                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                     Nos. 97-3567, 97-3620, 97-4071, 97-4197
                                  ___________

Winifred Browning,                        *
                                          *
      Appellee/Cross-Appellant,           *
                                          *
      v.                                  *   Appeals from the United States
                                          *   District Court for the Eastern
Liberty Mutual Insurance Company,         *   District of Arkansas.
                                          *
      Appellant/Cross-Appellee.           *
                                          *
                                          *
                                          *
Equal Employment Opportunity              *
Commission,                               *
                                          *
      Amicus Curiae.                      *

                                   ___________

                             Submitted: December 16, 1998

                                  Filed: June 2, 1999
                                   ___________

Before BEAM, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

     Winifred Browning was a long-term employee of Liberty Mutual. She
underwent surgery to treat cubital tunnel syndrome and returned to work part time. Her
employment was soon terminated and she commenced this action based on the
Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).
After a trial, the jury found for Browning on the ADA claim. Liberty Mutual appeals.
Browning cross-appeals the district court's denial of her motion for judgment as a
matter of law on the FMLA claim. Because we find that Browning failed to establish
that she was a qualified individual with a disability for purposes of the ADA, we affirm
in part and reverse in part.

I.    BACKGROUND

       Browning began working at Liberty Mutual in 1985 as a data entry clerk. She
performed well and was given several promotions and awards. She eventually attained
the position of Claims Representative II. This position involved working with another
representative as a two-person team to manage a certain class of claims. This entailed
heavy phone contact, computer keyboard work, and manual note taking. When she
received or placed a call relating to a claim, the computer needed to be searched to
bring up information pertaining to that claim, client, or policy. Information taken from
that call was then entered into the computer. If the amount of information was too
great, or if she was otherwise unable to enter it all into the computer simultaneously,
she would take handwritten notes and enter the information into the computer as soon
after the call as possible. Accurate and up-to-date information in the computer is
critical so that if someone else receives the next call regarding that claim, all current
information is available.

      The repetitive motion of her job injured the tendons in Browning's arm, and she
developed cubital tunnel syndrome in her right arm.1 Browning was placed on worker's


      1
       Cubital tunnel syndrome is the result of damage to, or compression of, the ulnar
nerve in the carpal tunnel at the elbow. See 5 Attorneys Medical Advisor, § 67:19
(Lee R. Russ, et al. eds.).

                                          -2-
compensation leave, and Dr. Hixon performed a cubital tunnel release on April 26
1995. Dr. Hixon allowed Browning to return to work beginning May 30 for four hours
per day for two weeks, then six hours per day for two weeks, and eventually to full-
time work by the end of June. In addition, she was provided with a telephone headset
and a dictaphone to record the information from her calls for later entry into the
computer by someone else. Dr. Hixon provided a work release to Browning that
limited her to no use of her right arm. However, the memo Dr. Hixon sent to Liberty
Mutual stated "minimal use of right arm."

        Upon her return to work on May 30, Browning was told that she would be
working on property claims rather than injury claims, and that she would receive all her
assignments from her supervisor, rather than work with her partner. She was assigned
a markedly reduced number of claims and told that all her work would be reviewed on
a daily basis. The next day when asked what she was doing, Browning commented that
"I'm bored silly and I'm not doing anything." During the resulting conversation with
Mr. Hedrick, the claims manager, he leaned over his desk and yelled at Browning "So
what are you doing besides nothing? I didn't hire you for four hours a day for you to
sit there and do nothing." In the same conversation, Hedrick realized the discrepancy
between the release Dr. Hixon gave to Browning and the memo Dr. Hixon gave to
Liberty Mutual concerning the restriction on the use of her right arm. Browning was
told to stay home until the discrepancy could be resolved. She did not work the next
day, June 1, while Liberty Mutual sought clarification from Dr. Hixon's office. On June
2, Browning reported to work and spent the day primarily filling out a multi-page
survey. That was the last day Browning worked at Liberty Mutual.

      Browning experienced pain and numbness in her arm over the weekend. On
June 5, while she was being driven to work by her sister, Browning's arm became very
painful and numb, such that she could not work. Browning became emotional and
began to cry. Browning did not report for work, and this condition continued
throughout the week. On Thursday, June 8, Browning had an appointment with Dr.

                                          -3-
Hixon. Browning testified, "I told her I needed more time. I told her I couldn't do it
like it was right now."

       Liberty Mutual has a call-in policy whereby employees must call and speak to
their supervisors if they are going to miss work. Since Browning did not have a phone
in her home, she would call from her sister's house or have her sister call for her. On
Monday, June 5, Browning's sister called her supervisor to explain that Browning's arm
had gone numb, she had "broken down," and that she would not be in that day. On
June 6 and 7, Browning attempted to call in, but was placed on hold, or was otherwise
unable to contact her supervisor or her manager, Hedrick. When Browning failed to
report on the 6, Hedrick spoke with Dr. Hixon's nurse to see if the doctor had
withdrawn the work release. The nurse reported that Browning had called the doctor
the day before, but the doctor did not change any of the restrictions. Browning's
supervisor contacted Dr. Hixon again on June 8, after Browning's scheduled
appointment. Dr. Hixon's office told her that Browning's restrictions had not changed,
and that Browning had stated to them that she quit her job at Liberty Mutual.

       Liberty Mutual issued a termination notice on June 9, citing job abandonment.
At trial, Browning introduced evidence which indicated that the different treatment
upon her return, and her termination, were due to her cubital tunnel injury and the
resulting lack of productivity.

      Browning tried unsuccessfully to look for work, then enrolled in college in
August 1995. In January 1996, Dr. Hixon determined that Browning had reached her
maximum level of recovery and assigned a ten percent loss of use to her right arm. In
August 1996, a Functional Capacity Exam was performed on Browning which
determined that her ability to lift was limited to ten pounds with her right hand and a
twenty-pound limit over all. This limitation, as well as varying degrees of continued
pain and sensitivity were determined to be permanent.


                                         -4-
       After trial, a jury found for Browning on her ADA claim and awarded her
damages. The jury found for Liberty Mutual on the FMLA claim. Both sides moved
for judgment as a matter of law, and both were denied. Liberty Mutual appeals the
denial of its motion for judgment as a matter of law on the ADA claim, and Browning
cross-appeals on the FMLA claim.

II.   DISCUSSION

      A.     The ADA Claim

      We review the denial of a motion for judgment as a matter of law de novo using
the same standard as the district court. See Cox v. Dubuque Bank & Trust Co., 163
F.3d 492, 495-96 (8th Cir. 1998). We review questions of fact only to determine
whether the verdict is supported by substantial evidence, and we view the evidence in
the light most favorable to sustaining the verdict. See id. In order for a plaintiff to
recover on an ADA claim, she must establish that, at the time of the adverse
employment action: (1) she was a qualified individual; (2) she was disabled within the
meaning of the ADA; and (3) she was terminated because of her disability. See, e.g.,
Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995).

       Both parties spent great time and effort arguing over whether Browning's
impairment was a disability under the ADA, and whether she was terminated because
of her disability. We need not reach these issues because we find that Browning failed
to establish that she was a qualified individual under the ADA at the time of her
termination. Under the ADA, a qualified individual is an individual who, "with or
without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds." 42 U.S.C. § 12111(8). The
determination of whether an individual is qualified for purposes of the ADA is a two-
step process, and should be made as of the time of the employment decision. See 29
C.F.R § 1630.2(m) App. The first inquiry is to determine if the individual possesses

                                         -5-
the requisite skills, education, certification or experience necessary for the job. See id.
This is easily established by the fact that Browning previously held the position and
performed well. The second inquiry is to determine whether the individual can, despite
her impairments, perform the essential functions of the job either with or without
reasonable accommodation. See id. An ADA plaintiff may not rely on past
performance alone to establish that she is a qualified individual when the record clearly
reflects diminished or deteriorated abilities. See Mole v. Buckhorn Rubber Prods.,
Inc., 165 F.3d 1212, 1217 (8th Cir. 1999). The job for which Browning must be
qualified at the time of her discharge is not the temporary part-time position which she
tried and failed to return to, but rather the job she held prior to her surgery. See
Bowers v. Bethany Med. Ctr., 959 F. Supp. 1385, 1390 (D. Kan. 1997). Thus
Browning had the burden to prove that, with or without reasonable accommodation, she
could perform the essential functions of her job as it existed before her surgery.
However, the record reflects virtually nothing to indicate that, at the time Browning
was fired, she could perform the essential functions of her job with or without
accommodation.

        Prior to her surgery, Browning's job entailed managing hundreds of claims. This
involved nearly constant telephone and data entry keyboard activities, as well as
manual note taking for entry into the computer immediately after the phone call. This
was a full-time position. Indeed, Browning often worked through her breaks just to
keep up with the work load. At the time of the alleged discriminatory termination,
Browning's doctor had released her to work only four hours per day and with such
restrictions that she could manage but a mere fraction of the claims she was responsible
for prior to her surgery, and could do no data entry. Browning herself contends that,
at the time, she was not sufficiently recovered to work even the reduced hours with the
changes Liberty Mutual had made to accommodate her recovery. Browning testified
about meeting with her doctor on June 8, "I told her I needed more time. I told her I
couldn't do it like it was right now." This is supported by the fact that Browning was
unable to report for work the entire week of June 5. Browning offers no evidence, and

                                           -6-
does not even attempt to claim, that at the time of her termination, she could have
performed the essential functions of her job with or without accommodation.2

        Carol Bryant, Browning's former workmate testified for Browning that
Browning's job could not have been performed using the dictaphone as an
accommodation. Further, it is axiomatic that in order for Browning to show that she
could perform the essential functions of her job, she must show that she is at least able
to show up for work. See, e.g., Moore v. Payless Shoe Source, Inc., 139 F.3d 1210,
1213 (8th Cir. 1998). Browning testified that she was unable to report to work the
entire week of June 5. Even if she could have reported to work, Browning was limited
to only four hours per day and she made no showing that the essential functions of her
full-time job could be performed in four hours. See Burnett v. Western Resources, Inc.,
929 F. Supp. 1349, 1356-57 (D. Kan. 1996) (plaintiff restricted to four hours per day
walking not qualified for full-time meter reader position).

        The ADA is broad in its scope, but it only protects individuals who can perform
their job. Browning was terminated while recovering from her injury, and prior to the
point in her recovery when she could once again perform the essential functions of her
job. The fact that she continued to heal, gain strength and use of her arm, once again
becoming a qualified individual who could perform the essential functions of the job,
does not obviate the fact that she was not a qualified individual at the time of her
termination, and thus not under the protective umbrella of the ADA.

     This result is dictated by the plain language of the statute, see 42 U.S.C. §
12111(8), and by logical policy considerations. Assuming that Browning is now a


      2
        Browning did testify that she felt she could have performed the essential
functions of her job at the end of June, when she was scheduled to be back to full- time,
if she had accommodations–though she did not suggest what accommodations may
have been needed.

                                          -7-
qualified individual with a disability under the ADA due to her injury, there is no
principled reason to accord her that status during her convalescence. Had her arm
healed completely, such that she developed no disability, the ADA would provide no
protection at all. See Heintzelman v. Runyon, 120 F.3d 143, 145 (8th Cir. 1997)
(inability to work while recovering from surgery is not a disability under the ADA).
See also 29 C.F.R. § 1630.2(j) App.3 Employers are not qualified to predict the degree
of success of an employee's recovery from an illness or injury. To afford Browning the
protections of the ADA during the early stages of her recuperation from surgery, based
on her eventual degree of future recovery, would be to burden Liberty Mutual with the
duty to see into the future. We do not believe that such was the intent of Congress in
passing the ADA.

       While this holding may seem at first blush to render a harsh result, we point out
that employees in Browning's situation may have protection from other sources under
the circumstances. The employment contract, worker's compensation laws, or the
FMLA may come into play to provide protection or recourse. The ADA, however,
does not protect employees simply because an injury may result in a disability in the
future. If, as Browning contends, Liberty Mutual fired her after years of service
because of an injury that eventually resulted in a disability, rather than allow her to
recover, it may be an injustice, but it is not prohibited by the ADA.

      B.     The FMLA Claim




      3
        This is not to say that a medical leave of absence cannot be a reasonable
accommodation under the appropriate circumstances. See Hudson v. MCI
Telecommunications Corp., 87 F.3d 1167, 1169 (10th Cir. 1996); 29 C.F.R. §
1630.2(o) App. However, the duty to accommodate does not arise unless the employee
will be presently qualified if afforded the accommodation.

                                          -8-
        At trial, Browning claimed that she was denied leave under the FMLA. The Act
provides for up to twelve weeks of unpaid leave to deal with a serious health condition.
See 29 U.S.C. §§ 2601 et seq. Having carefully reviewed the record and the
arguments submitted, we conclude the district court did not err in its denial of
Browning's motion for judgment as a matter of law on her FMLA claim. Under the
FMLA, the employer's duties are triggered when the employee provides enough
information to put the employer on notice that the employee may be in need of FMLA
leave. The employee need not specifically mention FMLA leave, but must state that
leave is needed, and the statement should be made within one or two business days.
See 29 C.F.R. § 825.303 Dr. Hixon released Browning to work under certain
restrictions. And Browning, in fact, started working with those restrictions. On
Monday, June 5, Browning's sister notified Liberty Mutual that Browning's arm had
gone numb and that she would not be in that day. Two subsequent calls to Dr. Hixon
later in the week confirmed to Liberty Mutual that the restrictions had not changed and
that Browning was still released to work. A reasonable jury could easily conclude,
based on the evidence presented, that Browning failed to give sufficient information to
Liberty Mutual such that Liberty Mutual would be on notice that her situation qualified
for FMLA leave. See Carter v. Ford Motor Co., 121 F.3d 1146, 1148 (8th Cir. 1997)
(notice to the employer must be both adequate and timely); Satterfield v. Wal-Mart
Stores, Inc., 135 F.3d 973, 980-81(5th Cir. 1998) (same), cert. denied, 119 S. Ct. 72
(1998).

III.   CONCLUSION

      Accordingly, we remand the case to the district court with instructions to grant
Liberty Mutual's motion for judgment as a matter of law on the ADA claim. The denial
of Browning's motion for judgment as a matter of law is affirmed.


       A true copy.


                                          -9-
Attest:

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




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