Clayton Ristrom v. Asbestos Workers

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-1609
___________
Clayton Ristrom, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Asbestos Workers Local 34 Joint *
Apprentice Committee, also known as *
Twin Cities Area Asbestos Workers *
Local 34 Joint Apprenticeship *
Committee, *
*
Appellee. *
___________
Submitted: December 17, 2003
Filed: June 4, 2004
___________
Before MORRIS SHEPPARD ARNOLD, HEANEY, and RILEY, Circuit Judges.
___________
RILEY, Circuit Judge.
Clayton Ristrom (Ristrom) enrolled in a union apprenticeship program run by
the Asbestos Workers Local 34 Joint Apprenticeship Committee (JAC). When the
JAC cancelled Ristrom’s participation in the apprenticeship program, Ristrom sued
the JAC, claiming disability discrimination and retaliation in violation of the
Americans with Disabilities Act (ADA). The district court1 granted summary
judgment in favor of the JAC, concluding Ristrom did not prove he has an ADA-
qualifying disability and the JAC did not retaliate against Ristrom. We affirm.
I. BACKGROUND
The JAC operates the Twin Cities Area Asbestos Workers Apprenticeship
Program (Program), which offers participants an opportunity to perform on-the-job
and classroom training to earn union journeyman status and higher wages. The JAC
is comprised of four members, two representing management and two representing
the union. The Program, typically completed in four years, requires participants to
work full time during the week and attend classes on Saturdays from 8:00 a.m. to 2:30
p.m. from September though March. To complete the Program, participants must
attend and pass all required courses.
On September 6, 1995, Ristrom, a high school graduate, entered the Program.
By early 1996, Ristrom had already missed nearly three weeks of work, prompting
his employer to discharge him. On February 22, 1996, Ristrom appeared before the
JAC so the JAC could consider Ristrom’s discharge from employment. The JAC
reprimanded Ristrom for his absenteeism, cautioning him “that any additional non-
compliance with the terms and conditions of the apprenticeship standards[] could
result in disciplinary action.” With the help of the union and the JAC, Ristrom
secured employment. Ristrom thereafter successfully completed the first and second
years of the Program, and advanced to the Program’s third year in the fall of 1997.
On January 29, 1998, Ristrom’s employer wrote to Ristrom confirming the
employer told Ristrom his workmanship was “less than satisfactory and
unacceptable,” and “that as [a] 3rd year apprentice, you do not possess the minimum
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
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skills of your class.” The employer recommended Ristrom appear before the JAC so
it could evaluate Ristrom’s field and classroom performance. On February 10, 1998,
Ristrom appeared before the JAC to respond to the report made by Ristrom’s
employer. The JAC agreed to defer action until the end of the classroom term.
According to Ristrom, he sought additional assistance from his instructor for
his blueprint reading and pattern development courses, and his instructor “tried to
help.” Mark Morgan (Morgan), a JAC member, tutored Ristrom in pattern
development at Morgan’s home a few times between February and March 1998. At
some point, Ristrom confided in Morgan that Ristrom had Attention Deficit Disorder
(ADD), had marital problems, and took the prescription drug Zoloft for depression.
Despite Morgan’s tutoring, Ristrom failed some of his courses.
On April 14, 1998, Ristrom again appeared before the JAC to address his
failing grades. The JAC voted to suspend Ristrom, postpone his advancement to the
Program’s final year, and make him re-take his third-year courses. Ristrom wrote a
letter to the JAC contending its decision to make Ristrom repeat the third year of the
Program was unfair. Ristrom contended his instructors and the JAC should have
provided him tutoring or other assistance earlier to help him pass his courses, and that
his father, a union member, had asked an instructor to tutor Ristrom. Ristrom also
requested he be allowed “to correct any deficiencies that I have shown” before the
September classes began. Ristrom’s letter to the JAC did not mention ADD,
depression, marital problems, or a learning disability. On April 16, 1998, the JAC
notified Ristrom his advancement was postponed based on his “[f]ailure to attain a
passing grade and pass the required examination for advancement.”
When Ristrom began his third year for the second time, he again experienced
difficulties with his blueprint reading course, ultimately passing seven of seventeen
tests. However, before completing the course, Ristrom appeared before the JAC on
November 10, 1998. Ristrom provided the JAC a letter informing it he was again
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having difficulty with blueprinting, and that the local board told him his “overall
score was below passing.” Ristrom sought tutoring assistance, and asked to retake
the tests he had failed so he could “bring [his] score up to a passing grade.” Ristrom
notified the JAC he was “still concerned with [his] ability to grasp the whole concept.
. . . I do not have trouble doing the field work, just the classroom work. Because of
the importance of this matter, I have made an appointment on November 18 for
testing for a possible learning disability. I ask that you reserve judgment on my
future until this testing is complete. This will take from four to six weeks. I am
hoping this will resolve any problems I have had in the past. I want to move forward
to the next level and successfully complete this program.” Ristrom admits that, at the
time of the meeting, he did not know whether he had a learning disability. The JAC
agreed to defer taking action against Ristrom at that time.
In a letter “To Whom This May Concern” dated December 30, 1998, Dr.
Armantina Espinosa (Dr. Espinosa), a pediatric neurologist, wrote that Ristrom’s
neurology consultation for concentration and memory difficulties was normal. Dr.
Espinosa wrote that Dr. Charlaine Skeel (Dr. Skeel) performed a psychological
evaluation of Ristrom to evaluate his learning abilities, memory and attention skills.
This evaluation revealed Ristrom’s verbal performance and IQ were “within the low
average range.” Dr. Skeel also reported that “tasks sensitive to inattention or
concentration difficulties do not indicate noteworthy deficits,” and that the “TOVA
test results were negative for inattention.” Finally, Dr. Skeel’s evaluation showed her
screening for immediate and short-term memory deficiency was negative. Dr.
Espinosa noted her “[d]iagnostic impressions included dysthymia,” a type of
depression. Finally, Dr. Espinosa wrote that specific support for Ristrom “in order
to sit for a required exam in his field of work may include tutoring, with time allowed
for repetition of learned skills within a structured study situation.”
This was not the first time Ristrom sought an evaluation regarding possible
ADD. In April 1994, Ristrom referred himself for a psychological evaluation,
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because he had concerns he had ADD. At that time, Ristrom was “beginning school
to be trained as a sales representative and [was] concerned about his inability to
concentrate and complete required course work.” Dr. Kristina Lund (Dr. Lund), a
licensed psychologist, conducted a psychological evaluation to address Ristrom’s
concerns. Dr. Lund stated Ristrom’s “academic or cognitive skills do not seem to be
highly developed but [there] does not seem to be strong evidence of a learning
disability.” Concluding Ristrom is not “suffering from Attention Deficit Disorder at
this time,” Dr. Lund recommended that Ristrom consult with a psychiatrist to possibly
medicate his depression and anxiety, and seek counseling or therapy. Dr. Lund noted
that, if those two recommendations failed, “the possibility of Attention Deficit
Disorder could be reconsidered.” Finally, Dr. Lund cautioned that, if Ristrom
“chooses a profession or career which requires the use of mathematical computation
or academic skills[,] he will probably need remedial help until the necessary
processes become somewhat automatic for him.” Ristrom never provided this 1994
evaluation to the JAC.2
Ristrom did not immediately provide the results of his November 1998
evaluation to the JAC. When the semester began in January 1999, Ristrom
immediately began missing class, and missed five of the first six classes in 1999.
After Ristrom missed the first class of the semester on January 9, the JAC asked
Ristrom to appear before it. Ristrom appeared before the JAC on January 19, and
2
In reaching this overall conclusion, Dr. Lund noted Ristrom’s IQ tests placed
him “in the low-average range of cognitive functioning.” Ristrom’s scores on the
Connors Continuous Performance Test “were not consistent with a diagnosis of
Attention Deficit as he was able to respond consistently and appropriately. There
were no indications of impulsivity or loss of attention, either in short or long term
ratings on the test.” Dr. Lund noted that Ristrom “is experiencing feelings of
depression, anxiety and possible relationship difficulties in his family. This
evaluation would suggest that [Ristrom’s] psychological symptoms, his depression,
anxiety and possible underlying anger or hostility are quite intense and that these may
indeed be the cause of his difficulties in concentrating.”
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informed it of the psychological evaluation and asked the JAC for tutoring help.
Ristrom claims the JAC refused to assist him with tutoring, telling him he was on his
own to find tutoring help. The JAC contends it tried to assist Ristrom, but he failed
to avail himself of its assistance. Ristrom submitted a note dated January 14, 1999,
from Dr. Eric Berg (Dr. Berg), which stated Ristrom “lost time” because of “Dr’s
Appointments.” The note also stated “Ristrom has been seen by neurologists and is
being treated for depression with Zoloft.”
On January 20, the JAC wrote Ristrom a letter informing him his suspension
continued and that he was required to successfully complete all of his third-year
classroom training by March 27, 1999, or he would be cancelled from the Program.
Ristrom then missed the next two classes on January 23 and 30. On February 3, the
JAC asked Ristrom to appear before it on February 9. Ristrom missed class again on
February 6. Ristrom appeared before the JAC on February 9, asking it to allow him
to withdraw or take a leave of absence from the Program rather than be cancelled.
Ristrom claims he gave the JAC a note from Dr. Berg, dated February 9, stating
Ristrom was absent from January 9 to February 9, 1999, for “dysthymia, possible
depression,” stating “no attendance until further evaluation–Rx Zoloft,” and noting
“work-up in progress–mental health referral to be done.” The JAC unanimously
voted to cancel Ristrom’s participation in the Program “on February 12th, 1999, for
failure to meet the terms and conditions of his suspension agreement.”
After the February 9 JAC meeting, Ristrom saw Dr. W. David Bailey (Dr.
Bailey), a licensed psychologist. In a letter “To whom it may concern” dated March
22, 1999, Dr. Bailey stated Ristrom “has provided history and test results congruent
with a preliminary Diagnosis of attention deficit disorder and depression. It is also
likely that he is alcoholic.” Dr. Bailey noted Ristrom “has chosen to abstain from
alcohol and attend a self help group for alcoholism, accept a prescription for [Z]oloft
(an antidepressant) and he is considering the use of a stimulant for his attention
deficit. It is likely the changes in lifestyle, the willingness to refrain from drinking
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and go on a regimen of prescription drugs will enhance his ability to work and learn
effectively. Because his performance, persistence, attention, and memory capacity
are likely to improve, it would be advisable to reconsider his ability to perform work
and learning tasks after 3 to 6 months of treatment.” Ristrom provided no additional
medical evidence.
Ristrom sued the JAC, alleging disability discrimination and retaliation in
violation of the ADA. The district court granted summary judgment to the JAC,
concluding Ristrom (1) failed to show he has an ADA-qualifying disability, and (2)
failed to produce “evidence of causation between his requests for assistance and his
cancellation from the Program, which occurred many months later and after various
incidents allowing for cancellation under the Agreement [Ristrom] signed.”
II. DISCUSSION
We review de novo the district court’s grant of summary judgment to the JAC.
Mayer v. Nextel West Corp., 318 F.3d 803, 806 (8th Cir. 2003). Summary judgment
is proper if the evidence, viewed in the light most favorable to Ristrom and giving
him the benefit of all reasonable inferences, shows there are no genuine issues of
material fact and the JAC is entitled to judgment as a matter of law. See id.; Fed. R.
Civ. P. 56(c).
A. Disability Discrimination
The ADA prohibits a covered entity from discriminating “against a qualified
individual with a disability because of the disability of such individual.” 42 U.S.C.
§ 12112(a). The ADA defines 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 (C) being regarded as having such an impairment.”
Id. § 12102(2). Ristrom contends he has satisfied all three definitional prongs.
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To establish a discrimination claim under the ADA, Ristrom must show (1) he
has an ADA-qualifying disability, (2) he is qualified to perform the essential
functions of his position with or without a reasonable accommodation, and (3) the
JAC took adverse action against him because of his disability. Epps v. City of Pine
Lawn, 353 F.3d 588, 591 (8th Cir. 2003). The Supreme Court recently advised courts
to interpret the ADA’s terms “strictly to create a demanding standard for qualifying
as disabled.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002).
Because we conclude Ristrom has not met this demanding standard, we affirm the
district court’s grant of summary judgment to the JAC.
To survive summary judgment, Ristrom must prove he has an impairment that
substantially limits a major life activity. Ristrom maintains his impairments are ADD
and depression, and both impairments substantially limit the major life activity of
learning. We do not quarrel with Ristrom’s assertion of his impairments or that
learning is a major life activity, but rather we focus on whether Ristrom has produced
the necessary evidence to prove these impairments substantially limit his ability to
learn.
“Substantially limits” means “[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); Toyota Motor, 534 U.S. at 195-96. According
to the Supreme Court, “substantially” means “considerable” or “to a large degree.”
Toyota Motor, 534 U.S. at 196 (citation omitted). Thus, we ask whether Ristrom has
produced evidence to prove his asserted impairments (i.e., ADD and depression) limit
his ability to learn to a considerable or large degree as compared to the average
person in the general population.
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When addressing this question, we are reminded “Congress intended the
existence of a disability to be determined in [] a case-by-case manner.” Id. at 198.
Furthermore, “[a]n individualized assessment of the effect of an impairment is
particularly necessary when the impairment is one whose symptoms vary widely from
person to person.” Id. at 199. Thus, we begin our analysis with the clear
understanding that ADD and depression do not qualify as disabilities per se under the
ADA, but must satisfy the ADA’s demanding standard in each individual case in the
context of the major life activity asserted. We also have the firm understanding that
an individual cannot prove disability status by “merely submit[ting] evidence of a
medical diagnosis of an impairment.” Id. at 198. Instead, the ADA requires
individuals seeking the ADA’s protection “to prove a disability by offering evidence
that the extent of the limitation [caused by their impairment] in terms of their own
experience . . . is substantial.” Id. (quoting Albertson’s, Inc. v. Kirkingburg, 527 U.S.
555, 567 (1999)).
Ristrom has failed to offer evidence–medical or otherwise–that proves his
ADD or depression substantially limits his ability to learn to a considerable or large
degree as compared to the average person in the general population. The district
court recognized this lack of proof: “[Ristrom]’s conclusory pronouncement that he
is substantially limited in the major life activity of learning because he found certain
subjects or educational contexts challenging or frustrating is insufficient to withstand
summary judgment on this issue.” Ristrom graduated from high school, successfully
completed the first two years of the Program, passed seven of seventeen tests in his
blueprinting course (including some perfect scores), and held a full-time job. Ristrom
could not successfully complete a few highly specialized courses in the third year of
an advanced apprenticeship program, which bestows journeyman status on those who
pass, entitling them to higher wages for their advanced skills. The record does not
indicate how the average person in the general population would fare in the highly
specialized courses Ristrom was taking.
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Ristrom’s self-referred medical evaluations also do not aid his claim that any
ADD or depression substantially limits his ability to learn as compared to the average
person in the general population. Ristrom’s 1994 evaluation specifically concluded
he does not have a learning disability or ADD. That evaluation in no way indicated
Ristrom was unable to learn as compared to the average person in the general
population. Indeed, his IQ test scores placed him “in the low average range of
cognitive functioning.” Ristrom’s 1994 evaluation did note his depression, anxiety,
anger, hostility and relationship problems could make concentrating difficult, but did
not establish Ristrom has an impairment that substantially limits his ability to learn.
Ristrom’s 1998 evaluation studied his learning abilities, concluding he did not
have problems with attention deficit and placing his IQ “within the low average
range.” Ristrom’s post-cancellation evaluation in 1999 simply stated the history and
test results Ristrom provided were “congruent with a preliminary Diagnosis of [ADD]
and depression.” The evaluation also stated Ristrom is likely an alcoholic. Nowhere
in Ristrom’s 1999 evaluation does it discuss whether his impairments substantially
limit his ability to learn, and the evaluation certainly does not compare Ristrom’s
learning ability to that of an average person. Ristrom’s pre-cancellation and post-
cancellation medical evidence do not prove he has an ADA-qualifying disability.
See, e.g., Calef v. Gillette Co., 322 F.3d 75, 84 (1st Cir. 2003) (holding that plaintiff’s
medical testing evidence and life experience showed no substantial limitation on
learning); Palotai v. Univ. of Md. at Coll. Park, No. 01-1147, 2002 WL 1379969, at
*8-9 (4th Cir. June 27, 2002) (concluding the failure of the medical evidence to
compare the plaintiff’s ability to learn with the average person in the general
population was fatal).
It can be a harsh reality for an individual to discover he is unable to accomplish
that which he hoped to accomplish. Individuals possess varying levels of academic
potential. Employees who fail to learn or learn at a slower pace do not automatically
qualify for protection under the ADA. Instead, the ADA protects only those
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individuals who present reliable evidence proving a physical or mental impairment
that substantially limits their ability to learn as compared to an average person in the
general population. The record does not contain evidence proving Ristrom is unable
to learn to the same degree as the average person in the general population. The
record also does not show which one of Ristrom’s impairments causes him to miss
class and fail a few courses. For example, the record is replete with references to
Ristrom’s lack of motivation, anger, alcoholism, depression, anxiety, marital
problems and attention deficit issues. Although Ristrom maintains his ADD and
depression substantially limit his ability to learn, he has failed to offer sufficient proof
that these impairments, as opposed to his other life issues, cause him to miss class and
fail certain tests.
Ristrom successfully completed over half of the highly specialized Program’s
requirements before he encountered difficulties with a few courses. The inability to
pass a few highly specialized courses does not indicate an inability to learn under the
ADA. In Leisen v. City of Shelbyville, 153 F.3d 805, 806, 808 (7th Cir. 1998), Lori
Leisen, an individual with alleged “emotional disabilities,” pursued her dream of
becoming a paramedic and firefighter. After four failed attempts to pass courses to
obtain the required paramedic license during her three-year probationary term, Leisen
asked the city to accommodate her emotional disability by extending her probationary
period so she could obtain her paramedic license. Id. at 806-07. When the city
refused Leisen’s request, Leisen sued the city for disability discrimination. Affirming
summary judgment for the city, the Seventh Circuit held Leisen failed to prove her
emotional disability or depression substantially limited the major life activity of
learning. Id. at 808. In reaching this conclusion, the court made a prescient
observation:
The mere fact that Leisen was having obvious difficulty in
passing the course for paramedic certification does not show that she
was substantially limited in the major life activity of learning, any more
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than the fact that a particular individual might not be able to pass a
course in physics or philosophy would allow an inference that all
learning activity was substantially limited.
Id.; see also Summers v. Middleton & Reutlinger, P.S.C., 214 F. Supp. 2d 751, 756
(W.D. Ky. 2002) (holding the plaintiff’s “alleged difficulty with learning defendant’s
computer system” does not show she is substantially limited in the major life activity
of learning). The Seventh Circuit noted Leisen maintained her EMT certification and
completed other training courses at the time she failed the paramedic course, which
precluded a finding that her emotional disability substantially limited her ability to
learn. Leisen, 153 F.3d at 808. Finally, the court alternatively held the city was not
required to accommodate Leisen because she “tried and tried” to obtain her paramedic
license, but was unable to do so after four attempts over a three-year period. The
court decided the city was entitled to conclude Leisen would not likely pass the
course even if given more time. Id.Like Leisen, Ristrom has not shown he is unable to learn; he simply could not
pass a few courses in the third year of an advanced apprenticeship program. This
does not prove he has an ADA-qualifying disability. Human intellect, talents and
industry simply are not uniform. Strive as we might, we cannot learn every skill in
life. Inadequate performance in certain life endeavors does not necessarily reflect any
disability in learning.
Another fatal flaw in Ristrom’s claim is the JAC never knew Ristrom had a
learning disability. To be liable for disability discrimination, the JAC would have
had to cancel Ristrom’s participation in the Program because of an ADA-qualifying
learning disability. When Ristrom appeared before the JAC on February 9, 1999, he
was the only person who believed he had a learning disability. Although Ristrom
sought a learning disability diagnosis in 1994 and 1998, both medical evaluations
concluded Ristrom did not have a learning disability. Taking action against an
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individual who believes he has a disability is not the same thing as taking action
against an individual who actually has a disability, unless Ristrom had a record of or
was regarded as having a disability.
At the time the JAC cancelled Ristrom from the Program, Ristrom did not have
a record of a physical or mental impairment that substantially limited his ability to
learn. Ristrom strongly believed he had a learning disability and that the JAC knew
about it. However, Ristrom did not present evidence to support his claim. Instead,
the record shows even Ristrom and his doctors had no record of Ristrom having a
learning disability. Thus, the JAC cannot be liable under the ADA for discriminating
against Ristrom based on a record of disability. The ADA simply does not force the
JAC to disregard Ristrom’s medical evidence and rely on his self-diagnosis instead.
The JAC could regard Ristrom as disabled under the ADA by mistakenly
believing he has a physical impairment that substantially limits a major life activity
or by mistakenly believing Ristrom’s actual, nonlimiting impairment substantially
limits a major life activity. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489
(1999). The record clearly paints a picture in which nobody regards Ristrom as
having an ADA-qualifying learning disability. Before taking action against Ristrom,
the most the JAC knew is that Ristrom perceived himself as having a learning
disability, but no medical provider agreed with Ristrom’s self-diagnosis. The JAC
regarded Ristrom as being unable to attend his classes and pass certain tests in the
Program. Nothing suggests the JAC believed Ristrom was substantially limited in his
ability to learn.
Ristrom also contends the JAC violated the ADA by failing to accommodate
his learning disability. The ADA requires the JAC to make “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). We have already
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concluded the JAC did not know Ristrom had a learning disability, so the JAC had
no duty to accommodate Ristrom’s self-diagnosed learning disability.
Finally, we recognize Ristrom’s use of medication, or plans to use medication,
impacts his ADA claim as well. As early as 1994, Ristrom was informed he
experienced depression and should possibly medicate his depression. In 1998,
Ristrom’s evaluation also diagnosed him with depression, and Ristrom told Morgan
in 1998 that he took Zoloft for depression. On January 14, 1999, Dr. Berg noted
Ristrom “is being treated for depression with Zoloft.” Dr. Berg wrote in his February
1999 note that Ristrom was prescribed Zoloft for depression. Finally, Dr. Bailey’s
March 1999 note recorded a preliminary diagnosis of depression and Ristrom
accepted a prescription for Zoloft. Although nothing indicates Ristrom’s depression
substantially limits his ability to learn (and nothing compares Ristrom’s ability to
learn with that of the average person in the general population), that is not the only
focus when deciding whether Ristrom has an ADA-qualifying disability. The
Supreme Court has held the ADA does not look at an individual’s hypothetical
unmedicated state, but rather looks at the effects of an individual’s mitigating
measures, which include medication, when deciding whether an individual’s
impairment substantially limits a major life activity. See Sutton, 527 U.S. at 482;
Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521 (1999). The record is devoid
of evidence examining Ristrom’s depression in his medicated state, just as it is devoid
of evidence examining the impact Ristrom’s depression has on his ability to learn.
B. Retaliation
The ADA also prohibits retaliation against an individual for taking action
protected by the ADA. 42 U.S.C. § 12203(a). Ristrom contends the JAC retaliated
against him for seeking accommodations. To establish a retaliation claim under the
ADA, Ristrom must show he engaged in protected activity, the JAC took adverse
action against him, and a causal connection between the two. Cossette v. Minn.
Power & Light, 188 F.3d 964, 972 (8th Cir. 1999). As recognized by the district
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court, “there is a complete lack of evidence of causation between [Ristrom’s] requests
for assistance and his cancellation from the Program, which occurred many months
later and after various incidents allowing for cancellation.” We agree.
Ristrom began seeking assistance from the JAC in 1998, and his father sought
assistance for him in 1997. The JAC did assist Ristrom, including finding him
employment after his first employer discharged him for missing too much work,
tutoring him through Morgan, and allowing Ristrom to retake his third-year courses.
When Ristrom asked the JAC on November 10, 1998, to “reserve judgment on my
future until [my testing for a learning disability] is completed,” the JAC reserved
judgment. By February 1999, the JAC apparently had enough with Ristrom’s failure
to attend classes and his inability to verify medically a learning disability. At that
point, the JAC cancelled Ristrom from the Program. The ADA’s anti-retaliation
provision does not clothe Ristrom with immunity for past and present unsatisfactory
performance. See Jackson v. St. Joseph State Hosp., 840 F.2d 1387, 1391 (8th Cir.
1988) (Title VII). The record does not support Ristrom’s retaliation claim.
III. CONCLUSION
For the reasons discussed, we affirm the district court’s grant of summary
judgment in the JAC’s favor.
HEANEY, Circuit Judge, concurring.
I concur in the result the majority reaches, but write separately to advance an
alternative reason for affirming the district court’s dismissal of Clayton Ristrom’s
discrimination claim. I believe Ristrom’s repeated absences from the training
program and his apprenticeship jobs, in addition to his failing grades, were a
legitimate, nondiscriminatory basis for his termination from the apprenticeship
program. See Price v. S-B Power Tool, 75 F.3d 362, 365-66 (8th Cir. 1996) (finding
a violation of the employer’s attendance policy as a valid, nondiscriminatory, reason
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for firing the plaintiff). It is on this ground that I would affirm the district court’s
grant of summary judgment in favor of the Joint Apprenticeship Committee (JAC).
Anderson v. Larson, 327 F.3d 762, 767 (8th Cir. 2003) (stating that a district court’s
grant of summary judgment can be affirmed by relying on any justification that the
record supports).
I view the record regarding Ristrom’s learning disability differently than the
majority. The majority emphasizes Ristrom’s completion of the first two years of the
program, in addition to his high school graduation, as evidence that he was not
substantially limited in his ability to learn. Ristrom could have mastered the two
years of course work, however, and still suffered from a disability that prevented him
from mastering later course work. His early success in the program should not in any
way absolve the JAC – or any similarly situated employer – of its obligation to
accommodate Ristrom once his learning disability became an obstacle, nor should his
graduation from high school be viewed as an indication that Ristrom never suffered
from a learning disability. Such accomplishments do not mean that the disability did
not affect his life in a significant manner or greatly impact his capacity to learn.
Toyota3 does not stand for the broad proposition that one’s life must come to a
standstill in order to satisfy the ADA’s definition of disability.
In his affidavit, Ristrom attests to the many difficulties he had in school:
flunking first grade, being placed in special education classes, and having to receive
special tutoring in his math classes. In the school setting, where he was supported,
he was able to graduate; that does not mean, however, that he was not learning
disabled. In fact, when viewed in the light most favorable to him, Ristrom’s affidavit
shows evidence of a learning disability beginning at a young age, requiring
accommodation in order for him to function in an academic setting similar to that of
the training program. See Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 509-10
3
Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002).
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(7th Cir. 1998) (finding that the plaintiff successfully raised an issue of fact as to
whether her experiences with Attention Deficit Disorder constituted a record of
impairment when she had testified to her difficulties in school).
In this case, however, Ristrom regularly missed scheduled classes without a
sufficient explanation that his disability was the cause of those absences. Ristrom has
not proven that the JAC terminated him for any reason other than his absences and
failing grades. For this reason, I concur in the result reached by the majority.
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