Willnerd v. First National Nebraska, Inc.

558 F.3d 770, 21 Am. Disabilities Cas. (BNA) 1164, 2009 U.S. App. LEXIS 5218, 2009 WL 635219
Court of Appeals for the Eighth Circuit·Decided March 13, 2009·No. 07-3316·Published·Cited by 19 cases

Opinion

MELLOY, Circuit Judge.

Jeffrey Willnerd appeals the district court’s adverse grant of summary judgment on his claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213. Willnerd suffers from a voice condition that limits his ability to speak in a normal or controlled tone, periodically causes his voice to cut out completely, and requires him to put forth considerable exertion when speaking. *773 Defendant First National of Nebraska, Inc. (“First National”), a multi-branch bank located in Nebraska, terminated him from a loan officer/sales representative position that required substantial interaction with the public. First National subsequently failed to rehire Willnerd after he applied for several positions through an internal rehiring program.

Willnerd argues these actions were adverse employment actions motived by discriminatory animus. First National asserts there was no discriminatory animus and characterizes Willnerd’s termination as an economically motivated reduction in force. First National also characterizes the failure to rehire Willnerd as based on Willnerd’s qualifications and the relative merits of different job applicants. Questions of material fact exist as to the veracity of First National’s proffered reasons for terminating Willnerd, its reasons for not rehiring him through the internal rehiring program, and the ultimate question of discrimination. Because reasonable jurors could resolve these outstanding questions in Willnerd’s favor and conclude he is entitled to relief on his claims, we reverse.

I. Background

Willnerd began working at a bank in Beatrice, Nebraska in 1982. His initial duties “included a little bit of everything,” but he was primarily responsible for real estate loans and some commercial and installment lending. In early 1983, First National, through a subsidiary, acquired the branch where Willnerd worked. Will-nerd then worked for First National at the Beatrice branch for approximately twenty years until his termination in September 2003.

In his job as Loan Officer/Sales Representative, Willnerd solicited and prepared installment, consumer, and home-equity loan applications. He also sold credit cards and insurance products and underwrote credit. In addition, he served as the head of the branch’s real estate department from about 1983 to 1993. According to Willnerd, he would occasionally close the bank and fill in for the branch president, Larry Keslar, when Keslar was absent. Starting in 1999, Willnerd also served as the branch’s representative for Investment One, an investment firm affiliated with First National. Willnerd stopped his work for Investment One in 2001 because First National wanted the Investment One position to be full-time, and he did not want to give up his banking duties.

In 1999 Willnerd began noticing a gradually worsening speech limitation. The ailment baffled his doctors. As noted above, Willnerd’s voice would cut out and return, and it took considerable exertion for Willnerd to speak. By 2001, his voice was essentially limited to a whisper. Although Willnerd’s position required substantial interaction with the public, he neither requested an accommodation nor sought a change of duties prior to his termination. Further, based on a comparison of numerical rankings he received during performance reviews over the years in question, and based on his loan productivity, his health condition did not adversely affect his job performance. 1

Willnerd’s coworkers were aware of his difficulty with speaking, and at least one coworker stated in a deposition that other coworkers had made fun of Willnerd’s con *774 dition. Keslar remembered talking about Willnerd’s voice with a supervisor from Omaha, Christopher Kisicki, during Ki-sicki’s visits to Beatrice. Keslar also stated that he had spoken with Willnerd, Will-nerd’s coworkers, and bank customers about Willnerd’s voice condition. Kisicki stated in his deposition that he was concerned about how customers might view Willnerd. Also, a higher-ranking supervisor from Omaha, David Ulferts, was aware of Willnerd’s conspicuous condition because Ulferts met with Willnerd in Beatrice on at least two occasions after the onset of Willnerd’s condition.

Willnerd’s condition eluded diagnosis as of September 2003 when First National terminated him from his position. In November 2003, during a time when Willnerd continued to receive pay while seeking a different position with First National, physicians at the Mayo Clinic diagnosed Willnerd with the rare neurological voice disorder, hyperkinetic dy-sarthia. They prescribed a course of treatment that included Botox injections every three months. Later, the physicians altered their diagnosis, and in June 2004, Willnerd underwent surgery. These treatments ultimately failed to provide a substantial improvement in Will-nerd’s condition.

First National asserts that during the same general time frame as the onset and worsening of Willnerd’s voice condition, 1999 to 2003, overall performance at the Beatrice branch was unacceptable. First National claims it recognized a need to increase income or reduce expenses at the Beatrice branch. In fact, it is undisputed that, prior to 2002, First National began a restructuring process in which it removed certain functions from several smaller branches and centralized these functions in Omaha. Underwriting functions were among those First National moved to Omaha. As such, some aspects of Will-nerd’s duties moved from Beatrice to a central office. Willnerd does not allege that the Beatrice branch was the only location from which First National removed functions. He also does not allege that this process comprised an adverse action or served as evidence of discriminatory intent.

In February 2002, Kisicki and Ulferts met with Keslar, Willnerd, and several other employees at the Beatrice branch: Jim Spangler, Assistant Branch Manager; Tamara Weers, Mortgage Loan Officer; and two personal bankers. First National describes the meeting generally as a pep-talk and strategy session to suggest ways to improve the cross-selling of services and to promote the generation of business through various methods, including increased referrals of existing customers for multiple lines of business. Ulferts and Kisicki stated in their depositions that concern about under-performance by the personal bankers was the primary impetus for the February 2002 meeting.

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Willnerd v. First National Nebraska, Inc., 558 F.3d 770, 21 Am. Disabilities Cas. (BNA) 1164, 2009 U.S. App. LEXIS 5218, 2009 WL 635219 (8th Cir. 2009).

558 F.3d 770 (Willnerd v. First National Nebraska, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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