                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-2992
                                    ___________

Kenneth Summerville,                     *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the Eastern
                                         * District of Missouri.
Trans World Airlines, Inc.,              *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: April 13, 2000

                                   Filed: August 7, 2000
                                    ___________

Before WOLLMAN, Chief Judge, BEAM, Circuit Judge, and FRANK,1 District Judge.
                              ___________

BEAM, Circuit Judge.

       The district court entered judgment against Trans World Airlines (TWA) after
a jury returned a verdict for Kenneth Summerville on his claims of race and disability
discrimination. TWA appeals. We affirm judgment on the race claim without further
discussion, see 8th Cir. R. 47B, and we reverse judgment on the disability claim for the
reasons detailed below.



      1
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota, sitting by designation.
       For several years, Summerville worked for TWA as an employee-in-charge. In
that position, Summerville supervised and assisted the customer service agents who
work in the airport gate area. These customer service agents have several
responsibilities, including coordination of the boarding and deplaning of passengers.
During Summerville's employee-in-charge shifts, he would oversee four gates at a time.

       In 1994, Summerville was restricted to lifting no more than forty pounds due to
injuries sustained in a car accident. TWA accommodated Summerville's restriction and
assigned him to limited duty. Currently, Summerville is assigned to a desk-job as a
zone coordinator. In this position, Summerville oversees a large number of gates
(approximately fifteen) and works with employees-in-charge to ensure gates are
properly staffed with customer service agents.2

       A collective bargaining agreement exists between TWA and its customer service
agents, employees-in-charge, and zone coordinators. Under this agreement, employees
on limited duty are restricted from working overtime and holidays. TWA also has a
policy of restricting employees on limited duty from day-trading, which, in this context,
refers to trading days of work with other employees. Summerville disagreed with
TWA's decision to restrict him from working overtime and holidays, and from day-
trading, so he brought a grievance under the collective bargaining agreement.

       A System Board of Adjustment (System Board) was convened to arbitrate the
grievance. After presentation of evidence by the parties, the System Board denied
Summerville's grievance. In rendering its decision, the System Board made several
factual findings, two of which are important to resolution of this case. First, the System
Board determined that the collective bargaining agreement requires customer service


      2
        Zone coordinator positions are considered employee-in-charge positions.
However, to avoid confusion, when this opinion uses the term "employee-in-charge,"
it only refers to an employee-in-charge who oversees four gates at a time.

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agents and employees-in-charge to lift bags and wheelchair passengers. Second, the
System Board determined that on holiday, overtime, and day-trading shifts,
Summerville would not necessarily be able to work as a zone coordinator, but would
need to be available to work as a customer service agent or employee-in-charge.

       In addition to his grievance, Summerville also brought this action, claiming TWA
engaged in unlawful disability discrimination when it barred him from working
overtime and holidays, and from day-trading. To prove disability discrimination,
Summerville must show he can perform the essential functions of the job. See Benson
v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995). TWA contends
Summerville is barred by issue preclusion3 from challenging the two System Board
findings noted above, and that, with these findings, the district court should have
granted its motion for judgment as a matter of law because Summerville cannot perform
the essential functions of overtime, holiday, and day-trading employment.

       We agree with TWA that the System Board decision precludes Summerville
from arguing about the job requirements for holiday, overtime, and day-trading shifts.
We defer to the System Board's fact-finding because the System Board has exclusive
statutory authority to decide disputes, such as Summerville's, regarding the
interpretation and application of the collective bargaining agreement. See Bowe v.
Northwest Airlines, Inc., 974 F.2d 101, 103 (8th Cir. 1992). In addition, the traditional
elements of issue preclusion are present because these fact issues are identical in both
the System Board case and the present case; these fact issues were actually litigated
before the System Board; resolution of these fact issues was necessary and essential
to the judgment of the System Board; and the System Board's decision was a final,


      3
       Under the doctrine of issue preclusion, a party is barred from relitigating an
issue previously determined by a court of competent jurisdiction when the issue
previously determined was necessary to the outcome of the case. See 18 James Wm.
Moore et. al., Moore's Federal Practice ¶ 132.01 (3d ed. 1997).

                                          -3-
valid judgment. See Haley v. Retsinas, 138 F.3d 1245, 1248 (8th Cir. 1998) (listing
factors considered in application of issue preclusion). Thus, the System Board's
findings preclude Summerville from arguing that lifting is not required of customer
service agents and employees-in-charge, and that on overtime, holiday, and day-trading
shifts, Summerville is not required to be available to work as a customer service agent
or employee-in-charge.

       Having determined which facts Summerville is precluded from challenging, we
now turn to the question of whether TWA is entitled to judgment as a matter of law
because Summerville cannot perform an essential function of his overtime, holiday, and
day-trading employment. Essential functions are the fundamental duties of a job, not
activities at the margins. See 29 C.F.R. § 1630.2(n)(1). Essential functions are
established by looking at: the employer's judgment as to what functions are essential;
written job descriptions; the collective bargaining agreement; the amount of time spent
on the job performing the functions; the consequences of not requiring the employee
to perform the functions; and the work experience of employees in similar jobs. See
29 C.F.R. § 1630.2(n)(3). We review the district court's denial of TWA's motion on
the essential function issue de novo. See Douglas County Bank & Trust Co. v. United
Fin. Inc., 207 F.3d 473, 477 (8th Cir. 2000). In making our determination, we must
view the evidence presented at trial in the light most favorable to Summerville and
reverse only if the evidence was insufficient to support the jury verdict. See id.

       Summerville asserts judgment as a matter of law is inappropriate because he
presented evidence that customer service agents and employees-in-charge actually
performed little lifting of bags and wheelchair passengers, and, when these duties are
required, other TWA employees are regularly available to perform these tasks for him.
TWA counters that it views lifting wheelchair passengers and bags as an essential
function of the customer service agent and employee-in-charge positions; that
performing these duties is required by the collective bargaining agreement; and that on
overtime, holiday, and day-trading shifts, Summerville must not only be available as a

                                         -4-
zone coordinator, but must also be available to work as a customer service agent or as
an employee-in-charge.

       The arguments in this case closely parallel the arguments made in Moritz v.
Frontier Airlines, Inc., 147 F.3d 784 (8th Cir. 1998). In Moritz, we affirmed the district
court's grant of summary judgment to Frontier Airlines on a gate agent's disability claim
because the gate agent could not perform an essential function of her job—the boarding
and deplaning of elderly and disabled passengers. See id. at 785-88. In opposing
summary judgment, the gate agent argued that assisting these passengers was not an
essential function of her job because she only assisted passengers for a few minutes
each week and other employees were available to help perform this duty. See id. at
787. In contrast, Frontier Airlines viewed assistance of these passengers as an essential
function of the gate agent position, and its employees were expected to perform a wide
variety of duties, especially because Frontier Airlines was a start-up company with
limited staff. See id.

       Summerville's case is indistinguishable from Moritz. True, TWA generally may
not encounter the same limited staffing problems as a start-up airline. But, in the
situations at issue here, TWA does face similar short-staffing problems. In fact, TWA
negotiated for the provision in the collective bargaining agreement that prevents
employees on limited duty from working overtime and holidays because of the limited
staff TWA has available on these shifts. Thus, we hold, as a matter of law, lifting is
an essential function of Summerville's overtime, holiday, and day-trading employment.

       Finally, Summerville could still prevail if he could perform these essential
functions with a reasonable accommodation. See Benson, 62 F.3d at 1112.
Summerville contends he can be reasonably accommodated by being allowed to work
his zone coordinator job on overtime, holiday, and day-trading shifts. This argument
misses the point. As noted, during these shifts, Summerville must be available to work
customer service agent and employee-in-charge positions. Thus, we reject this

                                           -5-
contention, and TWA is entitled to judgment as a matter of law on Summerville's
disability discrimination claim.

     The district court judgment is affirmed in part and reversed in part, and we
remand the case for further proceedings consistent with this opinion.

      A true copy.

            Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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