                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3083
                                   ___________

Michael Genthe,                         *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Quebecor World Lincoln,                 *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: April 13, 2004
                                Filed: September 7, 2004
                                 ___________

Before WOLLMAN, HANSEN, and BYE, Circuit Judges.
                         ___________

WOLLMAN, Circuit Judge.

       Michael Genthe appeals from the district court’s1 entry of judgment as a matter
of law on two claims that Genthe’s employer, Quebecor World Lincoln (Quebecor),
unlawfully failed to promote him because it regarded him as having an impairment
that substantially limited a major life activity, in violation of the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12117 et seq. We affirm.




      1
      The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
       Since the age of one, Genthe has suffered from Marfan’s Syndrome, which is
a connective tissue disorder that can manifest itself in various ways. In Genthe’s
case, he has been left with some curvature of the spine, subluxation of the lenses of
the eyes, damage to his aorta, long extremities, and a sunken chest. Notwithstanding
the effects of the syndrome, Genthe had worked, with some accommodation regarding
limitations on lifting and on overtime hours, for the seven years prior to the initiation
of this lawsuit as a Journeyman II Apprentice (J-2) in Quebecor’s bindery factory.2
J-2s were commonly called upon to assist with the operation of the various machines
in the bindery factory; to lift and move heavy bundles alone or with other employees;
to see accurately and to possess good near, distance, and color vision; and to
frequently work overtime.

       Genthe applied for promotions to the Journeyman I Apprentice (J-1) position
and to the Forklift Operator position, stating that he wanted these promotions because
they were less physically demanding and required less overtime. After Quebecor
denied his requests for promotion, Genthe brought suit, alleging nine claims of
discrimination under the ADA. The jury found in favor of Quebecor on all but two
of the claims. On claim four, the jury found that Quebecor had regarded Genthe’s
impairments as substantially limiting him in one or more of his major life activities;
that Quebecor’s perception of these impairments was a motivating factor in its
decision not to transfer Genthe to the Forklift Operator position; but that nonetheless
Quebecor would not have transferred him because he was not the most qualified
applicant for that position. On claim five, the jury found that Quebecor had refused
to transfer Genthe to the Journeyman I Apprentice position because of its similar



      2
       Prior to Quebecor’s purchase of the factory from American Signature, the J-2
position was divided into three different roles: J-2, “heavy” and “light.” As the name
implies, a “heavy” was required to do most of the heavy lifting in the factory. Genthe
was successfully employed as a “heavy” until the positions were merged into the J-2
role.

                                          -2-
perceptions and motivation and awarded Genthe damages in the amount of $3,302.72.
The district court then granted Quebecor’s motion for judgment as a matter of law.

       We review de novo the district court’s grant of judgment as a matter of law.
Arabian Agriculture Services Co. v. Chief Industries, Inc., 309 F.3d 479, 482 (8th
Cir. 2002). Judgment as a matter of law is appropriate where the evidence adduced
at trial is entirely insufficient to support the verdict. Id. In making this
determination, we consider all of the evidence in the record without weighing
credibility, and we resolve conflicts and make all reasonable inferences in favor of
the non-moving party. Id. An inference is reasonable, however, when it “may be
drawn from the evidence without resort to speculation.” Id. (quoting Fought v. Hayes
Wheels International, Inc., 101 F.3d 1275, 1277 (8th Cir. 1996)) (internal quotation
marks omitted). Credence should also be given to evidence favoring the moving
party where that evidence is uncontradicted and unimpeached and comes from
disinterested witnesses. Kinserlow v. CMI Corp., 217 F.3d 1021, 1025-26 (8th Cir.
2000) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151
(2000)).

       The ADA prohibits discrimination against “a qualified individual with a
disability because of the disability ... in regard to hiring, advancement or discharge.”
42 U.S.C. 12112(a); Shipley v. City of University City, 195 F.3d 1020 (8th Cir.
1999). A “qualified individual” is a person who, “with or without reasonable
accommodation can perform the essential functions” of the position he or she seeks.
42 U.S.C. § 12111(8). A disability is “a physical or mental impairment that
substantially limits one or more of the major life activities of such individual . . . .”
42 U.S.C. § 12102(2). Moreover, an individual is considered disabled under the
ADA if he or she has a record of such an impairment or is “regarded as having” such
an impairment. Id. “[M]ajor life activity means ‘functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and
working.’” Krauel v. Iowa Methodist Medical Center, 95 F.3d 674, 677 (8th Cir.

                                          -3-
1996) (quoting the non-exclusive enumeration of major life activities from 29 C.F.R.
§ 1630.2(i)).

       To survive Quebecor’s post-trial motion, Genthe must have introduced
evidence from which the jury could determine 1) that he was regarded as having an
impairment that limited a major life activity, 2) that he was a qualified individual, and
3) that he was not promoted because he was regarded as having an impairment that
limited a major life activity. Longen v. Waterous Co., 347 F.3d 685, 688 (8th Cir.
2003). The district court held that there was insufficient evidence to support the
jury’s finding that he was regarded as having such an impairment or that he was
passed over for promotion because of that perception.

       Genthe argues that the district court improperly required him to introduce
direct evidence supporting those two propositions, which, he maintains, is not
necessary in the wake of the Supreme Court’s decision in Desert Palace, Inc. v. Costa,
539 U.S. 90, 101 (2003) (holding that in order to receive a mixed motive instruction
under Title VII, “a plaintiff need only produce sufficient evidence for a reasonable
jury to conclude, by a preponderance of the evidence, that [his or her protected status]
was a motivating factor for any employment practice”). We need not reach this
question, however, because we conclude that there was no evidence, direct or
circumstantial, indicating that Genthe was regarded as having a limiting impairment
or that he was passed over for promotion because of such an impairment. Cf.
Trammel v. Simmons First Bank of Searcy, 345 F.3d 611, 615 (8th Cir. 2003)
(holding that claim could not proceed because of the lack of direct or circumstantial
evidence without deciding effect of Desert Palace).

      With respect to Genthe’s request for promotion to Forklift Operator, the
evidence indicated that Dennis Hruza had sole discretion to decide whether to
promote Kathy Sieck, a co-worker, or Genthe to the position. He interviewed both
Sieck and Genthe and testified that he selected Sieck because she had experience in

                                          -4-
material handling and Genthe did not. There is evidence that Hruza was told of some
of Genthe’s health problems on two occasions. First, Hruza testified that during his
interview with Genthe, Genthe mentioned that he had a heart condition and believed
that working as a Forklift Operator would be less physically strenuous than his
position as a J-2. When asked whether Genthe’s heart condition was a factor in his
decision-making process, Hruza said no. Second, one of Genthe’s evaluations,
prepared by Connie Melichar, a co-worker referred to her impression that Genthe was
legally blind. There is no evidence that Hruza saw or considered this comment in his
decision-making process. In fact, he stated that he ignored the evaluation. In the
light most favorable to Genthe, then, the evidence shows that Hruza regarded him as
having some health conditions that impaired him and that Hruza decided not to
promote him. Genthe argues that this coincidence is sufficient circumstantial
evidence of both a perception that his impairment was substantially limiting of a
major life activity and of a causal connection between that perception and the adverse
employment action. We disagree, for no reasonable juror could infer from this
evidence, without resorting to speculation, that the denial of Genthe’s request for
promotion was in any way caused by a perception that he had an impairment which
limited a major life activity. Our cases require both evidence of protected status and
of a causal relationship between that status and the adverse employment decision.
Accordingly, we conclude that the district court did not err in entering judgment as
a matter of law.

      As for Genthe’s request to be promoted to the Journeyman position, the
analysis is the same, although there were more people involved in the decision-
making process regarding that position. Rather than a single person exercising sole
authority to promote, a committee (composed of half labor representatives and half
company officials) made the determination to pass Genthe over for promotion.
Again, the decision makers knew of certain aspects of Genthe’s physical condition,
including that he had a heart problem, that he at times had lifting and overtime
accommodations, and that his vision had been questioned by Ms. Melichar. In the

                                         -5-
light most favorable to Genthe, then, the committee members regarded him as having
some impairments at the time they decided not to promote him. This was the sum
total of the evidence upon which the jury could base its verdict. We conclude that
this evidence is insufficient to support, without resort to speculation, the inferences
that Genthe was regarded as having an impairment which limited a major life activity
or that he was passed over for promotion because of that perception.

        Finally, Genthe argues that the district court committed plain error in its jury
charge regarding Genthe’s allegation that he was discriminated against because he
had a record of an impairment that substantially limited a major life activity. “Plain
error review is narrow and confined to the exceptional case where error has seriously
affected the fairness, integrity, or public reputation of the judicial proceedings. The
verdict should be reversed only if the error prejudices the substantial rights of a party
and would result in a miscarriage of justice if left uncorrected.” BBSerCo, Inc. v.
Metrix Co., 324 F.3d 955, 960 (8th Cir. 2003) (quoting Chem-Trend, Inc. v. Newport
Industries, Inc., 279 F.3d 625, 629 (8th Cir. 2002)). Without deciding whether the
district court’s instructions were erroneous, we conclude that reversal would not be
appropriate in any event because Genthe has failed to establish any facts upon which
the jury could base a determination that he had a record of an impairment that limited
a major life activity or that such a record of impairment caused any adverse
employment action. Genthe points only to his non-permanent vision problems and
his occasional seizures (by his own admission, none occurred between November
1997 and the summer of 2000) as evidence of a record of impairment. He does not
cite any facts in the record from which a jury could determine that these impairments
limited him in a major life activity, because, but for short periods of convalescence,
he had successfully performed the position of J-2 – which required that he be able to
work, think, read, and lift, among other things – for the seven years preceding
initiation of this law suit. Additionally, he fails to point us to any adverse
employment action that was caused by this alleged record of impairment. We note
too that, given the jury’s rejection of his actual disability claim and our decision with

                                          -6-
respect to his perceived disability claim, “it is virtually inconceivable that the jury
would have found for [him] on a record of disability theory.” Weber v. Strippit, Inc.,
186 F.3d 907, 915 (8th Cir. 1999).

      The judgment is affirmed.

BYE, Circuit Judge, concurring in part and dissenting in part.

       I join the majority’s decision affirming the district court’s grant of judgment
as a matter of law as to the forklift operator position. But, because I believe there was
sufficient evidence for the jury to find in favor of Genthe as to the J-1 position, I
dissent from that portion of the opinion.

       Michael Genthe suffers from Marfan’s Syndrome, a genetic disorder affecting
the body’s connective tissue. The syndrome affects the entire body but is most
noticeable in its effects on the musculoskeletal system, eyes and cardiovascular
system. Outward manifestations include an elongated skeletal structure, curvature of
the spine and sunken chest. The condition frequently leads to myopia, subluxation
of the lenses in the eyes, and stretching of blood vessels and arteries. Genthe has
suffered from Marfan’s since the age of one. At age sixteen he underwent surgery to
replace part of his ascending aorta which had stretched to the point an aneurysm was
imminent. Genthe also underwent valve replacement surgery to prevent blood from
back-flowing into his heart. The surgeries left him prone to strokes so he takes
blood-thinning medication and undergoes yearly visits with a cardiologist to monitor
the condition. Despite these problems, Genthe is able to work and for purposes of
this appeal does not contend he is disabled within the meaning of the ADA.

        In 1993, Genthe began working for American Signature, a printing company,
in its bindery department. Genthe worked as a “heavy,” unloading stacks of magazine
parts for insertion into a binder machine and then loading the finished product into

                                          -7-
mail bags. The job frequently required him to lift up to seventy pounds and work
overtime up to sixty hours. Genthe also worked periodically as a “light,” making sure
the magazine sections loaded into the binder by heavies were placed in the correct
slots. The job of a light requires light lifting and the ability to read and follow
directions so the magazines are properly configured. Both heavies and lights are
supervised by a Journeyman I or Journeyman I Apprentice who operates the binder
and is responsible for meeting production goals. In January 1997, Quebecor
purchased American Signature and retained Genthe. Quebecor combined the
positions of heavies and lights into a single position nominated Journeyman II but did
not significantly change Genthe’s job requirements.

       In the summer of 1997, Genthe began experiencing significant atrial fibrillation
at work. In July 1997, he suffered a suspected stroke and was hospitalized. After
being released, Genthe began suffering seizures lasting several minutes and occurring
at least three times per week. The seizures affected his ability to work and in
November 1997, Genthe was again hospitalized following a seizure. Thereafter,
Genthe was prescribed anti-seizure medication and released from work until he was
seizure-free for at least six months. In order to qualify for short term disability,
Genthe provided Quebecor with his complete medical file documenting his health
problems. He also met with Warren Lesco, head of Human Relations, to discuss his
medical condition and provide him with information about Marfan’s Syndrome.

       Genthe returned to Quebecor in April 1998, with a twenty-pound lifting
restriction and orders to work no more than forty hours per week. In May 1998,
Genthe underwent eye surgery after the lens in his right eye dislocated. Genthe had
no further problems with seizures (save for one episode in 2001) but suffered severe
episodes of tachycardia. In August 1999, his cardiologist performed an ablation
procedure on the AV-node reentry in his heart which reduced the frequency of his
tachycardia.



                                         -8-
        By March 2000, Genthe’s health had improved and he requested a letter from
his physician allowing him to increase his work hours. The physician responded with
a letter indicating Genthe was free to work overtime up to sixty hours per week if he
wished. Quebecor, however, complained the letter left the decision about how many
hours Genthe would work up to him, and asked for a letter establishing a specific
limit on the number of hours he could work. Apparently, no such letter was
forthcoming but Quebecor increased Genthe’s hours and required him frequently to
work sixty hours per week. Genthe concluded he could not regularly work sixty
hours and filed a grievance. Eventually, Genthe’s treating physician restricted him
to a forty-eight-hour work week and imposed a fifty-pound lifting restriction.

       It is against this backdrop that in April 2000, Genthe applied for promotion to
the J-I position. The position involved more pay and was less physically demanding
than Genthe’s current position. Steve Fructl, Bindery Department Head, announced
four openings for J-Is. Eight such positions were expected to be filled but Fructl
chose to begin by advertising only four. The selection process required candidates
to be interviewed by a Journeyman Apprentice Committee (JAC) made up of an equal
number of union and management representatives. Among others, Fructl, Lesco and
union vice president Pete Pietrowski sat on the JAC. After conducting interviews and
reviewing information submitted by the candidates, their supervisors, and Human
Relations, the JAC would submit its selections to Fructl for final approval.

       Genthe interviewed in June 2000, and during the interview several questions
were raised about his medical condition. Following the interview, the JAC met to
discuss the candidates and several comments and questions relating to Genthe’s
medical condition arose. One JAC member questioned Genthe’s vision and another
expressed concern over whether he would be able to handle the stress of the position.
Another co-worker indicated Genthe “has a hard time sometimes with his job due to
health reasons. Can’t work overtime because of health.” Still another co-worker
stated Genthe was only able to work thirty-six hours. At his deposition, Fructl denied

                                         -9-
that Genthe’s medical condition was discussed at the JAC meeting. Later, after
Pietowski’s handwritten notes from the meeting contradicted Fructl’s claim, he
admitted the discussions occurred. At trial, Fructl testified he did not take Genthe’s
medical condition into account in making a hiring decision and admonished JAC
members not to base a hiring decision on any perceived disability. Pietrowski,
however, testified he was the one who told JAC members not to consider Genthe’s
physical problems. Genthe was not hired for the J-I position but was named first
alternate, meaning he would be immediately promoted if a position opened up within
the next ninety days.

       At about this same time, Fructl hired a fifth J-I from outside the company.
Randy Deahn, a former Quebecor J-I employee, was not required to go through the
interview process and was hired ahead of Genthe. At trial, Fructl contended Deahn
may have been hired before Genthe was named first alternate but Pietrowski testified
he did not see Deahn at Quebecor until after the four J-I positions were filled. The
union filed a grievance and in November 2000 reached a tentative settlement whereby
Quebecor would promote the first alternate to J-I. Union president Richard Conn and
vice president Pietrowski testified they believed Quebecor did not realize Genthe was
the first alternate. Fructl told Genthe if he could work forty-eight hours and lift fifty
pounds he would be promoted.3 Later, however, in January 2001, Genthe was
advised he would not be promoted unless he could produce a note indicating he could
work sixty hours. Genthe did not believe he was capable of consistently working
sixty hours and requested an accommodation allowing him to work forty-eight hours.
Genthe argued a sixty-hour work week was not an essential function of the position
and produced evidence showing Quebecor had accommodated other J-Is by allowing
them to work only fifty hours. In the end, Genthe was not promoted.



      3
       Fructl denied the conversation but the jury was free to disregard Fructl’s
testimony and accept Genthe’s version of the events.

                                          -10-
      The majority concludes this evidence is insufficient to support the jury’s
conclusion that Quebecor regarded Genthe as disabled. I respectfully disagree.

       Quebecor was aware Genthe suffered from Marfan’s and that beginning in
1997 he experienced serious health problems, including a stroke, seizures, and heart
problems. These health problems culminated in a six-month absence from work
during which time Genthe collected disability insurance. When Genthe returned to
work, he was limited in the number of hours he could work and the amount he could
lift. Quebecor was also aware Genthe suffered from vision problems. Genthe had
two surgeries to replace the lenses in his eyes and at least two co-employees
questioned whether he was fit for promotion due to vision problems. Additionally,
during the J-I selection process several comments were made about Genthe’s health
problems, including problems with his vision, heart and ability to work overtime.

       There is also evidence suggesting Quebecor’s proffered reasons for refusing
to promote Genthe to the J-I position were pretextual. After naming Genthe as first
alternate, Quebecor ignored its own established procedures and hired a fifth J-I from
outside the company. Quebecor officials suggested the hiring decision was made
before Genthe was named as an alternate, but other evidence contradicts the claim.
For JAML purposes, contested evidence contrary to the verdict must be disregarded.
Later, after Quebecor agreed to promote the first alternate, Genthe was told he would
only be promoted if he could work up to sixty hours per week. Previously, however,
despite being unable to regularly work sixty hours per week, Quebecor found Genthe
qualified for the position and named him first alternate. The fact that Quebecor
obviously found him qualified but later imposed additional job requirements renders
the decision suspect.

      In order to find in favor of Genthe it was not enough for the jury to conclude
Quebecor regarded him as disabled. Rather, Genthe had to prove Quebecor regarded
him as disabled within the meaning of the ADA, i.e., substantially limited in a major

                                        -11-
life activity. 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, speaking, breathing, learning, and
working, 29 C.F.R. § 1630.2(i), as well as sitting, standing, lifting, and reaching.
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).
Much of the evidence presented in this case was conflicting and circumstantial, and
Genthe could have done a better job explaining what major life activity he claims
Quebecor believed he could not fully perform. Nevertheless, after considering the
evidence, the jury concluded Quebecor failed to promote Genthe because it regarded
him as disabled within the meaning of the ADA. While the jury could have easily
reached a different conclusion, I disagree with the district court’s holding that there
was insufficient evidence to support the verdict. Accordingly, I would reverse the
district court’s grant of JAML on this claim, reinstate the jury’s verdict, and remand
for consideration of Genthe’s post-trial motions. I join the majority opinion in all
other respects.
                         ______________________________




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