Submitted: December 14, 2017
Appeals from United States District Court for the Eastern
District of Arkansas - Little Rock
SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.
Moses appeals from the district court's grant of summary
judgment to Dassault Falcon Jet-Wilmington Corp. and Dassault
Falcon Jet Corp. (collectively, DFJ) on his (1) age
discrimination and retaliation claims brought under the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et
seq. (ADEA); (2) disability discrimination and
retaliation claims brought under the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq.
(ADA); and (3) state-law claim for age and disability
discrimination and retaliation brought under the Arkansas
Civil Rights Act of 1993, Ark. Code Ann. § 16-123-101
et seq. (ACRA). We affirm.
recite the facts from the record in the light most favorable
to [Moses], the nonmovant in this summary judgment
disposition." PPS, Inc. v. Faulkner Cty., Ark.,
630 F.3d 1098, 1100 (8th Cir. 2011) (citation omitted). DFJ
manufactures and sells jet aircraft. Moses began working at
age 42 for DFJ as an Avionics Installer at its completion
center in Little Rock, Arkansas, in 1997. In 2013, at age 58,
Moses's job title was Flight Line Avionics Checkout.
Among other job duties, Moses accompanied the pilot on test
flights of completed jet aircraft.
to 2013, Moses received positive job performance evaluations.
But he did experience occasional conflicts with his
coworkers. Moses traces these incidents back to 2001, when
supervisor Matthew Shrum stated "You'd better watch
it. . . . You're making everybody look bad." Moses
believed the comment stemmed from how he had outperformed
others who were "leads" (supervisors).
Defendants' Motion for Summary Judgment, Exhibit A, at 5,
Moses v. Dassault Falcon Jet-Wilmington Corp., No.
4:15-cv-00033-JM (E.D. Ark. Aug. 3, 2016), ECF No.
23-1. Moses alleges that, from that point, his
coworkers began harassing him "because they thought [he]
was going to take their job." Id. On another
occasion, Moses claimed that his tools were taken from him
and placed on another aircraft. And, he asserted that he was
falsely accused of being drunk at work and was sent home for
four days awaiting the results of a urine test. After the
test proved negative, Moses was allowed to return to work.
Moses also claimed that Les Ashmore, a supervisor, told Moses
that "if [Moses] was looking for trouble, that [Moses]
found it." Id. at 9. Moses also complained to
his superior, Ron Homsher, about Shrum. According to Moses,
Shrum's mistreatment exacerbated his hypertension,
causing his blood pressure to "shoot up over 200."
Id. at 6. Some mornings, Shrum would immediately
start yelling at Moses. Moses asked Homsher "not [to]
put [him] on Shrum's team because [Moses had] been
harassed by [Shrum] for a long time." Id. at 5.
Homsher replied, "I'll put you anywhere I want to
put you." Id.
received his 2012 performance evaluation on January 4, 2013.
Moses received an overall rating of "Needs
Improvement." In the "Employee's Comments"
section, Moses wrote: "I believe my stress on
the job is . . . the reason for my poor evaluation. I hope my
stress will be better in the near future."
Defendants' Motion for Summary Judgment, Exhibit B, at
46, Moses v. Dassault Falcon Jet-Wilmington Corp.,
No. 4:15-cv-00033-JM (E.D. Ark. Aug. 3, 2016), ECF No. 23-2;
see also Defendants' Motion for Summary
Judgment, Exhibit A, at 14. According to Moses, he
also wrote that he was being harassed but "they tore it
up." Defendants' Motion for Summary Judgment,
Exhibit A, at 15. Specifically, Homsher told Moses that he
"couldn't write harassment" on the performance
August 12, 2013, Moses met with Gregg Gibbs, a Human
Resources (HR) Generalist at DFJ to discuss Moses's
performance. During that meeting, Moses told Gibbs that he
was having trouble concentrating at work. On August 14, 2013,
Moses met with Sharon Norwood with the HR Department. Moses
had asked Norwood about the ramifications of early
retirement. During their meeting, Norwood presented Moses
with a written statement describing the available financial
benefits for early retirement. Moses ultimately decided to
keep working because his retirement pay would be
significantly less than his current earnings.
days later, on August 16, 2013, Moses met with Eric Tate,
Vice President of HR, and Gibbs. Tate and Gibbs asked Moses
about a rumor that Moses had told coworkers that HR was
trying to take away his job. Moses denied the accusation.
Tate told Moses that DFJ was not trying to take his job away.
Tate asked if Moses was still having problems concentrating,
and Moses answered yes. Moses explained that his
concentration problem stemmed from prescription medications
he took. Moses had undergone two neck surgeries and took pain
management medication daily. Moses was also on blood pressure
medication. Tate suggested that Moses undergo an independent
medical examination (IME) to assess Moses's ability to do
his job and any potential work accommodations.
August 27, 2013, Tate wrote Dr. Scott Carle of Concentra
Urgent Care about conducting an IME of Moses. Tate explained
that Moses "ha[d] received three consecutive overall
ratings of Needs Improvement on his performance evaluations
dating back to January 2013" and had expressed several
times he was "having difficulty concentrating."
Defendants' Motion for Summary Judgment, Exhibit B, at
63. Tate noted that Moses had also "visited the Staff
Nurse many times with concerns regarding his blood
pressure." Id. Tate detailed the job duties
required of Moses, including "operating, testing,
modifying, troubleshooting, repairing[, ] and inspecting of
all avionics and electrical systems on the aircraft."
Id. Because Moses's "duties impact[ed] the
airworthiness of an aircraft," Tate stressed that
"these potential mental and physical issues of
Jerry's [were] much more critical." Id.
Tate asked Dr. Carle to objectively collect information and
opine on the following questions: (1) "Is Jerry able to
adequately perform the physical and mental aspects relating
to the core functions of his job today?"; (2) "If
not, what if any accommodations are required to make him
successful in his position?"; and (3) "If not, what
type of position could be offered to him that he could be
successful in the performance of its responsibilities?"
September 12, 2013, Dr. Carle conducted an IME of
Moses and concluded that Moses was not able to
perform the essential functions of his job. In his written
report, Dr. Carle responded to Tate's first question as
In review of Mr. Moses' job description the most
prominent concerns are the "critical" job tasks
which would necessitate a clear level of unimpaired executive
functioning. Also, by way of physical demands, there appears
to be a need to lift at a "minimum" of 45 pounds.
Furthermore, working off ground level of 25 feet is a
significant risk due to the medications he is taking
regarding fall risk.
Id. at 75.
response to the second question concerning possible
accommodations, Dr. Carle opined that "no known
modifications of the essential functions" existed for
Moses's position. Id. According to Dr. Carle,
"The duration of these restrictions would be considered
permanent." Id. As to Tate's third question
concerning another type of position that DFJ could offer
Moses, Dr. Carle explained that "[a]n alternative
position would not include safety sensitive job functions
that may place others at risk for harm and would include
ground level work only without routine lift, push or pull of
force exceeding 30 pounds occasionally."
Id. The record contains no medical testimony
controverting Dr. Carle's opinion.
October 17, 2013, Moses met with Norwood and Gibbs. They
informed him that DFJ had explored the possibility of putting
him in another position, but there were no openings at that
time. They also informed Moses they were placing him on
medical leave for three months. They advised Moses that
should his medical condition change, he should contact HR.
November 12, 2013, Moses filed a complaint with the Equal
Employment Opportunity Commission (EEOC) against DFJ alleging
that he was harassed because of his age in violation of the
ADEA and harassed and suspended because of his disability and
in retaliation for complaining in violation of the ADA.
January 16, 2014, DFJ offered Moses a position in the
Security Department. Moses declined the offer because it did
not pay enough. The position also required him to carry a
weapon, which he had never done before at DFJ. Moses also
expressed that he "just couldn't go back"
because "[e]verybody's going to make fun of
me." Defendants' Motion for Summary Judgment,
Exhibit A, at 25.
February 18, 2014, Moses's attending physician, Dr.
Richard Heck, signed a statement of functionality in
conjunction with Moses's application for disability
benefits. Dr. Heck stated that Moses's restrictions were
"permanent" and that his "major depression and
confusion continue to worsen." Defendants' Motion
for Summary Judgment, Exhibit B, at 79. Dr. Heck further
stated that Moses "[t]akes [a] significant amount of
pain medications." Id. Finally, Dr. Heck
concluded that Moses does have ...