583 F.Supp. 66 (1983)
Gwyneth Y. HUGHES, Plaintiff,
v.
The CHESAPEAKE AND POTOMAC TELEPHONE COMPANY, Defendant.
Civ. A. No. 83-961.
United States District Court, District of Columbia.
December 21, 1983.
*67 Robert L. Bell, Washington, D.C., for plaintiff.
Douglas J. McCollum, R. Michael Smith, Washington, D.C., for defendant.

MEMORANDUM OPINION
JUNE L. GREEN, District Judge.
Plaintiff Gwyneth Y. Hughes, a black female, brought this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., and 42 U.S.C. § 1981,[1] alleging that her employer, Chesapeake and Potomac Telephone Company ("C & P") discriminated against her on the basis of her race by denying her an opportunity to take part in C & P's Mobility Application Plan, by denying her an opportunity to be transferred or reassigned to a position where she could do a combination of sitting, standing, and walking as recommended by C & P's Medical Department on September 2, 1981, and by forcing her to resign on October 19, 1981.
A trial was held in this matter on December 9, 12, and 13, 1983. The Court heard testimony from the following witnesses: Gwyneth Y. Hughes; Ruth Caul, Group Manager, Operator Services at C & P; Shirley Montes deOca, Assistant Staff Manager at C & P; Linda Spencer, Manager, Operator Services at C & P, and Richard H. Shelley, District Staff Manager in charge of the Universal Directory Assistance Office at C & P. The Court submitted the section 1981 claim to the jury which found in favor of plaintiff and awarded her $7,000 in damages.
After the jury was excused, defendant made a motion for judgment notwithstanding the verdict, pursuant to Rule 50 of the Federal Rules of Civil Procedure. The Court granted defendant's motion for judgment notwithstanding the verdict on plaintiff's section 1981 claim. Viewing the evidence in the light most favorable to plaintiff and giving her the advantage of every fair and reasonable inference justified by the evidence, see, e.g., Metrocare v. Washington Metropolitan Area Transit Authority, 679 F.2d 922, 924-25 (D.C.Cir. 1982), the Court found that only one reasonable conclusion could be drawn from the evidence, i.e., that plaintiff was asked to resign or be terminated on October 19, 1981, not because of any racial animus on the part of C & P, but because of her unsatisfactory attendance record. The evidence does not show that C & P's actions with regard to plaintiff were motivated by purposeful race discrimination. General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 390-91, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982). Because the evidence does not establish a claim under section 1981, the Court granted defendant's motion for judgment notwithstanding the verdict. The Court also ruled that plaintiff had failed to carry her burden of proof under Title VII.

FINDINGS OF FACT
In September 1980, Ms. Hughes began working at C & P of Maryland as a Directory Assistance Operator on a computerized switchboard system. In November 1980, plaintiff transferred to C & P in Washington, D.C., and was employed as a Directory Assistance Operator in the Universal Directory Assistance Office until October 19, 1981. C & P is a New York corporation doing business in the District of Columbia as a public utility providing telecommunication services.
Plaintiff's supervisor during her tenure with C & P was Ms. Shirley Montes deOca, a white female. Ms. Linda Spencer, a white female, was plaintiff's second level *68 supervisor and Mr. Richard H. Shelley, a white male, was her third level supervisor.
C & P has an attendance policy that applies to all of its employees. Under this policy, an employee absent from work for more than twelve days during a twelve-month period is rated "unsatisfactory" in attendance. Absences caused by illness are counted against an employee's attendance record even if the employee obtains a doctor's letter.
Between November 3, 1980, and October 19, 1981, plaintiff was absent from work a total of seventy and one-half days. Plaintiff was absent from February 2, 1981, to March 23, 1981, due to a flare-up of her back trouble. Plaintiff sustained a chronic back injury in an automobile accident in 1976. From March 23, 1981, to April 24, 1981, plaintiff worked part-time. She was charged with absences for the portions of the days she did not work full time or seven and one-half hours. Plaintiff also was absent from May 23, 1981, to June 29, 1981, due to an ectopic pregnancy, which required surgery. Finally, plaintiff was absent for two and one-half days in September 1981, and two days in October 1981.
C & P attempted to accommodate plaintiff's chronic back problems. When plaintiff returned to work part-time in March and April 1981, she was allowed to leave her operator's station and stretch for five minutes every hour. In May 1981, plaintiff was given a temporary position in Mr. Shelley's office where she performed clerical duties while his secretary was on vacation. Although this position enabled plaintiff to get up and move around more freely than did the operator's position, Mr. Shelley indicated that her performance was "mediocre." In late May, plaintiff began a second extended period of absence and did not return to work until late June 1981.
On July 7, 1981, Ms. Montes deOca put plaintiff on final warning because she had been absent from work for sixty-six days since November 1980. Plaintiff was advised that her attendance record was unsatisfactory and that she had to "improve or be suspended and or dismissed." Defendant's Exhibit 11. During this meeting, plaintiff indicated that she understood she was on final warning.
In July 1981, C & P also compiled its "High Absence List." This list is compiled twice annually and indicates those employees that have unsatisfactory absence records. Plaintiff had the worst attendance record of any employee in Mr. Shelley's district. At that time, Mr. Shelley had supervisory authority over approximately 325 employees.
C & P's Medical Department conducted physical examinations of plaintiff on July 30, 1981, and September 1, 1981. Plaintiff's back problem was determined to be aggravated by the postural requirements of her job as an operator. On September 2, 1981, C & P's Medical Director, Dr. Siza I. Mekky, issued a report, indicating in pertinent part:
It is the opinion of the Medical Dept. that Ms. Hughes be assigned a different job where she can do a combination of sitting, standing, and walking and be able to change positions as tolerated by her chronic ailment.
The prognosis for the future absenteeism if she remains as an operator is uncertain. Physically she should not do prolong [sic] sitting.
Plaintiff's Exhibit 3.
After Mr. Shelley received this report, he notified the Reasonable Accommodations Committee, to see if they could find another position for plaintiff. This Committee is a branch of Personnel which attempts to find new positions for employees with poor records. In late September, Mr. Shelley was informed that the Committee could not arrange a transfer for plaintiff.
C & P also administers a program called the Mobility Application Plan ("M.A.P."). Under the M.A.P., employees are informed about career opportunities in the company and the necessary qualifications for specific positions. Any employee who wishes to learn about other jobs in the company may request such information from his or her immediate supervisor. Supervisors are required *69 to furnish this information promptly. Plaintiff's Exhibit 20, Mobility Application Plan at ¶ 3.11. To be eligible for the M.A.P. program, an employee must be "performing in an entirely satisfactory manner in their present jobs." Id. at ¶ 2.0.
Between July 7, 1981, and October 19, 1981, Ms. Hughes was absent an additional four and one-half days. As a result, Mr. Shelley decided that Ms. Hughes should be offered the opportunity to resign or be terminated for unsatisfactory attendance. On October 19, 1981, Ms. Montes deOca, acting pursuant to Mr. Shelley's instructions, communicated that option to Ms. Hughes who decided to resign.
In 1980 and 1981, approximately sixteen out of the eighteen employees under Ms. Montes deOca's supervision were Black. During the same period, Ms. Spencer and Mr. Shelley had a similar percentage of Blacks in the employee complement that they supervised. Those percentages have remained substantially the same to date.
Plaintiff filed the instant action on April 1, 1983, alleging that C & P discriminated against her on the basis of her race.

CONCLUSIONS OF LAW
The Court has jurisdiction of this matter pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., and 42 U.S.C. § 1981.
In a Title VII case, the plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of racial discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).[2]
If plaintiff makes a prima facie case, the burden shifts to defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). "[S]hould the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Texas Department of Community Affairs v. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. See also United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 1483, 75 L.Ed.2d 403 (1983). (Blackmun, J., joined by Brennan, J., concurring).
In the instant case, plaintiff alleges that she was discriminated against based on her race because she was qualified not only for continued employment with C & P but also for C & P's M.A.P. program. Despite these qualifications, she was terminated. To establish a prima facie case of racial discrimination, plaintiff must show that: (1) she belongs to a racial minority; (2) she was qualified for continued employment; (3) she was satisfying the normal requirements of her job; (4) she was terminated; and (5) other employees with comparable qualifications and work records who were not members of a racial minority were not terminated. See McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 802 n. 13, 93 S.Ct. at 1824 n. 13; Metrocare v. Washington Metropolitan Area Transit Authority, 679 F.2d 922; Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1282 (7th Cir.1977); cf. Valentino v. United States Postal Service, 674 F.2d 56, 63 (D.C.Cir.1982) (discriminatory refusal to promote). Because no one replaced plaintiff when she was terminated, to make a prima facie case, plaintiff must show that non-minority employees with comparable records were not terminated. Compare Powell v. Syracuse University, 580 F.2d *70 1150, 1156 (2d Cir.), cert. denied, 439 U.S. 984, 99 S.Ct. 576, 58 L.Ed.2d 656 (1978) with Bailey v. MCI Telecommunications Corp., 29 FEP Cases 1457, 1458 (D.D.C. 1982).
It is clear that plaintiff meets three of the elements necessary to make a prima facie case. She is a member of a racial minority, she was qualified for continued employment, at least as an operator, and she was terminated. Plaintiff, however, has not met the other two elements.
Plaintiff has not shown that she was satisfying the normal requirements of her job. "Some showing of satisfactory performance is necessary to raise an inference of discrimination in discharge of a racial minority member. ... Satisfactory performance is an ordinary prerequisite of continued employment ...." Flowers v. Crouch-Walker Corp., 552 F.2d at 1282-83 (case citations omitted). The record indicates that plaintiff's attendance was "unsatisfactory." To be rated unsatisfactory, a C & P employee must be absent for twelve or more days during one year. When plaintiff was asked to resign or be terminated in October 1981, she had accumulated seventy and one-half absences.
Plaintiff argues that because she was absent on two separate occasions for extended periods of time, she should only be charged for "two incidents." This interpretation, however, does not comport with C & P's actual attendance policy under which employees are charged according to the number of days they are absent. It makes no difference that an employee may be absent for the same reason a consecutive number of days. The Court also notes that the record indicates that plaintiff was given a final warning in July 1981, at which time she had been absent sixty-six days. Ms. Montes deOca told plaintiff that she must improve her attendance or face suspension or dismissal. Defendant's Exhibit 11. Because satisfactory attendance is one of the normal requirements of plaintiff's job, and she missed over seventy days of work in less than a year, plaintiff has not shown that she was satisfying all of the normal requirements of her job.
Plaintiff also has not met the final requirement necessary to make a prima facie case. Plaintiff has not shown that other employees with similar work and attendance records, who were not members of a racial minority, were not terminated. Plaintiff was unable to identify any employee, regardless of race, who was similarly situated, i.e., a short-term employee who had accumulated a substantial number of absences in one year, who had not been terminated.
Accordingly, the Court finds that plaintiff has not met its burden of establishing a prima facie case of racial discrimination by C & P.
Even assuming arguendo that plaintiff has made out a prima facie case, the Court finds that C & P has articulated a legitimate nondiscriminatory reason for its decision to give plaintiff the option of either resigning or being terminated on October 19, 1981.
Mr. Shelley testified that plaintiff had the worst attendance record in his division and was ranked first on the "High Absence List." Moreover, plaintiff was put on notice that her attendance was unsatisfactory on July 7, 1981. All of the C & P witnesses, Ruth Caul, Shirley Montes deOca, Linda Spencer, and Richard Shelley, indicated the importance of attendance for C & P employees and that an employee's performance evaluation is based partially on attendance.
Ms. Caul testified that in November 1980, when plaintiff began working at C & P in Washington, D.C., she was the Staff Assistant for the Centralized Training Center. In that capacity, she conducted an orientation program for all new employees. As part of the orientation program, she explained C & P's attendance policy, i.e., that every employee is expected to work when they are on the schedule and that any absence is recorded, regardless of the reason.
*71 Ms. Montes deOca testified that on November 13, 1980, plaintiff's first day at C & P in Washington, D.C., she discussed the attendance policy with plaintiff. Ms. Montes deOca testified that it was an office practice to discuss this policy with new employees because it is strict and C & P expects employees to be at work. She indicated that C & P rates employees on attendance according to the following scale: if an employee is not absent during a twelve-month period, he or she is rated "outstanding;" if an employee is absent one to six days, he or she is rated "satisfactory;" if an employee is absent seven to eleven days, he or she is rated "less than satisfactory;" and if an employee is absent twelve or more days, he or she is rated "unsatisfactory."
Ms. Montes deOca stated that evaluations of employees are based on three factors: quality of their work; quantity of the work they produce; and dependability, which includes their presence on the job. Employees are given formal evaluations or appraisals every six months based on their ratings over the preceding six months. Plaintiff was never given a formal evaluation because her absences precluded her supervisors from compiling enough information on her work. Ms. Spencer also indicated that no employees were given evaluations in January, February, and March 1981 because the Universal Directory Assistance Office in Washington, D.C. switched to a computerized system and the operators were being trained on the new system during this period.
Ms. Montes deOca did testify, however, that she filled out three "Operator Development Summaries" pertaining to plaintiff: on July 7, 1981; August 10, 1981; and September 17, 1981. Plaintiff's Exhibits 22, 23, 24. In all three summaries, plaintiff's courtesy and accuracy evaluations were excellent. Plaintiff's productivity evaluation, however, was unsatisfactory. Ms. Montes deOca testified that a productivity evaluation of ninety percent or less was unsatisfactory. Plaintiff was evaluated at eighty-seven percent productivity on July 7, 1981, seventy-five percent on August 10, 1981, and seventy-three percent on September 17, 1981.
Ms. Montes deOca also indicated that plaintiff never made a request or filed an application for a M.A.P. transfer and, in any event, plaintiff was not eligible for the program because she was unsatisfactory in dependability.
Ms. Spencer, Ms. Montes deOca's supervisor, testified as to the requirements for the M.A.P. program. She indicated that to be eligible for the M.A.P. program, an employee must be entirely satisfactory in quality, quantity, and dependability and must have held his or her present job for twelve months. Plaintiff contended that she was eligible for the program because even if she did not have twelve months of net credited service in her present assignment, an unusual condition existed, i.e., her medical condition, which should waive this requirement. Paragraph 3.21 of the M.A.P. states in pertinent part:
An employee will be expected to have completed twelve months of net credited service in his present assignment before submitting a Mobility Application to be considered for another job. When an unusual condition exists, this requirement may be waived in individual cases with District Manager approval.
The Court, however, must give weight to paragraph 2.0 of the M.A.P. which states in pertinent part: "the Company will give consideration to applications for job mobility, as outlined below, from employees who are performing in an entirely satisfactory manner in their present jobs." (Emphasis added.) It is evident from plaintiff's attendance records alone that she was not performing in an entirely satisfactory manner. Moreover, plaintiff's productivity ratings were consistently unsatisfactory. The Court also notes that the requirement in paragraph 2.0 of the M.A.P. that an employee be performing in an entirely satisfactory manner does not contain a waiver provision, unlike the twelve-month time-on-job requirement. Therefore, the Court finds that, even if the time-on-job requirement *72 were waived, plaintiff was not eligible for the M.A.P. program because she was not performing in an entirely satisfactory manner.
Ms. Spencer also reiterated that pursuant to the C & P attendance policy, absences based on illness are chargeable against the employee, depending on the number of days the employee is absent. She testified that she did not know of any employees who had been absent for seventy days in twelve months who were not asked to resign. She did testify, however, that she was aware of employees with many years of service who had a large number of absences in a twelve-month period who were not asked to resign. She indicated that C & P takes the employee's past record into account when an employee incurs a large number of absences in a twelve-month period. If an employee's attendance has been satisfactory for a number of years, this is taken into account. Plaintiff, however, was a short-term employee who had never had a satisfactory attendance record.
Finally, Mr. Shelley was called as a witness and testified that he became aware of plaintiff in early 1981 because she was a short-term employee with a high number of absences. He discussed her situation with Dr. Siza I. Mekky, the Director of C & P's Medical Department. Although Mr. Shelley emphasized that the Medical Department could not order management to take its advice, it could recommend courses of action. In this instance, Dr. Mekky indicated that it would be helpful to plaintiff if she were able to stretch her back four to five minutes every hour. Mr. Shelley passed this advice on to Ms. Spencer. Plaintiff testified that after she returned to work in March 1981, she was allowed to get up and walk around every hour. The Court also notes that operators could stand, rather than sit, at their positions.
In a further attempt to accommodate plaintiff's back problems by allowing her more freedom of movement, Mr. Shelley arranged for plaintiff to take over some of his secretary's duties when she went on vacation in May 1981. He indicated, however, that her performance during this period was "mediocre" and that she had a tendency to disappear during working hours.
In late summer 1981, Mr. Shelley referred plaintiff to the Medical Department for an evaluation. On September 2, 1981, the Medical Department issued a report in which it recommended that plaintiff be assigned a different job so that she could avoid prolonged sitting. See Findings of Fact, supra. The Reasonable Accommodations Committee, however, was unable to find another position for plaintiff. Id.
Mr. Shelley testified that he decided to give plaintiff the option of resigning or of being terminated after he found out the Reasonable Accommodations Committee could not find another position for her and because she had accumulated additional absences after she was given a final warning in July 1981. Mr. Shelley decided on this course of action rather than merely suspending plaintiff because her attendance problems were based on a chronic back problem. He testified that suspension is used by C & P as a means of motivating employees. In this instance, however, suspension would not serve to motivate plaintiff because it would not alleviate her underlying back problem.
Based on the testimony of the witnesses for C & P and the evidence it submitted, the Court finds that defendant has established that it had a legitimate nondiscriminatory reason for its decision, i.e., plaintiff was asked to resign or be terminated because her attendance was unsatisfactory under C & P's attendance policy.
Because defendant has articulated a valid reason for plaintiff's termination, plaintiff "must show that the reason so articulated or stated is a mere pretext of `coverup' for what was in truth a discriminatory purpose." Loeb v. Textron, Inc., 600 F.2d 1003, 1012 (1st Cir.1979). Pretext may be shown by evidence that white employees with similar work and attendance records were not terminated or by C & P's "general policy and practice with respect to minority employment." McDonnell Douglas *73 Corp. v. Green, 411 U.S. at 804-05, 93 S.Ct. at 1825. Statistics as to C & P's employment practices may be helpful in determining whether a general pattern of discrimination existed against blacks. Id. at 805, 93 S.Ct. at 1825. Plaintiff "must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision." Id. at 805, 93 S.Ct. at 1825.
In the instant case, plaintiff did not submit evidence that white employees with similar employment and attendance records were not terminated nor was she able to provide any evidence of racial animus towards her by C & P. See Bailey v. MCI Telecommunications Corp., 29 FEP at 1459-60. Plaintiff was unable to point to any comments or specific actions by C & P management connoting racial bias.
Although plaintiff testified that she did not feel that her attendance was the reason she was asked to resign, the only "support" she was able to provide for her feelings was that the white employees talked and joked with the white supervisors; the white supervisors listened to suggestions of the white employees, but ignored plaintiff's suggestion regarding the positioning of the switchboard; plaintiff was made to feel inferior through non-verbal acts of the white supervisors; and plaintiff observed a white operator get up from her position and proceed to file and do office work. Plaintiff also indicated, however, that she did not know if the white operator she observed filing and doing office work was acting under management's instruction. In any event, the Court notes that this does not show pretext. A different situation might exist if plaintiff testified that white operators were allowed to leave their positions and do something that was not related to work or if white operators were given longer breaks or other preferential treatment. In this case, however, the white operator was observed filing and doing office work, clearly, business-related activities.
Plaintiff has not provided any tangible evidence of racial bias against her by anyone at C & P or that racial slurs were directed at her. See Harris v. Group Health Association, 662 F.2d 869, 872 (D.C.Cir.1981). The Court also notes that while plaintiff accuses Ms. Montes deOca of racial discrimination, Ms. Montes deOca consistently gave plaintiff high ratings on her courtesy and accuracy evaluations.
Finally, plaintiff has not provided the Court with statistical evidence that a general pattern of discrimination against blacks existed at C & P. Of the sixty to seventy operators under Ms. Spencer's indirect supervision, only six were white, the others were black. Of the four Group Managers that supervised at the time plaintiff was employed at C & P, two were black. These percentages have not changed significantly since that time. The statistics simply do not show a pattern of discrimination against blacks by C & P.
Therefore, the Court finds that plaintiff has not introduced any evidence that C & P's reason for asking plaintiff to resign, i.e., her unsatisfactory attendance record, was a pretext for discrimination.
In accordance with the above, the Court finds that plaintiff has failed to establish a prima facie case of racial discrimination against C & P. Moreover, even if a prima facie case were established, plaintiff has failed to produce evidence showing that C & P's stated reason for seeking plaintiff's resignation or termination, i.e., poor attendance, was a pretext for a racially motivated discharge. Therefore, the Court must enter judgment notwithstanding the verdict for defendant on the section 1981 claim and judgment for defendant on the Title VII claim.
NOTES
[1]  Plaintiff also asserted a claim under the D.C. Human Rights Act ("Act"), D.C.Code §§ 1-2544 and 2556 (1981 ed.). The Court dismissed plaintiff's claims under the Act because plaintiff did not commence this action within one year of the occurrence of the alleged unlawful discriminatory practice. See Memorandum Opinion at 2-3 (filed December 7, 1983).
[2]  The elements of a substantive claim of racial discrimination in employment brought under section 1981 parallel those claims brought under Title VII. Rivera v. City of Wichita Falls, 665 F.2d 531, 534 n. 4 (5th Cir.1982); see also Metrocare v. Washington Metropolitan Area Transit Authority, 679 F.2d at 925; Pouncy v. Prudential Insurance Co. of America, 668 F.2d 795, 797 n. 3 (5th Cir.1982). Accordingly, the Court's discussion of plaintiff's Title VII claim also will be applicable to plaintiff's section 1981 claim.


636 S.E.2d 99 (2006)
M. HOMES, LLC
v.
SOUTHERN STRUCTURAL, INC.
No. A06A1554.
Court of Appeals of Georgia.
August 30, 2006.
Gary S. Freed, Deborah S. Cameron, Chamberlain, Hrdlicka, White Williams & Martin, Atlanta, for Appellant.
Lance A. Cooper, Cooper, Jones & Cooper, Patrick A. Dawson, Marietta, for Appellee.
BARNES, Judge.
Southern Structural, Inc. filed an application to stay an arbitration proceeding demanded by M. Homes, LLC, and the trial court granted the motion without explanation. M. Homes appeals, contending that the trial court erred in staying the arbitration because it was the assignee of Majestic Residential, LLC ("the Assignor"), the original party to the construction contract with Southern Structural, and therefore, was entitled to arbitrate its construction defects claims against the company. For the reasons that follow, we affirm.
This court reviews a grant of a motion to stay arbitration de novo to determine *100 whether the trial court was correct as a matter of law. Holt & Holt, Inc. v. Choate Const. Co., 271 Ga.App. 292, 609 S.E.2d 103 (2005).
This case has a twist, because Southern Structural argues, and the trial court apparently agreed, that M. Homes' assignor waived the right to arbitration under the contracts at issue by its actions in a related case. M. Homes contends that it did not know about the contracts' right to arbitration until Southern Structural responded to its discovery in that related case and produced copies of the contracts. It asserts that, once it learned that the contracts contained arbitration clauses, it took no actions inconsistent with waiver and sought arbitration within a very short time.
The record confirms that the trial court's order on appeal in this case was entered in conjunction with the related case, and thus we will consider the proceedings in that case so far as they are reflected in the record. In that case, on December 3, 2004, Southern Structural sued the Assignor, the original party to the construction contracts, for breach of contract and other counts, alleging that it owed Southern Structural $582,485 for construction materials it had delivered to and installed in the Assignor's houses. Southern Structural also sued the Assignor's membersKillearn, Inc., Drayton Baker, and Hank Burneyas well as other business entities and individuals it claims were involved to some degree in the operations of the Assignor and Killearn, Inc.
The Assignor answered the complaint on January 19, 2005, admitting that its members were Killearn, Inc., Baker, and Burney, that it had an agreement with Southern Structural, and that it owed Southern Structural some money. It also raised several affirmative defenses, including waiver, estoppel, and failure of consideration. The Assignor responded to Southern Structural's requests for production and interrogatories on February 1, 2005, contending that it owed Southern Structural $447,323.14, and noting that the Assignor was out of business by then.
Meanwhile, the Assignor's members fully participated in defending the suit. While the answers of members Baker and Burney are not included in the record before us, Baker's December 15, 2004 interrogatories and requests for production to Southern Structural are included for our review. Further, on January 6, 2005, Killearn, Inc. answered, admitting it was formerly a member of the Assignor but denying it was a party to any agreement with Southern Structural. Four business entities and four individuals related to Killearn, Inc. joined its answer but denied that they were affiliated with the Assignor in any way. Along with their answer, all of the Killearn defendants moved to dismiss the complaint on the grounds that venue was improper and the complaint failed to state a claim for relief.
On March 1, 2005, all of the Killearn defendants moved to set aside a temporary restraining order, which apparently had been entered to halt foreclosure of the Assignor properties, and submitted the affidavit of defendant David K. Williams, vice president of Killearn, Inc. and president of Killearn Properties, Inc. of GA (KPI). In the affidavit, Williams explained that in November 2004, Killearn saw that the Assignor would not be able to pay its creditors and set up a new entity to finish construction on the houses, sell the properties, and pay the creditors pro rata. All of the creditors except Southern Structural agreed to the plan and received an advance of 20 percent of the amount due them.
Williams also said he and Killearn, Inc. were guarantors of the Assignor's debts to two banks. The banks called the guarantees in early January and then sold the notes and assigned their interest in the properties to KPI, which paid off the notes in full. KPI planned to foreclose on the properties, complete the construction, and sell the properties to recoup money for the Assignor's creditors. The partially completed houses were open to the elements and some had been vandalized, so further delay in construction and foreclosure would allow them to deteriorate further, and thus, Williams explained, the temporary restraining order should be lifted. Attached to Williams' affidavit is a copy of a November 23, 2004 letter of intent between Killearn, Inc. and the Assignor setting out the terms of their agreement for Killearn to complete *101 and sell the properties and repay the Assignor's debtors.
Finally, on July 1, 2005, Killearn, Inc. sent a letter to Southern Structural indicating that its expert had inspected the properties for which Southern Structural provided framing and identified numerous problems, and also inviting the company to inspect the properties. On July 12, 2005, the trial court signed a consent order extending the discovery period to October 2005, agreed to by the Assignor and all of the other parties.
On July 29, 2005, Killearn, Inc. sent Southern Structural a demand for arbitration. Killearn stated that it "and its affiliate, M. Homes" had retained the expert who had identified defects in the properties, that the contract "produced by [Southern Structural] for the subject properties contains an arbitration provision," and that the existence of the defects changed the case from a collections matter to a dispute subject to the arbitration clause in the contract. Killearn filed a motion to compel arbitration on August 17, 2005.
On August 30, 2005, the Assignor assigned to M. Homes its interest in
all of Assignor's right, title, interest, in any and to the extent assignable, in and to any warranties and guaranties, express or implied, heretofore given to Assignor in the [Southern Structural] Contracts with respect to the materials and/or construction of the residential homes on the Real Estate or any fixtures, personalty or other improvements located on or within the Real Estate or in any way pertaining to the Real Estate.
On September 12, 2005, M. Homes filed a demand for arbitration with Southern Structural, contending that the framing on 15 houses was defective, and seeking the costs to cure the defects. These properties were among those involved in the related litigation. Southern Structural filed its application to stay the arbitration on October 5, 2005, contending that M. Homes was not a party to the contract between Southern Structural and the Assignor; that M. Homes bought the properties from the Assignor at foreclosure in early 2005 and failed to inspect them then; that the underlying basis for the claims was a collections matter not subject to arbitration; and that M. Homes waived its right to arbitrate the claims, as the defendants and assignors did in the related case. In the related case, Southern Structural responded to the Assignor's and Killearn's motion to compel arbitration on September 19, 2005, and on October 25, 2005, the trial court heard argument on both the application to stay in this case and the motion to compel arbitration in the related case. On January 26, 2006, it granted Southern Structural's motion to stay in this case and denied the Assignor's motion to compel arbitration in the related case.
M. Homes argues on appeal that the trial court erred in granting Southern Structural's application to stay the arbitration because, as the assignee of the original party to the construction contract with Southern Structural, it was entitled to arbitrate its construction defects claims against the company. M. Homes also argues that the trial court erred in granting the application to stay the arbitration because Southern Structural failed to establish any of the three grounds required by OCGA § 9-9-6(b), which are (1) that the parties did not have a valid agreement to submit to arbitration, (2) that the parties did not comply with the agreement to arbitrate, or (3) that the arbitration is time-barred.
We have also held, however, that a party may waive an agreement to arbitrate by taking actions that are "inconsistent with the right of arbitration." Burnham v. Cooney, 265 Ga.App. 246, 247(1), 593 S.E.2d 701 (2004). For example, we have held that a party who asserted a counterclaim and affirmative defenses, participated in discovery, and consented to an order extending discovery waived its right to arbitration by failing to assert it until after the extended discovery period ended. Phil Wooden Homes v. Ladwig, 262 Ga.App. 792, 793, 586 S.E.2d 697 (2003); Griffis v. Branch Banking & Trust Co., 268 Ga.App. 588, 590-591(2), 602 S.E.2d 307 (2004). Even a party who asserted a right to arbitration in its answer may waive that right by conducting discovery, moving for summary judgment, and entering a consolidated pre-trial order. Wise v. Tidal *102 Const. Co., 261 Ga.App. 670, 583 S.E.2d 466 (2003).
The record shows that the Assignor assigned its rights in these contracts to M. Homes on August 30, 2005, the same day M. Homes demanded arbitration with Southern Structural. M. Homes argues that it did not know about the arbitration clauses in the contracts until Southern Structural responded to the Assignor discovery requests in July 2005. On the one hand, M. Homes contends it did not waive its right to arbitrate because it did not know the right existed until Southern Structural gave it copies of the contracts, and on the other hand, it argues that it stands in the Assignor's place as its assignee. M. Homes cannot have it both ways. It is a well-established principle of Georgia law that an assignee of a contract acquires its rights from the assignor, has no more rights under the contract than the assignor, and is subject to all the defenses that could have been raised against the assignor. Pridgen v. Auto-Owners Ins. Co., 204 Ga.App. 322, 323, 419 S.E.2d 99 (1992). The Assignor was a party to the contracts which formed the entire basis for Southern Structural's lawsuit, and as the assignee, all of the Assignor's actions during this litigation are imputed to M. Homes. Even apart from the actions of the Assignor's members in the related case, the Assignor itself failed to raise the defense of arbitration in its answer, participated in discovery, and agreed to extend the discovery period, all without raising the issue of arbitration. The Assignor's president knew by at least January 2005 that the houses were incomplete and open to the elements, and, as Killearn, Inc.'s "affiliate," the Assignor even hired an expert to inspect the properties and identify any defects before July 1, 2005.
Further, the Assignor "as a party to the contract it signed, is presumed to know" the terms of the contract. Holt & Holt, Inc. v. Choate Const. Co., supra, 271 Ga.App. at 294, 609 S.E.2d 103. Therefore, as the assignee, M. Homes is also presumed to know the terms of the contract, and thus its contention that it had no notice of its contractual right to arbitrate this claim until eight months into the litigation is without merit. As outlined above, the Assignor and its members fully participated in the litigation process without demanding arbitration from the suit's inception in December 2004 until July 2005. Accordingly, we conclude that the trial court did not err in granting Southern Structural's application to stay arbitration.
Judgment affirmed.
ANDREWS, P.J., and BERNES, J., concur.


                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                               No. 03-1685

ROBBIN LEGGETTE,

                                                 Plaintiff - Appellant,

          versus

CRYSTAL MOORE, Corporal; JOY CUTLER,

                                                Defendants - Appellees.

Appeal from the United States District Court for the District of
South Carolina, at Florence. Patrick Michael Duffy, District Judge.
(CA-02-1635-4)

Submitted:   October 1, 2003                 Decided:   October 22, 2003

Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Robbin Leggette, Appellant Pro Se.       Douglas Charles Baxter,
RICHARDSON, PLOWDEN, CARPENTER & ROBINSON, Myrtle Beach, South
Carolina; William Henry Davidson, II, David Leon Morrison, Matthew
Blaine Rosbrugh, DAVIDSON, MORRISON & LINDEMANN, P.A., Columbia,
South Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

      Robbin Leggette appeals the district court’s order denying

relief on her 42 U.S.C. § 1983 (2000) complaint.         We have reviewed

the record and find no reversible error. Accordingly, we affirm for

the reasons stated by the district court.          See Leggette v. Moore,

No. CA-02-1635-4 (D.S.C. filed May 6, 2003 & entered May 7, 2003).

We   dispense   with   oral   argument   because   the   facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                  AFFIRMED

                                    2


                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

KATHLEEN NICHOLS,                       
                 Plaintiff-Appellant,
                  v.
                                            No. 07-15654
LAURA DANCER, in her official
                                              D.C. No.
capacity and individual capacity;
JAMES L. HAGER, in his official            CV-04-00559-
capacity and individual capacity;            LRH/LRL
and WASHOE COUNTY SCHOOL                     OPINION
DISTRICT, a political subdivision of
the State of Nevada,
              Defendants-Appellees.
                                        
        Appeal from the United States District Court
                 for the District of Nevada
         Larry R. Hicks, District Judge, Presiding

                  Argued and Submitted
        October 23, 2008—San Francisco, California

                     Filed May 18, 2009

     Before: J. Clifford Wallace, Sidney R. Thomas and
              Susan P. Graber, Circuit Judges.

                  Opinion by Judge Thomas

                             5965
                       NICHOLS v. DANCER                    5967

                          COUNSEL

Jeffrey S. Blanck, Reno, Nevada, for the appellant.

C. Robert Cox, Christopher D. Jaime, Maupin, Cox & LeGoy,
Reno, Nevada, for the appellees.

                          OPINION

THOMAS, Circuit Judge:

   This appeal presents the question of whether the patronage
dismissal doctrine immunizes public employers who termi-
nate employees on the basis of perceived lack of personal loy-
alty. We conclude that it does not and remand for further
proceedings.

                                I

  Kathleen Nichols worked for the Washoe County School
District for nine years, her last six as an administrative assis-
5968                  NICHOLS v. DANCER
tant to the General Counsel for the district, Jeffrey Blanck.
Over the course of the six years that Nichols worked for
Blanck, they became friends. In her position as assistant to
Blanck, Nichols was privy to sensitive information about con-
fidential negotiations as well as information about employees,
their backgrounds, and disciplinary measures. By all accounts,
the school district had no problems with Nichols or her job
performance. In job evaluations, Nichols received only “com-
mendable” and “competent” marks, the two highest marks.

   Blanck began having problems with the School District
Superintendent James Hager. The District transferred Nichols
to a job in Human Resources in January 2004 while it decided
whether to terminate Blanck. By that time, Nichols had
learned that Blanck had hired legal counsel in case he was ter-
minated.

   The District’s Board of Trustees held an open meeting to
discuss Blanck’s future with the District, among other items.
The day before the meeting, Nichols spoke with Laura
Dancer, the Assistant Superintendent in charge of Human
Resources, about her job security. Dancer told Nichols that
after the board meeting, Nichols “would be restored to her
position as administrative assistant to general counsel, whom-
ever that general counsel was to be.”

  Nichols testified that she attended the board meeting for
two reasons: to support a friend in a different department who
was to receive an award and to see what would happen to her
employer, Blanck. In Nichols’s words:

    I wanted to find out what was going to happen with
    [Blanck’s] position with the District . . . . I had been
    in at the beginning of the formation of the legal divi-
    sion and . . . I felt that it was of great interest to me
    to see whether or not that division was going to be
    continuing or not . . . . Nichols denies that she
    attended the meeting to support Blanck. No one
                      NICHOLS v. DANCER                       5969
    alleges that Nichols spoke publicly during the meet-
    ing.

  When Nichols arrived at the meeting, the room was
crowded. Nichols sat next to Blanck, who was already seated.
Later in the meeting, the Board voted to terminate Blanck.

   The next day, Dancer reconsidered her promise to reinstate
Nichols as the assistant to the new Legal Counsel. Dancer
stated that:

    After the night of the meeting, it was clear to me that
    Mrs. Nichols’ continued contact and support and
    interest in Mr. Blanck posed a conflict for her to be
    in the legal counsel office . . . . After attending the
    open meeting, I did reconsider my earlier decision
    about her placement and determined that her place-
    ment needed to be other than the legal counsel
    office.

Aside from Nichols’s seat next to Blanck at the open meeting,
the record provides no other reason why Dancer would recon-
sider her earlier statement to Nichols.

   Nichols met with Dancer the day after the meeting. Dancer
told Nichols that she would not be transferred back to the
Legal Counsel’s office and that her salary would be frozen at
its current level for one year. According to Nichols, Dancer
said that they were “forced to question” her loyalty. Nichols
expressed her unhappiness with that decision, and Dancer
asked Nichols whether she had considered retirement as an
alternative to continuing work in the Human Resources
department. Nichols had never spoken to Dancer about the
possibility of retirement. Nichols stated that she had the feel-
ing that she “really wasn’t wanted around there.”

  Soon after the board meeting, Nichols was in her office
when Blanck called her. Nichols informed Blanck that she
5970                  NICHOLS v. DANCER
would be taking some time off, that outside counsel was com-
ing into the office, and that Dancer had requested a list of
ongoing matters. Dancer considered this communication to
contain “very sensitive information, including information
pertaining to Mr. Blanck’s own case” against the District for
wrongful termination. Dancer considered the contact “inap-
propriate.” After Nichols gave Blanck this information, the
District claims that some files went missing. Following the
phone exchange between Nichols and Blanck, Nichols took
some time away from work. She eventually decided to retire,
allegedly “to her severe financial detriment.”

   Nichols sued Dancer, Hager, and the Washoe County
School District for First Amendment retaliation and claimed
that by firing her, Defendants violated her First Amendment
right to associate with Blanck. The district court granted
Defendants’ motion for summary judgment, holding that
Nichols was a confidential employee vulnerable to a patron-
age dismissal without regard for her First Amendment rights.

                              II

                              A

  [1] A public employer may not unduly abridge an employ-
ee’s First Amendment rights. Keyishian v. Bd. of Regents, 385
U.S. 589, 605-06 (1967). However, government employers
may restrict their employees’ speech more than the govern-
ment may restrict the speech of it constituents. Hudson v.
Craven, 403 F.3d 691, 696 n.1 (9th Cir. 2005) (“[T]he gov-
ernment as employer indeed has broader powers to regulate
speech than does the government as sovereign.”).

   To establish a prima facie case of First Amendment retalia-
tion, a government employee must show that “(1) she engaged
in protected speech; (2) the defendants took an ‘adverse
employment action’ against her; and (3) her speech was a
‘substantial or motivating’ factor for the adverse employment
                       NICHOLS v. DANCER                    5971
action.” Thomas v. City of Beaverton, 379 F.3d 802, 808 (9th
Cir. 2004) (quoting Coszalter v. City of Salem, 320 F.3d 968,
973 (9th Cir. 2003)).

  In the paradigmatic case, if the government employee can
succeed in her prima facie claim, the burden shifts to the gov-
ernmental defendants

    to demonstrate either that, under the balancing test
    established by Pickering v. Board of Education . . .
    the employer’s legitimate administrative interests
    outweigh the employee’s First Amendment rights or
    that, under the mixed motive analysis established by
    Mt. Healthy City School District Board of Education
    v. Doyle . . . the employer “would have reached the
    same decision even in the absence of the [employ-
    ee’s] protected conduct.”

Thomas, 379 F.3d at 808 (citations omitted).

   In Pickering, the Supreme Court stated that in First Amend-
ment cases against a state entity, “[t]he problem . . . is to
arrive at a balance between the interests of the [employee], as
a citizen, in commenting upon matters of public concern and
the interest of the State, as an employer, in promoting the effi-
ciency of the public services it performs through its employ-
ees.” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

   [2] Under certain circumstances, a public employer is per-
mitted to take adverse employment action against an
employee for engaging in speech that is normally protected by
the First Amendment, and the court need not conduct a Pick-
ering balancing test. For example, the patronage dismissal
doctrine allows public employers to terminate certain public
employees on the basis of their political beliefs and loyalties.
See generally Branti v. Finkel, 445 U.S. 507 (1980). Here, the
district court found that Nichols was a confidential employee
and that her termination was a patronage dismissal. Accord-
5972                   NICHOLS v. DANCER
ingly, the district court granted summary judgment without
conducting a full First Amendment examination or a Picker-
ing balancing analysis. However, because Nichols was termi-
nated for a perceived lack of personal loyalty, rather than
political loyalty, we conclude that the patronage dismissal
doctrine does not apply to her termination. We therefore must
vacate the summary judgment and remand the case to the dis-
trict court so that it may conduct a traditional First Amend-
ment analysis.

                                B

   [3] An employer engages in patronage dismissals when a
newly elected or appointed public officer fires existing
employees on the basis of their political beliefs or loyalties.
Elrod v. Burns, 427 U.S. 347, 353 (1976). In Elrod, a newly
elected Democratic sheriff fired four Republican employees
in the sheriff’s office because of their political beliefs. Id. at
350-51. To keep their jobs, the employees were required to
“pledge their political allegiance to the Democratic Party,
work for the election of other candidates of the Democratic
Party, contribute a portion of their wages to the Party, or
obtain the sponsorship of a member of the Party.” Id. at 355.

   In Elrod, the plurality noted that “[i]t is not only belief and
association which are restricted where political patronage is
the practice. The free functioning of the electoral process also
suffers.” Id. at 356. For that reason, patronage dismissals sur-
vive constitutional challenge only when they “further some
vital government end by a means that is least restrictive of
freedom of belief and association in achieving that end, and
the benefit gained . . . outweigh[s] the loss of constitutionally
protected rights.” Id. at 363. Justices Stewart and Blackmun,
limiting the decision with their concurrence, held that “a non-
policymaking, nonconfidential government employee [can-
not] be discharged or threatened with discharge from a job
that he is satisfactorily performing upon the sole ground of his
political beliefs.” Id. at 375.
                       NICHOLS v. DANCER                    5973
   [4] The Supreme Court refined the patronage dismissal
doctrine in Branti v. Finkel, 445 U.S. 507 (1980). In Branti,
the Court held that a newly appointed Democratic Public
Defender could not fire two Republican assistant public
defenders on the basis of their political beliefs. Id. at 519-20.
Although the new Public Defender was not elected himself,
he had been appointed by a legislature with a newly Demo-
cratic majority. The Court abandoned the policymaking/
confidential distinction and instead held that “the ultimate
inquiry is not whether the label ‘policymaker’ or ‘confiden-
tial’ fits a particular position; rather, the question is whether
the hiring authority can demonstrate that party affiliation is an
appropriate requirement for the effective performance of the
public office involved.” Id. at 518.

   [5] In both of these seminal cases, the constitutional analy-
sis about party affiliation and job requirement was premised
on dismissal motivated by political beliefs. See also Rutan v.
Republican Party of Ill., 497 U.S. 62 (1990) (holding that pro-
motion and transfer denials as well as failure to hire on the
basis of political belief may also trigger the patronage dis-
missal doctrine’s protection).

   We have adhered to the guidance of the Supreme Court. In
Fazio v. City and County of San Francisco, 125 F.3d 1328,
1334 (9th Cir. 1997), we held that a District Attorney could
fire an Assistant District Attorney for running against him in
an election. We reasoned that “[t]he rationale utilized to per-
mit patronage dismissals in Elrod and Branti may also be
applicable in the context of dismissals that are based on a
public employee’s political activities, such as running for
office against an employer.” Id. at 1331-32 (emphasis added).
Although Fazio did not concern a newly elected official, it did
concern a dismissal motivated by expressly political activities.

  We have reached similar conclusions in other cases. See
Walker v. City of Lakewood, 272 F.3d 1114, 1131-33 (9th Cir.
2001) (holding that a policymaking city contractor could not
5974                    NICHOLS v. DANCER
bring a First Amendment § 1983 claim against the city after
it was terminated for criticizing the city in a political register);
Biggs v. Best, Best & Krieger, 189 F.3d 989, 993-97 (9th Cir.
1999) (holding that an employee of a law firm responsible for
some city functions could not bring a First Amendment
§ 1983 claim against the firm after she was terminated for the
political statements of her family members). The conduct for
which the employees in these cases were terminated was
overtly political.

   In concluding that the patronage dismissal doctrine applied
and that Nichols was a confidential employee subject to
abridged First Amendment rights, the district court relied on
Hobler v. Brueher, 325 F.3d 1145 (9th Cir. 2003). In Hobler,
we considered the dismissal of two assistants to a County
Prosecutor. The plaintiffs were the former right-hand employ-
ees of the outgoing County Prosecutor and were terminated
by the incoming Prosecutor “for expressing their political sup-
port for his election rival.” Id. at 1148. We rejected the assis-
tants’ § 1983 claims because political loyalty was a
requirement for the effective performance of the assistants’
jobs.

   [6] Hobler is distinguishable. The confidential secretaries
in Hobler were fired because of their political beliefs and
political support for the previous County Prosecutor. Nichols
was fired because of her perceived personal association with
the outgoing General Counsel; she never expressed her politi-
cal loyalties.

   [7] We hold that the patronage dismissal doctrine does not
extend to adverse employment actions motivated by the
employee’s personal, rather than political, loyalties. The
patronage dismissal doctrine is designed to ensure the integ-
rity of the political process. To force a public official to work
towards his or her goals with the assistance of employees who
may be working against those goals has the potential to frus-
trate the will of the electorate. Personal disagreements do not
                      NICHOLS v. DANCER                    5975
give rise to the same potential for electoral frustration. Some
personal conflict exists in nearly every workplace, and severe
personal conflicts may be resolved through performance eval-
uations or by resorting to the balancing test set out in Picker-
ing. Extending the patronage dismissal doctrine to matters of
personal loyalty would give public employers unjustified
power to abridge their employees’ First Amendment rights.
We decline to extend the doctrine in that way.

   In so holding, we join the analysis of the Fifth Circuit. In
Correa v. Fischer, 982 F.2d 931 (5th Cir. 1993), the Fifth Cir-
cuit made a similar distinction between termination on the
basis of political beliefs and termination on the basis of per-
sonal loyalty and compatibility. The court rejected the § 1983
claims of four staff members in the County Attorney’s office
who had been fired by an incoming County Attorney. The
employees had previously worked for the outgoing County
Attorney who opposed, but did not run against, the new
County Attorney. However, the court found that the incoming
and outgoing County Attorneys had a personal rather than a
political conflict, and that the four employees were dismissed
on the basis of personal disloyalty and incompatibility, not
their political beliefs. Id. at 933-34. The court concluded that
the political patronage dismissal doctrine did not apply to the
employees and thus a policymaker/confidential analysis was
unnecessary. Id. at 936.

   For all these reasons, we conclude that the patronage dis-
missal doctrine does not apply to claims involving personal
rather than political loyalty. Given our conclusion, we need
not—and do not—reach the questions of whether Nichols was
a policymaking/confidential employee or whether party affili-
ation was an appropriate requirement for her job.

                              III

  [8] Because the patronage dismissal doctrine does not
apply, we must remand to the district court for re-
5976                   NICHOLS v. DANCER
consideration of the claims under the traditional First Amend-
ment government employee analysis. Although the parties
invite us to conduct such an examination ourselves, we
decline to do so. The district court did not reach that issue and
we are not confident that the record is complete. Thus, the
inquiry is more appropriate for the district court. We remand
to allow the district court to conduct such an analysis in the
first instance. We do not prejudge the outcome of that inquiry.

  REVERSED AND REMANDED.


398 N.W.2d 732 (1986)
GREAT PLAINS SUPPLY COMPANY, a DIVISION OF HARVEST STATES COOPERATIVES, Plaintiff and Appellee,
v.
Clifford ERICKSON and Carol R. Erickson, his wife, Defendants and Appellants, and
The United States of America, by and through the Internal Revenue Service, Defendant.
GREAT PLAINS SUPPLY COMPANY, a DIVISION OF HARVEST STATES COOPERATIVES, Plaintiff and Appellee,
v.
Douglas BJORNSON and Roberta Bjornson, his wife, Defendants and Appellants.
Civ. Nos. 11220, 11147.
Supreme Court of North Dakota.
December 18, 1986.
*733 Pringle and Herigstad, Minot, for plaintiff and appellee; argued by James E. Nostdahl.
E. Jean Bartlett, Georgetown, Minn., for defendants and appellants.
GIERKE, Justice.
This is a consolidated appeal by Clifford and Carol Erickson from a district court judgment in favor of Great Plains Supply Company and by Douglas and Roberta Bjornson from a summary judgment in favor of Great Plains. We affirm the Erickson judgment and reverse the Bjornson judgment.
In 1972 Clifford and Douglas formed Tri-Quality Construction, a partnership engaged in residential and commercial construction. Carol and Roberta were not partners in Tri-Quality. Both Clifford and Douglas had been employees of Great Plains, and, after they formed the partnership, Great Plains supplied construction materials to Tri-Quality on an unsecured open account.
In 1979 and 1980 Tri-Quality experienced financial difficulties and became delinquent on its open account with Great Plains. On February 26, 1982, Clifford and Carol executed a promissory note to Great Plains for $20,000 secured by a second mortgage on their homestead and, on April 26, 1982, Douglas and Roberta executed a separate promissory note to Great Plains for $20,000 secured by a second mortgage on their homestead. On July 7, 1982, Clifford and Douglas executed a promissory note to Great Plains for $29,500 secured by a mortgage on three garages built by Tri-Quality and two lots. All three notes were due one year after they were executed.
The notes were not paid when they came due, and the parties entered into negotiations regarding their payment plus charges made on the open account subsequent to the execution of the notes. The parties *734 executed a renewal note evidencing a principal balance of $95,084.56 as of July 1, 1983, and requiring monthly payments of $1,000 beginning on July 1, 1983, with a balloon payment due on July 1, 1984. Two monthly payments were made on the note, and, when the remaining payments were not made and the parties were unable to reach an agreement on the payment of the notes, Great Plains commenced separate proceedings against the Ericksons and the Bjornsons. The Ericksons and the Bjornsons separately answered, generally denying the allegations in the complaint, and alleged in counterclaims that the execution of the promissory notes and the mortgages was induced by Great Plains' false representations of the amount due on their account.
The Erickson case proceeded to trial, and, after each side had presented their evidence, Great Plains moved for leave to take the deposition of one of its former employees, Melvin Jerstad. The trial court granted Great Plains' motion and Jerstad's deposition was taken and submitted to the court. Thereafter, the trial court ordered judgment in the amount of $28,972.60 plus interest against the Ericksons and declared that Great Plains' mortgage was valid. The trial court found that Great Plains did not induce the execution of the note and mortgage by misrepresenting the amount owed by the Ericksons or misrepresenting or misleading the Ericksons regarding their legal rights. Thereafter, in the Bjornson case, the district court granted Great Plains' motion for summary judgment.

Erickson Appeal
The Ericksons contend that the trial court erred in allowing Great Plains to take Jerstad's post-trial deposition. Great Plains was notified that the Ericksons had subpoenaed Jerstad for trial. However, Great Plains apparently was not notified when the Ericksons subsequently released Jerstad from that subpoena. The Ericksons assert that, rather than relying on their subpoena, Great Plains should have subpoenaed Jerstad for trial.
Generally, if a witness does not show up for trial, a party asserting the deprivation of the right to examine that witness may not rely on the fact that the opposing party subpoenaed the witness. See Employers Mutual Liability Insurance Co. of Wisconsin v. Industrial Comm'n, 15 Ariz.App. 590, 490 P.2d 35 (1971); Hosner v. Brown, 40 Mich.App. 515, 199 N.W.2d 295 (1972). However, the issue in this case is not whether Great Plains could rely on the subpoena issued by the Ericksons, but whether the trial court erred in permitting Great Plains to take Jerstad's deposition.
A trial court is afforded great latitude and discretion in conducting a trial and, absent an abuse of discretion, its decision on matters relating to the conduct of a trial will not be set aside on appeal. E.g., Ward v. Shipp, 340 N.W.2d 14 (N.D.1983). Thus, a trial court has broad discretion to allow additional time for the arrival of a witness [Ward v. Shipp, supra]; to permit the reopening of a case for clarification of the record [Leno v. Ehli, 339 N.W.2d 92 (N.D.1983)]; and to sua sponte order a supplemental hearing for the taking of further evidence. Tom Beuchler Const. v. City of Williston, 392 N.W.2d 403 (N.D.1986). A trial court's discretion must be exercised in a manner which comports with substantial justice because a trial is a search for the truth. Ward v. Shipp, supra. A trial court abuses its discretion when it acts in an unreasonable, arbitrary, or unconscionable manner. Wall v. Pennsylvania Life Insurance Co., 274 N.W.2d 208 (N.D.1979).
After carefully reviewing the record in light of the circumstances involved in this case, we conclude that the trial court did not act unreasonably, arbitrarily, or unconscionably in permitting Great Plains to take Jerstad's deposition and therefore did not abuse its discretion.
The Ericksons contend that the trial court erred in refusing to admit into evidence an exhibit tending to establish a mistake of fact regarding the amount due on *735 the open account when the notes and mortgages were executed in 1982 and 1983. The Ericksons assert that the exhibit tends to establish that, on several occasions, Great Plains had claimed that different amounts were due on the account. The exhibit consisted of letters dated July 7, 1984, and October 18, 1984, in which Great Plains' representatives sought to settle the account for less than the amount due. The trial court ruled that these letters constituted an offer of compromise and, as such, were inadmissible under Rule 408, N.D.R.Evid. No offer of proof was made relating those 1984 letters to an alleged mistake of fact regarding the amount due on the open account when the notes and mortgages were executed in 1982 and 1983. In the absence of a showing of that nexus by an offer of proof we are unable to conclude that the trial court erred in refusing to allow the exhibit into evidence.
The Ericksons contend that the trial court erred in treating their counterclaim as an affirmative defense thereby denying their right to a jury trial. In their counterclaim the Ericksons alleged that Great Plains fraudulently misrepresented the amount due on their account and that this misrepresentation induced them to execute the note and mortgage. Before trial, the district court determined that the Ericksons' counterclaim was actually an affirmative defense and denied their demand and motion for a jury trial.
In Ask, Inc. v. Wegerle, 286 N.W.2d 290, 295 (N.D.1979), we said that a party raising a legal defense in an equitable action is not entitled to have a jury trial on those issues, but that a party raising legal issues in a counterclaim is entitled to a jury trial on those issues. Thus we must consider whether the issues raised by the Ericksons are a defense or a counterclaim.
In Zeman v. Mikolasek, 75 N.D. 41, 25 N.W.2d 272 (1946), we said that in order to constitute a counterclaim the allegations must establish an independent cause of action, and facts that merely serve to defeat a plaintiff's cause of action are not a counterclaim but a defense. In the instant case we believe the facts alleged in the counterclaim do not present an independent cause of action but negate the existence of a valid note and mortgage, thereby controverting the allegations in Great Plains' complaint. Pursuant to Rule 8(c), N.D.R.Civ.P., "[w]hen a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation." We conclude that the court did not err in treating the counterclaim as a defense and denying the Ericksons a jury trial on those issues.
The Ericksons also contend that the trial court's findings of fact that Great Plains did not mislead or make misrepresentations to them are contrary to the evidence. The Ericksons assert that Great Plains' misrepresentation prevented their free and mutual consent to the note and mortgage. In essence, they assert that they presented unrebutted evidence to the trial court that Great Plains' employees falsely represented to them that unless their account was paid, or notes and mortgages on their homes were executed, Great Plains would commence a collection action resulting in the sale of their home. The Ericksons contend that, but for the misrepresentations by Great Plains, they would not have consented to the note and mortgage.
The trial court made the following findings of fact:
"The Plaintiff did not misrepresent the amount due from the Defendants on open account at the time the Mortgage was executed.
"The Plaintiff did not misrepresent or mislead the Defendants concerning their legal rights regarding the Mortgage prior to its execution."
These findings of fact are subject to the "clearly erroneous" standard of Rule 52(a), N.D.R.Civ.P. A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake *736 has been made. In re Estate of Elmer, 210 N.W.2d 815 (N.D.1973).
After a careful review of the record, we are not left with a definite and firm conviction that a mistake has been made, and we conclude that the trial court's findings of fact are not clearly erroneous. Accordingly, we affirm the district court judgment against the Ericksons.

Bjornson Appeal
The Bjornsons contend that the district court erred in granting summary judgment against them because genuine issues of material fact exist. Viewing the evidence in the light most favorable to the Bjornsons [First Nat'l Bank of Hettinger v. Clark, 332 N.W.2d 264 (N.D.1983)], we believe that Douglas' affidavit sets forth specific facts establishing that there was a genuine issue of material fact regarding whether or not Great Plains, through its agents, made misrepresentations to the Bjornsons to induce them into executing the note and mortgage on their homestead.
Nevertheless, Great Plains asserts that those factual issues were decided in the Erickson case and that the doctrines of collateral estoppel and res judicata preclude the Bjornsons from raising those issues. Great Plains contends that both the Ericksons and the Bjornsons executed notes and mortgages on their respective residences to give security to Great Plains on the overdue accounts with Tri-Quality; that the notes and mortgages were executed in the same amount and near the same time; that both couples retained the same attorney to defend them and interposed identical answers, affirmative defenses, and counterclaims; and that Douglas participated in the Erickson action as a witness for the Ericksons and corroborated Clifford's testimony regarding Great Plains' alleged misrepresentation. Thus, Great Plains contends that the issues are so similar that there was no reason for the court to deny judgment against Bjornson based on the findings in the Erickson case. We disagree.
In Armstrong v. Miller, 200 N.W.2d 282, 285 (N.D.1972) we quoted with approval the following discussion of res judicata:
"`Upon established principles, a judgment binds and is admissible against parties to the suit in which it is rendered; and privies are, of course, bound, as they are the representatives of the real parties; but beyond these a judgment in personam is evidence only of the fact of its own rendition; it may not be introduced to establish the facts upon which it has been rendered. It is an axiom of the law that no man shall be affected by proceedings to which he is a strangerto which, if he is a party, he must be bound. He must have been directly interested in the subject-matter of the proceedings, with the right to make defense, to adduce testimony, to cross-examine the witnesses on the opposite side, to control in some degree the proceedings, and to appeal from the judgment. Persons not having these rights are regarded as strangers to the cause.'
* * * * * *
"`In order to make a man a privy to an action he must have acquired an interest in the subject matter of the action either by inheritance, succession, or purchase from a party subsequently to the action, or he must hold property subordinately.'"
In Boyd v. Wallace, 10 N.D. 78, 84 N.W. 760 (1900) at syllabus ¶ 1, we said:
"One who is not a party defendant on the record in an action, but who participates in the defense, and has an interest in the matter in controversy in the action, and participates in the defense for the protection of such interest, and not as representing the interest of the defendant of record, and where it is known to the plaintiff that such party so participates for the protection of his own interest, is bound by the decree rendered in the action."
The factual situations involved in the Erickson case and the Bjornson case are similar; however, neither the parties nor the facts are identical. The two actions *737 are based on different notes and mortgages executed at different times and involve different homestead property. The named defendants in each action are different. Although Douglas testified in the Erickson case, his testimony reaffirmed Clifford's testimony about the Erickson note, mortgage, and residence. Douglas did not testify concerning the execution of the Bjornson note. The Bjornsons were not a privy to the Erickson action, and Douglas' testimony does not evidence a participation by him in the Erickson defense for the protection of the interests involved in the Bjornson note. Compare Boyd v. Wallace, supra. Furthermore, although the trial court specifically found that Great Plains did not mislead the Ericksons or make misrepresentations to them regarding their legal rights, the trial court made no finding in the Erickson action that Great Plains did not mislead the Bjornsons or make misrepresentations to them.
We conclude that the decision in the Erickson case was not res judicata as to the Bjornson case, and, because there are unresolved factual issues in the Bjornson case, we reverse the summary judgment.
For reasons stated herein, the judgment against the Ericksons is affirmed, and the summary judgment against the Bjornsons is reversed and remanded for trial.
VANDE WALLE and LEVINE, JJ., and PEDERSON and ILVEDSON, Surrogate Justices, concur.
PEDERSON and ILVEDSON, Surrogate Justices, sitting in place of ERICKSTAD, C.J., and MESCHKE, J., disqualified.


     Case: 12-40496       Document: 00512278422         Page: 1     Date Filed: 06/18/2013

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 18, 2013

                                       No. 12-40496                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CLEMENTE VALDEZ, JR.,

                                                  Defendant - Appellant

                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No.4:09-CR-142-5

Before STEWART, Chief Judge, and HIGGINBOTHAM and JONES, Circuit
Judges.

PER CURIAM:*
       This case arises from Clemente Valdez, Jr.’s (“Valdez”) involvement with
the Mexican Gulf Cartel (“Cartel”), a drug trafficking organization. A jury
convicted him of conspiracy to possess with intent to distribute cocaine, in
violation of 18 U.S.C. § 846, and conspiracy to commit money laundering in

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-40496     Document: 00512278422      Page: 2   Date Filed: 06/18/2013

                                  No. 12-40496

violation of 18 U.S.C. § 1956(h). Valdez challenges only his conviction for
conspiracy to commit laundering. Finding no reversible error, we AFFIRM.
      “To establish conspiracy to commit money laundering, the government
must prove (1) that there was an agreement between two or more persons to
commit money laundering and (2) that the defendant joined the agreement
knowing its purpose and with the intent to further the illegal purpose.” United
States v. Fuchs, 467 F.3d 889, 906 (5th Cir. 2006). Valdez argues that the
evidence was insufficient to support his conviction. Because he did not properly
preserve this challenge, plain error review applies. United States v. Delgado,
672 F.3d 320, 331–32 (5th Cir. 2012) (en banc), cert. denied 133 S. Ct. 525 (2012).
Under plain error review, overturning a conviction because of insufficient
evidence requires a defendant to prove that a manifest miscarriage of justice
took place. Id. at 331. This “occurs [inter alia] where the record is devoid of
evidence pointing to guilt.” United States v. Rodriguez-Martinez, 480 F.3d 303,
307 (5th Cir. 2007) (quoting United States v. Burton, 324 F.3d 768, 770 (5th Cir.
2003)).
      Based on our narrow standard of review, the record is not devoid of
evidence to sustain Valdez’s conviction. Testimony from former Cartel members
about the organization’s large-scale and intricate use of intermediaries, stash
houses, and cash transactions (involving money traceable to prior drug deals),
indicates the existence of an agreement to commit money laundering. Cf. United
States v. Brown, 553 F.3d 768, 787 (5th Cir. 2008) (finding the evidence
sufficient to support a conviction for money laundering concealment when the
“transactions were in cash so that they were not easily traced”); United States
v. Martinez, 151 F.3d 384, 389 (5th Cir. 1998) (affirming money laundering
conviction where evidence showed that “virtually all the money” used in
transactions was drug money).         There was also testimony that Valdez
participated in the cash transactions and utilized a stash house. The jury could

                                        2
    Case: 12-40496    Document: 00512278422     Page: 3   Date Filed: 06/18/2013

                                 No. 12-40496

have inferred Valdez’s knowledge of the conspiracy from the fact that his uncle,
Jorge Villegas-Jaimes (“Villegas”), led the Cartel’s Dallas branch and his cousin
(Villegas’s nephew) knew about the Cartel’s system of drug and money
transactions. United States v. Broussard, 80 F.3d 1025, 1031 (5th Cir. 1996)
(“Inferences drawn from familial relationships . . . may be combined with other
circumstantial evidence to support a conspiracy conviction.”). Accordingly, there
was no manifest miscarriage of justice.
      Valdez also contends that his trial counsel rendered ineffective assistance
by failing to move for a judgment of acquittal on the conspiracy to commit money
laundering count. Ordinarily, we do not review an ineffective assistance of
counsel claim on direct review unless it was addressed by the district court.
United States v. Rosalez-Orozco, 8 F.3d 198, 199 (5th Cir. 1993). Following the
usual policy, we pretermit review of the issue here.
      For the foregoing reasons, Valdez’s conviction for conspiracy to commit
money laundering is AFFIRMED.

                                       3


(2008)
Brett H. GILMAN, Plaintiff,
v.
SCHWAN'S HOME SERVICE, INC., Defendant.
Civil No. 07-2048 (MJD/RLE).
United States District Court, D. Minnesota.
July 6, 2008.

MEMORANDUM OPINION AND ORDER
MICHAEL J. DAVIS, Chief Judge.
This matter is before the Court on Defendant Schwan's Home Service, Inc.'s ("Schwan's") motion for summary judgment.

I. Background
Plaintiff was employed by Schwan's as a route manager from August 2004 until March 14, 2006. As a route manager, Plaintiff would sell and deliver food products' from Schwan's depots to the customer's homes. The qualifications for this job required a high school degree or equivalent, one or more years of related experience and the ability to effectively operate a commercial vehicle pursuant to the Federal Department of Transportation ("DOT") eligibility requirements, including a driver's license and medical certification. There is no dispute that when the Plaintiff was hired, he possessed these qualifications.
In February 2006, the Plaintiff was diagnosed with Type 1 diabetes. As a result of this medical diagnoses, the Plaintiff was no longer certified to operate a commercial vehicle under the DOT requirements. An exemption could be obtained, but it is undisputed that such exemption could not be obtained overnight. Plaintiff testified at his deposition that one of the requirements for the exemption would be two months of blood sugar testing. Plaintiff Dep. p. 54. Other paperwork had to be filled out as well, and the entire process could take anywhere from three to six monthsthere being no guarantee, however, that an exemption would be granted. Id. p. 55.
For approximately two weeks, the Plaintiff was provided someone to drive the truck for him. Jeff Wurtzberger, Plaintiffs supervisor, testified that providing Plaintiff a driver was not a reasonable accommodation, so efforts were made to find other positions for the Plaintiff within the company. Wurtzberger Dep. 21-22. Plaintiff was also told that once he became recertified, he could re-apply for the route manager position. Plaintiff Dep. p. 43-44. Schwan's asserts that Plaintiff was offered a warehouse position at Schwan's, but Plaintiff disputes whether he was definitively offered any warehouse position. Plaintiff does not, however, dispute that Wurtzberger talked with Plaintiff about looking at job openings within the company, and that he was directed to the company's website to look at current job openings. Id. p. 47 and 71.
Plaintiff admits that he never looked at the website, nor did he accept a different position with the company, but claims that he did not have an opportunity to do so because he was abruptly terminated. Id. p. 51. Schwan's asserts that he was terminated because he lost his DOT certification and because he had not taken another job within the company.
Plaintiff filed a charge of disability discrimination with the Equal Employment Opportunity Commission ("EEO") on May 1, 2006, which was cross-filed with the Minnesota Department of Human Rights ("MDHR"). Both the EEO and the MDHR issued notices of dismissal of Plaintiffs claims. The MDHR notice was dated February 28, 2007. This action was thereafter filed on April 25, 2007exactly 90 days after the EEO dismissed the underlying charge and 57 days after the MDHR issued its dismissal notice.
In the Complaint, Plaintiff alleges disability discrimination under the Minnesota Human Rights Act ("MHRA") (Count I) and the Americans with Disabilities Act ("ADA") (Count II). Plaintiff alleges that Schwan's subjected him to discrimination and harassment because of his disability and that Schwan's failed to reasonably accommodate his disability.

II. Standard
Summary judgment is appropriate if, viewing all facts in the light most favorable to the non-moving party, there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party seeking summary judgment bears the burden of showing that there is no disputed issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. This burden can be met "by `showing'that is, pointing out to the district courtthat there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. The party opposing summary judgment may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir.1995).

III. Analysis

A. MHRA ClaimTimeliness
Under the MHRA, a plaintiff may pursue his claims by either proceeding directly to court, or to bring a claim before the MDHR. If the MDHR issues a notice dismissing the charges, a plaintiff may file an action in court, as long as the action is commenced within 45 days of receiving the notice. Minn.Stat. § 363A.33, subd. 1(2). The statute further provides that a notice of dismissal is presumed to have been received five days from the date of service by mail of the written notice. Minn.Stat. § 363A.33, subd. 1(3).
In this case, the MDHR issued a notice of dismissal dated February 28, 2007. Thus, Plaintiff had to have filed his Complaint within 45 days of March 5, 2007or April 19, 2007. This action was not filed until April 25, 2007, however. Plaintiff does not dispute that the notice of dismissal was addressed properly, but argues only that Plaintiff cannot remember receiving the notice. Because Plaintiff has not put forth any evidence that "that circumstances beyond his control prohibited him from serving his complaint within the statutory period", Plaintiffs claim under the MHRA must be dismissed as untimely. Ochs v. Streater, Inc., 568 N.W.2d 858, 860 (Minn.Ct.App.1997).

B. Harassment Claim
In his Complaint, Plaintiff asserts that he was harassed due to his disability. Complaint, ¶ 29. No evidence has been presented to support a harassment claim, nor did Plaintiff submit any argument to support this claim in his opposition brief. Accordingly, summary judgment as to the harassment claim will be granted.

C. ADA Claim
Schwan's also argues that it is entitled to summary judgment as to Plaintiffs disability claim under the ADA, because Plaintiff cannot demonstrate the existence of genuine issues of material fact that he is disabled, as defined by the ADA or that he is qualified for the position of route manager with or without reasonable accommodation.
The elements of a prima facie case of disability discrimination are: 1) Plaintiff is disabled as defined by the ADA; 2) he is qualified to perform the essential functions of the job, with or without reasonable accommodation; and 3) he has suffered an adverse employment action due to his disability. Pittari v. American Eagle Airlines, Inc., 468 F.3d 1056, 1061 (8th Cir. 2006).
Schwan's argues that Plaintiff is not disabled as defined by the ADA, which requires a showing of "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (c) being regarded as having such an impairment." Ristrom v. Asbestos Workers Local 34 Joint Apprentice Committee, 370 F.3d 763, 768 (8th Cir. 2004). To prove he is substantially limited in a major life activity, Plaintiff must show that he is unable to perform, or is significantly restricted in performing, an activity that the average person in the general population can perform. Ristrom, 370 F.3d at 769.
A determination of whether a plaintiff is disabled must be made with reference to measures that mitigate an individual's impairment. Sutton v. United Air Lines, Inc., 527 U.S. 471, 475, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). The Court in Sutton noted that if measures to mitigate an impairment were not considered, all diabetics, for example, would be considered disabled, "because if they failed to monitor their blood sugar levels and administer insulin, they would almost certainly be substantially limited in one or more major life activities. A diabetic whose illness does not impair his or her daily activities would therefore be considered disabled simply because he or she has diabetes." Id. at 483, 119 S.Ct. 2139. The Court emphasized that the ADA requires persons to be treated as individuals, not as a member of a group of people with similar impairments. Id. at 483-184, 119 S.Ct. 2139.
Schwan's asserts that Plaintiff is not disabled as there are no genuine issues of material fact that he is substantially limited in a major life activity. At his deposition, Plaintiff testified that his diabetes only limited his ability to drive a commercial vehicle. Plaintiff Dep. 79-81. He testified that he suffered no physical affects from his condition. Id.
Plaintiff argues that his diabetes has substantially limited him in the major life activities of eating and work. In support, Plaintiff cites to medical references defining the effects of diabetes on the body, and how a diabetic must monitor food intake in order to maintain his blood sugars. Plaintiff further argues that eating has been recognized by courts as a major life activity. One case cited, Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir.2001, involved a plaintiff that was a diabetic since birth, and whose diabetes caused other serious ailments, such as high' blood pressure, kidney problems and depression. As a result, the plaintiff had been on disability for a number of years. Id. 245 F.3d at 919, n. 3. Based on this plaintiffs individual medical issues, the court found that the plaintiff was substantially limited in the major life activity of eating. Id. at 923. Specifically, the record contained evidence that even with insulin, the plaintiffs ability "to regulate his blood sugars and metabolize his food is difficult, erratic and substantially limited." Id.
Lawson is clearly distinguishable from the facts of this case. Here, Plaintiff was recently diagnosed with diabetes, and he testified at his deposition that once he was diagnosed, his condition turned around right away and that he was a "perfect diabetic technically". Plaintiff Dep. p. 80. There is no evidence in the record to support a finding that Plaintiffs diabetes has substantially limited him in the major life activity of eating.
Plaintiff further argues that his diabetes has substantially limited his ability to work in a class of jobsnamely commercial truck driving. In determining whether an individual is substantially limited in the major life activity of working, the Court must determine whether the individual is significantly restricted in a "class of jobs or a broad range of jobs, as compared to the average person having comparable training, skills, and abilities." Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944 (8th Cir.1999).
The undisputed evidence demonstrates that Plaintiff only drove a commercial truck for approximately one and one-half years. His previous job experiences include: golf caddie, an assembly line worker, deli worker, trolley operator/warehouse worker, liquor store, warehouse order filler/forklift operator and pipe fabricator/order sorter. Plaintiff Dep. p. 11-17. Within months of his termination, Plaintiff was hired by Excel Energy as a yard equipment operator. Id. p. 63.
Based on this evidence, the Court finds that when properly monitored, the Plaintiff is not substantially limited in the major life activity of working. Plaintiff testified that he is not physically limited by his diabetes when that condition is properly monitored. Id. p. 79-81. Although DOT requirements prohibited him from driving a commercial vehicle without an exemption, there is no evidence that the diabetes itself interfered with his ability to drive. Plaintiff would thus be qualified to work in any of his past positions, including warehouse worker or forklift operator. Under these circumstances, the Court finds that the Plaintiff has not demonstrated that he is substantially limited in performing a class of jobs or broad range of jobs.
Alternatively, Plaintiff argues that he was regarded as disabled. The Supreme Court has determined that a plaintiff can demonstrate that he is regarded as disabled if he can show that:
(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities; or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. In both cases, it is necessary that a covered entity entertain misperceptions about the individualit must believe either that one has a substantially limiting impairment that one does have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.
Sutton, 527 U.S. at 489, 119 S.Ct. 2139.
Schwan's asserts that the Supreme Court's decision in Murphy v. United Parcel Service, Inc., 527 U.S. 516, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999) controls here. In Murphy, the plaintiff worked for UPS as a mechanic. Part of his job duties required that he be DOT certified to drive a commercial vehicle. The plaintiff was terminated from this position when it was determined that the plaintiff did not meet the DOT requirements for driving a commercial vehicle due to his high blood pressure. The Court found that, assuming without deciding that the DOT requirements were valid, the plaintiff had not demonstrated a genuine issue of material fact as to whether he was regarded as disabled. The Court found that the plaintiff had, in fact, been fired because his high blood pressure prevented him from obtaining the proper DOT certification, not because of a mistaken misperception as to his impairment. Id. 527 U.S. at 523-524, 119 S.Ct. 2133. The Court further found that, based on the undisputed evidence that the plaintiff was generally employable as a mechanic, and that he had performed mechanic jobs that did not require DOT certification for over 22 years, together with the fact that the plaintiff secured another position shortly after leaving UPS, the plaintiff had failed to show that he was regarded as unable to perform a class of jobs. Id.
Plaintiff argues that Murphy is distinguishable because the plaintiff in that case was a mechanic by trade, and was thus only disabled from the particular mechanic job that also required DOT certification. In this case, however, Plaintiff cannot use his commercial driving skills in any other commercial driving position.
Plaintiff's argument presumes that the route manager position involved only driving a commercial vehicle and that Plaintiff was a commercial truck driver by trade. Schwan's asserts, and Plaintiff does not dispute, that the route manager position involved selling and delivering frozen food and other products to customers along a specified route. Thus, the route manager is a sales position in addition to a delivery position, and no evidence has been submitted to show that his diabetes prevented him from performing his duties as a salesperson.
Like the plaintiff in Murphy, the evidence in this case shows that the loss of his DOT certification prevented the Plaintiff from performing only a particular job, not a class of jobs or a broad range of jobs. Accordingly, the Court finds that summary judgment in favor of Schwan's on the ADA claim is appropriate.
IT IS HEREBY ORDERED that Defendant Schwan's Home Services, Inc.'s Motion for Summary Judgment [Doc. No. 25] is GRANTED. This matter is hereby dismissed with prejudice. Defendant Schwan's Home Services, Inc.'s Motion to Strike [Doc. No. 42] is DENIED as moot.
LET JUDGMENT BE ENTERED ACCORDINGLY.