                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 00-1497
                                 ________________

Dennis J. Pickens,                         *
                                           *
             Appellant,                    *
                                           *
      v.                                   *       Appeal from the United States
                                           *       District Court for the
Soo Line Railroad Company, doing           *       Southern District of Iowa.
business as C.P. Rail Systems,             *
                                           *
             Appellee.                     *

                                 ________________

                                 Submitted: January 8, 2001
                                     Filed: August 30, 2001
                                 ________________

Before HANSEN and HEANEY, Circuit Judges, and WEBBER,1 District Judge.
                       ________________

HANSEN, Circuit Judge.

       Dennis Pickens appeals the district court's2 grant of judgment as a matter of law
in favor of his former employer, Soo Line Railroad (Soo Line), after a jury found in


      1
       The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri, sitting by designation.
      2
       The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
his favor in this employment discrimination case. Pickens contends Soo Line
terminated his employment in violation of the Americans with Disabilities Act
(ADA), 42 U.S.C. §§ 12101-12213 (1994), and the Iowa Civil Rights Act (ICRA),
Iowa Code §§ 216.1-216.20 (1999), after he suffered a back injury. Pickens further
asserts the district court erred by submitting only the ADA claim to the jury and by
excluding all evidence related to Pickens' prior Federal Employees Liability Act
(FELA) trial. We affirm.

                                           I.

        The Soo Line and its predecessors employed Pickens from 1973 until August
16, 1996, primarily as a railroad conductor. On October 14, 1992, Pickens was
injured when a train's braking system malfunctioned. He sustained a herniated disc
in his lower back. As a result of this injury and after an unsuccessful five-month trial
work period, Pickens was unable to continue working for three years. During this
extended period of not being able to work, Pickens received Railroad Retirement
Board disability benefits. Pickens returned to work in October 1995, but because of
medical restrictions limiting his work time to no more than an eight-hour day, he was
unable to resume his duties as a conductor. Soo Line offered Pickens a switchman's
position to accommodate his medical limitations. Pickens worked as a switchman for
three days before concluding the job was too strenuous and refusing to continue
working in the position. Because Pickens wished to return to his "road" position as
a conductor, he requested that his physician lift his medical restriction to allow for a
twelve-hour work day, four days per week--the schedule that the job required. Two
months after returning to his duties as a full-time conductor, Pickens found that
working four days per week was too strenuous, and he sought another medical
restriction. Pickens' physician refused to comply with his request. Consequently,




                                           2
Pickens regularly made himself unavailable for work by exercising his right to "lay
off" under the railroad's collective bargaining agreement.3

       After he chose to lay off in the spring of 1996, Soo Line required Pickens to
obtain a medical status report from his physician prior to returning to work. This was
the railroad's policy; however, it was the first time Soo Line had required Pickens to
procure a release. One of the questions included in the release asked Pickens'
physician whether he was able to return to full-time duty. Although his physician
determined Pickens to be incapable of full-time employment, Pickens requested that
his physician falsify his condition by answering affirmatively. His physician
acquiesced to Pickens' deception of the railroad.

       Pickens continued his cyclical pattern of routinely laying off, obtaining a
medical release, and returning to work when he chose. While waiting for clearance
to return to work after a layoff in August 1996, Pickens wrote a letter to Soo Line's
claims representative with copies sent to Soo Line's president and chief medical
officer, expressing his frustration. He wrote in part: "I had my medical restrictions
removed to get back to work before and I will do it again if this is required. I will
totally disregard safety and common sense if this is required." (District Ct. Order at
6.) Concerned both with the possibility that Pickens might act on his threat and that
Pickens had misrepresented the status of his health, Soo Line held a hearing pursuant
to the collective bargaining agreement and subsequently terminated him on August
16, 1996.

      Litigation between the parties began when Pickens sued Soo Line alleging
claims under FELA, stemming from his October 1992 back injury. In that litigation,

      3
       The railroad allocates conductors to job assignments based upon a list of
employees ranked by seniority. Under the collective bargaining agreement, each
employee may withdraw his name from the list or "lay off" if he chooses to use
vacation, sick leave, or personal time. (Trial Tr. at 290.)
                                          3
Pickens asserted his back injury forever precluded his return to work. At a trial held
in March 1996, the jury found in Pickens ' favor and awarded him $50,000 in past and
future pain and suffering, $65,188 in past earnings, $230,000 present value of lost
future earnings, and $20,000 in disability damages. After his August 16, 1996, firing,
Pickens filed the present suit, alleging that Soo Line had terminated him in violation
of the ADA and the ICRA. He also asserted several contract and estoppel claims.
Only the ADA issue was submitted to the jury, while the contract and estoppel claims
were resolved through a contemporaneous bench trial.

        Following the four-day jury trial, the jury found Soo Line’s conduct violated
the ADA and awarded Pickens $95,867.15 in past lost wages and benefits and
$525,000 in past mental pain and suffering. At a hearing the day following the
verdict, the district court reduced the past pain and suffering damages to $300,000 in
order to comply with the statutory damages cap contained within the ADA. Soo Line
then moved for judgment as a matter of law or alternatively for a new trial on all
issues. The district court granted Soo Line's Rule 50(b) motion, finding as a matter
of law that Pickens was not a person with a qualified disability and that at the time
Soo Line fired him, he was neither willing nor able to perform the essential functions
of his job, with or without accommodation. The district court further concluded that
the estoppel claims failed because Pickens did not prove that Soo Line changed its
position between the two trials to his detriment. Pickens now appeals.

                                          II.

       We review the district court's grant of judgment as a matter of law de novo.
See Otting v. J.C. Penney Co., 223 F.3d 704, 711 (8th Cir. 2000). "[A] court should
render judgment as a matter of law when a party has been fully heard on an issue and
there is no legally sufficient evidentiary basis for a reasonable jury to find for that
party on that issue." Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097,
2109 (2000) (internal quotations omitted). In making our determination, we, like the

                                          4
district court, will view all the facts in the light most favorable to the nonmoving
party and must refuse to make credibility determinations or weigh the evidence. Id.
at 2110; Phillips v. Union Pac. R.R., 216 F.3d 703, 706 (8th Cir. 2000).

        When there is no direct evidence of discrimination, discrimination claims are
analyzed under the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03 (1973). Thus, Pickens has the initial burden
of establishing a prima facie case of discrimination; if Soo Line offers a legitimate,
nondiscriminatory explanation for Pickens' discharge, then he must show that the
explanation is merely a pretext for discriminatory animus. See id. at 803-04; see also
Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 931-32 (8th Cir. 2000) (applying
burden-shifting analysis set forth in McDonnell Douglas and reversing the district
court's denial of a motion for judgment as a matter of law). Because this case was
fully tried on the merits, "[w]e need not review the adequacy of the evidence at each
stage of the McDonnell Douglas analysis; rather, our review concentrates on whether
the record supports the ultimate finding of discrimination." Cardenas v. AT & T,
Corp., Nos. 00-1915, 00-2353, 2001 WL 322156 (8th Cir. Apr. 4, 2001) (internal
quotations omitted).

       In order to make out a case of discriminatory discharge under the ADA,
Pickens must prove that (1) he is disabled within the meaning of the statute; (2) he
is a qualified individual; and (3) that he was terminated because of his disability. See
Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir.), cert. denied, 528 U.S.
818 (1999). A qualified individual is one who is able to perform, with or without
accommodation, "the essential functions of the employment position that such
individual holds or desires." 42 U.S.C. § 12111(8). Pickens asserts that he is
qualified to perform the essential functions of his job regardless of his excessive
absences given the nature of the railroad’s scheduling structure. Pickens contends
that because the railroad allows an employee to "lay off" of working any day of his
choosing, this procedure makes his use of the practice a nonissue. We disagree. This

                                           5
court has consistently held that "'regular and reliable attendance is a necessary
element of most jobs.'" Greer v. Emerson Elec. Co., 185 F.3d 917, 921 (8th Cir.
1999) (quoting Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445 (8th Cir.
1998)); see Moore v. Payless Shoe Source, Inc., 187 F.3d 845, 848 (8th Cir.), cert.
denied, 528 U.S. 1050 (1999). Even though the railroad's system of scheduling
appears quite flexible, the railroad's policy requires regular, reliable attendance, and
Pickens' conductor's job was full-time. Pickens' choice to lay off twenty-nine times
from October 1995 to August 1996 is excessive and eviscerates any regularity in his
attendance. "An employee who is unable to come to work on a regular basis [is]
unable to satisfy any of the functions of the job in question, much less the essential
ones." Moore, 187 F.3d at 848 (internal quotations omitted) (alteration in original).

        Pickens' case is similar to Buckles v. First Data Res., Inc., 176 F.3d 1098 (8th
Cir. 1999). In Buckles, a panel of this court reversed the district court's denial of
judgment as a matter of law and remanded for entry of judgment in favor of the
employer when an employee with acute sinusitis was chronically absent from his job.
Id. at 1102. The employee contended that he was qualified to perform his duties with
the accommodation of leaving work any time an air-borne irritant aggravated his
condition. Id. at 1101. Our court disagreed, reasoning that "[u]nfettered ability to
leave work at any time is certainly not a reasonable accommodation," and an
employer is not required by the ADA to provide an unlimited absentee policy. Id.
The ADA does cite a part-time or modified work schedule as a reasonable means of
accommodation, see 42 U.S.C. § 12111(9)(B), but we view Pickens' suggested
method--that he should be able to work only when he feels like working--as
unreasonable as a matter of law. Soo Line accommodated Pickens by assigning him
to do the switchman's job where he could work within his medical restrictions for two
days per week but be paid for a full five-day work week. This effort proved
unsuccessful when Pickens refused to perform as a switchman after only three days
on duty. Additionally, he had his physician falsify that he was able to perform full-
time work because he did not want to be limited to the part-time list of conductors.

                                           6
       Furthermore, as the district court noted, when Pickens applied for disability
benefits from the Railroad Retirement Board after Soo Line terminated him, he
asserted under penalty of perjury that, as of August 1996, he was completely unable
to work in the railroad industry because of his disability. Although Supreme Court
precedent mandates that Pickens' admission of a total inability to work is not wholly
inconsistent with inclusion under the ADA, this is true only if a reasonable juror
could conclude he could perform the essential elements of his job with or without a
reasonable accommodation. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,
807 (1999). Our review of the record convinces us that as a matter of law, no
reasonable juror could find Pickens to be a qualified individual because he was
unable to perform the essential duties of his job with or without a reasonable
accommodation.

       Moreover, even assuming Pickens established that he was qualified, Soo Line
offered a nondiscriminatory reason for Pickens' termination. See Reeves, 120 S. Ct.
at 2109 ("[A]n employer [is] entitled to judgment as a matter of law if the record
conclusively reveal[s] some other, nondiscriminatory reason for the employment
decision . . . ."). It is uncontested that Pickens admitted to sending a letter threatening
to have his medical restrictions removed, as he had done before, and disregard "safety
and common sense if this [was] required" in order to return to work with a more
favorable work schedule. (Trial Tr. at 220.) Soo Line maintains that it terminated
Pickens both as a result of this letter and for falsifying his medical status. Pickens
argues that this letter is "not at all threatening" and is tempered by the use of the
phrase "if required." (Appellant's Br. at 32-33.) Taking into account Pickens'
position as a conductor, which brings with it the responsibility of moving trains and
the possibility of catastrophic injury, certainly an express threat to disregard the
safety of others in order to be employable is a legitimate, nondiscriminatory reason
for discharging an employee. See, e.g., Clark v. Runyon, 218 F.3d 915, 919 (8th Cir.
2000) (finding actual violence and threats of violence nonpretextual reasons for
terminating an employee); Phillips, 216 F.3d at 706 (threatening a coworker with

                                            7
bodily harm was nondiscriminatory reason for suspension); Williams v. Widnall, 79
F.3d 1003, 1007 (10th Cir. 1996) (concluding employee was terminated not because
of disability, but because he "made threats against his supervisor and co-workers").
Furthermore, a careful review of the record supports the district court's conclusion
that the reasons provided by the railroad for his termination were nonpretextual.

      We conclude that Pickens failed to set forth sufficient evidence for a jury to
reasonably find that he was able to perform his railroad duties with or without
accommodation. Moreover, Soo Line presented conclusive, legally ample, and
nonpretextual reasons for terminating Pickens wholly unrelated to his impairment.
The district court's entry of judgment as a matter of law was correct.

       Pickens also asserts that the district court’s refusal to submit only the ADA
claim to the jury warrants reversal. The district court excluded the ICRA claim
stating Pickens' success or failure "stands on the federal disability claim." (Trial Tr.
at 338.) Soo Line's contention that the Iowa courts do not allow jury trials of ICRA
claims is correct. Smith v. ADM Feed Corp., 456 N.W.2d 378, 380 (Iowa 1990) (en
banc). "However, the right to a jury trial in federal court is a question of federal law,
even when the federal court is enforcing state-created rights and obligations . . . even
when a state statute or state constitution would preclude jury trial in state court."
Gipson v. KAS Snacktime Co., 83 F.3d 225, 230 (8th Cir. 1996). We disagree with
the district court's failure to submit the ICRA claim to the jury, but because we find
judgment as a matter of law was appropriate as to the ADA claim, this error is
harmless. See, e.g., Berg v. Norand Corp., 169 F.3d 1140, 1144 & n.5 (8th Cir. 1999)
(resolving ADA claim simultaneously disposes of state-law discrimination claim);
Vincent v. Four M Paper Corp., 589 N.W.2d 55, 59-60 (Iowa 1999) (recognizing
similarities between the ADA and ICRA and noting the incorporation of federal
definitions into the Iowa statute).




                                           8
       Pickens next contends that the district court erred by rejecting his judicial
estoppel claim. He argues that Soo Line's attorney at the FELA trial made statements
during his closing argument conveying Soo Line's willingness to accommodate him,
and therefore, Soo Line is judicially estopped from denying these statements at the
subsequent trial. "[J]udicial estoppel prohibits a party from taking inconsistent
positions in the same or related litigation"; the purpose of which "is to protect the
integrity of the judicial process." Hossaini v. W. Mo. Med. Ctr., 140 F.3d 1140,
1142-43 (8th Cir. 1998) (internal quotations omitted).

       During the FELA trial, Pickens claimed he was totally disabled because of his
back injury. Soo Line addressed Pickens' contention by stating it could accommodate
him with an alternative work assignment and schedule because his injuries were in
fact less serious than he contended. In comparison, at the later ADA trial, Soo Line
argued that regular attendance at work is an essential function of Pickens' full-time
conductor position and that repeated laying off for an old injury was not a viable
accommodation when his physician had certified him fit to perform full-time work
as a conductor. In the first instance, Soo Line believed it could accommodate
Pickens, and it tried to do so by offering him the switchman position. However,
subsequent to the FELA trial, it became evident that the only accommodation Pickens
was willing to accept was an unreasonable, self-created and self-dictated, work
schedule. Because Soo Line's positions are not inherently inconsistent, judicial
estoppel is inapplicable.

       Finally, Pickens challenges the district court's refusal to allow evidence
referencing the prior FELA trial. The court reviews the district court's evidentiary
rulings for an abuse of discretion. Allen v. Entergy Corp., 193 F.3d 1010, 1015 (8th
Cir. 1999). We cannot agree that Pickens was prejudiced by withholding this
evidence because the jury found in his favor without its admission. The district court
did allow Pickens to use some of the evidence from the prior trial for impeachment



                                          9
purposes, but it significantly limited the scope of this evidence. The district court's
limitation was not an abuse of discretion.

                                           III.

      Consequently, the judgment of the district court is affirmed.

HEANEY, Circuit Judge, dissenting.

       After a careful review of the record, I am convinced that this case was properly
submitted to the jury. The record reveals that many of the facts as recited by the
majority were contested at trial and, indeed, remain disputed on appeal. Given these
differing versions of the facts, as set out below, I do not believe that the district court
should have substituted its judgment in place of the jury's. I therefore respectfully
dissent.

      In evaluating the district court's decision on a judgment notwithstanding the
verdict, we must:

      1) consider the evidence in the light most favorable to [Pickens], who
      prevailed with the jury; 2) assume that all conflicts in the evidence were
      resolved by the jury in [Pickens'] favor; 3) assume as proved all facts
      which [Pickens'] evidence tends to prove; 4) give [Pickens] the benefit
      of all favorable inferences which may reasonably be drawn from the
      facts proved; and 5) affirm the denial of the motion if reasonable
      persons could differ as to the conclusions to be drawn from it.

Morgan v. Arkansas Gazette, 897 F.2d 945, 948 (8th Cir. 1990)(internal quotation
omitted). The majority, however, recites a version of the facts closely mirroring those
set forth in Soo Line's brief, rather than those facts that tend to prove Pickens' case.



                                            10
      If considered in the light most favorable to Pickens, the record reveals the
following facts. Pickens had worked as a railroad conductor for the Soo Line for over
20 years. During that period he never had any safety or disciplinary problems. In
1992, when a train's brakes malfunctioned, Pickens sustained a back injury.

       After the injury, Pickens was off work for three years. In October 1995, Soo
Line brought Pickens back as a switchman, ostensibly because that position would
be compatible with his medical restrictions limiting his lifting and working hours.
The switchman position, however, required heavy lifting, which caused Pickens pain
and would have exacerbated his disability. Pickens talked with his doctor regarding
a return to the conductor position, which was less physically strenuous than the
switchman position. Shortly thereafter, his doctor approved the change to the
conductor position, contingent upon Pickens' ability to tolerate back pain.

       Pickens then returned to work as a conductor, and he maintained a fairly
consistent work schedule of two to three days a week. When his back flared up, he
would "lay off" from the board, which meant that he was not available for call that
day. Conductors at the Soo Line do not typically work a regular schedule. Rather,
the “board” system is similar to the staffing at a temporary agency. Even if a
conductor is available for service and is marked up on the board, there may not be a
train available to run, in which event the conductor would be paid only a reduced rate.
If the employee decided to “lay off” by taking his or her name off the board, the
employee would not be called that day. A “lay off” could be charged as a sick day,
personal leave day, or could be taken as time without pay. Indeed, evidence at trial
established that Pickens had averaged only between three and four days of work per
week before his injury had occurred. Soo Line did not submit any evidence that
Pickens' flexible schedule after his injury created any expense or inconvenience to the
company, given the way in which the board system worked.




                                          11
      Pickens maintained this flexible schedule without incident for a number of
months. In March 1996, a trial was held on Pickens' FELA claim stemming from his
back injury. Soo Line's attorney argued to the jury that the damages for the injury
should be reduced because:

      [The b]ottom line is Mr. Pickens is still our employee. He's working.
      When this case is over, he'll still be working, he'll still be our employee.
      If he wants to work five days a week, he's got our okay to work five days
      a week. If he wants to work two days a week, he's got our okay to work
      two days a week.

(Appellant's Add.). Undoubtedly, this promise of accommodation had an influence
on the jury at the FELA trial. Believing that the railroad would work with Pickens
to keep him on the job, on a part-time basis if required, the jury would have been
influenced to award Pickens less money than if they had known that he would not be
granted any accommodations, and, indeed, be fired from his position.

        Following the FELA trial, the railroad stopped accommodating his injury.
When his back flared up on May 27 and Pickens called in to "lay off," Soo Line
suspended him for fourteen days and required Pickens to obtain a health status report
from his doctor. Further, at this point, his supervisor harassed Pickens by telling him
that "[i]f [he] couldn't work any more than two to three days a week that [he]
shouldn't have been allowed to return to work and that [he] should quit." (Tr. Vol. I
at 99). After Pickens' back flared up, and he called in to “lay off” on August 16,
1996, Soo Line again demanded medical documentation of his condition. For weeks
afterward Soo Line did not notify Pickens whether he had been approved to return to
duty.

      Frustrated at not hearing anything from Soo Line regarding his work status,
Pickens wrote the letter of September 6, 1996. The majority places a great deal of
emphasis on a portion of the letter, stating that the letter appeared threatening and

                                          12
was, therefore, a non-discriminatory reason for Pickens' termination. When
considered in its entirety, however, the letter is susceptible to differing
interpretations. Pickens was expressing anger and frustration, but opinions could
certainly differ as to whether the contents of the letter constituted a threat. Pickens
began the letter by inquiring about his status, stating that his understanding from the
FELA trial was that he could work part-time, as necessitated by his back injury. He
documented the harassment by his supervisor and expressed his confusion as to why
he was being prevented from working. The last part of a letter, where he mentions
the disregard of safety “if required” (Appellant's Add.) also could have a meaning
other than the one given to it by the majority. Pickens explained at the trial that he
meant that by requiring him to work when his back hurt, the Soo Line could be
putting his safety at risk. This interpretation fits with the protests present throughout
the rest of the letter. In any event, the letter was introduced into evidence at trial, and
the jury was free to draw its own conclusions about its meaning.

       There was also evidence that the reasons Soo Line provided for terminating
Pickens were pretextual. The first reason Soo Line gave for the termination of
Pickens was the letter, which has already been discussed, ante. The second reason
Soo Line gave was that Pickens had been laying off under false pretenses. At trial
there was no evidence that Pickens had ever falsified an injury or that he had been
malingering in any way. Rather, the Soo Line superintendent who investigated the
situation based his findings on the lack of any record in Pickens' file documenting an
injury (despite the Soo Line's payment of damages to Pickens for his back injury in
the FELA trial).

       The facts as I have set them out provide sufficient evidence for the jury to find
that Soo Line discriminated against Pickens because of his disability. The jury could
have found that Pickens was qualified to perform the essential functions of the job
with the accommodations Soo Line had provided prior to the FELA trial. Given the
“board” and the “layoff” system, the jury could have concluded that a flexible

                                            13
schedule was a reasonable accommodation, especially because Soo Line never
introduced any evidence that such a schedule would be a financial hardship. As
reasonable people could disagree with the facts and whether discrimination had taken
place, the case was properly submitted to the jury.

      A true copy.

            Attest:

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




                                        14
