The full case caption appears at the
end of this opinion. Richard Allen appeals from the district court’s
[FOOTNOTE 1] entry of summary judgment infavor of his former employer, Interior Construction Services, Ltd. (Interior), on hisclaim of discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C.� 12101-12213. Allen also appeals from the court’s decision to strike from thesummary judgment record the testimony of Timothy Kaver. We affirm. I. Allen, a journeyman carpenter, was first employed by Interior in December of1994. Interior initially hired Allen to work on a particular project that requiredimmediate carpentry work and thereafter employed him as his services were needed,i.e. when Interior had carpentry work available. Allen worked in this as-neededcapacity until November of 1995, when he injured his back while on the job.Immediately following his injury, Allen was advised by his physician that hecould return to work, provided that he did not lift more than 30 or 40 pounds. Heedingthis advice, Allen contacted Interior on December 4, 1995, about returning to work onlight duty. Interior told him that it had no carpentry work available at that time.Shortly thereafter, Allen was examined by three other physicians, who advised him thathe had a lumbar strain and that he should not perform carpentry work, with or withoutlifting restrictions, until he received future medical clearance to do so.Allen remained under medical orders not to work until March of 1996, when Dr.Devera Elcock advised him that he could return to work with a 30-pound liftingrestriction. Allen did not contact Interior for work following his consultation with Dr.Elcock. On May 13, 1996, Dr. Russell Cantrell released Allen to perform regular workduties without any restrictions. Allen disagreed with Dr. Cantrell’s assessment butnonetheless contacted Interior about returning to work. Interior informed Allen that ithad no carpentry work available at that time. Allen contacted Interior on four or fivesubsequent occasions but each time was told that Interior did not presently need hisservices. Allen ceased contacting Interior during the first week of July of 1996. Threeweeks later, Allen was examined by yet another physician, who placed him on apermanent lifting restriction of 30 pounds. After exhausting his administrative remedies, Allen initiated the present actionin federal district court, alleging, among other things,
[FOOTNOTE 2] that Interior refused to employhim from December of 1995 through July of 1996 because he was disabled or wasperceived to be disabled, thus violating the ADA. Interior moved for summaryjudgment and later also moved to strike from the summary judgment record theaffidavit of vocational expert Kaver, which Allen had included in its memorandumopposing summary judgment. The district court struck Kaver’s affidavit as untimelyand entered summary judgment in favor of Interior. Allen appeals both rulings. II. We assess Allen’s claim of discrimination under the ADA pursuant to theburden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802(1973). See Young v. Warner-Jenkinson Co., 152 F.3d 1018, 1021 (8th Cir. 1998)(applying McDonnell Douglas analysis to claims that do not put forth any directevidence of discrimination). Under this framework, Allen must first establish a primafacie case of discrimination by showing that: (1) he is disabled within the meaning ofthe ADA; (2) he is qualified to perform the essential functions of his job, with orwithout accommodation; and (3) he suffered an adverse employment action undercircumstances which give rise to an inference of unlawful discrimination. See id. at1021-22 (8th Cir. 1998). If this showing is made, a rebuttable presumption ofdiscrimination emerges and Interior must articulate a legitimate, non-discriminatoryreason for any adverse employment action taken against Allen. See Kiel v. SelectArtificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999) (en banc). If Interior profferssuch a reason, Allen must demonstrate that this non-discriminatory reason is merely a pretext for intentional discrimination. See id. In granting summary judgment, the district court found that Allen failed topresent a prima facie case of discrimination because he did not establish an inferenceof intentional discrimination, as is required by the third element. The court also foundthat, even if Allen had set forth a prima facie case, Interior’s proffered non-discriminatoryreason for not employing Allen had not been shown to be pretextual.
[FOOTNOTE 3] We review this ruling de novo, applying the same summary judgment standard as thedistrict court. See Henerey v. City of St. Charles, 200 F.3d 1128, 1131 (8th Cir. 1999).Summary judgment is proper where the evidence, when viewed in the light mostfavorable to the nonmoving party, indicates that no genuine issue of material fact existsand that the moving party is entitled to judgment as a matter of law. See id.; Fed. R.Civ. P. 56(c). A. Prima Facie Case We consider first whether Allen has set forth a prima facie case ofdiscrimination. The parties argue at length whether Allen is disabled under the ADA.We need not resolve this issue, however, because we, like district court, conclude thatAllen failed to show that Interior’s failure to employ him from December of 1995 toJuly of 1996 gives rise to an inference of intentional discrimination. See Weber v..-5-American Express Co., 994 F.2d 513, 515-16 (8th Cir. 1993) (plaintiff must establishfactual dispute as to each element of prima facie case to avoid summary judgment).An inference of discrimination arises where there is some evidence of a causalconnection between a plaintiff’s disability and the adverse employment action takenagainst the plaintiff. See Greer v. Emerson Elec. Co., 185 F.3d 917, 922 (8th Cir.1999). The evidence most often used to establish this connection is that of disparatetreatment, whereby a plaintiff shows that he was “treated less favorably than similarlysituated employees who are not in plaintiff’s protected class.” See Wallin v. Minn.Dep’t of Corrections, 153 F.3d 681, 687 (8th Cir. 1998) (quoting Johnson v. LegalServices of Ark., Inc., 813 F.2d 893, 896 (8th Cir. 1987)). However, evidence ofdisparate treatment is not the exclusive means by which a plaintiff may establish aninference of discrimination, see Young, 152 F.3d at 1022; any credible evidencetending to establish that an employer acted adversely to an individual “on account of”his disability will suffice. See Greer, 185 F.3d at 922. Allen first contends that he has presented sufficient evidence of disparatetreatment to support an inference of discrimination. He points to employment recordsof Interior that show that it hired 23 carpenters from December of 1995 through earlyJuly of 1996, the period during which he did not work. He claims that these recordsdemonstrate that Interior chose to employ other, presumably non-disabled, carpentersrather than employing him.We disagree that Interior’s employment records give rise to an inference ofdiscrimination. Allen’s argument appears to be premised on the assumption thatInterior had an affirmative duty to contact him whenever it had work available. Thereis no evidence in the record, however, to indicate that Interior had such a duty or eventhat it was Interior’s general practice to do so. In fact, the evidence suggests that theconverse was true both at Interior and within much of the construction industry–anindividual employed on an as-needed basis generally must initiate contact with acontractor in order to obtain employment.Furthermore, even if we assume that Allen was disabled and that a reasonableaccommodation of his disability was warranted, we cannot conclude that Interior hada duty to contact him about available work. Although the ADA imposes a duty uponemployers to reasonably accommodate the known limitations of their employees, see42 U.S.C. � 12112(b)(5)(A), an accommodation is reasonable only if it is related to theaccommodated individual’s disability. See Amir v. St. Louis Univ., 184 F.3d 1017,1029 (8th Cir. 1999). Here, a requirement that Interior contact Allen about availablework is not in any way related to Allen’s disability. Allen’s back injury did not hinderhis ability to telephone or otherwise communicate with Interior regarding employmentand thus did not give rise to a duty on Interior’s part to contact him about any availablework. Given the fact that Interior had no duty to contact Allen about available work,there is no evidence that Allen was treated less favorably than the 23 carpenters thatInterior hired from December of 1995 through July of 1996. As an initial matter, 16of the 23 carpenters were hired by Interior from December 5, 1995, to May 12, 1996,a time during which Allen never contacted Interior for employment. Because Interiorhad no reason to know that Allen was seeking work at that time, its failure to employhim does not give rise to an inference of discrimination.We likewise conclude that Interior’s hiring of the seven carpenters from May 13to July of 1996 does not support an inference of discrimination. Allen has presentedno evidence that these carpenters were hired on the days that he contacted Interior forwork. Without such evidence, we cannot say that Interior favored these carpentersover Allen by employing them instead of Allen. Moreover, from mid-May to July of1996, Interior believed that Allen was free to work without restrictions because it hadbeen so informed by Dr. Cantrell. Thus, even if Interior did choose other carpentersover Allen, no inference of discrimination arises because there is no evidence thatInterior made such a choice “on account of” Allen’s disability. See Greer, 185 F.3d922 (discharge of allegedly disabled plaintiff did not raise inference of discriminationwhere plaintiff’s physician recently informed employer that plaintiff was medicallyreleased to return to work). In addition to disparate impact, Allen argues that he has set forth sufficient otherevidence to support an inference of discrimination. Specifically, he contends thatInterior proffered inconsistent reasons for not employing him and that suchinconsistency gives rise to an inference of discrimination. Although evidence that anemployer proffered disparate reasons for adversely treating an employee may supportan inference of discrimination, see Young, 152 F.3d at 1022, Allen has failed to presentsuch evidence. First, all persons who testified regarding Interior’s failure to employAllen after December of 1995 stated that the reason for Allen’s unemployment was ageneral lack of carpentry work. In fact, Allen himself stated that this was the reasonInterior gave for not employing him each time he contacted it for work. Second, theevidence that Allen now points to as proof that Interior proffered a different reason fornot employing him–a pre-litigation letter from Interior to Allen–does not, in our view,establish that Interior advanced inconsistent explanations. This letter contains nostatement by Interior of its reason for not employing Allen from December of 1995through July of 1996; it states only that Allen initially stopped working in Novemberof 1995 because of a back injury. Thus, even viewing the evidence in the light mostfavorable to Allen, we are not persuaded that Interior proffered inconsistentexplanations for its actions.Accordingly, we conclude that although the threshold of proof necessary toestablish a prima facie case of discrimination is minimal, see Young, 152 F.3d at 1022,Allen has presented insufficient evidence to meet this threshold. The district court’sgrant of summary judgment upon this basis was therefore proper. B. Pretext Even assuming a prima facie case of discrimination, we believe that Allen hasfailed to present sufficient evidence that Interior’s proffered reason for not employingAllen–lack of carpentry work–was a pretext for discrimination. To establish a factissue on pretext, a plaintiff must present evidence that: (1) creates a factual dispute asto whether the employer’s proffered reasons for taking adverse employment action arepretextual; and (2) allows a reasonable jury to infer that the employer’s action wasmotivated by a discriminatory animus. See Young, 152 F.3d at 1023; Wilking v.County of Ramsey, 153 F.3d 869, 874 (8th Cir. 1998).Allen has not made such a showing. The only evidence he offers to underminethe veracity of Interior’s proffered reason for not employing him is Interior’s pre-litigationletter to him and Interior’s hiring of 23 carpenters from December of 1995through July of 1996. As noted above, however, the letter does not contain a statedreason for Interior’s failure to employ Allen during the relevant time period, andInterior’s hiring of other carpenters does not undermine Interior’s proffered reason inthe absence of evidence that they were hired in lieu of Allen. Moreover, the recordlacks any evidence that Interior’s failure to employ Allen was motivated by adiscriminatory animus towards his disability. Thus, we conclude that summaryjudgment was also warranted for want of evidence of pretext. III. Allen also challenges the district court’s decision to strike from the summaryjudgment record as untimely the affidavit of vocational expert Timothy Kaver.Although we doubt that the court abused its discretion in excluding Kaver’s affidavit,we need not resolve this issue because it is immaterial to our resolution of this case.Kaver’s testimony concerned only whether Allen was disabled under the ADA, and wehave already found that Allen’s ADA claim fails even assuming that he is disabled..The judgment is affirmed. :::FOOTNOTES:::
FN1 The Honorable Mary Ann L. Medler, United States Magistrate Judge for theEastern District of Missouri, to whom the case was submitted by consent of the partiesunder 28 U.S.C. � 636(c).
FN2 Allen also asserted claims under the Missouri Human Rights Act, Mo. Rev.Stat. �� 213.010-213.137, and the Missouri Workers’ Compensation Laws, Mo. Rev.Stat. � 287.780. These claims are not at issue in this appeal.
FN3 Allen contends that the district court was procedurally precluded from basingits summary judgment order on his failure to establish an inference of discriminationor pretext. He argues that Interior never raised these arguments in its summaryjudgment motion and thus did not give him a fair opportunity to respond to them. Wedisagree. Although Interior may have used fewer words to express these argumentsthan some others that it asserted, it plainly raised each of these arguments as a basis forits motion and properly referenced the parts of the record that it believed to establishthe absence of a genuine issue of material fact regarding these issues. See CelotexCorp. v. Catrett, 477 U.S. 317, 323 (1986). Allen thus had ample reason to be awareof and respond to these arguments. See Demerath Land Co. v. Sparr, 48 F.3d 353, 356 (8th Cir. 1995).
Allen v. Interior Construction Servs., Ltd. United States Court of Appeals for the Eighth Circuit No. 99-1878 Richard Allen, Appellant, v. Interior Construction Services, Ltd., a Missouri Corporation, Appellee. Appeal From: United States District Court for the Eastern District of Missouri Submitted: February 17, 2000 Filed: June 2, 2000 Before: WOLLMAN, Chief Judge, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges
