Michael Aucutt v. Six Flags, etc. ( 1996 )


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  •                                      ____________
    No. 95-1255
    ____________
    Michael Aucutt,                           *
    *
    Appellant,            *
    *
    v.                               *
    *
    Six Flags Over Mid-America,               *
    Inc., a Missouri corporation              *
    in good standing,                         * Appeal from the United States
    * District Court for the
    Appellee.             * Eastern District of Missouri
    *
    ----------------    *
    *
    Equal Employment Advisory                 *
    Council,                                  *
    *
    Amicus Curiae.        *
    ____________
    Submitted:    November 16, 1995
    Filed:      June 5, 1996
    ____________
    Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
    ____________
    McMILLIAN, Circuit Judge.
    Michael Aucutt appeals from a final judgment entered in the United
    States District Court1 for the Eastern District of Missouri           granting
    summary judgment in favor of Six Flags over Mid-America, Inc. (Six Flags).
    Aucutt v. Six Flags Over Mid-America, Inc., 
    869 F. Supp. 736
    , 744 (E.D. Mo.
    1994).    For reversal, plaintiff argues the district court erred in holding
    that (1) plaintiff had failed
    1
    The Honorable Steven N. Limbaugh, United States District
    Judge for the Eastern District of Missouri.
    to establish a prima facie case on his Age Discrimination in Employment Act
    (ADEA) claim or, in the alternative, had failed to rebut the legitimate,
    nondiscriminatory reason for his termination proffered by defendant and (2)
    plaintiff had failed to establish a prima facie case of disability
    discrimination in violation of the Americans with Disabilities Act (ADA).
    For the reasons discussed below, we affirm the judgment of the district
    court.
    I.   Background
    After a career in the United States Army, Aucutt was hired by Six
    Flags in April 1990 as a seasonal security guard at its amusement park in
    Eureka, Missouri.   At the time he was hired, Aucutt was 41 years old.     In
    May 1990, Six Flags made Aucutt a full-time security guard.     His duties in
    this position included patrolling the amusement park and its parking lot.
    Aucutt held this position until October 1992, when he was discharged, at
    the age of 44.
    During his employment at Six Flags, Aucutt was diagnosed with high
    blood pressure, angina, and coronary artery disease.       He informed his
    supervisors at Six Flags of these medical conditions.   In July 1991, Aucutt
    became ill while at work.   He was transported to a hospital, treated for
    high blood pressure and released after several days.    He returned to work
    approximately three weeks later with a doctor’s statement releasing him for
    work and stating that he should not lift more than twenty-five pounds.
    Aucutt alleges that when he returned to work, Tom Robertson, the vice-
    president of Six Flags, initially told him that he would be discharged but
    later informed him that he would not be discharged after all.    Aucutt also
    alleges that on the same day, Keith Hendricks, the Admissions Supervisor,
    told him that the “insurance people did not want him back [at]. . . work.”
    Joint App. 45-46.   Six Flags denies these allegations.   It is undisputed,
    however, that Six Flags refused Aucutt’s repeated requests to be allowed
    to drive air-conditioned
    -2-
    vehicles on warm days.      Six Flags was also aware that Aucutt could not
    perform a “streams course,” a mandatory employee obstacle course, without
    experiencing severe pain.
    At the end of the 1992 season, William Haviluk, the General Manager
    of the Six Flags in Eureka reviewed the park’s operating results and
    decided to engage in a reduction-in-force (RIF) at the park.              Haviluk
    implemented layoffs which affected several of the park’s departments.          He
    directed Mike Chilovich, the Manager of Security, to reorganize the
    Security Department.    It was decided that three security positions (two
    sergeants and one officer) would be eliminated as part of the RIF.             In
    October 1992, after evaluating the officers and sergeants under his
    supervision,    Chilovich   concluded    that   Aucutt   would   be   terminated.
    Chilovich Aff. ¶ 12.   According to Chilovich, Aucutt was selected because
    of his low productivity and abrasive, “militaristic” attitude towards park
    patrons.    For example, on one occasion Aucutt had made patrons perform
    push-ups in the parking lot; he had also conducted several unauthorized
    searches of patrons’ vehicles for liquor.       Chilovich Aff. ¶ 7-8.    Although
    Chilovich had not personally observed these incidents, he did counsel
    Aucutt about his negative attitude at work.        In February 1992, Chilovich
    specifically informed Aucutt that a failure to improve his work attitude
    would result in termination.    Chilovich Aff. ¶ 11.      However, according to
    Six Flags, Aucutt continued to demonstrate an abrasive demeanor while on
    duty.
    When Chilovich recommended Aucutt for layoff in October 1992 as part
    of the RIF, Haviluk concurred.     At the time of his layoff, Aucutt was 44
    years old and the oldest uniformed security officer at the park.            Eight
    months later, following the termination of another uniformed security
    officer, a long-term Six Flags employee below the age of 40 was transferred
    into the Security Department as a uniformed security officer.
    -3-
    After exhausting his administrative remedies, Aucutt instituted the
    present action on September 24, 1993, in the United States District Court
    for    the    Eastern    District       of     Missouri,    alleging     his     layoff    was
    discriminatorily        based   upon    his    age   and   his   medical    conditions,     in
    violation of the ADEA and ADA, respectively.                    On December 6, 1994, upon
    motion by Six Flags, the district court entered summary judgment in favor
    of Six Flags, holding that Aucutt had failed to establish a prima facie
    case of discrimination under either the ADEA or the ADA.                         Further, the
    district court found that even if Aucutt had established a prima facie case
    of    age    discrimination,      he     had    failed     to    rebut     the    legitimate,
    nondiscriminatory reasons for his layoff articulated by Six Flags.                        Slip
    op. at 12-13, 19.        This timely appeal followed.
    II.    Discussion
    A.      Standard of Review
    We review a grant of summary judgment de novo. The question before
    the district court, and this court on appeal, is whether the record, when
    viewed in the light most favorable to the non-moving party, shows that
    there is no genuine issue as to any material fact and that the moving party
    is entitled to summary judgment as a matter of law.                 Fed. R. Civ. P. 56(c);
    see, e.g., Celotex Corp. V. Catrett, 
    477 U.S. 317
    , 322-23 (1986); Anderson
    v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 249-50 (1986); Get Away Club, Inc.
    v. Coleman, 
    969 F.2d 664
    , 666 (8th Cir. 1992); St. Paul Fire & Marine
    Insurance Co. v. FDIC, 
    968 F.2d 695
    , 699 (8th Cir. 1992).                          Where the
    unresolved issues are primarily legal rather than factual, summary judgment
    is particularly appropriate.            Crain v. Board of Police Comm’rs, 
    920 F.2d 1402
    , 1405-06 (8th Cir. 1990).
    -4-
    B.      ADEA Claim
    On appeal, Aucutt contends that the district court erred in granting
    summary judgment in favor of Six Flags on his ADEA claim            for three
    reasons.      First, he argues the district court failed to apply the proper
    standard for determining whether a motion for summary judgment should be
    granted.      According to Aucutt, the district court neither viewed the facts
    in the light most favorable to him as the non-movant, nor resolved
    evidentiary conflicts in his favor.       Second, Aucutt argues the district
    court erroneously concluded that he had failed to establish a prima facie
    case of age discrimination in violation of the ADEA or, alternatively, that
    he had failed to rebut the legitimate, nondiscriminatory reason for his
    layoff articulated by Six Flags.          Finally, Aucutt maintains that
    statements       in   Chilovich’s      affidavit   describing     Six   Flags’
    nondiscriminatory reason for its selection of Aucutt for discharge
    were improperly credited by the district court, because these
    statements were not based on Chilovich’s personal knowledge, as
    required by Fed. R. Civ. P. 56(e).            We consider each argument in
    turn.
    1.      Standard of Review Employed by District Court
    Aucutt first argues that the district court, in considering
    Six Flags’ motion for summary judgment, failed to review the facts
    in a light most favorable to him, the party opposing the motion,
    and give him the benefit of all reasonable inferences supported by
    the facts.        See Didier v. J.C. Penney Co., 
    868 F.2d 276
    , 279-80
    (8th Cir. 1989).             More particularly, Aucutt contends that the
    district court, in considering his performance evaluations, gave
    undue        weight   to     the   portions   describing    his    “negative,
    militaristic” attitude but failed to give sufficient weight to the
    portions stating that he had “made progress as a security officer.”
    Appellant’s Add. 11; Joint App. 65.            He also maintains that the
    district court improperly disregarded the statements allegedly made
    -5-
    by Robertson and Hendricks in July 1991 as evidence of age-based
    discriminatory animus.
    Plaintiff’s       arguments   are    without     merit.        Although    the
    district court was required to consider all facts in the light most
    favorable to Aucutt, it was not required to ignore undisputed
    evidence in the record indicating that Aucutt had repeatedly
    demonstrated a hostile attitude towards park patrons.
    Similarly,      the   district      court     properly      disregarded    the
    statements allegedly made by Robertson and Hendricks, in light of
    the principles set forth in Beshears v. Asbill, 
    930 F.2d 1348
    , 1354
    (8th Cir. 1991) (Beshears).          In Beshears, we distinguished between
    “[c]omments which demonstrate a ‘discriminatory animus in the
    decisional    process’”      from    “‘stray    remarks      in    the   workplace,’
    ‘statements by nondecisionmakers,’ or ‘statements by decisionmakers
    unrelated     to   the    decisional    process.’”           
    Id. (quoting Price
    Waterhouse v. Hopkins, 
    490 U.S. 228
    , 277 (1989) (O’Connor, J.,
    concurring)); Radabaugh v. Zip Feed Mills, Inc., 
    997 F.2d 444
    , 449
    (8th   Cir.    1993)     (Radabaugh)       (documents     authored       by    company
    president emphasizing young age of managers as one of company’s
    strengths constituted evidence of age-based discriminatory animus).
    In the present case, the alleged remarks of Robertson and Hendricks
    were made fourteen months before Aucutt’s termination, and neither
    Robertson nor Hendricks was involved in the decision to terminate
    Aucutt in October 1992.        Moreover, these statements do not evince
    any discriminatory animus with respect to age.                Thus, even if made,
    these statements constitute “stray remarks in the workplace [or]
    statements    by    nondecisionmakers”         and    were   therefore        properly
    disregarded by the district court.            
    Beshears, 930 F.2d at 1354
    .           We
    therefore hold that the district court properly applied the summary
    judgment standard in the present case.
    -6-
    2.       Merits of ADEA Claim
    Aucutt      next      contends      that        the   district     court   erred   in
    determining that he had failed to present a prima facie case of age
    discrimination in violation of the ADEA2 or, alternatively, that he
    had failed to show that the legitimate reason for his discharge
    articulated by Six Flags was a pretext for age discrimination.                             See
    slip op. at 12-13.            We disagree.
    The burden-shifting framework set forth in McDonnell Douglas
    Corp.       v.   Green,      
    411 U.S. 792
    ,        802-04   (1973),    for    Title   VII
    discrimination cases also governs age discrimination claims under
    the ADEA.         Holley v. Sanyo Mfg., Inc., 
    771 F.2d 1161
    , 1164 (8th
    Cir. 1984) (Holley).                The plaintiff must first establish a prima
    facie case of age discrimination.                        In order to establish a prima
    facie case, an age-discrimination plaintiff such as Aucutt, who was
    dismissed pursuant to a RIF, must show that: (1) he or she was at
    least 40 years old at the time of discharge; (2) he or she
    satisfied the applicable job qualifications; (3) he or she was
    discharged; and (4) “provide some additional showing that age was
    a factor in the termination.”                Nitschke v. McDonnell Douglas Corp.,
    
    68 F.3d 249
    , 251 (8th Cir. 1995) (Nitschke) (quoting 
    Holley, 771 F.2d at 1165
    ).            If the plaintiff establishes a prima facie case,
    the   employer         has    the    burden       of     producing     evidence    that    the
    plaintiff        was   discharged          “for    a     legitimate,     nondiscriminatory
    reason.”         St. Mary’s Honor Center v. Hicks, 
    113 S. Ct. 2742
    , 2747
    (1993) (quoting Texas Dep’t of Community Affairs v. Burdine, 450
    2
    The ADEA provides, inter alia, that “[i]t shall be unlawful
    for an employer . . . to fail or refuse to hire or to discharge any
    individual with respect to his compensation, terms, conditions, or
    privileges of employment, because of such individual’s age. . . .”
    29 U.S.C. § 623(1).
    -7-
    U.S. 248, 254 (1981)).   The burden then shifts to the plaintiff to
    prove that the reason articulated by the employer was a pretext for
    -8-
    age-based discrimination.                
    Nitschke, 68 F.3d at 251
    ; Hutson v.
    McDonnell Douglas Corp., 
    63 F.3d 771
    , 777 (8th Cir. 1995).
    We will assume for purposes of this appeal that Aucutt has
    established      a    prima    facie      case       of    age   discrimination.            Even
    granting him this assumption, the district court properly entered
    summary judgment in favor of Six Flags on the issue of pretext.
    Six Flags submits that it discharged Aucutt pursuant to a RIF
    caused by a decline in business in the 1992 season.                            According to
    Chilovich, the Manager of Security at the Six Flags in Eureka,
    Aucutt was selected for termination because of his failure to
    correct his negative work attitude after repeated admonitions,
    including    a       corrective     counseling            session    in   February      1992.
    Chilovich Aff. ¶ 12.          Noting that Aucutt had conducted unauthorized
    searches of patrons’ cars in the parking lot, had made park guests
    perform   “push-ups”          on   at    least       one    occasion,      and   had    often
    criticized Six Flags’ procedures, Chilovich stated that he had
    recommended Aucutt for termination, and the General Manager had
    agreed,   because        Aucutt’s        behavior         was    inconsistent        with   the
    company’s public relations and safety policies.                            Chilovich Aff.
    ¶¶ 7, 12.
    Because Six Flags presented a legitimate, nondiscriminatory
    reason for Aucutt’s termination, the burden shifted to Aucutt to
    demonstrate the existence of a factual issue as to whether this
    explanation was a pretext for age-based discrimination.                              Although
    Aucutt questions Chilovich’s personal knowledge of the “push up”
    incident,3    he      does    not       deny    having       engaged      in   any    of    the
    “militaristic” conduct described by Chilovich. Rather, he merely
    alleges pretext on the basis that Six Flags retained two younger
    security officers who had inferior job performance evaluations. Yet
    3
    This argument is considered separately below.
    -9-
    we note that these officers were only ranked below Aucutt in one
    category; nor did they demonstrate the negative work attitude for
    -10-
    which Aucutt had often been admonished.              More importantly, however,
    Aucutt has not presented any evidence that Six Flags harbored age-
    based discriminatory animus.            This court may not second-guess an
    employer’s personnel decisions, unless such decisions are based
    upon unlawful discrimination.               See Walker v. AT & T Technologies,
    
    995 F.2d 846
    , 850 (8th Cir. 1993).             Upon careful de novo review, we
    hold that the district court correctly determined that Aucutt has
    not presented sufficient evidence to create a genuine issue of
    material fact that Six Flags’ articulated reason for his discharge
    was a pretext for age-based discrimination.
    3.      The Chilovich Affidavit
    Aucutt contends that the district court erred in crediting the
    reasons for his termination given by Chilovich in his affidavit.
    Noting    that    Fed.     R.   Civ.   P.    56(e)   requires    that    affidavits
    supporting       motions    for   summary      judgment   be    made    on   personal
    knowledge, Aucutt argues that Chilovich’s affidavit does not meet
    this requirement because Chilovich lacked personal knowledge of the
    “push-up” incident described in his affidavit.                 Chilovich made the
    following statement in paragraph eight of his affidavit:
    It came to my attention that while
    patrolling the parking lot, Michael
    Aucutt encountered four young guests in
    military uniforms. It also came to my
    attention that after concluding that
    they had violated a rule, he informed
    them that he was a former Army Sergeant,
    he had the authority to discipline them
    as their military superior, and then
    commenced giving orders to perform
    calisthenic   “push-ups”,   (which   the
    guests then did), in the Six Flags
    parking lot.
    -11-
    Chilovich Aff. ¶ 8.   Chilovich recounted the “push-up” incident as
    one of several examples of Aucutt’s failure to improve his hostile
    demeanor towards park patrons, which was the primary reason why he
    was selected for layoff in the October 1992 RIF.   Aucutt contends
    -12-
    that because Chilovich did not personally observe the “push-up”
    incident described in the affidavit, the district court improperly
    considered the affidavit in deciding to grant summary judgment in
    favor of Six Flags.
    Six Flags responds that Chilovich’s affidavit comports with
    Fed. R. Civ. P. 56(e), because it was based on Chilovich’s personal
    knowledge of the reasons for the decision to lay off Aucutt.                 We
    agree.    Fed. R. Civ. P. 56(e) requires that affidavits supporting
    or opposing a motion for summary judgment “shall be made on
    personal    knowledge,    shall   set   forth   such   facts    as   would    be
    admissible in evidence, and shall show affirmatively that the
    affiant is competent to testify to the matters stated therein.”
    Fed. R. Civ. P. 56(e).     In evaluating evidence related to possible
    summary judgment, a court may not consider affidavits that do not
    satisfy the requirements of Fed. R. Civ. P. 56(e).             See El Deeb v.
    University of Minnesota, 
    60 F.3d 423
    , 428-29 (8th Cir. 1995);
    Cummings v. Roberts, 
    628 F.2d 1065
    , 1068 (8th Cir. 1980).                    The
    district court in the present case properly considered Chilovich’s
    affidavit, because it was based on Chilovich’s personal knowledge
    of the reasons underlying the challenged employment decision.                As
    the Manager of the Security Department, Chilovich was directed to
    select two sergeants and one officer to be laid off as part of the
    October 1992 RIF.      He evaluated the personnel file and performance
    of each employee under his supervision and decided to lay off
    Aucutt.     In   his   affidavit,   Chilovich    indicated      that   he    had
    repeatedly admonished Aucutt to improve his demeanor towards park
    guests while performing his security duties, yet Aucutt had failed
    to do so.    For example, Chilovich stated, “Even after I reminded
    Aucutt several times not to conduct vehicle searches, I still found
    him in the parking lot searching vehicles.”            Chilovich Aff. ¶ 7.
    He further stated that he chose Aucutt for termination because
    Aucutt had “continued to demonstrate a negative attitude and an
    -13-
    unwillingness    to   cooperate   with    Six   Flags’   policies   and
    goals. . . .”   Chilovich Aff. ¶ 12.     Thus, Chilovich had firsthand
    -14-
    knowledge of the reasons why Aucutt was selected for discharge.
    Fed. R. Civ. P. 56(e) does not require Chilovich to have witnessed
    every incident supporting the termination decision, so long as he
    had personal knowledge that the decision was for reasons unrelated
    to age-based discrimination.               Cf. Gill v. Reorganized School Dist.,
    
    32 F.3d 376
    ,    379   (8th   Cir.   1994)    (school   superintendent    who
    discharged plaintiff teacher after receiving report that student
    had    accused          plaintiff     of   making    racially   derogatory     remarks
    satisfactorily            rebutted     plaintiff’s     prima    facie   case   with   a
    legitimate reason for plaintiff’s discharge; superintendent need
    not have observed incident in question, because crucial issue was
    “whether [the reported incident] was the real reason for [Gill’s]
    termination and not a pretext for [race] discrimination”).
    In light of the foregoing, we hold that the district court did
    not err in considering Chilovich’s affidavit in support of Six
    Flags’s motion for summary judgment.                    We further hold that the
    district court properly entered summary judgment in favor of Six
    Flags on Aucutt’s ADEA claim.
    C.         ADA Claim
    Finally, Aucutt challenges the district court’s granting
    summary judgment in favor of Six Flags on his ADA claim.4                          The
    district court concluded that Aucutt had not established a prima
    facie case of disability discrimination, because he had failed to
    show that he suffered from a “disability” within the meaning of the
    4
    The ADA prohibits discrimination “against a qualified
    individual with a disability because of the disability of such
    individual in regard to job application procedures, the hiring,
    advancement, or discharge of employees, employee compensation, job
    training, and other terms, conditions, and privileges of
    employment.” 42 U.S.C. § 12112(a).
    -15-
    ADA.   Slip op. at 19.   A plaintiff may use the McDonnell Douglas
    Corp. v. Green burden-shifting framework described above to prove
    -16-
    a claim of intentional disability discrimination.                             See Price v. S-B
    Power Tool, 
    75 F.3d 362
    , 364-65 (8th Cir. 1996), petition for cert.
    filed, 
    64 U.S.L.W. 3765
    (U.S. Apr. 29, 1996) (No. 95-1782).                                       To
    establish a prima facie case under the ADA, a plaintiff must show
    that: (1) he or she is a “disabled” person within the meaning of
    the ADA; (2) he or she is qualified to perform the essential
    functions    of     the        job     (either          with       or      without    reasonable
    accommodation);      and        (3)    he     or        she    has      suffered      an   adverse
    employment action under circumstances from which an inference of
    unlawful    discrimination            arises.             See      
    id. (citing Benson
        v.
    Northwest Airlines, Inc., 
    62 F.3d 1108
    , 1112 (8th Cir. 1995)).                                    In
    order to establish a prima facie case in a RIF situation, the
    plaintiff    must    also       show        that    his       or     her    disability      was    a
    determining factor in his or her termination.                                  See Johnson v.
    Minnesota Historical Soc’y, 
    931 F.2d 1239
    , 1243 (8th Cir. 1991).
    The ADA defines a “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 impairment; or
    being regarded as having such an impairment.”                               42 U.S.C.
    § 12102(2)(A)-(C).             It is undisputed that Aucutt suffers from
    angina, high blood pressure, and coronary artery disease.                                       The
    district court held that Aucutt was not “disabled” within the
    meaning of the ADA, because he had presented no evidence suggesting
    that his medical problems “substantially limit[ed]” one or more of
    his “major life activities.”                Slip op. at 19.                Emphasizing that he
    could not complete the “streams course” without experiencing severe
    pain,     Aucutt    argues           that    his        medical          problems     constitute
    “disabilit[ies]”          as     defined           in     42       U.S.C.     §      12102(2)(A).
    Alternatively, he contends that because Six Flags was aware of his
    medical problems, his difficulty performing the streams course, and
    his requests for an air-conditioned vehicle, he was “regarded” as
    -17-
    having an impairment which substantially limited one or more of his
    major life activities.   42 U.S.C. § 12102(2)(C).   We think Aucutt’s
    arguments are without merit.
    -18-
    Because    the       ADA    does          not     define    the    term    “major          life
    activities,” we are guided by the definition provided in 29 C.F.R.
    §   1630.2,     the    Equal       Employment             Opportunity      Commission            (EEOC)
    regulations issued to implement Title I of the ADA.                               See 42 U.S.C.
    § 12116 (requiring EEOC to issue regulations implementing ADA). 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.”                 29 C.F.R. § 1630.2(i).                  The regulations
    further    provide       that       “[t]he            inability    to     perform       a    single,
    particular job does not constitute a substantial limitation in the
    major life activity of working.”                           29 C.F.R. § 1630.2(j)(3)(i).
    Rather,    a    person       claiming             a    disability       must    show        that    the
    impairment “significantly restrict[s] [his or her] 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.”                        Id; see also Bolton v. Scrivner,
    Inc., 
    36 F.3d 939
    , 942-44 (10th Cir. 1994) (Bolton) (work-related
    injury    preventing         employee             from    performing      his     job       as   order
    selector in grocery warehouse was not substantial limitation in
    major life activity of working, as required for unlawful discharge
    claim under ADA, absent evidence showing restriction in ability to
    perform class of jobs or broad range of jobs in various classes),
    cert.    denied,       115    S.        Ct.       1104    (1995).         Finally,       the       EEOC
    regulations state that the following factors should be considered
    in determining whether an individual is substantially limited in a
    major life activity: (i) the nature and severity of the impairment,
    (ii) its duration or expected duration, and (iii) its actual or
    expected long-term impact.                    29 C.F.R. § 1630.2(j)(2).
    Aucutt has not presented any evidence indicating that his
    angina, high blood pressure, and coronary artery disease place a
    significant restriction on his ability to perform any of the basic
    -19-
    functions enumerated in 29 C.F.R. § 1630.2(i).    His difficulty
    completing the “streams course” hardly constitutes the requisite
    -20-
    showing    that    his   medical     condition      substantially        limited     his
    overall employment opportunities.             See 
    Bolton, 36 F.3d at 943
    .             We
    note, for example, that a 25-pound lifting restriction was the only
    medical    limitation      placed    upon     Aucutt’s      activities      after    his
    hospitalization in July 1991.               Nor has Aucutt attempted to show
    that his angina, high blood pressure, and coronary artery disease
    pose a significant restriction on his ability to carry out other
    major     life    activities,       such     as    walking,      seeing,    speaking,
    breathing, or learning.         See 29 C.F.R. § 1630.2(i).                  In short,
    Aucutt has failed to present sufficient evidence to establish that
    the nature, duration, and long-term impact of his medical problems
    caused him to be substantially limited in a major life activity.
    Therefore, we hold that he is not “disabled” within the meaning of
    42 U.S.C. § 12102(2)(A).
    Also without merit is Aucutt’s claim that he is disabled under
    42 U.S.C. § 12102(2)(C) because Six Flags regarded him as having an
    impairment which substantially limited one or more of his major
    life activities.         In support of this argument, Aucutt notes that
    Six Flags was aware of his medical problems, his inability to
    perform    the     “streams   course,”       and    his    requests   for    an     air-
    conditioned vehicle during the summer months.                    The mere fact that
    Six Flags had such knowledge, however, does not show that Six Flags
    regarded Aucutt as having a disabling impairment.                        We are again
    guided    by     the   applicable    EEOC     regulations,       which     provide   as
    follows:
    (l) Is regarded         as     having      such   an
    impairment means:
    (1) Has a physical or mental
    impairment that does not substantially
    limit major life activities but is
    treated   by  a   covered   entity  as
    constituting such limitation;
    -21-
    (2) Has a physical or      mental
    impairment that substantially   limits
    major life
    -22-
    activities only as a result of the
    attitudes   of  others toward such
    impairment; or
    (3) Has    none of the impairments
    defined . . .   [above] but is treated by
    a   covered      entity   as   having   a
    substantially   limiting impairment.
    29 C.F.R. § 1630.2(l)(1)-(3).         Aucutt has not brought forth any
    evidence suggesting that Six Flags perceived or treated him as
    having a substantially limiting impairment.       In the absence of such
    evidence, the fact that Six Flags was aware of his medical problems
    is insufficient to establish that Six Flags “regarded” him as
    disabled under 42 U.S.C. § 12102(2).          Thus, we hold that Aucutt
    failed to make a prima facie case of disability discrimination.
    III.   Conclusion
    After    carefully   reviewing    the   record,   we   hold   that   the
    district court did not err in granting summary judgment in favor of
    Six Flags on Aucutt’s ADEA and ADA claims.              Accordingly, the
    judgment of the district court is affirmed.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -23-
    

Document Info

Docket Number: 95-1255

Filed Date: 6/5/1996

Precedential Status: Precedential

Modified Date: 10/13/2015

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