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Tjernagel v. The Gates Corporation: EMPLOYMENT - no error finding plaintiff not disabled per ADA

United States Court of Appeals
No. 07-3101
Glena Tjernagel, *
Appellant, **
Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
The Gates Corporation, doing *
business as The Gates Rubber *
Company, *
Appellee. *
Submitted: April 17, 2008
Filed: July 9, 2008
Before WOLLMAN, BEAM, and RILEY, Circuit Judges.
RILEY, Circuit Judge.
After Glena Tjernagel (Tjernagel) was dismissed from her job, she sued her
former employer, The Gates Corporation (Gates), under the Americans with
Disabilities Act (ADA), the Iowa Civil Rights Act (ICRA), and the Family Medical
1The FMLA claim is not a subject of this appeal. Tjernagel also alleged
retaliation, but does not appeal the adverse ruling on her retaliation claim.
2The Honorable Thomas J. Shields, United States Magistrate Judge for the
Southern District of Iowa, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. 636(c).
Leave Act (FMLA).1 The district court2 granted summary judgment for Gates
on all claims, concluding Tjernagel did not establish she was disabled as a matter of
law. Tjernagel appealed. We affirm.
In May 1995, Tjernagel was employed by Gates at its Boone, Iowa, plant as a
part-time production employee, switching to full-time employment in August 2004.
At its Boone plant, Gates manufactures hydraulic and industrial hoses. Tjernagels job
description included the following demands: repetitive body movements[,]
particularly fingers, hands, legs, and feet; work . . . performed from a standing
position with frequent . . . twisting, bending, lifting, pulling and leaning; [c]onstant
use of a foot pedal from the standing position placing weight on one foot; lifting and
carrying . . . up to 40 pounds; [r]eaching for, lifting and carrying . . . material and/or
equipment weighing up to 40 pounds; [p]ulling hose off reels or bales; [p]ushing
and/or pulling fully loaded material . . . carts; operating equipment; [a] high
percentage of attendance and on time arrival; [a]bility to handle several tasks; deal
with deadlines and production objectives; and ability to [c]hange from one job to
another to meet customer requirements. The job description noted work was
performed in eight hour shifts and [o]vertime is required to meet production demands
and can include Saturdays and Sundays when necessary. In 2005, Gatess Boone
employees worked twenty-two Saturdays. There were no permanent or regular light
duty production positions at the plant. While there was an office with office jobs,
Tjernagel never worked in the plant office.
3Tjernagel was diagnosed with carpal tunnel syndrome in the summer of 2005
which she asserts impacted her ability to do her job as early as February 2005. We do
not consider Tjernagels carpal tunnel syndrome because her claim here is solely
based on her CIS. ([T]he basis for [my] disability claim is [my] CIS and not my
carpal tunnel syndrome.)
At the time of Tjernagels termination, and for several months before her
termination, plant employees were required to rotate among production line positions.
For example, Line 5, where Tjernagel was working during the last several months
before her termination, rotated approximately every two hours. Rotation was done to
reduce the risk of repetitive use injuries, to allow cross-training and to promote team
work. On Line 5, positions included hose cutter (for which Tjernagel was not trained),
skiving, putting on couplings, putting cloth guard over the hose, scrunching the guard,
two crimping positions, putting caps on the ends of the hose, and packing the hose for
shipment. Scrunching must be done standing, but most other jobs could be performed,
at least part of the time, while sitting.
In May 2005, Tjernagel was first diagnosed with multiple sclerosis (MS). Later
that summer, a different physician clarified her condition as clinical isolated syndrome
(CIS) which differs from MS only by the number of clinically diagnosed attacks (i.e.,
multiple sclerosis requires multiple attacks). Tjernagel described her CIS symptoms
as extreme fatigue; problems standing, walking, and breathing; problems with her short
term memory; and numbness and tingling in her body. Tjernagel also thought her
eyesight might be affected.3
In the summer of 2005, Tjernagel told human resources manager Connie
Sorenson (Sorenson) she had MS. Sorenson, whose mother had MS, said, If you need
to take extra breaks . . . to sit down, whatever you need, let us know. Sometime
between July and September 2005, Tjernagel began leaving the production area to sit
down. She did not always give advance notice when leaving her work station, did not
clock out, and was paid for her time. Gates documented Tjernagel left her work station
about twenty times. Sometimes Tjernagel would come back later in her shift, and other
times she would not return at all. As early as August, Tjernagels line leader and
supervisor were reporting Tjernagels leaving the line was causing the line to run short
and disrupting production.
On October 24, 2005, Tjernagel was informed she needed a work capacity report
(WCR) from her doctor. Tjernagels physician, Dr. Bruce L. Hughes (Dr. Hughes),
completed the WCR which was signed, dated, and returned to Gates on November 2,
2005. The WCR identified Tjernagels condition as MS because Dr. Hughes was
concerned Gates may not know what CIS was. The WCR listed several work
restrictions including [s]tanding restricted to less than 60% of shift with intermittent
sitting vs. standing. The WCR noted Tjernagels condition was very intermittent
as signs and symptoms can come and go and advised [Tjernagel] knows what she
can tolerate and can determine when certain things are going to aggravate [her] disease.
[Tjernagel] can do other work, sedentary work if possible. No overtime.
After receiving the WCR, Sorenson called Dr. Hughess office and spoke to Dr.
Hughess nurse who reported Tjernagels restrictions are permanent and progressive.
They are intermittent, sometimes no problems and then there will be problems.
Hopefully, [Gates] can find something more suited to [Tjernagels] needs. She wants
to continue working.
On November 10, 2005, Sorenson met with Tjernagel asking, how will Gates get
the WCR to work into Tjernagels job description? Tjernagel replied, With
accommodations. Sorenson asked, Like what? and Tjernagel responded, Like
cameras on the crimpers and moving the guard machine closer. Tjernagel clarified
she would like to be able to lower the camera (which Tjernagel had to look through to
operate the machine) so she could operate the camera from a lower position. The
machine had a mechanism that allowed it to be lowered. Tjernagel began to use this
lowering mechanism every time and reported, it worked better for her. In addition,
the table where the guard material is placed on the hose was moved closer to the
operator, reducing the operators need to stretch her arms, although it still remained
difficult for Tjernagel to perform the scrunching function as her carpal tunnel
syndrome (which is not part of this claim) caused her pain. In this November 10, 2005,
meeting between Tjernagel and Sorenson, Tjernagel believes she also said she did not
feel I [am] disabled.
Sorenson informed Tjernagel the plant worked overtime and Tjernagel could not
be treated differently than other production workers. Tjernagel never worked overtime
again and was never asked to do so. On January 17, 2006, Tjernagel was terminated
because she could not work overtime and because of her other work restrictions.
Tjernagel was informed of Gatess complaint and appeal procedure which included
peer review and was told she had twenty-one days to seek peer review.
Between January 17 and 27, 2006, Tjernagel called the plant manager, Mark
Cooper (Cooper), and asked if she could get her job back if her overtime restriction
were lifted. Cooper advised her to check with her doctor, but did not say she would
get her job back if the overtime restriction were lifted. Tjernagel contacted Dr.
Hughess office and asked to have the overtime restriction lifted. A new WCR, dated
January 25, 2006, was submitted to Gates. The new WCR removed the overtime
restriction, but was identical to the prior WCR in all other respects.
On January 26, 2006, Cooper and Sorenson met with Tjernagel. Cooper asked
for and received a signed release from Tjernagel to allow the companys doctor to
contact Dr. Hughes and allow Dr. Hughes to discuss Tjernagels case, because Gates
did not want to do anything contrary to Tjernagels doctors restrictions. The company
doctor then attempted to contact Dr. Hughes, leaving a message on February 13, 2006,
asking him to call regarding Tjernagel. Before Dr. Hughes returned the call,
Tjernagels attorney wrote Dr. Hughes on February 28, 2006, advising Dr. Hughes that
the attorney understood a company physician was going to contact Dr. Hughes
regarding Tjernagel. Tjernagels attorney opined it was problematic to have the
company contact his clients doctors without the client being present, because the
company could ask very direct, pointed questions that have real legal implications
without a physician understanding the legal implications related to the medical issue
(i.e., defining essential functions of the job, discussing the nature and extent of the
physical restrictions and health condition, etc.). The attorney concluded, If I can be
of any assistance in that process, please let me know. . . .
As a result of the attorneys letter, Dr. Hughes did not return calls from the Gates
company doctor. When Cooper learned of this, he called Tjernagel and asked her to
have Dr. Hughes return the company doctors calls. On March 21, 2006, Gates advised
Tjernagel by certified mail the company doctor had tried to reach Dr. Hughes to no
avail, stating, At this point, we will no longer pursue exchange of medical information
via your expressed permission and will proceed with the final internal step. The letter
also informed Tjernagel the twenty-one day deadline for submission of her written peer
review appeal would begin on March 27, 2006. Tjernagels attorney responded by
sending a new letter to Dr. Hughes, via facsimile, stating, it is fine for you to talk to
the company doctor. In response, Dr. Hughes attempted to contact the company
doctor. The company doctor returned Dr. Hughess call the next day, but they never
On April 10, 2006, Dr. Hughes faxed Gates a work release form stating, Patient
may return without restrictions immediately. Under Dr. Hughess standard office
procedure this release indicated Tjernagel reported to his office she needed no
accommodations or restrictions to perform the essential functions of her former job at
On April 18, 2006, Tjernagel submitted her peer review appeal letter, attaching
her November 2, 2005, and January 25, 2006, WCRs. Tjernagel did not attach or
mention the April 10, 2006, release stating she could return to work without
restrictions. The peer review panel, consisting of three hourly Gates production
workers and two management members from the Versailles, Missouri, plant,
unanimously upheld Tjernagels termination. Gates informed Tjernagel of this
decision on April 29, 2006.
Tjernagel can drive a car, care for her children, prepare meals, shop, run errands,
vacuum, do laundry, engage in recreational activities, and even work in full time
employmentas she started a new full-time job in late May 2006. In this new
position, Tjernagel goes to homes where several mentally challenged individuals live.
She drives herself to work at midnight, cleans restrooms and the kitchen, does charting
and sits most of the night waiting for the residents to awaken. When applying for this
position, Tjernagel did not mention anything about her medical or physical limitations
or condition and did not request any accommodations.
Tjernagel filed her original complaint on July 28, 2006, and two amended
complaints on August 3, 2006, and on November 21, 2006. Gates filed a motion for
summary judgment, both sides submitted written arguments and responses, oral
argument was heard, and the motion for summary judgment was granted on August 20,
2007, as to the discrimination claims. This appeal follows.
We review de novo an order granting summary judgment. Green v. Franklin
Nat1 Bank of Minneapolis, 459 F.3d 903, 910 (8th Cir. 2006). In so doing, we view
the facts in the light most favorable to the nonmoving party and we will affirm if the
record indicates no genuine issue of material fact and that the moving party is entitled
to a judgment as a matter of law. Fed. R. Civ. P. 56(c). Gretillat v. Care Initiatives,
481 F.3d 649, 652 (8th Cir. 2007) (citation omitted). This court does not weigh the
evidence, make credibility determinations, or attempt to discern the truth of any factual
issue. Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008) (citation
omitted). Instead, we focus on whether a genuine issue of material fact exists for trial
an issue of material fact is genuine if the evidence is sufficient to allow a reasonable
jury verdict for the nonmoving party. Id. (citation omitted).
ADA and ICRA disability claims are analyzed under the same standards. See
Nuzum v. Ozark Automotive Distribs., Inc., 432 F.3d 839, 842 n.2 (8th Cir. 2005).
The ADA and ICRA prohibit discrimination by a covered employer against a
qualified individual with a disability because of the disability. An employer can
discriminate by failing to make reasonable accommodation to the known limitations
of an employee. Id. at 842 (citations and internal quotation marks omitted).
An individual does not prove that he or she has a disability simply by
showing an impairment that makes it impossible to do his or her
particular job without accommodation. Rather, establishing disability
is a significant hurdle that can prevent a person who was denied a job
because of an impairment from being covered by the ADA.
Id. at 842-43 (citations omitted).
A. Actually Disabled
Under the ADA and ICRA, a disability means an individual must have (1) a
physical or mental impairment that (2) substantially limits one or more major life
activities of the individual. Id. at 843 (citing 42 U.S.C. 12102(2)). Having a
physical or mental impairment is not enough because the impairment must also
comprise a substantial limitation of a major life activity. See id.
The district court concluded Tjernagel was not substantially limited in a major
life activity and therefore was not disabled. Tjernagel asserts she is substantially
4Tjernagel asserts a limitation in her ability to think for the first time on appeal.
Her doctor never listed any limitations related to her ability to think in his work
restrictions, though Tjernagel did mention in her deposition short term memory was
an issue, meaning she might forget what she was saying in a conversation, but it
usually came back to her.
limited in the major life activities of lifting, standing, thinking,4 walking, breathing and
In Tjernagels November 10, 2005, meeting with Sorenson, Tjernagel stated she
did not then feel she was disabled, although Tjernagel requested some
accommodations. By April 10, 2006, Tjernagel reported to Dr. Hughes she needed no
accommodations and no restrictions on her work performed at Gates. Tjernagel
attempts to dismiss this report as irrelevant because it occurred after her January 17,
2006, termination. Yet, Tjernagel presents no evidence to explain the sudden
improvement in her condition in the period of less than three months after Tjernagels
termination, but before the April report. With no evidence to explain a sudden change
in condition, the district court could conclude the earlier restrictions were either
overstated or in error. As such, the district court properly determined Tjernagel did not
have a substantial limitation of any major life activity.
B. Regarded as Disabled
Tjernagel also asserts that, whether or not she was disabled, Gates regarded her
as disabled. The district court did not discuss the regarded as claim. In order to be
regarded as disabled . . . the employer must mistakenly believe that the actual
impairment substantially limits the employees ability to work. Chalfant v. Titan
Distrib., Inc., 475 F.3d 982, 989 (8th Cir. 2007) (internal citations omitted). A
substantial limitation is present only when the employee is significantly restricted in
the ability to perform either a class of jobs or a broad range of jobs in various classes.
Id. (quoting Conant v. City of Hibbing, 271 F.3d 782, 784-85 (8th Cir. 2001) (per
curiam)). If an employer believes that an employee is unable to perform one specific
job, then the employee is not regarded as disabled. Id. (citation omitted). Tjernagel
asserts (1) Cooper believed she should not be on the production floor because of her
CIS and associated restrictions; and (2) this belief is sufficient for Tjernagel to be
regarded as disabled. In fact, Coopers testimony was in relation to trying to get the
company doctor and Dr. Hughes to communicate because Cooper did not want any
danger to [Tjernagel] going forward, where Dr. Hughess earlier report had termed
Tjernagels condition permanent and progressive, expressing Dr. Hughess opinion
Tjernagel really doesnt need to be out on the production floor. Cooper obviously
was seeking clarification, not making any assumption Tjernagel was substantially
limited in the ability to work in a broad range of jobs in a variety of classes.
Even if we determined Gates regarded Tjernagel as disabled, summary judgment
was still proper because Tjernagel was unable to perform the essential functions of her
job. Based upon Dr. Hughess report, Tjernagels work restrictions were she could not
work overtime, she needed to be allowed to self-monitor to make her own
determinations when a task would aggravate her condition, and she should self assign
herself to different tasks and areas without advance notice whether or not she was
needed at the area where she chose to go. In addition, Tjernagel should alternate
intermittently between sitting and standing. These restrictions are not compatible with
the essential functions of Tjernagels job.
Tjernagels job description states, [o]vertime is required to meet production
demands and can include Saturdays and Sundays when necessary. It is undisputed
that, in 2005, Boone employees worked twenty-two Saturdays. An employers
mandatory overtime requirement has been recognized as an essential job function. See
Davis v. Florida Power & Light Co., 205 F.3d 1301, 1305-06 (11th Cir. 2000)
(concluding overtime work . . . is akin to job presence, which has been held to be an
essential function of a job. (citations omitted)). Attendance at work is a necessary
job function. Epps v. City of Pine Lawn, 353 F.3d 588, 593 n.5 (8th Cir. 2003) (citing
Nesser v. Trans World Airlines, 160 F.3d 442, 445 (8th Cir. 1998)). An employee
who cannot meet the attendance requirements . . . cannot be considered a qualified
individual protected by the ADA. Davis, 205 F.3d at 1306 (quoting Tyndall v.
National Educ. Ctrs., Inc., 31 F.3d 209, 213 (4th Cir. 1994) (citations omitted)). When
Tjernagels restriction barred overtime, she was unable to perform an essential
requirement of her job, being in attendance at work when needed, thereby rendering
her unqualified for ADA protection.
Not only did Tjernagels job require overtime, but so did all other production
positions at Gates, a fact which is not disputed by Tjernagel. Tjernagel could not be
reasonably accommodated by moving her to a different production position without an
overtime requirement because no such production positions existed. Tjernagel, must
show that a reasonable accommodation was available, Epps, 353 F.3d at 593 n.5, but
Tjernagel fails to show a reasonable accommodation existed because all of Gatess
production jobs required overtime. See id. Thus, Tjernagels inability to work
overtime, a requirement of all of Gatess production positions, renders Tjernagel
unqualified not only for her production job, but also for all other production jobs.
Because Tjernagel is not disabled as defined by the ADA and ICRA, or regarded
as disabled by Gates, the district court correctly granted summary judgment for Gates.
We affirm.


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