Michael Genthe v. Quebecor World Lincoln

BYE, Circuit Judge,

concurring in part and dissenting in part.

I join the majority’s decision affirming the district court’s grant of judgment as a matter of law as to the forklift operator position. But, because I believe there was sufficient evidence for the jury to find in favor of Genthe as to the J-l position, I dissent from that portion of the opinion.

Michael Genthe suffers from Marfan’s Syndrome, a genetic disorder affecting the body’s connective tissue. The syndrome affects the entire body but is most noticeable in its effects on the musculoskeletal system, eyes and cardiovascular system. Outward manifestations include an elongated skeletal structure, curvature of the spine and sunken chest. The condition frequently leads to myopia, subluxation of the lenses in the eyes, and stretching of blood vessels and arteries. Genthe has suffered from Marfan’s since the age of one. At age sixteen he underwent surgery to replace part of his ascending aorta which had stretched to the point an aneurysm was imminent. Genthe also underwent valve replacement surgery to prevent blood from back-flowing into his heart. The surgeries left him prone to strokes so he takes blood-thinning medication and un*719dergoes yearly visits with a cardiologist to monitor the condition. Despite these problems, Genthe is able to work and for purposes of this appeal does not contend he is disabled within the meaning of the ADA.

In 1993, Genthe began ' working for American Signature, a printing company, in its bindery department.’ Genthe worked as a “heavy,” unloading stacks of magazine parts for insertion into a binder machine and then loading the finished product into mail bags. The job frequently required him to lift up to seventy pounds and work overtime up to sixty hours. Genthe also worked periodically as a “light,” making sure the magazine sections loaded into the binder by, heavies were placed in the correct slots. The job of a light requires light lifting and the ability to read and follow directions so the magazines are, properly configured. Both heavies and lights are supervised by a Journeyman I or Journeyman I Apprentice who operates the binder and is responsible for meeting production goals. In January 1997, Quebecor purchased American Signature and retained Genthe. Quebecor combined the positions of heavies and lights into a single position nominated Journeyman II but did not significantly change Genthe’s job requirements.

In the summer of 1997, Genthe began experiencing significant atrial fibrillation at work. In July 1997, he suffered a suspected stroke and was hospitalized. After being released, Genthe began suffering seizures lasting several minutes and occurring at least three times per week. The seizures affected his ability to work and in November 1997, Genthe was again hospitalized following a seizure. Thereafter, Genthe was prescribed anti-seizure medication and released from work until he was seizure-free for at least six months. In order to qualify for short term disability, Genthe provided Quebecor with his complete medical file documénting his health problems. • He also met with Warren Les-eo, head of Human Relations, to discuss his medical condition and provide him with information about Marfan’s Syndrome.

Genthe returned to Quebecor in April 1998, with a twenty-pound lifting restriction and orders to work no more than forty hours per week. In May 1998, Genthe underwent eye surgery after the lens in his right eye dislocated. Genthe had no further problems with seizures (save for one episode in 2001) but suffered severe episodes of tachycardia. In August 1999, his cardiologist performed an ablation procedure on the AV-node reentry in his heart which reduced the frequency of his tachycardia.

By March 2000, Genthe’s health had improved and he requested a letter from his physician allowing him to increase his work hours. The physician responded with á letter indicating Genthe was free to work overtime up to sixty hours per week if he wished. Quebecor, however, complained the letter left the decision about how many hours Genthe would work up to him, and asked for a letter establishing a specific limit on the number of hours he could work. Apparently, no such letter was forthcoming but Quebecor increased Genthe’s hours and required him frequently to work sixty hours per week. Genthe concluded he could not regularly work sixty hours and filed a grievance. Eventually, Genthe’s treating physician restricted him to a forty-eight-hour work week and imposed a fifty-pound lifting restriction.

It is against this backdrop that in April 2000, Genthe applied for promotion to the J-I position. The position involved more pay and was less physically demanding than Genthe’s current position. Steve Fructl, Bindery Department Head, announced four openings for J-Is. Eight such positions were expected to be filled but *720Fructl chose to begin by advertising only four. The selection process required candidates to be interviewed by a Journeyman Apprentice Committee (JAC) made up of an equal number of union and management representatives. Among others, Fructl, Leseo and union vice president Pete Pietrowski sat on the JAC. After conducting interviews and reviewing information submitted by the candidates, their supervisors, and Human Relations, the JAC would submit its selections to Fructl for final approval.

Genthe interviewed in June 2000, and during the interview several questions were raised about his medical condition. Following the interview, the JAC met to discuss the candidates and several comments and questions relating to Genthe’s medical condition arose. One JAC member questioned Genthe’s vision and another expressed concern over whether he would be able to handle the stress of the position. Another co-worker indicated Genthe “has a hard time sometimes with his job due to health reasons. Can’t work overtime because of health.” Still another co-worker stated Genthe was only able to work thirty-six hours. At his deposition, Fructl denied that Genthe’s medical condition was discussed at the JAC meeting. Later, after Pietowski’s handwritten notes from the meeting contradicted Fructl’s claim, he admitted the discussions occurred. At trial, Fructl testified he did not take Genthe’s medical condition into account in making a hiring decision and admonished JAC members not to base a hiring decision on any perceived disability. Pietrowski, however, testified he was the one who told JAC members not to consider Genthe’s physical problems. Genthe was not hired for the J-I position but was named first alternate, meaning he would be immediately promoted if a position opened up within the next ninety days.

At about this same time, Fructl hired a fifth J-I from outside the company. Randy Deahn, a former Quebecor J-I employee, was not required to go through the interview process and was hired ahead of Genthe. At trial, Fructl contended Deahn may have been hired before Genthe was named first alternate but Pietrowski testified he did not see Deahn at Quebecor until after the four J-I positions were filled. The union filed a grievance and in November 2000 reached a tentative settlement whereby Quebecor would promote the first alternate to J-I. Union president Richard Conn and vice president Pietrow-ski testified they believed Quebecor did not realize Genthe was the first alternate. Fructl told Genthe if he could work forty-eight hours and lift fifty pounds he would be promoted.3 Later, however, in January 2001, Genthe was advised he would not be promoted unless he could produce a note indicating he could work sixty hours. Genthe did not believe he was capable of consistently working sixty hours and requested an accommodation allowing him to work forty-eight hours. Genthe argued a sixty-hour work week was not an essential function of the position and produced evidence showing Quebecor had accommodated other J-Is by allowing them to work only fifty hours. In the end, Genthe was not promoted.

The majority concludes this evidence is insufficient to support the jury’s conclusion that Quebecor regarded Genthe as disabled. I respectfully disagree.

Quebecor was aware Genthe suffered from Marfan’s and that beginning in 1997 he experienced serious health problems, *721including a stroke, seizures, and heart problems. These health problems culminated in a six-month absence from work during which time Genthe collected disability insurance. When Genthe returned to work, he was limited in the number of hours he could work and the amount he could lift. Quebecor was also aware Genthe suffered from vision problems. Genthe had two surgeries to replace the lenses in his eyes and at least two co-employees questioned whether he was fit for promotion due to vision problems. Additionally, during the J-I selection process several comments were made about Genthe’s health problems, including problems with his vision, heart and ability to work overtime.

There is also evidence suggesting Quebecor’s proffered reasons for refusing to promote Genthe to the J-I position were pretextual. After naming Genthe as first alternate, Quebecor ignored its own established procedures and hired a fifth JI from outside the company. Quebecor officials suggested the hiring decision was made before Genthe was named as an alternate, but other evidence contradicts the claim. For JAML purposes, contested evidence contrary to the verdict must be disregarded. Later, after Quebecor agreed to promote the first alternate, Genthe was told he would only be promoted if he could work up to sixty hours per week. Previously, however, despite being unable to regularly work sixty hours per week, Quebecor found Genthe qualified for the position and named him first alternate. The fact that Quebecor obviously found him qualified but later imposed additional job requirements renders the decision suspect.

In order to find in favor of Genthe it was not enough for the jury to conclude Quebe-cor regarded him as disabled. Rather, Genthe had to prove Quebecor regarded him as disabled within the meaning of the ADA, i.e., substantially limited in a major life activity. According to the regulations that guide the interpretation of the ADA, an impairment is “substantially limiting” if it renders an individual unable to perform a major life activity that the average person in the general population can perform, or if it significantly restricts the condition, manner, or duration under which an individual can perform such an activity compared to the general population. 29 C.F.R. § 1630.2(j)(1)(i)-(ii). Major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working, 29 C.F.R. § 1630.2(i), as well as sitting, standing, lifting, and reaching. Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 948 (8th Cir.1999). Several factors are considered in determining whether a person is substantially limited in a major life activity: 1) the nature and severity of the impairment; 2) its duration or anticipated duration; and 3) its longterm impact. 29 C.F.R. § 1630.2(j)(2)(i)-(iii). Much of the evidence presented in this case was conflicting and circumstantial, and Genthe could have done a better job explaining what major life activity he claims Quebecor believed he could not fully perform. Nevertheless, after considering the evidence, the jury concluded Quebecor failed to promote Genthe because it regarded him as disabled within the meaning of the ADA. While the jury could have easily reached a different conclusion, I disagree with the district court’s holding that there was insufficient evidence to support the verdict. Accordingly, I would reverse the district court’s grant of JAML on this claim, reinstate the jury’s verdict, and remand for consideration of Genthe’s post-trial motions. I join the majority opinion in all other respects.

. Fructl denied the conversation but the jury was free to disregard Fructl's testimony and accept Genthe’s version of the events.