Clifford Frazee v. City of Independence

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2596
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Clifford Frazee, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
City of Independence, Missouri, *
* [UNPUBLISHED]
Appellee. *
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Submitted: February 7, 2003
Filed: February 12, 2003
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Before BOWMAN, WOLLMAN, and LOKEN, Circuit Judges.
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PER CURIAM.
Clifford Frazee appeals the District Court’s1 adverse grant of summary
judgment on his claim under the Americans with Disabilities Act (ADA). He also
appeals the Court’s subsequent grant of judgment as a matter of law (JAML) on his
only claim to go to trial, a sex-based hostile work environment claim. Having
carefully reviewed the record, see Dropinski v. Douglas County, 298 F.3d 704, 706
(8th Cir. 2002) (summary judgment standard of review); Clark v. Long, 255 F.3d 555,
557 (8th Cir. 2001) (JAML standard of review), we affirm.
1
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
We agree with the District Court that Frazee failed to create a trialworthy issue
on whether he was disabled under the ADA, see Toyota Motor Mfg. v. Williams, 534
U.S. 184, 187, 195–98, 200–01 (2002) (ADA claimant must show impairment that
“substantially”—i.e., considerably or to large degree—limits major life activity,
which must be significantly restricted as to how claimant can perform it as compared
to average person; central inquiry is whether claimant is unable to perform tasks
central to most people’s lives, not tasks associated with specific job; and, assuming
working is major life activity, claimant must show inability to work in broad class of
jobs rather than specific job), or whether his former employer, the City of
Independence (City), perceived him as disabled, see Brunko v. Mercy Hosp., 260
F.3d 939, 942 (8th Cir. 2001). We also find no abuse of discretion in the District
Court’s decision to grant City’s motion to strike Frazee’s designated expert, Dr.
Daniel Zimmerman. See Glastetter v. Novartis Pharms. Corp., 252 F.3d 986, 988–89
(8th Cir. 2001) (per curiam). In any event, Dr. Zimmerman’s vague opinion as to
Frazee’s limitations would not have helped him defeat City’s summary judgment
motion.
We also find that JAML on Frazee’s hostile work environment claim was
proper. The profane remarks made to him, and about him, by a female assistant
superintendent—while relatively frequent and entirely inappropriate, insulting, and
unprofessional—were not “so severe and extreme that a reasonable person would find
that the terms and conditions of [Frazee’s] employment had been altered.” See
Duncan v. Gen. Motors Corp., 300 F.3d 928, 934 (8th Cir. 2002) (in determining
whether conduct is sufficiently severe or pervasive, court looks to totality of
circumstances, including frequency and severity of discriminatory conduct, whether
it is physically threatening or humiliating as opposed to being mere offensive
utterance, and whether it interfered with employee’s work performance).
Accordingly, we affirm. See 8th Cir. R. 47B. We also deny City’s motion to
strike.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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