United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1716
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Scott St. Martin, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
City of St. Paul, *
*
Defendant-Appellee. *
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Submitted: December 14, 2011
Filed: June 5, 2012
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Before LOKEN, BRIGHT and SHEPHERD, Circuit Judges.
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BRIGHT, Circuit Judge.
Scott St. Martin filed suit alleging the City of St. Paul (“the City”) engaged in
discrimination, on three occasions, by promoting individuals other than him for a fire
district chief position in violation of the Americans with Disabilities Act (ADA) and
the Minnesota Human Rights Act (MHRA). The district court1 granted summary
judgment to the City on all counts. St. Martin now appeals the district court’s
judgment, contending the district court erred in finding that he is not disabled under
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
the ADA or MHRA, and that he cannot maintain his MHRA claim as to the May 2009
act of alleged discrimination. We affirm.
BACKGROUND
St. Martin began working as a firefighter for the City in 1992 and was promoted
to captain in 1999. In 2006, he injured his right knee and underwent reconstructive
surgery. Consequently, he received workers’ compensation from the City. After the
surgery, St. Martin returned to work on a light-duty schedule, performing
administrative duties at the fire department. Thereafter, he worked briefly as an arson
investigator.
In 2007, the City announced an opening for a fire district chief position, which
is one rank above captain. St. Martin applied for the position and took a four-part
examination. Based on his scores, St. Martin ranked second out of twenty-one
candidates. Department chief Timothy Butler then added an interview portion to the
exam, and the top five candidates were interviewed by a panel consisting of Butler,
three deputy chiefs, and the assistant fire chief of operations. By the time of the
interview in February 2008, two additional fire district chief positions had opened up,
and as required by the City, St. Martin took a physical exam and received medical
clearance from the City’s physician. During the interview, Butler asked about St.
Martin’s knee condition and whether he would need accommodations if he was
promoted to fire district chief. Despite being the panel’s first choice for the position,
St. Martin was not promoted; instead, Butler, who had ultimate authority to make the
decision, promoted those candidates ranked numbers three, four, and five. According
to a union representative for the local fire fighters’ union, Butler told her at some point
after the interview that he was going to give St. Martin “the disability benefits he
wants.”
Another fire district chief position opened up in late 2008. St. Martin applied
and interviewed with a panel consisting of Butler, who again inquired about St.
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Martin’s knee issue. Butler then informed St. Martin in a November 2008 email that
he would not be promoted. Butler made this decision even though St. Martin was the
other panel members’ pick. In the email, Butler recommended that St. Martin invest
in his professional development, but that “given your medical status that will prove
difficult.” Butler also sent an email to the City’s human resources contact person,
stating:
We are at an impasse with [St. Martin]: he cannot do the job, and we
shouldn’t order him to complete training that certifies him to do a job we
cannot let him do, AND we don’t want to fail in our duty to get him the
recert he needs as a term and condition of his employment. There is no
guarantee that he’ll make district chief, and to be frank, I would not
willingly promote him unless I was forced to. I would prefer he retire,
take his disability, and open up further options on the district chief list.
(App. 220). In May 2009, St. Martin interviewed for a fire district chief position for
the third time and, again, Butler did not promote St. Martin.
St. Martin testified that at all relevant times he sought work with the City in any
capacity. However, he only received work as a commercial vehicle inspector in
January 2010. He was let go from that position after only two weeks because of his
knee injury. St. Martin also worked at his brother’s landscaping company during a
few off-season months, but did not perform any actual landscaping work. St. Martin
took disability retirement in December 2009 and now works as a fire inspector for the
City.
Before his May 2009 interview, St. Martin filed a disability discrimination
charge against the City with the Equal Employment Opportunity Commission
(EEOC). The EEOC dismissed the claim, but notified St. Martin of his right to file
suit. St. Martin then filed a complaint in Minnesota setting forth two counts: (1)
disability discrimination by the City in violation of the MHRA by refusing to hire him
as fire district chief and failing to reasonably accommodate him, and (2) disability
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discrimination by the City in constructively terminating his employment in violation
of the ADA and failing to reasonably accommodate him, all because of his disability
and/or perception thereof. Based on St. Martin’s federal ADA claim, which relies on
the same facts as his MHRA claim, the City timely removed the case to the United
States District Court for the District of Minnesota.
The district court granted the City’s motion for summary judgment, finding:
(1) St. Martin was not disabled under the ADA because his knee injury does not
substantially limit his ability to work a broad class of jobs and the City did not regard
him as being disabled, and (2) the City was not required to accommodate St. Martin’s
disability. The district court dismissed St. Martin’s MHRA claim, finding that he did
not satisfy the MHRA’s less stringent definition of disability. The district court also
found that because the May 2009 interview was not part of St. Martin’s discrimination
charge before the EEOC, his ADA claim arising out of the May 2009 interview
necessarily fails for failure to exhaust administrative remedies. St. Martin now
appeals the district court’s order granting the City’s motion for summary judgment.2
DISCUSSION
This court reviews a district court’s grant of summary judgment de novo and
may affirm the district court on any basis supported by the record. Figg v. Russell,
433 F.3d 593, 597 (8th Cir. 2006). Summary judgment is proper if the movant shows
that there is no genuine dispute of any material fact and that he is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a). Summary judgment is appropriate where
one party has failed to present evidence sufficient to create a jury question as to an
essential element of its claim. Torgerson v. City of Rochester, 643 F.3d 1031, 1042
(8th Cir. 2011).
2
St. Martin does not raise his failure to accommodate argument on appeal.
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A.
St. Martin contends there are sufficient factual disputes regarding whether he
is disabled under the ADA, which should be resolved by a jury. The ADA prohibits
an employer from discriminating against an employee because of the employee’s
disability. 42 U.S.C. §§ 12101-213 (2006). A plaintiff seeking relief under the ADA
must show (1) he is a disabled person as defined by the ADA, (2) he is qualified to
perform the essential functions of his job with or without reasonable accommodation,
and (3) he suffered an adverse employment action because of his disability. Lors v.
Dean, 595 F.3d 831, 834 (8th Cir. 2010). Disability is defined as: “(A) a physical or
mental impairment that substantially limits one or more major life activities of an
individual, (B) a record of such an impairment, or (C) being regarded as having such
an impairment.” 42 U.S.C. § 12102(1); see Minn. Stat. § 363A.03, subdiv. 12
(2005).3 Working is a major life activity. 42 U.S.C. § 12102(2). “When the major
life activity at issue is working, ‘the statutory phrase ‘substantially limits’ requires,
at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.’”
Knutson v. AG Processing, Inc., 394 F.3d 1047, 1051 (8th Cir. 2005) (quoting Sutton
v. United Air Lines, Inc., 527 U.S. 471, 491 (1999)).
The parties do not dispute that St. Martin’s knee injury is a physical
impairment. The question is whether the physical impairment substantially limits his
ability to work. St. Martin contends the knee injury (1) restricted him from
performing the positions of a firefighter and fire captain within the City, (2) caused
3
“The analysis of [a] MHRA claim is parallel to the ADA claim in all respects
but one. The Minnesota statute defines ‘disability’ as an impairment that ‘materially
limits’ a major life activity.” Kirkeberg v. Canadian Pac. Ry., 619 F.3d 898, 907 (8th
Cir. 2010); see Minn. Stat. § 363A.03, subd. 12 (2005). “The Supreme Court of
Minnesota has concluded that ‘materially limits’ is a ‘less stringent’ standard than
‘substantially limits.’” Kirkeberg, 619 F.3d at 907 (citation omitted). Nonetheless,
St. Martin sets forth no argument showing how his physical impairment materially
limited his major life activity of working.
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him to be decertified to work as a commercial vehicle inspector in Minnesota, and (3)
made him unable to perform landscaping services. However, St. Martin must show
an inability to work a broad class of jobs. See Knutson, 394 F.3d at 1051; Shipley v.
City of Univ. City, 195 F.3d 1020, 1022–23 (8th Cir. 1999) (affirming summary
judgment where the record showed that appellant was able to perform a variety of jobs
including car wash attendant, salesman, dry cleaner, and dish washer repairman). The
fact that St. Martin worked briefly as an arson investigator for the City without
accommodation after his surgery and is currently employed as the fire inspector for
the City, undermines his contention. Adding to it is the fact that St. Martin was
medically cleared to work as fire district chief. Further, St. Martin also worked in his
brother’s landscaping company, even if he did not perform actual landscaping work,
for a few months after claiming disability retirement. On these facts, St. Martin fails
to demonstrate that he is unable to work a broad class of jobs. Consequently, he
cannot show that his knee injury substantially limits his ability to work a broad class
of jobs, or a record thereof.
St. Martin also contends that the City perceived him as disabled based on
Butler’s statements during and after the interviews, and the City’s refusal to employ
him in any capacity for two years. The third prong of the ADA’s definition of
disability requires St. Martin to show he “has been subjected to an action prohibited
under [the ADA] chapter because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is perceived to limit a major life
activity.” 42 U.S.C. § 12102(3). St. Martin must put forth direct evidence of
discrimination or an inference of unlawful discrimination to support his allegation
against the City. See Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir.
2004).
Direct evidence is that which shows “a specific link between the alleged
discriminatory animus and the challenged decision, sufficient to support a finding by
a reasonable fact finder that an illegitimate criterion actually motivated the adverse
employment action.” Id. (quotation omitted). Direct “refers to the causal strength of
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the proof, not whether it is ‘circumstantial’ evidence.” Id. Alternatively, “if the
plaintiff lacks evidence that clearly points to the presence of an illegal motive, he must
avoid summary judgment by creating the requisite inference of unlawful
discrimination through the McDonnell Douglas analysis, including sufficient evidence
of pretext.” Id. This means St. Martin must allege facts supporting the underlying
elements of his ADA claim. See Lors, 595 F.3d at 834 (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 804 (1973)). If he can do so, the burden then shifts to
the City to articulate some legitimate, nondiscriminatory reason for its action. Id. If
the City articulates such a reason, the burden shifts back to St. Martin to show the
City’s justification is a pretext. Id.
St. Martin relies on Butler’s oral and written statements as direct evidence of
discrimination. St. Martin argues that Butler’s statements reflect his belief, as the
decision-maker, that St. Martin could not handle the fire district chief job and shows
the direct link between the discriminatory motive and failure to hire and employ St.
Martin. Indeed, Butler’s statements reflect his view that St. Martin is not the best
candidate for the job. However, Butler’s inquiries concerning St. Martin’s knee injury
during the 2008 interview and Butler’s statements to St. Martin thereafter included
suggestions on how St. Martin could make himself a better candidate, thereby
improving his chances for a promotion. And Butler’s statements to third parties—the
union representative and human resources contact person— about St. Martin’s
medical status and giving St. Martin the disability he wanted, without more, do not
show that Butler considered St. Martin’s knee injury a substantial limit on his ability
to work a broad range of jobs. See Nyrop v. Indep. Sch. Dist. No. 11, 616 F.3d 728,
736 (8th Cir. 2010) (holding that isolating comments made by principal did not show
that the school district regarded teacher as disabled). St. Martin offers no direct
evidence that connects his inability to obtain a job outside the fire department with his
physical impairment.
St. Martin also contends that Butler’s decisions were pretext for unlawful
discrimination. Even assuming that he could establish a prima facie case of
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discrimination, St. Martin acknowledges that the City articulated a nondiscriminatory
reason for its refusal to promote him to fire district chief—there were more qualified
candidates. He refers to his high test scores, experience, and the fact that he was the
panel’s first choice for the fire district chief position on two occasions as evidence
which contradicts Butler’s decisions. But St. Martin’s arguments are belied by the
fact that the top candidate after both interviews was not promoted. In fact, Butler
testified that he chose the lower-ranking candidates because they were educationally
superior and understood the department’s vision. In contrast, St. Martin did not read
the information setting forth the department’s vision, and came to the interview
unprepared. Thus, St. Martin is unable to show the City’s justification was pretext.
Consequently, St. Martin has not put forth either direct or indirect evidence that the
City regarded him as disabled. A perceived disability to perform the fire district chief
position is not the same as a perceived disability which materially limits a major life
activity. St. Martin fails to satisfy his ADA claim and we, therefore, affirm the district
court’s decision on this issue.
B.
St. Martin does not dispute that he failed to exhaust his administrative remedies
under the ADA as to the May 2009 interview, but contends that the district court erred
in dismissing his MHRA claim. In contrast to his ADA claim, St. Martin need not
exhaust his administrative remedies so long as he files an administrative charge or
brings a lawsuit within one year of the alleged discrimination. Minn. Stat. § 363A.28,
subd. 3 (2005). St. Martin commenced this suit in July 2009, within one year of the
alleged discrimination in May 2009.
Like the ADA, the MHRA prohibits discrimination in employment because of
one’s disability. Minn. Stat. § 363A.02 (2005). The MHRA defines disability in
terms similar to those under the ADA, except that the former defines “disability” as
an impairment that “materially limits” a major life activity. See Minn. Stat. §
363A.03, subd. 12 (2005). “Materially limits” is a less stringent standard than
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“substantially limits.” Kirkeberg v. Canadian Pac. Ry., 619 F.3d 898, 907 (8th Cir.
2010) (citing Sigurdson v. Carl Bolander & Sons, Inc., 532 N.W.2d 225, 228
(Minn.1995)). Analysis of a ADA claim applies equally to a MHRA claim. Loye v.
Cnty. of Dakota, 625 F.3d 494, 497 n.2 (8th Cir. 2010).
St. Martin argues that the reduction in employment opportunities and his
inability to secure work with the City due to his disability or perception thereof meets
the MHRA’s less stringent standard of disability. However, as discussed, even when
viewed in the light most favorable to St. Martin, the facts here do not show how he
was materially limited in the major life activity of working or regarded as such.
Therefore, the district court correctly dismissed St. Martin’s MHRA claim.
CONCLUSION
For the foregoing reasons, we affirm the district court’s judgment.
SHEPHERD, Circuit Judge, concurring in part and dissenting in part.
Because St. Martin failed to exhaust his administrative remedies as to the final
job opening, I concur in the majority decision, affirming the district court’s grant of
summary judgment as to that ADA claim. However, I believe there was direct
evidence that Butler did not promote St. Martin because he regarded him as disabled.
Accordingly, I would reverse and allow a jury to decide St. Martin’s ADA claims as
to the first two job openings and all of his MHRA claims.
Under the ADA, an employee can recover from an employer that treats the
employee “adversely because it regarded [the employee] as having an impairment that
substantially limits one or more major life activities.” Weber v. Strippit, Inc., 186
F.3d 907, 915 (8th Cir. 1999) (emphasis omitted). A “regarded as disabled” claim
exists where “‘an employer mistakenly believes an actual, non-limiting impairment
substantially limits one or more of the individual’s major life activities.’” Kirkeberg
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v. Canadian Pac. Ry., 619 F.3d 898, 906 (8th Cir. 2010) (quoting Wooten v. Farmland
Foods, 58 F.3d 382, 385 (8th Cir. 1995)). Working is a major life activity under the
ADA, and the ability to work is substantially limited where an impairment prevents
an individual from working a broad class of jobs. Conant v. City of Hibbing, 271 F.3d
782, 784-85 (8th Cir. 2001) (per curiam); 29 C.F.R. § 1630.2(i.)(1.)(i.). As observed
by the majority, St. Martin is entitled to relief if he can show that the City regarded
him as being unable to perform a broad class of jobs and discriminated against him
because of the perceived disability. The analysis of St. Martin’s MHRA claims is
similar to the analysis of his ADA claims. See Ante at n.3.
An employee can survive summary judgment on an ADA claim by presenting
direct evidence of discrimination. Libel v. Adventure Lands of Am., Inc, 482 F.3d
1028, 1034 (8th Cir. 2007). “‘[D]irect evidence is evidence showing a specific link
between the alleged discriminatory animus and the challenged decision, sufficient to
support a finding by a reasonable fact finder that an illegitimate criterion actually
motivated the adverse employment action.’” Id. (quoting Griffith v. City of Des
Moines, 387 F.3d 733, 736-37 (8th Cir. 2004)). “‘[D]irect’ refers to the causal
strength of proof, not [to] whether it is ‘circumstantial’ evidence.” Griffith, 387 F.3d
at 736. Use of a burden shifting framework is not necessary for the plaintiff to get his
case to the jury where direct evidence exists; a plaintiff with direct evidence is entitled
to get to the jury based on that evidence alone. See id.
St. Martin offered evidence of multiple statements related to his disability made
by Butler, who was the decisionmaker in the hiring process. During St. Martin’s
interviews for the several openings, Butler repeatedly questioned St. Martin about his
knee injury. Butler told St. Martin that he did not believe St. Martin “could physically
do the job” of fire chief. In discussing how St. Martin might improve himself as a
candidate for future fire chief openings, Butler told St. Martin he could make an
“investment in personal professional development and department involvement” but
stated that given St. Martin’s “medical status” such development would “prove
difficult.” Butler sent an email to human resources stating St. Martin “cannot do the
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job . . . . I would not willingly promote him unless I was forced to. I would prefer he
retire, take his disability, and open up further options on the district chief list.” St.
Martin was required to get medical clearance before being allowed to interview for the
fire district chief positions although other applicants were not required to do so.
Additionally, St. Martin was the second highest scoring candidate on the aptitude
exam, was the first choice of the interview panels, and had a history of “outstanding”
reviews during his eighteen-year career with the Fire Department.
The majority characterizes Butler’s statements as stray remarks and concludes
that the statements by Butler are not direct evidence linking Butler’s discriminatory
animus to his failure to promote St. Martin. See Ante at 7. I disagree and would
conclude Butler’s remarks are direct evidence sufficiently linking Butler’s animus to
his failure to promote St. Martin.
Certainly, “‘[n]ot every prejudiced remark made at work supports an inference
of illegal employment discrimination.’” Arraleh v. Cnty of Ramsey, 461 F.3d 967,
975 (8th Cir. 2006) (quoting Rivers-Frison v. Se. Mo. Cmty. Treatment Ctr., 133 F.3d
616, 619 (8th Cir. 1998)). See, e.g., Twymon v. Wells Fargo & Co., 462 F.3d 925,
934 (8th Cir. 2006) (finding for employer where decisionmaker’s racially suspect
statements were not made “during the decisional process” of termination and appeared
to be made with the intent of “attempting to preserve and promote” the employee).
See also Arraleh, 461 F.3d at 975 (finding statement was not actionable because it was
not made by a decisionmaker). “‘We have carefully distinguished between comments
which demonstrate a discriminatory animus in the decisional process or those uttered
by individuals closely involved in employment decisions, from stray remarks in the
workplace, statements by nondecisionmakers, or statements by decisionmakers
unrelated to the decisional process.’” Id. (quoting Rivers-Frison, 133 F.3d at 619).
Direct evidence includes “evidence of actions or remarks of the employer that reflect
a discriminatory attitude, comments which demonstrate a discriminatory animus in the
decisional process, or comments uttered by individuals closely involved in
employment decisions.” King v. United States, 553 F.3d 1156, 1161 (8th Cir. 2009)
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(citations and internal quotation marks omitted). Where an employee has evidence
of “‘conduct or statements by persons involved in the decisionmaking process that
may be viewed as directly reflecting the alleged discriminatory attitude,’” this is direct
evidence of discrimination. See Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449
(8th Cir. 1993) (quoting Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir.
1992)) (discussing direct evidence in a mixed-motive case).
In this case, the evidence is direct because the discriminatory statements were
made by the sole decisionmaker and directly related to St. Martin’s ability to do the
job. Specifically, Butler stated that St. Martin could not “physically do the job” of fire
chief. Morever, Butler’s view of St. Martin as disabled was not limited to his
perceived inability to perform one specific job. Instead, St. Martin has offered
evidence that Butler regarded him as unable to perform a broad class of jobs. Butler
stated that there was “no return to work” option for St. Martin. These were not stray
or isolated remarks; they were repeated statements directly addressing St. Martin’s
ability to perform the major life function of working, and they were statements made
by the decisionmaker.
Whether Butler’s proffered reasons for not promoting St. Martin were his actual
reasons or whether he did not promote St. Martin because he regarded St. Martin as
disabled is a question of fact for the jury. To affirm the grant of summary judgment
in this case erroneously takes away from the jury a question of fact and denies St.
Martin the trial to which he is entitled based on the direct evidence he has offered.
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