Shaver v. Independent Stave Co.

• Decision Date: 01 December 2003
• Docket Number: No. 03-1878.,03-1878.
• Citation: 350 F.3d 716
• Parties: John Christopher SHAVER, Appellant, v. INDEPENDENT STAVE COMPANY, doing business as Salem Wood Products Co., Inc.; Salem Wood Products Co., Appellees. Equal Employment Opportunity Commission; Epilepsy Foundation of Kansas and Western Missouri; Epilepsy Foundation of Minnesota, Amici on Behalf of Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

350 F.3d 716

John Christopher SHAVER, Appellant, v. INDEPENDENT STAVE COMPANY, doing business as Salem Wood Products Co., Inc.; Salem Wood Products Co., Appellees.

Equal Employment Opportunity Commission; Epilepsy Foundation of Kansas and Western Missouri; Epilepsy Foundation of Minnesota, Amici on Behalf of Appellant.

No. 03-1878.

United States Court of Appeals, Eighth Circuit.

Submitted: September 12, 2003.

Filed: December 1, 2003.

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Marie L. Gockel, argued, Kansas City, MO (Lynne Jaben Bratcher, on the brief), for appellant.

Joseph A. Seiner, argued, Washington, DC, for amicus.

Thomas M. Hanna, argued, St. Louis, MO, for appellee.

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and MELLOY, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

This is a harassment and retaliation case brought under the Americans with Disabilities Act (ADA), see 42 U.S.C. §§ 12101-12213, and the Missouri Human Rights Act (MHRA), see Mo.Rev.Stat. §§ 213.010-213.137, that comes to us on appeal from an order dismissing the plaintiff's claims on summary judgment. We affirm the judgment of the district court in part and reverse it in part.

Christopher Shaver has suffered from nocturnal epilepsy since he was a teenager. After an operation in which part of his brain was removed and replaced by a metal plate, he was able to get a job working at the timber mill of Salem Wood Products Company. After being fired, allegedly for insubordination, Mr. Shaver sued Salem under various theories. By the time that Salem moved for summary judgment, Mr. Shaver had abandoned most of his claims, but he continued to maintain that he had been unlawfully harassed as a result of his epilepsy and his cranial operation, that Salem had violated the anti-retaliation provisions of the ADA and the MHRA, and that Salem was liable to him under Missouri workers' compensation law. The district court ruled against Mr. Shaver on his ADA and MHRA claims and declined to exercise supplemental jurisdiction over the workers' compensation claim.

We review a district court's summary judgment order de novo. See Darby v. Bratch, 287 F.3d 673, 678 (8th Cir.2002). We resolve Mr. Shaver's MHRA claims on the same basis as his federal claims. See id. at 682.

I.

We have suggested in dicta that it might be possible to bring a claim for a hostile work environment under the ADA, see, e.g., Jeseritz v. Potter, 282 F.3d 542, 547 (8th Cir.2002), but we have never ruled directly on the matter. Today, for the reasons that follow, we join the other circuits that have decided the issue by holding that such claims are in fact actionable. Cf. Flowers v. Southern Reg'l Physician Servs., Inc., 247 F.3d 229, 232-35 (5th Cir.2001), Fox v. General Motors Corp., 247 F.3d 169, 175-77 (4th Cir.2001).

Even broad, remedial statutes such as the ADA do not give federal courts a license to create causes of action after the manner of the common law. See Alexander v. Sandoval, 532 U.S. 275, 286-87, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Rather, our rulings must be disciplined by the text of the statute itself. The ADA states that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). While the statute does not specifically mention hostile work environment, in construing a statute we must look at how its text was understood at the time that it was passed.

The drafters of the ADA borrowed the phrase "terms, conditions, and privileges of employment" directly from Title VII of the Civil Rights Act of 1964. Compare 42 U.S.C. § 12112(a) with 42 U.S.C. § 2000e-2(a)(1). As early as 1971, courts had construed the phrase in Title VII to create an action based on a hostile work environment, see, e.g., Rogers v. EEOC, 454 F.2d 234, 238-39 (5th Cir.1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972), and by the time that the ADA was passed in 1991, this interpretation was clearly established as the controlling federal law on the subject. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Thus, when Congress included the phrase "terms, conditions, and privileges of employment" in the ADA, it was using a legal term of art that prohibited a broad range of employment practices, including workplace harassment. Cf. Cannon v. University of Chicago, 441 U.S. 677, 696-98, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979).

In determining whether a hostile work environment claim has been made out under the ADA, we think it proper to turn to standards developed elsewhere in our anti-discrimination law, adapting them to the unique requirements of the ADA. To be entitled to relief, it seems to us that Mr. Shaver must show that he is a member of the class of people protected by the statute, that he was subject to unwelcome harassment, that the harassment resulted from his membership in the protected class, and that the harassment was severe enough to affect the terms, conditions, or privileges of his employment. Cf. Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906, 907-08 (8th Cir.2003).

The ADA's employment provisions protect people who are "qualified individual[s] with a disability." 42 U.S.C. §§ 12111(8), 12112(a). In this case, neither party disputes that Mr. Shaver was qualified for his job at Salem's lumber mill. Salem does argue, however, that Mr. Shaver is not "disabled" within the meaning of the statute. A disability is an "impairment that substantially limits one or more ... major life activities." See 42 U.S.C. § 12102(2)(A). Furthermore, one can be within the statute if one is regarded (accurately or inaccurately) as having such an impairment or if one has a record of such an impairment in the past. See 42 U.S.C. § 12102(2)(B)-(C).

Before his operation, it is undisputed that Mr. Shaver's epilepsy caused severe seizures of the kind and frequency that this court has held impair "major life activities" such as speaking, walking, or seeing. See Otting v. J.C. Penney Co., 223 F.3d 704, 710-11 (8th Cir.2000). He thus has a record of impairment. Our review of the record also persuades us that at least some of his co-workers regarded Mr. Shaver as "stupid" and "not playing with a full deck" because of his epilepsy and resulting operation. And, since thinking is a major life activity, see Brown v. Lester E. Cox Med. Ctrs., 286 F.3d 1040, 1044-45 (8th Cir.2002), we conclude as well that a jury could find that Mr. Shaver qualifies as disabled because he was regarded as disabled.

Our review of the record indicates that there is no real factual dispute about whether Mr. Shaver was harassed. (The severity and legal consequence of that harassment are separate questions that we deal with below.) There is ample evidence, for instance, that he was routinely referred to as "platehead." Salem argues that the harassment was not the result of his disability, claiming that the name "platehead" was linked to the physical fact that Mr. Shaver has a plate in his skull, rather than with any impairment as such. We think that this distinction may be too fine for us, but in any case the meaning of the statements (that is, what inference to draw from the words used) is properly a matter for the jury. There is certainly nothing in the record to suggest that those who called Mr. Shaver "platehead" made the distinction suggested by Salem. The distinction itself, moreover, may well be meaningless: Even if one calls a person "pegleg" because he has a peg leg rather than because he has trouble walking, it is nevertheless the case that the nickname was chosen because the person was disabled.

With the question of the effect of the harassment on the "terms, conditions, and privileges" of Mr. Shaver's employment we come to the heart of this case. In order to be actionable, harassment must be both subjectively hostile or abusive to the victim and "severe and pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). On the other hand, we have repeatedly emphasized that anti-discrimination laws do not create a general civility code. See, e.g., Mems v. City of St. Paul, Dep't of Fire & Safety Servs., 327 F.3d 771, 782 (8th Cir.2003). Conduct that is merely rude, abrasive, unkind, or insensitive does not come within the scope of the law.

Taking the evidence in the light most favorable to Mr. Shaver, we have little difficulty concluding that a jury could find that he found the harassment by his co-workers hostile or abusive. The more difficult question is whether the behavior fell within the elusive category of "objectively... offensive," see Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Mr. Shaver's co-workers referred to him as "platehead" over a period of about two years. Some of the co-workers were supervisors, and some were not. Some of the co-workers stopped using the name when Mr. Shaver asked them to, and others did not. Use of nicknames is widespread at the mill, and while this fact does not render the name applied to Mr. Shaver inoffensive, it might reduce its offensiveness. Several co-workers suggested that Mr. Shaver was stupid. On one occasion, a co-worker said that Mr. Shaver "pissed in his pants when the microwave was on," but this uglier statement seems to have occurred outside of Mr. Shaver's presence, a fact that lessens but does not undo its offensiveness.

Taken as a whole, we conclude that the verbal harassment here does not rise to the same level as that in cases where we have granted relief. For example, in Smith v. St. Louis Univ., 109 F.3d 1261, 1264-65 (8th Cir.1997), we allowed a suit to continue where the plaintiff had been subject to verbal abuse, but...