                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 99-2018
                                  ___________

Wanda K. Taylor,                       *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Arkansas.
Nimock’s Oil Co., an Arkansas          *
corporation,                           *
                                       *
            Appellee.                  *
                                  ___________

                            Submitted: February 17, 2000

                                 Filed: June 2, 2000
                                  ___________

Before WOLLMAN, Chief Judge, BOWMAN, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                              ___________

WOLLMAN, Chief Judge.

       Wanda K. Taylor appeals from the district court’s1 grant of summary judgment
on her claim of employment discrimination under the Americans with Disabilities Act



      1
       The Honorable Elsijane Trimble Roy, United States District Judge for the
Eastern District of Arkansas.
(ADA), 42 U.S.C. §§ 12101-12213, in favor of her former employer, Nimock’s Oil Co.
(Nimock). We affirm.

                                           I.

       We recite the facts in the light most favorable to Taylor. From 1989 to 1996,
Taylor worked as cashier in one of Nimock’s convenience stores. By late 1995, she
also performed “head cashier work,” which essentially involved running the store, in
particular when the manager was absent. In November of 1995, Taylor suffered a heart
attack and was hospitalized. Nimock sent her a “get well” card in late 1995, signed by
management and employees. On December 18, 1995, Taylor’s doctor gave her a
release to return to work on January 3, 1996, with certain restrictions.

        On January 2 or 3, 1996, Taylor stopped in at the store to discuss the work
schedule with her supervisor, Brad Hudspeth. Although that store needed someone
who would be able run the store (i.e. act as head cashier), there were no regular cashier
positions available. Taylor, however, would not do head cashier work, explaining that
her doctor had said that she could “run the register only.” Hudspeth told her that there
were no positions available at that time that met that description. Hudspeth also later
contacted Taylor’s doctor’s office about the release note and was of the opinion that
what the nurse described as Taylor’s restrictions were not what Taylor had said they
were, although he did not immediately tell Taylor about this conversation. Hudspeth
suggested to Taylor that she return when she had a full release to return to work, and
he wrote for Taylor a note that she used to obtain unemployment benefits. Taylor
continued treatment for her heart disease, and she will likely always require medication
for it.

      In March of 1996, Taylor received a full release from her doctor to return to
work without restriction. At this point, no cashier or head cashier positions were
available. Hudspeth informed Taylor that he would offer her a cashier position when

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one became available but that she would have to accept a pay cut in her hourly wage.
From March to August of 1996, Taylor was not offered a position at the convenience
store despite Nimock’s hiring of several new cashiers during those months. In August
of 1996, Taylor contacted Hudspeth to determine her employment status because she
had heard that she had been fired. Hudspeth confirmed that she had been terminated.
Later that month, Taylor began work as a front end manager at Hays Food Center.

     In October of 1996, Taylor filed a discrimination charge with the Equal
Employment Opportunity Commission (EEOC). She received a right-to-sue letter in
May of 1997 and subsequently brought suit in federal district court, alleging that
Nimock had violated the ADA by terminating her employment and failing to
accommodate her.

      The district court granted summary judgment in favor of Nimock, finding that
Taylor had not established that she suffered from a disability within the meaning of the
ADA and thus could not establish a prima facie case. The court also found no evidence
to support Taylor’s contention that relevant employment decisions were motivated by
improper animus.

                                          II.

       We review the district court’s grant of summary judgment de novo. See Henerey
v. City of St. Charles, 200 F.3d 1128, 1131 (8th Cir. 1999). Summary judgment is
proper if the evidence, viewed in the light most favorable to the nonmoving party,
demonstrates that no genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law. See id.; Fed. R. Civ. P. 56(c).

      Taylor’s discrimination claims are analyzed under the familiar burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See
Floyd v. Missouri Dept. of Soc. Servs., 188 F.3d 932, 936 (8th Cir. 1999). Initially,

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Taylor must establish a prima facie case of discrimination. The burden then shifts to
the employer to articulate a legitimate, nondiscriminatory reason for its action, and if
it succeeds in meeting its burden of production, then the plaintiff must show that the
reason put forth is pretextual. At all times the burden of persuasion remains with the
plaintiff. See id.

       To establish a prima facie case of discrimination, Taylor must show (1) that she
had a disability within the meaning of the ADA, (2) that she was qualified to perform
the essential functions of her job, with or without reasonable accommodation, and (3)
that she suffered an adverse employment action because of her disability. See Kiel v.
Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999) (en banc).

       Under the ADA, disability is defined 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 impairment; or (C) being regarded as having such an impairment.” 42
U.S.C. § 12102(2). According to the regulations that guide the interpretation of the
ADA, an impairment is “substantially limiting” if it renders an individual unable to
perform a major life activity that the average person in the general population can
perform, or if it significantly restricts the condition, manner, or duration under which
an individual can perform such an activity compared to the general population. 29
C.F.R. § 1630.2(j)(1)(i)-(ii). Major life activities include caring for oneself, performing
manual tasks, walking, seeing, hearing, breathing, learning, and working, 29 C.F.R. §
1630.2(i), as well as sitting, standing, lifting, and reaching. See Fjellestad v. Pizza Hut
of America, Inc., 188 F.3d 944, 948 (8th Cir. 1999).

       Several factors are considered in determining whether a person is substantially
limited in a major life activity: (1) the nature and severity of the impairment; (2) its
duration or anticipated duration; and (3) its long-term impact. 29 C.F.R. §
1630.2(j)(2)(i)-(iii). Whether an individual is substantially limited in a major life
activity must take into account mitigating measures such as medication and assisting

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devices. See Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139,
2146 (1999). Heart disease is an impairment that, if it substantially limits a major life
activity, may constitute a disability. See Weber v. Strippit, Inc., 186 F.3d 907, 913 (8th
Cir. 1999), cert. denied, 120 S. Ct. 794 (2000).

       Taylor argues that she is substantially limited in the life activities of breathing,
walking, doing yard work, cleaning house, and having sex. Taylor also admitted,
however, that she can walk and has walked long distances, including approximately a
mile to work, and can perform the activities listed above, although she may have to
perform them in moderation. In Weber, we noted that the employee could not walk
long distances or climb stairs without becoming fatigued and was subject to certain
dietary restrictions, but held that “these moderate limitations on major life activities do
not suffice to constitute a ‘disability’ under the ADA.” See id. at 914. We conclude
that Taylor’s limitations in the above-listed areas are likewise moderate and thus do not
qualify as substantial limitations on a major life activity other than work.

       Taylor also contends that she is substantially limited in the major life activity of
working. To be so limited, she must be “significantly restricted in the ability to perform
either a class of jobs or a broad range of jobs in various classes as compared to the
average person having comparable training, skills and abilities.” 29 C.F.R. §
1630.2(j)(3)(i). Inability to perform one particular job does not constitute a substantial
limitation on working. See id.; Weber, 186 F.3d at 913.

       We note, first, that Taylor does not dispute that as of late March of 1996, she
could work without restriction, at least so long as she continued to take her medication.
Thus, after that time she cannot be considered to have a disability within the meaning
of the ADA as it pertains to the life activity of working. Indeed, Taylor has obtained
and retained full-time employment.




                                           -5-
        Second, during the time period of January to March of 1996, Taylor was limited
in the life activity of working only to the extent of her restrictions, which were that she
could work only 40 hours per week and lift no more than 10 pounds. Although
overtime hours may be the normal practice for many jobs, we conclude that Taylor’s
limitations on working were not substantially limiting within the meaning of the ADA.
See Berg v. Norand Corp., 169 F.3d 1140, 1145 (8th Cir. 1999) (“We find it hard to
say that being limited to a 40- to 50-hour work week substantially limits one’s ability
to work.”). Taylor’s restrictions were applicable to her only while she was recovering
and lasted only a few months, relevant factors under 29 C.F.R. § 1630.2(j)(2) that cut
against a finding of substantial limitation. Taylor has not shown that working 40 hours
a week and lifting no more than 10 pounds limits her employment opportunities in her
geographical area. Accordingly, we conclude that Taylor has presented no evidence
to create a genuine issue of material fact about whether she could perform a class of
jobs with her restrictions. See Berg, 169 F.3d at 1145; Aucutt v. Six Flags Over Mid-
America, Inc., 85 F.3d 1311, 1319 (8th Cir. 1996) (lifting restriction of 25 pounds not
sufficient to demonstrate plaintiff was unable to perform a class of jobs); Helfter v.
United Parcel Service, Inc., 115 F.3d 613, 617-18 (8th Cir. 1997) (inability to perform
sustained repetitive action with either hand and heavy lifting not enough to show issue
of fact about substantial limitation in life activity of work).

      Taylor has also failed to show that Nimock regarded her as having a disability
within the meaning of the ADA or that there was a record of her disability on the basis
of which Nimock acted. Taylor points to Nimock’s knowledge of her heart attack, the
“get well” card sent by Nimock, and the note that Hudspeth wrote in January of 1996
to enable Taylor to receive unemployment benefits, in which he stated that it would be
in Taylor’s best interest not to return to work with her current restrictions.

       The ADA regulation pertaining to whether Nimock regarded Taylor as disabled
requires that Taylor have an impairment that “does not substantially limit major life
activities but is treated by a covered entity as constituting such limitation.” 29 C.F.R.

                                           -6-
§ 1630.2(l)(1); see Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 598-99
(8th Cir. 1998). The evidence that Taylor cites in support of this proposition does not
demonstrate that Nimock considered Taylor to be disabled and unable to work. In
Cody, we found that an employee who was offered paid medical leave and required to
see a psychologist before returning to work was not regarded by her employer as
having a substantially limiting impairment. See Cody, 139 F.3d at 599. We conclude
that knowing that an employee may be having medical difficulties and expressing
concern, whether through an offer of medical leave or, as here, sending a “get well”
card, does not amount to treating an employee as if she has a permanent disability that
substantially limits her life activities.

       Having a record of a qualifying impairment means that an employee “has a
history of, or has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.” 29 C.F.R. § 1630.2(k). In order
to have a record of a disability, an employee’s “documentation must show” that she has
a history of or has been subject to misclassification as disabled. See Weber, 186 F.3d
at 915. We do not believe that Nimock’s mere knowledge of Taylor’s heart attack,
coupled with the sending of a get-well card and a note about her job duties, constitutes
sufficient documentation that Taylor had a history of disability or that Nimock
misclassified her as disabled within the meaning of the ADA. To the contrary, this
evidence supports the proposition that Nimock acknowledged that Taylor was suffering
medical problems but expected that she would return to work when she had sufficiently
healed. See, e.g., Gutridge v. Clure, 153 F.3d 898, 901-02 (8th Cir. 1998) (record of
impairment not established during period of recovery and treatment following a work
injury because this type of impairment is not a permanent disability), cert. denied, 526
U.S. 1113 (1999).

       Taylor has failed to establish a genuine issue of material fact on whether she has
a disability within the meaning of the ADA. Thus, she has failed to make a threshold
case of discrimination, and we need not address other parts of the test for a prima facie

                                          -7-
case. Similarly, we need not address Nimock’s contention that Taylor’s claim should
fail because it was untimely filed.

      The judgment is affirmed.

      A true copy.

            Attest:

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




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