1

The Honorable Lawrence O. Davis, United States Magistrate

Judge for the Eastern District of Missouri, to whom the case was

referred for final disposition by consent of the parties pursuant

to 28 U.S.C. § 636(c) (1988).

___________

No. 95-1535

___________

Mitchell Woods, *

 *

Appellant, *

 *

v. * Appeal from the United States

 * District Court for the

Tyler Mountain Co., Inc., doing * Eastern District of Missouri.

business as Tyler Mountain Water *

Co., Inc., * [UNPUBLISHED]

 *

Appellee. *

___________

 Submitted: November 24, 1995

 Filed: January 10, 1996 ___________

Before FAGG, MAGILL, and BEAM, Circuit Judges. ___________

PER CURIAM.

Mitchell Woods appeals from the district court's1 grant of

summary judgment on his employment discrimination claims in favor

of Tyler Mountain Co., Inc. (Tyler Mountain), a beverage packager

that terminated him as general manager of its St. Louis, Missouri

plant. Woods argues only that the district court erred with regard

to his pendent claim that his employment was terminated because of

his alleged handicap--permanent impairment resulting from a broken

arm--in violation of the Missouri Human Rights Act (MHRA), Mo. Rev.

Stat. §§ 213.010-213.137 (1994). We affirm.
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We review de novo a grant of summary judgment, applying the

same standards as the district court. Miller v. National Casualty

Co., 61 F.3d 627, 628 (8th Cir. 1995). We affirm when the record,

viewed in the light most favorable to the nonmovant, shows there is

no genuine issue of material fact and the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c); Demming v.

Housing & Redev. Auth., 66 F.3d 950, 953 (8th Cir. 1995). Because

we are considering a state law claim under our pendent

jurisdiction, we "apply federal rules of procedure, and follow

state law to resolve issues of substance." Sayre v. Musicland

Group, Inc., 850 F.2d 350, 352 (8th Cir. 1988).

We conclude that the district court properly granted Tyler

Mountain's motion for summary judgment, because Woods failed to

satisfy his burden of establishing a prima facie case of handicap

discrimination. See Stratton v. Missouri Dep't of Corrections, 897

S.W.2d 1, 4 (Mo. Ct. App. 1995) (plaintiff has burden of

establishing prima facie case); cf. Harvey v. Anheuser-Busch, Inc.,

38 F.3d 968, 971 (8th Cir. 1994) (summary judgment appropriate

against party who fails to show existence of element essential to

party's race discrimination case). 

Under the MHRA, it is unlawful to discharge an employee

because of a handicap. Mo. Rev. Stat. § 213.055.1(1)(a) (1994).

To establish a prima facie case of handicap discrimination under

the MHRA, Woods had to show that he is handicapped under the

statutory definition. See Welshans v. Boatmen's Bancshares, Inc.,

872 S.W.2d 489, 493 (Mo. Ct. App. 1994). The statute defines

handicap as "a physical or mental impairment which substantially

limits one or more of a person's major life activities, a condition

perceived as such, or a record of having such impairment, which

with or without reasonable accommodation does not interfere with

performing the job." Mo. Rev. Stat. § 213.010(10) (1994).

Missouri regulations include employment as a major life activity;

see 8 CSR 60-3.060(1)(C). While the MHRA and Missouri regulations
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do not specify how substantially limiting an impairment must be in

order to meet the statutory definition of handicap, and we are

aware of no Missouri case addressing this issue, we note that the

Missouri Supreme Court has previously adopted elements of federal

law in analyzing state law discrimination claims. See, e.g.,

Midstate Oil Co. v. Missouri Comm'n On Human Rights, 679 S.W.2d

842, 845-46 (Mo. 1984) (en banc) (holding state law disparatetreatment claims should be evaluated under burden-shifting analysis

of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

Accordingly, we will look to federal law--as the district court and

the parties have done--for help in defining a substantially

limiting impairment.

An impairment substantially limits a person's ability to work

if it significantly restricts the person's "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). An

impairment that only prevents a person from performing one

particular job is not a substantially limiting impairment. See

Malding v. Sullivan, 961 F.2d 694, 698 (8th Cir. 1992) (sensitivity

to chemicals that prevented only lab work did not substantially

limit employment as a whole), cert. denied, 113 S. Ct. 1255 (1993).

The determination of whether an impairment is substantially

limiting is made on a case-by-case basis, and is concerned with

"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). Factors relevant to this inquiry

are "the number and type of jobs from which the impaired individual

is disqualified, the geographical area to which the individual has

reasonable access, and the individual's job expectations and

training." Jasany v. United States Postal Serv., 755 F.2d 1244,

1249 (6th Cir. 1985). 

In this case, Woods has a permanent impairment resulting from
 2

A broken arm of itself does not, of course, constitute a

handicap; see 29 C.F.R. § 1630.2(j) (Appendix) (1995)

("temporary, non-chronic impairments of short duration, with

little or no long term or permanent impact, are usually not

disabilities. Such impairments may include, but are not limited

to, broken limbs . . ."). A handicap may exist, however, where a

long-term or permanent impairment arises because a limb heals

improperly, id. 

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a broken arm. This impairment includes a decreased range of motion

in his left wrist, a restricted ability to lift with his left arm,

a decreased writing ability, a reduced ability to operate a

keyboard, pain associated with repetitive left arm movements, and

an inability to drive a car without an automatic transmission.2 It

is undisputed, however, that Woods could delegate manual tasks as

general manager of Tyler Mountain's plant. It is also undisputed

that Woods is able to hunt and fish, although he has had to change

his methods of performing those activities, and that he is

currently employed as plant manager for another manufacturer in

Texas. Given these facts, we agree with the district court that

Woods' major life activity of employment has not been substantially

limited. Although the manner in which Woods must conduct his work

may have been somewhat altered, his impairment has not resulted in

a significant barrier to his continued employment as a plant

manager. See Oesterling v. Walters, 760 F.2d 859, 861 (8th Cir.

1985) (concluding appellant was not handicapped although impairment

"to some degree" affected ability to perform major life activities

of sitting and standing). We also agree that Woods' major life

activity of lifting has not been substantially impaired. See

Duthcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995)

(finding arm impairment not substantially limiting where evidence

showed appellant could feed herself and drive a car, had trained

herself to perform basic tasks with her impaired arm, and

appellant's medical expert testified she could do some lifting). 

Finally, we do not believe Woods established a genuine issue

regarding whether Tyler Mountain perceived him as having an
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impairment that substantially limited his ability to work. An

employer does not necessarily perceive an employee as handicapped

simply because it finds the employee to be incapable of satisfying

the "singular demands of a particular job." Forrisi, 794 F.2d at

934. Rather, "an employer regards an employee as handicapped in

his or her ability to work by finding the employee's impairment to

foreclose generally the type of employment involved." See id. at

935. While Woods testified at his deposition that Tyler Mountain

officials told him he was being terminated because he had broken

his arm and "couldn't perform the duties, the job [he] had done

before," he also admitted his job performance was in question

before he broke his arm. Accepting Woods' statements as true, as

we must, the only conclusion supported by the record is that Tyler

Mountain did not perceive Woods' impairment as foreclosing work as

a manager generally, but rather that Tyler Mountain found Woods

incapable of satisfying the singular demands of the general manager

position at its St. Louis plant. 

 

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

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