## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1903

___________ Eugene Perkins, * * Appellant, * * v. * Appeal from the United States * District Court for the Eastern St. Louis County Water Company, * District of Missouri. * Appellee. *

___________ Submitted: September 22, 1998 Filed: November 10, 1998

___________ Before HANSEN, BRIGHT, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge. Eugene Perkins worked for the St. Louis County Water Company in construction and maintenance for almost three years, and during that time he was repeatedly absent fr om work. Under St. Louis County's "progressive discipline policy" for addressin g empl oyee attendance deficiencies, a worker who is repeatedly absent is subject t o verbal co unseling, oral and written warnings, suspensions, and, ultimately, if th e wo rker's attendance still shows no sign of improvement, termination of employment

. Mr. Perkins was repeatedly counsel ed, was given numerous written warnings, and was suspended on three occasions for excessive absenteeism. Finally, he was fired whenThe Honorable Carol E. Jackson, United States District Judge for the Eastern 1 District of Missouri. -2- he failed to show up for work, and to notify his supervisor of his need to be absent, over a Memorial Day weekend. Mr. Perkins sued, contending that he was fired in violation of the Americans with Disabilities Act (ADA), see 42 U.S.C. §§ 12 101-12213, especially § 12112(a), and the Reh abilitation Act, see 29 U.S.C. §§ 701-797b, especially § 794(a), § 794(b)(1)(A)

. We refe r in this opinion only to Mr. Perkins's ADA claim, but the legal principle s applicable t o it are equally applicable to his Rehabilitation Act claim. See Allison v

. Dep'tof Co rrections , 94 F.3d 494, 497 (8 Cir. 1996); see also 29 U.S.C. § 794(d)

. th We therefore do not address his Rehabilitation Act claim separately.
The di strict court granted summary judgment for St. Louis County, ruling that because Mr. Perkins was unable to attend work on a reliable basis, which was one of the essential functions of his job, he was not a qualified individua l under either the ADA or the R ehabilitation Act. Mr. Perkins appeals, and we affirm the judgment of th e district court. 1
I. Mr. Perkins has Meniere's disease, a condition that causes occasional episodes of verti go and vomiting. He also suffers from a permanent slight hearing loss, and his hearing worsens to some degree when he is in the midst of a Meniere's-related episode. M r . Perkins first contends that two of his absences (including the final Memorial Day incident) were caused by M eniere's-related episodes, and that St. Louis County should ha ve accommodated him by "excusing" those absences, that is, by not counting the m against him in determining that he had exhausted the options under St. Louis County's progr essive discipline policy and was thus subject to termination. In particular , Mr. Perkins asserts that he was absent over the Memorial Day weekend because of a-3-

Meniere's-relatedepisode, and that he was unable to use the telephone to call hi s supervisor because his condition had affected his hearing. Mr. Perkins admits that none of his other, numerous absences from work was related to his disability.
To make out a prima facie case for a violation of the ADA, Mr. Perkins mus t show that he was disabled within the meaning of the statute. See Aucutt v. Six Flags over Mid-America, Inc. , 85 F.3d 1311, 1318 (8 Cir. 1996). The ADA defines a th disability as "a physical or mental impairment that substantially limits one or more o f the major life activities of [an] indi vidual." See 42 U.S.C. § 12102(2)(A). Mr. Perkins maintains that he was disabled because his Meniere's-related episodes interfered with his a bility to work on two occasions. But to demonstrate that he was "substantiall y limit[ed]" in the major life activity of working, more is required: Mr. Perkins must show that his condition significantly restricted his ab ility to perform a class of jobs or a broad range of jobs in va

rious classes as compared to the average person having comparable skills and training. See 29 C.F.R. § 1630.2(j)(3)(i); see also Olson v. Dubuqu e Community Sch. Dist. , 137 F.3d 609, 611-12 (8 Cir. 1998). th
We do not believe that Mr. Perkins has produced evidence from which a reason able fact finder could conclude that Meniere's disease disabled him within th e meaning of the ADA. During his three years of employment with St. Louis County , Mr. Perkins suffered only two Meniere's-related episodes: The first episode caused him to miss two weeks of work, and the second, wh ich occurred almost a year later, caused him to miss three days. We believe that a medical condition that causes an individual to miss two and one-half weeks of work in a three-year perio d is not sufficient to render that individual disabled under the ADA. In short , we see no evidence that his disability rendere d Mr. Perkins "unable to do [his] particular job, much less ... unable to do a broad range o f jobs," Olson , 137 F.3d at 612. Nor has Mr. Perkins produced an y evidence that the Meniere's-related episodes substantially limited any other major life activity of his.-4-

We therefore

hold that Mr. Perkins has not offered evidence sufficient to lead a rea sonable fact finder to conclude that his Meniere's disease constituted a disabilit y within the meaning of the ADA.
II. Mr. Perkins also maintains that St. Louis County discriminated against hi m because of his permanent hearin g loss. Hearing impairment, depending on its severity, can be a disability under the ADA. See 29 C.F.R. § 1630.2(i). To establish an ADA claim based on his hearing impairment, however, Mr. Perkins must produce evidence fromwh ich a reasonable fact finder could conclude that St. Louis County terminate d him or dis criminated against him in some other way because of his hearing loss, se e Price v. S-B Power Tool , 75 F.3d 362, 365 (8 Cir. 1996), cert. denied , 117 S. Ct. 274 th (1996), and we believe that he has failed to do so.
We do not b elieve that the record could support a finding that Mr. Perkins' s te rminationfor excessive absenteeism was related to his permanent hearing loss. H e conced es that he never missed work because of his hearing impairment. He asserts , however, that on one occasion (during the Memorial Day weekend already adverted to), he was unable, because of difficulties with his hearing, to use the telephone to alert his supervisor to his need to be absent and that the resulting unexcused absence caused his termination.
After careful ly reviewing the record, we disagree. We believe that this claim is bas ed on temporary, severe hearing difficulties that were directly related to hi s Men iere's disease (which we have already determined did not disable Mr. Perkins) , rather than on his permanent hearing impairment. Under normal circumstances , Mr. Perkins is apparently able to understand others on the telephone despite his hearing impairment, as long as they speak slowly and loudly. In addition, while he has difficulty understanding strangers speaking o n the telephone, it is uncontested that he did use the telephone on several occasions both at work and at home.-5-

Mr. Perkins seems to admit that it was only during a Meniere's-related episode that his hearing decreased to such a level that he was unable to use the telephone to alert his supervisor to his need to be absent. F or example, he stated in his deposition that he di d not attempt to contact his supervisor over the Memorial Day weekend because he was sic k and his "hearing went down and out" during the Meniere's-related episode

. When he was asked why he believed he was terminated because of his permanen t hearing los s, as opposed to Meniere's disease, moreover, Mr. Perkins was unable t o state any reasons whatsoev er. He merely responded, "I was dizzy. ... It may not deal with the hearing loss, but I had dizziness because I had inner ear infection. ... [I]f I didn'thave that Meniere's disease, I would be at work." In his brief on appeal , Mr. Perkins argues that his absences from work "should have been excused becaus e they r esulted from episodes of Meniere's disease"; he makes no mention of hi s permanent hearing impairment playing any role in those absences. Finally, Mr. Perkins's fiancee stated in an affidavi t that Mr. Perkins asked her to contact his supervisor about Mr. Perkins's absence, explaining that "he could not contact his supervisor himsel f because he was unable to hear well enough due to his Meniere's disease." In short, although Mr. Perkins alleges that his hearing impairment was a separate disability from his Meniere's disease, he has not produced sufficient evidence that his hearin g impairment was linked to his absences from work and to his subsequen t termination for exce ssive absenteeism. We note that he does not claim that but for his permanent hearing loss, the Meniere's-related hearing difficulties alone would not have resulted in his absence and subsequent termination. We conclude therefore tha t Mr. Perkins did not produce sufficient evidence to allow a reasonable fact finder t o de cide that St. Louis County discriminated against him because of his hearin g impairment.The statute, 42 U.S.C. § 12112(a ), creates the baseline prohibition of the ADA 2 by stating that "[n]o covered entity shall discriminate again st a qualified individual with a disabilit y because of

the disability of such individual in regard to job applicatio n proce dures, the hiring, advancement, or discharge of employees, employe e compensation, job training, and other terms, conditions, and privile ges of employment." -6- III. Becaus e we find, first, that Mr. Perkins's Meniere's disease was not a disability within th e meaning of the ADA and, second, that there is no evidence that St. Loui s Count y discriminated against him because of his hearing impairment, we need no t address the question of whether the accommodations that he requested were reasonable under the ADA. For the foregoing reasons, we affirm the judgment of the district court. BRIGHT, Circuit Judge, concurring separately. I concur with the opinio n of my colleagues and agree that summary judgment of dismissal against Mr. Perkins was entire ly warranted on the record in this case. I write separately, however, in order to emphasize two points. First, the employer in this case, Saint Louis County, maintained a generous policy on absenteeism. The policy provided for reasonable but escalating punishment fo r ex cessive absences and even went so far as to provide counseling services in order to modi fyunsuitable behavior. In return, the policy required common sense, good faith effo rts by employees to notify their supervisors of impending absences and, wher e appropriate, to provide documentation of alleged illness.
Eve n if we assume, arguendo, that Mr. Perkins is a "qualified individual" an d suf fers under a "disability"---within the meaning ascribed to those terms under th e ADA---he failed to show, in any fashion, that S t. Louis County "discriminate[d] against [him] because of the disability" as he was required to do in order to make out a prima facie case under the statute. 2(emphasis added). -7-

T he facts of this case show plaintiff guilty of truly excessive absences. He had doze ns of well chronicled absences, none of which may be explained by Meniere' s disease. His poor attendance led, progressively, from verbal warnings to writte n warnings; then from written warnings to four separate counseling sessions; then from couns eling to independent periods of suspension. He was suspended for three days

. Thenmore absences. He was suspended for five days. More absences. He wa s suspended for ten days. Finally, the Meniere's-related absence which broke the camel's back became unexcused- --and therefore grounds for his prompt termination---when he failed to properly notify his employer, as he was required to do. The record establishes that Mr. Perkins abused St. Louis County's absenteeism policy. Under these circumstances, the employer has established a separate cause for discharge w holly apart from the incidents related to Meniere's disease. Perkins wa s fired because of unreliability as a general matter, not because of his disability. I would affirm on these grounds. Second, I observe that this court's opinion should not be read to imply tha t Meniere's disease is outside the bounds of disability per se . Under other circumstances, periodic dizzy spel ls attributed to Meniere's disease might well require an employer to make reasonable accommodation under the ADA. This, however, is not that case. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.