Stewart v. City of Osage Beach, Missouri

Filing 29

ORDER entered by Judge Nanette Laughrey. Defendant City of Osage Beach's Motion for Summary Judgment [Doc. # 18] is GRANTED. (Kanies, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

DARLA STEWART,
Plaintiff,
v.
CITY OF OSAGE BEACH,
Defendant.

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Case No. 2:10-CV-04126 NKL

ORDER
Plaintiff Darla Stewart is a former employee of the City of Osage Beach, having
spent nearly 20 years with the Osage Beach Police Department. She was terminated in
August 2008 because her doctor did not clear her to work nights. She contends that
emotional problems prevented night work and that the Americans with Disability Act
(“ADA”) and the Missouri Human Rights Act (“MHRA”) required Osage Beach to give
her the accommodation of working the day shift. Osage Beach has moved for summary
judgment (Doc. # 18) which the Court now grants.
I.

Background
A.

Uncontroverted Facts1

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The Court has considered the parties’ statements of fact which are supported by admissible
evidence. In considering this motion, the Court has drawn all inferences in favor of the nonmovant.
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From 1984 to approximately 1987, Stewart worked as a dispatcher for the Lake
Ozark Police Department. In that position, Stewart worked a shift beginning at 7:00 p.m.
and ending at 7:00 a.m. She asked to be moved to the day shift because she was bothered
by anxiety and depression stemming from childhood abuse. She was told there was not a
day shift position open and she continued thereafter to work the night shift. After her
employment at the Lake Ozark Police Department, Stewart worked at a factory on a shift
beginning at 3:15 p.m. and ending at 12:00 a.m. for approximately three months. Then,
from December 1988 to August 2008, Stewart was employed as a Communications
Officer at the Osage Beach Police Department’s 911 Center. After working some nights
during her first two weeks of employment with Osage Beach, Stewart requested a switch
to day shifts. That request was granted, and she worked exclusively day shifts for almost
twenty years.
Osage Beach’s 911 Center must be staffed 24 hours per day and 7 days per week.
The job description prepared by Osage Beach for both the positions of Lead
Communications Officer and Communications Officer lists among the “Essential
Functions”: “May work a varied schedule including evenings, weekends, and holidays . . .
.” [Doc. # 27-1 at 4.] It is undisputed that Osage Beach’s employee training and other
scheduling needs occasionally make it necessary for communications officers to change
shifts.

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On January 1, 2008, Stewart became the Lead Communications Officer at the
Osage Beach Police Department. This was a promotion. As a Lead Communications
Officer, Stewart worked until 11:00 p.m. once, 1:00 a.m. once, and 3:00 a.m. once. The
one time Stewart worked until 3:00 a.m., she experienced anxiety. Stewart requested that
she be demoted from Lead Communications Officer to Communications Officer shortly
thereafter. Stewart cited the duties and job description of the Lead Communications
Officer as some of the reasons for her request. Effective January 12, 2008, Stewart was
returned to Communications Officer status.
After her voluntary demotion, Stewart was scheduled to move to the night shift
so that new employees could be trained, but she arranged to have one of her co-workers
cover that month for her. On May 7, 2008, the Communications Supervisor, Sherie
Smith, sent a memorandum by email to the 911 Center staff, informing them of a
temporary schedule change in order to train new employees. The memo stated that
effective May 16, 2008, Stewart would move to the night shift with one of the new
employees, and would move back to the day shift on June 9, 2008.
Stewart responded to Smith via email: “I cannot work night shift due to health
reasons. Thanks; ‘D’,”. Smith forwarded a copy of Stewart’s response to Cindy Leigh,
the Human Resources Generalist for Osage Beach [Doc. # 27-1 at 9]. Leigh responded to
Stewart, stating that“the 911 Center is a 24 hour / 7 day operation and all employees of
the 911 Center must be prepared to work all shifts: days, evenings, weekends, and

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holidays. This is included in the essential functions of the Communications Officer’s job
description.” [Doc. # 27-1 at 8.] Leigh invited Stewart to complete a short term
disability claim form if she had a temporary health problem, but stated that Stewart would
be required to provide a physician’s release to work all shifts before she would be
permitted to return to work. In a reply email, Stewart responded to Leigh that she had
been diagnosed with Post Traumatic Stress Disorder (“PTSD”), which affected her at
night, and that working nights would both disrupt her medication schedule and possibly
put Osage Beach at risk. She further stated that because she needed her job, she would
cover the upcoming night shifts if she was given written instructions that working the
night shifts was “mandated.” [Doc. # 27-1 at 8.] That afternoon, Stewart met with Leigh
and stated that she could not work the hours of 3:00 a.m. to 7:00 a.m. because the PTSD
affected her at nighttime and because of the medicine she was taking.
On May 13, 2008, Stewart met with Osage Beach’s occupational physician, Dr.
Abbott, to determine whether Stewart’s concerns about her medical conditions would
affect her ability to work the night shift. Dr. Abbott consulted with Stewart’s dentist,
family doctor, and counselor, and concluded that Stewart was able to safely work the
night shift for a short period of time without placing herself or anyone else at long-term
risk. The doctor did not mention possible short term negative effects that Stewart might
suffer.

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On May 19, 2008, Stewart submitted her request for family medical leave. The
stated purpose of the requested leave was: “Treatment for serious chronic health condition
which if left untreated will result in absence.” [Doc. # 19 at 10.] On May 21, 2008,
Stewart’s physician, Dr. Neis, completed a Certification of Health Care Provider in
support of Stewart’s request for leave. Dr. Neis’s certification references Stewart’s
condition of PTSD and states, “Because of Darla’s present mental state she is unable to
report to work at this time.” [Doc. # 19-4 at 7.] Also on May 21, 2008, Osage Beach
notified Stewart that her request for family leave was approved, with an expiration date of
August 12, 2008.
Dr. Neis completed an Attending Physician’s Statement in support of Stewart’s
short term disability claim dated May 22, 2008. This statement confirmed that Stewart
ceased work on May 21, 2008, because her condition affected her at night, and that Dr.
Neis advised Stewart to cease work. Under the “Return to Work” section of Dr. Neis’s
statement, question (a) asked “When do you expect improvement in the patient’s
capabilities?” to which Dr. Neis answered: “No.” [Doc. # 19-3 at 14.] Under the heading
“Restrictions (activities patient should not do),” Dr. Neis answered “limited stress
situations.” [Doc. # 19-3 at 14.] On June 9, 2008, Stewart was approved for short term
disability by Osage Beach’s insurance carrier, with benefits approved through July 6,
2008.

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By a letter to Osage Beach dated August 5, 2008, Stewart’s Legal Professional
Counselor, Nancy Pope, stated that Stewart “has diagnoses of Post Traumatic Stress
Disorder; Major Depressive Disorder Recurrent and Unspecified; and Generalized
Anxiety Disorder.” [Doc. # 19-3 at 5.] Pope stated that Stewart “knows that working
nights re-triggers fears of rape and assault, like what she experienced as a child,” and that
“it would be reasonable for the Osage Beach Police Department to accommodate
[Stewart’s] mental health disabilities by excluding her from working nights.” [Doc. # 193 at 5.] Osage Beach asked Pope for copies of her credentials and licensures in reference
to Stewart’s diagnoses, and Pope provided them on August 11, 2008.
By letter dated August 18, 2008, Osage Beach asked Stewart’s physician, Dr. Neis,
to elaborate on Pope’s representations regarding Stewart’s diagnoses, her current
limitations, and whether Dr. Neis’s diagnosis of Stewart had changed since his attending
physician statement submitted in connection with Stewart’s short term disability claim.
Three days later, Osage Beach received from Dr. Neis a copy of Osage Beach’s letter of
August 18, 2008, with the handwritten notations: “Unchanged from past
correspondence.” [Doc. # 19-4 at 19.] Osage Beach wrote to Dr. Neis asking to what
correspondence the handwritten notation referred. Dr. Neis’s office responded to Osage
Beach’s inquiry by faxing back a copy of Osage Beach’s August 21, 2008 letter with the
handwritten notation “Attending Physician Statement Dated 5-22-08.” [Doc. # 19-3 at 3.]
Osage Beach then confirmed over the telephone with Dr. Neis’s office that Stewart was

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last seen by Dr. Neis on July 10, 2008, for a checkup and a refill of medications, and that
nothing had changed since May 22, 2008.
By letter dated August 21, 2008, Osage Beach informed Stewart that the
documentation it had received did not constitute a disability as defined by the ADA, and
informed Stewart that she would need to return to work on Wednesday, August 27, 2008,
after providing a return to duty certificate from her doctor releasing her to work days,
nights, holidays, and weekends, or her employment with Osage Beach would be
terminated. Osage Beach’s FMLA policy states: “If an employee has taken leave because
of his/her serious medical condition, the employee will be required to submit medical
certification as to the ability to return to work. The certification should be submitted to
the Human Resources Specialist prior to the return-to-work date.” [Doc. # 19-4 at 6.]
Stewart was not cleared by her doctor to work nights, and was terminated for not
reporting to her August 27, 2008 shift.
B.

Procedural History

When Stewart was terminated from employment on August 27, 2008, she filed a
formal grievance. She also timely filed charges of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging a violation of the ADA, and
charges with the Missouri Commission on Human Rights (“MCHR”) alleging a violation
of the MHRA. After she received right-to-sue letters from both the MCHR and EEOC,
Stewart filed this employment action against Osage Beach alleging two counts. Count I

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asserts a claim for Unlawful Termination in Violation of the ADA, and Count II asserts a
claim for Discrimination under the MHRA.
II.

Discussion
A.

Whether Stewart Has Established a Prima Facie Case under the ADA

In its Motion for Summary Judgment, Osage Beach argues that Stewart has failed
to establish a prima facie case of discrimination under the ADA. In order to establish a
prima facie disability discrimination claim, Stewart must prove that she:
(1) had a disability within the meaning of the ADA; (2) was qualified, with
or without a reasonable accommodation, to perform the essential job
functions of the position in question; and (3) suffered an adverse
employment action because of [her] disability.
Lors v. Dean, 595 F.3d 831, 834 (8th Cir. 2010) (quoting McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 804 (1973)). After a prima facie case of disability discrimination is
established, the burden shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the employer’s actions. Id. If the employer articulates such
a reason, the burden returns to the employee to show the employer’s justification is a
pretext. Id.
1.

Whether Stewart had an ADA Disability

The ADA defines the term “disability” as:
(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

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(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2).
a.

Whether Stewart was Substantially Limited in a Major
Life Activity

Stewart pled in her Complaint that the “severe aggravation of her PTSD at
nighttime” is a “mental and physical impairment that substantially limits her in
performing the major life activity of working.” [Doc. # 1 at 5-6.] Stewart states in her
Suggestions in Opposition to Summary Judgment that her anxiety, depression, and PTSD,
which have been worsening over the years, are impairments under the ADA because they
substantially limit her ability to concentrate and think at night, particularly during the
hours of 3:00 a.m. to 7:00 a.m. Osage Beach objects to Stewart expanding her
impairments to include thinking and concentrating because she did not make those
allegations in her Complaint. But for purposes of summary judgment only, the Court will
consider whether Stewart has shown that her depression, anxiety and PTSD substantially
limit her in the major life activities of thinking, concentrating and working.
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 a particular major life activity as compared to an average person
in the general population. 29 C.F.R. § 1630.2(j)(1)(i)-(ii). The following factors are
considered in determining whether a person is substantially limited in a major life

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activity: (1) the nature and severity of the impairment; (2) its duration or anticipated
duration; and (3) its long-term impact. 29 C.F.R. § 1630.2(j)(2)(i)-(iii). Individuals with
medical conditions are not per se disabled, so the evidence in support of an individual’s
contention must be more than generic “evidence of a medical diagnosis of an
impairment.” Kirkeberg v. Can. Pac. Ry., 619 F.3d 898, 903 (8th Cir. 2010) (citing
Ristrom v. Asbestos Workers Local 34 Joint Apprentice Comm., 370 F.3d 763, 769 (8th
Cir. 2004)). Therefore, Stewart must present evidence showing the degree to which she
personally is affected and limited by her conditions. Conclusory statements do not
suffice. Id. at 903, 906.
To show that she is substantially limited in the major life activity of working,
Stewart must present evidence that her overall employment opportunities are limited.
Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 949 (8th Cir. 1999). Specifically, she
must show that her condition restricts her ability to perform “a class of jobs or a broad
range of jobs in various classes as compared to the average person having comparable
skills and training.” Perkins v. St. Louis County Water Co., 160 F.3d 446, 448 (8th Cir.
1998).
Stewart has failed to show that her PTSD, depression and anxiety substantially
limit her major life activity of working. Stewart has not shown that her disability
prevents her from overall employment opportunities, nor that she is precluded from either
a class of jobs or a broad range of jobs in various classes as compared to the average

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person having comparable skills and training. Rather, Stewart states she is only affected
by her impairments between the hours of 3:00 a.m. and 7:00 a.m., remaining unaffected
during the other twenty hours of the day. Being limited to a forty hour work schedule
does not demonstrate that the major life activity of working has been substantially
limited. Taylor v. Nimock’s Oil Co. 214 F.3d 957 (8th Cir. 2000). Similarly, being
limited to day time work does not satisfy this threshold requirement. In Heisler v. Metro.
Council, 339 F.3d 622 (8th Cir. 2003) the Eighth Circuit said: “Heisler has repeatedly
denied that her depression substantially limits her ability to work, where her psychologist
has released her to work 40-hour weeks but limited her to the hours between 6 AM and 5
PM. And rightly so, as we have repeatedly held that ‘[a]n employee is not substantially
limited in the major life activity of working by virtue of being limited to a forty-hour
work week.’” Id. at 627 n.4 (quoting Kellogg v. Union Pac. R.R. Co., 233 F.3d 1083,
1087 (8th Cir. 2000), and citing Taylor v. Nimock’s Oil Co., 214 F.3d 957, 960-61 (8th
Cir. 2000); Berg v. Norand Corp., 169 F.3d 1140, 1145 (8th Cir. 1999)).
Likewise, Stewart has failed to show that her depression, anxiety, and PTSD
substantially limit her major life activities of thinking and concentrating. Her counselor’s
diagnosis that “night work is out of the question,” [Doc. # 27 at 15-16] does not establish
a genuine issue of material fact because a diagnosis alone does prove a disability.
Beyond these medical diagnoses and work restrictions, Stewart does not describe how her
impairments affect the condition, manner, or duration of her thinking or concentration,

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nor how her performance of those activities compares to the general population. In fact,
Stewart admits she worked night shifts on more than one occasion for Osage Beach and
Stewart also states “at all times during her employment by Defendant, Plaintiff performed
the duties of her job in a satisfactory manner. Plaintiff performed well in her position and
received recognition for her performance.” [Doc. # 1 at 3].
Further, Stewart admits that her mental impairments don’t limit her concentration
and thinking during times other than 3AM to 7AM. The Court sees no reason not to
apply the same rule to thinking and concentration as the Eighth Circuit has applied to
working. If an inability to work at night does not substantially limit the major life activity
of work, why should an inability to concentrate or think between 3 AM and 7AM be a
substantial limitation as to those major life activities?
An analogous case is Heisler v. Metro. Council, 339 F.3d 622 (8th Cir. 2003).
There, Kathy Heisler filed an employment discrimination claim under the ADA alleging
that her employer failed to accommodate her disability. Heisler had been diagnosed with
depression, which she claimed substantially limited her ability to concentrate. Her doctor
restricted her to working only daytime hours because working at night exacerbated her
condition. After her employer granted her FMLA leave and accommodated her for a
period of time, she was then terminated because she was disqualified from performing an
essential function of her job, working at night.
Heisler testified at her deposition that her lack of ability to concentrate caused her

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to take twice as much time to perform a task and made it difficult to make a decision, but
she also testified that she could perform her job during the day time and she received
only favorable performance reviews. The Eighth Circuit found that Heisler did not
sufficiently elaborate on how her depression affected the “condition, manner, or duration”
of her ability to concentrate, and that she failed to produce evidence that her depression
significantly restricted her ability to concentrate or work as compared to the general
population. Therefore, the court held she was not disabled under the ADA.
Considering the relevant factors in 29 C.F.R. § 1630.2(j)(2)(i)-(iii), the Court
finds as a matter of law that Stewart has failed to show that her impairments limited her
major life activities of thinking, concentration and work.
b.

Whether Stewart was Regarded as Disabled or had a
record of disability

Stewart’s response to Defendant’s Motion for Summary Judgment presents neither
argument or evidence to show that she had a record of disability or that she was regarded
as disabled by the City of Osage Beach. A party opposing summary judgment “may not
rest upon mere allegations or denials . . . but must set forth specific facts showing there is
a genuine issue for trial.” Satcher v. Univ. of Ark. at Pine Bluff Bd. of Tr., 558 F.3d 731,
734-35 (8th Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986)). Without some guidance, this Court will not “mine a summary judgment record
searching for nuggets of factual disputes to gild a party’s arguments.” See Rodgers v.
City of Des Moines, 435 F.3d 904, 908 (8th Cir. 2006). Failure to oppose a basis for

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summary judgment constitutes waiver of that argument.
In summary, because Stewart has not shown an ADA disability as defined in 42
U.S.C § 12102(2), she has failed to make a prima facie case of ADA discrimination and
the City of Osage Beach’s Motion for Summary Judgment is granted as to that claim.
B.

Stewart’s Claim under the MHRA

The MHRA defines “disability” as:
A physical or mental impairment which substantially limits one or more of a
person’s major life activities, being regarded as having such an impairment, or a
record of having such an impairment, which with or without reasonable
accommodation does not interfere with performing the job, utilizing the place of
public accommodation, or occupying the dwelling in question.
Mo. Rev. Stat. § 213.010(4). The ADA and the MHRA define “disability” nearly
identically. Additionally, in the absence of countervailing case law, Missouri courts have
found that “in deciding cases brought under the MHRA, we are guided not only by
Missouri law, but also by applicable federal employment discrimination decisions.”
Thompson v. W.-S. Life Assurance Co., 82 S.W.3d 203, 206 (Mo. Ct. App. 2002) (citing
Pollock v. Wetterau Food Distrib. Group, 11 S.W.3d 754, 762 (Mo. Ct. App. 1999)).
Stewart has not made any arguments specific to the MHRA, and instead
incorporates her arguments under the ADA with regard to the MHRA. For the same
reasons that Stewart has not established she is disabled under the ADA, she is also not
disabled under the MHRA. Any differences between these two statutory provisions are
immaterial to the analysis in this case.

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III.

Conclusion
Accordingly, it is hereby ORDERED that Defendant City of Osage Beach’s Motion

for Summary Judgment [Doc. # 18] is GRANTED.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: July 11, 2011
Jefferson City, Missouri

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