Price v. S-B Power Tool

Decision Date30 January 1996
Docket NumberS-B,No. 95-2075,95-2075
Citation75 F.3d 362
Parties5 A.D. Cases 277, 14 A.D.D. 31, 7 NDLR P 313 Laurina PRICE, Plaintiff/Appellant, v.POWER TOOL, also known as Skil Corporation, a division of Emerson Electric Company, Defendant/Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Larry J. Steele, Walnut Ridge, AR, argued for appellant.

Counsel who presented argument on behalf of the appellee was Robin Shively, Little Rock, AR, argued for appellee (Russell Gunter, on brief).

Before MAGILL, BRIGHT, and MURPHY, Circuit Judges.

DIANA E. MURPHY, Circuit Judge.

Laurina Price appeals from a judgment dismissing her employment discrimination claim brought under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101-12213, and from the denial of her motion for reconsideration. 1 Her complaint alleged that S-B Power Tool (Skil) 2 terminated her employment because she suffers from epilepsy. The district court 3 granted summary judgement to Skil after determining that Price had failed to establish a prima facie case and had not shown that Skil's proffered legitimate nondiscriminatory reason was pretextual. We affirm.

The background facts are not in dispute. In 1984 Price was hired as an assembler by Skil, which manufactures handheld power tools. She continued working at that job for more than eight years, except for a brief period of time when she was classified as a line inspector. The record indicates that Price suffers from epilepsy or a seizure disorder and that Skil was aware of her condition. Skil does not dispute that Price was able to perform her assembly job well on the days that she reported to work.

Price had attendance problems throughout her employment at Skil and had received a number of verbal and written warnings as a result. She was discharged on April 19, 1993, after failing to report to work on April 12 and 13 after she had been given formal written warnings on March 1 and January 11. At the time of her termination she was informed that the reason for the action was her excessive absences.

Skil's attendance policy requires that an employee's absentee rate not exceed three percent. Generally, an employee who violates the policy receives a verbal warning for the first offense, a written warning for the second offense, and termination for the third offense, but the policy provides that discharge is permissible after an initial verbal warning.

Skil determines an employee's absentee rate by dividing the number of unscheduled job absences by the number of days worked in a rolling twelve month period. The calculation does not include long term absences after the first four days, declared bad weather days, scheduled absence for vacation, scheduled absence for holidays, approved leaves of absence, or absences of less than a full day.

Skil has a practice of granting leaves of absence, including medical leaves of absence, to any employee who requests them. Skil had encouraged Price to take leaves of absence when necessary and had never denied her request for one. Price was aware of this policy and had taken leaves of absence for medical, personal, and pregnancy reasons. During the year prior to her dismissal, she took maternity leave from November 11, 1991 to June 28, 1992, personal leave unrelated to her epilepsy from September 16 to 21, 1992, and medical leave (presumably for her epilepsy) from October 6 to 27, 1992 and from November 30, 1992 to January 4, 1993. These approved leaves were not counted against her in the calculation of her absentee rate. The plant was also shut down several times during the year prior to her termination: June 29 to July 10, October 1 to 2, November 23 to 27, December 28, 1992 to January 4, 1993, January 20 to 29, February 15 to 26, and March 22 to 26, 1993.

During the twelve month period before her termination, Price's attendance record was poor and she received a series of warnings. After her return from a seven month pregnancy leave, and not counting scheduled absences, she was absent from work without approval on July 30, August 11, August 24, August 25, and September 11. At this point her absentee rate exceeded three percent, and Price was given a verbal warning. After she missed work on November 9 and 16, 1992, she was given another verbal warning about her attendance. In spite of the verbal warnings, Price missed work on January 11, 1993, raising her absentee rate from 3.7 percent to 4.6 percent. At that time she was issued a written warning that her attendance level was unacceptable. She missed another day of work on February 1, 1993, and a second written warning was issued on March 1, warning her that she would be terminated if her absenteeism rate did not fall below three percent.

At the time of the second written warning on March 1, Price's supervisor instructed her to call in to arrange for a leave of absence if she was going to miss any more days because she would be terminated unless her absenteeism rate decreased. The next month Price failed to report to work on April 13 and 14, 1993, and she did not contact her supervisor to arrange for a leave of absence. She was terminated shortly thereafter.

Many of Price's absences were not attributable to her seizure disorder. For example, her absences on April 13 and 14 were caused by stomach cramps unrelated to her disability. 4 Price concedes that at least two of the remaining ten absences were for care of her infant and one was for attending a funeral. Presumably the remaining absences were related to her epilepsy.

On appeal Price claims that summary judgment was inappropriate because there was sufficient evidence to establish a prima facie case of employment discrimination and create an issue of fact whether Skil's claim that she was fired for absenteeism was pretext.

Summary judgment is appropriate if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). All evidence and inferences must be viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The non-moving party, however, may not rest upon mere denials or allegations in the pleadings, but must set forth specific facts sufficient to raise a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). We review a grant of summary judgment de novo. Crawford v. Runyon, 37 F.3d 1338, 1340 (8th Cir.1994).

The ADA prohibits employment discrimination "against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). A plaintiff may use the burden-shifting framework identified in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), to prove a claim of intentional discrimination. This method of proof requires a plaintiff to establish her ability to prove a prima facie case. In the absence of an explanation from the employer, this creates a rebuttable presumption of discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). The burden of production then shifts to the employer to come forward with a legitimate, nondiscriminatory reason for its actions. Id. Finally, the burden shifts back to the plaintiff to prove that the defendant's proffered reason is pretextual and that intentional discrimination was the true reason for the defendant's actions. See Hicks, 509 U.S. at ----, 113 S.Ct. at 2747.

To establish a prima facie case under the ADA, a plaintiff must show that she is a disabled person within the meaning of the ADA, that she is qualified to perform the essential functions of the job (either with or without reasonable accommodation), and that she has suffered an adverse employment action under circumstances from which an inference of unlawful discrimination arises. Benson v. Northwest Airlines, Inc., 62 F.3d...

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