United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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Nos. 97-3567, 97-3620, 97-4071, 97-4197

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Winifred Browning, *

*

Appellee/Cross-Appellant, *

*

v. * Appeals from the United States

* District Court for the Eastern

Liberty Mutual Insurance Company, * District of Arkansas.

*

Appellant/Cross-Appellee. *

*

 *

*

Equal Employment Opportunity *

Commission, *

*

Amicus Curiae. *

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Submitted: December 16, 1998

Filed: June 2, 1999

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Before BEAM, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

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BEAM, Circuit Judge.

Winifred Browning was a long-term employee of Liberty Mutual. She

underwent surgery to treat cubital tunnel syndrome and returned to work part time. Her
1Cubital tunnel syndrome is the result of damage to, or compression of, the ulnar

nerve in the carpal tunnel at the elbow. See 5 Attorneys Medical Advisor, § 67:19

(Lee R. Russ, et al. eds.).

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employment was soon terminated and she commenced this action based on the

Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).

After a trial, the jury found for Browning on the ADA claim. Liberty Mutual appeals.

Browning cross-appeals the district court's denial of her motion for judgment as a

matter of law on the FMLA claim. Because we find that Browning failed to establish

that she was a qualified individual with a disability for purposes of the ADA, we affirm

in part and reverse in part.

I. BACKGROUND

Browning began working at Liberty Mutual in 1985 as a data entry clerk. She

performed well and was given several promotions and awards. She eventually attained

the position of Claims Representative II. This position involved working with another

representative as a two-person team to manage a certain class of claims. This entailed

heavy phone contact, computer keyboard work, and manual note taking. When she

received or placed a call relating to a claim, the computer needed to be searched to

bring up information pertaining to that claim, client, or policy. Information taken from

that call was then entered into the computer. If the amount of information was too

great, or if she was otherwise unable to enter it all into the computer simultaneously,

she would take handwritten notes and enter the information into the computer as soon

after the call as possible. Accurate and up-to-date information in the computer is

critical so that if someone else receives the next call regarding that claim, all current

information is available. 

The repetitive motion of her job injured the tendons in Browning's arm, and she

developed cubital tunnel syndrome in her right arm.1 Browning was placed on worker's
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compensation leave, and Dr. Hixon performed a cubital tunnel release on April 26

1995. Dr. Hixon allowed Browning to return to work beginning May 30 for four hours

per day for two weeks, then six hours per day for two weeks, and eventually to fulltime work by the end of June. In addition, she was provided with a telephone headset

and a dictaphone to record the information from her calls for later entry into the

computer by someone else. Dr. Hixon provided a work release to Browning that

limited her to no use of her right arm. However, the memo Dr. Hixon sent to Liberty

Mutual stated "minimal use of right arm."

Upon her return to work on May 30, Browning was told that she would be

working on property claims rather than injury claims, and that she would receive all her

assignments from her supervisor, rather than work with her partner. She was assigned

a markedly reduced number of claims and told that all her work would be reviewed on

a daily basis. The next day when asked what she was doing, Browning commented that

"I'm bored silly and I'm not doing anything." During the resulting conversation with

Mr. Hedrick, the claims manager, he leaned over his desk and yelled at Browning "So

what are you doing besides nothing? I didn't hire you for four hours a day for you to

sit there and do nothing." In the same conversation, Hedrick realized the discrepancy

between the release Dr. Hixon gave to Browning and the memo Dr. Hixon gave to

Liberty Mutual concerning the restriction on the use of her right arm. Browning was

told to stay home until the discrepancy could be resolved. She did not work the next

day, June 1, while Liberty Mutual sought clarification from Dr. Hixon's office. On June

2, Browning reported to work and spent the day primarily filling out a multi-page

survey. That was the last day Browning worked at Liberty Mutual.

Browning experienced pain and numbness in her arm over the weekend. On

June 5, while she was being driven to work by her sister, Browning's arm became very

painful and numb, such that she could not work. Browning became emotional and

began to cry. Browning did not report for work, and this condition continued

throughout the week. On Thursday, June 8, Browning had an appointment with Dr.
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Hixon. Browning testified, "I told her I needed more time. I told her I couldn't do it

like it was right now." 

Liberty Mutual has a call-in policy whereby employees must call and speak to

their supervisors if they are going to miss work. Since Browning did not have a phone

in her home, she would call from her sister's house or have her sister call for her. On

Monday, June 5, Browning's sister called her supervisor to explain that Browning's arm

had gone numb, she had "broken down," and that she would not be in that day. On

June 6 and 7, Browning attempted to call in, but was placed on hold, or was otherwise

unable to contact her supervisor or her manager, Hedrick. When Browning failed to

report on the 6, Hedrick spoke with Dr. Hixon's nurse to see if the doctor had

withdrawn the work release. The nurse reported that Browning had called the doctor

the day before, but the doctor did not change any of the restrictions. Browning's

supervisor contacted Dr. Hixon again on June 8, after Browning's scheduled

appointment. Dr. Hixon's office told her that Browning's restrictions had not changed,

and that Browning had stated to them that she quit her job at Liberty Mutual.

Liberty Mutual issued a termination notice on June 9, citing job abandonment.

At trial, Browning introduced evidence which indicated that the different treatment

upon her return, and her termination, were due to her cubital tunnel injury and the

resulting lack of productivity. 

Browning tried unsuccessfully to look for work, then enrolled in college in

August 1995. In January 1996, Dr. Hixon determined that Browning had reached her

maximum level of recovery and assigned a ten percent loss of use to her right arm. In

August 1996, a Functional Capacity Exam was performed on Browning which

determined that her ability to lift was limited to ten pounds with her right hand and a

twenty-pound limit over all. This limitation, as well as varying degrees of continued

pain and sensitivity were determined to be permanent. 
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After trial, a jury found for Browning on her ADA claim and awarded her

damages. The jury found for Liberty Mutual on the FMLA claim. Both sides moved

for judgment as a matter of law, and both were denied. Liberty Mutual appeals the

denial of its motion for judgment as a matter of law on the ADA claim, and Browning

cross-appeals on the FMLA claim.

II. DISCUSSION

A. The ADA Claim

We review the denial of a motion for judgment as a matter of law de novo using

the same standard as the district court. See Cox v. Dubuque Bank & Trust Co., 163

F.3d 492, 495-96 (8th Cir. 1998). We review questions of fact only to determine

whether the verdict is supported by substantial evidence, and we view the evidence in

the light most favorable to sustaining the verdict. See id. In order for a plaintiff to

recover on an ADA claim, she must establish that, at the time of the adverse

employment action: (1) she was a qualified individual; (2) she was disabled within the

meaning of the ADA; and (3) she was terminated because of her disability. See, e.g.,

Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995). 

Both parties spent great time and effort arguing over whether Browning's

impairment was a disability under the ADA, and whether she was terminated because

of her disability. We need not reach these issues because we find that Browning failed

to establish that she was a qualified individual under the ADA at the time of her

termination. Under the ADA, a qualified individual is an individual who, "with or

without reasonable accommodation, can perform the essential functions of the

employment position that such individual holds." 42 U.S.C. § 12111(8). The

determination of whether an individual is qualified for purposes of the ADA is a twostep process, and should be made as of the time of the employment decision. See 29

C.F.R § 1630.2(m) App. The first inquiry is to determine if the individual possesses
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the requisite skills, education, certification or experience necessary for the job. See id.

This is easily established by the fact that Browning previously held the position and

performed well. The second inquiry is to determine whether the individual can, despite

her impairments, perform the essential functions of the job either with or without

reasonable accommodation. See id. An ADA plaintiff may not rely on past

performance alone to establish that she is a qualified individual when the record clearly

reflects diminished or deteriorated abilities. See Mole v. Buckhorn Rubber Prods.,

Inc., 165 F.3d 1212, 1217 (8th Cir. 1999). The job for which Browning must be

qualified at the time of her discharge is not the temporary part-time position which she

tried and failed to return to, but rather the job she held prior to her surgery. See

Bowers v. Bethany Med. Ctr., 959 F. Supp. 1385, 1390 (D. Kan. 1997). Thus

Browning had the burden to prove that, with or without reasonable accommodation, she

could perform the essential functions of her job as it existed before her surgery.

However, the record reflects virtually nothing to indicate that, at the time Browning

was fired, she could perform the essential functions of her job with or without

accommodation.

Prior to her surgery, Browning's job entailed managing hundreds of claims. This

involved nearly constant telephone and data entry keyboard activities, as well as

manual note taking for entry into the computer immediately after the phone call. This

was a full-time position. Indeed, Browning often worked through her breaks just to

keep up with the work load. At the time of the alleged discriminatory termination,

Browning's doctor had released her to work only four hours per day and with such

restrictions that she could manage but a mere fraction of the claims she was responsible

for prior to her surgery, and could do no data entry. Browning herself contends that,

at the time, she was not sufficiently recovered to work even the reduced hours with the

changes Liberty Mutual had made to accommodate her recovery. Browning testified

about meeting with her doctor on June 8, "I told her I needed more time. I told her I

couldn't do it like it was right now." This is supported by the fact that Browning was

unable to report for work the entire week of June 5. Browning offers no evidence, and
2Browning did testify that she felt she could have performed the essential

functions of her job at the end of June, when she was scheduled to be back to full- time,

if she had accommodations–though she did not suggest what accommodations may

have been needed. 

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does not even attempt to claim, that at the time of her termination, she could have

performed the essential functions of her job with or without accommodation.2 

Carol Bryant, Browning's former workmate testified for Browning that

Browning's job could not have been performed using the dictaphone as an

accommodation. Further, it is axiomatic that in order for Browning to show that she

could perform the essential functions of her job, she must show that she is at least able

to show up for work. See, e.g., Moore v. Payless Shoe Source, Inc., 139 F.3d 1210,

1213 (8th Cir. 1998). Browning testified that she was unable to report to work the

entire week of June 5. Even if she could have reported to work, Browning was limited

to only four hours per day and she made no showing that the essential functions of her

full-time job could be performed in four hours. SeeBurnett v. Western Resources, Inc.,

929 F. Supp. 1349, 1356-57 (D. Kan. 1996) (plaintiff restricted to four hours per day

walking not qualified for full-time meter reader position).

The ADA is broad in its scope, but it only protects individuals who can perform

their job. Browning was terminated while recovering from her injury, and prior to the

point in her recovery when she could once again perform the essential functions of her

job. The fact that she continued to heal, gain strength and use of her arm, once again

becoming a qualified individual who could perform the essential functions of the job,

does not obviate the fact that she was not a qualified individual at the time of her

termination, and thus not under the protective umbrella of the ADA. 

This result is dictated by the plain language of the statute, see 42 U.S.C. §

12111(8), and by logical policy considerations. Assuming that Browning is now a
3This is not to say that a medical leave of absence cannot be a reasonable

accommodation under the appropriate circumstances. See Hudson v. MCI

Telecommunications Corp., 87 F.3d 1167, 1169 (10th Cir. 1996); 29 C.F.R. §

1630.2(o) App. However, the duty to accommodate does not arise unless the employee

will be presently qualified if afforded the accommodation.

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qualified individual with a disability under the ADA due to her injury, there is no

principled reason to accord her that status during her convalescence. Had her arm

healed completely, such that she developed no disability, the ADA would provide no

protection at all. See Heintzelman v. Runyon, 120 F.3d 143, 145 (8th Cir. 1997)

(inability to work while recovering from surgery is not a disability under the ADA).

See also 29 C.F.R. § 1630.2(j) App.3 Employers are not qualified to predict the degree

of success of an employee's recovery from an illness or injury. To afford Browning the

protections of the ADA during the early stages of her recuperation from surgery, based

on her eventual degree of future recovery, would be to burden Liberty Mutual with the

duty to see into the future. We do not believe that such was the intent of Congress in

passing the ADA. 

While this holding may seem at first blush to render a harsh result, we point out

that employees in Browning's situation may have protection from other sources under

the circumstances. The employment contract, worker's compensation laws, or the

FMLA may come into play to provide protection or recourse. The ADA, however,

does not protect employees simply because an injury may result in a disability in the

future. If, as Browning contends, Liberty Mutual fired her after years of service

because of an injury that eventually resulted in a disability, rather than allow her to

recover, it may be an injustice, but it is not prohibited by the ADA.

B. The FMLA Claim
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At trial, Browning claimed that she was denied leave under the FMLA. The Act

provides for up to twelve weeks of unpaid leave to deal with a serious health condition.

See 29 U.S.C. §§ 2601 et seq. Having carefully reviewed the record and the

arguments submitted, we conclude the district court did not err in its denial of

Browning's motion for judgment as a matter of law on her FMLA claim. Under the

FMLA, the employer's duties are triggered when the employee provides enough

information to put the employer on notice that the employee may be in need of FMLA

leave. The employee need not specifically mention FMLA leave, but must state that

leave is needed, and the statement should be made within one or two business days.

See 29 C.F.R. § 825.303 Dr. Hixon released Browning to work under certain

restrictions. And Browning, in fact, started working with those restrictions. On

Monday, June 5, Browning's sister notified Liberty Mutual that Browning's arm had

gone numb and that she would not be in that day. Two subsequent calls to Dr. Hixon

later in the week confirmed to Liberty Mutual that the restrictions had not changed and

that Browning was still released to work. A reasonable jury could easily conclude,

based on the evidence presented, that Browning failed to give sufficient information to

Liberty Mutual such that Liberty Mutual would be on notice that her situation qualified

for FMLA leave. See Carter v. Ford Motor Co., 121 F.3d 1146, 1148 (8th Cir. 1997)

(notice to the employer must be both adequate and timely); Satterfield v. Wal-Mart

Stores, Inc., 135 F.3d 973, 980-81(5th Cir. 1998) (same), cert. denied, 119 S. Ct. 72

(1998).

III. CONCLUSION

Accordingly, we remand the case to the district court with instructions to grant

Liberty Mutual's motion for judgment as a matter of law on the ADA claim. The denial

of Browning's motion for judgment as a matter of law is affirmed.

A true copy.
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Attest:

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