Eunice M. Hill v. Kansas City Area ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-2827
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Eunice M. Hill, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Kansas City Area Transportation *
Authority, *
*
Defendant - Appellee. *
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Submitted: February 12, 1999
Filed: July 1, 1999
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Before WOLLMAN,* LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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LOKEN, Circuit Judge.
The Kansas City Area Transportation Authority (“KCATA”), a local government
employer, discharged bus driver Eunice M. Hill for twice falling asleep while assigned
to a bus route (but not operating the bus). Hill filed this action, claiming that her on-
the-job drowsiness was caused by a combination of medications she was taking to
remedy hypertension and to relieve pain caused by job-related injuries, and that
*
The Honorable Roger L. Wollman became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 24, 1999.
KCATA violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (the
“ADA”), by discharging her instead of reasonably accommodating her disability. Hill
also asserted state-law contract claims for breach of KCATA’s employee handbook
and the governing collective bargaining agreement. The district court1 granted KCATA
summary judgment, concluding that KCATA neither violated the ADA nor breached
either its handbook or the collective bargaining agreement. Hill appeals. Having
reviewed the grant of summary judgment de novo, and the summary judgment record
in the light most favorable to Hill, the non-moving party, we affirm.
Hill was diagnosed with severe hypertension in January 1985 and since then has
taken a variety of prescription medications to control her blood pressure. Hill had
repeated work attendance problems between 1985 and her discharge in 1995. For
example, only a successful arbitration hearing prevented her discharge in 1986 for
“excessive and abusive absenteeism,” which she blamed, at least in part, on pain
medication that made her oversleep. In March 1995, Hill injured her knee when it
struck a fare box. She reported this job-related injury and was referred to a physician
under KCATA’s workers compensation program, who prescribed a pain medication
and released Hill to return to work. On May 23, Hill was discovered asleep in her bus
prior to the commencement of her route. According to the Supervisor’s Special Report
of the incident, Hill told the person who awakened her that “she had taken some
medicine.” Superintendent of Transportation Russell Green subsequently met with Hill
and reminded her of the KCATA work rule stating that a second incidence of sleeping
on the job results in discharge. Hill did not tell Green that medications had caused her
to fall asleep on the job.
On June 27, Hill sprained her wrist while steering a bus. She reported the injury,
and a worker’s compensation physician prescribed pain medications. On July 19, Hill
1
The HONORABLE FERNANDO J. GAITAN, JR., United States District Judge
for the Western District of Missouri.
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was again found sleeping in her bus -- this time during a layover on her assigned route.
She was directed to finish the route, seventeen minutes late. Later that day, she met
with Superintendent Green. Hill testified at her deposition that she explained to Green
she has a problem when she takes pain medications in combination with her
hypertension medications. “I asked them to send me and have me checked out to see
what’s going on with me, because it’s something that’s wrong.” Instead, KCATA
discharged Hill on July 26.
After her discharge, Hill applied for and received Social Security disability
benefits, representing herself as unable to perform the essential functions of any job.
As the district court recognized, that representation does not support Hill’s claim that
she is a “qualified individual with a disability” for purposes of the ADA, see 42 U.S.C.
§ 12111(8), but it does not preclude her from proving that she can perform the essential
functions of her job with KCATA with a reasonable accommodation. See Cleveland
v. Policy Management Sys. Corp., 119 S. Ct. 1597 (1999).
Hill’s ADA claim is that KCATA violated the Act by “not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified
individual with a disability.” 42 U.S.C. § 12112(b)(5)(A). In evaluating this claim, we
must identify Hill’s “disability” for ADA purposes, an issue she does not even address
on appeal. See 42 U.S.C. § 12102(2) (definition of “disability”). In the district court,
Hill argued her hypertension is a disability. But Hill controlled her hypertension for
over ten years with medications that permitted her to perform her job as a KCATA bus
driver. Her hypertension is not a disability because, “when medicated, [her] high blood
pressure does not substantially limit [her] in any major life activity.” Murphy v. United
Parcel Serv., Inc., No. 97-1992, 1999 WL 407472, at *3 (U.S. Jun. 22, 1999).
Hill further argues that the drowsiness caused by taking hypertension medication
in combination with the pain relievers prescribed for her work-related injuries was an
ADA disability. Most assuredly, an essential function of a bus driver’s job is the ability
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to stay awake, and Hill presented medical evidence that her medications can in
combination cause drowsiness. But we find no evidence in the record that Hill’s
physical condition compelled her to take a combination of medications that persistently
affected her ability in 1995 to stay awake on the job. Therefore, she failed to present
sufficient evidence that this alleged physical impairment substantially limited her major
life activity of working. See 29 C.F.R. § 1630.2(j)(3).
Even assuming for summary judgment purposes that Hill’s condition was an
ADA disability, she must also prove that KCATA discriminated against her on account
of that disability. She was fired for sleeping on the job, not for her medical condition
or her need to take medications. Hill nonetheless argues her discharge was ADA-
banned discrimination because KCATA failed to honor her request for the reasonable
accommodation of a drug screening that would have identified a combination of pain
and hypertension medications that would not cause drowsiness. We agree with the
district court this is a fatally flawed theory.
In the first place, Hill’s request for accommodation was untimely. She never told
KCATA supervisors that the medications she was taking in mid-1995 left her
uncontrollably drowsy on the job until after she committed the offense of twice
sleeping on the job, a work rule violation she knew would mandate her discharge.
Moreover, when Hill belatedly asked Superintendent Green for help in reassessing her
prescription medications, she offered no assurance that such a drug screening would
remedy her job performance difficulties. See Mole v. Buckhorn Rubber Prods., 165
F.3d 1212, 1218 (8th Cir. 1999). Finally, the reasonable accommodation requested
was not within her employer’s control. See generally 42 U.S.C. § 12111(9) (defining
“reasonable accommodation”). KCATA controlled Hill’s work conditions, but it was
not her doctor or pharmacist. Hill was responsible for her general health. She could
have guarded against drug-induced drowsiness by discussing the combination of
medications she was taking with her personal physician, who prescribed her
hypertension medication, or with the workers compensation program physicians who
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prescribed her pain medications. Instead, she ignored the problem until her work
performance warranted discharge. Like the diabetic police officers in Burroughs v.
City of Springfield, 163 F.3d 505 (8th Cir. 1998), and Siefken v. Village of Arlington
Heights, 65 F.3d 664 (7th Cir. 1995), Hill did not request a disability accommodation,
she asked for a second chance to better control her treatable medical condition. That
is not a cause of action under the ADA.
Turning to Hill’s state law claims, she alleges that KCATA breached its
employee handbook by invoking the wrong work rule, and breached the collective
bargaining agreement by not taking timely disciplinary action against her first offense
of sleeping on duty. Putting aside the problem that Hill relies upon employee handbook
cases that were overruled by Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661
(Mo. banc 1988), after careful review of the summary judgment record we agree with
the district court that Hill has no credible evidence that KCATA failed to comply with
either the employee handbook or the collective bargaining agreement.
The judgment of the district court is affirmed. Appellant’s motion for leave to
file a supplemental appendix is granted. Appellee’s motion to strike appellant’s brief
is denied.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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