Willnerd v. First Nat. Nebraska, Inc.

• Decision Date: 13 March 2009
• Docket Number: No. 07-3316.,07-3316.
• Citation: 558 F.3d 770
• Parties: Jeffrey WILLNERD, Plaintiff-Appellant, v. FIRST NATIONAL NEBRASKA, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

558 F.3d 770

Jeffrey WILLNERD, Plaintiff-Appellant, v. FIRST NATIONAL NEBRASKA, INC., Defendant-Appellee.

No. 07-3316.

United States Court of Appeals, Eighth Circuit.

Submitted: March 26, 2008.

Filed: March 13, 2009.

Douglas Joseph Peterson, argued, Lincoln, NE, for appellant.

Robert F. Rossiter, Jr., argued, Sherman P. Willis, on the brief, Omaha, NE, for appellee.

Before RILEY, JOHN R. GIBSON, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Jeffrey Willnerd appeals the district court's adverse grant of summary judgment on his claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213. Willnerd suffers from a voice condition that limits his ability to speak in a normal or controlled tone, periodically causes his voice to cut out completely, and requires him to put forth considerable exertion when speaking. Defendant First National of Nebraska, Inc. ("First National"), a multi-branch bank located in Nebraska, terminated him from a loan officer/sales representative position that required substantial interaction with the public. First National subsequently failed to rehire Willnerd after he applied for several positions through an internal rehiring program.

Willnerd argues these actions were adverse employment actions motived by discriminatory animus. First National asserts there was no discriminatory animus and characterizes Willnerd's termination as an economically motivated reduction in force. First National also characterizes the failure to rehire Willnerd as based on Willnerd's qualifications and the relative merits of different job applicants. Questions of material fact exist as to the veracity of First National's proffered reasons for terminating Willnerd, its reasons for not rehiring him through the internal rehiring program, and the ultimate question of discrimination. Because reasonable jurors could resolve these outstanding questions in Willnerd's favor and conclude he is entitled to relief on his claims, we reverse.

I. Background

Willnerd began working at a bank in Beatrice, Nebraska in 1982. His initial duties "included a little bit of everything," but he was primarily responsible for real estate loans and some commercial and installment lending. In early 1983, First National, through a subsidiary, acquired the branch where Willnerd worked. Willnerd then worked for First National at the Beatrice branch for approximately twenty years until his termination in September 2003.

In his job as Loan Officer/Sales Representative, Willnerd solicited and prepared installment, consumer, and home-equity loan applications. He also sold credit cards and insurance products and underwrote credit. In addition, he served as the head of the branch's real estate department from about 1983 to 1993. According to Willnerd, he would occasionally close the bank and fill in for the branch president, Larry Keslar, when Keslar was absent. Starting in 1999, Willnerd also served as the branch's representative for Investment One, an investment firm affiliated with First National. Willnerd stopped his work for Investment One in 2001 because First National wanted the Investment One position to be full-time, and he did not want to give up his banking duties.

In 1999 Willnerd began noticing a gradually worsening speech limitation. The ailment baffled his doctors. As noted above, Willnerd's voice would cut out and return, and it took considerable exertion for Willnerd to speak. By 2001, his voice was essentially limited to a whisper. Although Willnerd's position required substantial interaction with the public, he neither requested an accommodation nor sought a change of duties prior to his termination. Further, based on a comparison of numerical rankings he received during performance reviews over the years in question, and based on his loan productivity, his health condition did not adversely affect his job performance.¹

Willnerd's coworkers were aware of his difficulty with speaking, and at least one coworker stated in a deposition that other coworkers had made fun of Willnerd's condition. Keslar remembered talking about Willnerd's voice with a supervisor from Omaha, Christopher Kisicki, during Kisicki's visits to Beatrice. Keslar also stated that he had spoken with Willnerd, Willnerd's coworkers, and bank customers about Willnerd's voice condition. Kisicki stated in his deposition that he was concerned about how customers might view Willnerd. Also, a higher-ranking supervisor from Omaha, David Ulferts, was aware of Willnerd's conspicuous condition because Ulferts met with Willnerd in Beatrice on at least two occasions after the onset of Willnerd's condition.

Willnerd's condition eluded diagnosis as of September 2003 when First National terminated him from his position. In November 2003, during a time when Willnerd continued to receive pay while seeking a different position with First National, physicians at the Mayo Clinic diagnosed Willnerd with the rare neurological voice disorder, hyperkinetic dysarthia. They prescribed a course of treatment that included Botox injections every three months. Later, the physicians altered their diagnosis, and in June 2004, Willnerd underwent surgery. These treatments ultimately failed to provide a substantial improvement in Willnerd's condition.

First National asserts that during the same general time frame as the onset and worsening of Willnerd's voice condition, 1999 to 2003, overall performance at the Beatrice branch was unacceptable. First National claims it recognized a need to increase income or reduce expenses at the Beatrice branch. In fact, it is undisputed that, prior to 2002, First National began a restructuring process in which it removed certain functions from several smaller branches and centralized these functions in Omaha. Underwriting functions were among those First National moved to Omaha. As such, some aspects of Willnerd's duties moved from Beatrice to a central office. Willnerd does not allege that the Beatrice branch was the only location from which First National removed functions. He also does not allege that this process comprised an adverse action or served as evidence of discriminatory intent.

In February 2002, Kisicki and Ulferts met with Keslar, Willnerd, and several other employees at the Beatrice branch: Jim Spangler, Assistant Branch Manager; Tamara Weers, Mortgage Loan Officer; and two personal bankers. First National describes the meeting generally as a peptalk and strategy session to suggest ways to improve the cross-selling of services and to promote the generation of business through various methods, including increased referrals of existing customers for multiple lines of business. Ulferts and Kisicki stated in their depositions that concern about under-performance by the personal bankers was the primary impetus for the February 2002 meeting.

Notwithstanding First National's characterization of the meeting, it is undisputed that Willnerd alone received a specific production quota following the meeting. No other employees received such a quota, and Willnerd characterizes the quota as an impossible-to-meet goal established to guarantee his failure. Specifically, Ulferts, Kisicki, and Keslar told Willnerd to increase his overall annual volume of loans generated by one hundred percent, from $2 million to $4 million. Ulferts stated that it would have been impossible to achieve this goal solely through consumer loans or installment loans and that Willnerd would have needed to generate most of this increase through mortgage-related loans. From 2000 through 2005, however, total home-equity loan generation for the entire Beatrice branch ranged from $2.2 million to $3.2 million per year. Also from about 2002 onward, the branch operated under a policy of having personnel refer home-equity borrowers to Weers, who served as the branch's mortgage specialist and reported directly to Omaha. As such, Willnerd's quota not only required him to double his annual generation, it required him to single-handedly outperform the entire branch's mortgage-lending volume at a level the branch ultimately failed to achieve at any time prior to or following his termination. Further, given the policy regarding Weers, First National expected Willnerd to achieve this quota without the assistance of referrals from other personnel.

In May 2002, First National changed Spangler's position from Assistant Branch Manager to a newly created position, Consumer Bank Sales Representative. Ulferts stated that for a branch the size of the Beatrice branch, with employees having a relatively long average tenure, the position of Assistant Manager was unnecessary. Ulferts also stated that, prior to the change, he was not sure what Spangler's job entailed and that he intended the move to allow Spangler to generate more business for the branch. In his new position, Spangler's written job description was identical to Willnerd's. Ulferts stated that after Spangler's reassignment, the primary function for Willnerd and Spangler was "to be out there trying to develop as much loan activity as possible." According to Spangler, after the reassignment, he "basically had the same title and responsibilities as . . . Willnerd." Spangler did have some additional duties regarding the maintenance of deposit accounts, but Spangler stated this work was a small part of his job that he normally would perform when the personal bankers were busy. Spangler and Willnerd's base salaries were roughly equivalent. Following the change and through the time of Willnerd's termination, Spangler's loan production was inferior to Willnerd's. Also, Spangler's ratio of salary to loan production was less favorable than Willnerd's.

In May 2003, Ulferts and Keslar met with Willnerd and told Willnerd he had ninety days to increase production and improve his "overall proactive sales effort." Ulferts and Keslar did not meet with Spangler or the personal bankers or give them ultimatums regarding...