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Cases highlighted in blue are linked to the actual decision in Findlaw

Return to Selected Americans With Disabilities Act/504 Cases Court's Index

E.E.O.C. v. Wal-Mart Stores, Inc., 477 F.3d 561, (2/2007) The Equal Employment Opportunity Commission (EEOC) brought this action against Wal-Mart Stores, Inc. ("Wal-Mart"), alleging that Wal-Mart violated the  Americans with Disabilities Act (ADA). The EEOC contends that Wal-Mart improperly refused to hire Steven Bradley because of mobility limitations caused by cerebral palsy. The district court granted Wal-Mart's motion for summary judgment, concluding that (1) Bradley's impairment rendered him unqualified for the positions of greeter and cashier and that (2) insufficient evidence existed from which a reasonable factfinder could conclude that Wal-Mart's reasons for not hiring Bradley were pretextual. We hold that material facts remain in dispute and therefore reverse.

Chalfant v. Titan Distribution, Inc., 475 F.3d 982, (1/2007) A jury found that Titan Distribution, Inc. (“Titan”) discriminated against Robert Wayne Chalfant based on Chalfant's disability and awarded him $60,000 in back pay and $100,000 in punitive damages. The district court then awarded Chalfant $18,750 in front pay and denied Titan's post-trial motions. Titan appeals. we affirm.

Pittari v. American Eagle Airlines, Inc., 468 F.3d 1056 (11/2006) Restrictions based upon the recommendations of physicians are not based upon myths or stereotypes about the disabled and thus do not demonstrate a perception of disability. Breitkreutz, 450 F.3d at 784. In this case, the decision to temporarily restrict Pittari from safety sensitive duties was based upon the results of two MicroCog screening tests and upon the recommendations of Dr. Moreault, the independent psychologist who interpreted Pittari's MicroCogs. On the record before us, there is insufficient evidence to indicate American Eagle regarded Pittari as disabled in the major life activity of working. We therefore reverse the district court's denial of American Eagle's motion for judgment as a matter of law.

Didier v. Schwan Food Co., 465 F.3d 838 (10/2006) We commend Didier for having the fortitude to adapt to the effects of an unfortunate on-the-job injury, and to learn to do things with a broken arm and with his non-dominant left hand. However, we simply cannot find that his current limitations render him "disabled" within the meaning of the ADA. Therefore we affirm the district court.

Thompson v. Bi-State Development Agency, 463 F.3d 821 (9/2006) Even assuming Bi-State had done something wrong in assessing discipline against Thompson, Thompson too quickly jumped to the conclusion that Bi-State was attempting to make his working conditions intolerable. Thompson never gave Bi-State and opportunity to work out the alleged problem. Thus, Thompson was not constructively discharged and is unable to make out a prima facie case of discrimination under the ADA. The district court properly granted summary judgment on this claim.

Klingler v. Director, Dept. of Revenue, State of Mo., 455 F.3d 888 (7/2006) The disabled people who filed this lawsuit have moved for reconsideration of part of our opinion in Klingler v. Director, Dep't of Revenue, 433 F.3d 1078 (2006) Klingler III). The plaintiffs contend that our decision that sovereign immunity prohibits the collection of monetary damages from Missouri must be revisited in light of the Supreme Court's recent decision in United States v. Georgia, 126 S. Ct. 877 (2006). In this supplement to our opinion in Klingler III, we consider the plaintiffs' argument but conclude that Georgia does not alter the outcome of this case.

Wojewski v. Rapid City Regional Hosp., Inc., 450 F.3d 338 (6/2006)During the pendency of this appeal, Dr. Wojewski died. His widow, Sara Wojewski, has been substituted as appellant. Both parties moved to dismiss as moot the portion of the appeal pertaining to the claim under Title III of the ADA because Title III only provides injunctive relief, which Dr. Wojewski's death renders impossible. Appellant argues that RCRH exercised a heightened level of control over Dr. Wojewski to such an extent that he was an employee for ADA purposes. Appellant contends that the terms of the 2003 Letter of Agreement subjected Dr. Wojewski to more control by RCRH than most doctors and perhaps rendered him the most controlled doctor in America. Applying the relevant tests to these facts, we hold the 2003 Letter of Agreement did not convert the relationship between RCRH and Dr. Wojewski into that of employer and employee. Dr. Wojewski performed highly skilled surgical work, leased his own office space, scheduled his operating room time, employed and paid his own staff, billed his patients directly, did not receive any social security or other benefits from RCRH, and did not receive a form W-2 or 1099 from RCRH. The district court correctly concluded that Dr. Wojewski was an independent contractor.

Breitkreutz v. Cambrex Charles City, Inc., 450 F.3d 780 (5/2006) As we pointed out in Webner v. Titan Distribution, Inc., 267 F.3d 828, 834 (8th Cir. 2001): “[A] lifting restriction standing alone is insufficient to demonstrate that [an employee is] substantially limited in the life activity of working, [but] the inability to lift heavy objects can translate across a broad spectrum of physically demanding jobs.” Breitkreutz was terminated because of the company's misconception that his limitations prohibited him from performing any job in the organization, not because of the 50- or 75-pound lifting restriction that the medical reports indicated was required. It is for the jury to determine whether the work restrictions imposed by examining physicians substantially limited an employee's ability to work. The matter should be remanded to the district court with directions to permit the case to go to the jury pursuant to the decisions of the United States Supreme Court and this court.

Mershon v. St. Louis University, 442 F.3d 1069 (4/2006) filed suit against the University and its trustees, asserting discrimination on the basis of his disability in the failure to accommodate him while he was a student and retaliation for expelling him from campus after he complained of the failure to accommodate. Mershon complains that the University stopped providing accommodations sometime in 2000 and that this resulted in several incomplete grades in courses that he does not identify and for reasons not clearly articulated. Again, even accepting his conclusory allegations as true, Mershon's lack of specificity is an obstacle to determining whether he requested and was denied reasonable accommodations. "A plaintiff may not merely point to unsupported self-serving allegations, but must substantiate his allegations with sufficient probative evidence that would permit a finding in his favor." Bass v. SBC Communications, Inc., 418 F.3d 870, 872-73 (8th Cir. 2005). The record also indicates that Mershon never completed his graduate school application, he lacked undergraduate course work preparation, and his overall academic performance was not up to the standard necessary for admission into the graduate school. "When the accommodation involves an academic decision, 'courts should show great respect for the faculty's professional judgment.'" Amir, 184 F.3dat 1028 (quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985)). See Falcone, 388 F.3d at 659 ("'We will not invade a university's province concerning academic matters in the absence of compelling evidence that the academic policy is a pretext for [disability] discrimination.'") (quoting Amir, 184 F.3d at 1029, and alteration in original). Mershon has not demonstrated that he was otherwise qualified, with reasonable specific accommodations, to meet the prerequisites for admission into the graduate school program.

Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894 (3/2006) Dr Pepper reasonably perceived itself caught between federal regulations under the Occupational Safety and Health Administration and federal law under the ADA, and made a culpable, but not malicious or reckless, decision based upon safety concerns. Although these reasons are not enough to escape liability under the ADA, they do not constitute the type of malicious intent or reckless indifference required to support an award of punitive damages.

Samuels v. Kansas City Missouri School Dist., 437 F.3d 797 (2/2006) Samuels failed to present evidence of analogous limitations imposed upon her employment opportunities because of her alleged impairments and disabilities. We are unpersuaded by Samuels's reference to a case remarkably distinguishable from her own. Evidence of general temporary work restrictions, without more, is insufficient to constitute a disability within the meaning of the ADA. See Brunko v. Mercy Hosp., 260 F.3d 939, 941 (8th Cir. 2001).

Battle v. United Parcel Service, Inc., 438 F.3d 856 (2/2006) As the essential functions of Battle's job included having the cognitive ability to concentrate, memorize, and recall, and Battle and his physicians admitted that he could not perform these essential functions when he initially sought return to work, the district court did not err in granting summary judgment to UPS on this issue.

Klingler v. Director, Dept. of Revenue, State of Mo., 433 F.3d 1078 (1/2006) This is our third pass at this case, which requires us to decide whether the State of Missouri violated the American with Disabilities Act (ADA) by charging an annual fee for the use of windshield placards that allow disabled people to park in reserved spaces. The plaintiffs, disabled persons who have purchased the placards, claim that the fee is a discriminatory surcharge prohibited by the ADA and its regulations. Missouri has now abandoned its constitutional challenge, leaving us with only one issue to resolve, namely, whether Missouri's collection of the annual fee for the parking placards is a discriminatory surcharge. We conclude that it is and affirm.

Nuzum v. Ozark Automotive Distributors, Inc., 432 F.3d 839 (12/2005) The question in this case is whether Steven Nuzum, Sr., has an impairment that substantially limits a major life activity, thus entitling him to the protections of the Americans with Disabilities Act, known as the "ADA," 42 U.S.C. § 12101-12213. Nuzum appeals from the district court's entry of summary judgment against him on his ADA claim against his former employer, Ozark Automobile Distributors, Inc., which does business under the name "O'Reilly Auto Parts." We hold that Nuzum failed to show his impairment--tendinitis of his left elbow--resulted in a substantial limitation on any major life activity; accordingly, we affirm the judgment of the district court.

Baucom v. Holiday Companies, Inc., 428 F.3d 764 (11/2005) Baucom alleges that he is disabled because he suffers from a back impairment and a heart condition. However, Baucom's heart condition is not a disability because Baucom fails to cite what, if any, major life activity is substantially or materially impaired as the result of this infirmity. See Weber v. Strippit, Inc., 186 F.3d 907, 914-15 (8th Cir. 1999) (stating that a failure to "present sufficient evidence to establish the nature, duration, and long-term impact" of a heart condition does not constitute a disability). Nor does Baucom's back impairment, which precludes him from lifting items over twenty pounds, amount to an actionable disability. In Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1207 (8th Cir. 1997), we failed to recognize a purported disability under the ADA and MHRA where the plaintiff was restricted from lifting objects over twenty-five pounds; see also Aucutt v. Six Flags Over Mid-Am., Inc., 85 F.3d 1311, 1318-19 (8th Cir. 1996) (finding no disability where plaintiff was restricted from lifting objects over twenty-five pounds). Therefore, because Baucom's medically-imposed lifting restriction is five pounds less than a similar restriction that we have held does not constitute a qualifying disability, Baucom has failed to demonstrate that he is disabled under either the ADA or MHRA. As such, the majority's decision to affirm the district court's grant of summary judgment on this claim was also proper.

Simpson v. Des Moines Water Works, 425 F.3d 538 (10/2005) Even assuming that Simpson can make out a weak prima facie case, he fails to rebut the legitimate, non-discriminatory reasons for the adverse employment actions advanced by the Water Works. Henderson, 403 F.3d at 1034. The Water Works presents facts, which Simpson does not dispute, supporting its claim that Simpson's four suspensions were the result of, respectively: (1) his unexcused absences from work; (2) his misuse of sick leave; (3) his leaving work early without supervisor approval; and (4) the findings of the investigation into a co-worker's allegations of sexual harassment. The Water Works also presented undisputed facts that it terminated Simpson for driving a company vehicle while he should have known that he did not have a valid driver's license and for failing a second drug test. Although Simpson claims that each of these reasons are a pretext for disability discrimination, he fails to point to specific facts which indicate, in any way, that the adverse employment actions were based on anything other than the proffered reasons.

Burger v. Bloomberg, 418 F.3d 882 (8/2005) Tracy Burger (Burger), as personal representative of Anthony King's (King) estate, appeals the district court's adverse grant of summary judgment. After King died while in the custody of the South Dakota Department of Corrections (DOC), Burger sued the DOC, certain DOC officials, the Sioux Valley Hospital Association, and two medical professionals, claiming violations of section 504 of the Rehabilitation Act (Rehab Act). Burger based her claim on allegations of inadequate medical care for King's diabetes.Having conducted a de novo review of the record, see Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000), we agree with two other circuits that have recently concluded a lawsuit under the Rehab Act or the Americans with Disabilities Act (ADA) cannot be based on medical treatment decisions, see, e.g., Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir. 2005) (Rehab Act, like ADA, was never intended to apply to decisions involving medical treatment); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (inmate's claims under Rehab Act and ADA were properly dismissed for failure to state claim as they were based on medical treatment decisions). Cf. Monahan v. Nebraska, 687 F.2d 1164, 1170-71 (8th Cir. 1982) ("We do not read § 504 as creating general tort liability for educational malpractice . . . .").

Bass v. SBC Communications, Inc.,418 F.3d 870 (8/2005.) See Gilmore v. AT&T, 319 F.3d 1042, 1047 (8th Cir. 2003) (an ADA "plaintiff who has sworn to his inability to work must 'reconcile [these] seemingly contradictory statements'"). Based upon our review of the record, Bass's evidence did not establish that he was able to perform the essential functions of his job. Consequently, he failed to establish a prima facie case under the ADA.

Bill M. ex rel. William M. v. Nebraska Dept. of Health and Human Services Finance and Support, 408 F.3d 1096 (5/2005) We conclude that Alsbrook has been modified by Lane to the extent that a discrete application of Title II abrogation-related to claims of denial of access to the courts-has been deemed by the Court to constitute a proper exercise of Congress' power. Other applications of Title II abrogation, like the one at issue here, continue to be governed by Alsbrook The denial of Nebraska's motion to dismiss based on sovereign immunity with respect to Plaintiffs' Title II claim is reversed, and the case is remanded to the district court with direction to dismiss the Title II claim against Nebraska.

Voeltz v. Arctic Cat, Inc., 406 F.3d 1047 (5/2005) Where "reinstatement is impractical or impossible," a district court may enteran order of front pay to fully compensate the successful plaintiff who has lost his job because of an ADA violation. Id. (quoting E.E.O.C. v. HBE Corp., 135 F.3d 543, 555 (8th Cir. 1998)). But "[i]n fashioning equitable relief, the district court . . . may not base its decision on factual findings that conflict with the jury's findings." Salitros v. Chrysler Corp., 306 F.3d 562, 573 (8th Cir. 2002). Here, as the District Court acknowledged, the jury found that Arctic Cat would have made the same employment decisions even if it had not considered Voeltz's MS. In these circumstances, where reinstatement was not just "impractical or impossible" but could not have been ordered as a matter of law because of the jury's findings that Voeltz would not have been working at Arctic Cat regardless of his disability, Voeltz is not entitled to front pay as an alternative to reinstatement. In sum, the judgment of the District Court is vacated to the extent it awards actual damages and front-pay damages to Voeltz. The only money damages to which Voeltz may be entitled are nominal damages on the reasonable-accommodation verdict. We remand for entry of judgment consistent with this opinion. We leave to the District Court the matter of revising the award of attorney fees to more accurately reflect Voeltz's limited success on the merits.

Wenzel v. Missouri-American Water Co., 404 F.3d 1038 (4/2005) The record shows Missouri-American placed Wenzel on medical leave, believing he was unqualified for his job, not that he was disabled for a broad range of jobs. Employers are free to make decisions based upon mistaken evaluations, "except to the extent that those judgments involve intentional discrimination." Edmund v. MidAmerican Energy Co., 299 F.3d 679, 685-86 (8th Cir. 2002). The purpose of the ADA was to combat "'archaic attitudes,' erroneous perceptions, and myths" that disadvantage persons regarded as having a disability. Wooten, 58 F.3d at 386, quoting School Bd. of Nassau County v. Arline, 480 U.S. 273, 279 (1987). Wenzel fails to demonstrate that Missouri-American regarded him as having a disability.

Henderson v. Ford Motor Co. 403 F.3d 1026 (4/2005) The long and short of this case is that Henderson was terminated, after a long period of NWA medical leave, for failing to return to the place of employment for a medical evaluation by a Ford physician. Henderson has no evidence that Ford's current reason for dismissing her was pretextual or that her previous protected activities were causally connected to her dismissal

Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040 (2/2005) Contrary to Kratzer's assertion, the breakdown in the interactive process was due to her failure to provide an updated evaluation, not Rockwell's refusal to provide an accommodation. The "predicate requirement" triggering the interactive process is the employee's request for the accommodation. A mere assertion that an accommodation needed is insufficient; the employee must inform the employer of the accommodation needed.

Strate v. Midwest Bankcentre, Inc. 398 F.3d 1011 (2/2005) In view of the evidence establishing a close temporal proximity between the birth of Strate's disabled child and her termination, combined with the evidence indicating that she maintained a stellar employment record at the Bank over an eleven-year period leading up to the child's birth and was objectively qualified for the new the VP of Customer Support position but was dismissed from the start as a nonviable candidate, we hold that a reasonable fact finder could conclude that Strate's association with her disabled newborn child was a motivating factor in the decision to terminate her. Insofar as the district court's summary judgment order is contrary to our holding, it is reversed.

Knutson v. Ag Processing, Inc., 394 F.3d 1047 (1/2005)That Ag Processing may have removed him from the boiler operator job based on a misperception about whether his medical restrictions allowed him to perform that particular job does not establish that Knutson was perceived as "substantially limited" in the life activity of "working," and thus "disabled" within the meaning of the ADA. See Cooper, 246 F.3d at 1088 (finding insufficient evidence to prove disability where employee was reassigned despite clearance from her physicians to return to work without restriction). An employer is "free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job." Sutton, 527 U.S. at 490-91 (emphasisin original). Ag Processing removed Knutson from his boiler operator position after he complained that it was painful for him to perform one responsibility associated with that particular job. Under the governing precedents, we find that there was insufficient evidence that the company regarded Knutson as unable to perform a class of jobs or a broad range of jobs, and we therefore conclude that the verdict cannot stand.

Genthe v. Lincoln 383 F.3d 713 (9/2004) To survive Quebecor's post-trial motion, Genthe must have introduced evidence from which the jury could determine 1) that he was regarded as having an impairment that limited a major life activity, 2) that he was a qualified individual, and 3) that he was not promoted because he was regarded as having an impairment that limited a major life activity. Longen v. Waterous Co., 347 F.3d 685, 688 (8th Cir. 2003). The district court held that there was insufficient evidence to support the jury's finding that he was regarded as having such an impairment or that he was passed over for promotion because of that perception. Affirmed.

Kammueller v. Loomis, Fargo & Co., 383 F.3d 779 (8/2004) (State claim only - no ADA nor 504) Plaintiff-Appellant, Mac Kammueller, appeals from a Motion for Summary Judgment granted in favor of Defendant-Appellee, Loomis, Fargo & Co. ("Loomis"), on his reasonable accomodation and disability discrimination claims under the Minnesota Human Rights Act ("MHRA"). Kammueller, who worked for Loomis for thirty-one years until his discharge in 2002, has polycystic kidney disease ("PKD"). Kammueller's PKD caused renal failure in 1995 and forced him to submit to three-and-a-half hours of dialysis three days each week. We find that, as a matter of law, Kammueller is disabled under the MHRA. Additionally, we hold that there is a genuine issue of material fact as to whether Kammueller was qualified to perform the essential functions of his job with a reasonable accommodation and whether his termination was because of his disability. Accordingly, we reverse.

Ristrom v. Asbestos Workers Local 34 Joint Apprentice Committee, 370 F.3d 763 (6/2004) Ristrom has not shown he is unable to learn; he simply could not pass a few courses in the third year of an advanced apprenticeship program. This does not prove he has an ADA-qualifying disability. Human intellect, talents and industry simply are not uniform. Strive as we might, we cannot learn every skill in life. Inadequate performance in certain life endeavors does not necessarily reflect any disability in learning.

Klingler v. Director, Dept. of Revenue, State of Missouri, 366 F.3d 614, (5/2004) In Missouri, physically disabled people who pay a $2.00 annual fee to the state revenue department may obtain permanent removable windshield placards authorizing them to use reserved accessible parking spaces. The plaintiffs, a class of all who have purchased, or will purchase, such placards, sought a declaration that the charge of a fee for the placards violates Title II of the Americans With Disabilities Act. We have held that "the extension of Title II of the ADA to the states was not a proper exercise of Congress's power under Section 5 of the Fourteenth Amendment." Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (en banc). The plaintiffs concede that, but they contend that Title II, as applied to the Director, is a constitutional exercise of Congress's Article I power to "regulate Commerce ... among the several States," The mere fact that $2.00 paid to a state government for a placard might otherwise have been spent in a manner that affected interstate commerce is too attenuated to justify the inference that the $2.00 fee itself "substantially affects" interstate commerce in a manner justifying federal regulation. we reverse the district court's grant of the plaintiffs' motion for summary judgment, and its award of declaratory and injunctive relief

Murphey v. City of Minneapolis, 358 F.3d 1074 (2/2004) we conclude that there is no inconsistency between Murphey's successful application for and receipt of PERA disability benefits and his ADA claim that he could perform the essential functions of his job, with or without reasonable accommodation. Thus, we hold the district court erred in applying Cleveland to dispose of Murphey's ADA claim.

Peebles v. Potter, 354 F.3d 761 (1/2004) The removal letter stated that, under applicable Postal Service guidelines, employees on leave without pay status in Excess of one year could be separated unless there was cause to expect the employee would return within a reasonable time after the one year. Stating there was no reason to expect Peebles' return, the Postal Service ended the employment relationship. Retaliatory intent is the centerpiece of retaliation claims and, thus, McDonnell Douglas is utilized to show this intent where no direct evidence exists. See Amir, 184 F.3d at 1025-26. Even assuming Peebles did establish a weak prima facie case of retaliation, he has offered no evidence of pretext in spite of a quite obvious nonretaliatory reason for the discharge. On these facts, we conclude summary judgment was appropriate. See Reeves, 530 U.S. at 148.

Epps v. City of Pine Lawn, 353 F.3d 588 (12/2003) We hold that the district court properly granted summary judgment to Pine Lawn because Epps failed to establish that Pine Lawn perceived him to be disabled within the meaning of the ADA or MHRA. Pine Lawn concluded that Epps could not perform the particular job of a Pine Lawn police officer. This, however, is insufficient to establish an ADA or MHRA claim. "The inability to perform a single, particular job does not constitute a substantial limitation on the major life activity of working." 29 C.F.R. § 1630.2(j)(3)(i). "There is a distinction between being regarded as an individual unqualified for a particular job because of a limiting physical impairment and being regarded as 'disabled' within the meaning of the ADA." Conant, 271 F.3d at 785. "Accordingly, an employer is free to decide that . . . some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job."

Neudecker v. Boisclair Corp., 351 F.3d 361 (12/ 2003) elements of hostile-work-environment claim for disability harassment include (1) plaintiff is qualified individual with disability; (2) plaintiff was subject to unwelcome harassment; (3) harassment was based on his disability or request for accommodation; and (4) harassment was sufficiently severe or pervasive to alter conditions of employment and to create abusive working environment). While Neudecker does not allege that Boisclair's agents themselves harassed him, he does allege that tenants--including children of Boisclair's management team-- constantly harassed and threatened him based on his disability; that he repeatedly complained to Boisclair management about the harassment to no avail; and that he ultimately moved from his apartment out of concerns for his health stemming from the harassment. Cf. Crist v. Focus Homes, Inc., 122 F.3d 1107, 1111-12 (8th Cir. 1997) (residential home for individuals with developmental disabilities could be liable for resident's sexual harassment of caretakers where caretakers reported harassment to residential home and residential home failed to respond adequately); Henson v. City of Dundee, 682 F.2d 897, 910 (11th Cir. 1982) (workplace can be rendered offensive in equal degree by acts of supervisors, coworkers, and strangers).

Shaver v. Independent Stave Co., 350 F.3d 716 (12/2003) there are many reasons why a person might seek a job interview even though he or she has no intention of taking the job. People may be "testing the waters" to find out what kind of reference they would get, practicing their binterviewing skills, investigating a new line of work, or they may have any one of a whole host of other benign reasons for "manufacturing" a job application. See Kyles, 222 F.3d at 298 n.5. For these reasons, we disagree with the district court's holding that a "manufactured" claim that meets the statutory requirements cannot proceed. The issue of whether Mr. Shaver actually failed to get a job remains relevant on the question of the extent of his damages, but even if the whole situation was "manufactured," he would still have a claim for nominal damages, and in the proper circumstances, for attorneys' fees, exemplary damages, and injunctive relief. In his deposition, Mr. Bacon denied that his words constituted a negative recommendation, and also denied that he was retaliating against Mr. Shaver. But it is for a jury to decide whether Mr. Bacon is to be believed, whether his interpretation of events is consistent with the rest of the evidence, and whether his recommendations caused prospective employers to reject Mr. Shaver's applications. Furthermore, the district court's conclusion that Mr. Shaver had no real intention of seeking a job with his acquaintances rests on contestable inferences from circumstantial evidence. The same is true of the district court's suggestion that the acquaintances were somehow involved in this alleged scheme. Both of these issues are relevant to the extent of the damages that Mr. Shaver suffered and on the present record are matters for the jury to decide.

Longen v. Waterous Co., 347 F.3d 685 (10/2003) Longen placed separate restrictions on his conduct when he signed the LCA. One of these restrictions was that he would refrain from the "future use of any mood altering chemicals." Again, these additional restrictions were not gratuitous. Because of them, Longen was able to continue working at Waterous. Thus, Longen has not shown that the ADA forbids such agreements.

Doe v. Nebraska, 345 F.3d 593 (10/2003) In this case, as in Jim C., the defendants argue that they did not voluntarilyconsent to suit because the financial inducement offered by Congress for Nebraska'ssocial-services programs administered by NDSS was so great that Nebraska had no choice but to accept the federal funding and waive its immunity to suit under § 504. We disagree.

Brunke v. Goodyear Tire and Rubber Co., 344 F.3d 819 (9/2003) There is no evidence connecting his workplace behavior with his epilepsy, and no evidence that epilepsy substantially limited his major life activities outside the workplace. Thus, the summary judgment record in this case is unlike the trial record in Otting v. J.C. Penney Co., 223 F.3d 704, 709-11 (8th Cir. 2000), where we affirmed a jury verdict in favor of an ADA plaintiff whose epileptic seizures were not under control at the time of her termination despite surgery and medication. Rather, as in Aucutt, summary judgment dismissing this ADA claim was proper because Brunke "failed to present sufficient evidence to establish that the nature, duration, and long-term impact of his medical problems caused him to be substantially limited in a major life activity." 85 F.3d at 1319.

Lijedahl v. Ryder Student Transp. Services, Inc., 341 F.3d 836 (9/2003)  Dr. Nelson diagnosed Liljedahl with emphysema in August 1996. Liljedahl and Dr. Nelson never informed Ryder of this diagnosis. When Liljedahl was diagnosed with cancer in December 1996, she requested time off for cancer surgery and recuperation. After her successful cancer surgery, most correspondence from Liljedahl and from Dr. Nelson to Ryder focused only on cancer. Neither Liljedahl nor Dr. Nelson referenced emphysema or breathing problems. Liljedahl has not provided evidence Ryder knew about her emphysema or breathing problems. Without knowledge of Liljedahl's emphysema or breathing problems, Ryder could not have discriminated against Liljedahl because of them. See, e.g., Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 380-82 (3d Cir. 2002) (finding no discrimination because employer's knowledge of employee's pneumonia, a temporary condition, was not enough to put employer on notice of employee's asthma). As we discussed above, Ryder never knew about Liljedahl's emphysema or breathing problems, and Liljedahl's cancer is not a disability under the MHRA. Thus, Liljedahl's failure to accommodate claim also fails. Even if Ryder knew about Liljedahl's emphysema or breathing problems, Liljedahl's failure to accommodate claim fails because the record does not support a finding Liljedahl's emphysema or breathing problems required an accommodation.

Wood v. Crown Redi-Mix, Inc., 339 F.3d 682 (8/ 2003) Wood's evidence fails to create a genuine issue of material fact as to whether his injuries substantially limit any of his major life activities aside from his ability to procreate. Because his limitation with respect to procreation bears no relationship to the accommodation he seeks, and because he has not come forward with evidence sufficient to show a history of being disabled or any evidence to show that Crown perceived him to be disabled, Wood has failed to make out a prima facie case of discrimination under the ADA.

Russell v. TG Missouri Corp., 340 F.3d 745 (8/2003)In the present case, Russell was specifically told that it would be an unscheduled absence if she left, and yet she abandoned her post in the middle of her shift. Whether her departure under these circumstances was technically an unscheduled absence or job abandonment, it provided a legitimate nondiscriminatory basis for TG Missouri to take disciplinary action. The absenteeism policy upon which Russell relies expressly affords supervisors and managers latitude in determining an appropriate disciplinary response to an unscheduled employee absence. We therefore cannot reasonably infer that TG Missouri's stated explanation for discharging Russell was a pretext for discrimination based upon her disability.

Gorman v. Wells Mfg. Corp., 340 F.3d 943 (8/2003) Leelyn Gorman was employed by Wells Manufacturing Corp. in Centerville, Iowa. In September of l998, she missed eight days of work, was 25 minutes late for work one day and four hours late another. Pursuant to Wells' policy, she presented a disability certificate from her doctor for the absence. The doctor who signed the disability certificate later informed Wells that he had not asked Gorman to stay home; he did not know of any disability complications (Gorman was pregnant) during the days in question; and that Gorman had been warned by his office about malingering. Gorman was then fired. On appeal, Gorman argues that the District Court 2 erred in granting summary judgment to Wells on her ADA, Title VII, and Iowa Civil Rights Act disability and sex discrimination claims. We have conducted a de novo review of the entire record, and have carefully reviewed the briefs and arguments of counsel and we conclude that there was no error in the District Court's decision granting summary judgment. See Whitley v. Peer Review Sys., Inc., 221F3d 1053, 1055 (8th Cir. 2000) (standard of review). Accordingly, we affirm.

Burchett v. Target Corp., 340 F.3d 510 (8/2003) Because Burchett has not shown that she could not perform her current job with the reasonable accommodations Target was already providing, we conclude that she has not established a genuine issue of material fact on the second element of her prima facie case. She has also not met her burden as to the third element because she has not put forth evidence to demonstrate that she suffered an adverse employment action because of her disability. The district court did not therefore err in granting summary judgment.

Wood v. Crown Redi-Mix, 339 F.3d 682 (8/2003) Wood's evidence fails to create a genuine issue of material fact as to whether his injuries substantially limit any of his major life activities aside from his ability to procreate. Because his limitation with respect to procreation bears no relationship to the accommodation he seeks, and because he has not come forward with evidence sufficient to show a history of being disabled or any evidence to show that Crown perceived him to be disabled, Wood has failed to make out a prima facie case of discrimination under the ADA.

Harris v. P.A.M. Transport, Inc., 339 F.3d 635 (8/2003)  Dismissal is particularly appropriate because Harris cannot prove an essential element of a prima facie ADA claim: namely, that he was qualified to perform the job function of a commercial truck driver. Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1318 (8th Cir. 1996) (plaintiff must show disability within the meaning of the ADA, qualification to perform essential job functions, and adverse employment action). As we have already observed, Congress has given the DOT the sole discretion to set driver qualifications, and DOT regulations clearly require a valid medical examiner's certificate of physical qualification. 49 C.F.R. § 391.41(a).

Schuler v. SuperValu, Inc., 336 F.3d 702 (7/2003)  Because Mr. Schuler cannot demonstrate that SuperValu regarded him as substantially limited in a major life activity, he has failed to establish a prima facie case of disability discrimination under the ADA. We therefore affirm the district court's grant of summary judgment.

Simonson v. Trinity Regional Health System, 336 F.3d 706 (7/2003)  Simonson primarily relies on a statement made by, Peg Stoolman, a nurse manager. Simonson asked Stoolman whether she would be considered for one of the available jobs within Trinity. Simonson asserts that Stoolman responded, "I'm not sure if that's physically a good choice for you." Stoolman's comment was not based on any myths or archaic attitudes about the disabled. See Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995) (noting the perceived disabilities provision "is intended to combat the effects of 'archaic attitudes,' erroneous perceptions, and myths that work to the disadvantage of persons with or regarded as having disabilities."); see also Sutton, 527 U.S. at 490-91 ("[A]n employer is free to decide that . . . some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.") (emphasis in original). Trinity's awareness of Simonson's past medical problems does not establish that it regarded her as disabled. See Conant, 271 F.3d at 786.

Ollie v. Titan Tire Corp., 336 F.3d 680 (7/2003) Titan Tire Corporation (Titan Tire) appeals from the judgment entered in favor of Michael Ollie after a jury trial on his claim of discriminatory failure to hire, the denial of its post trial motion, and the front pay order of the district court 1. Titan Tire argues that it was entitled to judgment as a matter of law because there was insufficient evidence to establish that it regarded Ollie as disabled within the meaning of the Americans with Disabilities Act of 1990 (the ADA), 42 U.S.C. § 12101 et seq (2003), and the Iowa Civil Rights Act of 1965 (ICRA), Iowa Code § 216.1 et seq (2002). In the alternative Titan Tire contends that if liability under the ADA was established, the district court abused its discretion in awarding two years of front pay at an unrealistic hourly rate. Ollie cross appeals, claiming the district court abused its discretion by only awarding two years of front pay instead of ten, and erred in vacating his punitive damage award. We affirm.

Dattoli v. Principi, 332 F.3d 505 (6/2003) As for Dattoli's Rehabilitation Act and reprisal claims, the District Court did not err when it granted the defendant's summary judgment motion. As it was in Toyota Motor Manufacturing v. Williams, 534 U.S. 184, 196 (2002), the parties agreed that the plaintiff was in fact impaired, but disagreed as to whether she was legally disabled. Dispositive of this case is the fact that Dattoli admitted in her deposition that her vocal impairment hinders her only in her work answering phones and conducting some interviews, but does not affect her social or home life. Dattoli  Deposition at 23–24. In fact, the plaintiff and her speech therapist identified "yelling" and "rais[ing] her voice" at home as among the root causes of her impairment. Speech Therapist Progress Notes of Dec. 17, 1997 & March 12, 1998. Even her later affidavit filed with District Court suggests, at most, that her voice is rather soft, that she must take special care of her voice, and that at times her voice fails. Dattoli Aff. of Feb. 12, 2002, at 6-9. As such, Dattoli falls short of the standard Congress established for a legal disability because she has failed to demonstrate that she is unable to undertake, or is severely restricted in her ability to perform, activities that are of central importance to most individual's daily lives. Toyota, 534 U.S. at 198.

Philip v. Ford Motor Co., 328 F.3d 1020 (5/2003) In response to Ford's motion for summary judgment, Philip argued the refusal to place him permanently in the 25-mile driver inspector position was discriminatory for two reasons. First, Ford's refusal violated the ADA's requirement to provide a reasonable accommodation. See Appellee's App. 301-302. While Philip contends Ford's refusal to provide a reasonable accommodation was motivated by racial animus, the claim is not dependent upon proof of racial bias. The reasonable accommodation claim necessarily fails, however, because Philip failed to prove he has a disability within the meaning of the ADA.

Sonkowsky ex rel. Sonkowsky v. Board of Educ. for Independent School Dist. No. 721, 327 F.3d 675 (5/2003) To prevail on a disability discrimination claim, a plaintiff must show that: (1) he is a qualified individual with a disability; (2) he was excluded from participation in a public entity's services, programs or activities; and (3) such treatment was because of his disability. Moubry v. Indep. Sch. Dist. No. 696, 9 F. Supp. 2d 1086, 1109 (D. Minn. 1998) (listing elements); see also Roberts v. KinderCare Learning Ctrs., Inc., 86 F.3d 844, 846 n.2 (8th Cir. 1996) (applying ADA analysis to MHRA claim in context of educational services for disabled children). In the context of educational services, liability does not attach absent a showing of bad faith or gross misjudgment on the part of the school officials. Hoekstra v. Indep. Sch. Dist. No. 283, 103 F.3d 624, 627 (1996). It is undisputed that Rocky has ADHD and that he was excluded from the field trip to the Vikings arena. However, Sonkowsky has presented no evidence to suggest that the exclusion was based on Rocky's disability rather than on his documented misconduct in the weeks preceding the trip. Moreover, the record is devoid of any evidence that would support a finding of gross misjudgment or bad faith on the school's part. For these reasons, and those set out in the district court's thorough and wellreasoned opinion, we affirm the grant of summary judgment in the defendants' favor.

Fenney v. Dakota, Minnesota & Eastern R. Co., 327 F.3d 707, (4/2003)  the District Court was incorrect when it determined that as a matter of law Fenney is not substantially limited in the major life activity of caring for himself. We agree with such an approach and will apply the same standards for constructive demotion as we apply for constructive discharge. Moreover, by actually demoting himself based upon Dakota's refusal to accommodate, Fenney has also met the subjective requirement of a constructive demotion. As a result, he has proven both elements of a constructive demotion. This constitutes an adverse employment action. Finally, Dakota argues that Fenney's ADA claim is preempted by the Railway Labor Act, 45 U.S.C. §§ 151–188 (1994). However, by bringing a claim under the ADA, Fenney seeks to enforce a federal statutory right, not a contractual right embodied by the union contract. Benson, 62 F.3d at 1115; see also Norman v. Missouri Pac. R.R., 414 F.2d 73, 83 (8th Cir. 1969). The ADA "provides a more extensive and broader ground for relief, specifically oriented towards the  elimination of discriminatory employment practices" and, thus, is not preempted by the Railway Labor Act. Norman, 414 F.2d at 83 (holding that the Railway Labor Act does not preempt Title VII of the Civil Rights Act); Benson, 62 F.3d at 1115 (holding that the Railway Labor Act does not preempt the ADA). Accordingly, for the foregoing reasons, the judgment of the District Court is reversed and remanded for further proceedings consistent with this opinion.

Mitchell v. Iowa Protection and Advocacy Services, Inc., 325 F.3d 1011 (4/2003)  In this case, Ms. Mitchell did not create a genuine issue of material fact regarding whether her purportedly protected action was causally connected to her termination. She thus failed to make out a prima facie case of retaliation under the ADA.

Alexander v. Northland Inn, 321 F.3d 723 (3/2003)Ansaf Alexander appeals the district court's 1 grant of summary judgment dismissing her claim that The Northland Inn (Northland) violated the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq, when it terminated her as a hotel housekeeping supervisor. Viewing the summary judgment record in the light most favorable to Alexander, we conclude that she could not perform the essential job function of vacuuming, with or without accommodation, and therefore affirm.

Gilmore v. AT & T, 319 F.3d 1042 (2/2003) In her Social Security benefits application and in her deposition testimony, Gilmore conceded that she could not perform the essential functions of her job, even with reasonable accommodation, in August 1999. cAs recognized by the district court, while statements made to the Social Security cAdministration to secure disability benefits do not automatically preclude a successful suit under the ADA, a plaintiff who has sworn to his inability to work must "reconcile c[these] seemingly contradictory statements." Lane v. BFI Waste Sys. of North America, 257 F.3d 766, 769-70 (8th Cir. 2001). Gilmore has neither claimed that her statements were inaccurate, nor has she provided any evidence to reconcile her asserted inability to perform the essential functions of her job with her claim under the ADA. On this basis, the district court properly concluded that Gilmore was not a qualified individual under the ADA and thus that summary judgment on Gilmore's disability discrimination claim was appropriate. In addition, the district court properly concluded that Gilmore failed to prove that AT&T's non-discriminatory reason for withdrawing her reinstatement was a pretext for disability discrimination. Admittedly, Gilmore failed to return to work after she was cleared by her doctor to do so. Gilmore asserts that she was not fully recovered and was unable to work when she received such clearance and further asserts that she did not understand the agreement between AT&T management and her union. However, these unsupported assertions do not render AT&T's decision not to reinstate her pretextual. Thus, the district court properly granted AT&T's motion for summary judgment on Gilmore's disability discrimination claim.

Dropinski v. Douglas County, Neb., 298 F.3d 704 (8/2002)  "While job restructuring is a possible accommodation under the ADA, this court has held that an employer need not reallocate or eliminate the essential functions of a job to accommodate a disabled employee." Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 950 (8th Cir. 1999). Douglas County is not required to reassign existing workers to assist Dropinski in his essential duties, id., and it is clear any accommodation would result in just that. Even if Douglas County could routinely assign Dropinski to the back of the striper truck and allow him to take frequent breaks while driving the trucks, for example, these are only a few of many functions required of an AEO II. It would be unduly burdensome on Douglas County to make the necessary bending, twisting, squatting, and lifting accommodations Dropinski would require as an AEO II. Under this standard, we agree with the district court that no reasonable jury could find that Dropinski was a qualified individual under the ADA because of his inability to perform the essential functions of the job with or without accommodation.

Orr v. Wal-Mast Stores, Inc., 297 F.3d 720 (7/2002) In resisting summary judgment, Orr failed to present evidence explaining either how diabetes substantially affects his major life activities or the duration and frequency of any limitations. "[M]ost disabilities from which people suffer," including diabetes, "do not have a substantial enough effect on their major life activities." Berg v. Norand Corp., 169 F.3d 1140, 1145 (8th Cir. 1999) (quoting Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 675 (7th Cir. 1998)). Health conditions that cause moderate limitations on major life activities do not constitute disabilities under the ADA. See Taylor v. Nimock's Oil Co., 214 F.3d 957, 960 (8th Cir. 2000) (heart disease); Weber v. Strippit, Inc., 186 F.3d 907, 914 (8th Cir. 1999) (heart disease). To hold otherwise could expand the ADA to recognize almost every working American as disabled to some degree.

Brown v. Cox, 286 F.3d 1040 (4/2002)  There was a legally sufficient basis for the jury's verdict in favor of Brown on her claim for damages under the ADA, as well as for the award of damages Brown received after remittitur. Cox's remaining arguments in support of a new trial and against the district court's awards of attorney fees are without merit. Accordingly, we affirm the judgment and attorney fee awards of the district court.

Darby v. Bratch, 287 F.3d 673 (4/2002)  As we understand plaintiff's ADA claim, it is that she was discharged on account of her disability. The difficulty is that plaintiff was not discharged. She voluntarily resigned. Defendants had taken her back as an employee, and she had been on the job for only a few days when she quit. Constructive discharge would be a theoretically sound response to this argument, except that plaintiff had been back at work for only a short period of time. We do not believe a reasonable trier of fact could have found that plaintiff had stuck it out long enough to conclude reasonably that working conditions were intolerable. Accordingly, the dismissal of the ADA claim will be affirmed.

Ballard v. Rubin, 284 F.3d 957 (3/2002)  Thomas Ballard appeals an award of summary judgment on his claim that his former employer, the Internal Revenue Service ("IRS"), violated the Rehabilitation Act by failing to accommodate his disability. After review, we conclude that Ballard never timely requested such accommodation, expressly or de facto, and thus the IRS was never obligated to provide it. We therefore affirm the district court.

Jeseritz v. Potter, 282 F.3d 542 (3/2002)  Contrary to Jeseritz's argument, this court is not bound by the arbitrator's finding that removal was too harsh a penalty for his misconduct. In rejecting a similar argument, this court has explained, "[i]n an arbitration under the 'just cause' provision, . . . the employer needs to show not only that it had a nondiscriminatory reason, but also that it was a good reason, not reached in bad faith." Taylor v. Southwestern Bell Tel. Co., 251 F.3d 735, 743 n.1 (8th Cir. 2001). Moreover, "an arbitrator's inquiry could extend beyond that of a court or jury in a discrimination action, to include such a question as whether the employee's punishment was disproportionate." Id. Thus, Jeseritz's reliance on labor relations cases is misplaced.  The district court did address Jeseritz's allegations concerning (1) a printed poster about fraudulent workers' compensation claims on which his name had been hand-written; (2) the investigation into his misconduct; and (3) certain adverse comments. As the USPS argues, the evidence, individually and taken together, did not demonstrate a hostile work environment. Even if the poster remained on the wall for two weeks after Jeseritz complained about it, the incident was isolated. In addition, although Jeseritz may have been "upset and embarrassed by the posting of the derogatory flier, [he] failed to show that the posting affected a term, condition, or  privilege of [his] employment." Austin v. Minnesota Mining & Mfg. Co., 193 F.3d 992, 994 (8th Cir. 1999).  As to the retaliation claim, the district court held that Jeseritz had failed to offer evidence that he engaged in a statutorily protected activity, an essential element of the claim. See Sherman, 235 F.3d at 409. Protected activity is "an informal or formal complaint about, or other opposition to, an employer's practice or act . . . if the employee reasonably believes such an act to be in violation of the statute in question." Id. Although filing an EEO complaint can be a protected activity, Jeseritz did not rely on his EEO complaint as the relevant protected activity. Rather, he argued that he "engaged in protected activity by regularly submitting claims that he was not being accommodated, that he was being harassed, that his medical complaints were being stalled and ignored."

Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847 (1/2002)  The duties of Spangler's position included taking daily phone calls, answering inquiries from other Banks regarding cash services, and completing transactions in a timely manner. The member bank customers of the Bank relied on Spangler's services for their daily cash needs. Spangler's absenteeism prevented her from performing these essential functions. Although her duties were sometimes reassigned to other employees of the Bank, reassignment prevented those employees from performing all of their duties. In any event, we have held "an employer is under no obligation to reallocate the essential functions of a position that a qualified individual must perform." Maziarka, 245 F.3d at 681-82 (8th Cir. 2001) (holding an employee's requested accommodation for a later make up of the time missed for frequent leaves of absence was not a reasonable alternative). We accordingly affirm the district court's grant of summary judgment to the Bank on Spangler's ADA claim.

Moysis v. DTG Datnet, 278 F.3d 819 (1/2002)  Thus, the jury could reasonably conclude from the evidence that Datanet fired Moysis on December 10, 1996, because of his disability. Monson and English failed to explain why they had given Moysis a merit raise on May 9 if they had decided to terminate him a week earlier. Nor could they explain why they met with Olson and Moysis on December 3 to discuss his return to work, if the termination decision had been made six months earlier. In addition, English fired Moysis just one week after the meeting in which he expressed his fear of Moysis' return to work following his brain injury. Although timing alone may be insufficient to raise an inference of discrimination, coupled with "other circumstances [that] are inferential proof of overt discrimination," suspicious timing can support a finding of discrimination. Kells, 210 F.3d at 835. Such is the case here.  Datanet argues that the district court abused its discretion in finding that $150.00 an hour was a reasonable hourly rate, asserting that the court was bound to accept Moysis' counsel's customary rate of $100.00. Although a counsel's customary rate might be some evidence of a reasonable rate, it is not controlling. See Jaquette v. Black Hawk County, 710 F.2d 455, 458 (8th Cir. 1983). As a general rule, a reasonable hourly rate is the prevailing market rate, that is, "the ordinary rate for similar work in the community where the case has been litigated." Emery v. Hunt, No. 01-1459, 2001 WL 1548860, at *5 (8th Cir. Dec. 6, 2001). "We are especially reluctant to substitute our judgment for that of the district court in the matter of appropriate attorney's fees, because the district court is in the best position to determine" the issue. United States v. Big D Enter., Inc., 184 F.3d 924, 936 (8th Cir. 1999) (quoting Collins v. Burg, 169 F.3d 563, 565 (6th Cir. 1999), cert. denied, 529 U.S. 1018 (2000)). The district court gave careful consideration to the fee request, including rates in comparable cases and counsel's experience and skill, and acted well within its discretion.

Conant v. City of Hibbing, 271 F.3d 782 (11/2001)  Conant's claim ultimately fails, however, because he has adduced no evidence indicating that the City perceived him as having an impairment that significantly restricted his ability to perform the major life activity of working. See Murphy v. United Parcel Serv. Inc., 527 U.S. 516, 524 (1999) (concluding that summary judgment is proper where ADA plaintiff fails to show that he is "regarded as unable to perform a class of jobs"); Weber v. Strippit, Inc., 186 F.3d 907, 915 (8th Cir. 1999) (stating that the test is not whether "defendant treated plaintiff adversely because of his or her feelings about the plaintiff's physical or mental impairment," but rather "whether defendant treated plaintiff adversely because it regarded him as having an impairment that substantially limits one or more major life activities"), cert. denied, 528 U.S. 1078 (2000). There is a distinction between being regarded as an individual unqualified for a particular job because of a limiting physical impairment and being regarded as "disabled" within the meaning of the ADA. "Accordingly, an employer is free to decide that . . . some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job." Sutton, 527 U.S. at 490-91.

Webner v. Titan Distribution, Inc., 267 F.3d 828 (10/2001)  Randall Webner sued his employer, Titan Distribution, Inc. (Titan), alleging that Titan had discriminated against him in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213 (1994 & Supp. IV 1998), and also asserted a state law claim that Titan retaliated against him by terminating his employment after he filed a workers' compensation claim. The jury agreed as to both claims, returning a verdict in Webner's favor and awarding him compensatory and punitive damages. After the district court entered judgment on the verdict, Titan moved for judgment as a matter of law or, alternatively, a new trial, which the district court denied. We affirm the jury's liability finding on both the ADA claim and the supplemental state law retaliation claim, affirm the award of emotional distress damages, but reverse the jury's award of punitive damages.

Stafne v. Unicare Homes, 266 F.3d 771 (10/2001)

Leiss v. Henderson, 267 F.3d 856 (9/2001)  There can be no doubt that the initial decision to terminate plaintiff's employment was lawful. The Postal Service is not required to tolerate threatening employees. The decision not to re-hire the plaintiff, made in November and December of 1998, was soundly based on Dr. Turco's opinion that the plaintiff was not yet ready to come back. There is simply no evidence that the Postal Service, in reaching this conclusion, had any discriminatory motivation. It is true, as the plaintiff argues, that in 1995 Dr. Ramos, a psychiatrist, had certified Mr. Leiss as ready to return to work from a psychiatric point of view. JA 178. At the time that he rendered this opinion, however, Dr. Ramos had not seen Mr. Leiss for several months, and the Postal Service was not obliged to accept this view. There is no basis for concluding that Dr. Turco did not reach his conclusion in good faith.

Costello v. Mitchell Public School Dist. 79, 266 F.3d 916 (9/2001)   Sadonya and her parents point to her past impairment diagnoses to support a claim of actual disability. They present no evidence, however, of a physical or mental impairment that substantially limits Sadonya in the life activity of learning. The evidence demonstrates that it is more difficult for her to learn than for her peers, but that this limitation has not prevented Sadonya from advancing to the next grade each year or from currently working toward her G.E.D. The evidence points to the conclusion that whatever Sadonya's impairments may be, they are only moderately limiting. Indeed, in the beginning of seventh grade, before band class became intolerable, Sadonya's grades were average, and later in the year, educational professionals still believed that Sadonya would be able to keep up with her class so long as she asked for and received some additional help. The plaintiffs have therefore not shown that Sadonya's impairment causes a substantial limitation when compared to the general population. See Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 598 (8th Cir. 1998) (difficulties in life that do not hinder performance of required tasks not substantial limitation); Weber v. Strippit, Inc., 186 F.3d 907, 914 (8th Cir. 1999) (describing moderate limitation as insufficient), cert. denied, 120 S. Ct. 794 (2000). Accordingly, Sadonya has not shown that she is actually disabled within the meaning of the ADA.

Pickens v. Soo Line Railroad Co., 264 F.3d 773 (8/2001)  We conclude that Pickens failed to set forth sufficient evidence for a jury to reasonably find that he was able to perform his railroad duties with or without accommodation. Moreover, Soo Line presented conclusive, legally ample, and nonpretextual reasons for terminating Pickens wholly unrelated to his impairment. The district court's entry of judgment as a matter of law was correct.

E.E.O.C. v. Woodbridge Corp., 263 F.3d 812 (8/2001)  The issue is whether applicants for employment on a specific manufacturing line can be excluded from employment based upon test results that indicate those applicants may be susceptible to sustaining injuries from repetitive motion. The district court determined that the Americans with Disabilities Act ("ADA") was not violated as the applicants were not "disabled" as defined in 42 U.S.C. § 12102(2). We agree and affirm.

Brunko v. Mercy Hosp., 260 F.3d 939 (8/2001)   Brunko contends that she is substantially limited in the major life activity of working as a result of her 40-pound lifting restriction. We disagree. Although lifting itself is identified as a major life activity, this court has held that a general lifting restriction without more is insufficient to constitute a disability within the meaning of the ADA. Gutridge v. Clure, 153 F.3d 898, 901(8th Cir. 1998), cert. denied, 526 U.S. 1113 (1999)(45-pound restriction does not limit life activity of lifting); Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1207(8th Cir. 1997) (25-pound restriction does not limit ability to perform major life activity). Additionally, it is clear from the record that Brunko was only precluded from performing a narrow range of jobs as evidenced by the fact that she has worked in several nursing jobs after leaving Mercy and the fact that Mercy offered her other positions in the hospital that did not require lifting more than her limit. Hence, she was not disabled from the life activity of working because of her lifting restriction.

McConnell v. Pioneer HiBred Intern., Inc., 260 F.3d 958 (8/2001)  Wesley McConnell worked for Pioneer Hi-Bred International, Inc., as a district sales manager. After Pioneer fired McConnell for poor performance, McConnell brought this action against Pioneer alleging discrimination based on his mental disability (bipolar disorder), wrongful termination, and intentional infliction of emotional distress. The district court * granted summary judgment in Pioneer's favor, finding McConnell failed to show he was disabled or regarded as disabled, Pioneer gave a nondiscriminatory reason for firing him, and McConnell failed to submit evidence of conduct or statements inferring that disability discrimination was the motivating factor in Pioneer's decision to dismiss him. The district court also concluded the facts did not support actions for wrongful termination or intentional infliction of emotional distress. On appeal, McConnell argues he is entitled to a jury trial. Having carefully reviewed the record, we conclude the district court properly viewed the facts in the light most favorable to McConnell and correctly concluded Pioneer was entitled to judgment as a matter of law. Assuming McConnell established a prima facie case of disability discrimination, we agree with the district court that McConnell failed to present evidence from which a reasonable jury could conclude Pioneer's stated reason for firing McConnell was a pretext for disability discrimination. We thus affirm for the reasons stated in the district court's memorandum opinion.

Lane v. BFI Waste Systems of North America, 257 F.3d 766 (7/2001)  After reviewing the record, we hold that Mr. Lane proffered no evidence below to harmonize his inconsistent statements. The only explanation advanced by Mr. Lane before the District Court was that he filed for SSA benefits because it was required by his insurance company. J.A. 121. This statement explains only his motivation for applying for SSA benefits. It does not explain or even address how, in light of his assertions of disability, he was, in fact, qualified to perform the essential functions of the dispatcher position.

Sprenger v. Federal Home Loan Bank of Des Moines, 253 F.3d 1106 (6/2001)  As noted above, a company may make reasonable inquiry into retirement plans. An employer need not retain an employee who cannot perform the essential functions of his job. An employer may therefore discuss that ability. Moreover employers and co-workers may discuss, express concern for or inquire after each other's physical well-being. We simply do not find enough in Sprenger's evidence to permit a reasonable jury to infer the Bank's justification to have been pretextual or that actual disability discrimination occurred.

Hatchett v. Philander Smith College, 251 F.3d 670 (6/2001)  The undisputed evidence demonstrates that Hatchett was unable to perform the essential functions of the job of Business Manager and, therefore, she is not a qualified individual entitled to ADA protection. Hatchett has also failed to demonstrate entitlement to intermittent or reduced schedule leave. Accordingly, we affirm the district court's grant of summary judgment for the College and Titus and the denial of Hatchett's motion to alter or amend.

Taylor v. Southwestern Bell Telephone Co., 251 F.3d 1109 (5/2001)  Taylor's complaint alleged that she suffered from depression that substantially limited her "major life activities of coping with the normal frustrations of daily living." Taylor's deposition testimony showed that she had no difficulty in taking care of herself or in working and that she had never told Southwestern Bell that she had a disability or requested that it make accommodations for her depression. Taylor has not shown that her depression substantially impaired any major life activity, and the district court did not err when it determined that Taylor did not show she was disabled under the ADA. Cf. Greer v. Emerson Elec. Co., 185 F.3d 917, 921 (8th Cir. 1999).

Cooper v. Olin Corp., Winchester Div., 246 F.3d 1083 (5/2001)  Although Dr. Olmstead restricted Cooper from operating the locomotive, he also stated that the company would find another job for Cooper at the plant. Cooper had been part of the train crew for only five or six of the many years she had spent at the plant. It cannot be concluded from these facts that Dr. Olmstead considered Cooper to be completely precluded from working with explosives generally or from the broad range of jobs involving Cooper's engineering expertise outside of those involving specifically transporting explosives at the plant. See Murphy, 527 U.S. at 524-25 (holding that preclusion from mechanic job that requires commercial motor vehicle license not sufficient to show substantial limitation). Dr. Olmstead's conclusion that Cooper was precluded from her particular locomotive job is not sufficient to indicate that he considered her to be disabled in the activity of working. See id. Moreover, Dr. Olmstead stated several times that he considered Cooper's restrictions to be only temporary while he sought clarification of her condition. Accordingly, we conclude that Cooper has presented insufficient evidence to show a fact issue on whether Olin regarded her as disabled.

Heaser v. Tora Co., 247 F.3d 826 (4/2001)  We conclude that Heaser has failed to make a prima facie case because she has not shown that the use of a computer at her home and her avoidance of carbonless paper are reasonable accommodations. In support of its motion for summary judgment, Toro submitted an affidavit by an analyst in its information technology division that stated that the computer software necessary for Heaser's position, a program called Dataflex, could not have been used through remote access to Toro's computer systems. There is some evidence in the record that Toro was investigating the use of a more completely computerized system of order entry, but no evidence suggests that any such change is feasible or that it has occurred. Heaser asserts that Toro could have made the computer system work from her home and that Toro's use of carbonless paper is a method of communications inferior to that of computers. Both of these allegations care supported only by her conjecture, however, and are thus insufficient to create a genuine issue of material fact in this case. See Marler v. Missouri State Bd. of Optometry, 102 F.3d 1453, 1457 & n.6 (8th Cir. 1996) (conjecture insufficient to create issue of material fact); O'Bryan v. KTIV Television, 64 F.3d 1188, 1191 (8th Cir. 1995).

Maziarka v. Mills Fleet Farm, Inc., 245 F.3d 675 (4/2001)  Maziarka's suggested accommodation--that he be allowed to be absent and make up the time missed later--does not provide a reasonable alternative in this situation. His proposed accommodation does not address the crucial problem--the unpredictability of Maziarka's absences--which left Fleet Farm unable to rely on its schedule in order to efficiently receive and process merchandise. His proposal instead presumes that regular, predictable attendance is not an essential function of his job. "It is well settled that an employer is under no obligation to reallocate the essential functions of a position that a qualified individual must perform." Moritz, 147 F.3d at 788. Fleet Farm is also not obligated to hire additional employees or reassign existing workers in order to compensate for Maziarka's unexpected absences. Id. Maziarka has suggested no other accommodation that could overcome the difficulty of his unpredictable absences. Accordingly, because Maziarka has failed to present evidence that would allow a fact-finder to conclude that he can perform the essential functions of his position with reasonable accommodation, we conclude that Fleet Farm was entitled to summary judgment.

Somers v. City of Minneapolis, 245 F.3d 782 (3/2001)  It is undisputed that the Sanitation Department representative regarded Somers as having a temporary physical impairment that precluded him from jobs requiring the lifting of large compost bins. But, "an ADA plaintiff must do more than allege that he is regarded as having an impairment which prevents him from working at a particular job." Shipley v. City of Univ. City, 195 F.3d 1020, 1023 (8th Cir. 1999); see Sutton v. United Air Lines, Inc., 527 U.S. 471, 493 (1999). The Department of Public Works representative simply required Somers to submit a medical release and be cleared by the City's physician, a prudent requirement the City imposes on all employees who undergo surgery before they return to work. There is no evidence the Department of Public Works regarded Somers as disabled and not a shred of evidence that his knee surgery had anything to do with his termination as a seasonal laborer.

Lowery v. Hazelwood School Dist., 244 F.3d  654 (3/2001)  Considering that Lowery's termination occurred immediately after the most egregious of a series of failures to maintain security at the district, no reasonable jury could have concluded from the evidence proffered as direct evidence of discrimination that there was a causal link between Lowery's disability and his termination.  Because he failed to put forth a single situation in which an employee in a similar position with the district had similar performance problems and was treated more favorably, Lowery's disparate impact allegations are insufficient to create the necessary inference of discrimination.  In his reply brief, Lowery also asserts that the district failed to accommodate him before the 1997 incident when it failed to move him to the custodial department on his request after the September 1996 incident that resulted in his suspension. A request for accommodation, while it need not contain any magic words, must be sufficient to convey to the employer that the employee is requesting that his disability be accommodated. Wallin, 153 F.3d at 689 (employee bears the burden of communicating to employer that he is requesting a disability accommodation when asking for a transfer to a different position). Lowery's 1996 request was apparently a response to his suspension, and he does not argue that he indicated that he needed an accommodation for his disability. Moreover, because Lowery argues that he was capable of performing the essential functions of the security position, he cannot argue that he was entitled to any accommodation.

Land v. Washington County, Minnesota, 243 F.3d 1093 (3/2001)  There is no dispute that Land has a disability as that term is defined by the ADA. However, Land has not shown that he was qualified for a position as sergeant, or qualified for field training officer assignments in the larger jail facility. Land must show that, with or without reasonable accommodation, his "work performance met the employer's legitimate job expectations." Mole v. Buckhorn Rubber Prods., Inc., 165 F.3d 1212, 1217 (8th Cir.), cert. denied, 528 U.S. 821 (1999). An ADA plaintiff may not rely on past performance to establish that he is a qualified individual without accommodation when there is undisputed evidence of diminished or deteriorated abilities. Id.  The record shows that Land requested and was granted certain accommodations in 1994. Land requested additional accommodations in 1997. 4 There is no evidence that the requested accommodation would have enabled Land to perform the essential functions of his job. Id. at 728. Moreover, the uncontroverted evidence shows that Land was not qualified to perform the jobs. Land testified at his deposition that he could no longer work at all after September 1998 and he had applied for total disability benefits. He further testified to significant muscle control problems (his legs gave out on him three or four times a week, causing him to fall down and he had daily episodes of uncontrollable shaking); memory and retention problems, and problems communicating (he was sometimes unable to speak so that he could be understood) and also had difficulty hearing and understanding people.

Mellon v. Federal Express Corp., 239 F.3d 954 (2/2001)   It would thus appear that under prior rulings by this Court both the district court and this panel must reject, as a matter of law, the disability claim of Ms. Mellon that is based on the premise that "she cannot lift more than 15 pounds and should avoid other such stresses with her right arm".

Sherman v. Runyon, 235 406 (12/2000)  We find that the district court did not clearly err in finding that USPS did not intentionally discriminate against Sherman. "Both actual violence and threats of violence are legitimate reasons for terminating an employee." Clark v. Runyon, 218 F.3d 915, 919 (8th Cir. 2000). It is especially noteworthy that both Clark's and Sherman's actions violated a zero tolerance policy toward violence in the workplace. See id. Sherman alleges that the USPS has used his November 19 outburst as a pretext for firing him. As evidence of pretext, he points to two other employees who were not discharged for their violent outbursts. "Instances of disparate treatment can support a claim of pretext, but [plaintiff] has the burden of proving that he and the disparately treated [employees] were similarly situated in all relevant respects." Lynn v. Deaconess Medical Ctr. - West Campus, 160 F.3d 484, 487 (8th Cir. 1998) (citation omitted). In this case, neither employee worked in the main postal facility in Minneapolis, and neither employee was disciplined by the same supervisors as Sherman. "[I]t is difficult to say that the difference [in disciplinary decisions] was more likely than not the result of intentional discrimination when two different decision-makers are involved." Jones v. Frank, 973 F.2d 673, 676 (8th Cir. 1992) (citation omitted); see also Clark, 218 F.3d at 918. Having reviewed the record, we conclude that the district court properly found that the USPS' actions were not pretextual.

Kellogg v. Union Pacific R. Co., 233 F.3d 1083 (12/2000)

Anderson v. North Dakota State Hosp., 232 F.3d 634 (11/2000)  The effects on Ms. Anderson's ability to work may well be longer lasting, as she steadfastly refuses to work in an area where snakes have been seen. For Ms. Anderson to show that her ability to work has been substantially limited by her fear of snakes, however, she must show that she cannot work in a broad class of jobs. See Shipley v. City of University City, 195 F.3d 1020, 1023 (8th Cir. 1999); see also 29 C.F.R. § 1630.2(j)(3)(i). Viewing the record in the light most favorable to Ms. Anderson, she has at most shown that she is incapable of working as a switchboard operator for the hospital. She has offered no evidence of any other job, much less a broad range of jobs, at which she would be prevented from working because of her fear of snakes. We cannot even draw a reasonable inference in her favor, as a comfort level with snakes is simply not a requirement for most jobs. The fact that Ms. Anderson cannot perform one particular job does not constitute a substantial limitation on her ability to work. See Taylor v. Nimock's Oil Co., 214 F.3d 957, 960 (8th Cir. 2000). We therefore agree with the district court that Ms. Anderson's fear of snakes does not substantially limit her ability to work.

Steger v. Franco, Inc., 228 F.3d 889 (10/2000)  On the other hand, the redressability of Burch's injury is not restricted to the signage at the first-floor men's restroom as Franco contends. Although Burch was injured by Franco's failure to employ ADA-compliant signage, Hilberry testified that the building contains other violations that could injure blind persons. They include numerous doors without raised-letter signs; signs mounted incorrectly; an elevator that lacks audible signals and closes while people are in the doorway; stairs lacking proper handrails; tile flooring which does not meet slip-resistant standards; and a drinking fountain that obstructs a hallway. Hilberry testified that many of these barriers could be removed with relatively little effort or cost. Burch need not encounter all of these barriers to obtain effective relief. See, e.g., Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698, 762 (D. Or. 1997) (ordering injunctive relief for entire arena although it "is unlikely that any individual plaintiff will ever sit in each of the seats in the area, or use each of the restrooms, or attempt to reach each of the ketchup dispensers"). The effect of such a rule would be piecemeal compliance. To compel a building's ADA compliance, numerous blind plaintiffs, each injured by a different barrier, would have to seek injunctive relief as to the particular barrier encountered until all barriers had been removed. This not only would be inefficient, but impractical. Moreover, the ADA does not support such a narrow construction. The statute provides that where a defendant fails to remove barriers in existing facilities and removal is "readily achievable," 42 U.S.C. § 12182(b)(2)(a)(iv), injunctive relief is mandated to "make such facilities readily accessible to and usable by individuals with disabilities . . . ," 42 U.S.C. § 12188(a)(2). Accordingly, injunctive relief is encouraged where compliance is readily achievable, which Hilberry testified is the case here. Congress intended that the ADA serve as a "clear and comprehensive national mandate" to eliminate discrimination against disabled individuals. 42 U.S.C. § 12101(b)(1). It envisioned "clear, strong, consistent, enforceable standards addressing discrimination against [disabled] individuals." Id. at § 12101(b)(2). Further, the ADA is a remedial statute, see Webb v. Garelick Mfg. Co., 94 F.3d 484, 487 (8th Cir. 1996), and should be broadly construed to effectuate its purpose, see Tcherepnin v. Knight, 389 U.S. 332, 336 (1967). Hence, our analysis of Article III standing, informed by the ADA's language and policy, leads us to conclude that Burch has standing to seek relief for any ADA violations in the CCB affecting his specific disability.

Stern v. University of Osteopathic Medicine and Health Sciences, 220 F.3d 906 (2000)  We believe that based on Mr. Stern's evidence a fact finder could only speculate with respect to whether allowing Mr. Stern to supplement his answers on multiple-choice tests actually compensates for his dyslexia, rather than simply making the test easier for him in the same way that such a measure presumably would assist other students. See Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir. 1994), quoting Barnes v. Arden Mayfair, Inc., 759 F.2d 676, 681 (9th Cir. 1985) (to withstand summary judgment, evidence must support finding for plaintiff based on more than " 'mere speculation' "). Because the medical school's expert attested that the school's proffered accommodations fully addressed Mr. Stern's disability, and Mr. Stern failed to establish a nexus between his requested testing scheme and his dyslexia, we conclude that ultimately he failed to meet his burden of showing that the accommodations that he requested were actually related to his disability. See Amir, 184 F.3d at 1029.

Summerville v. Trans World Airlines, Inc., 219 F.3d 855 (2000)  Summerville asserts judgment as a matter of law is inappropriate because he presented evidence that customer service agents and employees-in-charge actually performed little lifting of bags and wheelchair passengers, and, when these duties are required, other TWA employees are regularly available to perform these tasks for him. TWA counters that it views lifting wheelchair passengers and bags as an essential function of the customer service agent and employee-in-charge positions; that performing these duties is required by the collective bargaining agreement; and that on overtime, holiday, and day-trading shifts, Summerville must not only be available as a zone coordinator, but must also be available to work as a customer service agent or as an employee-in-charge. The arguments in this case closely parallel the arguments made in Moritz v. Frontier Airlines, Inc., 147 F.3d 784 (8th Cir. 1998). In Moritz, we affirmed the district court's grant of summary judgment to Frontier Airlines on a gate agent's disability claim because the gate agent could not perform an essential function of her job—the boarding and deplaning of elderly and disabled passengers. See id. at 785-88. In opposing summary judgment, the gate agent argued that assisting these passengers was not an essential function of her job because she only assisted passengers for a few minutes each week and other employees were available to help perform this duty. See id. at 787. In contrast, Frontier Airlines viewed assistance of these passengers as an essential function of the gate agent position, and its employees were expected to perform a wide variety of duties, especially because Frontier Airlines was a start-up company with limited staff. See id.  Summerville's case is indistinguishable from Moritz. True, TWA generally may not encounter the same limited staffing problems as a start-up airline. But, in the situations at issue here, TWA does face similar short-staffing problems. In fact, TWA negotiated for the provision in the collective bargaining agreement that prevents employees on limited duty from working overtime and holidays because of the limited staff TWA has available on these shifts. Thus, we hold, as a matter of law, lifting is an essential function of Summerville's overtime, holiday, and day-trading employment.

Otting v. J. C. Penney Co., 223 F.3d 704, (2000)  In considering the record as a whole and the effects of Otting's impairment, we find that at the time of her termination, Otting's epilepsy substantially limited one or more major life activities.4 Despite her attempts to control her impairment with medication, at the time she was terminated, Otting met the definition of disabled found in 42 U.S.C. § 12102(2)(A). That is, Otting suffered from a physical impairment which substantially limited the major life activities of walking, seeing and speaking. In making this determination, we have considered the factors delineated in the EEOC regulations for determining whether an individual is substantially limited in a major life activity: "i)[t]he nature and severity of the impairment; ii) [t]he duration or expected duration of the impairment; and iii) [t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2(j)(2). We note that Otting's epilepsy is severe and has been resistant to attempts at control. Further, due to the nature of Otting's impairment, when she suffers a seizure she is rendered entirely incapable of speaking, walking, and seeing. Additionally, Otting's impairment is most likely permanent. Our review of the record, enlightened by the Supreme Court's recent pronouncements, leads us to conclude that sufficient evidence was presented to support the jury's determination that J. C. Penney acted with malice or reckless indifference to Otting's federally protected rights under the ADA. J. C. Penney's store manager, Mr. Morris, and the store's personnel manager, Ms. Hildebaugh, each testified that it was J. C. Penney's company policy not to allow employees with any restrictions to return to work. Further, Morris testified that, although he was aware that federal law imposed upon him, as an employer, a duty to attempt to accommodate the restrictions of disabled individuals, he made no effort whatsoever to explore any possibility that would allow Otting to return to work with her ladder-climbing restriction. In her meeting with Morris on the date of her termination, Otting specifically asked if she could be transferred to a department other than Shoes for the duration of her ladder-climbing restriction. Morris testified that, rather than exploring ways in which Otting's ladder-climbing restriction could be accommodated, he terminated Otting and told her to apply for Social Security. In light of the Supreme Court's statement in Kolstad that the "malice" and "reckless indifference" pertain to an employer's knowledge that it may be acting in violation of federal law, we conclude that a jury could reasonably have found J. C. Penney liable for punitive damages.

Boersig v. Union Elec. Co., 219 F.3d 816 (2000)  In Benson v. Northwest Airlines, Inc., 62 F.3d 1108 (8th Cir. 1995), we held that the ADA does not require an employer to accommodate a disabled employee by violating a "bona fide" seniority system. A "bona fide" seniority system has been defined as "one that was created for legitimate purposes, rather than for the purpose of discrimination." Eckles v. Consolidated Rail, 94 F.3d 1041, 1046 n.7 (7th Cir. 1996). Boersig offers no evidence that Union Electric and Local 1439 incorporated the promotion system at issue in this case to discriminate against the disabled. Thus, Boersig has failed to demonstrate that the promotion system is not "bona fide." Moreover, although the CBA's promotional system is based on departmental seniority rather than total length of employment, we find that this CBA creates a seniority system which Union Electric was not required to violate to accommodate Boersig's disability.

Phillips v. Union Pacific R. Co., 216 F.3d 703 (2000) Phillips also contends that the district court erred in granting JAML on her ADA claim. To be entitled to ADA protection, a plaintiff must show, among other things, that she is a "qualified individual" within the meaning of the ADA. See Weber, 186 F.3d at 916. A qualified individual is one who is able to perform, with or without accommodation, "the essential function of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8); see Weber, 186 F.3d at 916. Like the district court, we conclude that Phillips failed to show that she is a qualified individual. Both Dr. Neal and Dr. Stephen Snyder, another physician who treated Phillips, testified that Phillips could not perform her stenographer job without accommodation and that she could perform it with accommodation only if she received psychiatric treatment and drug and alcohol monitoring. Phillips, however, testified that she was not receiving psychiatric care, and she has presented no other evidence that persuades us that she could perform the essential functions of her job, with or without accommodation. See Buckles v. First Data Resources, Inc., 176 F.3d 1098, 1101 (8th Cir. 1999) (burden is on plaintiff to show that a reasonable accommodation enabling him to perform essential functions of his job is possible). We thus conclude that the district court properly entered JAML in favor of Union Pacific on Phillips's ADA claim. See Mole v. Buckhorn Rubber Prod., Inc., 165 F.3d 1212, 1217 (8th Cir. 1999) (finding plaintiff with declining psychological health no longer able to perform essential functions of job).

Cravens v. Blue Cross and Blue Shield of Kansas City, 214 F.3d 1011 (2000)  Finally, assuming BCBS acted in bad faith by failing to engage in such an interactive process, BCBS has produced no evidence that reassigning Cravens to either the telecommunications position or one of the other nine identified positions would have created an undue hardship.  Thus, we hold that the district court erred in granting summary judgment for BCBS, because "there is a genuine dispute as to whether the employer acted in good faith and engaged in the interactive process of seeking reasonable accommodations." Fjellestad, 188 F.3d at 953.

Taylor v. Nimock's Oil Co., 214 F.3d 957 (2000)  Taylor argues that she is substantially limited in the life activities of breathing, walking, doing yard work, cleaning house, and having sex. Taylor also admitted, however, that she can walk and has walked long distances, including approximately a mile to work, and can perform the activities listed above, although she may have to perform them in moderation. In Weber, we noted that the employee could not walk long distances or climb stairs without becoming fatigued and was subject to certain dietary restrictions, but held that "these moderate limitations on major life activities do not suffice to constitute a ‘disability' under the ADA." See id. at 914. We conclude that Taylor's limitations in the above-listed areas are likewise moderate and thus do not qualify as substantial limitations on a major life activity other than work. Taylor also contends that she is substantially limited in the major life activity of working. To be so limited, she must be "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i). Inability to perform one particular job does not constitute a substantial limitation on working. See id.; Weber, 186 F.3d at 913.

Allen v. Interior Const. Services, Ltd., 214 F.3d 978 (2000)  Even assuming a prima facie case of discrimination, we believe that Allen has failed to present sufficient evidence that Interior's proffered reason for not employing Allen--lack of carpentry work--was a pretext for discrimination. To establish a fact issue on pretext, a plaintiff must present evidence that: (1) creates a factual dispute as to whether the employer's proffered reasons for taking adverse employment action are pretextual; and (2) allows a reasonable jury to infer that the employer's action was motivated by a discriminatory animus. See Young, 152 F.3d at 1023; Wilking v. County of Ramsey, 153 F.3d 869, 874 (8th Cir. 1998). Allen has not made such a showing. The only evidence he offers to undermine the veracity of Interior's proffered reason for not employing him is Interior's pre-litigation letter to him and Interior's hiring of 23 carpenters from December of 1995 through July of 1996. As noted above, however, the letter does not contain a stated reason for Interior's failure to employ Allen during the relevant time period, and Interior's hiring of other carpenters does not undermine Interior's proffered reason in the absence of evidence that they were hired in lieu of Allen. Moreover, the record lacks any evidence that Interior's failure to employ Allen was motivated by a discriminatory animus towards his disability. Thus, we conclude that summary judgment was also warranted for want of evidence of pretext.

Kampouris v. St. Louis Symphony Soc., 210 F.3d 845 (2000) In granting the symphony orchestra summary judgment, the district court concluded Kampouris failed to establish the symphony orchestra perceived him to be disabled, failed to establish he was capable of performing the job without accommodation, and failed to show the adverse action was discriminatory.

Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827 (2000)  The evidence in support of Kells' claim that he was demoted and constructively discharged because of his disability, viewed in a light most favorable to him, can be summarized as follows: insensitive comments by supervisor Ruhland in connection with Kells' physical limitations, repeated denials of reasonable accommodation requests, Kells being replaced by a non-disabled worker, and an inference that the MAP recommendation may have been manufactured post-hoc to support a non-discriminatory explanation for Kells' demotion. Granting Kells all reasonable inferences from these facts, we conclude that a genuine issue has been presented as to whether the Defendant's actions were motivated by the existence of Kells' disability. We will reverse the district court's grant of summary judgment on this claim.

Lloyd v. Hardin County, Iowa, 207 F.3d 1080 (2000)  As we have stated, the restructured job proposed by Lloyd would necessarily entail reallocating one or more of the essential functions of Lloyd's job, which he cannot perform with or without reasonable accommodation. Therefore, Lloyd has failed to provide an explanation "sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or [Lloyd's] good faith belief in, the earlier statement, [Lloyd] could nonetheless 'perform the essential functions' of [his] job, with or without 'reasonable accommodation.'" Cleveland, 119 S. Ct. at 1604. Accordingly, Lloyd's only proffered explanation for his inconsistent assertions fails to overcome the presumption, created by his prior allegation of total disability, that he is not a qualified individual within the meaning of the ADA.

Treanor v. MCI Telecommunications Corp., 200 F.3d 570 (2000)  The ADA does not prevent an employer from terminating a disabled person who is not qualified to perform the essential functions of a particular and available job. Even if we assume for purposes of argument that Treanor has raised a question of whether she was qualified, she still has not presented sufficient evidence from which a jury could find that she was discharged because of her disability. MCI explained that it terminated Treanor because she had been on an extended leave of absence, after which she was unable to find suitable work within the company. The record supports this assertion; Treanor did not even apply for a position in 1993. See Wilking, 153 F.3d at 873 ("[W]hen an employer articulates a reason for discharging the plaintiff not forbidden by law, it is not our province to decide whether that reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.") (internal quotations omitted). "To demonstrate pretext, a plaintiff must present sufficient evidence to demonstrate both that the employer's articulated reason for the adverse employment action was false and that discrimination was the real reason." Id. at 874 (internal quotations and alterations omitted). Treanor did not create a question of fact on pretext. As the district court noted, MCI presented evidence that no part-time positions existed in August 1993. Furthermore, MCI had granted her liberal leaves of absence to accommodate her medical condition. The record in this case simply does not support an inference that Treanor was terminated because of her disability.

Amir v. St. Louis University, 184 F.3d 1017 (1999)   Viewing the evidence in a light most favorable to Amir, a genuine issue of material fact exists regarding the issue of pretext. While SLU's proffered evidence is compelling, it does not yield an inescapable conclusion that SLU did not retaliate against Amir. Amir filed a grievance against Dr. Park, in which he made serious allegations of coercion and discrimination. Dr. Park admitted that she was angered by these allegations. Shortly before Amir re-enrolled in the psychiatry clinic, the psychiatry department issued a new departmental policy that allowed a supervisor greater discretion in issuing a student a failing grade. Amir passed all the components of his clinic; yet, Dr. Park issued him a failing grade based upon the new policy. It is worth noting that the new grading policy was not instituted by SLU Medical School as a whole. Rather, it was a product of and used only by the psychiatry department. Dr. Park was the chairman of the psychiatry department. The fact that a policy was issued by the psychiatry department just before Amir returned to the clinic raises suspicion.  Similarly, Dr. Park's expansive discretion to issue a failing grade despite overall passing marks raises a question of possible retaliation. The question of retaliation is bolstered by the fact that the discretionary failing grade was issued by Dr. Park, a person who was angered by Amir's accusations.3  The fact question is enlarged by the filing of the complaint in federal court. SLU certainly had a basis for terminating Amir. If the basis for the dismissal was a failing grade due to an improper retaliation, however, then the dismissal as a whole was improper. There is no indication that SLU would have dismissed Amir absent his failure in psychiatry. Accordingly, the entire dismissal of Amir may have tainted origins. In addition, there is evidence that SLU might not have dismissed Amir absent his decision to file a lawsuit. Amir engaged in questionable conduct during the early stages of his academic career at SLU. Yet, SLU took no adverse action against him. Amir failed his courses during the first attempt at his first year; yet, SLU did not dismiss him. Amir's academic performance improved during his second attempt at his first year and throughout his second year. While Amir's performance certainly was not stellar, there is no indication that he faced a danger of dismissal. When Amir failed his OB/Gyn clinic, SLU allowed him to remediate the rotation. However, after he filed suit against the school, SLU refused to allow him to remediate his psychiatry rotation and decided to terminate him. This is evidence from which a reasonable jury could conclude that SLU engaged in improper retaliation. Finding a genuine issue of material fact as to whether SLU's and Dr. Park's actions constitute a pretext for discrimination, we must reverse the district court and remand this case for further proceedings not inconsistent with this opinion.

Shipley v. City of University City, 195 F.3d 1020 (1999)  Shipley has attempted to recast his claim on appeal to distinguish it from these precedents. Shipley cites the effect his injuries have had on his "walking, lifting, and excreting," complaining that the district court improperly disregarded the ways in which these major life activities have been impaired. It is not at all clear that he ever directed this theory to the attention of the district court. Moreover, Shipley has not produced evidence that he was terminated for any reason other than the retirement board's concerns about his capacity to perform as a firefighter. The record indicates only that he was not reinstated because University City believed he was unable to meet the requirements of that position. Shipley has not made out a claim under either the ADA or the Rehabilitation Act.

Belk v. Southwestern Bell Telephone Co., 194 F.3d 946 (1999)  Although we find that the failure to give the instruction requires us to vacate the district court's grant of injunctive relief, as well as the award of attorney's fees, SWB's success on this appeal may indeed be short lived. The remand necessarily provides Belk with another opportunity to win outright on his discrimination claim. As manifested by the earlier jury verdict, Belk has produced sufficient evidence under the ADA to warrant a jury to return a favorable verdict for him. For the foregoing reasons, we vacate the judgment and remand for a new trial.

Winkle v. Southwestern Bell Telephone Co., 195 F.3d 418 (1999)  We also hold that Winkle failed to prove a disability within the meaning of the ADA because he presented no evidence that a major life activity was impaired. Consequently, we find Winkle failed to present a genuine issue of material fact on his ADA claim.

Buckles v. First Data Resources, Inc., 176 F.3d 1098 (1999)  We focus our attention on Buckles' burden to establish that he is qualified to perform the essential functions of his job with or without reasonable accommodation.First Data contends that Buckles is not qualified because of his excessive absences. In the context of the ADA, we have recognized that "regular and reliable attendance is a necessary element of most jobs." Nesser, 160 F.3d at 445. First Data is no exception and considers attendance to be an "essential function," as illustrated by the detailed attendance policies and procedures. Buckles, an hourly employee, disputes that attendance is essential to First Data since there are numerous employees and the company accounts for possible absences. We are not persuaded by such a conclusory argument,2 which runs contrary to the express policies and procedures of First Data. On June 21, 1994, Buckles' allotted vacation and sick leave time was replenished. In the short space of the six weeks that followed, he exhausted his entire year's worth of vacation and permitted sick leave time. Over the next two months, Buckles continued to have numerous absences and was finally terminated on October 2, 1994. Because of Buckles' frequent absences, he was unable to meet an essential function of his employment.  The accommodation sought by Buckles would impose an undue financial and administrative burden on First Data. An employer is not required by the ADA to create a wholly isolated work space for an employee that is free from numerous possible irritants, and to provide an unlimited absentee policy. While the ADA notes examples of reasonable accommodations, including restructuring of a job and providing part-time or modified work schedules, see 42 U.S.C. § 12111(9)(B), these are limited by the reasonableness requirement. As noted, First Data reasonably attempted to alter the work environment and procedures to reduce Buckles' absences. This effort was unsuccessful, and Buckles continued to have numerous and unpredictable absences. Cf. Jackson v. Veterans Admin., 22 F.3d 277, 279 (11th Cir. 1994) (stating there was no reasonable accommodation for "numerous unpredictable absences" within the first few months of temporary employment).

Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043 (1999)  The ADA is broad in its scope, but it only protects individuals who can perform their job. Browning was terminated while recovering from her injury, and prior to the point in her recovery when she could once again perform the essential functions of her job. The fact that she continued to heal, gain strength and use of her arm, once again becoming a qualified individual who could perform the essential functions of the job, does not obviate the fact that she was not a qualified individual at the time of her termination, and thus not under the protective umbrella of the ADA.

Stanback v. Best Diversified Products, Inc., 180 F.3d 903 (1999)

Bailey v. Amsted Industries, Inc., 172 F.3d 1041 (1999)

Fjellstad v. Pizza Hut of America, Inc., 188 F.3d 944 (1999)  First, Pizza Hut's interpretation ignores the Act's use of the words "substantially limited." We again emphasize our earlier observation made in Webb v. Garelick Mfg. Co., 94 F.3d 484, 488 (8th Cir. 1996), that "the ADA is concerned with preventing substantial personal hardship in the form of significant reduction in a person's real work opportunities. A court must ask ‘whether the particular impairment constitutes for the particular person a significant barrier to employment.'" Id. at 488 (citations omitted) (emphasis added). The person's expertise, background, and job expectations are relevant in defining the class of jobs used to determine whether the person is disabled. See id. Finding that an individual is substantially limited in his or her ability to work requires a showing that his or her overall employment opportunities are limited. Miller v. City of Springfield, 146 F.3d 612, 614 (8th Cir. 1998). Thus, the Act does not require a showing that absolutely no employment opportunities exist. Second, Pizza Hut's interpretation that a plaintiff must be totally disabled to qualify under the ADA would render the Act meaningless and unable to provide any remedy at all. Under the ADA, a disabled person must be qualified to perform the essential functions required of the job, with or without reasonable accommodation. Yet, under Pizza Hut's argument, if an individual can perform the essential functions of the job with accommodation, then that person is not disabled. This interpretation is circular and would defeat any person's ability to recover. The ADA is designed to prevent discrimination of a disabled person who can perform the essential functions of the job with or without reasonable accommodation. The ADA is not legislation to benefit those who are totally disabled and unable to perform any job.

Cossette v. Minnesota Power & Light, 188 F.3d 964 (1999)  As we stated above, we must view the evidence in the light most favorable to the party opposing the motion for summary judgment, and we must give that party the benefit of all reasonable inference to be drawn from the evidence. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Luigino's, Inc. v. Stouffer Corp., 170 F.3d 827, 830 (8th Cir. 1999). If Cossette's lifting restriction was as trivial and temporary as MP&L and Burton argue, then a reasonable factfinder could infer that Cossette could have performed a letter carrier's job in April 1994. On summary judgment we must give Cossette the benefit of that inference, and we therefore reverse the grant of summary judgment in MP&L and Burton's favor.  While Cossette states a viable ADA claim arising from Burton's disclosure of the back injury and lifting restriction to the Postal Service, the claim arising from Burton's telling his subordinates about Cossette's back problem and perceived intellectual deficiencies is more problematic. Burton made these latter disclosures to Cossette's prospective co-workers just before Cossette's transfer to the Office Services Department. As a result, Cossette's co-workers treated her in a condescending and patronizing fashion.  As we explained above, Cossette must establish a tangible injury caused by the alleged illegal disclosure. See Griffin v. Steeltek, Inc., 160 F.3d 591, 594-95 (10th Cir. 1998); Armstrong v. Turner Indus., Inc., 141 F.3d 554, 562 (5th Cir. 1998). Cossette's claimed injury of being treated in a condescending and patronizing manner falls short of an "adverse employment action" that would be required to establish a prima facie case of disability discrimination under 42 U.S.C. § 12112(a).6 The parties have not briefed whether such treatment suffices to create a claim of illegal disclosure of medical information under subsection 12112(d). We reverse the district court's grant of summary judgment relating to Cossette's claim that Burton illegally disclosed confidential medical information about Cossette to his subordinates in the Office Services Department, so that this issue may first be considered by the district court.

Moore v. Payless Shoe Source, Inc., 187 F.3d 845 (1999)  There is no evidence that Moore advised Payless at the time in question "what accommodation specific to her position and workplace was needed." Mole v. Buckhorn Rubber Prods., Inc., 165 F.3d 1212, 1217 (8th Cir.), petition for cert. filed, 67 U.S.L.W. 3773 (U.S. Jun. 22, 1999) (No. 98-1990). Moreover, there is no evidence that Moore's position as a Hobby Lobby sales clerk, and her former position as a Payless store manager, are so similar that a reasonable accommodation at one would suffice at the other. Moore seeks to fill these evidentiary gaps with the contention that Payless simply needed to afford her the same accommodation it had previously provided. But the record refutes this contention. Each time Moore returned to the store manager position in 1991 and 1993 -- with the accommodation she now alleges is sufficient to make her able to perform the job -- she reinjured herself and was forced to take an extended leave of absence. 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." Halperin v. Abacus Tech. Corp., 128 F.3d 191, 198 (4th Cir. 1997); see Foremanye v. Board of Community College Trustees, 956 F. Supp. 574, 578-79 (D. Md. 1996). On this record, the district court properly granted summary judgment dismissing Moore's ADA claim.

Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723 (1999)  Mr. Cannice, moreover, did not make out any other kind of submissible case under the ADA, because he lacked proof that an accommodation of his disability would have allowed him to keep his job. That was an element of his case. We emphasized in Fjellestad, 1999 WL 391911, at *7, that the "employee still carries the burden of showing that a particular accommodation rejected by the employer would have made the employee qualified to perform the essential functions of the job." Mr. Cannice and his experts testified that his condition deteriorated while he was at Norwest and that this was at least in part due to the environment in the department where he worked. It does not appear to us, however, that a reasonable fact finder could conclude that any of the difficulties that he experienced there were due to Norwest's failure reasonably to accommodate his disability or that he left his job because of such a failure to provide an accommodation.  Mr. Cannice names only one type of accommodation that Norwest could have made, namely, providing him with a private, unmonitored telephone line so that he could talk to his doctor, friends, or family if he experienced a panic attack. Mr. Cannice requested such a private telephone line, but Norwest offered him instead the use of the telephones in a conference room and in his manager's office. Mr. Cannice testified that neither of these options was satisfactory because the telephones were too far from his desk and he would have difficulty reaching them during an attack. There is no evidence, however, that the lack of a private telephone line impaired his ability to work or aggravated his disability. He did not testify that he in fact ever suffered an attack after he requested a private telephone line or that he ever had trouble reaching a telephone. At worst, he was made anxious by the knowledge that his own telephone was monitored and that the other telephones were some distance away. Most important, he did not say that he would have been able to continue functioning in his job if Norwest had provided him with a private telephone line.

Greer v. Emerson Elec. Co., 185 F.3d 917 (1999)  In the instant case, Greer has presented no evidence from which to reasonably infer that any of her major life activities is substantially limited. Greer claims that "but for the conduct of Jarrett toward her, her prior disability, severe depression, would not have been aggravated," which contributed to her excessive absences, ultimate discharge, and present condition of total disability. Appellant's Br. at 17. Despite Greer's claim that her excessive absenteeism stemmed from her alleged disability as aggravated by Jarrett's harassment, the record reveals that many of these absences resulted from different, non-serious ailments, ranging from the flu to diarrhea to an injured thumb.  However, even assuming that Greer's condition made her unable to work with Jarrett, this does not mean that Greer was substantially limited in the major life activity of working. See Snow, 128 F.3d at 1206-07 ("The inability to perform a single particular job does not constitute a substantial limitation in the major life activity of working.") (quotation and citation omitted). Moreover, as of the date of Greer's termination on September 15th, Dr. Felts and Mr. Camp medically released Greer to return to work without any medical restrictions. The fact that Greer may have become substantially limited at some point following her September 1995 discharge is irrelevant to the analysis, and the district court did not err in not discussing the deposition testimony of Mr. Camp.9 Therefore, we agree with the district court that there is no genuine issue of material fact and that Greer is not disabled within the meaning of the ADA or the ACRA.   We have recognized that "regular and reliable attendance is a necessary element of most jobs." Nesser, 160 F.3d at 445; see also Halperin v. Abacus Tech. Corp., 128 F.3d 191, 198 (4th Cir. 1997) (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.") Here, regular and reliable attendance was a necessary element of Greer's job at Emerson. Emerson maintained a policy and progressive discipline practice regarding absenteeism. A review of Greer's attendance records for 1993 through 1995 indicate that, exclusive of vacation time, Greer missed 67 days of work in 1993, 65 days of work in 1994, and 110 days of work through September 15, 1995. Greer does not dispute the accuracy of the attendance records or disciplinary forms that Biles and Tolleson relied upon in discharging her. Moreover, Greer admitted in her Statement of Undisputed Facts submitted to the district court that she "was terminated for no other reason other than absenteeism." J.A. at 146. As previously noted, we reject Greer's claim that her excessive absenteeism stemmed from her alleged disability as aggravated by Jarrett's harassment because the record reveals that many of these absences resulted from various, non-serious ailments, unrelated to her depression. Therefore, we find that Greer also failed to establish that she was a qualified individual with a disability.

Weber v. Strippit, Inc., 186 F.3d 907 (1999)  The ADA cannot reasonably have been intended to create a disparity in treatment among impaired but non-disabled employees, denying most the right to reasonable accommodations but granting to others, because of their employers' misperceptions, a right to reasonable accommodations no more limited than those afforded actually disabled employees. Accordingly, we hold that "regarded as" disabled plaintiffs are not entitled to reasonable accommodations and that the district court did not err in failing to give a reasonable accommodation instruction.

Spades v. City of Walnut Ridge, Ark., 186 F.3d 897 (1999)  Spades's alleged disability is depression. The evidence supports the allegation that Spades has suffered from depression in the past. However, this commands no per se conclusion that he is presently disabled within the meaning of the ADA. The question of what constitutes a disability within the meaning of the ADA was recently taken up by the Supreme Court in Sutton v. United Air Lines, Inc., No. 97-1943, 1999 WL 407488 (U.S. June 22, 1999) and Murphy v. United Parcel Service, Inc., No. 97-1992, 1999 WL 407472 (U.S. June 22, 1999). Under Sutton and Murphy, a determination of whether Spades's depression is a disability must be made with reference to any mitigating measures he employs. See Sutton, 1999 WL 407488, at *7. "A person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently 'substantially limits' a major life activity." Id. at *8.  The record shows that Spades took medication and received counseling for his alleged disability of depression. He concedes that resort to medicines and counseling "allow him to function without limitation." Thus, his depression is corrected and cannot substantially limit a major life activity–a requirement for finding that an individual is disabled within the meaning of the ADA. Although Spades cannot establish an actual disability which presently and substantially limits a major life activity, he argues in the alternative that he is "perceived to be disabled," and thereby qualifies as disabled within the meaning of the ADA. See id. at *12; 42 U.S.C. § 12102(2)(C) (having a disability includes "being regarded as having" a physical or mental impairment that substantially limits a major life activity). The record does not support the allegation that the City perceived Spades as disabled within the meaning of the ADA. Thus, he cannot establish a prima facie case.  Even assuming Spades established a prima facie case, we agree with the district court that he has not shown that the legitimate nondiscriminatory reason for termination was a pretext. The City articulated a nondiscriminatory reason for his termination-increased likelihood of liability. Increased potential liability associated with an employee's past activities is a legitimate concern of the City, particularly when there is known violent behavior. Claims of negligent hiring, supervision, and retention loom large in the minds of employers and their lawyers. Thus, Spades has advanced no factual or legal argument, beyond mere conjecture and conclusion, that the City's stated reason for discharging him was a pretext for discrimination.

Hill v. Kansas City Area Transp. Authority, 181 F.3d 891 (1999)  Hill's ADA claim is that KCATA violated the Act by "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. § 12112(b)(5)(A). In evaluating this claim, we must identify Hill's "disability" for ADA purposes, an issue she does not even address on appeal. See 42 U.S.C. § 12102(2) (definition of "disability"). In the district court, Hill argued her hypertension is a disability. But Hill controlled her hypertension for over ten years with medications that permitted her to perform her job as a KCATA bus driver. Her hypertension is not a disability because, "when medicated, [her] high blood pressure does not substantially limit [her] in any major life activity." Murphy v. United Parcel Serv., Inc., No. 97-1992, 1999 WL 407472, at *3 (U.S. Jun. 22, 1999).  Hill further argues that the drowsiness caused by taking hypertension medication in combination with the pain relievers prescribed for her work-related injuries was an ADA disability. Most assuredly, an essential function of a bus driver's job is the ability to stay awake, and Hill presented medical evidence that her medications can in combination cause drowsiness. But we find no evidence in the record that Hill's physical condition compelled her to take a combination of medications that persistently affected her ability in 1995 to stay awake on the job. Therefore, she failed to present sufficient evidence that this alleged physical impairment substantially limited her major life activity of working. See 29 C.F.R. § 1630.2(j)(3).

Berg v. Norand Corp., 169 F.3d 1140 (1999)  "Not every physical or mental impairment 'counts' for ADA purposes, because most disabilities from which people suffer (bad vision, impaired hearing, arthritic joints, diabetes) do not have a substantial enough effect on their major life activities." Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 675 (7th Cir. 1998). Such is the case with Ms. Berg. In her resistance to summary judgment, Berg only claimed that her diabetes limited her major life activity of working. (See J.A. at 177, 180.) Subsequent to her termination from Norand, Berg started her own tax and accounting practice and became the chief financial officer of a construction company. She concedes that she has never been unemployed. (See J.A. at 194.) Berg has failed to show any class of jobs or broad range of jobs from different classes from which she is excluded because of her diabetes. See 29 C.F.R. § 1630.2(j)(3)(ii) (listing factors for determining whether an individual is limited in the life activity of working). Thus, Berg is not substantially limited in the major life activity of working.

Kiel v. Select Artificials, Inc., 169 F.3d 1131 (1999).  The ADA requires employers to make reasonable accommodations to allow disabled individuals to perform the essential functions of their positions. See 42 U.S.C. § 12111(8)-(9). A reasonable accommodation should provide the disabled individual an equal employment opportunity, including an opportunity to attain the same level of performance, benefits, and privileges that is available to similarly situated employees who are not disabled. See 29 C.F.R. § 1630.9 (Appendix) (1998). If more than one accommodation would allow the individual to perform the essential functions of the position, "the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the cless expensive accommodation or the accommodation that is easier for it to provide." Id.

Campbell v. Minneapolis Public Housing Authority ex rel. City of Minneapolis, 168 F.3d 1069 (1999).  The Housing Opportunity Program Extension Act of 1996 supersedes 504 and the ADA thereby permitting defendant housing authority to require applicants to disclose information about past drug addiction as well as release of chemical-dependency treatment records.

Mole v. Buckhorn Rubber Products, Inc., 165 F.3d 1212 (1999). Court upheld discharge of employee with MS and depression. Employee's poor job performance evaluations started long before employer learned she had MS. Plaintiff's contention that her infractions were not serious enough to warrant a discharge questioned the soundness of defendant's judgment and did not demonstrate pretext for discrimination.

Land v. Baptist Medical Center, 164 F.3d 423 (1999).  Court held that child's allergy to peanuts was not a disability under the ADA or 504 in that it did not substantially limit her abilities to eat and breathe. Attending day care is not a major life activity. Dissent argued her impairment did substantially limit her ability to eat.

Perkins v. St. Louis County Water Co., 160 F.3d 446 (1998).  Meniere's disease did not render plaintiff disabled. During three years of employment, plaintiff suffered only two Meniere's related episodes. Plaintiff was terminated for excessive absenteeism. There was no nexus between his absenteeism and his permanent partial hearing loss; therefore he was not discriminated against because of his hearing impairment.

Gutridge v. Clure, 153 F.3d 898 (1998).  Plaintiff's carpel tunnel syndrome and cubital tunnel syndrome in both his wrists did not render him disabled under the ADA. He could not work at his former job, but was capable of other employment that did not require lifting. Although lifting is a major life activity, a general lifting restriction imposed by a physician without more is insufficient to constitute a disability.

Gorman v. Bartch, 152 F.3d 907 (1998).  Plaintiff, who was confined to a wheelchair, was injured while being transported by police after his arrest in a van that did not have wheelchair restraints. The court held that the ADA applied to the police under Title II and remanded the case to determine if he was discriminated against or denied a benefit or service because of his disability or if further accommodation would have been an undue burden.

U.S. v. Days Inns of America, Inc., 151 F.3d 822 (1998).  Lower court granted defendant franchisor summary judgment in ADA action over accessibility of hotel. CAP reversed holding that franchisor with no knowledge that fanchisee has constructed an inaccessible facility will not be liable under ADA. In this case it was unclear whether franchisor had such knowledge hence the remand.

Layton v. Elder, 143 F.3d 469 (1998).  The Court reversed the district court's denial of an injunction sought by disabled veterans who complained that programs and services provided on a county courthouse's second floor were not accessible to individuals with mobility impairments.  Voluntary steps taken by the county, although commendable, did not address this problem.

Olson v. Dubuque Community School Dist., 137 F.3d 609 (1998).  The court could find no evidence that plaintiff's depression rendered her unable to do her particular job much less a broad range of jobs. She there for failed to meet the ADA requirement of disability. The mere fact that her employer was aware of her condition is not sufficient to show it regarded her as disabled.

Snow v. Ridgeview Medical Center, 128 F.3d 1201 (1997).  A general lifting restriction imposed by a physician without more is insufficient to constitute a disability within the meaning of the ADA. There was also no evidence that plaintiff was precluded from performing a class or broad range of jobs as compared to average persons in the general population.

DeBord v. Board of Educ. of Ferguson-Florisant School Dist., 126 F.3d 1102 (1997).  Court upheld grant of summary judgment to school district that refused to administer a prescription drug to plaintiff in an amount that exceeded the recommended daily dosage in the Physician's desk reference. This did not violate the ADA because the district's policy was facially neutral and did not apply solely to the disabled. Plaintiff's Title III claim failed because it applies to private entities providing public accommodations and not to public entities.

Roberts v. Unidynamics Corp., 126 F.3d 1088 (1997).Court reversed jury verdict finding evidence was insufficient to show plaintiff was terminated from his employment because his employer regarded him as being HIV positive or having AIDS.

Miners v. Cargill Communications, Inc., 113 F.3d 820 (1997).  Reversed lower court grant of summary judgment for employer. Plaintiff made out a prima facie case of discrimination under the ADA by establishing her employer regarded her as being an alcoholic. She also presented ample evidence she was qualified to perform the job for which she was hired and presented evidence from which a reasonable jury could conclude the proffered reason for her discharge was a pretext for unlawful discrimination. Case was remanded for further proceedings.

Harris v. Polk County, Iowa, 103 F.3d 696 (1996). Plaintiff was originally fired from her stenographer job with the county attorney for shoplifting. Four years later she reapplied for her old position. Court held even though plaintiff claimed she shoplifted four years earlier as a result of her mental illness, defendant did violate ADA by not hiring her. Policy against hiring applicants with criminal records was applied across the board and not a pretext. The ADA does not require employers to overlook infractions of the law.

Webb. v. Mercy Hosp., 102 F.3d 958 (1996).  Plaintiff failed to prove her employer regarded her as disabled. She produced no evidence that her supervisors or management were aware of a previous diagnosis and hospitalization for depression.

Smith v. City of Des Moines, Iowa, 99 F.3d 1466 (1996). Plaintiff was unable to perform the duties of a firefighter because he could not meet the physical fitness standards. Court found defendant did not violate ADA because plaintiff was only unable to perform the job of firefighter and he did not suggest that the defendant believed he was unable to perform other jobs.

Rauenhorst v. U.S. Department of Transp., 95 F.3d 715 (1996). Driver of commercial vehicle who had monocular vision applied from waiver of the requirement that drivers of commercial vehicles have binocular vision. Decision not to grant the waiver was found to be arbitrary and capricious.

Krauel v. Iowa Methodist Medical Center, 95 F.3d 674 (1996). Insurance plan refused to pay for plaintiff's fertility treatments. Court found that reproduction and caring for others are not cognizable major life activities under the ADA. Court also found that the insurance plan did not discriminate against plaintiff. The plan would not pay for fertility treatment for anyone and did not single out specific disabilities.

Webb v. Garelick Mfg. Co., 94 F.3d 484 (1996). Plaintiff was diagnosed with focal dystonia, which made it impossible for him to write with either hand. When he challenged his discharge as a violation of the ADA the district court held he could find work in other occupations that did not require handwriting. CAP reversed stating it was troubled with the district courts suggestion that a plaintiff can never demonstrate disability as long as there is any other job he can perform. Plaintiff need not show that his impairment restricts his ability to perform all jobs rather than a certain class of jobs.

Robinson v. Neodata Services Inc., 94 F.3d 499 (1996).  Plaintiff was not disabled under the ADA. She could not perform her former job; however, she could perform other work and was therefore able to perform the major life activity of working. Her own physician opined that plaintiff had only a 6 per cent impairment rating and that it would have little affect on her ability to perform major life activities, including working.

Alexander v. Pathfinder, Inc., 91 F.3d 59 (1996).  Court found that plaintiff's discharge from a care facility did not violate ADA or 504. Court found that the findings of the hearing officer at an administrative hearing were binding because they were not appealed. The defendant was found to have discharged plaintiff because he required a much higher level of care than it could provide.

Roberts v. Kindercare Learning Centers, Inc., 86 F.3d 844 (1996). Plaintiff, a four year old developmentally delayed youth, required personal care services on a continuous one on one basis. Plaintiff suffered from seizures, attention-deficit hyperactivity disorder and had a tendency to commit self-injurious acts and to run away. His parents attempted to enroll him full time inn defendant day Care center. The defendant refused to accept plaintiff unless he had a full time personal care aid with him at all times. His parents sued under the ADA. Court found for defendant holding the accommodation of one on one care for plaintiff would impose an undue burden on defendant.

Aucutt v. Six Flags over Mid-America, Inc., 85 F.3d 1311 (1996).   Plaintiff's angina, high blood pressure and coronary artery disease did not amount to a disability under the ADA. The only medical restriction imposed on plaintiff by his doctor was that he not lift more than 25 pounds. That alone does not limit the major life activity of working. His employer was also found not to have considered him disabled because he presented no evidence showing his employer perceived or treated him as having a substantially limiting impairment.

Price v. S-B Power Tool, 75 F.3d 362 (1996). Plaintiff suffered from epilepsy. She was discharge for excessive absenteeism. The court upheld a grant of summary judgment for the employer because plaintiff failed to show her discharge occurred under circumstances that would permit an inference of discrimination. Defendant offered a legitimate nondiscriminatory reason for plaintiff's dismissal and plaintiff failed to come forward with any evidence of pretext.

Demming v. Housing and Redevelopment Authority, of Duluth, Minn., 66 F.3d 950 (1995).  Plaintiff's thyroid cancer was not a disability under 504. Her hospitalization failed to establish a disability because her cancer did not prevent her from performing her duties on a daily basis.

Lue v. Moore, 43 F.3d 1203 (1994).

Pottgen v. Missouri State High School Activities Ass'n, 40 F.3d 926 (1994).

Wood v. Omaha School Dist., 985 F.2d 437 (1993).

Kohl by Kohl v. Woodhaven Learning Center, 865 F.2d 930 (1989).

Norcross v. Sneed, 755 F.2d 113 (1985).

Plummer by Plummer v. Branstad, 731 F.2d 574 (1984).

Hoyt v. St. Mary's Rehabilitation Center, 711 F.2d 864 (1983).