Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI ST. JOSEPH DIVISION ) ) Plaintiff, ) ) vs. ) ) THE MISSOURI GAMING COMPANY, ) ) Defendant. ) JACKSON L. BONAR,

Case No. 03-6158-CV-SJ-GAF

ORDER Presently before the Court is Defendant The Missouri Gaming Company ("Missouri Gaming")'s motion for summary judgment (Doc. 36). Plaintiff Jackson L. Bonar ("Bonar") has brought this action seeking relief under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. (Count I), and alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq. (Count II), and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. (Count III). Missouri Gaming has moved for summary judgment contending that all of Bonar's claims fail as a matter of law. Bonar has opposed this motion. For the following reasons, Missouri Gaming's motion for summary judgment is GRANTED in part and DENIED in part. I. Facts Bonar began his employment with Missouri Gaming in January of 1996. He served in various positions until he became Missouri Gaming's Director of Marketing on June 1, 1999. Gary Johnson ("Johnson") was appointed as Vice President and General Manager of Missouri Gaming in July of 2002. Prior to his appointment, Johnson had worked as Director of Marketing at Argosy Lawrenceburg in

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Indiana, which was a sister casino of Missouri Gaming. Johnson had met Bonar on many occasions, primarily at Argosy Gaming Company Director of Marketing Meetings. These meetings were held semiannually and lasted between two to four days. In addition to occasionally talking on the phone, Johnson and Bonar had attended the marketing meetings together for the three years prior to Johnson's appointment as General Manager of Missouri Gaming. As General Manager of Missouri Gaming, Johnson was to report to Arnold Block ("Block"), Regional Vice President of Argosy Gaming Company. When Johnson was appointed to his new position in July of 2002, he was given certain directives. Block informed Johnson that his success as General Manager of Missouri Gaming was pendant upon two objectives: (1) seeing that the new gaming facility at Missouri Gaming opened on time, and (2) fixing Missouri Gaming's Marketing department. Based upon Block's recommendations with regard to the marketing department and Johnson's interactions with Bonar over the years, Johnson determined that Bonar was not the person that he wanted to run Missouri Gaming's marketing department. Although Johnson's decision was made shortly after he was appointed in July, he decided not to make the personnel change until he was at the Missouri Gaming facility full-time, which would be in September. This decision was based on the premise that, once on site at Missouri Gaming, Johnson could utilize his own expertise in marketing to facilitate marketing department operations until a suitable replacement for Bonar could be found. In September of 2002, Bonar took FMLA leave in order to have surgery for a rotator cuff problem. It is undisputed that Bonar had worked 1250 hours during the twelve month period preceding his FMLA leave and had not already availed himself of any leave under the FMLA during that time.

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Bonar's last day of work prior to the commencement of his leave was September 27, 2002. On that day, Bonar filled out an application requesting his leave of absence under the FMLA and was told by Phil Rooney ("Rooney"), Director of Human Resources at Missouri Gaming, that the leave was approved. Johnson took up his position as General Manager of Missouri Gaming approximately two days before Bonar took his leave. During that time, Johnson and Bonar spoke about Bonar's upcoming surgery and Johnson noted that Bonar was wearing a sling. During his FMLA leave, on October 17, Bonar received a document ("Response Letter") in the mail that was Missouri Gaming's official response concerning his FMLA leave. The Response Letter stated that an employee taking leave is required both to obtain a doctor's release and to take a drug test before returning to work. In addition to this information, the preprinted letter contained information applicable to employees on FMLA leave and could be customized for each particular situation by the company representative who had the option of marking certain boxes and leaving others unmarked. Bonar noted that among the information contained in the Response Letter, Box 7 on the second page of the form was marked so as to designate him as a "key employee" for purposes of the FMLA. Directly beneath that designation, a box was checked indicating that Missouri Gaming determined that restoring his employment would cause "substantial and grievous economic harm." After receiving the Response Letter, Bonar immediately contacted Rooney. Bonar was concerned about maintaining his position after the FMLA leave. Rooney told him that the document was sent out as a matter of policy and not to worry. At this time, Bonar informed Rooney that he would be seeing his doctor on October 18, and that he would return to work the following Monday if the doctor released him.

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Bonar took his drug test on October 18 and was released to return work by his doctor. He returned to work on Monday, October 21, 2002. During the morning of October 21, 2002, Johnson approached Bonar in his office and asked him to come down to Rooney's office. At that point, Johnson told Bonar that he was being terminated. Johnson noted in a service letter, dated December 2, 2002, that Bonar was discharged because his "skills, experience and previous approach to marketing were not adequate to serve or properly advance the new course and direction" which Johnson wished to take as General Manager. II. Standard Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment shall be granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." If there is no genuine issue about any material fact, summary judgment is proper because it avoids needless and costly litigation and promotes judicial efficiency. Roberts v. Browning, 610 F.2d 528, 531 (8th Cir. 1979); United States v. Porter, 581 F.2d 698, 703 (8th Cir. 1978). The summary judgment procedure is not a "disfavored procedural shortcut." Rather, it is "an integral part of the Federal Rules as a whole." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also City of Mt. Pleasant v. Associated Elec. Coop., Inc., 838 F.2d 268, 273 (8th Cir. 1988). While a summary judgment is a "drastic remedy" which should be exercised with extreme care, it is appropriate against a party who fails to make a showing sufficient to establish that there is a genuine issue for trial about an element essential to that party's case, and on which that party will bear the burden of

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proof at trial. Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir. 1990); Celotex, 477 U.S. at 324. The Eighth Circuit has noted that summary judgments should be used sparingly in the employment discrimination context. Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994). However, there is no "employment discrimination exception" to Rule 56, and as with any other type of suit, a discrimination case which presents no genuine issue of material fact is ripe for summary judgment. See Berg v. Norand Corp., 169 F.3d 1140, 1143 (8th Cir. 1999). In ruling on a motion for summary judgment, it is the court's obligation to view the facts in the light most favorable to the adverse party and to allow the adverse party the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Inland Oil and Transport Co. v. United States, 600 F.2d 725, 727-28 (8th Cir. 1979). The moving party bears the initial burden of demonstrating by reference to portions of pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, the absence of genuine issues of material fact. However, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Id. The nonmoving party is then required to go beyond the pleadings and by affidavits, depositions, answers to interrogatories and admissions on file, designate specific facts showing that there is a genuine issue for trial. Id. A party opposing a properly supported motion for summary judgment cannot simply rest on allegations and denials in his pleading to get to a jury without any significant probative evidence tending to support the complaint. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986).

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At the summary judgment stage, the judge's function is not to weigh the credibility of the evidence, but rather to determine whether a genuine issue of material fact exists. Id. A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The evidence favoring the nonmoving party must be more than "merely colorable." Id. at 2511. When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio, 106 S.Ct. 1348, 1356 (1986) (footnote omitted). III. Analysis A. The Family and Medical Leave Act

Count I of Bonar's Complaint alleges two violations of the FMLA. First, Bonar asserts that Missouri Gaming discharged him in retaliation for taking leave under the FMLA, in violation of 29 U.S.C. §2615(a)(2). Second, he contends that Missouri Gaming failed to reinstate him to his position upon his return from FMLA leave, in violation of 29 U.S.C. §2615(a)(1). Missouri Gaming argues that both of these claims fail as a matter of law and, therefore, it is entitled to summary judgment on Count I of Bonar's complaint. Under the FMLA, employees are entitled to an annual total of twelve weeks of leave for a number of reasons including serious health conditions that prohibit the employee from performing the functions of his position. 29 U.S.C. § 2612(a)(1)(D). Upon a return from FMLA leave, an eligible employee who has taken leave for the intended purpose is entitled "to be restored by the employer to the position of employment held by the employee when the leave commenced." 29 U.S.C. §2614(a)(1)(A). The FMLA

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prohibits employers from interfering with any right that it provides or from discriminating against or terminating the employee for opposing any unlawful practice under the same. 29 U.S.C. §2615(a)(1) & (2). The FMLA has been interpreted as providing two distinct types of claims: interference with substantive rights provided by the FMLA and discriminatory retaliation based on an exercise of those rights. Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1206 n. 9 (11th Cir. 2001). In cases where the employee has alleged interference with a substantive right, the employee is required to demonstrate, under an objective test and by a preponderance of the evidence, that he was entitled to the benefit denied. Rankin v. Seagate Technologies, Inc., 246 f.3d 1145, 1148 (8th Cir. 2001) (applying an objective test to a substantive FMLA claim and rejecting the use of the burden shifting analysis). In contrast, this jurisdiction analyzes FMLA retaliation claims using a variation of the burden shifting analysis set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Smith v. Allen Health Systems Inc., 302 F.3d 827, 832 (8th Cir. 2002)(applying McDonnell Douglas to the plaintiff's FMLA retaliation claim). 1. Retaliation under the FMLA

As stated above, the FMLA provides eligible employees up to twelve work-weeks of unpaid leave in any twelve-month period and prohibits employers from discriminating against employees who exercise their rights under the Act. 29 U.S.C. §§2612, 2615(a)(2). Accordingly, an employee may a bring a federal cause of action against an employer who has based an adverse employment action on the employee's use FMLA rights. See Darby v. Bratch, 287 F.3d 673, 679 (8th Cir. 2002). In the absence

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of direct evidence of retaliation, an employee may utilize a variant of the burden shifting analysis announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), to prove FMLA retaliation circumstantially. Smith v. Allen Health Systems Inc., 302 F.3d 827, 832 (8th Cir. 2002). In order to establish a prima facie case for FMLA retaliation, the plaintiff has the burden of demonstrating the existence of three essential elements: (1) the plaintiff engaged in activity protected under the FMLA; (2) the plaintiff suffered an adverse employment action by the employer; and (3) a causal connection existed between the employee's use of FMLA leave and the adverse employment action. Darby, 287 F.3d at 679. In this case, the first two elements of the prima facie case are not in dispute. Missouri Gaming, however, contends that Bonar has failed to establish the third essential element, a causal connection between the FMLA leave and the employer's action, and, as a result, is entitled to summary judgment on this claim. The duty of the Court, therefore, is to determine whether there is a genuine issue of material fact for trial regarding the causal connection between Bonar's exercise of FMLA leave and Missouri Gaming's decision to fire him. When taken in the light most favorable to Bonar, the most striking piece of evidence with regard to a causal connection is the temporal proximity of the FMLA leave and the adverse employment action. The Eighth Circuit has stated temporal connection alone is insufficient to create a genuine issue of material fact in most retaliation cases. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999). Very close temporal proximity between the protected activity and the adverse action, however, has indeed been sufficient on occasion to establish a prima facie case. Smith v. Allen Health Systems, Inc., 302 F.3d 827, 832-33 (8th Cir. 2002). In this case, Bonar was terminated the very same day that he returned from

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FMLA leave. It would be virtually impossible for Bonar's exercise of leave and his termination to have been any closer. As a result, this Court finds that timing alone is sufficient to create an issue of material fact with regard to the causal connection element of the prima facie case. After a prima facie case has been established, a rebuttable presumption of discrimination arises. As a result, the burden of production, but not persuasion, then shifts back to Missouri Gaming to articulate a legitimate, non-discriminatory reason for terminating Bonar. Missouri Gaming has proffered that Johnson made the decision to fire Bonar prior to Bonar's exercise of FMLA leave. Specifically, Missouri Gaming contends that Johnson made the decision to terminate Bonar in accord with Block's directive to "fix" the marketing department, which accompanied Johnson's selection for the General Manager position in July of 2002. As support for this position, Missouri Gaming relies strictly upon the affidavit of Johnson that was submitted for consideration by the Court in determining the motion for summary judgment. In opposition, Bonar contends merely that this issue was not advanced until the appearance of the Johnson Affidavit at the summary judgment phase of the trial and offers only positive evaluations and records of productivity as creating a genuine issue of material fact on this point. Rule 56(e) of the Federal Rules of Civil Procedure provides for affidavits in support or opposition to be considered for the purpose of summary judgment if they are made on personal knowledge, set forth facts that would be admissible at trial, and show affirmatively that the affiant is competent to testify on the matters stated in the affidavit. Fed. R. Civ. P. 56(e). The Eighth Circuit has held that a district court is required to consider an otherwise admissible affidavit, unless that affidavit contradicts deposition testimony. Webb v. Garelick Mfg. Co., 94 F.3d 484, 488 (8th Cir. 1996) (citing Camfield Tires, Inc. v. Michelin Tire

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Corp., 719 F.2d 1361 (8 th Cir. 1983). In this case, Bonar argues that the issues raised by Missouri Gaming's summary judgment motion and supported by Johnson's affidavit had not previously been raised, but directs the Court to no evidence that either contradicts or controverts the statements from Johnson's affidavit. This Court finds that the statements in Johnson's affidavit are properly before the Court for consideration and that Missouri Gaming has presented evidence tending to rebut the presumption of discrimination. The burden then falls, once again, on Bonar to put forth evidence tending to show that Missouri Gaming's proffered reason is merely pretext for discrimination. As Missouri Gaming has pointed out, coincidence of the timing, while sufficient in some cases to establish a prima facie case, is insufficient to create a genuine issue of material fact as to pretext. Groves v. Cost Planning & Mgmt. Int'l, Inc., 372 F.3d 1008, 1009-10 (8th Cir. 2004). Additionally, a showing of pretext requires more substantial evidence because, unlike the evidence needed to establish a prima facie case, "evidence of pretext and discrimination is viewed in light of the employer's justification." Sprenger v. Federal Home Loan Bank, 253 F.3d 1106, 1111 (8th Cir. 2001). Bonar must demonstrate that Missouri Gaming's proffered reason was not the true reason for the employer's action. Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1335 (8th Cir. 1996). In the summary judgment context, this means the Court must find that the plaintiff has "presented sufficient evidence for a jury to disbelieve the reasons proffered by the employer." Id. Although the timing of the adverse action is, by itself, insufficient to create an issue of fact for trial on pretext, timing is not the only evidence that Bonar has presented in his favor. In an attempt to controvert evidence that establishes that the decision to terminate Bonar was made prior to his exercise of FMLA

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leave, Bonar asserts that the marketing department did not need "fixing" and offers four positive evaluations from Larry Kinser that were issued between May of 1998 and January of 2002 in support of this position. Additionally, the Response Letter weighs heavily in Bonar's favor on the issue of pretext. The letter, received by Bonar on October 18, indicates that Missouri Gaming attempted to designate Bonar as a "key employee" for purposes of the FMLA, and that as such, reinstatement under the FMLA would cause Missouri Gaming "substantial and grievous economic harm." FMLA regulations provide that employers may decide to deny reinstatement to an employee if it is determined by a good faith effort that reinstatement will cause "substantial and grievous economic harm" and the employer properly notifies the employee. 29 C.F.R. § 825.219. While Missouri Gaming attempts to minimize the significance of this piece of evidence by arguing that the designation was made in error, this, at the very least, creates a question of fact for trial. A jury could easily find that the Response Letter's designation of Bonar as "key employee" was the first step in an attempt to deny him reinstatement following his FMLA leave that ultimately culminated in his termination upon his return to work. The timing of Johnson's decision, when set alongside of the Response Letter and Bonar's prior positive performance evaluations, is sufficient to create a genuine issue for trial on the issue of pretext. Accordingly, Missouri Gaming's motion for summary judgment on Bonar's claim for FMLA retaliation is DENIED. 2. Interference with a Substantive Right

At the heart of the substantive portion of Bonar's FMLA claim lies his contention that Missouri Gaming failed to reinstate him following his FMLA leave. Missouri Gaming counters this claim by asserting

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that there is no genuine issue of material fact that Bonar was restored to his position upon returning from leave because he was allowed to resume work at his position as marketing director for part of the day on October 21, 2002. Further, Missouri Gaming argues that, even if this does not qualify as a restoration for purposes of the FMLA, there is no employer liability because Johnson had made the decision to fire Bonar prior to his FMLA leave and the FMLA does not afford a greater right to reinstatement than that which the employee would have had if no leave had been taken. In addition to the grant of a right to take leave, the more crucial aspect of the FMLA is the right that it provides to employees to be restored upon returning from leave. 29 U.S.C. §2614(a)(1)(A). This right to restoration, however, is not absolute. See Kohls v. Beverly Enters. Wis., Inc., 259 F.3d 799, 804 (7th Cir. 2001). As Missouri Gaming has pointed out, "an employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period." 29 C.F.R. §825.216(a). In order for this exception to apply, however, the "employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested." Id. The regulations have made it clear, however, that the burden is squarely on the employer to demonstrate that the exception applies. Accordingly, an employer may avoid liability if it is able to demonstrate that it refused to reinstate the employee "wholly unrelated to the FMLA leave." Strickland, 239 F.3d at 1208. First, this Court finds Missouri Gaming's contention that Bonar was actually reinstated to be completely without basis in fact or law. The facts are undisputed that Bonar was fired the very same day that he returned from FMLA leave. Even Missouri Gaming admits that Johnson approached Bonar on the

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morning of October 21, 2002, in order to inform that he was terminated. All the evidence indicates that Bonar was fired at earliest possible opportunity upon his return from leave. Moreover, Missouri Gaming has offered no legal precedent demonstrating that a scenario such as this has ever even remotely been considered to be an actual reinstatement as required by the FMLA. Next, this Court remains unconvinced that Missouri Gaming has satisfied its burden of showing that Bonar's termination was unrelated to his FMLA leave. As stated above, Johnson contends that the decision stemmed from the directive he was given by Block to "fix" the marketing department at Missouri Gaming when he was appointed as General Manager in July of 2002. In an attempt to fulfill this directive, Johnson contends that had determined that Bonar's style of marketing was inconsistent with his future plans for Missouri Gaming and, as a result, made the decision to terminate Bonar. These facts are undisputed by Bonar and, as stated above, are before the Court for consideration. Notwithstanding Johnson's proffered reason for terminating Bonar, Missouri Gaming is unable to demonstrate that Bonar's termination was completely unrelated to his FMLA leave. Much of the evidence, including temporal proximity and the Response Letter's designation of Bonar as a "key employee", weighs heavily against Missouri Gaming meeting its burden of showing that its actions were unrelated to Bonar's FMLA leave. Accordingly, this Court finds that Bonar has presented a triable issue of fact with regard to his claim for substantive violations of his rights under the FMLA. Having found the existence of a genuine of material fact for trial, Missouri Gaming's motion for summary judgment on Bonar's claims for substantive violations of the FMLA is DENIED. B. Discrimination Based on Gender

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In this case, Bonar also alleges a claim of disparate treatment gender discrimination under Title VII. In particular, Bonar asserts that Missouri Gaming discriminated against him on the basis of his gender by discharging him and failing to restore him to his position at the conclusion of his FMLA leave. Missouri Gaming argues that it is entitled to summary judgment on this claim because Bonar has failed to establish a genuine issue of fact for trial with regard to his prima facie case for gender discrimination. This Court agrees. In order to establish a prima facie case for disparate treatment gender discrimination under Title VII, the plaintiffs must establish that they are: (1) a member of a protected group; (2) meeting the legitimate expectations of the employer; (3) subject to an adverse employment action; and (4) treated differently than similarly situated employees who are not members of the protected group. Jacon-Mua v. Veneman, 289 F.3d 517, 521-22 (8th Cir. 2002); Hesse v. Avis Rent a Car Services, Inc., 394 F.3d 624, 631 (8th Cir. 2005). In support of its motionfor summaryjudgment, Missouri Gaming apparently concedes the first three elements of the prima facie case for disparate treatment and argues only that Bonar is unable to establish the fourth element. Missouri Gaming argues that it is entitled to summary judgment because Bonar can produce no evidence whatsoever of any similarly situated female employees at Missouri Gaming that was treated better than he was. Bonar offers no arguments in opposition to Missouri Gaming's position on this issue and, as far as the Court can tell, relies solely on his attempted controversion of Missouri Gaming's statement of fact that its employees were treated equally with regard to their return from FMLA leave. In a strange attempt to refute this contention by Missouri Gaming, Bonar directs the Court to two affidavits, one from Shelaine Baines and the other from Gina Cork. Both Baines and Cork are females who were employed by Missouri Gaming. This Court, however, can find no evidence in these affidavits that establishes that any similarly

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situated female employees, including the affiants, were treated differently than Bonar. More significantly, Bonar offers no argument on the issue. Accordingly, this Court finds that Bonar has failed to establish an issue of fact for trial regarding this element of the prima facie case for disparate treatment gender discrimination under Title VII. As such, Missouri Gaming's motion for summary judgment on this claim is GRANTED and Count II of Bonar's complaint is DISMISSED. C. Discrimination Based on Disability

Claims of discrimination under the ADA are also analyzed under the McDonnell Douglas burden shifting framework. Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 712 (8th Cir. 2003). Again, the plaintiff must first establish a prima facie case of discrimination based on disability. Fenney, 327 F.3d at 712. Once the plaintiff makes out his prima facie case, a presumption of discrimination arises and the burden of production shifts to the defendant to put forth evidence that the defendant's actions were based on legitimate, non-discriminatory reasons. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999). If the defendant proffers such evidence, the burden shifts to the plaintiff to produce evidence demonstrating that the defendant's stated reasons are pretexts for discrimination. Kiel, 169 F.3d at 1135. In order to make out a prima facie case of discrimination under the ADA, the plaintiff must present evidence tending to show three things. Lowery v. Hazelwood Sch. Dist., 244 F.3d 654, 657 (8th Cir. 2001). First, the plaintiff must show that he is disabled within the meaning of the ADA. Lowery, 244 F.3d at 657. Second, the plaintiff must show that he is qualified to perform the essential functions of his position.

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Id. Third, the plaintiff must put forth evidence that he suffered an adverse employment action under circumstances that would give rise to inference of discrimination. Id. 1. Disabled within the Meaning of the ADA

To demonstrate a disability under the ADA, the plaintiff must show that he is a "`qualified individual with a disability.'" Sutton v. United Air Lines, Inc., 527 U.S. 471, 477-78 (1999) (quoting 42 U.S.C. § 12112(a)). A "qualified individual" is a person who can perform the essential functions of an employment position with or without reasonable accommodation. Sutton, 527 U.S. at 478. "Disability" is defined in one of three ways. 42 U.S.C. § 12102(2). An individual may have an "actual disability" whereby the individual suffers from 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)(A). An impairment will be "substantially limiting" if such impairment prevents or significantly restricts the individual's ability to perform major life activities in a manner similar to the average member of the general population. Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 948 (8th Cir. 1999). To determine whether an individual is "substantially limited" in his performance of a major life activity, courts consider 1) the nature and severity of the impairment, 2) the actual or expected duration of the impairment, and 3) the impairment's long-term impact on the individual. Fjellestad, 188 F.3d at 949 (citing 29 C.F.R. § 1630.2(j)(2)(i)-(iii)). Aside from an "actual disability", an individual may also be disabled if he has a "record of such an impairment" referencing subsection (A) of the statute. 42 U.S.C. § 12102(2)(B). An individual has a "record of such impairment" if he has a history of such impairment or has been mis-classified as having such

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an impairment. 29 C.F.R. § 1630.2(k). This provision generally serves to protect from discrimination individuals who previously had a disability, but have recovered. Finally, an individual may be disabled if he is "regarded as having such an impairment" which is based on the covered entity's misperceptions about the individual. Sutton, 527 U.S. at 489. An individual is "regarded as" disabled if 1) the employer mistakenly believes that the individual has a impairment which substantially limits the individual's major life activities, or 2) if the employer mistakenly believes the individual has an impairment that is substantially limiting, when in fact the impairment is not so limiting. Id. In all cases, whether "actual disability", a "record of disability", or "regarded as disabled" the plaintiff must show that the impairment substantially limits a major life activity, even when taking into consideration corrective measures such as eyeglasses, medications, etc. Id. at 488. Accord, Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521 (1999). In the present case, Missouri Gaming argues that Bonar is unable to create a triable issue as to whether he was disabled when his employment was terminated. More specifically, Missouri Gaming contends that Bonar cannot present sufficient evidence from which a finder of fact could conclude that he had a physical or mental impairment that substantially limited a major life activity, or was regarded by Missouri Gaming as having such an impairment. As with his Title VII claim, Bonar has failed to put forth any cognizable argument with regard to his claimed disability under the ADA. Accordingly, this Court finds that Bonar has failed to establish an issue of fact for trial regarding this element of the prima facie case for discrimination based on disability under the ADA. As such,

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Missouri Gaming's motion for summary judgment on this claim is GRANTED and Count III of Bonar's complaint is DISMISSED. IV. Conclusion For the foregoing reasons, Missouri Gaming's motion for summary judgment is GRANTED in part and DENIED in part. This Court finds that Bonar has demonstrated the existence of issues of fact for trial with regard to his claims for retaliation and substantive violation of the FMLA. As a result, Missouri Gaming's motion to dismiss Count I is DENIED. This Court finds further that Bonar has failed to demonstrate a genuine issue of fact with regard to Bonar's claims for discrimination under Title VII and the ADA. Accordingly, Missouri Gaming's motion to dismiss Counts II and III is GRANTED.

IT IS SO ORDERED.

/s/ Gary A. Fenner GARY A. FENNER, JUDGE United States District Court DATED: February 25, 2005

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