United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-3101

___________

Glena Tjernagel, *

*

Appellant, *

* Appeal from the United States

 v. * District Court for the

* Southern District of Iowa.

The Gates Corporation, doing *

business as The Gates Rubber *

Company, *

*

Appellee. *

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Submitted: April 17, 2008

Filed: July 9, 2008

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Before WOLLMAN, BEAM, and RILEY, Circuit Judges.

___________

RILEY, Circuit Judge.

After Glena Tjernagel (Tjernagel) was dismissed from her job, she sued her

former employer, The Gates Corporation (Gates), under the Americans with

Disabilities Act (ADA), the Iowa Civil Rights Act (ICRA), and the Family Medical
1

The FMLA claim is not a subject of this appeal. Tjernagel also alleged

retaliation, but does not appeal the adverse ruling on her retaliation claim.

2

The Honorable Thomas J. Shields, United States Magistrate Judge for the

Southern District of Iowa, to whom the case was referred for final disposition by

consent of the parties pursuant to 28 U.S.C. § 636(c). 

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 Leave Act (FMLA).1

 The district court2 granted summary judgment for Gates

on all claims, concluding Tjernagel did not establish she was disabled as a matter of

law. Tjernagel appealed. We affirm.

I. BACKGROUND

In May 1995, Tjernagel was employed by Gates at its Boone, Iowa, plant as a

part-time production employee, switching to full-time employment in August 2004.

At its Boone plant, Gates manufactures hydraulic and industrial hoses. Tjernagel’s job

description included the following demands: “repetitive body movements[,]

particularly fingers, hands, legs, and feet”; “work . . . performed from a standing

position” with “frequent . . . twisting, bending, lifting, pulling and leaning”; “[c]onstant

use of a foot pedal from the standing position placing weight on one foot”; “lifting and

carrying . . . up to 40 pounds”; “[r]eaching for, lifting and carrying . . . material and/or

equipment weighing up to 40 pounds”; “[p]ulling hose off reels or bales”; “[p]ushing

and/or pulling fully loaded material . . . carts”; operating equipment; “[a] high

percentage of attendance and on time arrival”; “[a]bility to handle several tasks”; “deal

with deadlines and production objectives”; and ability to “[c]hange from one job to

another to meet customer requirements.” The job description noted work was

performed in eight hour shifts and “[o]vertime is required to meet production demands

and can include Saturdays and Sundays when necessary.” In 2005, Gates’s Boone

employees worked twenty-two Saturdays. There were no permanent or regular light

duty production positions at the plant. While there was an office with office jobs,

Tjernagel never worked in the plant office. 
3

Tjernagel was diagnosed with carpal tunnel syndrome in the summer of 2005

which she asserts impacted her ability to do her job as early as February 2005. We do

not consider Tjernagel’s carpal tunnel syndrome because her claim here is solely

based on her CIS. (“[T]he basis for [my] disability claim is [my] CIS and not my

carpal tunnel syndrome.”)

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At the time of Tjernagel’s termination, and for several months before her

termination, plant employees were required to rotate among production line positions.

For example, Line 5, where Tjernagel was working during the last several months

before her termination, rotated approximately every two hours. Rotation was done to

reduce the risk of repetitive use injuries, to allow cross-training and to promote team

work. On Line 5, positions included hose cutter (for which Tjernagel was not trained),

skiving, putting on couplings, putting cloth guard over the hose, scrunching the guard,

two crimping positions, putting caps on the ends of the hose, and packing the hose for

shipment. Scrunching must be done standing, but most other jobs could be performed,

at least part of the time, while sitting.

In May 2005, Tjernagel was first diagnosed with multiple sclerosis (MS). Later

that summer, a different physician clarified her condition as clinical isolated syndrome

(CIS) which differs from MS only by the number of clinically diagnosed attacks (i.e.,

multiple sclerosis requires “multiple” attacks). Tjernagel described her CIS symptoms

as extreme fatigue; problems standing, walking, and breathing; problems with her short

term memory; and numbness and tingling in her body. Tjernagel also “thought” her

eyesight “might” be affected.3

In the summer of 2005, Tjernagel told human resources manager Connie

Sorenson (Sorenson) she had MS. Sorenson, whose mother had MS, said, “If you need

to take extra breaks . . . to sit down, whatever you need, let us know.” Sometime

between July and September 2005, Tjernagel began leaving the production area to sit

down. She did not always give advance notice when leaving her work station, did not

clock out, and was paid for her time. Gates documented Tjernagel left her work station
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about twenty times. Sometimes Tjernagel would come back later in her shift, and other

times she would not return at all. As early as August, Tjernagel’s line leader and

supervisor were reporting Tjernagel’s leaving the line was causing the line to run short

and disrupting production. 

On October 24, 2005, Tjernagel was informed she needed a work capacity report

(WCR) from her doctor. Tjernagel’s physician, Dr. Bruce L. Hughes (Dr. Hughes),

completed the WCR which was signed, dated, and returned to Gates on November 2,

2005. The WCR identified Tjernagel’s condition as MS because Dr. Hughes was

concerned Gates may not know what CIS was. The WCR listed several work

restrictions including “[s]tanding restricted to less than 60% of shift” with “intermittent

sitting vs. standing.” The WCR noted Tjernagel’s condition was “very intermittent”

as signs and symptoms “can come and go” and advised “[Tjernagel] knows what she

can tolerate and can determine when certain things are going to aggravate [her] disease.

[Tjernagel] can do other work, sedentary work if possible. No overtime.”

 

After receiving the WCR, Sorenson called Dr. Hughes’s office and spoke to Dr.

Hughes’s nurse who reported Tjernagel’s “restrictions are permanent and progressive.

They are intermittent, sometimes no problems and then there will be problems.

Hopefully, [Gates] can find something more suited to [Tjernagel’s] needs. She wants

to continue working.”

On November 10, 2005, Sorenson met with Tjernagel asking, how will Gates get

the WCR to work into Tjernagel’s job description? Tjernagel replied, “With

accommodations.” Sorenson asked, “Like what?” and Tjernagel responded, “Like

cameras on the crimpers and moving the guard machine closer.” Tjernagel clarified

she would like to be able to lower the camera (which Tjernagel had to look through to

operate the machine) so she could operate the camera from a lower position. The

machine had a mechanism that allowed it to be lowered. Tjernagel began to use this

lowering mechanism every time and reported, “it worked better” for her. In addition,
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the table where the guard material is placed on the hose was moved closer to the

operator, reducing the operator’s need to stretch her arms, although it still remained

difficult for Tjernagel to perform the scrunching function as her carpal tunnel

syndrome (which is not part of this claim) caused her pain. In this November 10, 2005,

meeting between Tjernagel and Sorenson, Tjernagel believes she also said she “did not

feel I [am] disabled.” 

 

Sorenson informed Tjernagel the plant worked overtime and Tjernagel could not

be treated differently than other production workers. Tjernagel never worked overtime

again and was never asked to do so. On January 17, 2006, Tjernagel was terminated

because she could not work overtime and because of her other work restrictions.

Tjernagel was informed of Gates’s complaint and appeal procedure which included

peer review and was told she had twenty-one days to seek peer review.

Between January 17 and 27, 2006, Tjernagel called the plant manager, Mark

Cooper (Cooper), and asked if she could get her job back if her overtime restriction

were lifted. Cooper advised her to check with her doctor, but did not say she would

get her job back if the overtime restriction were lifted. Tjernagel contacted Dr.

Hughes’s office and asked to have the overtime restriction lifted. A new WCR, dated

January 25, 2006, was submitted to Gates. The new WCR removed the overtime

restriction, but was identical to the prior WCR in all other respects.

On January 26, 2006, Cooper and Sorenson met with Tjernagel. Cooper asked

for and received a signed release from Tjernagel to allow the company’s doctor to

contact Dr. Hughes and allow Dr. Hughes to discuss Tjernagel’s case, because Gates

did not want to do anything contrary to Tjernagel’s doctor’s restrictions. The company

doctor then attempted to contact Dr. Hughes, leaving a message on February 13, 2006,

asking him to call regarding Tjernagel. Before Dr. Hughes returned the call,

Tjernagel’s attorney wrote Dr. Hughes on February 28, 2006, advising Dr. Hughes that

the attorney understood a company physician was going to contact Dr. Hughes
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regarding Tjernagel. Tjernagel’s attorney opined it was “problematic” to have the

company contact his client’s doctors without the client being present, because the

company could “ask very direct, pointed questions that have real legal implications

without a physician understanding the legal implications related to the medical issue

(i.e., defining essential functions of the job, discussing the nature and extent of the

physical restrictions and health condition, etc.).” The attorney concluded, “If I can be

of any assistance in that process, please let me know. . . .”

As a result of the attorney’s letter, Dr. Hughes did not return calls from the Gates

company doctor. When Cooper learned of this, he called Tjernagel and asked her to

have Dr. Hughes return the company doctor’s calls. On March 21, 2006, Gates advised

Tjernagel by certified mail the company doctor had tried to reach Dr. Hughes to no

avail, stating, “At this point, we will no longer pursue exchange of medical information

via your expressed permission and will proceed with the final internal step.” The letter

also informed Tjernagel the twenty-one day deadline for submission of her written peer

review appeal would begin on March 27, 2006. Tjernagel’s attorney responded by

sending a new letter to Dr. Hughes, via facsimile, stating, “it is fine for you to talk to

the company doctor.” In response, Dr. Hughes attempted to contact the company

doctor. The company doctor returned Dr. Hughes’s call the next day, but they never

spoke. 

On April 10, 2006, Dr. Hughes faxed Gates a work release form stating, “Patient

may return without restrictions immediately.” Under Dr. Hughes’s standard office

procedure this release indicated Tjernagel reported to his office she needed no

accommodations or restrictions to perform the essential functions of her former job at

Gates.

On April 18, 2006, Tjernagel submitted her peer review appeal letter, attaching

her November 2, 2005, and January 25, 2006, WCRs. Tjernagel did not attach or

mention the April 10, 2006, release stating she could return to work without
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restrictions. The peer review panel, consisting of three hourly Gates production

workers and two management members from the Versailles, Missouri, plant,

unanimously upheld Tjernagel’s termination. Gates informed Tjernagel of this

decision on April 29, 2006.

Tjernagel can drive a car, care for her children, prepare meals, shop, run errands,

vacuum, do laundry, engage in recreational activities, and even work in full time

employment—as she started a new full-time job in late May 2006. In this new

position, Tjernagel goes to homes where several mentally challenged individuals live.

She drives herself to work at midnight, cleans restrooms and the kitchen, does charting

and sits most of the night waiting for the residents to awaken. When applying for this

position, Tjernagel did not mention anything about her medical or physical limitations

or condition and did not request any accommodations. 

Tjernagel filed her original complaint on July 28, 2006, and two amended

complaints on August 3, 2006, and on November 21, 2006. Gates filed a motion for

summary judgment, both sides submitted written arguments and responses, oral

argument was heard, and the motion for summary judgment was granted on August 20,

2007, as to the discrimination claims. This appeal follows.

 

II. DISCUSSION

We review de novo an order granting summary judgment. Green v. Franklin

Nat’1 Bank of Minneapolis, 459 F.3d 903, 910 (8th Cir. 2006). “In so doing, we view

the facts in the light most favorable to the nonmoving party and we will affirm if the

record indicates no genuine issue of material fact and that the moving party is entitled

to a judgment as a matter of law. Fed. R. Civ. P. 56(c).” Gretillat v. Care Initiatives,

481 F.3d 649, 652 (8th Cir. 2007) (citation omitted). This court “does not weigh the

evidence, make credibility determinations, or attempt to discern the truth of any factual

issue.” Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008) (citation

omitted). Instead, “we focus on whether a genuine issue of material fact exists for trial
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—an issue of material fact is genuine if the evidence is sufficient to allow a reasonable

jury verdict for the nonmoving party.” Id. (citation omitted).

ADA and ICRA disability claims are analyzed under the same standards. See

Nuzum v. Ozark Automotive Distribs., Inc., 432 F.3d 839, 842 n.2 (8th Cir. 2005).

The ADA and ICRA prohibit “discrimination by a covered employer against a

qualified individual with a disability because of the disability. An employer can

discriminate by failing to make reasonable accommodation to the known limitations

of an employee.” Id. at 842 (citations and internal quotation marks omitted). 

An individual does not prove that he or she has a disability simply by

showing an impairment that makes it impossible to do his or her

particular job without accommodation. Rather, establishing “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. 

Id. at 842-43 (citations omitted). 

A. Actually Disabled

Under the ADA and ICRA, a disability means an “individual must have (1) ‘a

physical or mental impairment’ that (2) ‘substantially limits one or more major life

activities’ of the individual.” Id. at 843 (citing 42 U.S.C. § 12102(2)). Having a

physical or mental impairment is not enough because the impairment must also

comprise a substantial limitation of a major life activity. See id. 

 

The district court concluded Tjernagel was not substantially limited in a major

life activity and therefore was not disabled. Tjernagel asserts she is substantially
4

Tjernagel asserts a limitation in her ability to think for the first time on appeal.

Her doctor never listed any limitations related to her ability to think in his work

restrictions, though Tjernagel did mention in her deposition short term memory was

an issue, meaning she might forget what she was saying in a conversation, but it

usually came back to her. 

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limited in the major life activities of lifting, standing, thinking,4

 walking, breathing and

seeing.

In Tjernagel’s November 10, 2005, meeting with Sorenson, Tjernagel stated she

did not then feel she was disabled, although Tjernagel requested some

accommodations. By April 10, 2006, Tjernagel reported to Dr. Hughes she needed no

accommodations and no restrictions on her work performed at Gates. Tjernagel

attempts to dismiss this report as irrelevant because it occurred after her January 17,

2006, termination. Yet, Tjernagel presents no evidence to explain the sudden

improvement in her condition in the period of less than three months after Tjernagel’s

termination, but before the April report. With no evidence to explain a sudden change

in condition, the district court could conclude the earlier restrictions were either

overstated or in error. As such, the district court properly determined Tjernagel did not

have a substantial limitation of any major life activity. 

B. Regarded as Disabled

Tjernagel also asserts that, whether or not she was disabled, Gates regarded her

as disabled. The district court did not discuss the “regarded as” claim. “In order to be

regarded as disabled . . . the employer must mistakenly believe that the actual

impairment substantially limits the employee’s ability to work.” Chalfant v. Titan

Distrib., Inc., 475 F.3d 982, 989 (8th Cir. 2007) (internal citations omitted). “A

substantial limitation is present only when the employee is ‘significantly restricted in

the ability to perform either a class of jobs or a broad range of jobs in various classes.’”

Id. (quoting Conant v. City of Hibbing, 271 F.3d 782, 784-85 (8th Cir. 2001) (per

curiam)). “If an employer believes that an employee is unable to perform ‘one specific
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job,’ then the employee is not regarded as disabled.” Id. (citation omitted). Tjernagel

asserts (1) Cooper believed she should not be on the production floor because of her

CIS and associated restrictions; and (2) this belief is sufficient for Tjernagel to be

“regarded as disabled.” In fact, Cooper’s testimony was in relation to trying to get the

company doctor and Dr. Hughes to communicate because Cooper did not want “any

danger to [Tjernagel] going forward,” where Dr. Hughes’s earlier report had termed

Tjernagel’s condition permanent and progressive, expressing Dr. Hughes’s opinion

Tjernagel “really doesn’t need to be out on the production floor.” Cooper obviously

was seeking clarification, not making any assumption Tjernagel was substantially

limited in the ability to work in a broad range of jobs in a variety of classes. 

Even if we determined Gates regarded Tjernagel as disabled, summary judgment

was still proper because Tjernagel was unable to perform the essential functions of her

job. Based upon Dr. Hughes’s report, Tjernagel’s work restrictions were she could not

work overtime, she needed to be allowed to self-monitor to make her own

determinations when a task would aggravate her condition, and she should self assign

herself to different tasks and areas without advance notice whether or not she was

needed at the area where she chose to go. In addition, Tjernagel should alternate

intermittently between sitting and standing. These restrictions are not compatible with

the essential functions of Tjernagel’s job. 

Tjernagel’s job description states, “[o]vertime is required to meet production

demands and can include Saturdays and Sundays when necessary.” It is undisputed

that, in 2005, Boone employees worked twenty-two Saturdays. An employer’s

mandatory overtime requirement has been recognized as an essential job function. See

Davis v. Florida Power & Light Co., 205 F.3d 1301, 1305-06 (11th Cir. 2000)

(concluding “overtime work . . . is akin to job presence, which has been held to be an

essential function of a job.” (citations omitted)). “Attendance at work is a necessary

job function.” Epps v. City of Pine Lawn, 353 F.3d 588, 593 n.5 (8th Cir. 2003) (citing

Nesser v. Trans World Airlines, 160 F.3d 442, 445 (8th Cir. 1998)). “An employee
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who cannot meet the attendance requirements . . . cannot be considered a ‘qualified’

individual protected by the ADA.” Davis, 205 F.3d at 1306 (quoting Tyndall v.

National Educ. Ctrs., Inc., 31 F.3d 209, 213 (4th Cir. 1994) (citations omitted)). When

Tjernagel’s restriction barred overtime, she was unable to perform an essential

requirement of her job, being in attendance at work when needed, thereby rendering

her unqualified for ADA protection. 

Not only did Tjernagel’s job require overtime, but so did all other production

positions at Gates, a fact which is not disputed by Tjernagel. Tjernagel could not be

reasonably accommodated by moving her to a different production position without an

overtime requirement because no such production positions existed. Tjernagel, “must

show that a reasonable accommodation was available,” Epps, 353 F.3d at 593 n.5, but

Tjernagel fails to show a reasonable accommodation existed because all of Gates’s

production jobs required overtime. See id. Thus, Tjernagel’s inability to work

overtime, a requirement of all of Gates’s production positions, renders Tjernagel

unqualified not only for her production job, but also for all other production jobs.

VI. CONCLUSION

Because Tjernagel is not disabled as defined by the ADA and ICRA, or regarded

as disabled by Gates, the district court correctly granted summary judgment for Gates.

We affirm. 

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