                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-3339
                                    ___________

John Reed,                          *
                                    *
             Appellant,             * Appeal from the United States
                                    * District Court for the
      v.                            * District of Minnesota.
                                    *
Home Depot USA, Inc., a Delaware    * [UNPUBLISHED]
corporation,                        *
                                    *
             Appellee.              *
                               ___________

                          Submitted: June 6, 2003
                              Filed: July 15, 203
                                   ___________

Before MORRIS SHEPPARD ARNOLD, BYE, and RILEY, Circuit Judges.
                         ___________

PER CURIAM.

      John Reed, an African-American, appeals the district court’s adverse grant of
summary judgment in his employment action against Home Depot, in which he had
alleged race and disability discrimination in violation of Title VII, the Americans with
Disabilities Act (ADA), and state law. We affirm the grant of summary judgment on
Reed’s disability-discrimination claim, but we reverse on Reed’s claim of failure to
promote based on race.

      In April 1997 Reed was hired as a sales associate by Home Depot at its store
in Brooklyn Park, Minnesota. He alternated between the garden and hardware
departments. In spring of 1998 Home Depot instituted a computer-based system in
which associates registered their interest in job positions. In May 2000 Reed
registered for department supervisor in building materials, hardware, and tool rental,
as well as for the position of design coordinator. (Only promotions occurring within
the applicable limitations period--October 26, 1999, through October 26, 2000--are
at issue.1) Home Depot’s store manager averred that, during the limitations period,
she promoted two white associates in departments to which Reed did not seek
promotion, and that Reed had not demonstrated the motivation and initiative
necessary to succeed as a department supervisor.

       In his deposition Reed testified that he was as qualified as several white
employees who were promoted, based on his experience and full-time status. One of
these promoted employees, Kevin Beer, attested that he was sent to management
training seven to eight months after starting his employment in March 1999. He was
promoted to manager (in building materials) “very quickly” and without an interview.
Beer believed that he was promoted because of his white race, that Reed was more
qualified than he for the promotion, and that Home Depot had a practice of promoting
new hires over better trained and skilled minority employees. Beer recalled
approximately ten promotions, all of white employees, during his tenure, and that
despite there being many qualified black employees, not one black employee was
promoted internally. Beer observed that Home Depot was very segregated and that
minority employees who objected to the segregation were “by-passed and efforts were
made to get rid of them.” For example, when he was a manager, he was told to give
certain minority employees “crappy positions and no weekends off” to force them to


      1
        Reed’s failure-to-promote claim must be based on promotions--each a discrete
act--occurring within the twelve months immediately preceding October 26, 2000, the
date he filed his administrative charge. See 42 U.S.C. § 2000e-5(e)(1) (claimant must
file Title VII charge within 300 days of discriminatory act); Minn. Stat. Ann.
§ 363.06(3) (West 2003) (1-year limitations period); Tademe v. Saint Cloud State
Univ., No. 02-1097, 2003 WL 21088062, at *4 (8th Cir. May 15, 2003).
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quit. Beer averred further that Home Depot was aware minority employees were
referred to as “niggers,” but no reprimands were made.

       In July 1999 Reed was seen for back and neck pain arising from a nonwork-
related slip-and-fall incident. Pursuant to doctors’ orders, Reed did not work from
July 6 to August 17, and thereafter was to work with light restrictions for four weeks.
Reed asked the store manager to be transferred to the phone center. The manager told
Reed he had to remain in his department but could have extra breaks, should abide
by his restrictions, and should seek assistance from other associates. In July 2000
Reed notified Home Depot staff that he needed to be off work due to back pain; he
then had back surgery. Reed’s last day of active employment was July 20, 2000, and
he was terminated (some ten months later) in May 2001 for “abandonment of job.”

       The district court granted summary judgment for Home Depot. The court
concluded that Reed failed to establish a prima facie case of failure to promote
because none of the positions he registered for became available during the
limitations period between October 26, 1999, and October 26, 2000, and he could not
show his qualifications were similar to those of the promoted employees. As to the
disability claim, the court concluded that Reed failed to show he had a substantially
limiting physical or mental impairment, and that he also could not show an adverse
employment decision because he was allowed to remain in his position despite his
medical restrictions until he left for medical leave, from which he did not return.

       We review a grant of summary judgment de novo, viewing the evidence in the
light most favorable to Reed. See Whitley v. Peer Review Sys., Inc., 221 F.3d 1053,
1055 (8th Cir. 2000). So viewed, we conclude that the record contained evidence to
establish Reed’s prima facie failure to promote case. Reed, who is African-American,
sought a position in the building-materials department and was not promoted. Beer’s
affidavit permits an inference that Beer, a white employee, was promoted in the same
department during the limitations period, and Beer clearly attested that Reed was

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more qualified than he for the promotion. See Rose-Maston v. NME Hosps., Inc.,
133 F.3d 1104, 1109 (8th Cir. 1998) (prima facie failure-to-promote case). While
Home Depot articulated that Reed was not deserving of promotion, we find that
Beer’s affidavit regarding race-based employment practices at Home Depot, when
combined with Reed’s deposition testimony that he was more qualified than white
employees who were promoted, was sufficient to permit a trier of fact to concluded
that Home Depot unlawfully discriminated. See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148 (2000) (plaintiff’s prima facie case, combined with
sufficient evidence to find that employer’s asserted justification for adverse
employment action is false, may permit trier of fact to conclude that employer
unlawfully discriminated). Thus, we reverse the entry of summary judgment on
Reed’s failure-to-promote claim.

      We conclude, however, that the district court properly entered summary
judgment for Home Depot on the disability-discrimination claim, because Reed failed
to show that his back and neck problems qualified as a disability under the ADA. See
Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002) (to be
substantially limited in performing manual tasks, individual must have impairment
that prevents or severely restricts him from doing activities that are of central
importance to most people’s daily lives, and impairment’s impact must also be
permanent or long-term).

       Thus, we affirm the entry of summary judgment for Home Depot on Reed’s
disability-discrimination claim, but we reverse on Reed’s claim of failure to promote
based on race, and remand for further proceedings.




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A true copy.

      Attest:

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




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