*The Honorable E. Richard Webber , United States District Judge

for the Eastern District of Missouri, sitting by designation. The Honorable David S. Doty, United States District Judge for the District o f 1 Minnesota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

____________ No. 96-2224

____________ Karen Snow, * * Appellant, *

* Appeal from the United States
v. * District Court for the * District of Minnesota Ridgeview Medical Center, * * Appellee. *

____________ Submitted: December 12, 1996 Filed: October 16, 1997

____________ Be fore McMILLIAN and MAGILL, Circuit Judges, and WEBBER, Distric t * Judge.

____________
McMILLIAN, Circuit Judge.

Karen Snow (“appellant” or “Snow”) appeals from a final order entered in the United States District Court for the D istrict of Minnesota granting summary judgment 1-2-

in favor of Ridgeview M edical Center (“appellee” or “RMC”) on her Americans with Disab ilities Act (“ADA”), Age Discrimination in Employment Act (“ADEA”), an d state law claims. Snow v. Ridgeview Med. Ctr. , No. 4-94-13 (D. Minn. Mar. 29 , 1996) (m emorandum opinion). For reversal, appellant argues that the district cour t erred in holding that appellant (1) was not disabled within the meaning of the ADA and the Minnesota Human Rights Act (“MHRA”); ( 2) was not discriminated against based upon her a ge; and (3) did not establish a triable dispute in respect of her state la w claims for breach of contrac t, promissory estoppel, and breach of an implied covenant of good faith and fair dealing. For the reas ons discussed below, we affirm the order of the district court.

I. Jurisdiction
Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1331 and 1367. Jurisdiction on appeal is proper based upon 28 U.S.C. § 1291. The notice o f app eal was timely filed under Rule 4(a) of the Federal Rules of Appellate Procedure.
II. Background

The follo wing recitation of undisputed facts is based upon the findings of th e dist rict court. Snow was employed by RMC from 1964 until she was terminated i n 1992. Snow was hired as a laboratory and radiological technician. In th is capacity, she performed laboratory tests, electrocardiograms, and x-rays.
In 1971, Snow underwent cervical fus ion and took a six-week leave of absence because of

an injury that she sustained in a non-work-related accident in 1969. Sh e ret urnedto work with a recommendation from her physician that she not lift withou t assistance. Her physician eliminated this lift restriction approximately six months to a year after her surgery.-3-

Around 1972 or 1973, appella nt was promoted to Chief Radiology Technician. Her duties in this new position included performing administrative tasks as well as the diagnostic services that she performed before her promotion. Snow held this position until April 1988, at which time she informed appellee that she was experiencin g difficulty lifting as a result of the 1969 accident. Snow then consulted a physician who recommended that Snow refrain from lifti ng more than twenty-five (25) pounds, lifting patients, and pushing heavy equipment. In consideration of these restrictions, appellee created t he position of “radiology services coordinator,” to which appellant wa s assigned. This new position conformed with Sno w’s medical restrictions and involved the performance of administrative duties, as well as staff technician duties “a s required.” In 1989, Snow’s physician recommended that Snow observe the same work restrictions that were in place in 1988. That same year, Snow began performin g mammographies which took approximately on e-and-a-half to two-and-a-half hours per day and suited her physical limitations.

In 1991, RMC began steps to become accredited by the American College of Radiology (“ACR”). In order for RMC to receive accredi tation, all of its technologists performing mammographies had to be certified by the American Re gistry of Radiologic Technol ogists (“ARRT”). RMC informed Snow that she must become certified i n order to continue performing mammographies at RMC. Snow investigated th e requirements for certification but did not obtain certification prior to her termination, at least eight months later. In 1992, RMC applied for and received accreditation, after whic h time appellant was no longer qualified to perfo rm mammographies. RMC sought alternative ways to
em ploy Snow full-time within her work restrictions and in accordance with it s
accr editation requirements. RMC contacted appellant’s physician to determin e appellant’s then-current work restrictions. Her physician recommended t he same lifting restriction as that recommended in 1988 and 1989. Based on this information and in light of Snow’s lack of certification, RMC determined that there was not a sufficient-4-

amount of work that Snow could perform to maintain her status as a full-tim e coordinator . RMC thus offered Snow an administrative position within the radiology department at one-tenth full -time status. Later, RMC determined that Snow could not be utilized and terminated her.

RMC’ s employee handbook provides that employees may be terminated fo r “justcause.” It further states that RMC deals with its employees “fairly and in good faith.” At the time appellant was fired, she was forty-nine years old and had worked for appellee for approximately twenty-nine years.
Appellant brought the underlying suit in federal district court alleging federa l stat utory claims under the ADA and the ADEA, state statutory disability and ag e discrimin ation claims under the MHRA, and state common law claims for breach o f contract, promissory estoppel, and breach of an implie d covenant of good faith and fair dealing. RMC moved for summary judgment on each of these claims. The distric t court entered judgment granting RMC’s motion from which Snow now appeals.

II. Discussion

A. Standard of Review

We review a di strict court’s grant of summary judgment de novo, applying the same standard as the district court and examining the record in the light most favorable to the nonmovant. Lang v. Star Herald , 107 F.3d 1308, 1311 (8 Cir. 1997) (citin g th Barge v. Anheuser-Busch, Inc. , 87 F.3d 256, 258 (8 Cir. 1996)), cert. denied , th No. 96- 9275, 1997 WL 336894 (U.S. Oct . 6, 1997)). Summary judgment i s appropriat e if the evidence demonstrates “that there is no genuine issue as to an y material fact and that the moving party is entitled to a judgment as a matter of law. ” Fed. R. Civ. P. 56(c); see Anderson v. LibertyLobby, Inc. , 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510 (1986); Matsushita Elec. Indus. Co. v . Zenith Radio Corp. , 475 U.S.-5-

574, 586-87, 106 S. Ct. 1348, 1355-56 (1986). Because discrimination cases often turn
on infe rences rather than on direct evidence, we are particularly deferential to th e
no nmovant. Crawford v. Runyon , 37 F.3d 1338, 1341 (8 Cir. 1994) ( Crawford )

. th Indeed, we have stated that “summary judgment should seldom be used in emp loymentdiscrimination cases.” Id

. Notwithstanding these considerations, summary judgment is proper when a pla

intiff fails to establish a factual dispute on an essential element of her case. Se e Bialas v. Greyhound Lines , Inc., 59 F.3d 759, 762 (8 Cir. 1995 ) th ( Bialas ).
B. ADA and MHRA Disability Discrimination Claims Snow challenges th e district court’s determination that she failed to establish a prima fac ie case with respect to her ADA and MHRA claims for disabilit y discrimination. Specifically, Snow argues that the district court erred in finding that she had not establish ed that she was disabled within the meaning of the statutes. Second, Snow maintains that she is a “qualified individual” for whom RMC failed to provide reasonable accommodation.

The ADA proscribes discrimination by an employer “against a qualifie d individual with a disability because of the disability of such individual.” 42 U.S.C

. § 12112 (a). Similarly, the MHRA creates a civil cause of action against employer s who discharge an employee based on that indiv idual’s disability. Minn. Stat. § 363.03 subd. 2(b). The basic burden-shifting framework set forth in McDonnell Do uglas Corp. v. Green , 41 1 U.S. 792, 802, 93 S. Ct. 1817 (1973) ( McDonnell Douglas ), applies to claims brought under either statute. See, e.g. , Helfter v. United Parcel Serv., Inc. , 115 F.3d 613, 616 (8 Cir. 1997) ( Helfter) (“Federal courts analyze disabilit y discrimination th claims by using the burden-shifting framework established in McDonnell Douglas

. . . .”); Crawford , 37 F.3d at 1341 (ap plying McDonnell Douglas burden-shifting test to disability discrimination claim); Sigurdson v. Carl Bolander & Sons, Inc. , 532 N.W.2d 225, 227 (Minn. 1995) (adopting McDonnell Douglas test to adj udicate cause of actionAt summary judgment, appellant sought to prove her prima facie case b y 2 establishing that s he had a physical impairment that substantially or materially limited a major lif

e activity. On appeal, appellant argues that the evidence supports th e findings that she has a disability, has a history of disability, and w as perceived by RMC as havin g a disability. However, in concluding that Snow had failed to establish a prima facie case under the ADA, the district court relied solely on her argument tha t her impairment substantially li mits one or more major life activities–the only theory of disability raised below. Memorandum Opinion at 9-12. The district court, thus, did
-6- for disability discrimination); Lindgren v. Harmon Glass Co. , 489 N.W.2d 804, 80 8 (Minn. Ct. App. 1992) (using McDonnell Douglas analysis f or disability discrimination claim under the MHRA). Under this framework, a plaintiff must establi sh a prima facie case by showing that she (1) was “disabled ” within the meaning of the statute; (2) was qu alified to perform the essential functions of the job, with or without reasonabl e accommodatio n; and (3) suffered an adverse employment action under circumstances giving rise to an inference of unl awful discrimination. Webb v. Garelick Mfg. Co. , 94 F.3 d 484 (8 Cir. 1996); Price v. S-B Power Tool , 75 F.3d 362, 365 (8th Cir.), cert

.

th denied , --- U.S. ---, 117 S. Ct. 274 (1996). Once the plaintiff has establ ished her prima facie case, the burden of production shifts to the employer to articulate a legitimate , nondiscriminatory

reason for its actions. McDonnell Douglas , 411 U.S. at 802, 93 S. Ct. at 1824. If the employer successfully makes this showing, th e burden of production shifts back to the plaintiff to demonstrate that the employer’s proffered reason is a pretext for unlawful discrimination. St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502 , 507-08, 113 S. Ct. 2742, 2747-48 (1993) ( Hicks ). The ultimate burden of provin g unla wful discrimination always rests with the plaintiff. Id. at 507, 113 S. Ct. at 2747 (citing McDonnell Douglas , at 253, 101 S. Ct. at 1093). The di strict court found that appellant failed to establish that she was disabled within the meaning of the applicable statutes. A plaintiff may prove disability b y showing that she either (1) has a disability as defined under the ADA, (2) suffers from
a h istory of such a disability, or (3) is perceived by her employer as having such a disability. 42 U.S.C. § 12102(2)(A)-(C). Disability is defined as a physical or

2not have an opportunity to consider at sum mary judgment, appellant’s arguments with res pectto the alternative theories of disability under 42 U.S.C. § 12102(2)(A)-(C)

. Appellant is therefore precluded from arg uing either that she had a history of disability or was p erceived by RMC as having a disability. O.R.S. Distilling Co. v

. Brow n-Forman Corp. , 972 F.2d 924, 926 (8th Cir. 1992) (“[A] party may not asser t new arguments on appeal of a motion for summary judgment.”); see also Dorothy J. v. Little Rock Sch. Dist. , 7 F.3d 729, 734 (8th Cir. 1993); Felton v. Fayette Sch. Dist. , 875 F.2d 191, 192 (8th Cir. 1989).
Major life activities include “caring f or oneself, performing manual tasks, walking, 3 seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630 .2(i). Sitting, standing, lifting, and reaching are also considered major lif e activities. Helfter v. United Parcel Serv., Inc. , 115 F.3d 6 13, 616 (8 Cir. 1997) (citing th 29 C.F.R. § 1630.2(i)).
-7- mental impairment that substantially (ADA) or materially (MHRA) limits one or more of th e plaintiff’s major life activities. Id. ; Minn. Stat. § 363.01 subd. 13. Whether an 3 impairment substantially limits a major life activity is a threshold question. See 4 2 U.S.C. § 12 112(a); Krauel v. Iowa Methodist Med. Ctr. , 95 F.3d 674, 677 (8 Cir

. th 1996) (“The threshold requirement for coverage under the ADA is that the plaintiff be a ‘qualified individual with a disability.’”). T o “substantially limit” a major life activity means to render an individual unable to perform a ba sic function that the average person in the general populat

ion can perform, or to significantly restrict the condition, manner,
or duratio n under which an individual can perform a particular major life activity a s compared to an average person in the general population. 29 C.F.R. Pt. 1630, App. § 1630.2(j). “The inability to perform a single particular job does not constitute a substantial limitation in the major life activity of working.” Id. § 1630.2(i). Rather, the impa irment must prevent the appellant from performing an entire class or broad range of jobs as compared to the average person possessing comparable training, skills, and abilities. Aucutt v. Six Flags Over Mid Am., Inc. , 85 F.3d 1311, 1319 (8 Cir. 1996 ) th ( Aucutt ) (citing 29 C.F.R. § 1630.2(j)(3)(i)). Finally, the following factors ar e considered in determining whether a person is substantially limited in a major lifeAppellant belatedly argues that she has a hearing impairment which constitutes a 4 disabi lity under the ADA and the MHRA. Having not been raised in appellant’ s memoranda opposing summary judgment, this argument has no place before this court on appeal. See supra

note 2; see also Memorandum Opinion at 9 n. 4.

-8- activity: (1) the nature and severity of the impairment, (2) its duration or anticipated duration, and (3) its long- term impact. Id.
Appel lant maintains that her physical impairment “affects such activities a s performing manual tasks, hearing, lifting, an d working.” (Appellant’s Brief at 14-15). 4 The undisputed facts show that appellant sustained an injury in 1969 to her neck and spine for which her physician has imposed a lifting restriction since 1988. Whil e lifting is noted under the regulations as a major life activity, a general lifting restriction imposed by a physician, without more, is insufficient to constitute a disability within the meaning of the ADA. See, e.g. , Helfter ,115 F.3d at 617 (evidence that impairment limits work-related activities such as lifting does not demonstrate triable disput e regarding substantial limitation on major life activity); Aucutt , 85 F.3d at 1319 (twentyfive pound lifting restriction, without more, does not constitute a significant restriction on ability to perform major life activities). Likewise, Snow’s assertion that her ability to perform ma nual tasks and work is so impaired that it constitutes a disability i s unconvincing where there is no evidence that she is thereby precluded from performing
a class or broad range of jobs as compared to average persons in the genera l population. Helfter , 115 F.3d at 617; Aucutt , 85 F.3d at 1319. Indeed, appellant has pr esented no evidence from which to reasonably infer that any of the major lif e activities enumerated in 29 C.F.R. § 1630.2(i) is substantially or materially limited by her physical impairment. It is not enough that an impairment affect a majo r life activity; the plaintiff must proffer evidence from which a reasonable infer ence can be drawn that such act ivity is substantially or materially limited. E.g. , Helfter , 115 F.3d at 61 6 (co nclusory testimony regarding the limitation an impairment places on a major lif e activity standing alone is insufficient to defeat motion for summary judgment on aThe analysis of disability under both statutes is interchangeable. E.g. , Heintzelman 5 v. Runyon , 120 F.3d 143, 145 n.4 (8 Cir. 1997). th
-9- disability discrimination claim). The facts as determined by the district court an d prese nted in the parties’ briefs on appeal do not support such an inference

. Accordingly, we agree w ith the district court that there is no genuine issue of material fact regarding Snow’s assertion of a disability within the meaning of the ADA or the MHRA. 5
C. ADEA and MHRA Age Discrimination Claims Snow next argues that the district court erred b y granting summary judgment on her age discrimination claims brought under the ADEA and the MHRA. Both th e ADEA and the MRHA prohibit an employer from discharging an employee within a protected age group (40 years old and over) because of that employee’s ag e. 29 U.S.C. §§ 623(a)(1), 631(a); Minn. Stat. § 363.03 subd. 1(2)(b). Moreover, like appellant’s disability claim, her age discrimination claims under both statutes are governed by the McDonnell Dougl as burden-shifting framework. Bevan v. Honeywell, Inc. , 118 F.3d 603, 613 (8 Cir. 1997) ( Bevan ) (citing Rothmeier v. Investment Advisers, Inc. , 8 5

th F.3d 1328, 1338-39 (8th Cir. 1996); Feges v. Perkins Restaurants, Inc. , 483 N.W.2d 701, 710 (Minn. 1992)).

Snow asserts that she established a prima facie case for age discrimination by showing that (1) she was forty -nine years old when terminated, and thus, a member of the protected group; (2) she performed competently and satisfactorily for over 28 years, indica ting that she was a qualified individual within the meaning of the statute; an d (3) after her termination, the number of employees in her department increased fro m 16 to 20 and her duties were assigned to other employees. RMC re lied on Snow’s lack of certification as its nondiscriminatory reason for her termination. On the ultimat e issue of intentiona

l age discrimination, Snow alleged that she was terminated because-10-

she was the “senior most employee [ at RMC], making good money.” (Snow Depo. at 81). In essence, Snow argues that she was termin ated because she had been employed at RMC longer than the other then-current employees, and thus earned a comparatively higher salary. The district court granted RMC summary judgment in light of th e Supreme C ourt’s holding in Hazen Paper v. Biggins , 507 U.S. 604, 113 S. Ct. 170 1 (1993) ( Hazen Paper ), and the precedent in this circuit. See Hanebrink v. Brown Shoe Co. , 110 F.3d 644, 647 (8th Cir. 1997) ( Hanebrink ); Slathar v. Sather Trucking Corp ., 78 F.3d 415, 418 (8th Cir.), cert. denied , --- U.S . ---, 117 S. Ct. 179 (1996); Bialas , 59 F.3d at 763.

In Hazen Paper , the Court held that “there is no disparate treatment under the ADEA w hen the factor motivating the employer is some feature other than th e employer’s age. ” Id. at 1705. The plaintiff in Hazen Paper alleged discrimination on the ground that his employer fired him because his pension was close to vesting. Id. The Court held that firing an employee on this basis i s not actionable under the ADEA. The Court reasoned that, “because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily ‘age-based.’” Id. at 1707. Under Hazen Paper , the evide nce in the instant case is insufficient, as a matter of law, to sho w that Snow’s termination was based upon her age. Id. at 1707; see als o Hanebrink , 110 F.3d at 647 (“Employment decisions motivated b y characteristics other than age such as salary a

nd pension benefits, even when such characteristics correlate with age, do not constitute age discrimination.”).

While we agree with the district court’s conclusion that RMC is entitled t o summary ju dgment on Snow’s age discrimination claims under Hazen Paper , we also note that a plaintiff may, in some inst ances, prove intentional discrimination by relying
on the eviden ce proffered to establish his or her prima facie case under the burden

shifting metho d. See Hicks , 509 U.S. at 511, 113 S. C t. at 2749 (“[T]he factfinder’s disbelief of the reasons put forward by the defendant . . . may , together with theI f appellant cannot establish that she was discriminated against under the ADEA, 6 she likew ise has no claim for age discrimination under the MHRA. See Bevan v

. Honeywell , Inc. , 118 F.3d 603, 613 (8 Cir. 1997) (“[W]e review the MHRA clai m th under the same standards as we applied to the ADEA claim.”). -11- elements of the prima facie case, suffice to show intentional discrimination .”) (emphasis added ). However, appellant has failed to proffer any competent evidence (direct o r indirect) of age discrimination beyond that which is in tended to support her prima facie case, and the evidence proffered in support of Snow ’s prima facie case is not sufficient to cr eate a genuine dispute regarding intentional age discrimination. We therefor e agree with the district court that RMC was entitled to summary judgment on appellant’s ADEA and MHRA claims. 6

D. Breach of Contract Claims

Snow as serts that her termination was in breach of a contractual agreemen t contained in RMC’s employee handbook. RMC’s employee handbook provides that employees may be terminated for “ju st cause” and that RMC deals with its employees “fairly and in good faith.” Pursuant to Minnesota law, an employee handbook may form an enforceable agreement if the requisite s for a unilateral contract have been met. Pine Ri ver State Bank v. Mettille , 333 N.W.2d 622, 627 (Minn. 1983) ( Mettille )

. Moreo ver, while there is no implied covenant of good faith and fair dealing i n employment

contracts under Minnesota law, we have held that “the same specificity required t o modify the at-will relationship” may also create an express covenant o f good faith and fair dealing. Poff v. Western Nat’l Ins. Co. , 13 F.3d 1 189, 1191 (8 Cir. th 1994) (emphasis added). Absent an expr ess contract, however, there is a presumption of at-will employment. Mettille , 333 N.W.2d at 627. An at-will employee may b e terminated at any time for no reason at all. Id.-12-

We agree wi th the district court that appellant was an at-will employee. Th e language cited above from the RMC employee handbook lacks the specificity an d definiteness required of a unilateral contract. See, e.g. , Hunt v. IBM Mid Am. Fed

. Employees Credit Union , 384 N.W.2d 853, 856-57 (Minn. 1986). Accordingly , appellant’s status as an at-willemployee was not modified by the employee handbook nor did the handbook create an express convenant of good faith and fair dealing. We agree there fore with the district court that RMC is entitled to summary judgment o n appellant’s breach of contract claims.
E. Promissory Estoppel
Finally, appellant claims that as early as 1988, managing personnel at RMC told her that she would “always have a position with Ridgev iew Hospital,” thereby creating a promise upon which she detrimentally relied. In addition, appell ant maintains that the language in the employee handbook created a promise that she would n ot be terminated
w ithout just cause. This latter argument is moot for the same reason that it could not support a claim for breach of contrac t. Moreover, we agree with the district court that ap pellant failed to demonstrate a genuine issue as to essential elements of he r promissory estoppel claim.
In order to assert a claim for promissory estoppel, a plai ntiff must establish each of the f ollowing elements: (1) a promise, (2) detrimental reliance, and (3) injustice

. Ruu d v. Great Plains Supply, Inc. , 526 N.W.2d 369, 372 (Minn. 1995). The law i s hesitant to impos e on an employer the burdensome obligation of providing permanent employment in the absence of an explicit promise to that effect. See Degen v. IDS , Inc. , 260 Minn. 424, 428-29, 110 N.W.2d 863, 866- 67 (1963). Moreover, t he promise

m u st be of the kind to reasonably induce forbearance. Grouse v. Group Health Plan , 306 N.W.2d 114, 116 (Minn. 1981).-13-

The district court held that Snow failed t o establish that she detrimentally relied
on RMC’s promise. After carefully reviewing the record in this case, we agree. On appeal, Snow fails to present any evidence of her reliance except her assertion that she stayed at RMC for twenty-nine years and did not seek other employment or additional certification in her field in reliance on RMC’s “promises.” The statements allegedly made by RMC managers, upon which Snow relies could not reasonably induce such reliance when Snow was subsequently informed by RMC that she would need to seek certification in order to maintain her status as a full-time employee at RMC

. Acc ordingly, we agree with the district court that RMC has entitled to summar y judgment on this claim.

III. Conclusion
For the reasons stated in this opinion, we affirm the district court’s grant of summary judgment on appellant’s ADA, ADEA, and state law claims. In addition, appellee’s motion to strike portions of appellant’s brief and appendix is hereby denied as moot.
A true copy.

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