Pickens v. Soo Line Railroad Co.

• Decision Date: 08 January 2001
• Docket Number: No. 00-1497,00-1497
• Citation: 264 F.3d 773
• Parties: (8th Cir. 2001) DENNIS J. PICKENS, APPELLANT, v. SOO LINE RAILROAD COMPANY, DOING BUSINESS AS C.P. RAIL SYSTEMS, APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 773

264 F.3d 773 (8th Cir. 2001)

DENNIS J. PICKENS, APPELLANT, v. SOO LINE RAILROAD COMPANY, DOING BUSINESS AS C.P. RAIL SYSTEMS, APPELLEE.

No. 00-1497

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: January 8, 2001

Filed: August 30, 2001

Appeal from the United States District Court for the Southern District of Iowa. [Copyrighted Material Omitted] Before Hansen and Heaney, Circuit Judges, and Webber,¹ District Judge.

Hansen, Circuit Judge

Dennis Pickens appeals the district court's² grant of judgment as a matter of law in favor of his former employer, Soo Line Railroad (Soo Line), after a jury found in his favor in this employment discrimination case. Pickens contends Soo Line terminated his employment in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213 (1994), and the Iowa Civil Rights Act (ICRA), Iowa Code §§ 216.1-216.20 (1999), after he suffered a back injury. Pickens further asserts the district court erred by submitting only the ADA claim to the jury and by excluding all evidence related to Pickens' prior Federal Employees Liability Act (FELA) trial. We affirm.

I.

The Soo Line and its predecessors employed Pickens from 1973 until August 16, 1996, primarily as a railroad conductor. On October 14, 1992, Pickens was injured when a train's braking system malfunctioned. He sustained a herniated disc in his lower back. As a result of this injury and after an unsuccessful five-month trial work period, Pickens was unable to continue working for three years. During this extended period of not being able to work, Pickens received Railroad Retirement Board disability benefits. Pickens returned to work in October 1995, but because of medical restrictions limiting his work time to no more than an eight-hour day, he was unable to resume his duties as a conductor. Soo Line offered Pickens a switchman's position to accommodate his medical limitations. Pickens worked as a switchman for three days before concluding the job was too strenuous and refusing to continue working in the position. Because Pickens wished to return to his "road" position as a conductor, he requested that his physician lift his medical restriction to allow for a twelve-hour work day, four days per week--the schedule that the job required. Two months after returning to his duties as a full-time conductor, Pickens found that working four days per week was too strenuous, and he sought another medical restriction. Pickens' physician refused to comply with his request. Consequently, Pickens regularly made himself unavailable for work by exercising his right to "lay off" under the railroad's collective bargaining agreement.³

After he chose to lay off in the spring of 1996, Soo Line required Pickens to obtain a medical status report from his physician prior to returning to work. This was the railroad's policy; however, it was the first time Soo Line had required Pickens to procure a release. One of the questions included in the release asked Pickens' physician whether he was able to return to full-time duty. Although his physician determined Pickens to be incapable of full-time employment, Pickens requested that his physician falsify his condition by answering affirmatively. His physician acquiesced to Pickens' deception of the railroad.

Pickens continued his cyclical pattern of routinely laying off, obtaining a medical release, and returning to work when he chose. While waiting for clearance to return to work after a layoff in August 1996, Pickens wrote a letter to Soo Line's claims representative with copies sent to Soo Line's president and chief medical officer, expressing his frustration. He wrote in part: "I had my medical restrictions removed to get back to work before and I will do it again if this is required. I will totally disregard safety and common sense if this is required." (District Ct. Order at 6.) Concerned both with the possibility that Pickens might act on his threat and that Pickens had misrepresented the status of his health, Soo Line held a hearing pursuant to the collective bargaining agreement and subsequently terminated him on August 16, 1996.

Litigation between the parties began when Pickens sued Soo Line alleging claims under FELA, stemming from his October 1992 back injury. In that litigation, Pickens asserted his back injury forever precluded his return to work. At a trial held in March 1996, the jury found in Pickens ' favor and awarded him $50,000 in past and future pain and suffering, $65,188 in past earnings, $230,000 present value of lost future earnings, and $20,000 in disability damages. After his August 16, 1996, firing, Pickens filed the present suit, alleging that Soo Line had terminated him in violation of the ADA and the ICRA. He also asserted several contract and estoppel claims. Only the ADA issue was submitted to the jury, while the contract and estoppel claims were resolved through a contemporaneous bench trial.

Following the four-day jury trial, the jury found Soo Line's conduct violated the ADA and awarded Pickens $95,867.15 in past lost wages and benefits and $525,000 in past mental pain and suffering. At a hearing the day following the verdict, the district court reduced the past pain and suffering damages to $300,000 in order to comply with the statutory damages cap contained within the ADA. Soo Line then moved for judgment as a matter of law or alternatively for a new trial on all issues. The district court granted Soo Line's Rule 50(b) motion, finding as a matter of law that Pickens was not a person with a qualified disability and that at the time Soo Line fired him, he was neither willing nor able to perform the essential functions of his job, with or without accommodation. The district court further concluded that the estoppel claims failed because Pickens did not prove that Soo Line changed its position between the two trials to his detriment. Pickens now appeals.

II.

We review the district court's grant of judgment as a matter of law de novo. See Otting v. J.C. Penney Co., 223 F.3d 704, 711 (8th Cir. 2000). "[A] court should render judgment as a matter of law when 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 on that issue." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2109 (2000) (internal quotations omitted). In making our determination, we, like the district court, will view all the facts in the light most favorable to the nonmoving party and must refuse to make credibility determinations or weigh the evidence. Id. at 2110; Phillips v. Union Pac. R.R., 216 F.3d 703, 706 (8th Cir. 2000).

When there is no direct evidence of discrimination, discrimination claims are analyzed under the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Thus, Pickens has the initial burden of establishing a prima facie case of discrimination; if Soo Line offers a legitimate, nondiscriminatory explanation for Pickens' discharge, then he must show that the explanation is merely a pretext for discriminatory animus. See id. at 803-04; see also Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 931-32 (8th Cir. 2000) (applying burden-shifting analysis set forth in McDonnell Douglas and reversing the district court's denial of a motion for judgment as a matter of law). Because this case was fully tried on the merits, "[w]e need not review the adequacy of the evidence at each stage of the McDonnell Douglas analysis; rather, our review concentrates on whether the record supports the ultimate finding of discrimination." Cardenas v. AT & T, Corp., 245 F.3d 994 (8th Cir.2001) (internal quotations omitted).

In order to make out a case of discriminatory discharge under the ADA, Pickens must prove that (1) he is disabled within the meaning of the statute; (2) he is a qualified individual; and (3) that he was terminated because of his disability. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir.), cert. denied, 528 U.S. 818 (1999). A qualified individual is one who is able to perform, with or without accommodation, "the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). Pickens asserts that he is qualified to perform the essential functions of his job regardless of his excessive absences given the nature of the railroad's scheduling structure. Pickens contends that because the railroad allows an employee to "lay off" of working any day of his choosing, this procedure makes his use of the practice a nonissue. We disagree. This court has consistently held that "'regular and reliable attendance is a necessary element of most jobs.'" Greer v. Emerson Elec. Co., 185 F.3d 917, 921 (8th Cir. 1999) (quoting Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445 (8th Cir. 1998)); see Moore v. Payless Shoe Source, Inc., 187 F.3d 845, 848 (8th Cir.), cert. denied, 528 U.S. 1050 (1999). Even though the railroad's system of scheduling appears quite flexible, the railroad's policy requires regular, reliable attendance, and Pickens' conductor's job was full-time. Pickens' choice to lay off twenty-nine times from October 1995 to August 1996 is excessive and eviscerates any regularity in his attendance. "An employee who is unable to come to work on a regular basis [is] unable to satisfy any of the functions of the job in question, much less the essential ones." Moore, 187 F.3d at 848 (internal quotations omitted) (alteration in original).

Pickens' case is similar to Buckles v. First Data Res., Inc., 176 F.3d 1098 (8th Cir. 1999). In Buckles, a panel of this court reversed the district court's denial of judgment as a matter of law and remanded for entry of judgment in favor of the employer when an employee with acute sinusitis was chronically absent from his job. Id. at 1102. The employee contended that he was qualified to perform...