Russell v. Tg Missouri Corp., 02-3273.

• Decision Date: 26 August 2003
• Docket Number: No. 02-3273.,02-3273.
• Parties: Taunya RUSSELL, Appellant, v. TG MISSOURI CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

340 F.3d 735

Taunya RUSSELL, Appellant, v. TG MISSOURI CORPORATION, Appellee.

No. 02-3273.

United States Court of Appeals, Eighth Circuit.

Submitted: April 18, 2003.

Filed: August 26, 2003.

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Lisa K. Lange, argued, Cape Girardeau, MO, for appellant.

John J. Gazzoli, argued, St. Louis, MO, for appellee.

Before BOWMAN, RICHARD S. ARNOLD, and BYE, Circuit Judges.

BOWMAN, Circuit Judge.

Taunya Russell appeals from a final order entered in the United States District Court¹ for the Eastern District of Missouri granting summary judgment in favor of her former employer, TG Missouri Corporation, on her claims pursuant to the Americans with Disabilities Act ("ADA") and Title VII of the Civil Rights Act of 1964 ("Title VII"). Russell v. TG Mo. Corp., No. 1:01CV72 (E.D.Mo. Aug. 9, 2002) (hereinafter "slip op."). For reversal, Russell argues that there are genuine issues of material fact on each of her claims and that TG Missouri is not entitled to judgment as a matter of law. For the reasons stated below, we affirm the order of the District Court.

I.

Jurisdiction was proper in the District Court based upon 28 U.S.C. § 1331. Jurisdiction is proper in this Court based upon 28 U.S.C. § 1291. The notice of appeal was timely filed pursuant to Fed. R.App. P. 4(a).

II.

The following summary of background facts is based upon the District Court's order, slip op. at 2-6, and the record on appeal. TG Missouri is a manufacturer of plastic automotive parts. Russell was employed by TG Missouri on a full-time basis from January 3, 1996, until her termination in October of 1999. At the time of her termination, she worked as the inspector of Line 3 of paint booth P4, where her duties included inspecting parts, packaging, assembling, and documenting defects.

Russell has been diagnosed with bipolar disorder. She began receiving psychiatric treatment for her condition in 1997. She alleges that the disorder causes her difficulty with many aspects of her day-to-day life, including social interaction, communication, maintaining relationships, eating, sleeping, and sexual functioning. Her psychological symptoms include depression, anger, and anxiety, and her physical symptoms include heart racing, sweating, and crying. Her symptoms are triggered by, among other things, stressful or unexpected situations. She takes numerous prescription medications to help relieve her symptoms.

On February 5, 1999, Russell took a thirty-day leave of absence under the Family and Medical Leave Act due to stress unrelated to her job. On March 5, 1999, she returned to work without limitations.

In August 1999, Russell was working twelve-hour shifts. At her request, Dr. Peter Moran, her physician, sent a letter to Michael Blaylock, her manager, requesting that her shifts be limited to eight hours per day.² TG Missouri complied with Dr Moran's request and adjusted her hours accordingly.

On September 6, 1999, Blaylock telephoned Dr. Moran's office to find out whether Russell was only limited to eight hours per day or whether she was also limited to forty hours per week. Blaylock was told by someone in the office (other than Dr. Moran) that the restriction referred only to the number of hours Russell could work per day, not per week.³ Although Blaylock informed Russell of this conversation,⁴ she did not follow up with Dr. Moran to have him request an additional forty-hour per week limitation.

On Friday, October 22, 1999, at approximately 8:15 a.m., Blaylock told Russell's immediate supervisor, Carla Robertson, that the workers on Line 3 would have to report to work the next day, Saturday, October 23, to clean. It was not unusual for TG Missouri employees to be required to clean on Saturdays, although they were usually notified the Wednesday or Thursday before. When Robertson informed Russell that she would have to work the next day, Russell became visibly upset. Russell alleges that she began experiencing an anxiety attack. Both she and Robertson believed that she, Russell, was the only one being required to work that Saturday, and she felt that she was being punished for requesting a workplace accommodation. It turned out that other employees from Line 3 and Line 2 were required to work that Saturday.⁵

At approximately 11:00 a.m. on Friday, October 22, Russell told Robertson that she needed to leave. Robertson replied that it would be considered an unscheduled absence if she did. Russell indicated that she was going to leave anyway and, shortly thereafter, left without permission. She did not state that it was medically necessary for her to leave or that she was having an anxiety attack. The next day, Saturday, October 23, Russell did not show up for work. When Russell showed up for work on Monday, October 25, she was informed that she had been terminated for leaving work early on Friday without permission and for refusing to work as scheduled on Saturday — actions considered to be job abandonment and insubordination.

On December 2, 1999, Russell submitted a charge of discrimination ("the administrative charge") to the Equal Employment Opportunity Commission ("EEOC") and the Missouri Commission on Human Rights ("MCHR"). See Appellant's Appendix at 284 (the administrative charge). On the first page of the administrative charge is a section bearing the printed instructions: "CAUSE OF DISCRIMINATION BASED ON (Check appropriate box(es)[) ]," followed by nine boxes labeled: "race," "color," "sex," "religion," "national origin," "retaliation," "age," "disability," and "other (specify)." The boxes labeled "sex" and "disability" have each been marked with an "X," but there is no mark in any of the other boxes, including the box labeled "retaliation." See id. The section immediately below contains the following printed instructions: "THE PARTICULARS ARE (If additional space is needed, attach extra sheet(s))." Typed in that section is the statement, among others: "I believe Respondent wanted to fire me because I could only work 8 hours a day, 5 days a week due to my condition." Id. at 285.

In the administrative proceedings, Russell maintained that TG Missouri treated two similarly-situated male employees more favorably than her. According to Russell, Lance Evans was not terminated when he left work early without permission; he was instead given a warning. Brad Drew was not terminated when he refused to work overtime after his regular shift; he was instead given a warning.

Russell received a notice of right to sue from the MCHR and filed the present action in the District Court. She alleged: (1) disability discrimination in violation of the ADA, (2) gender discrimination in violation of Title VII, and (3) retaliation in violation of the ADA. TG Missouri filed a motion for summary judgment. Upon review, the District Court concluded that there was no genuine issue of material fact and that TG Missouri was entitled to judgment as a matter of law. Regarding her disability discrimination claim, the District Court assumed, without deciding, that Russell's bipolar disorder was a disability within the meaning of the ADA. See slip op. at 10. However, the District Court concluded that Russell could not show that her termination was caused by her disability. The District Court reasoned that there was no genuine issue of fact as to whether TG Missouri's non-discriminatory reasons for discharging Russell (i.e., job abandonment and insubordination) were pretextual, whether similarly-situated employees had been treated more favorably, or whether she had ever requested an accommodation limiting her weekly work hours. See id. at 11-12. The District Court also held that Russell's sex discrimination claim failed as a matter of law notwithstanding her allegations of disparate treatment. See id. at 12-14. As to her retaliation claim, the District Court held that Russell had failed to exhaust her administrative remedies and therefore was barred as a matter of law from pursuing the claim. See id. at 14-16. The District Court granted summary judgment for TG Missouri, and Russell timely appealed.

III.

We review a grant of summary judgment de novo. The question before the District Court, and this Court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A. Disability discrimination

1. Failure to accommodate theory of liability

Russell first argues that the District Court erred in granting TG Missouri summary judgment on her disability discrimination claim. She begins with the premise that "[a]n employer commits unlawful discrimination under the ADA if the employer does not make reasonable accommodations to the known mental limitations of an otherwise qualified individual with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business." Brief for Appellant at 24 (citing Cannice v. Norwest Bank, 189 F.3d 723, 726 (8th Cir. 1999), cert. denied, 529 U.S. 1019, 120 S.Ct. 1421, 146 L.Ed.2d 313 (2000); Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944 (8th Cir.1999); 42 U.S.C. § 12112(B)(5)(A)). According to Russell, failure to accommodate is a "specifically prohibited form of unlawful disability discrimination under the ADA." Id. at 26. Therefore, she continues, TG Missouri's proffered nondiscriminatory reason for her termination is "completely irrelevant" to this aspect of her claim. Id. at 26-27. Russell contends that, when the evidence is viewed in the light most favorable to her, including all reasonable inferences which can be drawn in her favor, there are genuine issues of...