Opposition Brief — Orr v. Wal-Mart Stores, Inc

@

No. 03-1353

_— Court, U.S.

FILED

Jn The

_ | APR 22 2004

Supreme Court of the AnitedD States rca

rs

v

STEPHEN C. ORR,

Petitioner,

VS.

WAL-MART STORES, INC.,

Respondent.

4

~

On Petition For Writ Of Certiorari

To The United States Court Of

Appeals For The Eighth Circuit

¢

BRIEF OPPOSING PETITION FOR CERTIORARI

,

vw

CHRISTOPHER R. HEDICAN (#19744)

BAIRD, HOLM, MCEACHEN, PEDERSEN,

HAMANN & STRASHEIM LLP

1500 Woodmen Tower

Omaha, NE 68102-2068

402-344-0500

Attorney for Respondent

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the Eighth Circuit Court of Appeals erred in

determining that Orr had never argued in the District

Court that he was substantially impaired in the major life

activity of eating, and therefore declining to consider the

argument on appeal.

2. Whether the Eighth Circuit Court of Appeals erred in

affirming the District Court in finding that Orr was not

substantially impaired in any major life activity as a

matter of law.

TABLE OF CONTENTS

Page

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C. Orr Closes the Pharmacy ............0ccccsccossssesse

D. Wal-Mart Terminates Orr’s Employment ......

E. Orr’s Alleged Disability Under The ADA.......

ARGUMENT AND AUTHORITY ........ 0. ee eee 11

I. THERE IS NO CONFLICT AMONG THE

CIRCUITS SUPPORTING CERTIORARI

BECAUSE THE EIGHTH CIRCUIT COURT

OF APPEALS, CONSISTENT WITH THE

OTHER CIRCUITS, SIMPLY REFUSED TO

CONSIDER AN ARGUMENT ON APPEAL

THAT ORR NEVER RAISED IN THE

EFEEFESRESR CAGLIEOE siccacscciimamnivmsntaaeniaia 11

II. ORR WAS NOT SUBSTANTIALLY IMPAIRED

IN ANY MAJOR LIFE ACTIVITY .................... 13

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ill

TABLE OF AUTHORITIES

Page

CASES

Amir v. St. Louis University, 184 F.3d 1017 (8th Cir.

gl lls adab ba scbeendayasataneschsiererisenvsurnonaee 13

Bragdon v. Abbott, 524 U.S. 624 (1998)... eeeeeeee 12

Dothard v. Rawlinson, 433 U.S. 321 (1977)..............cce cee 12

Heaser v. The Toro Company, 247 F.3d 826 (8th Cir.

Naat trckarsinidndkdpaendosnisénndenevinmasancdshassstscbbevnss 11

Lawson v. CSX Transportations, Inc., 245 F.3d 916

aia ssh ies aa sicrsennennénceeertevisuererenenss 12, 14

Shelton v. Conti Group Cos., 285 F.3d 640 (8th Cir.

AA La dt oh haath nblcaineeanisinnsabicckpondeniunnndeiavernweees 11

Simple v. Midwest Property Management LP, 209

I Ie CD cccussananconcnsspisnncsasvessbasseensonsesve 12

Snow v. Ridgeview Medical Center, 128 F.3d 1201

I acrehisnsukcinanvninsssrseescoveKRQBiesovkeosesecesansierieesne 11

Stephen C. Orr v. Wal-Mart Stores, inv., 297 F.3d

PR CUES BIE assesccvesensessesssecsenseses 1, 11, “4, 14, 15, 16

Stephen C. Orr v. Wal-Mart Stores, Inc., 7:99C. 020

hci in a cilcasicubensvans test nnvedivcadicehnicssuntsneevedens> 1

Sutton v. United Air Lines, Inc., 527 U.S. 471

SIAL TEMG Li hes on atbahasuucaoppediecaseedesuacenebsceeseodes 12, 14, 16

STATUTES

Ss UU PRR SUUED viccsnsssssscconscsenennsescsnesssssessresncnens 7

1

RESPONDENT WAL-MART STORES, INC.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

CITATIONS OF OPINIONS AND

ORDERS CITED BELOW

Stephen C. Orr v. Wal-Mart Stores, Inc., 7:99CV5020

(United States District Court for the District of Nebraska)

(Appendix A to Petition at 1a); Stephen C. Orr v. Wal-Mart

Stores, Inc., 297 F.3d 720, rehearing and rehearing en banc

denied (8th Cir. 2002) (Appendix B to Petition at 1b).

+

STATEMENT OF THE CASE

Petitioner Stephen C. Orr (“Orr”) misstates many of

the facts in his statement of the case and omits altogether

many of the undisputed facts upon which the Court of

Appeals and District Court based its decision.

The facts recited below were set forth to the District

Court as the statement of undisputed facts. References to

“JA” refer to the “Joint Appendix”. References to “SA” refer

to the “Supplemental Appendix”.

A. The New Chadron Wal-Mart Store.

Wal-Mart opened a new store and phari acy in

Chadron, Nebraska on January 26, 1998. At the time of

the opening, there were two other pharmacies in town

which had been there for many years and remained open

for business during the lunch hours. (JA 186: 55:25-56:20;

129 and 130). Nebraska Law requires the store to post the

hours of operation and post a notice that the pharmacist

is gone and no prescriptions may be filled, when the

2

pharmacist is not present. (JA 48:15-20). 172 NAC

128.003.04Al1c. (AD) Thus, the posted pharmacy hours at

Wal-Mart were 9-7 Monday through Friday and 9-6 on

Saturday; these posted hours did not state that the phar-

macy would be closed from 12:00-12:30 p.m. (JA 68:4-14).

The Chadron pharmacy was not busy, averaging approxi-

mately 30 scripts per day (JA 71:16-21; 131 J 6).

Nebraska Law requires that the pharmacy not dispense

any medication if a licensed pharmacist is not on duty and |

the pharmacy must close. 172 NAC 128.003.04Alc. (AD)' |

Further, Nebraska law permits technicians to work with a |

pharmacist but they must be under the “direct supervi-

sion” of a pharmacist “on duty” and may not be working in

the pharmacy if the pharmacist is not present. 172 NAC

128.002.46 & 002.47 (AD) The technician may do every-

thing that the pharmacist does, but he may not take

prescriptions over the phone, verify prescriptions or

counsel patients. (JA 120:2-12). In addition to these state

law requirements, Wal-Mart’s rules precluded anyone from

being present in the pharmacy when the pharmacist was

not there, and the pharmacist was required to lock and

secure the pharmacy. (JA 68:15-25; 183:1-184:1). The

pharmacy manager’s principal duty was to serve the

customers. (JA 57:13-58:2).

Since before 1995, Wal-Mart’s stated policy has been

that pharmacists in the single pharmacist store must staff

the pharmacy during all business hours and must take all

meal breaks and other breaks in the pharmacy. (JA 66:21- |

67:1;129, 130 & 144). Only pharmacists in one-pharmacist |

* AD refers to “addendum”.

a

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3

pharmacies may keep food and drink in the pharmacy. The

other staff may not. (JA 67:2-6). However, in 2000, prob-

lems in retention and recruitment compelled Wal-Mart to

permit pharmacists in one-pharmacist stores to close after

the lunch hour from 1:30 to 2:00 and at no other time (JA

134; 136 and 137).

B. Wal-Mart Hires Orr.

Orr interviewed with Pharmacy District Manager

Rick Coleman (“Coleman”), who was the former District

Manager over the Chadron, Nebraska pharmacy. (JA

51:14-22). Orr informed Coleman that he was diabetic and

needed to eat meals and snacks to control his diabetes. (JA

52:14-24). Contrary to Orr’s assertion, Orr did not inform

Coleman that he needed to regularly monitor his blood

sugar or inject himself with insulin to properly control his

diabetes. Rather, Orr merely disclosed his diabetic condi-

tion. (JA 52:14-24). Coleman did not react adversely to

Orr’s disclosure of his diabetes; Coleman told Orr he could

eat meals and snacks and made a job offer to him thereaf-

ter. (JA 54:25-55:9). Importantly, Coleman never told Orr

that he could have an uninterrupted lunch break; thus,

Orr’s representation notwithstanding, there was simply no

agreement between Wal-Mart and Orr to allow him

uninterrupted lunch breaks. (JA 120:2-12; 121:7-9; 122:3-

20).

Neither Coleman nor Orr’s subsequent supervisor,

John Foss (“Foss”), told Orr that he could close the phar-

macy to eat lunch (JA 120:2-12; 121:7-9; 122:3-20) and Orr

never received a document stating that he could close the

pharmacy. (JA 54:6-16). Orr never told Coleman that he

needed to close the pharmacy and eat lunch outside of the

4

pharmacy, but rather just assumed that he could. (JA

53:17-20; 103:12-17). Orr admits no one told him he could

not eat meal breaks in the pharmacy or take snack breaks.

(JA 54:17-24). Orr acknowledged that Foss never told Orr

that he could not have a lunch break or snack break at all.

(JA 74:5-8).

When Coleman hired him, Orr knew that he would be

the only pharmacist in the store. He also knew the hours

were 9-7 and indicated in his application that he could

work those hours. (JA 49:14-50:7; 139). Orr also signed a

matrix of essential job functions in which he stated that

“he had the ability to perform all of the functions high-

lighted above.” (JA 63:5-22; 154). Although asked, Orr did

not indicate on that form that he needed an accommoda-

tion to perform any of the functions. (JA 64:19-25).

C. Orr Closes the Pharmacy.

Foss first learned that Orr was closing the pharmacy

at noon for lunch sometime in mid-February 1998. Foss

told Orr that he could not do that under the Policy. (JA

73:2-10; 129 J 8). Orr did not say that he needed to close

the pharmacy to control his diabetes at that time. (JA 74:

5-8). As indicated below, contrary to Orr’s unsupported

assertion, there is absolutely no evidence that Foss told

Orr that he would have to stay in the pharmacy the entire

time he was working, overseeing the pharmacy techs, and

that Orr could only eat in between serving customers.

Orr continued to close the pharmacy in late February

1998 despite Foss’s discussion with him. After Foss

learned that Orr was closing the pharmacy, he gave Orr a

“performance coaching” known as a “decision making day.”

Foss issued the discipline because Orr was violating the

ee ee

5

Wal-Mart Lunch Policy by closing the pharmacy. (JA

75:19-76:1; 133, 7 8; 142 & 143) handwritten and type-

written copy of performance coaching). Orr’s contention

notwithstanding, his performance coaching was not

because he took a lunch break, but because he closed the

pharmacy to do so. Orr even admits that Foss gave him

the performance coaching because he closed the pharmacy

and not because he was diabetic. (JA 78:3-7). Further,

during the performance coaching, Orr never told Foss that

he had to have uninterrupted lunch breaks to control his

diabetes or mentioned his diabetes at all. (JA 78:20-25).

Orr acknowledged that- when he closed the Wal-Mart

pharmacy to take lunch outside of the pharmacy, he

violated Wal-Mart’s policy for one-pharmacist stores

concerning work hours. (JA 79:9-14). Orr also admits that

when he closed the pharmacy for lunch, no one could take

phone prescriptions or fill or dispense prescriptions. (JA

78:8-19).

Orr wrote a letter to Foss on March 12, 1998 com-

plaining about the write up, but did not allege that his

diabetes was out of control or impaired. (JA 93:5-94:9;

160). Thus, Orr’s statement that he “tried to comply with

[Wal-Mart’s] request but was unable to do so because of his

diabetes” is simply not supported in the record. (See

Plaintiff’s Petition for Writ of Certiorari, p. 3). Orr wrote a

subsequent letter complaining about the Lunch Policy. (JA

94:10-18; 161). At no time during his employment with

Wal-Mart did Orr submit medical records such as his blood

sugar tests or a note from his doctor to Foss or anyone else

indicating that he had to close the pharmacy to have an

uninterrupted lunch break. (JA 95:13-23; 100:2-15). Orr

has never been told by a doctor that there was a specific

. amount of time over which he should consume his meals

6

each day to maintain control of his diabetes. (JA 41:10-15).

Rather, Orr admits that he only should try to eat at the

same time each day to maintain control and he just felt

that he had a medical need to eat at noon each day. (JA

40:10-19; 41:16-23; 42:2-8). Thus, Orr’s assertion that “his

consultation with his doctor, his prior experience and

training have led to this regimen of control for his diabe-

tes” (see Plaintiff’s Petition for Writ of Certiorari, p. 4) has

no basis in the record. More importantly, Orr never testi-

fied nor offered evidence that he required a “nutritionally

complete meal” as he suggests in his Petition.

Foss responded by letter informing him that he could.

eat in the pharmacy and close the pharmacy to get food

and come back. Foss provided the names of persons Orr

could contact if he did not agree with the result. (JA 96:19-

97:7; 162). Orr understood this letter (JA 162) to indicate

that Foss thought Orr could adequately perform his job

and that his diabetes did not impair his performance. (JA

98:17-20; 99:8-12).

On May 7, 1998, Orr sent a letter to Foss telling him

that he was going to begin closing the pharmacy again at

noon for lunch. (JA 162; 100:18-25). When Orr sent the

letter, he knew he was informing his boss that he inten-

tionally would be violating the Lunch Policy, the decision

making day and Foss’s direction. (JA 101:1-102:7). He also

knew that the customers would not get any service when

he closed the pharmacy. (JA 101:8-13).

Orr contends that the only effective accommodation at

Wal-Mart would have been for him to close the pharmacy

at noon each day to take an uninterrupted lunch break.

(JA 92:1-7;108:3-109:21; 91:25-92:7). He proposed no other

accommodation to anyone at Wal-Mart. (JA 91:10-24; JA 4,

q 14). .

D. Wal-Mart Terminates Orr’s Employment.

Orr continued to close the pharmacy again until he

was terminated on May 12, 1998 for “failing to perform job

duties” by closing the pharmacy and violating the decision

making day. (JA 141; 141 Ex. 10, 130, J 13; 104:22-25; 4,

q12). Orr admits that “he has no evidence that Foss

terminated him for any reason other than his violation of

the policy and violation of his decision making day.” (JA

117:7-11). Orr cannot identify any pharmacist at Wal-Mart

that willfully violated the lunch policy and closed the

pharmacy and violated a decision making day who was not

terminated. (JA 113:5-10). Similarly, Orr is unaware of any

pharmacist in a single pharmacist store that was not

required to eat in the pharmacy. (JA 112:7-19).

Orr subsequently filed a charge of disability discrimi-

nation which was rejected by the NEOC and dismissed

pursuant to Neb. Rev. Stat. § 48-1119(4). (JA 165). Orr

filed suit on October 19, 1999. (JA 1). The District Court

granted summary judgment to Wal-Mart, determining

that Orr did not qualify as an individual with a disability.

within the meaning of the ADA. The Court found it unnec-

essary to reach the other arguments of Wal-Mart. (JA 127).

E. Orr’s Alleged Disability Under The ADA.

Orr contends that his diabetes is a physical condition

that substantially impairs the major life activity of work-

ing in his position without an uninterrupted lunch break.

(JA 4, { 10). During the time he worked at Wal-Mart, Orr

8

claims that the only major life activity that his diabetes

impaired was his ability to work at Wal-Mart when he had ’

to eat in the pharmacy and allegedly experienced low |

blood sugar as a result. (JA 118:23-119:12).

However, Orr has never filed for disability benefits or

social security benefits, nor has Orr’s doctor ever placed

him on a work restriction because of his diabetes. (JA

27:22-28:3; 44:22-24). Orr has never missed work because

of high blood sugar. (JA 32:11-13). Orr has never missed

work because of low blood sugar that did not result in |

unconsciousness. (JA 34:16-19). Orr has never lost con-

sciousness from a hypoglycemic episode while working. (JA

30:4-9).

Orr claims that he had low blood sugar when he

worked at Wal-Mart because he could not close the phar-

macy, but the only days he can identify on which this

occurred are the days contained in his diary, Exhibit 24.

(JA 127:8-24; 115:7-14). Generally, when Orr has low blood

sugar, it does not prevent him from physically doing

anything he wants to do at work or otherwise. It may

simply slow or impede his performance but he is able to

get done what he wants to get done physically if he has

enough time. (JA 33:12-24). Orr claimed it only impaired

his ability to fill prescriptions. (JA 115:2-6). When Orr

experienced low blood sugar at Wal-Mart, he corrected it

by eating something. (JA 80:15-85:24). Orr’s body responds

fairly rapidly to the food or snacks and it stabilizes his low

blood sugar noticeably within 3-5 minutes. (JA 38:24-

39:23). Importantly, there never was a time when Orr

worked at Wal-Mart where he was not able to eat lunch at |

all or was unable to correct the low blood sugar. (JA 88:12-

18; 157-159). Orr admits that no one told him that he

could not direct his subordinates to answer the phone and

altace

9

wait on customers while he ate, and if he had done so he

should have been able to control his blood sugar. (JA

228:depo. p. 221:13-22; JA 227:depo. p. 219:10; 220-24).

Orr never called a doctor any of the times he had low blood

sugar at Wal-Mart, since he was always able to correct it.

(JA 86:21-87:3). Orr never visited or contacted his doctor

while he worked at Wal-Mart to help him control his blood

sugar. (JA 88:19-89:16).

Orr never missed work at Wal-Mart because of his

diabetes, and never was unable to drive to or from Wal-

Mart because of it. (JA 43:6-14). He is unaware that he

ever committed an error because of his diabetes or that

anyone has complained that he made an error at work. (JA

34:8-15; 45:19-22). Orr was able to complete his shift at

Wal-Mart each time he had low blood sugar and perform

the functions of his pharmacy position although it might

have taken longer when it was low. (JA 85:4-9).

Orr conceded that he had the ability to perform all of

the physical requirements set forth in Exhibit 23 (JA 154)

before and while he worked at Wal-Mart. (JA 64:19-25).

Orr has never applied for nor sought a job that he was not

able to perform because of his diabetes. (JA 114:6-9).

Likewise, there was no job he claims he was unable to

retain because of diabetes, except for Wal-Mart. (JA

114:24-115:6). Indeed, Orr has been employed as a phar-

macist continuously since he became diabetic and was so

employed following his termination at Wal-Mart. (JA

116:8-18; 167-168; 110:15-111:24).

Orr used a glucometer while employed at Wal-Mart to

measure the amount of glucose in his blood, but there is no

evidence in the record that he ever had to administer

10

insulin while at Wal-Mart. Thus Orr’s statement indicat-

ing otherwise is misleading, at best. Further, to clarify

Orr’s statement that “Shortly after being employed by

Wal-Mart, Mr. Orr began using an insulin pump which is

attached to his body 24 hours a day to maintain a normal

insulin regimen” (Plaintiff’s Petition for Writ of Certiorari,

p. 4), Orr did not use an insulin pump at all during his

employment with Wal-Mart, but rather only after he was

terminated (JA 189: depo. p. 67:19-68:12).

Finally, Orr contends that “Some of the ways that Mr.

Orr’s diabetes impacted his life, in addition to monitoring

his blood level and injecting himself with insulin and

eating regularly scheduled nutritionally complete meals,

are deteriorating vision, slurred speech, frequent urina-

tion, lack of concentration, lack of physical strength, lack

of coordination, troubles walking, and the loss of con-

scieceness [sic].” (Plaintiff’s Petition for Writ of Certiorari,

pp. 4-5). However, Orr concedes that when he has prob-

lems with coordination, it simply may slow his typing but

does not prevent him from doing so. (JA 194:depo. p. 85:22-

86:5). When Orr’s vision is impaired, he has to concentrate

more to read, but it does not prevent him from reading.

(JA 194:depo. p. 86:6-13). When Orr’s speech is slurred, he

is still able to communicate. (JA 194:depo. p. 86:19; 87:4).

¢

11

ARGUMENT AND AUTHORITY

I. THERE IS NO CONFLICT AMONG THE CIR-

CUITS SUPPORTING CERTIORARI BECAUSE

THE EIGHTH CIRCUIT COURT OF APPEALS,

CONSISTENT WITH THE OTHER CIRCUITS,

SIMPLY REFUSED TO CONSIDER AN ARGU-

MENT ON APPEAL THAT ORR NEVER

RAISED IN THE DISTRICT COURT.

The cornerstone of Orr’s request for Certiorari is that

the Eighth Circuit erred in refusing to decide whether he

presented a fact issue that he was substantially impaired

in the major life activity of eating. But the court of appeals

never reached the merits of that argument. Rather, it

declined to address the assertion on the long-standing

principal that the Court of Appeals “will not address an

argument raised for the first time on appeal.” Orr, 297

F.3d 725 citing Shelton v. Conti Group Cos., 285 F.3d 640,

643 (8th Cir. 2002).’

Contrary to Orr’s assertion, the Court of Appeal’s

opinion does not conflict with any other circuit as it is a

uniform rule among the circuit courts that they will not

address arguments not raised in the lower court. For

example, the Seventh Circuit Court of Appeals has held

that a plaintiff cannot raise new major life activities on

* The Eighth Circuit Court of Appeals has regularly applied this

doctrine in ADA cases. E.g., Snow v. Ridgeview Medical Center, 128

F.3d 120, 1206 n. 2 (8th Cir. 1997) (Court refused to permit appellant to

argue for the first time on appeal of a summary judgment order that

she was perceived as disabled or had a record of a disability when she

only argued her actual disability to the district court); Heaser v. The

Toro Company, 247 F.3d 826, 832 (8th Cir. 2001) (Court will not

consider “interactive process” argument not raised in district court).

12

appeal that were not identified in opposing summary

judgment in the District Court, Simple v. Midwest Prop-

erty Management LP, 209 F.3d 678, 684 (7th Cir. 2000).

Moreover, the Eighth Circuit’s decision is fully consistent

with Supreme Court precedent. Indeed, this Court refused

to consider other major life activities that a physical

condition might affect that were not asserted by the

plaintiff in the district court, on appeal or in the Rule

14(1)(a) statement of issue. Bragdon v. Abbott, 524 US.

624, 638 (1998); see also Dothard v. Rawlinson, 433 U.S.

321, 323 n. 1 (1977) (“Not having been raised in the

District Court, that issue is not before us.”).

Because the Court of Appeals never reached the

merits of his eating disability argument, there could be no

conflict with Lawson v. CSX Transportations, Inc., 245

F.3d 916 (7th Cir. 2001) as Orr contends.’ (Orr Petition at

* The Majority Panel further held that even if it were to consider

Orr’s argument that he was substantially impaired in eating, it did not

create a material issue of fact.

Even if the limitations on Orr’s ability to eat can be tied

to his ability to work, they cannot salvage his claim under

the ADA. “When the major life activity under consideration

is that of working, the statutory phrase ‘substantially limits’

requires, at a minimum, that plaintiffs allege they are un-

able to work in a broad range of jobs.” Sutton v. United Air

Lines, Inc., 527 U.S. £71, 491 (1999). See also 29 C.F.R pt.

1630.2(j)(3)i), App. § 1630.2(j) (2000). The record reveals

only that Orr’s diabetic condition occasionally produced

symptoms which moderately impaired his performance as |

a pharmacist in a single-pharmacist-on-duty retail store.

In contrast to the diabetic plaintiff in Lawson, Orr consis-

tently performed the essential functions of a pharmacist

before, during, and after his employment with Wal-Mart.

Because Orr’s diabetes, as portrayed by the record in this

case, at most, only moderately limits his ability to perform

(Continued on following page)

ereeenieeneniieaaneeiaiiiiniaaiaiiiiiiniuaiael

13

8) In any event, the Eighth Circuit does not dispute that

eating is a major life activity. Amir v. St. Louis University,

184 F.3d 1017, 1027 (8th Cir. 1999) (eating was substan-

tially impaired where plaintiff could not eat without

vomiting). Accordingly, Orr’s Petition does not offer the

“compelling reasons” for the Supreme Court to review the

decision as there not only is no conflict in the decision with

any of the circuits but it is fully consistent with the prece-

dent of the other circuits and the Supreme Court. Rule

10(a) & (c). In the end, Orr simply seeks to quarrel with

the Majority Panel and other justices of the entire Eighth

Circuit Court of Appeals who refused to hear en banc an

argument he never raised in his complaint, deposition

testimony or the district court.‘ Orr, 297 F.3d at 725.

II. ORR WAS NOT SUBSTANTIALLY IMPAIRED

IN ANY MAJOR LIFE ACTIVITY.

Similarly, Orr’s second issue does not compel review

by the Supreme Court as he again misstates the facts and

the issue. As the majority panel noted, the “[Supreme]

Court concluded that a diabetic is not per se disabled but

must demonstrate his condition substantially limits one or

a particular specialized job or a narrow range of retail

pharmacist jobs, his diabetic condition does not place sub-

stantial limitations on his ability to work.

Orr, 297 F.3d at 725 n. 6.

* Indeed, Orr’s Brief Opposing Summary Judgment in the District

Court never suggested that he was substantially impaired in eating.

(SA9 & 10).

14

more major life activities.” (Orr, 297 F.2d at 724, citing

Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999)).

Further, if medication and other measures eliminate the

limitations, there is no present substantial impairment.

Id.

Following Sutton, the majority panel held that Orr did

not have a substantial impairment of a major life activity

because he simply identified substantially limiting im-

pairments that “might, could, or would” exist if he failed to

control his diabetes through insulin and diet. Orr, 297 F.3d

at 724 citing Sutton, 527 U.S. at 482. Indeed, citing sev-

eral opinions from the Eighth Circuit, the majority panel

held that “Orr failed to present evidence explaining either

how diabetes substantially affects his major life activities

or the duration and frequency of any limitations.” Orr, 297

F.3d at 724-25 (citations omitted).’

Orr, however, admitted that he had never received

disability benefits, had never been unable to work as a

pharmacist because of his diabetes, could stabilize his

blood sugar with food in three to five minutes and even

with low blood sugar could physically do what he wanted

to do, it just took more time. Moreover, Orr never missed

work at Wal-Mart because of his diabetes, and never was

* The majority panel also observed that Orr’s condition is simply

not comparable to the diabetic in Lawson. “In contrast to the diabetic

plaintiff in Lawson, Orr consistently performed the essential functions

of a pharmacist before, during, and after his employment with Wal-

Mart.” Orr, 297 F.3d at 725 n. 6. Specifically, the record in Lawson

demonstrated that he experienced “severe” difficulty in controlling his

diabetes with either insulin or diet resulting in his inability to work for

over 14 years and his receipt of social security disability benefits.

Lawson, 245 F.3d at 919-20.

15

unable to drive to or from Wal-Mart because of it. Orr

admitted he did not commit an error at Wal-Mart because

of his diabetes, or that anyone complained that he did so.

He was able to complete his shift at Wal-Mart each time

he had low blood sugar and perform the functions of his

pharmacy position, although it might have taken longer

when it was low. Orr conceded that he had the ability to

perform all of the physical and mental requirements set

forth in his job description before and while he worked at

Wal-Mart.

Contrary to Orr and the dissent’s assertion, Orr’s

deposition testimony and alleged medical record do not

support present limitations. Orr has not experienced

meaningful impairments from his diabetes since the

eighties, and there were no medical reports in the record

at all as contended by the dissent. Orr, 297 F.3d at 726-27.

Although Orr dramatically declares in his Petition for

Certiorari that Wal-Mart refused to allow him to mitigate

his diabetes, this simply is not what the record showed

and is, at best, a disingenuous statement of the facts. Orr

cannot accuse Wal-Mart of refusing to permit him to

mitigate his diabetes when he could not meet his obliga-

tion to present any evidence that he actually experienced

any substantial limitation from his diabetes while em-

ployed with Wal-Mart.

16

CONCLUSION

In the end, Orr is an unremarkable case in which the

Eighth Circuit Court of Appeals, properly applied the

precedent of the Supreme Court in Sutton and concluded

that Orr was not substantially impaired in any major life

activity on the record before the Court. Wal-Mart Stores,

Inc. respectfully requests that the Supreme Court deny

Orr’s Petition for Writ of Certiorari.

Respectfully submitted,

Wal-Mart Stores, Inc.,

Respondent

CHRISTOPHER R. HEDICAN (#19744)

BAIRD, HOLM, MCEACHEN, PEDERSEN,

HAMANN & STRASHEIM LLP

1500 Woodmen Tower

Omaha, NE 68102-2068

(402) 344-0500