                                   No. 95-3125



James C. Webb,                          *
                                        *
                       Appellant,       *
                                        *     Appeal from the United States
         v.                             *     District Court for the
                                        *     District of Minnesota.
Garelick Manufacturing Co.;             *
                                        *
                       Appellees.       *
                                        *
Saul Garelick, individually.            *



                          Submitted:    June 13, 1996

                          Filed:    August 29, 1996


Before BOWMAN    and     HEANEY,    Circuit     Judges,   and   BOGUE,*   District
     Judge.



HEANEY, Circuit Judge.


     James C. Webb appeals the district court's grant of summary judgment
in favor of his employer, Garelick Manufacturing Company ("Garelick").         The
district court held that Webb was not disabled within the meaning of the
Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, and that
Webb's affidavit opposing summary judgment was inadmissible to raise issues
of material fact.   We reverse and remand.




     *
      The Honorable Andrew W. Bogue, United States District Judge
for the District of South Dakota, sitting by designation.
                                           I.


        On appeal from a summary judgment, we review the record in the light
most favorable to the non-moving party.             Aucutt v. Six Flags Over Mid-
America, Inc., 85 F.3d 1311, 1315 (8th Cir. 1996).             Because discrimination
cases often turn on inferences rather than on direct evidence, we are
particularly deferential to the non-moving party alleging discrimination.
Crawford      v.   Runyon,   37     F.3d        1338,   1341     (8th   Cir.   1994).



        Webb had been employed by Garelick Manufacturing Co. for the vast
majority of his professional life.          He began work as an assistant office
manager with Garelick in January 1968.           In 1980, Webb was promoted to the
management position of Director of Purchasing.                  He remained at this
position until his termination in October 1992.          As Director of Purchasing,
Webb's responsibilities included supervision of the purchasing department,
upgrading the computer system, and production development.              All of Webb's
duties involved significant amounts of writing and typing.


        In 1980, Webb began to experience pain and cramping in his right hand
after writing for long periods of time.          He first sought medical attention
for this condition in 1982.       His symptoms escalated over the next several
years.    Starting in 1986, Webb gradually switched to writing with his left
hand.    He was using his left hand exclusively by August 1988.


        In March 1990, the condition in Webb's right hand was diagnosed as
focal dystonia, a untreatable, severe condition that is aggravated and
accelerated by writing and other repetitive, precision hand motions.
Between 1988 and 1992, Webb gradually developed similar symptoms in his
left hand.    By 1991, Webb was experiencing intense pain in either hand when
writing or typing.     Webb first informed Garelick of his condition at the
time of his




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initial difficulties and kept his employer updated as the condition
progressed.


        In April 1992, after consultation with his doctor, Webb began using
saved vacation time to reduce the number of days he worked.     Reducing his
hand motion had proven to be the only effective method to manage Webb's
pain.    Garelick informed Webb that a reduced work schedule was not a viable
long-term solution.   Webb then suggested to his supervisor that the company
provide Webb with a tape recorder and transcription services to eliminate
some of the writing involved in his job.        He also requested that the
company bring in an occupational therapist to evaluate his work space and
work procedures.   Garelick took no action in response to Webb's request and
Webb continued to use vacation time to reduce his work week until September
1992, when his doctor completely prohibited him from writing and limited
him to only small amounts of typing.   Webb informed his supervisor of these
additional restrictions, again expecting that his employer would arrange
some type of accommodation.     Instead, Webb was instructed to go home and
informed that his supervisor would contact him after he had devised a plan.
Garelick then sent Webb to a company physician who concurred with the
diagnoses of his treating physicians and recommended an occupational
therapist review Webb's work station for accommodation.      No professional
work-station review was ever made.


        On October 6, 1992, the company called Webb back to work.       That
morning, Garelick supplied Webb with a tape recorder for the first time.
Two hours later Garelick fired Webb, explaining that his dismissal was
based on his inability to perform the essential functions of his job.
Prior to 1991, when Webb's condition had progressed to both of his hands,
Webb had always received excellent performance evaluations.




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        Webb commenced this action under the ADA alleging that he was a
disabled person qualified to perform his job with reasonable accommodation
and that Garelick had fired him because of his disability.          Garelick moved
for summary judgment and the district court granted Garelick's motion.             On
appeal, Webb primarily challenges the district court's ruling that he was
not disabled because he was capable of performing other jobs.              He also
challenges the court's refusal to consider his opposing affidavit because
the court found that the affidavit contradicted Webb's previous deposition
testimony.


                                      II.


        A. Disability under the ADA


        A plaintiff seeking relief under the ADA must establish that (1) she
is disabled within the meaning of the Act; (2) she is qualified to perform
the essential functions of her job; and (3) that she was terminated because
of the disability.     42 U.S.C. § 12112(a).       The district court held that
Webb was not disabled, thus ending its inquiry at the first step of the
analysis.    The court based its decision on the fact that Webb's impairment
did not prevent him from working in other occupations in the general labor
pool.     It noted that Webb's impairment only precluded him from those
occupations involving handwriting and other repetitive hand motions.               We
are troubled by the court's characterization of the ADA's disability
standard.     In its sweeping holding, the district court suggests that a
plaintiff can never demonstrate disability as long as there is any other
job that she can perform.


         The purpose of the ADA is broad and remedial:        It is designed to
provide "a clear and comprehensive national mandate for the elimination of
discrimination    against   individuals     with   disabilities."    42   U.S.C.   §
12101(b)(1).    The Act defines disability, in relevant part, as "a physical
or mental impairment




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that substantially limits one or more of [a person's] major life activities
...."     42 U.S.C. § 12102(2)(A).      According to the Equal Employment
Opportunity Commission ("EEOC") regulations, work is a major life activity.
29 C.F.R. § 1630.2(i).    A person is substantially limited in the major life
activity of working if she is "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).


         Under this broad definition of substantial limitation, an ADA
plaintiff need not demonstrate that her impairment restricts her ability
to perform all jobs.     Rather, as the EEOC's interpretive guide to the Act
illustrates, an individual is disabled when her impairment merely prevents
performance of a certain class of jobs.     For example:

        [A]n individual who has a back condition that prevents
        the individual from performing any heavy labor job would
        be substantially limited in the major life activity of
        working because the individual's impairment eliminates
        his or her ability to perform a class of jobs.      This
        would be so even if the individual were able to perform
        jobs in another class, e.g., the class of semi-skilled
        jobs.

26 C.F.R. Pt. 1630.2(j)(ii).    Similarly, a person who has an allergy to a
substance found in most high-rise office buildings, but seldom found
elsewhere, is substantially limited in working because of her inability to
perform the broad range of jobs in various classes that are conducted in
high-rise office buildings.     26 C.F.R. Pt. 1630.2(j)(ii).   Our court has
applied this definition of substantial limitation in holding that an ADA
plaintiff was not disabled when he failed to establish restriction from
performing a class of jobs.        See Aucutt, 85 F.3d at 1319 (difficulty
performing obstacle course at a single work place not sufficient to show
security guard was substantially limited in working as a security guard
generally); Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th




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Cir. 1955) (plaintiff's impairments, which only appeared to prevent him
from performing a narrow range of meatpacking jobs, not considered a
substantial limitation).             Other circuits also follow this approach.              See
Gupton v. Commonwealth of Virginia, 14 F.3d 203, 205 (4th Cir.) (plaintiff
must demonstrate that smoke allergy foreclosed employment opportunities in
her field rather than in only one work place to demonstrate substantial
limitation in her ability to work), cert. denied, 115 S. Ct. 59 (1994);
Byrne v. Board of Educ., School of West Allis, 979 F.2d 560, 566 (7th Cir.
1992) (teacher with allergy to fungus found only in two schools could not
demonstrate substantial limitation in working because individual could
still teach in other schools).


       A person's expertise, background, and job expectations                   are relevant
factors in defining the class of jobs used to determine whether an
individual is disabled.          Jasany v. United States Postal Service 755 F.2d
1244, 1249 (6th Cir. 1985); see also 29 C.F.R. § 1630.2(j)(3)(ii) (listing
factors    to   be    considered       in   determining      whether    an    individual     is
substantially      limited      in    working,   including     the    job    from   which   the
individual has been disqualified and the skills used in that job).                          For
example, in Maulding v. Sullivan, 961 F.2d 694, 698 (8th Cir. 1992), cert.
denied, 507 U.S. 910 (1993),             we held that a chemist who had spent much
more of her career doing theoretical research than laboratory research was
not substantially limited in working because of an allergy to chemicals
used in a laboratory.            Despite her limitation, she was still able to
perform the work in her area of expertise.                Similarly, in deciding whether
an    individual     with   a   masters     degree   in    business    administration       was
substantially limited by an impairment that precluded her from performing
an administrative job, the Second Circuit considered the class of jobs
requiring such expertise.            Heilweil v. Mount Sinai Hospital, 32 F.3d 718,
724 (2d Cir. 1994), cert. denied, 115 S. Ct. 1095 (1995) (determining that
employee's inability to serve as an administrator at one site that
aggravated her asthma did not constitute a substantial limitation, because
she




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would not be limited from the class of administrative jobs in other
locations).


     Fundamentally, the ADA is concerned with preventing substantial
personal hardship in the form of significant reduction in a person's real
work opportunities.   A court must ask "whether the particular impairment
constitutes for the particular person a significant barrier to employment."
Forrisi v. Bowen 794 F.2d 931, 933 (4th Cir. 1986); see also, Homeyer v.
Stanley Tulchin Assocs, Inc., No. 95-3977, 1996 WL 428030, at *3, (7th Cir.
1996) (district court failed to "undertake a meaningful analysis" of the
individual's particular situation).    In this case, the district court did
not conduct the necessary, individualized assessment of the extent to which
Webb's hand condition limited his meaningful opportunities for employment.
The court should have determined what class of jobs was relevant for its
disability analysis with respect to Webb, taking into consideration the job
from which Webb was fired and the specialized skills that he developed in
his twenty-four years with Garelick.   The court also should have considered
whether Webb was significantly restricted in his ability to perform that
class of jobs as compared to the average person with his supervision and
production development skills.   If the court determines that Webb has been
so restricted, then Webb is disabled within the meaning of the ADA.


     We therefore reverse the district court's grant of summary judgment
and remand to the district court to make a determination of disability
consistent with this opinion.    If the court finds that Webb is disabled,
then it must decide whether Webb is entitled to relief under the ADA, by
considering whether Webb is qualified to perform the essential functions
of his job with accommodation, and whether he was terminated because of his
disability.




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      B. Webb's Affidavit


      With respect to Webb's affidavit, we hold that the district court
should consider the affidavit for the purposes of Garelick's summary
judgment motion.     Under Rule 56(c) of the Federal Rules of Civil Procedure,
a court is required to consider an otherwise admissible affidavit, unless
that affidavit contradicts deposition testimony.           See Camfield Tires, Inc.
v.   Michelin   Tire   Corporation    719   F.2d    1361   (1983)    (affidavit     that
contradicts earlier deposition testimony without explanation may not be
used to create material issue of fact).            We have reviewed the record and
find that the affidavit submitted by Webb does not contradict the testimony
he gave in his deposition.       The vast majority of Webb's affidavit simply
restates information already contained in his deposition testimony or
elsewhere in the record.      The few remaining statements either elaborate on
information that Webb already conveyed or provide new information that does
not contradict any of Webb's previous statements.


                                        III.


      Accordingly,     we   reverse   the   district   court's      grant   of   summary
judgment to Garelick and remand for proceedings consistent with this
opinion.


      A true copy.


           Attest:


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




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