1

The Honorable Lyle E. Strom, United States District Judge for the District of

Nebraska. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-2959

___________

Stephen C. Orr, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Wal-Mart Stores, Inc., *

*

Appellee. * 

___________

Submitted: April 19, 2002

Filed: July 22, 2002

___________

Before BOWMAN, LAY, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

Stephen Orr (Orr) filed a law suit against Wal-Mart Stores, Inc. (Wal-Mart)

alleging violations of the Americans with Disabilities Act (ADA) and the Nebraska

Fair Employment Practices Act (NFEPA). Concluding Orr failed to show he was

disabled under either the ADA or the NFEPA, the district court1

 granted summary

judgment in favor of Wal-Mart. Orr appeals. We affirm.
2

The applicable part of the Wal-Mart Breaks/Lunch Period policy stated:

In pharmacies with one pharmacist on duty, the pharmacist cannot leave

the pharmacy area unsupervised for any regular length of time for breaks

or lunch periods. Therefore, the pharmacist will take time between busy

periods for a break or eating lunch in the pharmacy prescription area.

(emphasis in original).

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I. BACKGROUND

Stephen Orr is a pharmacist licensed in Nebraska, Wyoming, and South

Dakota. In 1986, Orr was diagnosed with diabetes. To control his diabetes, Orr uses

a glucometer to monitor his blood glucose levels, takes insulin, and eats a special diet

within thirty minutes of taking insulin. During the time relevant to this lawsuit, Orr

injected insulin three times each day – in early morning, at noon, and before bedtime.

Orr controls his disease to the best of his ability. When his diabetes is not well

controlled, he suffers from vision impairment, low energy, lack of concentration and

mental awareness, lack of physical strength and coordination, slurred speech,

difficulties typing and reading, and slowed performance.

In January 1998, Orr became employed full time as a pharmacist at a Wal-Mart

store in Chadron, Nebraska. This Chadron store was a single-pharmacist Wal-Mart

facility, and Orr was the only pharmacist on duty during his work day. Before

accepting employment, Orr informed Wal-Mart District Manager Rick Coleman

(Coleman) he was an insulin-dependent diabetic. Coleman authorized Orr to take a

lunch break and mid-day breaks during his ten-hour work shift. Orr understood

Coleman to authorize him to take an uninterrupted lunch break, and Orr routinely

closed the pharmacy for thirty minutes over the noon hour to eat lunch. 

John Foss (Foss) succeeded Coleman as district manager in charge of the

Chadron store. Foss informed Orr that Wal-Mart policy2

 required the pharmacy to
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remain open during store hours and instructed Orr not to close the pharmacy during

his lunch break. Orr did not comply with Wal-Mart policy and continued to close the

pharmacy for thirty minutes in order to take an uninterrupted lunch. On March 5,

1998, Foss issued Orr a written warning for closing the pharmacy. The written

warning stated that further non-compliance would result in Orr’s termination.

Orr responded in writing to the warning with his "action plan" and without

mentioning his diabetes.

Per this presentation & our discussion of the issues a[t] hand. I

respectfully protest this presentation & Decision-Making Day. My

understanding of time off for lunch & breaks apparently was a

misunderstanding of company policy as presented by Rick Coleman.

My leaving the Pharmacy on 2/25 was specifically for company

(Pharmacy) business to pick up a CII Rx at the Clinic.

I will from this date forward take my lunch break within the confines of

the Pharmacy & maintain the opening of the Pharmacy from 9-7AM

Mon.-Fri & 9-6 on Sat during my scheduled days shift. 

Orr initially abided by Wal-Mart's policy and kept the pharmacy continuously

open during store hours. However, a week after receiving the written warning, Orr

wrote to Foss requesting he rescind the written warning based on Orr's original

understanding and agreement with Coleman. Orr stated, in part: "I had discussed

with Rick Coleman during the interview process conducted at Wal-Mart in Rapid

City, that I was an Insulin Dependent Diabetic. Rick Coleman agreed that I could

take lunch breaks." On April 8, 1998, after receiving no response, Orr wrote to Foss

again asking him to remove the written warning from Orr's personnel file. In his

second letter, Orr informed Foss that, due to his adherence to Wal-Mart policy

requiring the pharmacy to remain open, he was unable to eat until "much after noon,

resulting in my experiencing symptoms of hypoglycemia." Orr expressed concern
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that not having an uninterrupted lunch break could adversely affect the control of his

diabetes. 

On April 17, 1998, Foss wrote to Orr and advised him that the written warning

would not be rescinded. Foss said he had discussed the situation with higher

management. Foss’s letter informed Orr that Coleman denied ever authorizing Orr

to close the pharmacy to take a lunch break. In his letter Foss also explained that

Wal-Mart had always permitted Orr to control his diabetes by bringing food into the

pharmacy, providing access to a refrigerator, and allowing him to eat or snack in the

pharmacy.

On April 24, 1998, Orr wrote Foss and again asked him to rescind the written

warning. Orr’s letter relayed to Foss that working in the pharmacy without an

uninterrupted daily lunch break was adversely affecting the control of his diabetes.

On May 7, 1998, Orr wrote another letter to Foss, informing him that, as a result of

the no lunch break policy, Orr had incurred "several low, hypoglycemic incidents."

Orr expressed his disappointment with Wal-Mart's indifference to his needs as a

diabetic, and Orr informed Foss he was resuming noon lunch breaks away from the

pharmacy for the maintenance of his diabetic health. Thereafter, Foss terminated Orr.

II. DISCUSSION

Orr argues the district court erred in finding he was not disabled within the

meaning of the ADA. Under the ADA, a disability is defined as "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).

The disability discrimination provisions in the NFEPA are patterned after the

ADA, and the statutory definitions of "disability" and "qualified individual with a

disability" contained in the NFEPA are virtually identical to the definitions of the

ADA. See Neb. Rev. Stat. Ann. § 48-1102(9) & (10); 42 U.S.C. §§ 12102(2),
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12111(8). In construing the NFEPA, Nebraska courts have looked to federal

decisions, because the NFEPA is patterned after Title VII and the ADA. See, e.g.,

Father Flanagan's Boys' Home v. Agnew, 590 N.W.2d 688, 693 (Neb. 1999); IBP,

Inc. v. Sands, 563 N.W.2d 353, 357-59 (Neb. 1997). We therefore employ the same

analysis to determine whether Orr’s diabetes constitutes a disability under both the

ADA and the NFEPA. 

 In Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999), the Supreme

Court held that the threshold inquiry whether an individual is disabled is analyzed on

an individualized basis. The Court concluded that a diabetic is not per se disabled but

must demonstrate his condition substantially limits one or more major life activities.

Id. at 482-83. The Court emphasized that "[a] person whose physical or mental

impairment is corrected by medication or other measures does not have an impairment

that presently 'substantially limits' a major life activity." Id. at 482-83.

Orr claims his diabetes substantially affects his ability to see, speak, type, read,

and walk. Orr also argues "it would not be unreasonable to expect that [his] diabetic

condition will significantly disrupt his lifestyle." (emphasis added). Orr also contends

that if he fails to properly monitor and treat his diabetes, then he "could experience"

adverse symptoms which "would . . . substantially limit [his] major life activity of

working." (emphasis added).

The Supreme Court in Sutton expressly ruled that "[a] 'disability' exists only

where an impairment 'substantially limits' a major life activity, not where it 'might,'

'could,' or 'would' be substantially limiting if mitigating measures were not taken."

Sutton, 527 U.S. at 482 (emphasis added). Therefore, neither the district court nor

we can consider what would or could occur if Orr failed to treat his diabetes or how

his diabetes might develop in the future. Rather, Sutton requires that we examine

Orr’s present condition with reference to the mitigating measures taken, i.e., insulin

injections and diet, and the actual consequences which followed. See id.
3

In Sutton, the Supreme Court assumed working is a major life activity, but

questioned whether it is, noting the EEOC's reluctance to define "major life activities"

to include working and its suggestion that working be considered a "residual life

activity." Sutton, 527 U.S. 492 (citing 29 C.F.R. pt. 1630, App. § 1630.2(j) (1998)).

More recently, the Supreme Court expressed skepticism as to whether working can

be a major life activity, but did not decide the issue. Toyota Motor Mfg., Ky., Inc. v.

Williams, 534 U.S. 184, ___, 122 S. Ct. 681, 692 (2002) ("Because of the conceptual

difficulties inherent in the argument that working could be a major life activity, we

have been hesitant to hold as much, and we need not decide this difficult question

today."). In this circuit we have followed Sutton and Toyota in assuming, without

conclusively ruling, that working constitutes a major life activity for purposes of

applying the ADA. See Duty v. Norton-Alcoa Proppants, No. 01-1478, 2002 WL

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In resisting summary judgment, Orr failed to present evidence explaining either

how diabetes substantially affects his major life activities or the duration and

frequency of any limitations. "[M]ost disabilities from which people suffer,"

including diabetes, "do not have a substantial enough effect on their major life

activities." Berg v. Norand Corp., 169 F.3d 1140, 1145 (8th Cir. 1999) (quoting

Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d 667, 675 (7th Cir. 1998)). Health

conditions that cause moderate limitations on major life activities do not constitute

disabilities under the ADA. See Taylor v. Nimock's Oil Co., 214 F.3d 957, 960 (8th

Cir. 2000) (heart disease); Weber v. Strippit, Inc., 186 F.3d 907, 914 (8th Cir. 1999)

(heart disease). To hold otherwise could expand the ADA to recognize almost every

working American as disabled to some degree.

Our review of the record establishes that Orr does not have an actual disability

which presently and substantially limits a major life activity. He, therefore, is not

disabled under the ADA or the NFEPA.

On appeal, Orr argues eating is a major life activity that is substantially limited

due to his diabetes, and the necessity of adhering to a strict dietary regimen

substantially limits the major life activity of working.3

 He urges this panel to adopt
1312197, at *17 n.3 (8th Cir. June 18, 2002); Kellogg v. Union Pacific R.R., 233 F.3d

1083, 1087 (8th Cir. 2000).

4

We note Lawson was first cited by the district court in a footnote within its

Memorandum and Order granting summary judgment.

5

Had Orr established a prima facie case of actual disability under the ADA,

Wal-Mart could have raised the threat-to-self defense. Wal-Mart could have argued

that, accepting Orr's contentions at face value, working in a single-pharmacist

pharmacy, which did not provide for uninterrupted meal breaks, posed a direct threat

to Orr's health and that Wal-Mart was justified in not continuing his employment.

See Chevron U.S.A. Inc. v. Echazabal,122 S. Ct. 2045 (2002). 

6

Even if the limitations on Orr's ability to eat can be tied to his ability to work,

they cannot salvage his claim under the ADA. "When the major life activity under

consideration is that of working, the statutory phrase 'substantially limits' requires,

at a minimum, that plaintiffs allege they are unable to work in a broad range of jobs."

Sutton, 527 U.S. at 491. See also 29 C.F.R pt. 1630.2(j)(3)(i), App. § 1630.2(j)

(2000). The record reveals only that Orr's diabetic condition occasionally produced

symptoms which moderately impaired his performance as a pharmacist in a singlepharmacist-on-duty retail store. In contrast to the diabetic plaintiff in Lawson, Orr

consistently performed the essential functions of a pharmacist before, during, and

after his employment with Wal-Mart. Because Orr's diabetes, as portrayed by the

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the holding of a recent Seventh Circuit case that, in the context of insulin-dependent

diabetes, eating constitutes a major life activity. See Lawson v. CSX Transp., Inc.,

245 F.3d 916, 923 (7th Cir. 2001).4

 Orr did not allege in his complaint or argue in the

district court that eating is a major life activity which is substantially limited because

of his diabetes.5

 Ordinarily, we do not consider an argument raised for the first time

on appeal. See Shelton v. ContiGroup Cos., 285 F.3d 640, 643 (8th Cir. 2002); Berg,

169 F.3d at 1145. We consider a newly raised argument only if it is purely legal and

requires no additional factual development, or if a manifest injustice would otherwise

result. Orion Fin. Corp. of S.D. v. Amer. Foods Group, Inc., 281 F.3d 733, 740 (8th

Cir. 2002). Orr does not persuade us that either exception applies. We therefore

decline to consider the argument on appeal.6
record in this case, at most, only moderately limits his ability to perform a particular

specialized job or a narrow range of retail pharmacist jobs, his diabetic condition does

not place substantial limitations on his ability to work.

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III. CONCLUSION

For the reasons cited above, we affirm the judgment of the district court.

LAY, Circuit Judge, dissenting.

I respectfully dissent.

Based upon the evidence in this particular case, I think the court errs in holding

that the claimant, Stephen C. Orr, was not disabled as a matter of law within the

meaning of the Americans with Disabilities Act of 1990 (ADA). The court refuses

to consider Orr’s contention that he was substantially limited in the major life

activities of working and eating because the Seventh Circuit decision upon which he

relies, Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001), is first cited in a

footnote in the district court’s decision. I know of no precedent in this or any other

circuit that says a party must cite a particular case in the district court in order to rely

upon it on appeal. 

The majority opinion cites Shelton v. ContiGroup Cos., 285 F.3d 640 (8th Cir.

2002), and Berg v. Norand Corp., 169 F.3d 1140 (8th Cir. 1999), to support its refusal

to entertain Orr’s argument. The court’s reliance on these cases is misplaced. In

Berg, we refused to allow a plaintiff to claim for the first time on appeal that her

employer perceived her as disabled. Berg, 169 F.3d at 1145. Under the ADA, “being

regarded” as disabled--as opposed to actually being disabled--is a separate and

distinct basis for liability. Compare 42 U.S.C. § 12102(2)(A) with § 12102(2)(C).

Here, however, Orr’s argument has consistently been that he suffered from “a
7

The majority suggests that under Sutton, the Supreme Court has not yet

decided whether working is one of life’s major activities. It is much too late in the

day in this circuit to hold that working may not be one of the major life activities

under the ADA. See Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 954-55

(8th Cir. 1999); Helfter v. United Parcel Service, 115 F.3d 613, 617 (8th Cir. 1997).

Such dicta is a poor crutch to deny Orr, or any other ADA litigant, his day in court.

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physical . . . impairment that substantially limits one or more of [his] major life

activities.” 42 U.S.C. § 12102(2)(A). While it is generally true that courts “do not

consider arguments first raised on appeal,” Shelton, 285 F.3d at 643, this does not

preclude us from considering Orr’s use of Lawson to support his argument that he

suffers from a disability affecting one or more of life’s major activities.

The majority faults Orr for not raising the issue of “eating” as a limitation on

one of his life’s major activities before the district court. In all due respect, this is a

myopic treatment of the record before the district court. Orr’s entire case turned on

the refusal of his employer to allow Orr to follow a dietary regimen. Orr’s argument

focused on eating but eating is inextricably related to “working.”7

 As the district

court acknowledged, plaintiff claimed that he was substantially limited in his ability

to work. This claim, however, was obviously based upon Orr’s ability to control his

regulated diet and insulin injections. Thus, eating at defined times is directly related

to his ability to work. Orr’s whole complaint as well as the evidentiary record relates

to Wal-Mart’s refusal to allow Orr to eat during a lunch break. To suggest eating was

not raised in the district court slights the entire evidentiary record. Orr’s claim before

the district court is that if he is not allowed to follow his dietary regimen, he becomes

completely disabled. 

In Lawson, the Seventh Circuit discussed eating as one of life’s major

activities, but did so in terms of Lawson’s ability to work: “Mr. Lawson’s diabetes

has limited substantially his ability to work in a broad class of jobs. . . . We believe

that a jury could conclude, from this evidence, that Mr. Lawson can show that a
8

We note Lawson was decided barely two weeks before Orr’s response to the

defendant’s motion for summary judgment was filed. It does not, therefore, seem so

unusual for that decision to be cited for the first time in the district court’s

Memorandum and Order granting summary judgment, issued some four months later.

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record exists indicating that his diabetes has limited substantially his ability to work.”

245 F.3d at 926-27. The court reasoned that the plaintiff “must always concern

himself with the availability of food, the timing of when he eats, and the type and

quantity of food he eats.” Id. at 924. Because the ADA “addresses substantial

limitations on major life activities, not utter inabilities,” Bragdon v. Abbott, 524 U.S.

624, 641 (1998) (cited in Lawson, 245 F.3d at 924), the Seventh Circuit went on to

hold that “[t]he district court failed to consider the extent of the restrictions imposed

by Mr. Lawson’s treatment regimen and the consequences of noncompliance with that

regimen.” Lawson, 245 F.3d at 924. As explained in his brief, Orr has experienced

“seizures, deteriorated vision, slurred speech, frequent urination, lack of

concentration, awareness, coordination, strength, and consciousness, all of which can,

and frequently does [sic], result in hospitalization.” These allegations are not what

“could” happen, but are evidentiary proofs of what has happened when Orr is not

allowed to follow a rigid discipline of eating at a scheduled time. This is verified

through the record by Orr’s deposition and medical reports. I respectfully submit that

we should follow Judge Ripple’s reasoning in Lawson, and hold Orr’s eating and

working are fundamental, major life activities that are substantially limited due to his

diabetes. A distinguished panel of Judge Cudahy and Judge Easterbrook joined Judge

Ripple, and I find it unreasonable to ignore our sister circuit simply because of the

mistaken belief that plaintiff’s counsel failed to raise that argument in the district

court.8

 Furthermore, our review should be based on the full evidentiary record before

us, not limited to cited cases.

Orr also testified that when he was hired by Wal-Mart, he told them of his

disability and Wal-Mart agreed that they would accommodate his eating habit at

noon. The district court noted that this fact was denied by Wal-Mart, but held it was
9

There is additional proof that Wal-Mart has now changed its policy and allows

an uninterrupted lunch break at its single-pharmacist store in Chadron. This relates

to the claim that Wal-Mart refused to make a reasonable accommodation and is

further proof of a pretextual reason for Orr’s discharge. These proofs address factual

issues appropriate for a jury’s resolution. 

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not material to the issue at hand. I respectfully disagree. I think these claims set forth

genuine issues of material fact relating to the questions of disability and reasonable

accommodation. See Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 949-50

(8th Cir. 1999). These claims should therefore be submitted to the trier of fact.9

 

In conclusion, I submit that this is not an appropriate case for summary

judgment by the court.

On this basis, I respectfully dissent.

A true copy.

Attest:

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