Emerson, Loretta M. v. Northern States

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3746

Loretta M. Emerson, formerly known

as Loretta M. Rubenzer,

Plaintiff-Appellant,

v.

Northern States Power Company,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 99 C 809--Barbara B. Crabb, Judge.

Argued March 26, 2001--Decided June 26, 2001

Before Flaum, Chief Judge, and Bauer and

Rovner, Circuit Judges.

Bauer, Circuit Judge. Loretta

Emerson/1 sued her former employer,

Northern States Power Company ("NSP") for

firing her in violation of the Americans

with Disabilities Act ("ADA") 42 U.S.C.

sec. 12101 et seq. The district court

granted summary judgment in favor of NSP

on the ground that Emerson was not a

qualified individual. We affirm.

I. Background

Emerson began working in NSP’s Eau

Claire Customer Information Center in

1994. She began as a part-time "student

operator," but was promoted to a part-

time "associate consultant" position

within six months. Despite the part-time

classification, Emerson generally worked

40 hours per week. As an associate

consultant, Emerson mainly handled

routine customer calls, but by her

estimate roughly 5% to 10% of her job

entailed processing customer calls about

gas and electrical emergencies, such as

gas leaks and downed power lines. The job

description designated handling such

calls as an "essential job function," and

estimated the volume of calls to comprise

20% of an associate consultant’s work. On

average, Emerson handled 2 to 5 gas

emergencies per week and 2 to 5

electrical emergencies per week. This

number generally increased when

thunderstorms occurred. In 1994 and most

of 1995, Emerson performed her job at or

above the satisfactory level. However,

for reasons the record does not

elucidate, Emerson had strained relations

with one of her supervisors, Lori Krigs.

Then, on October 1, 1995, Emerson fell

and hit her head while rollerblading. The

fall caused head trauma, including two

skull fractures and a hematoma. Dr.

Michael Murphy treated Emerson,

hospitalizing her twice. He referred her

to a speech/language therapist who

conducted two therapy sessions with

Emerson and evaluated her condition using

cognitive tests. The therapist concluded

in part that Emerson experienced

difficulty learning new information and

had moderate memory impairments. At the

end of October, relying on the tests the

therapist administered, Dr. Murphy

released Emerson to return to her

associate consultant position with no

medical restrictions.

Upon her return, Emerson had difficulty

learning NSP’s new telephone and computer

systems. Her supervisors complained that

she asked many questions more than once

and seemed unable to retain information.

Her supervisors also noted that she made

mistakes when working on complex, yet

routine tasks and was much more emotional

than she had been before the accident.

Emerson’s supervisors evaluated her job

performance in 1996 as needing

improvement in the areas of problem-

solving, information retention, and

communication. Emerson continued to have

difficulties with Krigs, a situation

which caused her stress.

On Saturday, April 27th, Emerson

experienced an anxiety attack at work.

The attack, Emerson’s first, included

symptoms characteristic of a heart

attack. Emerson spent the rest of her

shift at the emergency room, but was able

to return to work on Monday. Dr. Murphy

prescribed anti-anxiety medication for

Emerson to take when she felt the onset

of an attack, but she took it

infrequently. Rather, she tried to reduce

stress at work by avoiding contact with

Krigs. Emerson suffered another panic

attack at work on June 6th. She took her

medication and, with permission from NSP,

went home for the day. Emerson was not

handling calls when she experienced

either of the attacks.

NSP was concerned that Emerson’s panic

attacks might prevent her from adequately

handling safety-sensitive calls. It

required her to be evaluated by the

company’s occupational medicine

physician, Dr. Donald Bodeau, regarding

her ability to safely perform her job,

and she saw him several times during the

summer of 1996. Dr. Bodeau believed that

the panic attacks were related to

Emerson’s head trauma. After Emerson’s

first evaluation, Dr. Bodeau recommended

placing Emerson on a paid leave of

absence, which NSP did. After a follow-up

exam on June 19th, Dr. Bodeau cleared

Emerson to return to work in a non-

safety-sensitive position. NSP placed her

in a billing position for two months to

fill in for an employee on maternity

leave. Emerson worked the same number of

hours and received the same pay as she

did in her associate consultant position.

She performed well in the billing

department.

NSP asked Emerson to be re-evaluated by

Dr. Bodeau on July 17th. Dr. Bodeau noted

that Emerson felt relaxed in the billing

position, but when she spoke of returning

to her position as an associate

consultant, she became agitated and

believed that Krigs was conspiring

against her. Emerson continued to show

signs of memory loss and difficulty

communicating. Dr. Bodeau sent Emerson to

Dr. Thomas, a psychologist, for further

neurological testing. Dr. Thomas

concluded that while her test results

were within normal limits, she suffered

from acute anxiety disorder and probable

panic attacks. He noted that Emerson’s

condition would likely improve over the

next one to two years, although he could

not offer assurances that she would

recover fully, and recommended that NSP

reinstate her to the associate consultant

position. Dr. Murphy and Dr. Bodeau

agreed that Emerson suffered from an

anxiety disorder, although Dr. Bodeau

thought it was fairly mild.

On August 16th, Emerson met with her

supervisors from NSP to discuss returning

to work as an associate consultant. At

that meeting, NSP gave Emerson a written

warning, the second step in the

disciplinary process, memorializing its

concern about her performance. NSP had

not given Emerson a level one warning,

but had the discretion to skip

disciplinary steps. Emerson indicated

that in case of a panic attack, she would

need to talk to her supervisor and take a

break. At Dr. Bodeau’s recommendation,

NSP allowed Emerson five minutes to

collect herself in case of a panic

attack. Emerson consulted Dr. Murphy who

informed NSP that a five minute break

might be insufficient time for Emerson to

regain her composure. He could not,

however, specify how much time she would

need. Because of NSP’s concern, Emerson

suggested that safety-sensitive calls

could be routed away from her, or that a

co-worker could take over for her in case

she had a panic attack while dealing with

a safety-sensitive call. NSP rejected

these options because of the uncertainty

that another consultant or supervisor

would be available to take the call.

Further, Emerson suggested that her

stress level would be reduced if Krigs

stopped supervising her. NSP declined to

make this arrangement.

Dr. Bodeau unsuccessfully attempted to

reach Dr. Murphy to discuss his

recommendation that five minutes was not

enough time for Emerson to recover from a

panic attack. Dr. Bodeau then recommended

that Emerson be transferred out of her

safety-sensitive position. Further, based

on his prediction that it would take

Emerson up to two years to fully recover,

NSP concluded Emerson would have to leave

her consultant position. NSP identified

an available full-time administrative

assistant job, but required Emerson to

apply for it because Emerson’s associate

consultant position was classified as

part-time despite its usual full-time

hours. Emerson was not interviewed or

hired for this position. NSP offered

Emerson a temporary, part-time cash

processor position, which she turned

down. Toward the end of October, a

supervisor notified Emerson that an

associate consultant position with no

safety-sensitive calls was available in

Minnesota. Emerson did not apply.

Emerson’s employment was terminated

effective October 31, 1996. NSP did not

notify Emerson about any other available

positions for which she qualified,

although some existed. A vocational

rehabilitation expert who later evaluated

Emerson concluded that her head injury,

which sensitized her to stress and

increased her need for routine, precluded

her from 47% of all occupations and

rendered her disabled.

After Emerson’s termination, she worked

briefly scheduling factory workers, but

left because scrambling every morning to

find substitute workers for absent

employees was too stressful. Emerson

subsequently performed office work and

maintenance for a housing management com

pany for three years, and supplemented

her income by working temporary jobs as a

booking agent and order processor.

Emerson left these jobs to become a

property manager. She has had difficulty

finding a job that pays as much as NSP

paid her.

Emerson sued NSP for monetary and

injunctive relief under the ADA, arguing

that NSP failed to offer her a reasonable

accommodation and fired her because she

was disabled. The district court found

that an issue existed as to Emerson’s

disability in the major life activities

of learning and working. However, the

court granted summary judgment in favor

of NSP finding that Emerson was not a

qualified individual under the ADA

because she was unable to handle safety-

sensitive calls with or without

reasonable accommodation.

II. Discussion

We review the district court’s grant of

summary judgment de novo. See Sinkler v.

Midwest Property Mgmt., Ltd. P’ship., 209

F.3d 678, 682 (7th Cir. 2000). To

persuade us to reverse the district

court, Emerson must marshal the

pleadings, depositions, answers to

interrogatories, and affidavits to create

an issue of material fact regarding the

challenged factors, or she must show that

NSP is not entitled to judgment as a

matter of law. See id. at 683. The ADA

prohibits covered entities such as NSP

from discriminating against a qualified

individual with a disability on the basis

of the disability. See 42 U.S.C. sec.

12112(a). In this case, Emerson defends

the district court’s holding that she has

created a material issue of fact

regarding whether she was disabled at the

time she was terminated, but she attacks

the district court’s determination that

she was not a qualified individual as

defined by the ADA.

A. Was Emerson Disabled?

The ADA defines "disability" as:

(A) a physical or mental impairment that

substantially limits one or more major

life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an

impairment.

42 U.S.C. sec. 12102(2). Emerson

endeavors to show that she meets all

three definitions. We initially tackle

the first definition by following the

procedure in Bragdon v. Abbott, 524 U.S.

624, 632-42 (1998). We determine whether

(1) Emerson has a physical or mental

disability (2) that impacts a major life

activity and (3) whether the impairment

substantially limits those activities.

See id.

Emerson argues that her head injury

resulted in mental impairments including

anxiety, panic attacks, learning

difficulties, and increased emotionality.

She garners proof of these effects from

the reports of Drs. Murphy, Bodeau, and

Thomas. The Department of Health and

Human Services defines a "mental

impairment" as "any mental or

psychological disorder, such as mental

retardation, organic brain syndrome,

emotional or mental illness, and specific

learning disabilities." 29 C.F.R. sec.

1630.2(h)(2). "[M]edically diagnosed

mental conditions are impairments under

the ADA." Krocka v. City of Chicago, 203

F.3d 507, 512 (7th Cir. 2000) (internal

quotation omitted). Emerson’s diagnoses

provide evidence that precludes summary

judgment on the disability issue for NSP.

At the time of her injury, the speech

therapist found that Emerson suffered

from a moderate impairment in her ability

to learn, to retain new information, and

to concentrate. During the summer of

1996, three separate doctors diagnosed

Emerson with anxiety disorders of varying

seriousness. Further, in June of 1996,

Dr. Bodeau noted that he found evidence

of "mood alteration, sudden personality

change, learning ability and panic

attacks." NSP counters with Dr. Bodeau’s

ultimate conclusion that of Emerson’s

test results were in the normal range.

While this evidence could persuade a jury

to find that Emerson suffers from no

impairment, it does not remove the issue

of fact.

Emerson contends that her impairment

effects the established major life

activities of learning and working. See

29 C.F.R. sec. 1630.2(i). She further

argues that memory, concentration, and

interacting with others are major

lifeactivities that her brain injury

impairs, but offers no legal precedent to

support her assertion. Emerson has not

sufficiently developed her contentions on

appeal, and we will not decide the issue.

Rather, we will adopt the district

court’s approach and treat memory,

concentration, and interacting with

others as activities that feed into the

major life activities of learning and

working.

The parties hotly dispute whether

Emerson’s impairments substantially

limited her major life activities.

According to the Code of Federal

Regulations, a person is "substantially

limited" if compared to the average

person in the general population she

cannot perform or is limited in the

manner, duration, or condition in which

she can perform a major life activity.

See 29 C.F.R. sec. 1630.2(j)(ii). Emerson

points to several pieces of evidence to

show her substantial limitation in the

area of learning. She had excessive

difficulty learning NSP’s new telephone

and computer systems, and frustrated her

supervisors with repetitive questions and

her inability to remember the answers.

One supervisor noted that Emerson made

mistakes when she attempted to complete

routine, yet complex aspects of her job

that she performed competently before the

accident. To establish the severity of

her impairments, Emerson relies on Dr.

Bodeau’s June 7th conclusion that Emerson

had difficulty learning and his June 19th

report finding cognitive difficulties.

Further, on July 19th, Emerson failed a

test that required her to count by threes

and sevens. This evidence, compiled from

both her employer and doctor’s reports is

more than sufficient to create an issue

of material fact.

NSP counters that cognitive tests

administered by Dr. Thomas showed that

Emerson’s cognitive function fell in the

normal range, prompting Dr. Bodeau to

recommended returning Emerson to her

consultant position. Further, NSP argues

that Emerson’s work performance problems

revolved primarily around her panic

attacks and her bad relationship with

Krigs, not her ability to learn.

Emerson’s evidence clearly disputes NSP’s

assertions. Such an issue of material

fact cannot be resolved at the summary

judgment stage.

Emerson also argues that she is

substantially impaired in the major life

activity of working. To show a

substantial limitation in this activity,

Emerson must offer proof that she is

"significantly restricted in the ability

to perform either a class of jobs or a

broad range of jobs in various classes as

compared to the average person having

comparable training, skills and

abilities." 29 C.F.R. 1630.2(j)(3)(i);

Webb v. Choate Mental Health & Dev. Ctr.,

230 F.3d 991, 998 (7th Cir. 2000)

(quoting Weiler v. Household Fin. Corp.,

101 F.3d 519, 525 (7th Cir. 1996)). We

evaluate impairments on an individual

basis to determine if they substantially

limit a person’s ability to work. See

Moore v. J.B. Hunt Transp., Inc., 221

F.3d 944, 952 (7th Cir. 2000) (citation

omitted). In support on her argument,

Emerson presents her vocational

rehabilitation specialist’s conclusion

that Emerson is foreclosed from a broad

range of jobs--47% of all occupations.

NSP challenges the report, arguing that

it does not describe how Emerson’s

anxiety and need for routine foreclose

her from this range of jobs, that the

vocational rehabilitation specialist

called her impairment "minor," and that

he failed to consider the potential

effect of Emerson’s medication when

determining the effect of her impairment

on her ability to work. NSP’s arguments

call the report into question, but do not

discredit it to the extent that we can

disregard its conclusions. Emerson has

created a question regarding whether she

is disabled that precludes summary

judgment on this issue. Given our

holding, we decline to address the

remaining definitions of "disabled."

B. Was Emerson a qualified individual?

To be a "qualified individual," a

plaintiff must be "an individual with a

disability who, with or without

reasonable accommodation, can perform the

essential functions of the employment

position that such individual holds or

desires." Weiler, 101 F.3d at 525

(quoting 42 U.S.C. sec.12111(8). Emerson

disputes the district court’s conclusion

that she was not a qualified individual

in four ways.

First, she argues that handling safety-

sensitive calls was not an essential

function for an associate consultant. An

essential function is a fundamental job

duty required of a person in the job the

plaintiff holds or desires; a marginal

duty is not an essential function. See 29

C.F.R. sec. 1630.2(n)(1). Factors that

may be taken into account when

determining whether a job duty

constitutes as essential function include

job description, employer’s opinion,

amount of time spent performing the

function, consequences for not requiring

the individual to perform the duty, and

past and current work experiences. See

Basith v. Cook County, 241 F.3d 919, 927

(7th Cir. 2001); 29 C.F.R. sec.

1630.2(n)(3).

NSP considers, and its associate

consultant job description designates,

handling safety-sensitive calls as an es

sential job function. Emerson argues that

the relative rarity of such calls (5% of

the job, by her estimate) shows that they

are only a marginal duty. Although we

accept Emerson’s estimate of the safety-

sensitive call volume, it fails to rebut

the essential function status.

Consultants clearly receive safety-

sensitive calls which are crucial as they

have potentially dangerous consequences

if handled poorly. Emerson suggests that

the calls could have been routed to

another consultant, but this does not

change their essential function status.

See Basith, 241 F.3d at 929 (holding that

employer’s ability to assign delivery

duties to another employee does not make

them nonessential).

Second, Emerson contends that she could

handle the calls without reasonable

accommodation. To be a "qualified

individual," the plaintiff must prove (1)

that she possesses the prerequisites for

the job, such as educational background,

skills, and experience, and (2) that she

can perform the job with or without

reasonable accommodation. See Bay v.

Cassens Transp. Co., 212 F.3d 969, 974

(7th Cir. 2000) (citations omitted). NSP

contests only whether Emerson can handle

safety-sensitive calls. Emerson notes

that after her accident, she never had

trouble dealing with a safety-sensitive

call and that she never had an anxiety

attack while on any call. She believes

this demonstrates that there is no

evidence to establish that she cannot

handle safety-sensitive calls. We

disagree. NSP is concerned about the

potentially disabling effect a panic

attack, such as the two Emerson has

experienced at work, and her need for an

indeterminate recovery time could have on

her ability to handle emergency calls.

Indeed, it emphasizes Dr. Bodeau’s

recommendation that Emerson be removed

from her position:

[g]iven these considerations as well as

the job description provided for a

consultant in the customer information

center, it is my opinion that [Emerson]

should be reassigned out of the gas-

sensitive activities that she found so

stressful.

Given Emerson’s need for an indeterminate

recovery time and the potentially

dangerous effects of a mishandled or

tardily handled safety-sensitive call,

Emerson’s evidence fails to create an

issue of fact regarding whether she can

adequately perform her job.

Emerson contends, however, that the

district court improperly analyzed NSP’s

argument under the routine "qualified

individual" framework. Rather, Emerson

asserts that the "direct threat" rubric

is more appropriate because NSP’s

arguments are better characterized as

concern that Emerson posed a direct

threat to the safety of its customers.

Emerson and NSP disagree about the role

this test should play, and unfortunately,

this leads their appellate briefs to be

underdeveloped. Emerson believes it was

NSP’s burden to present it as an

affirmative defense; NSP believes it was

Emerson’s duty to advance it as a theory

of the case. We agree that the direct

threat test can be applied appropriately

here, but the results are no different

than under "qualified individual"

analysis.

An employee is not a qualified

individual if she poses "a significant

risk to the health or safety of others

that cannot be eliminated by reasonable

accommodation." 42 U.S.C. sec. 12111(3).

Under the direct threat framework, the

employee shoulders the initial burden of

proof and may proceed in one of two ways.

First, she may present direct or

circumstantial evidence that the employer

discriminated on the basis of her

disability. See Bekker v. Humana Health

Plan Inc., 229 F.3d 662, 670 (7th Cir.

2000) (citation omitted). The employer

must then prove, with medical or

objective evidence, see Bragdon, 524 U.S.

at 649 (citation omitted); 29 C.F.R. sec.

1630.2(r), that it would have made the

same decision absent the discrimination.

See Bekker, 229 F.3d at 670 (citation

omitted). Alternatively, the employee

could opt for the McDonnell-Douglas

burden-shifting test. It requires the

employee to create an inference of

discrimination by bringing a prima facie

case. See id. at 672. The employer then

must provide a legitimate business reason

for its action, whereupon the burden

shifts back to the employee to show by a

preponderance of the evidence that the

proffered reason is pretextual. See id.

Emerson focuses her efforts on

contending that NSP has failed to

shoulder its burden of proof.

Consequently, we are unsure under which

option she proceeds. It is unnecessary

for us to guess at Emerson’s choice,

however, because NSP meets its burden

under either framework. NSP’s decision

would have been the same absent

discrimination and was a legitimate

business decision.

To determine whether an individual poses

a direct threat, we must consider factors

including: (1) the duration of the risk;

(2) the nature and severity of the

potential harm; (3) the likelihood that

potential harm will occur; and (4) the

imminence of potential harm. See

Borgialli v. Thunder Basin Coal Co., 235

F.3d 1284, 1291 (10th Cir. 2000). NSP

presented unchallenged doctors’ opinions

that Emerson suffered from an anxiety

disorder that might disappear in one to

two years, but might never improve.

Consequently, she required unpredictable

breaks of indeterminate time to recover

from a condition she exhibited at work

previously. Emerson worked at a job which

required prompt, accurate handling of

emergencies such as gas leaks and downed

power lines that could pose significant

danger to the public. Although Emerson

argues that she is unlikely to suffer a

panic attack at work, she has already

suffered two. By its very nature, the

consultant job could be stressful, and

Emerson would be in contact with a

supervisor who caused her further stress.

This evidence is enough for us to find

that Emerson posed a direct threat in the

consultant position. See, e.g., Bekker,

229 F.3d at 671-72 (holding that doctor

who was suspected of drinking on the job

posed a direct threat although she had

not injured any patients); Borgialli, 235

F.3d at 1294 (determining that an

employee who had a good record in his job

as a blaster, but who suffered from

dizziness, held a grudge against his

supervisor, and threatened harm to

himself and others was a direct threat).

NSP could not reduce its risk by

reasonably accommodating Emerson. NSP

considered allowing Emerson breaks to

recover from her panic attacks. It found

five minute breaks to be acceptable, but

the indeterminate time Emerson requested

simply introduced too much uncertainty

into NSP’s handling of emergency calls.

NSP appropriately declined Emerson’s

suggestion to route safety-sensitive

calls away from her. An employer is not

obligated to change the essential

functions of a job to accommodate an

employee. See Cochrum v. Old Ben Coal

Co., 102 F.3d 908, 913 (7th Cir. 1996)

("In short, reasonable accommodation does

not encompass reallocation of essential

job functions."). Emerson further

suggested that in case of a panic attack,

a supervisor could handle her safety-

sensitive calls. NSP rejected this option

because it did not always staff a

supervisor and would have had to create

new supervisor shifts to accommodate

Emerson, which the ADA does not require.

See id. at 912 (holding it is not

reasonable to require an employer to hire

a helper to do overhead work for a miner

who cannot perform this essential job

function alone). Emerson does not bring

any evidence tending to show that NSP’s

business reason for terminating her was

pretextual. Therefore, Emerson is not a

qualified individual, and NSP is entitled

to summary judgment on this ground.

Third, Emerson contends that NSP failed

to offer her reasonable accommodations

because it failed to participate in the

interactive process the ADA requires. As

part of the reasonable accommodation

duty, the ADA requires employers to

engage in an interactive process with

disabled employees needing accommodation

so that together they can identify the

employee’s needs and discuss

accommodation options. See Hendricks-

Robinson v. Excel Corp., 154 F.3d 685,

693 (7th Cir. 1998). However, an

employer’s failure to engage in the

interactive process or causing the

process to breakdown by itself is

insufficient to support employer

liability. See Rehling v. City of

Chicago, 207 F.3d 1009, 1015-16 (7th Cir.

2000). Rather, the employee must further

show that the breakdown of the

interactive process led to the employer’s

failure to provide a reasonable

accommodation. See id. at 1016.

Emerson criticizes Dr. Bodeau for

failing to discuss Dr. Murphy’s break

recommendation with him before

recommending that NSP remove Emerson from

her consultant position, and NSP for

following this recommendation. However,

the evidence shows that NSP engaged in

the interactive process in good faith. It

considered numerous medical diagnoses and

recommendations to determine the effect

of Emerson’s disability. It offered to

retain her as a consultant with the

understanding that she could take a five

minute break in the event of a panic

attack. However, NSP felt that it could

not offer Emerson breaks of indeterminate

time that Dr. Murphy opined she needed.

After an unsuccessful attempt to

communicate with Dr. Murphy, NSP offered

to accommodate Emerson by transferring

her to a temporary position. Further, NSP

allowed Emerson to submit a late

application for a full-time job. Emerson

was not selected for the full-time job

and she rejected the part-time job offer.

NSP offered Emerson a reasonable

accommodation.

Finally, Emerson argues that NSP should

have relocated her within the company

rather than fire her because she

expressed interest in remaining at NSP.

Reassigning disabled employees to vacant

positions that they can perform is a

reasonable accommodation. See Hendricks-

Robinson, 154 F.3d at 693. However, the

employee is not entitled to her preferred

accommodation. See Gile v. United

Airlines, Inc., 95 F.3d 492, 499 (7th

Cir. 1996). NSP offered to reassign

Emerson to an available position as a

temporary cash processor, which she

refused. NSP did not simply transfer

Emerson into the available full-time

position because it would have been a

promotion from part-time status to full-

time status. After evaluating the job

applications, NSP opted not to hire

Emerson for the job. Before Emerson was

terminated, NSP also alerted her to an

associate consultant position that was

available in Minnesota, which would not

have required her to field safety-

sensitive calls. Emerson opted not to

apply. NSP satisfied its duty. Emerson

contends that NSP had a continuing duty

to notify her of available positions even

after she was terminated, but did not do

so. She cites no legal support for this

position.

III. Conclusion

Because we hold as a matter of law that

Emerson is not a qualified individual, we

AFFIRM the grant of summary judgment in

favor of NSP.

FOOTNOTES

/1 Between the time of the events and the time the

case went to trial, plaintiff changed her last

name from "Rubenzer" to "Emerson." For the sake

of consistency, we refer to plaintiff as "Emer-

son."