Dennis W. Ross, Appellant, vs City of New Brighton, et al., Respondents.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-98-1095

Dennis W. Ross,
Appellant,

vs.

City of New Brighton, et al.,
Respondents.

Filed November 3, 1998
Affirmed
Short, Judge

Ramsey County District Court
File No. C19710492

Brian E. Cote, 900 Midwest Plaza East, 800 Marquette Avenue, Minneapolis, MN 55402 (for appellant)

Patricia Y. Beety, 145 University Avenue West, St. Paul, MN 55103 (for respondents)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Holtan, Judge.*

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

This employment discrimination case stems from New Brighton Police Sergeant Dennis W. Ross's back condition. Ross sued the City of New Brighton (city) and Police Chief John Kelley (Kelley), for discrimination based on disability and gender and retaliation for requesting accommodation for his disability under the Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213 (1994), and the Minnesota Human Rights Act (MHRA), Minn. Stat. §§ 363.01-.15 (1996). On appeal from a judgment dismissing his claims, Ross argues the trial court erred in concluding: (1) Ross was not "disabled" within the meaning of the ADA or MHRA; and (2) the city did not retaliate against Ross for requesting accommodation of his disability. We affirm.

D E C I S I O N

On appeal from summary judgment, this court examines whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990); see Minn. R. Civ. P. 56.03 (setting forth trial court standard for summary judgment). Although this court views the evidence in the light most favorable to the nonmoving party, summary judgment is appropriate against a party who fails to establish the existence of an essential case element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552 (1986); Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). To survive summary judgment, a plaintiff must establish a prima facie case of disability discrimination or retaliation. Sigurdson v. Carl Bolander & Sons, Co., 532 N.W.2d 225, 228 (Minn. 1995) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)) (interpreting disability discrimination claim); Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 444-45 (Minn. 1983) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)) (interpreting retaliation claim).

I.

In order to qualify as a disability under either the ADA or MHRA, the plaintiff's medical conditions must "substantially" or "materially" limit one or more "major life activities." 42 U.S.C. § 12102(2); Minn. Stat. § 363.01, subd. 13. Alternatively, the plaintiff may establish a disability by proving a record of or being regarded as having such a disability. Id.

Ross argues the trial court erred in summarily dismissing his case because he was disabled, had a record of his disability, and was regarded as having a disability. However, the undisputed facts demonstrate:  (1) in November and December 1992, Ross underwent medical testing for his back; (2) in November 1993, Ross took one month medical leave; (3) in February 1994, Ross had back surgery; (4) for the next two and a half months, Ross was unable to work due to medical restrictions on bending, twisting, and lifting weight over 20 pounds; (5) for the next seven months, Ross did not work due to medically imposed weight restrictions over 50 pounds; (6) in November 1994, all medical restrictions were removed; and (7) since that date, Ross has performed his job without any accommodation or medical restrictions. Given these facts, Ross's past medical condition does not constitute a "disability," a record of disability, or being regarded as disabled under the ADA or the MHRA. See Snow v. Ridgeview Medical Ctr., 128 F.3d 1201, 1207 (8th Cir. 1997) (holding 25-pound weight lifting restriction was not evidence of disability under ADA or MHRA); Heintzelman v. Runyon, 120 F.3d 143, 145 (8th Cir. 1997) (holding inability to work during one year recuperation from back injury was not evidence of permanent impairment); Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 617-18 (8th Cir. 1997) (holding movement and lifting restrictions did not demonstrate a factual dispute regarding substantial limitation on major life activity); see also Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir. 1996) (holding testimony that employee told his supervisors of his medical condition and his personnel file noted his condition, was evidence of history of impairment, but not evidence of record of disability); Kelly v. Drexel Univ., 94 F.3d 102, 109 (3rd Cir. 1996) (stating mere fact that employer was aware of employee's impairment was insufficient to demonstrate either that employer regarded him as disabled or that such perception caused adverse employment action).

II.

Ross also argues the trial court erred in summarily dismissing his retaliation claim. 42 U.S.C. § 12203(a); Minn. Stat. § 363.03, subd. 7 (1996). However, the record shows: (1) Chief Kelly had no notice of the June 3 letter from Ross's attorney or Ross's claims of discrimination prior to starting the internal affairs investigation; (2) the internal investigation of Ross was conducted pursuant to department policy following a fellow officer's formal complaint against Ross; (3) the complaining officer had no involvement in Ross's request for accommodation; and (4) Ross was not suspended, demoted, or terminated as a consequence of the internal affairs investigation. Given these undisputed facts, Ross has failed to show causation. Cf. Hubbard, 330 N.W.2d at 445 (stating plaintiff showed causal connection when he was discharged two days after service of complaint alleging employment discrimination). The trial court properly granted summary judgment on Ross's retaliation claims.

Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.