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Moses v. Dassault Falcon Jet - Wilmington Corp.

United States Court of Appeals, Eighth Circuit

July 3, 2018

Gerald Moses Plaintiff- Appellant
v.
Dassault Falcon Jet - Wilmington Corp; Dassault Falcon Jet Corp Defendants - Appellees Gerald Moses Plaintiff- Appellant
v.
Dassault Falcon Jet - Wilmington Corp; Dassault Falcon Jet Corp Defendants - Appellees

          Submitted: December 14, 2017

          Appeals from United States District Court for the Eastern District of Arkansas - Little Rock

          Before SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.

          SMITH, Chief Judge.

         Gerald Moses appeals from the district court's[1] grant of summary judgment to Dassault Falcon Jet-Wilmington Corp. and Dassault Falcon Jet Corp. (collectively, DFJ)[2] 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.

         I. Background .

         "We 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.

         Prior 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.[3] 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.

         Moses 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 evaluation. Id.

         On 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.

         Two 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.

         On 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?" Id.

         On September 12, 2013, Dr. Carle conducted an IME of Moses[4] 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 follows:

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.

         In 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.[5] The record contains no medical testimony controverting Dr. Carle's opinion.

         On 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.

         On 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.

         On 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.

         On 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 ...


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