John D. Baucom, Jr. v. Holiday Companies Holiday Stationstores, Inc.

LAY, Circuit Judge,

concurring.

I agree with the majority’s decision to affirm the district court’s grant of summary judgment as to all of Baucom’s claims. However, I disagree with the conclusion that Baueom was not subject to an adverse employment action pursuant to his claims for age and disability discrimination *769under the ADEA, ADA, and MHRA.3 Holiday’s reduction of Baucom’s hours, coupled with Baucom’s inability to regularly access overtime pay, constitutes an adverse employment action.

Baucom’s age and disability discrimination claims fail, however, because Baucom does not allege facts sufficient to establish a prima facie case for discrimination under each respective statute. Specifically, Bau-com does not prove, as a necessary element of his age discrimination claims, that he was treated less favorably than younger Holiday employees. Similarly, Baucom fails to establish that he is “disabled” as an element of his prima facie case under the ADA and MHRA.

ADVERSE EMPLOYMENT

The majority concludes that Baucom’s discrimination claims fail because Baucom does not prove that he was subject to an adverse employment action. I disagree.

Absent direct evidence of discrimination, ADEA, ADA, and MHRA claims are subject to review under the McDonnell Douglas burden shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Chambers v. Metro. Prop. & Cas. Ins. Co., 351 F.3d 848, 855 (8th Cir.2003); Longen v. Waterous Co., 347 F.3d 685, 688 (8th Cir.2003). Under this test, the employee bears the initial burden to prove a prima facie case of discrimination. As an element of Baucom’s prima facie ease under the ADA, ADEA, and MHRA, Baucom must set forth evidence to establish that he suffered an adverse employment action. Chambers, 351 F.3d at 855; Longen, 347 F.3d at 688. Once a prima facie case is established, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the employer articulates a legitimate reason for its actions, the burden shifts back to the employee to show that the employer’s justification is pretex-tual. Id. at 804, 93 S.Ct. 1817.

In the Eighth Circuit, we recognize an adverse employment action where there is: (1) a “tangible change in duties or working conditions”; (2) constituting “a material employment disadvantage.” Manning v. Metro. Life Ins. Co., Inc., 127 F.3d 686, 692 (8th Cir.1997). Regarding this second element, we note that, “[termination, cuts in pay or benefits, and changes that affect an employee’s future career prospects” qualify as material employment disadvantages. Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1016 (8th Cir.1999). Given the record, the only real issue before the court is whether Baucom’s reduction in hours, first from August 20024 to November 2002, and then from January 2003 through January 2004, amounts to an adverse employment action.

Under the standard analysis, a plaintiff suing under the ADA, ADEA, and MHRA must first demonstrate a “tangible change in duties or working conditions” to prove an adverse employment action. Manning, 127 F.3d at 692. However, the majority incorrectly requires Baucom to prove, in addition to a tangible change in duties and *770working conditions, that Holiday was the driving force behind Baucom’s hourly reductions and that Holiday’s decision to reduce Baucom’s hours was not motivated by a legitimate business purpose.

The majority concludes that Baucom has failed to meet this burden for two reasons. First, Baucom voluntarily took time off for medical reasons and, as a result, the reduction of Baucom’s hours amounts to a self-inflicted decrease. Second, the majority references Holiday’s new policy to reduce labor costs generally,5 and states that this policy demonstrates a legitimate business justification to account for the reduction of Baucom’s hours.

However, both of these factors are properly considered only after Baucom has established a prima facie case of discrimination. The source of, and reasons for, Baucom’s reduced hours help explain that the reductions were the result of legitimate, nondiscriminatory actions by Holiday (the burden shifting prong of the McDonnell Douglas test). The adverse employment prong simply addresses whether Baucom suffered a tangible change in duties or work conditions giving rise to a material employment disadvantage; not who cut Baucom’s hours, or the reasons explaining the reductions.

Therefore, because the majority conflates the adverse employment prong of Baucom’s prima facie case with the burden shifting prong of the McDonnell Douglas test, its ultimate analysis is incorrect. See Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 944 (8th Cir.1994) (holding that the district court erred by requiring “plaintiff, at the outset, to disprove [the] defendant’s alleged business reasons for its adverse employment action — in other words, to prove pretext and the ultimate issue of [ ] discrimination” pursuant to plaintiffs Title VII race discrimination claim); Johnson v. Arkansas State Police, 10 F.3d 547, 551 (8th Cir.1993) (stating that the district court improperly combined prima facie analysis with ultimate issue analysis). The prima facie burden should not be merged with the ultimate issue of discriminatory motivation. See Landon v. Northwest Airlines, Inc., 72 F.3d 620, 624 (8th Cir.1995). If the majority had properly considered Baucom’s hourly reductions standing alone, as the McDonnell Douglas test mandates, instead of conflating otherwise separate elements, it would be forced to recognize that Baucom has suffered a tangible change in duties or working conditions, thereby establishing the first requirement necessary to show an adverse employment action.

Regarding the second prong of adverse employment action analysis, the majority states that, even if Baucom could demonstrate a tangible change in work hours, “the slight decrease was not materially significant.” First, the majority states that Baucom’s average weekly hours decreased below forty for only three months in 2002. Second, the majority notes that, in 2003, although Baucom experienced a slight decrease in hours worked, his weekly average nonetheless hovered around thirty-eight or thirty-nine hours. Given these “minor fluctuations,” the majority concludes that Baucom’s decrease in hours was not materially significant.

This analysis is predicated upon the assumption that Baucom worked, or was entitled to work, only forty hours per week. However, the record shows that Baucom regularly worked between forty-three to *771forty-five hours per week before Holiday’s allegedly improper reductions. Conversely, during the periods where Baucom contends his hours were reduced unlawfully— first from August 2002 to November 2002, and then from January 2003 to January 2004 — Baucom averaged, at most, no more than thirty-nine hours per week. As a result Baucom incurred, at the least, a four to six hour, or 9% to 13%, decrease in average weekly hours during these periods. In many instances, Baucom’s reductions were even more pronounced, dipping below thirty hours per week on at least two occasions.

Finally and critically, the reduction of Baucom’s hours prevented him from regularly working over forty hours per week, thus denying him continued access to overtime pay. Before Holiday’s allegedly unlawful reductions, Baucom regularly worked in excess of forty hours per week and, accordingly, earned overtime pay for these hours. For most employees who work by the hour, overtime pay at time- and-one-half the regular rate is a significant part of their annual incomes. Decreased accessibility to this form of pay should not be taken lightly.

The reduction in Baucom’s hours, coupled with his inability to regularly access previously realized overtime pay, constitutes a tangible change in duties or working conditions giving rise to a material employment disadvantage. Contrary to the majority’s conclusion, Baucom has demonstrated an adverse employment action under the ADA, ADEA, and MHRA.

AGE DISCRIMINATION UNDER THE ADEA AND MHRA

Baucom’s ADEA and MHRA age discrimination claims fail because Baucom cannot demonstrate that younger Holiday employees were treated differently than he.

To establish a prima facie case under the ADEA and MHRA,6 Baucom must show that: (1) he was within a protected class; (2) he was qualified to perform his job; (3) he suffered an adverse employment action; and (4) younger Holiday employees received more favorable workplace treatment than Baucom. Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156-57 (8th Cir.1999). In support of the fourth prong of this test, Baucom relies, exclusively, on his own anecdotal observations to show that younger Holiday employees received more favorable workplace treatment than he. However, “mere allegations which are not supported with specific facts are not enough to withstand [a] motion” for summary judgment. Klein v. McGowan, 198 F.3d 705, 709 (8th Cir.1999). Therefore, because Baucom failed to offer evidence, beyond his own mere assertions, to support the contention that younger Holiday employees received preferential workplace treatment, Baucom has failed to prove a prima facie case of age discrimination and, as such, the district court’s grant of summary judgment for Holiday on this claim was proper.

DISABILITY' DISCRIMINATION UNDER THE ADA AND MHRA

Baucom’s disability discrimination claims fail because Baucom does not demonstrate that he is “disabled” within the meaning of the ADA or MHRA.7

*772To prove a prima facie case for disability discrimination under the ADA and MHRA, Baucom must show: (1) that he was a disabled person within the meaning of the controlling statute; (2) that he was qualified to perform the essential functions of his job; and (3) that he suffered an adverse employment action under circumstances giving rise to an inference of unlawful discrimination. Miners v. Cargill Communications, Inc., 113 F.3d 820, 823 (8th Cir.1997). A disability includes physical or mental impairments that substantially or materially limit one or more major life activities. Compare 42 U.S.C. § 12102(2)(A) (stating that a disability is “a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual”), with Minn.Stat. § 363A.03, subd. 12 (stating that a disabled person is one who has a “physical, sensory, or mental impairment which materially limits one or more major life activities”).

Baucom alleges that he is disabled because he suffers from a back impairment and a heart condition. However, Baucom’s heart condition is not a disability because Baucom fails to cite what, if any, major life activity is substantially or materially impaired as the result of this infirmity. See Weber v. Strippit, Inc., 186 F.3d 907, 914-15 (8th Cir.1999) (stating that a failure to “present sufficient evidence to establish the nature, duration, and long-term impact” of a heart condition does not constitute a disability). Nor does Baucom’s back impairment, which precludes him from lifting items over twenty pounds, amount to an actionable disability. In Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1207 (8th Cir.1997), we failed to recognize a purported disability under the ADA and MHRA where the plaintiff was restricted from lifting objects over twenty-five pounds; see also Aucutt v. Six Flags Over Mid-Am., Inc., 85 F.3d 1311, 1318-19 (8th Cir.1996) (finding no disability where plaintiff was restricted from lifting objects over twenty-five pounds). Therefore, because Baucom’s medically-imposed lifting restriction is five pounds less than a similar restriction that we have held does not constitute a qualifying disability, Baucom has failed to demonstrate that he is disabled under either the ADA or MHRA. As such, the majority’s decision to affirm the district court’s grant of summary judgment on this claim was also proper.

. Regarding Baucom’s retaliation claims under the ADEA, ADA, and MHRA, I agree with the majority that Baucom’s reprimands and poor performance review do not, as a matter of law, constitute an adverse employment action.

. The deposition testimony of Dale Boeckel establishes that Baucom’s hours were cut in 2002 "[tjowards the middle of the year.” Viewing the evidence in the light most favorable to Baucom, I will assume, for purposes of summary judgment, that Baucom's first allegedly unlawful reduction in hours began in August, 2002.

. The majority acknowledges that Holiday's new cost-reduction strategy was focused on decreasing labor costs and assumes this policy necessarily affected Baucom’s hours. This fact, while providing a possible explanation for Baucom’s reduction in hours, also helps establish that Baucom suffered a tangible change in duties and working conditions.

. We treat Baucom’s MHRA and ADEA age discrimination claims under the same mode of analysis. Chambers, 351 F.3d at 855.

. MHRA and ADA disability claims are generally afforded the same treatment. See Maziar-ka v. Mills Fleet Farm, Inc., 245 F.3d 675, 678 n. 3 (8th Cir.2001). The chief difference be*772tween the two statutes is that the MHRA defines a "disability” as one that materially limits one or more major life activities. Minn.Stat. § 363A.03, subd. 12. Conversely, the ADA defines a disability as one that substantially limits one or more major life activities. 42 U.S.C. § 12102(2)(A). The Eighth Circuit recognizes the definition of "materially” to be different from, and less stringent than, the more heightened federal standard of "substantially.” See Kammueller v. Loomis, *773Fargo & Co., 383 F.3d 779, 784 (8th Cir.2004).