PUBLISH
UNITED STATES COURT OF APPEALS
Filed 7/2/96
TENTH CIRCUIT
JAMIE LOWE,
Plaintiff-Appellant,
v.
ANGELO’S ITALIAN FOODS, INC., No. 95-3064
and its Representatives, and ANGELO
FASCIANO and JOHN P. FASCIANO,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 93-CV-1233)
José Hurlstone-Peggs (William L. Fry with her on the brief) of William L. Fry,
P.A., Wichita, Kansas, for Plaintiff-Appellant.
Alexander B. Mitchell, II, of Klenda, Mitchell, Austerman & Zuercher, L.L.C.,
Wichita, Kansas, for Defendant-Appellees.
(John P. Rowe, General Counsel (Acting), (Gwendolyn Young Reams, Associate
General Counsel, Vincent J. Blackwood, Assistant General Counsel, John F.
Suhre, Attorney, with him on the brief), Washington, D.C., filed an amicus curiae
brief for the equal Employment Opportunity Commission.)
Before BALDOCK, BRISCOE, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
Defendant terminated plaintiff’s employment and plaintiff responded by
filing this action, alleging violations of both the Americans with Disabilities Act
(“ADA”) and Title VII of the Civil Rights Act of 1964. Plaintiff also sought
recovery for intentional infliction of emotional distress. The district court granted
summary judgment to defendants. The court held that plaintiff was not disabled
under the ADA; that she had failed to present a prima facie case of sex
discrimination; and that she had failed to allege sufficient facts to support her
state law claim for intentional infliction of emotional distress. We affirm the
grant of summary judgment to defendants on plaintiff’s Title VII and pendent
state law claims. We reverse the grant of summary judgment on plaintiff’s ADA
claim, however, because plaintiff has presented evidence which creates a genuine
issue of fact with respect to whether her ability to lift is substantially impaired.
We hold that lifting is a “major life activity” and that an individual whose ability
to lift is substantially impaired qualifies as a disabled person within the meaning
of the ADA.
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In late August 1992, plaintiff Jamie Lowe began work for defendant
Angelo’s Italian Foods, an Italian restaurant located in Wichita, Kansas. Her
duties included purchasing and inventory control. When Lowe initially
interviewed for a position at Angelo’s, she heard a line cook remark “no skirts in
the kitchen.” Because the cook who made this remark left Angelo’s the very next
day, Lowe never saw him again.
In addition, during the nine weeks she was employed at Angelo’s, Lowe’s
supervisor, defendant Angelo Fasciano, referred to her as “girl” or “girlie” when
he couldn’t remember her name. Fasciano also required Lowe to wear dress
clothes, while two of her male co-workers were allowed to wear jeans and t-
shirts. Once when Lowe wore red slacks and a red shirt to work, Fasciano told
her “no more of this red thing.”
On October 22, 1992, Lowe presented Fasciano with a letter from her
doctor. The letter stated:
Jamie Lowe has seen me recently regarding pain and weakness in her
right leg. Because of her neurological problems she fatigues
exceedingly easily and needs to be able to sit down occasionally.
She is not going to be able to do lots of stooping, bending and cannot
carry anything heavy (greater than 15 lbs.) and anything up to 15 lbs.
only occasionally. She should avoid stairs. She needs to use a hand
rail if she has to climb stairs, so [sic] cannot climb stairs and carry
anything.
Lowe was terminated that same day. She was thereafter diagnosed with multiple
sclerosis.
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This court reviews the district court’s entry of summary judgment de novo,
applying the same legal standard used by the district court. Schusterman v.
United States, 63 F.3d 986, 989 (10th Cir. 1995), cert. denied, 64 U.S.L.W. 3778
(U.S. May 20, 1996). Summary judgment is appropriate if there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c). Summary judgment should be denied “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Lowe first argues that the district court erred by granting summary
judgment to defendants on her ADA claim. Title I of the ADA provides that
“[n]o covered entity shall discriminate against a qualified individual with a
disability because of the disability of such individual in regard to job application
procedures, [or] the hiring, advancement, or discharge of employees.” 42 U.S.C.
§ 12112(a). To maintain a claim for wrongful discharge under the ADA, a
plaintiff must demonstrate (1) that she is a disabled person within the meaning of
the ADA; (2) that she is able to perform the essential functions of the job with or
without reasonable accommodation; and (3) that the employer terminated her
because of her disability. White v. York Int’l Corp., 45 F.3d 357, 360-61 (10th
Cir. 1995).
The term “disability” is defined as:
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(A) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). The term “major life activity” as defined in the regulations
implementing the ADA encompasses “functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing, learning
and working.” 29 C.F.R. § 1630.2(i). The appendix to the regulations provides
that “other major life activities include, but are not limited to, sitting, standing,
lifting, reaching.” 29 C.F.R. Pt. 1630, Appendix to Part 1630--Interpretive
Guidance to Title I of the ADA, § 1630.2(i) (citing S. Rep. No. 116, 101st Cong.,
1st Sess. 22 (1989); H.R. Rep. No. 485 part 2, 101st Cong., 2d Sess. 52 (1990);
H.R. Rep. No. 485 part 3, 101st Cong., 2d Sess. 28 (1990)).
The term “substantially limits” means “[s]ignificantly restricted as to the
condition, manner or duration under which an individual can perform a particular
major life activity as compared to the condition, manner, or duration under which
the average person in the general population can perform that same major life
activity.” 29 C.F.R. § 1630.2(j)(1)(ii). The three factors to be considered when
determining whether an impairment substantially limits a major life activity are
“(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
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expected permanent or long term impact of or resulting from the impairment.” Id.
§ 1630.2(j)(2).
Three additional factors may be considered when the individual claims that
the impairment substantially limits her in the major life activity of working. Id. §
1630.2(j)(3)(ii). These factors are:
(A) [t]he geographical area to which the individual has reasonable
access;
(B) [t]he job from which the individual has been disqualified
because of an impairment, and the number and types of jobs utilizing
similar training, knowledge, skills or abilities, within that
geographical area, from which the individual is also disqualified
because of the impairment (class of jobs); and/or
(C) [t]he job from which the individual has been disqualified because of an
impairment, and the number and types of other jobs not utilizing similar
training, knowledge, skills or abilities, within that geographical area, from
which the individual is also disqualified because of the impairment (broad
range of jobs in various classes).
Id. Focusing on these additional factors, the district court held that Lowe failed
to present evidence that her impairment was substantially limiting.
Applying the first three factors laid out in the regulations, the evidence
indicates that Lowe suffers from multiple sclerosis or MS; that as a result of her
MS, Lowe is unable to lift items weighing more than fifteen pounds and that she
should lift items weighing less than fifteen pounds only occasionally; that MS is a
neurological disease for which there is no known cure; and that the long-term
impact of the disease will vary depending on the form the MS takes. We hold that
lifting is a major life activity and that the evidence creates a genuine issue of
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material fact with respect to whether Lowe’s impairment substantially limits her
ability to lift. It is thus unnecessary to consider the additional factors relied upon
by the district court.
Defendants’ arguments to the contrary are unavailing. Defendants urge that
Lowe has failed to present evidence comparing her ability to lift with the ability
of the average person. They assert that she has not demonstrated the impact of
her condition on her life away from work. While the court agrees that more
specific evidence on these issues will be helpful to the trier of fact on remand,
Lowe has nevertheless presented sufficient evidence to withstand summary
judgment.
Defendants argue, in the alternative, that even if Lowe has created a
genuine issue of fact with respect to whether she suffers from a disability under
the ADA, she has nevertheless failed to demonstrate that she is qualified for her
position at Angelo’s. This court has adopted a two-part analysis for determining
whether a disabled individual is qualified under the ADA:
First, we must determine whether the individual could perform the
essential functions of the job, i.e., functions that bear more than a
marginal relationship to the job at issue. Second, if (but only if) we
conclude that the individual is not able to perform the essential
functions of the job, we must determine whether any reasonable
accommodation by the employer would enable him to perform those
functions.
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White, 45 F.3d at 361-62 (quoting Chandler v. City of Dallas, 2 F.3d 1385, 1393-
94 (5th Cir. 1993), cert. denied, 114 S. Ct. 1386 (1994)).
Defendants concede that there is a genuine issue of material fact as to the
essential functions of Lowe’s job at Angelo’s. Nevertheless, they argue that the
statement of Marsh Sears, an occupational therapist who examined Lowe after her
dismissal, mandates a finding that Lowe is not qualified as a matter of law.
Based on Lowe’s decreased endurance and strength, Sears concluded that Lowe
was “not a candidate for employment at this time as a kitchen manager.” Sears’s
general statement does not, however, address the essential functions of Lowe’s
job at Angelo’s, nor does it conclusively establish that Lowe is unable to perform
those functions. Moreover, a finding that Lowe cannot perform the essential
functions of her job does not end the inquiry. If the trial court finds that Lowe is
unable to perform the essential functions of her position, it must then determine
whether any reasonable accommodation by defendants would enable her to
perform those functions. Because Lowe has raised a genuine issue of material
fact as to the essential functions of her job at Angelo’s, summary judgment
premised on the testimony of the occupational therapist is inappropriate.
Because the district court held that Lowe had failed to establish a prima
facie case, it did not reach her claim that defendants discriminated against her by
failing to provide reasonable accommodations for her impairment. Under the
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ADA, prohibited discrimination includes failure to make “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). Because
Lowe has raised a genuine issue of fact with respect to whether she suffers from a
disability and with respect to her qualifications for the position at Angelo’s, the
court remands this issue to the trial court for further consideration.
Lowe next challenges the grant of summary judgment on her Title VII sex
discrimination claims. Lowe first contends that her termination constituted
disparate treatment. To establish a prima facie case, the discharged employee
must show that: (1) she belongs to the protected class; (2) she was qualified for
her job; (3) that, despite her qualifications, she was discharged; and (4) that after
her discharge the job remained available. See Lujan v. New Mexico Health &
Social Servs. Dep’t, 624 F.2d 968, 970 (10th Cir. 1980) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Assuming that Lowe was
qualified to perform her job at Angelo’s, she has nevertheless failed to present
any evidence that the job remained available after she was discharged.
Accordingly, Lowe has failed to establish a prima facie case of disparate
treatment based on her termination.
Lowe has likewise failed to establish a prima facie case of disparate
treatment based on Fasciano’s requirement that she wear “dress” clothes while
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two of her male co-workers were allowed to wear blue jeans and t-shirts. For
purposes of evaluating Lowe’s argument, this court will assume that imposing
special appearance rules on members of only one sex may violate Title VII. See
Carroll v. Talman Fed. Sav. & Loan Ass’n, 604 F.2d 1028, 1032-33 (7th Cir.
1979), cert. denied, 445 U.S. 929 (1980). Lowe, however, has failed to show that
she was treated less favorably than her similarly-situated male counterparts. See
Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1380 (10th Cir. 1994). Although she
testified that she was required to “dress up,” her testimony is equivocal regarding
the job descriptions of the two male employees who were exempted from this
requirement. Because Lowe has failed to present evidence that these male co-
workers were similarly situated with respect to their job functions, she has failed
to establish a prima facie case of disparate treatment based on the requirement she
wear dress clothes.
Lowe next contends that she was the victim of a hostile work environment
based on her gender. The Supreme Court has held that “[w]hen the workplace is
permeated with ‘discriminatory intimidation, ridicule, and insult’ . . . that is
‘sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment,’” Title VII is violated.
Harris v. Forklift Sys., Inc., 114 S. Ct. 367, 370 (1993) (quoting Meritor Sav.
Bank v. Vinson, 477 U.S. 57, 65 (1986)). The challenged conduct must create “an
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objectively hostile or abusive work environment--an environment that a
reasonable person would find hostile or abusive.” Id. Casual or isolated
manifestations of discriminatory conduct, such as a few sexual comments or slurs,
may not support a cause of action. See Hicks v. Gates Rubber Co., 833 F.2d
1406, 1414 (10th Cir. 1987).
Upon review of this record, the court concludes that Lowe has failed to
present sufficient evidence from which a reasonable jury could return a verdict in
her favor. Lowe argues that Fasciano’s requirement that she not wear red is
evidence of a hostile work environment. She has failed, however, to establish
that this requirement was related to her gender. In addition, the isolated comment
“no skirts in the kitchen” and Fasciano’s use of the term “girlie” to refer to Lowe,
although regrettable, do not demonstrate that the work environment at Angelo’s
was “permeated with discriminatory intimidation, ridicule, and insult.” Harris,
114 S. Ct. at 370 (citation and internal quotation marks citation omitted).
In addition to these incidents, Lowe relies heavily on the deposition
testimony of a former Angelo’s employee, Ronald Sagely, to support her hostile
work environment claim. Sagely left Angelo’s in 1987, five years before Lowe
started working there. He testified that the Fascianos occasionally called
waitresses “fucking slow bitches” and blacks “niggers” or “melanzanes,” a
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derogatory Italian term for blacks. He also testified that the Fascianos abused
“pretty much everybody.”
Past discrimination may properly be considered evidence of current
discriminatory intent in a disparate treatment case. Pitre v. Western Elec. Co.,
843 F.3d 1262, 1267 (10th Cir. 1988). This court, however, has yet to address the
issue of whether past discrimination may be considered evidence of a current
hostile work environment. Assuming that Sagely’s testimony can properly be
considered, Lowe has nevertheless failed to establish a prima facie case of
harassment based on her gender. Viewed in its entirety, Sagely’s deposition
establishes only that Angelo’s was a highly volatile and frequently unpleasant
place to work for both men and women. Similarly, the Fascianos use of racist
epithets, although appalling, does not establish that Lowe suffered gender
discrimination.
In her last argument under Title VII, Lowe challenges the district court’s
grant of summary judgment on her claim that she was discharged in retaliation for
advocating the hiring of African Americans. To establish a prima facie case of
retaliation under Title VII, an employee must show that: (1) she engaged in
protected opposition to statutorily prohibited discrimination; (2) the employer
took adverse action contemporaneously or subsequent to the employee’s protected
activity; and (3) a causal connection exists between the employer’s adverse action
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and the employee’s protected activity. Meredith v. Beech Aircraft Corp., 18 F.3d
890, 896 (10th Cir. 1994). Assuming Lowe’s activities qualified as protected
opposition to statutorily prohibited discrimination, Lowe has nevertheless failed
to provide any evidence demonstrating a causal connection between her
termination and the protected activity. Accordingly, she has failed to establish a
prima facie case of retaliation under Title VII.
Finally, Lowe challenges the district court’s grant of summary judgment on
her Kansas state law claim for intentional infliction of emotional distress or
outrage. This court recently considered the requirements for the tort of outrage
under Kansas law in Bolden v. PRC Inc., 43 F.3d 545 (10th Cir. 1994), cert.
denied, 116 S. Ct. 92 (1995). To succeed on a claim of outrage, as a threshold
matter, the employee must show that: (1) the defendant’s conduct may reasonably
be regarded as so extreme and outrageous as to permit recovery; and (2) the
emotional distress suffered by the plaintiff is so extreme the law must intervene
because no reasonable person would be expected to endure it. Id. at 553 (citing
Roberts v. Saylor, 637 P.2d 1175, 1179 (Kan. 1981), cert. denied, 482 U.S. 906
(1987)). “‘Conduct to be a sufficient basis for an action to recover for emotional
distress must be outrageous to the point that it goes beyond the bounds of decency
and is utterly intolerable in a civilized society.’” Id. at 554 (quoting Roberts, 637
P.2d at 1179). Because the court determines that defendants’ conduct, although
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distasteful, is not so extreme that it “goes beyond the bounds of decency and is
utterly intolerable in a civilized society,” the district court’s grant of summary
judgment on Lowe’s claim of outrage is affirmed.
For the foregoing reasons, this court AFFIRMS the district court’s grant of
summary judgment on Lowe’s Title VII and intentional infliction of emotional
distress claims. The court REVERSES the grant of summary judgment on
Lowe’s ADA claim and REMANDS for further proceedings.
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