1

The Honorable David S. Doty, United States District Judge for the District of

Minnesota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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Nos. 05-3911/05-3923

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Daniel J. Didier, *

*

Appellant/Cross-Appellee, *

* 

v. *

*

Schwan Food Company; *

Schwan's Home Service, Inc., *

* Appeals from the United States

Appellees/Cross-Appellants. * District Court for the Western

_____________________ District of Arkansas.

*

American Association of Retired *

Person's; Disability Rights Center; *

National Employment Lawyers *

Association, *

*

Amici on Behalf of Appellant. *

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Submitted: June 16, 2006

Filed: October 16, 2006

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Before ARNOLD and BEAM, Circuit Judges, and DOTY,1

 District Judge.

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BEAM, Circuit Judge.
2

The Honorable Robert T. Dawson, United States District Judge for the Western

District of Arkansas.

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Daniel Didier appeals the district court's2

 grant of summary judgment in favor

of Schwan Food Company and Schwan's Home Service (Schwan's) in this disability

discrimination case. Schwan's cross-appeals the district court's denial of its motion

for bill of costs. We affirm.

I. BACKGROUND

At the summary judgment stage, we recite the facts in the light most favorable

to Didier, the non-moving party. Breitkreutz v. Cambrex Charles City, Inc., 450 F.3d

780, 781 (8th Cir. 2006).

Didier began working for Schwan's in 1991 as a route sales manager, where his

duties included selling and delivering frozen food products to customers' homes from

a Schwan's route truck. In 1994, Didier, who is right-handed, injured his right wrist

and arm when he fell from a customer's porch. He aggravated the injury in 1996,

requiring surgery. After returning to work in 1997, Didier earned a promotion to sales

manager of the Van Buren, Arkansas, depot. As sales manager, Didier hired and

trained new employees–primarily route sales managers. While training this group,

Didier was required to operate route trucks and to assist the trainees with their duties,

including loading and unloading the trucks.

In September 2002, Didier suffered another setback related to the 1996 injury,

requiring more surgery on his right hand and arm. Following surgery, Didier returned

to his sales manager position, albeit with modified duties–he was not required to run

a route truck or train new drivers. Didier remained on modified duty until June 9,

2003, when his physician cleared him to work with no restrictions. Nonetheless,

Didier was not returned to his former sales manager position at this time, for reasons
3

Didier claims only that he is substantially impaired in the major life activity of

caring for himself. He does not claim that he is substantially impaired in the major

life activity of working.

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unclear in the current record. Instead, on June 30, 2003, Schwan's offered Didier a

position as route sales manager of the Van Buren, Arkansas, depot. Didier declined

this offer, asserting that he could not perform the essential functions of the position

due to his inability to maneuver Schwan's truck doors with his right arm.

At this point, Schwan's sent Didier for a functional capacity evaluation (FCE).

Following the FCE and a follow-up appointment with his own doctor, Didier was

restricted to carrying ten pounds or less, and also restricted from driving the route, due

to the heaviness of the truck doors. Didier's physician opined that he had reached

maximum medical improvement. Didier remained on light duty until November 2003,

when Schwan's informed him that it could no longer provide light duty assignments,

and that it would be terminating his employment effective January 1, 2004.

Didier brought this action, asserting claims under the Americans with

Disabilities Act (ADA), and the Arkansas Civil Rights Act. Didier claimed that he

was terminated due to his right arm disability,3

 and that Schwan's failed to provide

him with a reasonable accommodation–another employee who could go along on

routes to open and close the truck door. Didier contends that as sales manager, he

would rarely have to run truck routes. Thus, it would not be difficult for Schwan's to

provide his requested accommodation. Schwan's contends that being able to fully

operate the route truck, at times alone, is an essential function of the sales manager job

which his medical restrictions prevent him from performing. Schwan's also argues

that Didier is not actually disabled.
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The district court granted Schwan's motion for summary judgment, holding that

Didier was not disabled within the meaning of the ADA. Because Didier admitted he

could accomplish most daily living tasks with his left hand, the district court found

that he was not "substantially" limited in the major life activity of caring for himself.

The district court denied Didier's claims under both the ADA and the Arkansas Civil

Rights Act, because the definition of disability under both acts was "in all relevant

respects the same." Didier appeals, and Schwan's cross-appeals the district court's

denial of its motion for bill of costs.

II. DISCUSSION

We review the district court's grant of summary judgment de novo and must

affirm if, viewing the record in the light most favorable to Didier, there are no genuine

issues of material fact and Schwan's is entitled to judgment as a matter of law. Logan

v. Liberty Healthcare Corp., 416 F.3d 877, 880 (8th Cir. 2005), cert. denied, 126 S.

Ct. 1780 (2006).

Where there is no direct evidence of discrimination, ADA claims are evaluated

by the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). First, Didier must establish a prima facie case of discrimination: that he

has an ADA-qualifying disability; that he is qualified to perform the essential

functions of his position, with or without a reasonable accommodation; and he

suffered an adverse action due to his disability. Kratzer v. Rockwell Collins, Inc., 398

F.3d 1040, 1044 (8th Cir. 2005). Once Didier makes a prima facie case, Schwan's

must proffer a legitimate, nondiscriminatory reason for the adverse employment

action. McDonnell Douglas, 411 U.S. at 802. If Schwan's produces such a reason,

Didier must show that the reason given is a pretext for discrimination. Id. at 804. The

district court held that Didier failed to establish a prima facie case, because he did not

suffer from an ADA-qualifying disability.
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Didier argues that he is substantially limited in the life activity of caring for

himself because he has difficulty shaving, brushing his teeth, grooming, cleaning

himself, wiping after going to the bathroom, feeding himself with a spoon, and

dressing himself. He admits that he has learned to do most of these things with his left

hand, but argues that because it takes him longer to do these things, he is substantially

limited in this life activity. The district court noted that the medical evidence,

including the FCE, indicated that while daily living activities were painful for Didier

to do with his right hand, he could accomplish them with his left hand. Accordingly,

the district court concluded that while Didier did have some medically imposed

restrictions, he could not establish that his limitations were "substantial."

"[E]stablishing 'disability' is a significant hurdle that can prevent a person who

was denied a job because of an impairment from being covered by the ADA." Nuzum

v. Ozark Auto. Distribs., Inc., 432 F.3d 839, 842-43 (8th Cir. 2005). Under the ADA,

a "disability" is "a physical or mental impairment that substantially limits one or more

of the major life activities of [an] individual." 42 U.S.C. § 12102(2)(A). Determining

whether an individual has a qualifying disability requires an individualized analysis

of the claimed disability. Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999).

"Major life activities under the ADA are basic activities that the average person can

perform with little or no difficulty, including 'caring for oneself, performing manual

tasks, walking, seeing, hearing, speaking, breathing, learning, and working.'" Battle

v. United Parcel Serv., Inc., 438 F.3d 856, 861 (8th Cir. 2006) (quoting 29 C.F.R. §

1630.2(i)). To be substantially limited in the major life activity of caring for himself,

Didier must have an impairment that "'prevents or severely restricts' his ability to care

for himself compared with how unimpaired individuals normally care for themselves

in daily life." Fenney v. Dakota, Minn. & E.R.R. Co., 327 F.3d 707, 715 (8th Cir.

2003) (quoting Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198

(2002)).
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Didier cannot meet the rigorous Toyota standard, as set forth in our Fenney

opinion. His broken right arm certainly does not "prevent" him from caring for

himself, and we agree with the district court that his broken arm does not "severely

restrict" him from caring for himself compared with how unimpaired individuals

normally care for themselves. Nonetheless, Didier cites Fjellestad v. Pizza Hut of

America, 188 F.3d 944 (8th Cir. 1999), and Fenney in support of his arguments. In

Fjellestad, we held that there was a triable issue of fact whether an employee was

substantially limited in the major life activity of working, but did not address claims

that she was substantially limited in the life activity of caring for herself. Id. at 949.

Therefore the holding in Fjellestad is completely distinguishable from Didier's

situation.

Fenney is a closer call, however. In Fenney, we held that it was a triable issue

whether the employee, who had lost his thumb and part of his middle finger in an

accident, was substantially limited in the major life activity of caring for himself. 327

F.3d at 716. Fenney produced evidence from his doctor stating that it took him more

time to change clothes. And, Fenney stated in deposition testimony that it took him

twice as long as the average person to bathe, shave, prepare a meal, dress, and go to

the bathroom. Id. at 715-16. 

We think Fenney is also distinguishable. Fenney produced medical evidence

and deposition testimony to support his claims regarding his limitations, and his

employer produced no evidence to rebut this. Id. at 716. Didier relies on statements

in his affidavit, submitted in opposition to Schwan's summary judgment motion.

However, in Didier's affidavit, and in his deposition testimony, Didier essentially

admits that he is not disabled. Though he has difficulty with shaving and other

grooming activities, he learned to do these things left-handed. Didier can also dress

himself, tie his shoes, write, dial the phone, wash dishes, and prepare meals with one

or both hands. In Fenney we characterized the evidence defeating summary judgment
4

Because we decide Didier's claim on the basis that he did not make his required

initial showing of disability, we need not go through the "modified burden-shifting

analysis" for accommodation cases discussed in Fenney. 327 F.3d at 712. We simply

explicate the fact that even if Didier had been able to create a triable issue for

"disability," his claim would ultimately fail, as required by our reasoning in Nuzum.

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as "thin." Id. Here the evidence is too thin, and does not establish that Didier is

prevented from or severely restricted in taking care of himself, compared to the

unimpaired population. See Bass v. SBC Commc'ns, Inc., 418 F.3d 870, 873-74 (8th

Cir. 2005) (holding that plaintiff's opinions in an affidavit that he could have returned

to work and performed the essential functions of his job was not sufficient evidence

to survive summary judgment, and in fact were belied by his own deposition

testimony).

Finally, we note that even if we were to find that Didier is disabled within the

meaning of the ADA, the accommodation he requested–having another employee

drive open routes or handle the truck doors–is not related to his claimed disability of

being substantially limited in the life activity of caring for himself. Nuzum, 432 F.3d

at 848 (holding that there must be a nexus between the claimed disability and the

requested accommodation).4

 By way of contrast, in Fenney, the claimed disability

was directly related to his requested accommodation. Fenney worked for the railroad,

and as part of his duties, he was subject to being called into work from home. When

called, he was required to report to duty within two hours. The difficulty Fenney had

in the major life activity of caring for himself and performing routine grooming tasks

was directly related to his requested accommodation–being called sooner than the

regular two hour time period. Fenney, 327 F.3d at 710.
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III. CONCLUSION

We commend Didier for having the fortitude to adapt to the effects of an

unfortunate on-the-job injury, and to learn to do things with a broken arm and with his

non-dominant left hand. However, we simply cannot find that his current limitations

render him "disabled" within the meaning of the ADA. Therefore we affirm the

district court. We also affirm the district court with regard to Schwan's bill-of-costs

cross-appeal.

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