Hearing impairment, depending on its severity, can be a disability under the ADA. See 29 C.F.R. § 1630.2(i). To establish an ADA claim based on his hearing impairment, however, Mr. Perkins must produce evidence from which a reasonable fact finder could conclude that St. Louis County terminated him or discriminated against him in some other way because of his hearing loss, see Price v. S-B Power Tool, 75 F.3d 362, 365 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 274, 136 L.Ed.2d 197 (1996), and we believe that he has failed to do so.

We do not believe that the record could support a finding that Mr. Perkins's termination for excessive absenteeism was related to his permanent hearing loss. He concedes that he never missed work because of his hearing impairment. He asserts, however, that on one occasion (during the Memorial Day weekend already adverted to), he was unable, because of difficulties with his hearing, to use the telephone to alert his supervisor to his need to be absent and that the resulting unexcused absence caused his termination.

After carefully reviewing the record, we disagree. We believe that this claim is based on temporary, severe hearing difficulties that were directly related to his Meniere's disease (which we have already determined did not disable Mr. Perkins), rather than on his permanent hearing impairment. Under normal circumstances, Mr. Perkins is apparently able to understand others on the telephone despite his hearing impairment, as long as they speak slowly and loudly. In addition, while he has difficulty understanding strangers speaking on the telephone, it is uncontested that he did use the telephone on several occasions both at work and at home.

Mr. Perkins seems to admit that it was...