1The Honorable Harold D. Vietor, United States District Judge for the

Southern District of Iowa, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-1232

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Rebecca A. Berg,

Appellant,

v.

Norand Corporation,

Appellee.

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Appeal from the United States

District Court for the

Northern District of Iowa.

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Submitted: October 15, 1998

 Filed: March 5, 1999

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Before BOWMAN, Chief Judge, HANSEN, Circuit Judge, and VIETOR,1 District

Judge. 

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HANSEN, Circuit Judge.

Rebecca Berg brought this employment discrimination claim against Norand

Corporation (Norand), alleging Norand discriminated against her based on her
2The Honorable Edward J. McManus, United States District Judge for the

Northern District of Iowa.

3The Honorable Michael J. Melloy, Chief Judge, United States District

Court for the Northern District of Iowa, previously dismissed one of Berg's claims

for failure to state a claim but denied Norand's Fed. R. Civ. P. 12(b)(6) and

alternative summary judgment motions on her other claims.

2

disability (Berg is a non-insulin dependant diabetic) and her sex. The district court2

granted summary judgment in favor of Norand on its second motion for summary

judgment and Berg appeals.3 We affirm.

I.

Because the district court granted summary judgment in favor of Norand, we

state the facts in the light most favorable to Berg, the nonmoving party. See

Burroughs v. City of Springfield, 163 F.3d 505, 506 (8th Cir. 1998). Norand hired

Berg to manage its tax department in March 1990 and added the management of

Norand's payroll and risk management departments to her responsibilities in

September 1991. Berg routinely worked 70 to 80 hours per week to meet the

demands of her job. By early 1993, Berg's health began to deteriorate and she was

unable to continue the 70- to 80-hour pace. Berg took a medical leave of absence in

February 1993. In March 1993, after returning to work, Berg received her first ever

poor performance reviews for failing to keep up with her workload. Norand placed

her on probation and set specific goals for improving her performance. Norand also

relieved Berg of her payroll department responsibilities to help her timely complete

her priority projects. Berg still failed to meet Norand's expectations. Berg was

diagnosed with diabetes in May 1993, and she immediately informed her supervisors.

On August 2, 1993, Berg tendered her written resignation to Bob Hurd, her

immediate supervisor, because of the stress from the long hours and her work
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environment. In her resignation, Berg agreed to stay until her year-end projects were

completed, tentatively through October. Hurd verbally accepted her resignation.

Berg attempted to withdraw her resignation on August 19, asking instead for an

accommodation of reduced work hours to 40 to 50 hours per week. This was Berg's

first request for an accommodation. During the August 19 meeting with Mike

Wakefield, the director of human resources, Berg discussed her suicidal tendencies.

Berg met with Hurd to discuss the attempted withdrawal of her resignation on the

following Monday, August 23. The record is unclear as to the exact date, but Berg

had discussed her suicidal tendencies with Hurd a few days before the August 23

meeting. Shortly after his meeting with Berg, Hurd discussed her situation with

Wakefield. They placed Berg on immediate medical leave and insisted that she see

a psychiatrist that afternoon, though she had an appointment with her own doctor the

next day. Because the psychiatrist Berg was to see was unavailable, Berg was

admitted to the hospital overnight, allegedly against her will. She saw her own doctor

and was released the following morning. 

Berg returned to work a week later. No one discussed Berg's pending

resignation or her attempt to withdraw her resignation following her return. Berg was

terminated on December 7, 1993, purportedly because of her resignation and

continued poor performance. 

Berg filed disability discrimination claims against Norand under the Americans

with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213 (1994), and the

Iowa Civil Rights Act of 1965 (ICRA), Iowa Code §§ 216.1-.20 (1993). Berg alleged

sex discrimination based on unequal pay under the ICRA; Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e (1994); the Fair Labor Standards Act of 1938

(FLSA), 29 U.S.C. §§ 201-19 (1994); and the Equal Pay Act of 1963, 29 U.S.C. § 206

(1994). Finally, Berg brought supplemental state law claims of negligent

misrepresentation, breach of implied contract, and false imprisonment. The FLSA

claim was dismissed on an earlier Fed. R. Civ. P. 12(b)(6) motion. The district court
4Berg argues that Norand did not move for summary judgment on the Title

VII claim and thus, the district court did not properly dismiss it. Norand included

the Title VII claim in its motion for summary judgment but specifically argued

only under the ICRA and Equal Pay Act in its brief. The standards in an unequal

pay for equal work claim are the same under Title VII and the Equal Pay Act. See

Kindred v. Northome/Indus. Sch. Dist., 154 F.3d 801, 803 (8th Cir. 1998), cert.

denied, 1999 WL 16149. Berg had notice of, and in fact argued, the elements of

the Title VII claim when she argued the Equal Pay Act claim. Cf. Walker v.

Missouri Dep't of Corrections, 138 F.3d 740, 742 (8th Cir. 1998) (reversing grant

of summary judgment where district court based its decision on an element of an

ADA claim that the opposing party was not aware was at issue). Thus, the

disposition of the Title VII claim was properly before the district court on

summary judgment. 

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granted summary judgment in favor of Norand on Berg's remaining claims. Berg

does not appeal the dismissal of the sex discrimination claims brought under the

ICRA, Title VII,4 and the FLSA.

II.

We review de novo the district court's grant of summary judgment in favor of

Norand, using the same standards used by the district court. See Breeding v. Arthur

J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir. 1999). "Summary judgment is

proper if the evidence, viewed in the light most favorable to the nonmoving party,

demonstrates that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law." Id. (citations omitted); Fed. R. Civ.

P. 56(c). While we have said that summary judgment is generally inappropriate in

discrimination cases because they are often based on inferences that the fact finder

may or may not draw, see Breeding, 164 F.3d at 1156, there is no "discrimination

case exception" to the application of Fed. R. Civ. P. 56, and it remains a useful

pretrial tool to determine whether or not any case, including one alleging

discrimination, merits a trial. 
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Iowa courts look to the ADA, its regulatory interpretations, and its caselaw

in construing a disability claim under the ICRA. See Fuller v. Iowa Dept. of

Human Servs., 576 N.W.2d 324, 329 (Iowa 1998); Helfter v. United Parcel Serv.,

Inc., 115 F.3d 613, 616 (8th Cir. 1997). Thus, our analysis, though referring only

to the ADA, applies also to Berg's ICRA claim. 

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A. Disability Discrimination

To state a claim under either the ADA or the ICRA,5 Berg "must demonstrate

that [she] has a disability as defined in the ADA; that [she] is qualified to perform the

essential functions of the job at issue, either with or without reasonable

accommodation; and that 'because of' [her] disability, [she] suffered an adverse

employment action." Burroughs, 163 F.3d at 507 (citations omitted). The ADA

defines disability as: "(A) a physical or mental impairment that substantially limits

one or more of the major life activities of such individual; (B) a record of such an

impairment; or (C) being regarded as having such an impairment." 42 U.S.C. §

12102(2). Iowa uses similar criteria under the ICRA to define disability. See

Bearshield v. John Morrell & Co., 570 N.W.2d 915, 918 (Iowa 1997) (citing Iowa

Admin. Code § 161-8.26(1) (1993)). The Equal Employment Opportunity

Commission (EEOC) regulations define "major life activities" to include "caring for

oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working." 29 C.F.R. § 1630.2(i) (1998). To establish that she is

substantially limited in the life activity of working, Berg must show that she is limited

from performing a class of jobs or a broad range of jobs within various classes. "The

inability to perform a single, particular job does not constitute a substantial limitation

in the major life activity of working." § 1630.2(j)(3)(i). 

 

Berg claims that her diabetes is disabling because it limits her major life

activity of working by: limiting her to a 40- to 50-hour work week; causing her

continuous joint pain; causing her difficulty with her speech; and making it difficult

to focus on her job due to the pain. However, she admits that she could effectively
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perform her duties at Norand if her work load was reduced to 40 to 50 hours per

week. (See J.A. at 85.) Berg's only request for an accommodation is for reduced

hours. (See id. at 286-87.) 

"Not every physical or mental impairment 'counts' for ADA purposes, because

most disabilities from which people suffer (bad vision, impaired hearing, arthritic

joints, diabetes) do not have a substantial enough effect on their major life activities."

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

is the case with Ms. Berg. In her resistance to summary judgment, Berg only claimed

that her diabetes limited her major life activity of working. (See J.A. at 177, 180.)

Subsequent to her termination from Norand, Berg started her own tax and accounting

practice and became the chief financial officer of a construction company. She

concedes that she has never been unemployed. (See J.A. at 194.) Berg has failed to

show any class of jobs or broad range of jobs from different classes from which she

is excluded because of her diabetes. See 29 C.F.R. § 1630.2(j)(3)(ii) (listing factors

for determining whether an individual is limited in the life activity of working). 

Thus, Berg is not substantially limited in the major life activity of working. See

Gutridge v. Clure, 153 F.3d 898, 901 (8th Cir. 1998) (finding no substantial limitation

where the plaintiff found a similar job); Miller v. City of Springfield, 146 F.3d 612,

614-15 (8th Cir. 1998) (disqualification from one's job of choice is not substantially

limiting). We find it hard to say that being limited to a 40- to 50-hour work week

substantially limits one's ability to work. See, e.g., Muthler v. Ann Arbor Mach., Inc.,

18 F. Supp. 2d 722, 729 (E.D. Mich. 1998) (heart condition that restricted

management employee to 40-hour week did not substantially limit major life activity

of working); Kolpas v. G.D. Searle & Co., 959 F. Supp. 525, 529 (N.D. Ill. 1997)

(same); Brennan v. National Tele. Directory Corp., 850 F. Supp. 331, 343 (E.D. Pa.

1994) ("The inability to work overtime hardly makes plaintiff handicapped."). 
6Berg argues that she raised this issue in her resistance to summary

judgment. However, her resistance merely recited the familiar alternatives for

showing a disability under the ADA, one of which is being regarded as disabled. 

Berg did not argue that Norand in fact regarded her as disabled. The recitation of

the statutory alternatives is insufficient to raise the "regarded as having such an

impairment" issue. 

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Berg asserts for the first time on appeal that Norand perceived her as disabled

and thus she fits within the ADA's definition of disabled.6 See 42 U.S.C. §

12102(2)(C). We will not entertain a new argument on appeal from the grant of

summary judgment. See O.R.S. Distilling Co. v. Brown-Forman Corp., 972 F.2d 924,

926 (8th Cir. 1992). Thus, we hold that the district court properly granted summary

judgment in favor of Norand on Berg's disability claims under the ADA and the

ICRA. 

B. Wage Discrimination

To establish a prima facie case under the Equal Pay Act, Berg must meet her

burden of showing that Norand paid male employees higher wages than it paid her

for jobs "requir[ing] equal skill, effort, and responsibility, and which are performed

under similar working conditions." 29 U.S.C. § 206(d)(1) (1994). See also

McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 513 (8th Cir. 1995). In making

our assessment, we look at all of the facts of the particular case. "Skill includes such

considerations as experience, training, education, and ability. Effort refers to the

physical or mental exertion necessary to the performance of a job. Responsibility

concerns the degree of accountability required in performing a job." McLaughlin, 50

F.3d at 513 (citations omitted). 

Berg provides only conclusory affidavit testimony that the male managers to

whom she compares herself have jobs "equal" to hers. (See J.A. at 306-07). She does

not articulate which particular male managers have jobs similar to hers but points out
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that the average annual salary of Norand's thirty-three male managers is $6,000 to

$8,000 higher than the average salary of its seven female managers. (See id. at 311-

13.) The male managers included in this calculation encompass many disciplines,

including, inter alia, finance managers, production managers, engineering managers,

and manufacturing managers. Berg does not indicate how the males to whom she

compares herself are similar in experience, education, or training. In short, she does

not explain how they are similar at all other than that they are "managers." Berg has

failed to establish a prima facie case under the Equal Pay Act. See 29 C.F.R. §

1620.13(e) (1998) ("Application of the equal pay standard is not dependent on job

classifications or titles but depends rather on actual job requirements and

performance."). See also Equal Employment Opportunity Comm'n v. Universal

Underwriters Ins. Co., 653 F.2d 1243, 1245 (8th Cir. 1981) ("[A] court must

compare the jobs in question in light of the full factual situation . . . ."). 

Berg asserts for the first time in her reply brief that her replacement, Eric Pugh,

received a higher salary than she had received. Not only is this the inappropriate time

and place to raise this new argument, but there is evidence in the record that Norand

revamped Berg’s position and that Pugh held a different job. (See J.A. at 121.) We

refuse to entertain this new argument and hold that the district court properly granted

summary judgment in favor of Norand on the wage discrimination claim. 

C. State Law Supplemental Claims

In passing on Berg's state law claims, we apply Iowa law. If Iowa law is

unsettled on a particular issue, it is our job to apply the rule that we think the Supreme

Court of Iowa would follow. See Novak v. Navistar Int'l Transp. Corp., 46 F.3d 844,

847 (8th Cir. 1995). 
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1. Breach of Implied Contract

The employment-at-will doctrine, allowing an employer to terminate an

employee for any lawful reason, is alive and well in Iowa. See Lockhart v. Cedar

Rapids Community Sch. Dist., 577 N.W.2d 845, 846 (Iowa 1998). Berg signed an

employment agreement with Norand that specifically provided that her employment

was at-will and that any employee handbooks were strictly guidelines and could not

constitute a contract. (See J.A. at 122-23.) Iowa courts look with favor upon such

express disclaimers. See, e.g., Jones v. Lake Park Care Ctr., Inc., 569 N.W.2d 369,

376 (Iowa 1997) (noting that an appropriately drafted disclaimer would ensure that

an employee handbook would not create an implied contract). The handbook upon

which Berg relies to find an implied contract provides reasons for termination but

does not state that they are exclusive. Iowa law disfavors implied contracts and will

not imply a contract where to do so conflicts with a written agreement between the

parties. See French v. Foods, Inc., 495 N.W.2d 768, 771 (Iowa 1993); Budget Mktg.,

Inc. v. Centronics Corp., 927 F.2d 421, 426 (8th Cir. 1991) ("'[T]here can be no

implied contract on a point fully covered by an express contract and in direct conflict

therewith.' Snater v. Walters, 250 Iowa 1189, 98 N.W.2d 302, 307 (1959)."). Thus,

contrary to Berg's assertions, a written contract of at-will employment trumps an

alleged but nonexistent implied contract to the contrary. 

2. Negligent Misrepresentation

The Supreme Court of Iowa has foreclosed Berg's negligent misrepresentation

claim based on an implied contract. See Alderson v. Rockwell Int'l Corp., 561

N.W.2d 34, 36 (Iowa 1997) (reaffirming its prior holding "that an action for negligent

misrepresentation . . . will not lie for alleged wrongful termination of employment.").

Noting the general rule that negligent misrepresentation "applies only to a defendant

who is in the business of supplying information to others," id., the court found that

because the plaintiffs were at-will employees, any representations concerning the
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length of employment were not actionable in tort. Similarly, our holding that there

was no implied contract prevents Berg from bringing this claim. "To rule otherwise

would permit [Berg] . . . to potentially recover in tort on the same factual grounds on

which the law would deny [her] recovery in contract." Id. (citing Fry v. Mount, 554

N.W.2d 263, 266 (Iowa 1996)). 

Likewise, our holding that Berg does not have a disability within the meaning

of the ADA or the ICRA disposes of Berg's claim of negligent misrepresentation

based on Norand's policy of not terminating an employee based on her disability.

Iowa law recognizes a modification to the employment-at-will doctrine, which

modification prevents an at-will employee from being terminated for a reason that is

contrary to public policy. See Lockhart, 577 N.W.2d at 846; Springer v. Weeks &

Leo Co., 429 N.W.2d 558, 559-60 (Iowa 1988). Because Berg was not disabled

within the meaning of the ADA or the ICRA, Berg's termination did not contravene

public policy or Norand's own internal policy. The district court properly dismissed

Berg's negligent misrepresentation claim.

3. False Imprisonment

False imprisonment requires the unlawful detention or restraint of a person

against her will. See Children v. Burton, 331 N.W.2d 673, 678-79 (Iowa), cert.

denied, 464 U.S. 848 (1983). We have been unable to find any Iowa cases factually

on point. False imprisonment in Iowa is generally applied in cases of false arrest by

a police or security officer or in connection with assault or kidnapping charges. See,

e.g., Lenstra v. Menard, Inc., 511 N.W.2d 410, 411 (Iowa Ct. App. 1993) (security

officer held plaintiff for alleged shoplifting); State v. Snider, 479 N.W.2d 622, 623-24

(Iowa Ct. App. 1991) (assault victim may have action against assailant for false

imprisonment related to the assault). 
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Norand managers Bob Hurd and Mike Wakefield, concerned for Berg's safety

after she discussed her suicidal tendencies, arranged for a medical evaluation and

"sent" Berg to the hospital. Berg drove herself to the hospital and the hospital

admitted her. The actions of the Norand employees did not restrain Berg as required

for a false imprisonment claim. See Newsom v. Thalhimer Bros., Inc., 901 S.W.2d

365, 367 (Tenn. Ct. App. 1995) (finding element of restraint lacking where employee

voluntarily accompanied her supervisor to his office and remained in his office

because her supervisor stated he would call the police if she left). Additionally, Berg

has provided no evidence that Hurd or Wakefield had anything to do with her hospital

admission. Thus, Berg has failed to show that Norand restrained her, as required by

Children for a false imprisonment claim. See Fish v. Regents of the Univ. of Cal.,

54 Cal. Rptr. 656, 659 (Cal. Ct. App. 1967) (holding that an employer is not liable

for false imprisonment where its doctor/employee, who expressed concerns about the

plaintiff to the admitting doctor, did not act in bad faith or actively participate in the

plaintiff's hospital admission for evaluation). We do not believe that the Supreme

Court of Iowa would extend the false imprisonment cause of action to cover this

conduct. The district court correctly dismissed Berg's claim of false imprisonment.

 

III.

For the foregoing reasons, we affirm the judgment of the district court.

A true copy.

Attest:

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