Anthony Sansone v. Megan Brennan ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3534 & No. 17-3632
ANTHONY SANSONE,
Plaintiff-Appellee,
v.
MEGAN J. BRENNAN, Postmaster General of the United States,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13-cv-03415 — Milton I. Shadur, Judge,
and Virginia M. Kendall, Judge.
____________________
ARGUED SEPTEMBER 25, 2018 — DECIDED MARCH 6, 2019
____________________
Before KANNE, ROVNER, and BARRETT, Circuit Judges.
BARRETT, Circuit Judge. Tony Sansone, who is confined to
a wheelchair, needs a parking place with room to deploy his
van’s wheelchair ramp. For years, the Postal Service, his
employer, provided him one. But in 2011, it took that spot
away and failed to provide him with a suitable replacement.
Sansone then retired and sued the Service under the
Rehabilitation Act for failing to accommodate his disability.
2 Nos. 17-3534 & 17-3632
A jury returned a verdict in his favor and Sansone recovered
compensatory damages, as well as back and front pay.
The Service asks us to vacate the district court’s judgment
because of two jury instructions: one about an employee’s
obligation to cooperate with his employer in identifying a
reasonable accommodation and the other about how the jury
should evaluate the Service’s expert witness. We hold that the
district court did not err with respect to the former, but its
instruction about the expert was both wrong and prejudicial.
The Service also appeals the district court’s award of back and
front pay, but it forfeited that argument by failing to raise it
below.
I.
Anthony Sansone began his thirty-year career at the Postal
Service in 1981. He was diagnosed with multiple sclerosis in
1991, and, 8 years later, the disease put him in a wheelchair.
The Service gave him a reserved space near the loading docks,
where there was room to deploy his van’s wheelchair ramp.
That arrangement lasted until 2011, when the plant manager,
Ruby Branch, asked Sansone to stop parking there.
Sansone was greatly upset by Branch’s decision. He
viewed it as arbitrary; Branch told him that it was driven by
safety concerns. She offered Sansone two other options: to
park in one of the handicapped spots in front of the building
or her own reserved space in the back of the building. Neither
met his needs. Branch’s reserved space, like most of the
handicapped spots, didn’t provide enough room to deploy
his van’s passenger-side ramp, and the few handicapped
spots that had enough room were usually taken. In addition,
the spots in the back of the building (like Branch’s spot)
Nos. 17-3534 & 17-3632 3
would require him to travel in his wheelchair along a busy
truck route in the dark. So with the permission of his direct
supervisor, Chuck von Rhein, Sansone continued to park in
his usual place while waiting for a solution to the problem.
Two weeks later, Sansone emailed the maintenance
manager, LaShawn Jacobs, for an update on his parking
situation. Jacobs reiterated what Branch had said before: that
Sansone must park in one of the proposed spaces. Sansone
then sought help from Stephen Grieser, chair of the Postal
Service district’s Reasonable Accommodation Committee,
who told Sansone that he would start the process of
identifying a reasonable accommodation for him.
A few days later, Branch noticed Sansone’s van parked
near the loading docks. She told Jacobs to inform Sansone that
he should move it or risk having it towed. When Jacobs
relayed the message, Sansone panicked, started to experience
chest pain, and left work. He worried that if his van had been
towed, he would have been stranded at work because he
needed the van to load his wheelchair. The next day he went
to see a doctor because he was still experiencing panic attacks.
The doctor recommended that he stay home until the
situation was rectified and prescribed medication to help him
deal with the stress.
After another two weeks passed, Grieser sent Sansone a
letter asking him to provide medical information about his
“condition and the specific limitations that it imposes” so that
he could address Sansone’s parking situation. The letter
exacerbated Sansone’s frustration because in his view, it
sought information that the Service already knew—that he
had multiple sclerosis and was confined to a wheelchair.
Sansone did not provide Grieser with the redundant medical
4 Nos. 17-3534 & 17-3632
information. Instead, he asked von Rhein, his supervisor, to
tell Grieser to stop pursuing the parking issue because by that
point, the stress of the situation had rendered Sansone unable
to go back to work at the Service no matter where he parked.
He filed for disability retirement, which the Office of
Personnel Management granted.
Sansone then sued the Service under the Rehabilitation
Act, 29 U.S.C. § 791, et seq., for constructive discharge and
failure to accommodate. The district court granted the
Service’s summary judgment motion on the constructive
discharge claim, but it denied both parties’ motions for
summary judgment on the failure to accommodate claim. The
case proceeded to trial, and Sansone won $300,000 in
compensatory damages.
After the verdict came in, the district court addressed
Sansone’s equitable claim for back and front pay. It awarded
him $828,774—an amount covering the period between the
date of his termination and January 20, 2023, the date on
which he would have retired.
The Service presses three arguments on appeal, one
related to the merits of Sansone’s “failure to accommodate”
claim and the other two related to damages.
II.
To succeed on his failure to accommodate claim under 29
U.S.C. § 794, Sansone had to prove that (1) he was a qualified
individual with a disability, (2) the Service was aware of his
disability, and (3) the Service failed to reasonably
accommodate his disability. King v. City of Madison, 550 F.3d
Nos. 17-3534 & 17-3632 5
598, 600 (7th Cir. 2008). 1 Relevant to—and sometimes
determinative of—the third element is the employer and
employee’s respective cooperation “in an interactive process
to determine a reasonable accommodation.” Baert v. Euclid
Beverage, Ltd., 149 F.3d 626, 633 (7th Cir. 1998). The Service
contends that the district court erroneously instructed the jury
about the consequences of an employee’s failure to cooperate
in this “interactive process.”
Some background on this “interactive process” is
necessary to understand the Service’s objection to the jury
instruction. While the “interactive process” is important, it is
a means for identifying a reasonable accommodation rather
than an end in itself. Sieberns v. Wal-Mart Stores, Inc., 125 F.3d
1019, 1023 (7th Cir. 1997). And because the process is not an
end in itself, an employer cannot be liable solely for refusing
to take part in it. For example, “[f]ailure to engage in this
‘interactive process’ cannot give rise to a claim for relief … if
the employer can show that no reasonable accommodation
was possible.” Hansen v. Henderson, 233 F.3d 521, 523 (7th Cir.
2000). Nor will it give rise to a claim against an employer who
reasonably accommodated the employee. Rehling v. City of
Chicago, 207 F.3d 1009, 1016 (7th Cir. 2000) (“The ADA seeks
to ensure that qualified individuals are accommodated in the
workplace, not to punish employers who, despite their failure
to engage in an interactive process, have made reasonable
accommodations.”). But when a reasonable accommodation
was possible and the employer did not offer it, the third
1
“[T]o determine whether the Rehabilitation Act has been violated in the
employment context, we refer to the provisions and standards of the
[Americans with Disabilities Act].” Jackson v. City of Chicago, 414 F.3d 806,
810–11 (7th Cir. 2005); see 29 U.S.C. § 794(d).
6 Nos. 17-3534 & 17-3632
element of a “failure to accommodate” claim turns on the
“interactive process” requirement. EEOC v. Sears, Roebuck &
Co., 417 F.3d 789, 805 (7th Cir. 2005). In that event,
“responsibility will lie with the party that caused the
breakdown.” Id. at 805. According to the Service, this is where
the district court went awry.
The Service insists that the court erroneously instructed
the jury that it could render a verdict for Sansone even if he
was at fault for the breakdown of the interactive process. Over
the Service’s objection, the court instructed the jury as
follows:
Once an employer is aware of the employee’s
disability and an accommodation has been
requested, the employer must discuss with the
employee whether there is a reasonable
accommodation that will permit him to perform
his job. Both the employer and the employee
must cooperate in the interactive process in
good faith. Neither party can win this case
solely because the other did not cooperate in
that process in the way that the party believed
appropriate, but you may consider whether a
party cooperated in that process when deciding
whether a reasonable accommodation existed.
The Service argues that telling the jury that “neither party can
win this case solely because the other did not cooperate” is
inconsistent with Sears, which says that “when an employer
takes an active, good-faith role in the interactive process, it
will not be liable if the employee refuses to participate or
withholds essential information.” 417 F.3d at 806.
Nos. 17-3534 & 17-3632 7
The Service’s argument distorts the jury instruction by
focusing exclusively on the opening few words of a longer
sentence. Read out of context, the cherry-picked words state
that the jury cannot treat one party’s failure to cooperate as
outcome-determinative. That is inconsistent with Sears. Read
in context, however, they make a different and entirely
uncontroversial point: that the jury cannot evaluate the
sufficiency of one party’s cooperation according to the
expectations of the other. (“Neither party can win solely
because the other did not cooperate in that process in the way
that the party believed appropriate … .” (emphasis added)). In
other words, the Service’s belief that Sansone did not
cooperate did not mean that he did not cooperate—and vice
versa. That is plainly correct.
In sum, the Service would have a point if the court had
told the jury that Sansone could win even if he shut down the
interactive process. Unfortunately for the Service, however,
that is not what the court said.
III.
The Service’s next argument concerns its expert witness,
Dr. Diana Goldstein, who offered an opinion on the cause of
Sansone’s emotional distress, an issue relevant to
compensatory damages. On cross-examination, Sansone’s
lawyer asked Goldstein if she had read the Service’s brief in
support of its summary judgment motion in the course of
preparing her report. She said that she had, and Sansone’s
lawyer pressed: “To get your understanding of the facts you
read the Postal Service’s Statement of Material Facts in
support of its motion for summary judgment, correct?”
Goldstein replied:
8 Nos. 17-3534 & 17-3632
I wouldn’t agree with that statement. I would
say that it helps me understand the story, but I
get my facts about what Mr. Sansone is claiming
in turn—by way of emotional distress and
changes in physical symptoms by meeting with
him, by reviewing objective records, et cetera.
But I do like to have context and so I always
review the records just to get a sense of what the
whole story is.
She added that as part of that context, she had also read
Sansone’s complaint, his answers to interrogatories, and his
deposition. Sansone’s lawyer asked whether she had read the
brief opposing the Service’s motion for summary judgment or
the district court’s decision denying the motion, and
Goldstein said that she had not.
Shortly thereafter, Goldstein responded to a question
about whether she had read the deposition of plant manager
Ruby Branch by explaining that, although she had, she did
not view it “as relevant to [her] role in assessing Mr. Sansone’s
emotional distress claim.” The court interjected: “Wait just a
minute. But you thought that the brief in support of a motion
for summary judgment which was denied, that was relevant
to your opinion?” When Goldstein answered, “I always read
those,” the court interrupted, “I am not asking what you
always do. I am asking, in this case you felt that that is
relevant to your rendition of an opinion, a lawyer’s argument
in connection with this case which was unsuccessful.”
Goldstein replied, “No. I just like to know what is going on
with the case.” The court later admonished counsel that
giving Goldstein the summary judgment motion was a “flat-
out violation of Federal Rule of Evidence 703.”
Nos. 17-3534 & 17-3632 9
The court hammered that position home in its jury
instructions. In evaluating Goldstein’s opinion, it told the
jurors that they should keep in mind that
[S]he had been provided by counsel for the
Postal Service with a copy of the Postal Service’s
argument that had been made earlier in the case
in support of an unsuccessful motion to prevent
the case from going to trial on the premise that
there were no genuine issues of material fact
that called for consideration by a jury. That is a
document that presents the Postal Service’s
version of the facts and of the legal arguments
that they sought to support that motion. It was
inappropriate for that information to be
provided to the opinion witness. And that
inappropriateness was amplified by the failure
of the Postal Service’s counsel to provide her
with the successful argument that had been
made by Sansone’s lawyer in opposition to the
motion and, more importantly, by the failure of
Postal Service’s counsel to provide her with the
Court’s opinion that rejected the motion.
It should be added, though, that Sansone’s
counsel is also at fault. Why? For not having
raised the matter before this Court well in
advance of trial because the teaching of the
Supreme Court is that the trial judge serves as
what they call the gatekeeper in ruling on
whether it is or is not proper for any specific
proposed opinion witness to be allowed to
present his or her testimony to a fact-finding
10 Nos. 17-3534 & 17-3632
jury for its consideration. And that matter came
before you, just as it came before me, solely at
the end of the case.
Now with all of that said, you may consider
what has been set forth in this instruction that I
have composed in explaining the determination
called for in the first paragraph of the
instruction, that is, give the testimony of each of
the witnesses whatever weight you think it
deserves, considering the reasons for the
opinion, the witness’ qualifications and all of
the other evidence in the case.
The Service contends that this instruction erroneously invited
the jury to disregard Goldstein’s opinion.
The Service is right. Contrary to the court’s belief, the
Service did not commit a “flat-out violation of Federal Rule of
Evidence 703” by giving Goldstein its summary judgment
motion. Rule 703 does not govern the information that experts
can have; it governs the information on which they can base
their opinions. It allows experts to rely on inadmissible facts
or data in forming an opinion so long as “experts in the
particular field would reasonably rely on those kinds of facts
or data in forming an opinion on the subject.” FED. R. EVID.
703.
If Goldstein had relied on the summary judgment motion
in forming her opinion, the court would have had to
determine whether experts in her field “reasonably rely” on
summary judgment motions in assessing someone’s
emotional distress—and presumably they don’t. But
Goldstein expressly stated that she did not rely on the
Nos. 17-3534 & 17-3632 11
summary judgment motion in forming her opinion. She read
the summary judgment motion—along with Sansone’s
complaint and answers to interrogatories—solely to get
context about the case. She based her opinion on the facts that
she got from Sansone and his medical records. So long as
those are the kinds of facts and data on which experts in her
field reasonably rely—and presumably they are—her opinion
satisfied Rule 703. Any suggestion that Goldstein was biased
in favor of the Service could be explored on cross—as Sansone
was doing before the court seized sua sponte on the illusory
Rule 703 issue.
The district court thus erred when it told the jury that the
Service had acted inappropriately by giving Goldstein the
summary judgment motion and suggesting that it would
have excluded her testimony had it learned about the issue
earlier. Even so, “a new trial is required only if the flawed
instruction could have confused or misled the jury causing
prejudice to the complaining party.” Doornbos v. City of
Chicago, 868 F.3d 572, 580 (7th Cir. 2017). Sansone says that the
Service was not prejudiced because Goldstein testified that
she didn’t rely on the summary judgment motion, the court
permitted the jury to consider her testimony, and the
instruction emphasized that Sansone was also to blame for
not raising the issue earlier.
None of those things blunted the effect of the district
court’s erroneous instruction, which all but told the jury that
it shouldn’t trust anything that Goldstein had said. This not
only misled the jury but also invaded the jury’s function in
assessing witness credibility. See Stollings v. Ryobi Tech., Inc.,
725 F.3d 753, 765 (7th Cir. 2013) (explaining that although the
district court serves as gatekeeper, “[t]he jury must still be
12 Nos. 17-3534 & 17-3632
allowed to play its essential role as the arbiter of the weight
and credibility of expert testimony”). At the very least, the
instruction left the jury unsure what to make of Goldstein’s
testimony. See Rapold v. Baxter Int’l Inc., 718 F.3d 602, 609 (7th
Cir. 2013) (explaining that a party is prejudiced by jury
instructions when the “jury was likely to be misled or
confused” by them); Miller v. Neathery, 52 F.3d 634, 639 (7th
Cir. 1995) (“Under these circumstances, it would be
imprudent for us to determine that the lack of sufficient
guidance in the instructions did not contribute significantly
to the jury’s conclusion.”).
The prejudice was particularly acute given what had
happened earlier in the trial. See Susan Wakeen Doll Co., Inc. v.
Ashton-Drake Galleries, 272 F.3d 441, 452 (7th Cir. 2001) (“An
erroneous jury instruction could not prejudice [a party] unless
considering the instructions as a whole, along with all of the
evidence and arguments, the jury was misinformed about the
applicable law.”). The court interrupted the cross-
examination of Goldstein to admonish her, expressing
incredulity that she had read the summary judgment motion.
See United States v. El-Bey, 873 F.3d 1015, 1022 (7th Cir. 2017)
(explaining that a trial judge has great influence on the jury
and that any statement made about a witness carries great
weight). The instructions therefore invited the jury to act on
the skepticism that the court had already sowed.
In short, the instruction was erroneous and prejudicial.
But because Goldstein’s testimony went solely to
compensatory damages, we remand for a new trial on that
issue only. See MCI Commc’ns Corp. v. AT&T Co., 708 F.2d
1081, 1166 (7th Cir. 1983).
Nos. 17-3534 & 17-3632 13
IV.
The Service’s final argument is that the court erred by
awarding Sansone equitable relief in the form of back and
front pay for the time after he retired. It contends that
constructive discharge is required for equitable relief; because
Sansone was never actively or constructively discharged, it
says, he does not qualify.
Sansone argues that the Service waived this argument by
failing to raise it below. What he means to say, however, is
that the Service forfeited this argument. See Hamer v.
Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 17 n.1 (2017)
(“The terms waiver and forfeiture—although often used
interchangeably by jurists and litigants—are not
synonymous.”). Waiver is intentionally abandoning a known
right. United States v. Seals, 813 F.3d 1038, 1044–45 (7th Cir.
2016). Forfeiture occurs when a party fails to make an
argument because of accident or neglect. Id. at 1045. That’s
what Sansone says that the Service did here.
The Service insists that it raised this argument—that
Sansone failed to prove actual or constructive discharge and
thus could not receive back or front pay—in its damages brief
to the district court. This is wishful thinking. The damages
brief focused on two things: (1) errors that the court made
based on the evidence at trial and (2) why Sansone’s award
should be offset by his retirement benefits. And the sole legal
citation in the entire brief went to the offset issue. Indeed, only
one sentence in the analysis section of its brief mentioned that
Sansone chose to retire. Read in isolation, that reference might
gesture toward a lack of actual or constructive discharge—but
the rest of that sentence continued the brief’s focus on
offsetting damages with Sansone’s retirement benefits. The
14 Nos. 17-3534 & 17-3632
very best we can say—and it is a stretch—is that the Service
raised the “general issue” in its damages brief. Avoiding
forfeiture requires more. See Domka v. Portage Cty., Wis., 523
F.3d 776, 783 n.11 (7th Cir. 2008) (stating that a party cannot
raise an issue for the first time on appeal when it raised only
the “general issue” below).
***
We VACATE the judgment and REMAND for a new trial
on the damages issue. We AFFIRM it with respect to the
Service’s liability, the award of back and front pay, and the
award of attorneys’ fees and expenses. 2
2
Because we affirm the judgment as to the Service’s liability, Sansone remains
entitled to attorneys’ fees and expenses. See 29 U.S.C. § 794a; 42 U.S.C. § 2000e-
5(k); cf. Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health
and Human Resources, 532 U.S. 598, 603 (2001) (“In designating those parties
eligible for an award of litigation costs, Congress employed the term ‘prevailing
party,’ a legal term of art. Black’s Law Dictionary 1145 (7th ed. 1999) defines
‘prevailing party’ as ‘[a] party in whose favor a judgment is rendered, regardless
of the amount of damages awarded.’” (alteration in original))