Opinion
4:03CV3118
February 3, 2004
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
On April 7, 2003, the plaintiff, Carol Prentice, filed a two-count complaint alleging that Defendants Lancaster County, Nebraska, and Lancaster County Mental Health Center discriminated against her in violation of the Americans With Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq., and retaliated against her in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. (See Am. Compl., filing 4.) The plaintiff's Title VII retaliation claim has been dismissed pursuant to my order of November 25, 2003. (See Mem. and Order on Defs.' Mot. for Partial Summ. J., filing 26.) Now before me is the defendants' motion for summary judgment on the plaintiff's ADA claim. (See Defs.' Mot. for Summ. J., filing 37.) For the following reasons, I find that the defendants' motion will be granted.
I. BACKGROUND
The defendants have submitted a statement of uncontroverted facts pursuant to Local Rule 56.1(a). (See Defs.' Br. in Supp. of Mot. for Summ. J., filing 39 (Defs.' Br.), at 2-7.) In studying this statement of facts, I have discovered that the citations to evidence provided by the defendants often do not support the facts alleged. (See, e.g., Defs.' Br. at 2 ¶ 2 (citing Pl.'s Am. Compl., filing 4, ¶ 4, as evidence that the plaintiff was employed at the Center until mid-May of 2002); id. ¶ 3 (citing Settle Dep. at 5:20-23 as evidence that the "Program Coordinator is a human services position assigned to assist Mental Health Center clients in obtaining needed services, consultation and support."); id. (citing Settle Dep. at 24:9-13 as evidence concerning the plaintiff's job assignments "[t]hroughout her employment," despite the fact that the evidence concerns the plaintiff's job duties during a one-year period).) Statements of fact that are not supported by evidence do not satisfy the requirements of NELR 56.1, and ordinarily I would simply disregard them. In this case, however, the plaintiff has stated that the facts set forth in paragraphs 1-6, 8-11, and 14 of the defendants' statement of facts are uncontroverted. (See Pl.'s Br. in Opp'n to Defs.' Mot. for Summ. J., filing 41 (Pl.'s Br.) at 4. (Note that paragraph 11 is omitted from the plaintiff's summary list of undisputed facts, but was previously identified as undisputed by the plaintiff).) While I do not condone the imprecision of the defendants' statement of facts, I will accept the facts stated in the aforementioned paragraphs of the defendants' statement.
The paragraphs that are disputed by the plaintiff will be addressed explicitly in the "Background" section of this memorandum.
Defendant Lancaster County Mental Health Center (the Center) is an agency of Defendant Lancaster County, Nebraska. The plaintiff began her employment with the Center on or about December 1, 1986. In 1990, the plaintiff was promoted to a "Project Coordinator" position. In this position, the plaintiff coordinated services with "outside" agencies and provided outreach services to Center clients.
In June 1999, the plaintiff informed her new supervisor, Bill Bonacker, that she suffers from attention deficit disorder, and that as a result of this disorder, she needs assistance to perform certain job responsibilities. (See Defs.' Index of Evid. In Supp. of Mot. for Summ. J., filing 38 (Defs.' Index), Ex. 1, Prentice Dep., Dep. Ex. 1-2.) Specifically, the plaintiff requested that she be allowed to meet with her supervisor on a daily basis. In addition, the plaintiff's psychologist, Dr. Rizzo, made the following remarks in a letter addressed to Bonacker:
Carol realizes that she benefits greatly from feedback and ordinary and reasonable guidance and direction. To that end, she has found it very beneficial to have brief daily conversations with her supervisors over the years. She also knows that she needs to avail herself of supervisors when she has any substantial question.
As a sensitive individual, Carol seems to benefit most from a developmental and supportive approach rather than the analytical or critical, confrontational style.
(Defs.' Index, Ex. 1, Prentice Dep., Dep. Ex. 3.)
Soon after the plaintiff communicated these concerns to Bonacker, she took a leave of absence to care for her parents, who had been in a severe car accident. When the plaintiff returned to work, Dean Settle had become the new director of the Center. Settle assigned to the plaintiff the tasks of developing a cultural diversity program, providing outreach services to community cultural centers, and serving clients on a short-term basis. Within a few months of assigning these tasks, Settle assumed the role of the plaintiff's supervisor. Settle and Prentice then developed an "accommodation plan" that provided, among other things, that the plaintiff would have "[s]tructured activities whenever possible"; "[a]ccess to supervision on a daily basis"; "[v]ery limited and structured paperwork requirements"; a basement office to reduce distractions, flexible work hours, and a four-day work week. (Defs.' Index, Ex. 1, Prentice Dep., Dep. Ex. 23.) Settle did, in fact, meet with the plaintiff on a daily basis to help her focus on her daily tasks, and the plaintiff has indicated that Settle was both available and helpful.
In 2002, Denise Bulling assumed supervisory responsibility over the plaintiff. (See Defs.' Index, Ex. 3, Settle Dep. at 27:4-8.) At the same time, Settle determined that the plaintiff's duties ought to be redefined due to changing demands for services at the Center. (See id. at 60:4-61:23.) On February 5, 2002, the plaintiff, Bulling, and Settle met to discuss the plaintiff's job duties, and the plaintiff was presented with a written description of her new duties. The next day, the plaintiff called in sick and did not ever return to work at the Center. Initially during her absence, the plaintiff used her accrued sick leave. She then received unpaid leave pursuant to the Family and Medical Leave Act of 1993 (FMLA). The plaintiff was informed that she would be considered "on leave" through April 30, 2002, and that if she did not return to work by that date, she would be considered "resigned." On April 30, the plaintiff did not return to work, but instead requested additional leave without pay so that she might have an opportunity "to apply for long term disability." (Defs.' Index, Ex. 3, Settle Dep., Dep. Ex. 9.) A brief period of additional leave was granted, but the plaintiff's separation from her employment with the Center was deemed effective as of May 13, 2002. (See Defs.' Index, Ex. 3, Settle Dep., Dep. Ex. 6.)
The plaintiff contests this statement of fact, arguing that "no evidence has been provided on such matter other than the testimony of Dean Settles [sic]," and that "this statement serves only as a self serving statement but would not be considered as uncontested without verifying information." (Pl.'s Br. at 4.) The plaintiff's contention is without merit. Since the plaintiff has come forward with no evidence to raise a genuine issue for trial with respect to the factors that led to a change in the plaintiff's job duties, I have no basis for disregarding the defendants' evidence on this point. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986) (indicating that after the moving party presents evidence establishing the nonexistence of a genuine issue, the burden shifts to the nonmoving party to produce evidence of a genuine issue for trial); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986) (stating that the nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment").
In July or August 2002, the plaintiff was hired as a youth care worker at a girls' home. Shortly thereafter, she became an airport security screener for the Department of Homeland Security, where she continues to work between thirty-two and forty hours per week.
II. STANDARD OF REVIEW
As stated in Federal Rule of Civil Procedure 56(c), a motion for summary judgment shall be granted by the court when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." A "material" fact is one "that might affect the outcome of the suit under the governing law. . . ."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Id. In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S. H. Kress Co., 398 U.S. 144, 157 (1970). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the nonmoving party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment," Anderson, 477 U.S. at 257, and "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial," id. at 256 (citing Federal Rule of Civil Procedure 56(e)).
III. ANALYSIS
The ADA prohibits "covered entit[ies]" from discriminating "against a qualified individual with a disability because of the disability of such individual. . . ." 42 U.S.C. § 12112(a). A plaintiff may use the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), to prove a claim of disparate treatment based upon disability. See Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1318 (8th Cir. 1996). Under this framework, a plaintiff must first present a prima facie case by showing: (1) that she is disabled within the meaning of the ADA; (2) that she is qualified to perform the essential functions of her position; and (3) that she suffered an adverse employment action under circumstances giving rise to an inference of unlawful discrimination. See Longen v. Waterous Co., 347 F.3d 685, 688 (8th Cir. 2003);Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1134-35 (8th Cir. 1999) (en banc). "The employer must then rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for the adverse employment action." Kiel, 169 F.3d at 1135;see also Longen, 347 F.3d at 688. If the employer successfully rebuts the presumption of discrimination, "the burden of production shifts back to the plaintiff to demonstrate that the employer's non-discriminatory reason is pretextual." Kiel, 169 F.3d at 1135; see also Longen, 347 F.3d at 688.
A. Whether the Plaintiff is Disabled Within the Meaning of the ADA
The defendants argue that they are entitled to summary judgment because the plaintiff cannot establish the first element of her prima facie case of discrimination.
An individual is considered disabled within the meaning of the ADA if she has a "physical or mental impairment that substantially limits one or more of [her] major life activities"; if she has "a record of such an impairment"; or if she is "regarded as having such an impairment." 42 U.S.C. § 12102(2). I shall consider each of the three prongs of this definition in turn.
1. Whether the Plaintiff Suffers from an Impairment That Substantially Limits a Major Life Activity.
The plaintiff suffers from attention deficit disorder. It is undisputed that this disorder constitutes a "mental impairment" within the meaning of 42 U.S.C. § 12102(2). (See Defs.' Br. at 9.) However, the defendants argue that there is no evidence that this impairment substantially limits one or more of the plaintiff's major life activities. See 42 U.S.C. § 12102(2)(A). Although the ADA does not define the term "major life activities," the Eighth Circuit has indicated that the Equal Employment Opportunity Commission regulations issued to implement the ADA may be consulted for guidance. See Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir. 1996). "As defined in 29 C.F.R. § 1630.2(i), the phrase `major life activities' means `functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing learning, and working.'" Id. See also 29 C.F.R. § 1630.2(i). A person is "substantially limited" in a major life activity if she is "[u]nable to perform a major life activity that the average person in the general population can perform; or . . . [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). See also Moysis v. DTG Datanet, 278 F.3d 819, 825 (8th Cir. 2002).
In opposition to the defendants' motion, the plaintiff refers me to Dr. Rizzo's testimony regarding the effects of attention deficit disorder on the plaintiff's "major life functions," including "activities of daily living, taking care of herself, eating, sleeping, taking care of her house, [and] work." (See Defs.' Index, Ex. 2, Rizzo Dep. at 42:19-25.) Dr. Rizzo stated, "You know, up until the end, no, [her impairment] shouldn't affect any of those [major life functions]. But if she were doing some work that was stressful, then her anxiety level would go up, and it would interfere with those things." (Id. at 43:1-4.) Continuing, he indicated that when the plaintiff is placed in an unstructured situation or is "overwhelmed or not doing the job well or not being productive," she experiences "anxiety and depression" that "could likely affect" her "major life functions." (See id. at 43:5-19.) Dr. Rizzo also opined that it would be difficult and stressful for the plaintiff to jump into the middle of a "case," but that she has no problem taking a case from start to finish. (See id. at 45:7-19.)
The plaintiff also refers me to her own testimony, wherein she states that her sleep, ability to prepare meals, and manner of caring for her home and person are "affected" if she does not have a "planned, scheduled routine." (See Defs.' Index, Ex. 1, Prentice Dep. at 100:4-101:3.) Specifically, without her scheduled routine the plaintiff under-eats because she tries "to get caught up," and she does not "pay attention to how [she] dress[es]. . . because [she] is thinking about what [she has] to get done at work." (See id.) There is also evidence that if the plaintiff is given information "too rapidly," she sometimes needs to "back up" to "try to understand it better." (See id. at 17:5-7.) She also claims to be "not very good at multi-tasking," managing her finances, or handling math "and abstract kinds of thinking." (See id. at 17:8-13.)
In support of their motion, the defendants note that the plaintiff testified that her impairment does not affect her ability to work "in any way," and that she can deal with her condition by staying on schedule, keeping a consistent routine, doing things in sequential steps, simplifying things, and avoiding stress. (See Defs.' Index, Ex. 1, Prentice Dep. at 17:14-18:21.) In addition, notwithstanding the evidence discussed above, the defendants point out that Dr. Rizzo testified that he did not think that the plaintiff's condition limits her "in daily activities" in any way. (See id., Ex. 2, Rizzo Dep. at 41:16-18.)
It is clear that there is no evidence that the plaintiff is "[u]nable to perform a major life activity that the average person in the general population can perform." 29 C.F.R. § 1630.2(j)(1) (emphasis added). It is also clear that there is no evidence that raises a genuine issue as to whether the plaintiff is "[s]ignificantly restricted as to the condition, manner or duration under which [she] 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." Id. (emphasis added). The evidence, viewed in a light most favorable to the plaintiff, shows only that certain activities are "affected" when she deviates from her structured routine, and that she is "not very good at" certain tasks. There is no evidence that the effects of the plaintiff's condition are "substantially limiting," even when she is unable to adhere to her routine. See Cody v. CIGNA Health Care of St. Louis, Inc., 139 F.3d 595, 598 (8th Cir. 1998) (holding that, although impairment caused "difficulties" in plaintiff's life, impairment was not substantial so as to amount to a disability within the meaning of the ADA). Furthermore, the plaintiff's ability to avoid the effects of her impairment by taking mitigating measures such as following a routine, staying on schedule, and avoiding stress must be taken into account.Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999). As the Court stated,
A "disability" exists only where an impairment "substantially limits" a major life activity, not where it "might," "could," or "would" be substantially limiting if mitigating measures were not taken. A person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently "substantially limits" a major life activity.Id. at 482-83. There is no evidence that when mitigating measures are taken into account, the plaintiff's performance of any major life activity is "affected," much less "substantially limited."
The plaintiff argues that her ability to work is affected by her impairment, (see Pl.'s Br. at 6 ("Here Carol Prentice indicates what major life activities are affected . . . namely that her work is affected")), despite her own prior testimony to the contrary, (see Defs.' Index, Ex. 1, Prentice Dep. at 17:20-22). Although this argument is not particularly well-taken, it merits comment in view of the following testimony of Dr. Rizzo, which is quoted in the defendants' brief:
Q. Have you ever told her that there are any jobs that she is restricted from doing or recommended she not do any types of jobs based on her impairment?
A. I don't think so. I think in conversation with Carol, we had always talked — well, yes, we talked about trying to make things simple, repetitive, and with an understanding supervisor in giving her some leeway if time and control of the situation. So those were in general the criteria I presented to her.
In terms of telling her jobs that she shouldn't do, I think I have probably said things like stay away from high demand, very pressured jobs.
(Defs.' Index, Ex. 2, Rizzo Dep. at 4-15; see also Defs.' Br. at 16.)
In evaluating the plaintiff's claim that her impairment limits her ability to work, I have been mindful of the following principles:
A person is substantially limited in working if he or she is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i). Because disability is determined on a case-by-case basis, "[a] court must ask whether the particular impairment constitutes for the particular person a significant barrier to employment." Webb v. Garelick Mfg. Co., 94 F.3d 484, 488 (8th Cir. 1996) (internal quotation omitted).Moysis v. DTG Datanet, 278 F.3d 819, 825 (8th Cir. 2002). Here, Dr. Rizzo's statement that he "probably" told the plaintiff that she should "stay away from high demand, very pressured jobs" is the only evidence that the plaintiff's ability to work is limited by her impairment. I find that this statement is insufficient to raise a genuine issue for trial. There is no evidence that the plaintiff is significantly restricted in her ability to perform a class of jobs or broad range of jobs that otherwise might be available to someone with similar training, skill, or ability. Dr. Rizzo did not elaborate upon the characteristics of jobs that he considers to be "high demand" or "very pressured," nor did he identify any specific job or classes of jobs that meet these vague criteria. Cf. Colwell v. Suffolk County Police Dept., 158 F.3d 635, 645 (2nd Cir. 1998) (holding that evidence of general restrictions imposed by doctor, without specific evidence of the kinds of jobs that the plaintiff could not perform, was insufficient to support a jury verdict in plaintiff's favor). In short, there is no evidence that would support a finding that the plaintiff's impairment constitutes "a significant barrier to employment,"Moysis, 278 F.3d at 825, or has significantly reduced her meaningful employment opportunities, see Cooper v. Olin Corp., Winchester Division, 246 F.3d 1083, 1089 (8th Cir. 2001) (citing Webb v. Garelick Mfg. Co., 94 F.3d 484, 488 (8th Cir. 1996)).
The plaintiff argues that "the fact that the defendant[s] inquired about her disability and what accommodations would be helpful" supports her position that she was substantially limited in "life activities." (Pl.'s Br. at 5.) It seems to me, however, that the defendants' perceptions — whatever they may be — cannot establish that the plaintiff was actually substantially limited in a major life activity. Instead, the defendants' perceptions are relevant to the question of whether the plaintiff was "regarded as" having a substantially limiting impairment. 42 U.S.C. § 12102(2)(C). This issue will be addressed separately below.
For the foregoing reasons, I find that there is no evidence that the plaintiff suffered from a "physical or mental impairment that substantially limits one or more of [her] major life activities," 42 42 U.S.C. § 12102(2)(A), and that the defendants are entitled to summary judgment on this issue.
2. Whether the Plaintiff Has a Record of an Impairment That Substantially Limits a Major Life Activity.
The plaintiff has not alleged or argued that she is disabled within the meaning of the ADA by virtue of having a record of a substantially limiting impairment. See 42 U.S.C. § 12102(2)(B). As there is no evidence that the plaintiff has a history of a substantially limiting impairment, see, e.g., Gutridge v. Clure, 153 F.3d 898, 901 (8th Cir. 1998) (quoting 29 C.F.R. § 1630.2(k)), I find that the defendants are entitled to summary judgment on this issue.
3. Whether the Plaintiff Was Regarded as Having an Impairment That Substantially Limits a Major Life Activity.
As noted above, a person is disabled within the meaning of the ADA if she is regarded as having an impairment that substantially limits one or more of her major life activities. See 42 U.S.C. § 12102(2)(C).
There are two apparent ways in which individuals may fall within this statutory definition: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. In both cases, it is necessary that a covered entity entertain misperceptions about the individual — it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting. These misperceptions often "resul[t] from stereotypic assumptions not truly indicative of . . . individual ability."Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999) (quoting 42 U.S.C. § 12101(7)). Since it is undisputed that the defendants were aware that the plaintiff suffers from an impairment, this case concerns the second alternative cited above; that is, the plaintiff must show that the defendants mistakenly believed that her attention deficit disorder substantially limited a major life activity. "[B]eing regarded as having a limiting but not disabling restriction . . . cannot be a disability within the meaning of the ADA." Conant v. City of Hibbing, 271 F.3d 782, 785 (8th Cir. 2001).
The plaintiff offers three points in support of her argument that the defendants regarded her as disabled: 1) the defendants were informed of the plaintiff's impairment; 2) the defendants sought additional information from the plaintiff and her psychologist, (see Defs.' Index, Ex. 1, Prentice Dep., Dep. Ex. 2); and 3) after the defendants received information about the plaintiff's impairment, they decided to accommodate her, (see id. at Dep. Ex. 23). (See Pl.'s Br. at 7.)
In order for the plaintiff to establish that the defendant regarded her as disabled, a showing that the defendant was aware of the plaintiff's condition is necessary, but not sufficient. See Olson v. Dubuque Community School District, 137 F.3d 609, 612 (8th Cir. 1998). Also, the fact that the defendants sought additional information from the plaintiff concerning her impairment is not sufficient to defeat a motion for summary judgment. See Cody v. CIGNA Health Care of St. Louis, Inc., 139 F.3d 595, 599 (8th Cir. 1998).
As for the plaintiff's third point, I can find no support for the proposition that a plaintiff can establish that her employer regarded her as disabled merely by pointing out that the employer accommodated her impairment. On the contrary, the Eighth Circuit has hinted that such evidence, without more, is insufficient to survive summary judgment,see Anderson North Dakota State Hospital, 232 F.3d 634, 637 (8th Cir. 2000), and other courts have held expressly that "when an employer takes steps to accommodate an employee's restrictions, it is not thereby conceding that the employee is disabled under the ADA or that it regards the employee as disabled." Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789, 798 (9th Cir. 2001). See also Plant v. Morton International, Inc., 212 F.3d 929, 938 (6th Cir. 2000); Mahon v. Crowell, 295 F.3d 585, 592 (6th Cir. 2002); Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 190 (3d Cir. 1999) ("An employer may decide to accommodate people who are not `disabled' under the ADA."); Bertinetti v. Joy Mining Machinery, 231 F. Supp.2d 828, 833 (S.D. Ill. 2002); Kriscovic v. Wal-Mart Stores, Inc., 948 F. Supp. 1365-66 (E.D. Wis. 1996). "A contrary rule would discourage the amicable resolution of numerous employment disputes and needlessly force parties into expensive and time-consuming litigation." Thornton, 261 F.3d at 798.
I conclude that the plaintiff has failed to raise a genuine issue for trial with respect to whether the defendants regarded her as disabled. Indeed, there can be no other conclusion in light of the fact that the plaintiff has failed to identify any major life activity that the defendants allegedly believed she could perform only with substantial difficulty. The Eighth Circuit and the Supreme Court have emphasized that in order to demonstrate that she was regarded as having a disability, a plaintiff must show that her employer believed that she suffered from an impairment that substantially limits one or more major life activities. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999); Cooper v. Olin Corp., Winchester Division, 246 F.3d 1083, 1089 (8th Cir. 2001); see also Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir. 1995) (holding that even if employer believed that certain work restrictions set forth by plaintiff's physician were permanent, evidence is insufficient to raise a genuine issue of fact because the identified restrictions would not substantially limit any major life activities). The plaintiff has neglected this requirement. Taken in a light most favorable to the plaintiff, the evidence shows only that the defendants regarded the plaintiff as suffering from a limiting condition, and that they chose to accommodate it. There is no evidence that the defendants erroneously perceived the plaintiff's condition to be one that was substantially limiting in any major life activity. There is no evidence that the defendants believed that the plaintiff was significantly restricted in her ability to perform a class of jobs or broad range of jobs as a result of her impairment. See Cooper v. Olin Corp., Winchester Division, 246 F.3d 1083, 1089 (8th Cir. 2001). There is no evidence that the defendants, upon receiving information from the plaintiff and her psychologist, developed their own exaggerated conclusions and interpretations of the plaintiff's limitations and treated her accordingly. See, e.g., Ollie v. Titan Tire Corp., 336 F.3d 680, 686-87 (8th Cir. 2003). There is no evidence that the defendants' perception of the plaintiff's impairment was based upon myth, stereotype, or speculation, as opposed to the information provided by the plaintiff or her psychologist. See, e.g., Wooten, 58 F.3d at 385-86 (8th Cir. 1995). Finally, the plaintiff has not argued that the specific provisions of the accommodation plan inherently reflect misperceptions that one or more of the plaintiff's major life activities were substantially limited. Cf. id. at 386 (holding that work restrictions did not reflect substantial limitations to any major life activity). In view of the plaintiff's failure to present any evidence that would support a finding that the defendants considered her to be substantially limited in a major life activity, I find that the defendants are entitled to summary judgment on this issue.
The plaintiff has failed to present evidence to support a finding that she is disabled within the meaning of the ADA. See 42 U.S.C. § 12102(2). Since the plaintiff cannot establish the first element of her prima facie case of discrimination, see Longen v. Waterous Co., 347 F.3d 685, 688 (8th Cir. 2003); Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1134-35 (8th Cir. 1999) (en banc), there remains no genuine issue for trial, and summary judgment must be ordered in the defendants' favor, see Kellogg v. Union Pacific Railroad Co., 233 F.3d 1083, 1086 (8th Cir. 2000).
Parenthetically, I note that even if the plaintiff had successfully set forth a prima facie case of discrimination, the defendants would still be entitled to summary judgment. As I noted above, if the plaintiff establishes a prima facie case of discrimination, the employer may then rebut the presumption of discrimination established by the prima facie case by articulating a legitimate, non-discriminatory reason for the adverse employment action. See Longen v. Waterous Co., 347 F.3d 685, 688 (8th Cir. 2003); Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999) (en banc). The defendants' burden under this framework is one of "production[,] not proof"; that is, the defendants "need not persuade the court, [they] must simply provide evidence sufficient to sustain a judgment in their favor."Krenik v. County of LeSueur, 47 F.3d 953, 958 (8th Cir. 1995). Here, the defendants have articulated legitimate, nondiscriminatory reasons for changing the plaintiff's job duties, (see Defs.' Br. at 23), and for terminating the plaintiff, (see id. at 31). With respect to the plaintiff's termination, evidence shows that the plaintiff was informed that upon the expiration of her approved "family and medical leave," failure to return to her position would be considered as a resignation. (See Defs.' Index, Ex. 1, Prentice Dep., Dep. Ex. 10, ¶ 10.) When the plaintiff's leave expired, she indicated that she was still unable to return to work. (See, e.g., id., Ex. 3, Settle Dep., Dep. Exs. 8, 9.) The plaintiff asked for and received an additional period of unpaid leave, (see id., Ex. 3, Settle Dep., Dep. Ex. 6, 9), but she was deemed separated from employment as of May 13, 2002, because she had not been released to return to work, (see id., Ex. 3, Settle Dep., Dep. Ex. 6.) I find that the defendants' evidence is sufficient to satisfy their burden of production. Once the employer rebuts the presumption of discrimination established by the prima facie case by articulating a legitimate, non-discriminatory reason for the adverse employment action, the burden of production shifts back to the plaintiff to demonstrate that this non-discriminatory reason is pretextual.See Longen v. Waterous Co., 347 F.3d 685, 688 (8th Cir. 2003); Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999) (en banc). Here the plaintiff has come forward with no evidence or argument that the defendants' reasons for terminating her were pretexual. (See generally Pl.'s Br.) The plaintiff's failure to discharge her burden provides an alternate basis for granting the defendants' motion.
In view of the foregoing, I find that I need not consider the remaining arguments raised by the defendants in support of their motion.
IT IS ORDERED that the defendants' motion for summary judgment, filing 37, is granted.