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Willnerd v. First National Nebraska, Inc.: AMERICANS WITH DISABILITIES ACT - error giving summary judgment to defendant; evidence made jury question on pretext for discharge & animus; likewise on refusal to rehire

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-3316
___________
Jeffrey Willnerd, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
First National Nebraska, Inc., *
*
Defendant-Appellee. *
___________
Submitted: March 26, 2008
Filed: March 13, 2009
___________
Before RILEY, JOHN R. GIBSON, and MELLOY, Circuit Judges.
___________
MELLOY, Circuit Judge.
Jeffrey Willnerd appeals the district courts adverse grant of summary judgment
on his claims under the Americans with Disabilities Act (ADA), 42 U.S.C.
1210112213. Willnerd suffers from a voice condition that limits his ability to speak
in a normal or controlled tone, periodically causes his voice to cut out completely, and
requires him to put forth considerable exertion when speaking. Defendant First
National of Nebraska, Inc. (First National), a multi-branch bank located in
Nebraska, terminated him from a loan officer/sales representative position that
required substantial interaction with the public. First National subsequently failed to
rehire Willnerd after he applied for several positions through an internal rehiring
program.
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Willnerd argues these actions were adverse employment actions motived by
discriminatory animus. First National asserts there was no discriminatory animus and
characterizes Willnerds termination as an economically motivated reduction in force.
First National also characterizes the failure to rehire Willnerd as based on Willnerds
qualifications and the relative merits of different job applicants. Questions of material
fact exist as to the veracity of First Nationals proffered reasons for terminating
Willnerd, its reasons for not rehiring him through the internal rehiring program, and
the ultimate question of discrimination. Because reasonable jurors could resolve these
outstanding questions in Willnerds favor and conclude he is entitled to relief on his
claims, we reverse.
I. Background
Willnerd began working at a bank in Beatrice, Nebraska in 1982. His initial
duties included a little bit of everything, but he was primarily responsible for real
estate loans and some commercial and installment lending. In early 1983, First
National, through a subsidiary, acquired the branch where Willnerd worked. Willnerd
then worked for First National at the Beatrice branch for approximately twenty years
until his termination in September 2003.
In his job as Loan Officer/Sales Representative, Willnerd solicited and prepared
installment, consumer, and home-equity loan applications. He also sold credit cards
and insurance products and underwrote credit. In addition, he served as the head of
the branchs real estate department from about 1983 to 1993. According to Willnerd,
he would occasionally close the bank and fill in for the branch president, Larry Keslar,
when Keslar was absent. Starting in 1999, Willnerd also served as the branchs
representative for Investment One, an investment firm affiliated with First National.
Willnerd stopped his work for Investment One in 2001 because First National wanted
1The record contains numerical performance rankings for several categories
spanning several years. First National discusses these figures at length in its brief.
Taken in a light most favorable to Willnerd, however, these figures do not show that
his performance deteriorated along with his voice, nor do they show that his
performance was inferior to other employees at the Beatrice branch.
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the Investment One position to be full-time, and he did not want to give up his
banking duties.
In 1999 Willnerd began noticing a gradually worsening speech limitation. The
ailment baffled his doctors. As noted above, Willnerds voice would cut out and
return, and it took considerable exertion for Willnerd to speak. By 2001, his voice
was essentially limited to a whisper. Although Willnerds position required
substantial interaction with the public, he neither requested an accommodation nor
sought a change of duties prior to his termination. Further, based on a comparison of
numerical rankings he received during performance reviews over the years in
question, and based on his loan productivity, his health condition did not adversely
affect his job performance.1
Willnerds coworkers were aware of his difficulty with speaking, and at least
one coworker stated in a deposition that other coworkers had made fun of Willnerds
condition. Keslar remembered talking about Willnerds voice with a supervisor from
Omaha, Christopher Kisicki, during Kisickis visits to Beatrice. Keslar also stated that
he had spoken with Willnerd, Willnerds coworkers, and bank customers about
Willnerds voice condition. Kisicki stated in his deposition that he was concerned
about how customers might view Willnerd. Also, a higher-ranking supervisor from
Omaha, David Ulferts, was aware of Willnerds conspicuous condition because
Ulferts met with Willnerd in Beatrice on at least two occasions after the onset of
Willnerds condition.
-4-
Willnerds condition eluded diagnosis as of September 2003 when First
National terminated him from his position. In November 2003, during a time when
Willnerd continued to receive pay while seeking a different position with First
National, physicians at the Mayo Clinic diagnosed Willnerd with the rare neurological
voice disorder, hyperkinetic dysarthia. They prescribed a course of treatment that
included Botox injections every three months. Later, the physicians altered their
diagnosis, and in June 2004, Willnerd underwent surgery. These treatments ultimately
failed to provide a substantial improvement in Willnerds condition.
First National asserts that during the same general time frame as the onset and
worsening of Willnerds voice condition, 1999 to 2003, overall performance at the
Beatrice branch was unacceptable. First National claims it recognized a need to
increase income or reduce expenses at the Beatrice branch. In fact, it is undisputed
that, prior to 2002, First National began a restructuring process in which it removed
certain functions from several smaller branches and centralized these functions in
Omaha. Underwriting functions were among those First National moved to Omaha.
As such, some aspects of Willnerds duties moved from Beatrice to a central office.
Willnerd does not allege that the Beatrice branch was the only location from which
First National removed functions. He also does not allege that this process comprised
an adverse action or served as evidence of discriminatory intent.
In February 2002, Kisicki and Ulferts met with Keslar, Willnerd, and several
other employees at the Beatrice branch: Jim Spangler, Assistant Branch Manager;
Tamara Weers, Mortgage Loan Officer; and two personal bankers. First National
describes the meeting generally as a pep-talk and strategy session to suggest ways to
improve the cross-selling of services and to promote the generation of business
through various methods, including increased referrals of existing customers for
multiple lines of business. Ulferts and Kisicki stated in their depositions that concern
about under- performance by the personal bankers was the primary impetus for the
February 2002 meeting.
-5-
Notwithstanding First Nationals characterization of the meeting, it is
undisputed that Willnerd alone received a specific production quota following the
meeting. No other employees received such a quota, and Willnerd characterizes the
quota as an impossible-to-meet goal established to guarantee his failure. Specifically,
Ulferts, Kisicki, and Keslar told Willnerd to increase his overall annual volume of
loans generated by one hundred percent, from million to million. Ulferts stated
that it would have been impossible to achieve this goal solely through consumer loans
or installment loans and that Willnerd would have needed to generate most of this
increase through mortgage-related loans. From 2000 through 2005, however, total
home-equity loan generation for the entire Beatrice branch ranged from .2 million
to .2 million per year. Also, from about 2002 onward, the branch operated under
a policy of having personnel refer home-equity borrowers to Weers, who served as the
branchs mortgage specialist and reported directly to Omaha. As such, Willnerds
quota not only required him to double his annual generation, it required him to singlehandedly
outperform the entire branchs mortgage-lending volume at a level the
branch ultimately failed to achieve at any time prior to or following his termination.
Further, given the policy regarding Weers, First National expected Willnerd to achieve
this quota without the assistance of referrals from other personnel.
In May 2002, First National changed Spanglers position from Assistant Branch
Manager to a newly created position, Consumer Bank Sales Representative. Ulferts
stated that for a branch the size of the Beatrice branch, with employees having a
relatively long average tenure, the position of Assistant Manager was unnecessary.
Ulferts also stated that, prior to the change, he was not sure what Spanglers job
entailed and that he intended the move to allow Spangler to generate more business
for the branch. In his new position, Spanglers written job description was identical
to Willnerds. Ulferts stated that after Spanglers reassignment, the primary function
for Willnerd and Spangler was to be out there trying to develop as much loan activity
as possible. According to Spangler, after the reassignment, he basically had the
same title and responsibilities as . . . Willnerd. Spangler did have some additional
-6-
duties regarding the maintenance of deposit accounts, but Spangler stated this work
was a small part of his job that he normally would perform when the personal bankers
were busy. Spangler and Willnerds base salaries were roughly equivalent. Following
the change and through the time of Willnerds termination, Spanglers loan production
was inferior to Willnerds. Also, Spanglers ratio of salary to loan production was less
favorable than Willnerds.
In May 2003, Ulferts and Keslar met with Willnerd and told Willnerd he had
ninety days to increase production and improve his overall proactive sales effort.
Ulferts and Keslar did not meet with Spangler or the personal bankers or give them
ultimatums regarding performance. Nevertheless, Ulferts and Keslar both stated afterthe-
fact that Spanglers performance was below expectations and unacceptable. In
fact, when describing Spanglers performance, Keslar stated, I didnt think he was
putting forth the effort to go out and mak[e] calls, possibly taking advantage of all the
opportunities of people in business or individuals when they came into the bank.
Following the May 2003 meeting, Willnerds loan production increased, and
Ulferts described Willnerds performance as a good effort. Willnerd, however, did
not meet his production quota. On August 21, 2003, Ulferts issued a memo to his own
superior, Thomas Haller, stating that he and Kisicki had decided to eliminate a
position at the Beatrice branch. This memo did not make reference to Willnerd. At
the end of September, Ulferts eliminated Willnerds position.
In March 2004, seven months after the August 2003 memo, and six months
after Willnerds actual termination, Ulferts created a memo explaining the decision
to terminate Willnerd. In the March 2004 memo, he wrote that a downturn in the
Beatrice economy had made it necessary to eliminate a position. He also described
the relative merits of Willnerd and other employees, suggesting that his
decisionmaking process involved a comparison of branch personnel. Specifically,
Ulfertss memo discussed the relative performance and expected future value of
-7-
Spangler, Willnerd, and the personal bankers. Ulferts concluded in the memo that
Willnerds position as Sales Representative was the most expendable. Later still, in
deposition testimony, Ulferts stated that First National considered Spangler for
termination. Kisicki, however, stated in deposition testimony that they were not
looking at Spangler for termination because the decision to terminate Willnerd was
based on Willnerds performance. Ulferts memo does not reference the fact that,
based on a record of all personal bankers performance within the entire First National
system, the two personal bankers in the Beatrice branch were ranked lasteightysixth
and eighty-seventhout of a total of eighty-seven personal bankers.
Following Willnerds termination, First National distributed his duties among
Spangler, Weers, and Theresa Faxon. To a large extent, First National had transferred
Faxons duties to Omaha prior to Willnerds termination. As such, prior to Willnerds
termination, Faxon had been completing her limited remaining duties each day in
approximately two hours. She, nevertheless, remained a full-time employee. At the
time of Willnerds termination, Faxon was not experienced in sales, and she required
a training period to assume the duties Willnerd previously held. At no time has Faxon
achieved the level of sales Willnerd had achieved, and through 2005, the entire branch
had not achieved the annual generation of home-equity loans demanded of Willnerd.
When terminated, Willnerd met with First Nationals Second Vice President of
Human Resources, Mike Foutch. Foutch claims this meeting, in September 2003, was
the first time he became aware of Willnerds voice condition. Foutch explained First
Nationals hiring program to Willnerd and told him he would continue to receive pay
for sixty days while attempting to find a different position with First National. Later,
in October 2003, Foutch referred Willnerd to Kristina Staebell, who more fully
explained the hiring program to Willnerd and who was to serve as Willnerds contact
person throughout the job-search process. Staebell described the hiring program as
a non-preferential system and stated that First National would consider Willnerd
alongside external applicants and other internal applicants for any open positions.
-8-
Willnerd again met with Foutch on November 17, 2003, and, at that meeting,
first discussed his medical condition with Foutch. Willnerd reported that he had been
occupied seeking medical treatment following his termination and had obtained a
diagnosis and plan for treatment from a doctor at the Mayo Clinic. Ultimately, Foutch
agreed to extend Willnerds redeployment pay through December 2003 because
Willnerd had been occupied seeking medical treatment and because Willnerd
possessed accumulated sick leave. Foutch recommended that Willnerd apply for
disability insurance. Willnerd applied and received disability insurance in 2004, and
he received the assistance of a job-placement specialist from the insurer at that time.
In Willnerds deposition, when First Nationals attorney questioned Willnerd about
the November 17 meeting with Foutch, the following exchange took place:
Q. Did you ask him to place you into open positions that did not
require communication on the telephone or in person with clients
on November 17?
A. I could have - - I could have, yes.
In December 2003, Willnerd first received Botox treatment for his condition.
Afterwards, he emailed Foutch, stating:
I feel that I need a job that does not require the amount of
communication with the public as my previous position[,] but I feel I can
still hold a position that requires some communication with the public
and my coworkers. Right now[,] I am available to work. However, if I
talk for an extended period of time my voice will become fatigued.
Willnerd first applied for open positions while receiving pay in December 2003,
after he sent the above-quoted email to Foutch. He continued applying for positions
after his pay ceased and through October 2005. He applied for twenty-two positions,
nineteen of which First National filled with other applicants, and three of which First
National left unfilled.
-9-
Staebell, Foutch, and Willnerd, through deposition testimony and affidavits,
present inconsistent accounts regarding Willnerds abilities and regarding statements
Willnerd made about his ability to perform certain jobs and salaries he would
consider. For example, Staebell asserts that Willnerd said he would not consider jobs
that paid less than ,000 per year. Willnerd, however, denies making this
statement. In fact, he applied for open positions that advertised salaries of ,000
per year or less. Also, First National cites a signed report from one of Willnerds
physicians as evidence tending to indicate Willnerd could not communicate with the
public in any manner and would not have been capable of performing some of the jobs
for which he applied. The record does not indicate First National possessed this
physicians statement prior to litigation. Further, the email from Willnerd to Foutch,
as quoted above, describes Willnerds limitations differently, and the physicians
statement is inconsistent with the fact that Willnerd communicated effectively with
clients through September 2003. Finally, the physicians statement regarding
Willnerds voice in November 2003 is not necessarily helpful in identifying the extent
of Willnerds limitations at later dates when he actually applied for various positions.
Ultimately, although Willnerd applied for twenty-two positions, he only
addresses four of the positions in his arguments on appeal regarding his failure-to-hire
claims. As such, not all arguments and evidence regarding Willnerds experience with
the rehiring process are particularly valuable at the present stage, even though such
things ultimately may be relevant at trial regarding the questions of discrimination and
pretext. We discuss in more detail below the evidence and arguments surrounding the
application process and the four positions.
II. Discussion
We review a grant of summary judgment de novo, viewing the facts in a light
most favorable to Willnerd, the non-moving party, and drawing all reasonable
2First National argues that a different analytical framework applies in the
context of a termination that occurs during a larger reduction in force. We need not
address First Nationals arguments in this regard. Willnerd was the only person
terminated at the Beatrice branch or at other, similarly sized branches, with the
exception of limited reductions in tellers. At most, the summary-judgment record
might present a question of fact as to whether First National carried out a reduction
in force.
-10-
inferences in his favor. Green v. Franklin Natl Bank of Minneapolis, 459 F.3d 903,
910 (8th Cir. 2006).
A. Termination Claim
We apply the familiar McDonnell Douglas burden-shifting framework in ADA
cases. Kosmicki v. Burlington N. & Santa Fe Ry. Co., 545 F.3d 649, 651 (8th Cir.
2008); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 80204 (1973). Under this
framework, Willnerd first must make out a prima facie case by showing that he was
disabled within the meaning of the ADA and qualified to perform the essential
functions of his job and that he suffered an adverse employment action because of his
disability. Kosmicki, 545 F.3d at 651.2 If Willnerd makes this showing, the burden
of production shifts to First National to articulate a legitimate, non-discriminatory
reason for the adverse action. Id. If First National meets this burden, the burden of
proof lies with Willnerd to discredit [First Nationals] stated reasons for terminating
him and show circumstances raising a reasonable inference that the real reason for his
discharge was his . . . disability. Id.
Employing the burden-shifting analysis, it is either undisputed or not seriously
disputed that Willnerd was a disabled individual, qualified within the meaning of the
ADA, and able to perform his job with or without reasonable accommodation.
Willnerds disability was open and obvious, several coworkers joked or commented
about the disability, and Kisicki admitted worrying about how customers perceived
-11-
Willnerd. Further, performance reviews demonstrated that Willnerd, in fact,
performed the essential functions of his job. Similarly, it is clear that he suffered
separate adverse employment actions when First National terminated him from his
position and then failed to rehire him. The evidentiary showing required at the prima
facie stage is minimal, Pope v. ESA Servs., Inc., 406 F.3d 1001, 1007 (8th Cir.
2005), and Willnerd has easily demonstrated the first two elements of his prima facie
case.
The fighting issue in the present dispute, then, is causation. The district court
issued two alternative holdings: (1) Willnerd failed to create a triable question of fact
at the prima facie stage regarding a causal relationship between discriminatory intent
and the adverse employment actions; and (2) Willnerd failed to create a triable
question of fact as to whether the defendants proffered reason for the adverse
employment actions were pretextual, i.e., Willnerd failed to carry his ultimate burden
of proving discrimination. Because we conclude that Willnerd presented sufficient
evidence to create a jury question as to the final step of pretext and discrimination vel
non, it is not necessary to discuss the earlier, lesser, threshold issue of causation in the
prima facie stage. See, e.g., Logan v. Liberty Healthcare Corp., 416 F.3d 877, 881
(8th Cir. 2005) (An employees attempt to prove pretext requires more substantial
evidence than it takes to make a prima facie case because unlike evidence establishing
a prima facie case, evidence of pretext and retaliation is viewed in light of the
employers justification. (quotations, and alterations omitted)).
First Nationals proffered reason for terminating Willnerd was twofold: (1)
someone had to be fired at the Beatrice branch because the community was
experiencing poor economic conditions and the branch was overstaffed relative to the
income it generated; and (2) Willnerds position was the most expendable, and he was
not performing well. In support of this position, First National stated a number of
business reasons for needing to terminate an employee at the Beatrice branch. It also
provided a number of business reasons for why Willnerd, specifically, was the
-12-
employee it chose for termination. In making these general assertions, First National
made a number of more detailed factual claims, many of which Willnerd contested in
the district court, citing support in the summary-judgment record. Evidence Willnerd
cited included such things as performance data from comparable branches and
historical performance data from the Beatrice branch. In addition, he obtained expert
testimony from an economist regarding the state of economic affairs in Beatrice.
In general, it is not the courts role to second-guess businesses assessments of
general economic conditions, their own performance, and their own staffing needs.
Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 837 (8th Cir. 2002). As such, we
elect not to focus on the portion of First Nationals proffered explanation describing
its general business reasons for needing to terminate an employee at the Beatrice
Branch. We focus instead on the factual issues surrounding First Nationals specific
selection of Willnerd as the employee for termination.
Regarding the selection of Willnerd, the following factors, viewed
cumulatively, are sufficient to generate a triable question of fact regarding pretext and
discriminatory animus. First, Ulferts imposed a production quota on Willnerd that
reasonable jurors could view as unattainable and as an effort to ensure Willnerds
failure. Second, Ulferts and Kisicki made inconsistent statements regarding whether
they considered other employees for termination. Third, other employees purportedly
considered for termination were performing poorly and were not subject to quotas, or
ultimately, termination. Fourth, the person to whom First National assigned most of
Willnerds duties was underutilized prior to the assignment, subsequently failed to
perform at Willnerds level, and was subjected to no adverse actions as a consequence.
Fifth, Spangler and Willnerd were similarly situated, with identical job descriptions,
and Willnerd outperformed Spangler. Spangler, however, received no quota and
remained in his position despite his inabilityand, in fact, the inability of the entire
branchto meet the production level First National demanded of Willnerd. Finally,
Kisicki admitted he was concerned about how customers perceived Willnerd.
-13-
Regarding the quota, we have previously held that it is permissible for a jury
to view the imposition of an unattainable goal as evidence of pretext because a jury
may reasonably view the goal or production quota as an effort to set up an employee
for failure. Denesha v. Farmers Ins. Exch., 161 F.3d 491, 499 (8th Cir. 1998) (holding
the imposition of unattainable production goals on an employee was evidence
supporting a jurys finding of discrimination). Given the branchs past performance
and the practice of having personnel refer home-equity borrowers to Weers, a jury
reasonably could view the production quota as unattainable and as an effort to ensure
Willnerds failure. Imposition of the quota in February 2002, the termination in
September 2003, and the reasonable inferences associated with these actions,
therefore, undercut Ulferts assertion that economic conditions in May 2003 drove a
comparative analysis of positions that resulted in the decision to terminate Willnerd.
This inference is made all the more reasonable by the fact that Willnerd alone
received a quota when Willnerd was not underperforming relative to Spangler and the
two personal bankers at the Beatrice branch were underperforming relative to their
peers. As noted above, Spangler generated less loan volume than Willnerd after
Willnerd received the quota and after Spanglers position changed to focus on sales.
Spangler and Willnerd, who had identical written job descriptions for over one year
prior to Willnerds termination, were sufficiently similarly situated for a jury to
consider differential treatment as evidence of discrimination. See McNary v.
Schreiber Foods, Inc., 535 F.3d 765, 770 (8th Cir. 2008) (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. (quotation omitted)). Further, although not necessarily similarly situated
when compared to Willnerd, the personal bankers clearly were underperforming
relative to their comparable peers. The two personal bankers in Beatrice were ranked
last and second-to-last among the eighty-seven personal bankers in First Nationals
entire multi-branch system in terms of meeting incentive benchmarks. Also, Ulferts
and Kisicki expressly noted after-the-fact that the personal bankers were not doing an
-14-
adequate job of cross-selling services or referring customers for additional services.
The failure to impose quotas and consequences on the underperforming personal
bankers, therefore, further undercuts Ulferts claim that Willnerds termination was
based on performance concerns.
First National attempts to distinguish Spangler from Willnerd by emphasizing
that Spangler had additional duties regarding the maintenance of deposit accounts.
Shortly after Willnerds termination, however, First National removed deposit-account
duties from the list of criteria it relied upon to assess Spanglers performance. A
reasonable jury could view this act as evidence that First National did not consider
these additional duties to be an important part of Spanglers work. As such, a jury
reasonably could view First Nationals attempt to distinguish Spangler and Willnerd
as a disingenuous argument or after-the-fact explanation for Willnerds termination.
See id. (requiring employees to be similarly situated in all relevant aspects).
Regarding the conflicting statements by Ulferts and Kisicki, Ulferts stated in
his March 2004 memo that he decided to retain Spangler, in part, because he viewed
Spangler as having better community connections and better potential as a
salesperson. Performance data for Spangler and Willnerd undercuts Ulferts assertion,
as does the conflicting statement from Kisicki, who said, we were mainly focused on
Jeff [Willnerd]. This wasnt really - this was about Jeffs performance. It wasnt
about Jim [Spangler]s performance. These conflicting descriptions about the
decisionmaking process provide further support for Willnerds argument that the
proffered, performance-related rationale is pretextual.
Regarding Faxon, it is undisputed that she was underutilized prior to Willnerds
termination due to the reassignment of her duties to Omahashe frequently
completed her limited duties by 10:00 a.m. although she was a full-time employee
receiving a full-time salary. After Willnerds termination, First National assigned
loan-production duties to Faxon, but she failed to produce at Willnerds level and
-15-
required training to achieve even that lesser degree of performance. In fact, the entire
branchs staff, combined, failed to generate home-equity loans at the level demanded
of Willnerd in his quota. Nevertheless, Faxon, like other staff at the Beatrice branch,
suffered no consequences in the form of production quotas, ultimatums, or
terminations. These facts further undercut First Nationals claim that it terminated
Willnerd due to his performance.
Finally, Keslar and Kisicki admitted discussing their concerns regarding
Willnerds voice impediment and customers perceptions of Willnerd. While we do
not necessarily view these admissions as direct evidence of discriminatory animus, a
reasonable jury certainly may consider these statements alongside the other evidence
in assessing pretext and the question of discriminatory intent. A reasonable juror
could infer from the various reports of discussions between Keslar and Kisicki,
discussions between Keslar and customers, and discussions with Willnerd himself,
that First Nationals decisionmakers are now downplaying the role that Willnerds
condition played in the decision to terminate his employment. Taken cumulatively,
Willnerd has presented sufficient evidence to generate a triable question of fact as to
pretext and the ultimate question of discriminatory intent.
B. Failure-to-Hire Claim
Regarding the failure-to-hire claim, Willnerd limits his arguments on appeal to
four positions: (1) Senior Loan Operations Assistant; (2) Assistant Branch Manager;
(3) Senior Credit Analyst; and (4) Mortgage Loan Officer. For each of these
positions, the familiar burden-shifting analysis applies, and we consider the failure to
hire to be an adverse action. See Christensen v. Titan Distribution, Inc., 481 F.3d
1085, 1093 (8th Cir. 2007). Accordingly, if a reasonable jury could conclude for these
positions that Willnerd was a qualified individual, as the ADA defines that term, 42
U.S.C. 12111(8), we may advance our analysis to the proffered-rationale and pretext
stages. Given the nature of the arguments and evidence surrounding these four
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positions, we address the first two positions together and the last two positions
together.
i. Senior Loan Operations Assistant and Assistant Branch Manager
Analyzing whether a person is a qualified individual is a two-step process:
first, we determine whether the individual possesses the requisite skills for the job;
second, we must determine whether the individual can perform the essential functions
of the job, with or without reasonable accommodation. Canny v. Dr. Pepper/Seven-
Up Bottling Group, 439 F.3d 894, 900 (8th Cir. 2006). Whereas, in the context of his
termination claim, we easily concluded Willnerd had shown he was a qualified
individual under the ADA who was able to perform the essential functions of his prior
job with or without reasonable accommodation, more discussion is required for these
positions.
It appears that First National does not argue Willnerd lacked the requisite
skills for these two jobs in terms of knowledge or experience. Id. Rather, First
National argues only that Willnerd could not perform the essential functions of the
job[s], with or without reasonable accommodation. Id. We reject this argument
because there are outstanding questions of fact regarding the extent of Willnerds
limitations at the times he applied for these two positions. Viewing the record in a
light most favorable to Willnerd, there is sufficient evidence for a reasonable jury to
conclude his limitations were not so severe as to prevent him from performing the
essential functions of these positions. We note in particular that the record is not welldeveloped
as to the precise requirements and essential functions for these positions,
and it is the employers task to identify the essential functions for a job. See,
e.g., Dropinksi v. Douglas County, 298 F.3d 704, 707 (8th Cir. 2002) (stating that
when an employer disputes allegations that a plaintiff can perform the essential
functions of a job, the employer must present evidence establishing those functions).
-17-
As such, when the summary-judgment record is not well developed in this regard, it
is not necessarily a difficult task for a plaintiff to prove himself or herself qualified.
Willnerd argues essentially that, throughout the application process, his voice
limitations were as set forth in his December 2003 email to Foutch. First National,
however, argues that Willnerds limitations were more severe and that he could not
perform in any position that required speaking with clients. First National points to
the signed document from one of Willnerds physicians at the Mayo Clinic, dated
November 2003, and to the arguable concession that Willnerd made during his
depositions when questioned about statements made to Foutch at the November 17,
2003 meeting, as quoted above.
The physicians document stated, Mr. Willnerds speech difficulty, which is
almost certainly neurologic in origin, is disabling relative to work requiring effective
speech. In my opinion, at this time, his deficits are severe enough to preclude his
being effective in any job requiring phone work or direct speaking contact with
clients. First National points to no evidence tending to show that they possessed this
document prior to litigation or based their hiring decisions on this document. As such,
the report, at most, is contested evidence of Willnerds limitations at that point in time.
For summary-judgment purposes, we cannot view the document as the final word
regarding Willnerds limitations. The physicians report is inconsistent with the fact
that Willnerd performed in a client-contact job through September 2003, it overstates
Willnerds limitations relative to Willnerds December 2003 email to Foutch, it
overstates the limitations relative to assertions Willnerd made in his application for
disability benefits, and it is not necessarily helpful as evidence regarding the precise
extent of Willnerds limitations following his Botox treatment or surgery.
Also, we must reject First Nationals attempt to rely upon its characterization
of what Willnerd may have said to Foutch at the November 17, 2003 meeting. First
Nationals position in this regard is supported only by an impermissibly favorable
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reading of an unclear response in Willnerds deposition. Further, it is contrary to
Willnerds description of his limitations and abilities as set forth in the December
2003 email. It is undisputed that Foutch received this latter description prior to
Willnerds application for any of the four positions in question. As such, although a
jury might ultimately conclude Willnerd was not a qualified individual, he has
presented sufficient evidence to avoid summary judgment on these grounds.
First National offered no further explanation regarding the Assistant Branch
Manager position, so we need not address that claim further. Regarding the Senior
Loan Operations Assistant position, First National proffered its selection of a more
qualified applicant as the legitimate reason for not hiring Willnerd. First National
states, the manager hired a more qualified candidate who had more loan operations
experience. First National has not fully explained what is meant by the term loan
operations experience, and we may not interpret this term in an expansive manner
contrary to the interest of the non-moving party. Green v. Franklin Natl Bank, 459
F.3d 903, 910 (summary-judgment standard). While it is true that First National bears
only the burden of production and not the burden of proof in stating a reason for its
actions, by failing to more specifically articulate the job requirements and how those
requirements relate to the candidates relative merits, First National has made it
relatively easy for Willnerd to create a triable question of fact as to pretext.
The applicant First National selected had one year of post-secondary education,
worked as a commercial-loan secretary from 1976 through 1993 and worked as a
loan documentation specialist at a bank from 1993 through 1998. This person,
however, had not worked in a loan-related position for approximately seven years
prior to her selection because she had been working in a human-resources position.
Willnerd, in contrast, had over twenty years of loan-related experience with First
National and had completed more post-secondary education than the other applicant.
Importantly, Willnerds loan-related experience extended through his termination in
2003.
-19-
It is not necessarily the case that Willnerd was more qualified than the person
actually hired, and at the end of the day, a jury may well accept First Nationals
proffered rationale. Also, employers generally are entitled to make their own
assessments regarding applicants qualifications and the relative merits of different
applicants. Ottman v. City of Independence, 341 F.3d 751, 75758 (8th Cir. 2003).
That having been said, all Willnerd must do to avoid summary judgment is create a
jury question as to the issues of pretext for discrimination. On the present record,
given the paucity of information detailing what precisely First National considered
relevant experience and the lack of any clear superiority in the other applicants
qualifications, we believe a jury could find the proffered rational to be pretextual.
See Christensen, 481 F.3d at 109495 (If a jury doubts the employers offered
reasons, it can base a finding of intentional discrimination on a combination of the
prima facie case and its doubt of the employer's reason, especially if the doubt is
accompanied by a suspicion of mendacity. (quoting Hartley v. Dillards, Inc., 310
F.3d 1054, 1058 (8th Cir. 2002))).
ii. Senior Credit Analyst and Mortgage Loan Originator
As to the final two positions, First National does not argue Willnerd was
physically unable to perform the essential functions of the job[s], with or without
reasonable accommodation. Id. at 1093. Rather, it argues only that he did not
possess the requisite skills for the job[s]. Canny, 439 F.3d at 900. This argument
is relevant not only to the qualified individual element of the prima facie case, it
also serves as First Nationals proffered rationale for its hiring decision. As such, it
is relevant to the final questions of pretext and discriminatory intent.
Regarding the Mortgage Loan Officer position, First National claimed Willnerd
did not have five years of mortgage and real-estate experience, as was advertised as
a requirement for the position. Willnerd, however, had extensive experience with
mortgages through his work at First National, which had exceeded five years.
-20-
Incredibly, First National advances this argument even though Willnerd is able to cite
from the record a statement from an employee at First Nationals job placement center
who specifically noted Willnerds mortgage experience. That employee, when
informing Willnerd that a certain, different job would not be appropriate, reviewed
Willnerds credentials and stated, I wish I had a mortgage lending position to which
I could introduce you, Jeff, but I do not at the present time. Given this statement, and
given Willnerds extensive experience, we easily find that there is a triable question
of fact as to the issue of Willnerds qualifications for the Mortgage Loan Officer
position. This finding is relevant to both the prima-facie case and the ultimate
questions of pretext and discrimination.
Similarly, regarding the Senior Credit Analyst position, First National asserts
Willnerd did not meet the minimum qualifications. Specifically, First National stated
Willnerd was not hired for the Senior Credit Analyst position because he did not
meet the minimum qualifications, namely, he did not have the required credit card
industry experience. A jury could find Willnerd qualified and also find pretext based
on this explanation. Not only did Willnerd, in fact, have relevant credit card and
credit underwriting experience through his work with First National, the job
description for this position made no reference to credit card industry experience.
Accordingly, as with the two previous positions, Willnerd has presented sufficient
evidence to preclude summary judgment regarding these final two failure-to-hire
claims.
III. Conclusion
We reverse the judgment of the district court and remand for further
proceedings not inconsistent with this opinion.
______________________________
 

 
 
 

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