Gordon v. E.L. Hamm & Associates, Inc. , 100 F.3d 907 ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 95-3077.
Mervin GORDON, Plaintiff-Appellee,
v.
E.L. HAMM & ASSOCIATES, INC., Defendant-Appellant.
Dec. 4, 1996.
Appeal from the United States District Court for the Middle
District of Florida. (No. 93-1597-Civ-J-10), Wm. Terrell Hodges,
Judge.
Before COX, Circuit Judge, HILL, Senior Circuit Judge, and VINING*,
Senior District Judge.
VINING, Senior District Judge:
I. INTRODUCTION
In this appeal, we review the district court's denial of the
defendant's renewed motion for judgment as a matter of law on the
plaintiff's claim under the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 12101 et seq., on which the jury returned a
verdict for the plaintiff. The district court concluded that
evidence adduced at trial supported the jury's finding that the
plaintiff was a "qualified individual with a disability" under the
ADA. We REVERSE the judgment of the district court and REMAND the
matter to the district court and direct it to enter judgment for
the defendant on the ADA claim.
II. PROCEDURAL AND FACTUAL BACKGROUND
In December 1993, Mervin Gordon filed suit against Hamm &
*
Honorable Robert L. Vining, Jr., Senior U.S. District Judge
for the Northern District of Georgia, sitting by designation.
Associates, Inc. ("Hamm"), alleging that Hamm unlawfully
discriminated against him on the basis of his disability and age,
in violation of the ADA, and the Age Discrimination in Employment
Act ("ADEA"), 29 U.S.C. § 621 et seq.. A jury subsequently rendered
a verdict for Gordon on the ADA claim and for Hamm on the ADEA
claim.
Following the verdict, Hamm filed a renewed motion for
judgment as a matter of law or, alternatively, a motion for a new
trial. The district court denied the motion, and this appeal
followed.
In 1992 Hamm contracted with the United States Navy to perform
on-site maintenance for military housing at an air station in
Jacksonville, Florida. Thereafter, Hamm hired Gordon in January
1993 to work on this project. Gordon's duties included performing
general maintenance work, especially work that focused on air
conditioning, heating, and refrigeration repair. At all times
during his employment with Hamm, Gordon's immediate supervisor was
Ken Van Horn. Van Horn was the work leader at the site and was
responsible for ensuring that all work was completed in a timely
fashion.
In May 1993, Gordon's physician determined that he had a
cancerous growth on his shoulder. An oncologist, Dr. Jadeja,
subsequently confirmed that Gordon had malignant lymphoma. Dr.
Jadeja ordered a bone marrow test to determine how extensive the
cancer was and to assess Gordon's prognosis and possible treatment.
From June 18 until June 28, 1993, Gordon took an extended medical
leave of absence to undergo the bone marrow test. The bone marrow
test revealed that the cancer had not spread anywhere else in
Gordon's body. Dr. Jadeja recommended that Gordon undergo a series
of treatments, consisting of blood tests once a week and
chemotherapy once every three weeks.
On June 25, 1993, Gordon received his first chemotherapy
treatment and continued on his schedule of treatments until
November 1, 1993. According to Dr. Jadeja, Gordon was able to
continue with his normal activities during the treatments. He
noted that Gordon's life activities were limited by the
chemotherapy to the extent that Gordon had to go to the doctor's
office, receive the treatments, and endure the side effects that
often occur in many patients. The side effects that Gordon
experienced included weakness, dizziness, swelling of the ankles
and hands, numbness of the hands, the loss of body hair, and
vomiting.
Gordon was released for work by his doctors on June 28, 1993,
and on that date he appeared at work, prepared to commence his
duties. Hamm, however, did not return Gordon to work at that time.
According to Gordon, Van Horn would not permit him to work and
instructed him to contact Hamm's home office in Virginia Beach,
Virginia. Gordon subsequently attempted to contact Bobby Davis,
Hamm's vice president who oversaw the project in Jacksonville, at
Hamm's home office. On July 7, Gordon was finally able to speak
with Davis about his work situation. Davis instructed Gordon to
report to work on July 8 and further stated that Hamm would
accommodate Gordon to the best of its ability. Davis told Gordon
that if his situation changed or if he had problems at work he
should call him back. During the telephone conversation, Gordon
did not complain about any alleged problems he had been having with
Van Horn.
On July 8, Gordon returned to work, physically capable of
performing his duties as a repairman. The accommodations that
Gordon needed as a result of his cancer included leaving work a
couple of hours early every Friday for blood testing and
chemotherapy. Gordon asserts that upon his return to work on July
8 the terms, conditions, and privileges of his job had changed
substantially. Specifically, he alleges that he was no longer
assigned to heating ventilation and air conditioning work but was
required to perform general maintenance-type work. Gordon also
claims that Van Horn assigned him to more physically taxing work.
In addition, he asserts that he no longer had access to a company
vehicle as he had prior to commencing his period of medical leave.
Moreover, he contends that he was not re-issued a set of keys so
that he could access units at the air station which needed repairs.
On July 16, Gordon and Van Horn had a dispute after Gordon
inadvertently cut a window shade for one of the units at the air
station improperly. A confrontation ensued, and Gordon contends
that Van Horn informed him that he was fired, that he did not want
Gordon at the air station, and that Gordon was attempting to
sabotage his job. Van Horn admits that he was upset and that he
questioned Gordon as to whether he was trying to sabotage Van
Horn's job. Van Horn denies, however, that he fired Gordon.
Instead, he claims that he simply told Gordon to go home.
After the confrontation at the housing unit, Gordon and Van
Horn eventually rode back to Hamm's office together. During the
ride back to the office, the dispute was not discussed. According
to Gordon, when they arrived at the office, Van Horn told him that
when he got his "head screwed on" he could call him about his job.
R5-103-214. Van Horn agrees that he informed Gordon to call him
after both of them had cooled down. Gordon thereafter went into
the office, signed out, and went home. Gordon did not subsequently
talk to Davis or Van Horn about this incident. He did, however,
contact an attorney, who later wrote Hamm, requesting that Gordon
be reinstated. Hamm declined to reinstate Gordon allegedly because
Gordon failed to contact Van Horn or Davis as instructed and
because it had been able to complete the project work in a timely
fashion without adding to the staff.
III. THE ISSUES ON APPEAL AND STANDARD OF REVIEW
Hamm contends that there was insufficient evidence adduced a
trial to support the jury's finding that Gordon had a disability
under the ADA. Specifically, it asserts that Gordon is not a
"qualified individual with a disability" under the ADA, as Gordon
neither had a physical or mental impairment that substantially
limited one or more of his major life activities, nor was he
regarded by Hamm as having such an impairment. Accordingly, Hamm
argues that the district court erred by denying its renewed motion
for judgment as a matter of law on the ADA claim.1
In reviewing a district court's disposition of a renewed
1
Because we conclude that there is insufficient evidence in
the record to support a finding that Gordon is a "qualified
individual with a disability" under the ADA, we need not address
Hamm's other contentions.
motion for judgment as a matter of law, an appellate court employs
the same standard utilized by the district court in determining
whether to grant the motion. Walker v. NationsBank of Florida, 53
F.3d 1548, 1555 (11th Cir.1995). In determining whether to grant
such a motion, a court should consider all of the evidence in the
light most favorable to the nonmoving party and with all reasonable
inferences drawn in favor of such party. Id. at 1555; MacPherson
v. University of Montevallo, 922 F.2d 766, 770 (11th Cir.1991). If
the facts and inferences are so strong that a court opines that
reasonable persons in the exercise of impartial judgment could not
arrive at a contrary verdict, a district court must grant a renewed
motion for judgment as a matter of law. Id. If, however, the
evidence is such that reasonable and fairminded individuals in the
exercise of impartial judgment might reach different conclusions,
a court must deny the motion. Id. Nevertheless, a jury question
does not exist because of the presence of a mere scintilla of
evidence; rather, there must be a conflict in substantial evidence
to create a question for the jury. Walker, 53 F.3d at 1555;
Verbraeken v. Westinghouse Electric Corporation, 881 F.2d 1041,
1045 (11th Cir.1989).
IV. THE LEGAL ANALYSIS
The ADA provides that no covered employer shall discriminate
against "a qualified individual with a disability because of the
disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions,
and privileges of employment." 42 U.S.C. § 12112(a). In the ADA,
Congress has imposed upon employers the duty to provide reasonable
accommodations for known disabilities unless doing so would result
in an undue hardship to the employer. 42 U.S.C. § 12112(b)(5)(A).
In order to establish a prima facie case of discrimination under
the ADA, a plaintiff must demonstrate that (1) he has a disability;
(2) he is a qualified individual; and (3) he was subjected to
unlawful discrimination as the result of his disability. Pritchard
v. Southern Company Services, 92 F.3d 1130, 1132 (11th Cir.1996);
Morisky v. Broward County, 80 F.3d 445, 447 (11th Cir.1996). In
addition, a plaintiff must demonstrate that the employer had either
actual or constructive knowledge of the disability or considered
the employee to be disabled. Morisky, 80 F.3d at 448; see also
Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928 (7th
Cir.1995).
A "qualified individual with a disability" is an "individual
with a disability who, with or without reasonable accommodation,
can perform the essential functions of the employment position that
such individual holds or desires." 42 U.S.C. § 12111(8). In the
ADA, Congress has defined "disability" as a(1) physical or mental
impairment that substantially limits one or more of the major life
activities of an individual; (2) a record of such impairment; or
(3) being regarded as having such impairment. 42 U.S.C. §
12102(2). An individual is deemed to be "disabled" for purposes of
the ADA if he satisfies any one of these three enumerated
definitions. A physical impairment, standing alone, however, is
not necessarily a disability as contemplated by the ADA.2
Pritchard, 92 F.3d at 1132; Ellison v. Software Spectrum, Inc., 85
F.3d 187, 191 (5th Cir.1996). The ADA requires that the impairment
substantially limit one or more of the individual's major life
activities. Id.; see also Dutcher v. Ingalls Shipbuilding, 53
F.3d 723, 725-26 (5th Cir.1995)
A. Physical Or Mental Impairment That Substantially Limits One Or
More Major Life Activities
Hamm argues that the evidence produced at trial failed to
establish that Gordon had a physical or mental impairment that
substantially limited one or more of his major life activities.
Gordon counters, asserting that the evidence adduced at trial was
more than sufficient to demonstrate that he had such an impairment.
He contends that the evidence established that the side effects
that he suffered as the result of his chemotherapy treatments
qualified as "physical impairments" under the ADA and that these
impairments substantially limited his major life activities of
caring for himself and working.
2
The EEOC defines a physical or mental impairment as
follows:
(1) Any physiological disorder, or condition, cosmetic
disfigurement, or anatomical loss affecting one or
more of the following body systems: neurological,
musculoskeletal, special sense organs, respiratory
(including speech organs), cardiovascular,
reproductive, digestive, genito-urinary, hemic and
lymphatic, skin, and endocrine; or
(2) Any mental or psychological disorder, such as
mental retardation, organic brain syndrome,
emotional or mental illness, and specific learning
disabilities.
29 C.F.R. § 1630.2(h)(1)(2).
While the ADA defines neither "major life activities" nor
"substantially limits," courts may rely upon the regulations
promulgated by the Equal Employment Opportunity Commission ("EEOC")
for guidance. See 42 U.S.C. § 12116 (requiring the EEOC to issue
regulations to implement Title I of the ADA); Dutcher, 53 F.3d at
726. The ADA regulations adopt the definition of "major life
activities" found in the Rehabilitation Act regulations. See 34
C.F.R. § 104. This term is defined as "functions such as caring
for oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working." 29 C.F.R. §
1630.2(i). In this regard, the EEOC has provided that courts should
consider the following three factors when determining whether an
impairment substantially limits a major life activity: (1) the
nature and severity of the impairment; (2) the duration or
expected duration of the impairment; and (3) the permanent or long
term impact, or the expected permanent or long term impact of or
resulting from the impairment. 29 C.F.R. § 1630.2(j)(2); Dutcher,
53 F.3d at 726; Bolton v. Scrivner, Inc., 36 F.3d 939 (10th
Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1104, 130 L.Ed.2d
1071 (1995).
Further, courts may consider three additional factors when an
individual claims a substantial limitation in the major life
activity of work. They include: (1) the geographical area to
which the individual has reasonable access; (2) the job from which
the individual has been disqualified because of an impairment, and
the number and types of jobs utilizing similar training, knowledge,
skills, or abilities, within that geographical area, from which the
individual is also disqualified because of the impairment; and (3)
the job from which the individual has been disqualified because of
an impairment, and the number and types of other jobs not utilizing
similar training, knowledge, skills, or abilities, within that
geographical region, from which the individual is also disqualified
because of the impairment. 29 C.F.R. § 1630.2(j)(3)(ii); Ellison,
85 F.3d at 190. To demonstrate that an impairment "substantially
limits" the major life activity of working, an individual must show
"significant[ ] restrict[ions] in the ability to perform either a
class of jobs or a broad range of jobs in various classes as
compared to the average person having comparable training, skills,
and abilities." 29 C.F.R. § 1630.2(j)(3)(i); Pritchard, 92 F.3d
at 1133. The regulations specify that the "inability to perform a
single, particular job does not constitute a substantial limitation
in the major life activity of working." Id.
Based upon the evidence in the record, we find that reasonable
persons in the exercise of impartial judgment could not conclude
that Gordon had a physical or mental impairment that substantially
limited his ability to care for himself or to work. While the side
effects that Gordon suffered as a consequence of his chemotherapy
treatments may qualify as "physical impairments" under the ADA, we
hold that such impairments did not substantially limit his ability
to care for himself or to work.
The evidence demonstrates that except for a couple of days of
medical testing and a leave of absence from June 18 until June 28,
in which Gordon underwent the bone marrow biopsy, Gordon was fully
capable of working. Gordon received a total of seven chemotherapy
treatments between June 25 and November 1. R2-48-22, 23. The
treatments were performed on an outpatient basis, and Gordon was
not hospitalized at any time during his treatment. R2-48-23, 24.
Gordon stated that the side effects from the chemotherapy
treatments lasted for approximately three days following a
particular treatment session and that he handled them "fairly
well." R5-80, 81. Moreover, Gordon's oncologist, Dr. Jadeja,
specifically stated that Gordon was not disabled by the cancer and
that he could continue to work. R2-48-16. In fact, Gordon himself
conceded that he was fully capable of working. R5-88. Dr. Jadeja
stated that from the date of Gordon's initial diagnosis with
cancer, he was able to continue with his normal life activities,
despite mild nausea that followed his chemotherapy treatments. R2-
48-30. While Gordon did experience side effects from the
chemotherapy treatments that he received every three weeks on
friday afternoons, Dr. Jadeja observed that Gordon tolerated the
treatments "quite well." R2-48-11, 24.
In light of this evidence, we find that the extent, duration,
and impact of Gordon's chemotherapy treatment side effects on his
ability to care for himself and to work reveal that these side
effects did not substantially limit his ability to care for himself
or to work. We, therefore, conclude that no conflict of
substantial evidence exists as to whether Gordon's impairment
substantially limited his ability to care for himself or to work.
Consequently, we hold that while Gordon may have had a "physical
impairment" as it is defined in the ADA, this impairment did not
substantially limit his ability to care for himself or to work.
B. Regarded As Having An Impairment
Hamm also contends that Gordon failed to produce sufficient
evidence to support the jury's finding that Hamm regarded him as
being impaired. Gordon denies Hamm's contention and asserts that
the evidence demonstrated that Hamm treated him differently
following his return to work and that such treatment was due to his
cancer. Specifically, he asserts that when he returned to work on
July 8, he had been replaced by another worker, he was no longer
assigned to air conditioning and heat ventilation repair work, he
no longer had access to a company vehicle, and he was not re-issued
a set of keys so that he could access various buildings at the
project site. Accordingly, Gordon argues that sufficient evidence
exists to support the jury's finding that Hamm regarded him as
having a disability under the ADA.
The EEOC regulations define one who is "regarded as having
such an impairment" as an individual who (1) has a physical or
mental impairment that does not substantially limit major life
activities but is treated by her employer as constituting such
limitation; (2) has a physical or mental impairment that
substantially limits major life activities only as a result of the
attitudes of others toward such impairment; or (3) has no illness
or malady defined by the EEOC as a physical or mental impairment
but is treated by her employer as having a substantially limiting
impairment. 29 C.F.R. § 1630.2(l); Ellison, 85 F.3d at 192. As
with real impairments, courts have held that a perceived impairment
must be substantially limiting and significant. Ellison, 85 F.3d
at 192; Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir.1995);
Byrne v. Board of Education, 979 F.2d 560, 564 (7th Cir.1992).3 In
this context, then, a significant impairment is one that is viewed
by the employer as generally foreclosing the type of employment
involved, not just a narrow range of job tasks. See C.F.R. §
1630.2(j)(3); Ellison, 85 F.3d at 192.
Moreover, courts have observed that the focus of these ADA
provisions and regulations is on the impairment's effect upon the
attitude of others. Wooten, 58 F.3d at 385; Byrne, 979 F.2d at
566. These provisions and regulations are intended to combat the
effects of archaic attitudes, erroneous perceptions, and myths that
have the effect of disadvantaging persons with, or regarded as
having, disabilities. Wooten, 58 F.3d at 385 (citing School Board
of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94
L.Ed.2d 307 (1987)). Consistent with this purpose of the subject
provisions, Judge Posner has observed:
[A]lthough at first glance peculiar, [this provision] actually
makes a better fit with the elaborate preamble to the Act, in
which people who have physical or mental impairments are
compared to victims of racial and other invidious
discrimination. Many such impairments are not in fact
disabling but are believed to be so, and the people having
them may be denied employment or otherwise shunned as a
consequence. Such people, objectively capable of performing
as well as the unimpaired, are analogous to capable workers
discriminated against because of their skin color or some
other vocationally irrelevant characteristic.
Vande Zande v. State of Wisconsin Department of Administration, 44
F.3d 538, 541 (7th Cir.1995).
3
Although Byrne concerns a claim under the Rehabilitation
Act of 1973, 29 U.S.C. § 701, et seq., prior interpretations and
constructions of the Rehabilitation Act are generally applicable
in construing provisions of the ADA. See Pritchard, 92 F.3d at
1134; Wooten, 58 F.3d at 385 n. 2; Dutcher, 53 F.3d at 727 n.
14.
In reviewing the evidence in the record in the light most
favorable to Gordon, we conclude that such evidence is insufficient
to support a finding that Hamm regarded Gordon as having a physical
or mental impairment that substantially limited his ability to care
for himself or to work. Following his diagnosis with cancer,
Gordon continued to perform the same or similar work that he had
previously performed for Hamm at the Jacksonville project site.
The evidence does show that during Gordon's absence from work Steve
Shinn, another of Hamm's employees, performed much of the air
conditioning repair work at the air station that Gordon customarily
would have performed had he not been on medical leave. However,
because Gordon's absence occurred during a busy season for air
conditioning repair work and because Gordon's absence resulted in
Hamm's losing a significant part of its workforce, we conclude that
it was reasonable for Hamm to assign such tasks to Shinn during
Gordon's absence. We find that it was entirely reasonable, if not
necessary, for Hamm to make these types of adjustments in the work
assignments, as work orders continued to come in and deadlines had
to be met. Gordon was absent for several days during a critical
time period, and Hamm, thus, had to assign some of the work
normally performed by Gordon to another employee. Hamm's
adjustments in no way support a finding that it regarded Gordon as
having a physical impairment that substantially limited his ability
to care for himself or to work.
Consistent with Hamm's adjustments to the work assignments
during Gordon's absence, Hamm was unable to permit Gordon to engage
exclusively in air conditioning and heat ventilation repair work
upon his return to work on July 8. In fact, the evidence shows that
Gordon had performed these types of general maintenance repair
projects prior to his diagnosis with cancer in May 1993. He never
worked exclusively in the area of air conditioning and heat
ventilation repair. The evidence demonstrates that Shinn continued
to perform a great deal of this type of work after Gordon returned
to work on July 8. However, we find this to be reasonable, as Shinn
was still in the process of completing work projects previously
assigned to him during Gordon's absence. Upon his return on July
8, Gordon was assigned that work which was then available, some of
which was general maintenance-type work as opposed to specialized
air conditioning and heat ventilation repair work. We conclude
that these assignments in no way support a finding that Hamm
regarded Gordon as having a physical impairment under the ADA which
substantially limited his ability to care for himself or to work.
We find that these assignments during the brief period from July 8
until July 16 merely reflected the types of work which Hamm then
had pending for completion.
Gordon also argues that because the evidence demonstrates that
he did not have access to a company vehicle and because Hamm did
not re-issue him a set of keys after he returned to work on July 8,
there is sufficient evidence in the record to support the jury's
finding that Hamm regarded him as having an impairment under the
ADA which substantially limited his ability to care for himself and
to work. We find this argument to be without merit. The evidence
reflects that Gordon continued to have access to a company vehicle
and a set of keys at all times before and after his diagnosis with
cancer, except for the period extending from July 8 until July 16.
From July 8 until July 16, the evidence does demonstrate that a
company vehicle was not available for Gordon's use. Again,
however, this fact does not support a finding that Hamm regarded
Gordon as having a physical impairment that substantially limited
his ability to care for himself or to work. Rather, the evidence
shows that there were more employees than company vehicles. In
addition, the evidence also demonstrates that Shinn and others
already assigned to other jobs, including emergency duty, which
required after-hour and weekend work, had access to these company
vehicles because they had been previously assigned to the types of
projects that required prompt and immediate attention.
As for the keys, the evidence in the record demonstrates that
Gordon did have a set of keys prior to his taking medical leave.
He used these keys to access various buildings and sheds at the air
station. Gordon turned in these keys when he commenced his term of
medical leave, and Shinn thereafter began using them during
Gordon's absence. Because Van Horn failed to have a duplicate set
of keys made and because Shinn needed these keys to complete the
work projects that he had begun during Gordon's absence and to have
emergency access to various buildings at the air station at night
and on the weekends, Gordon did not have his own set of keys from
July 8 until July 16. We hold once again, however, that this fact
does not support a finding that Hamm regarded Gordon as having a
physical impairment that substantially limited his ability to care
for himself or to work. Van Horn simply failed to have an
additional set of keys made once Gordon returned to work on July 8.
Our conclusion that Hamm did not regard Gordon as having an
impairment that substantially limited his ability to care for
himself or to work is further buttressed by the undisputed fact
that Gordon never indicated to anyone at Hamm, before or after his
diagnosis with cancer on May 27, 1993, that he was unable to
perform the work assigned to him or that he was unable to care for
himself. Although Bobby Davis had previously instructed Gordon to
contact him if had any problems when he returned to work on July 8,
Gordon never attempted to personally contact Mr. Davis about all of
the alleged employment problems he had with Van Horn from July 8
until July 16. The record is totally devoid of any evidence which
demonstrates that Gordon ever talked to anyone at Hamm about any
difficulties he was having in completing any assigned tasks.
Moreover, the undisputed evidence shows that after Gordon was
diagnosed with cancer Hamm continued to provide Gordon with the
same compensation and identical benefits as it had prior to his
diagnosis with the disease. We, therefore, find that the evidence
adduced at trial does not support the jury's finding that Hamm
regarded Gordon has having a physical impairment which
substantially limited his ability to care for himself or to work.
V. CONCLUSION
Because we find that there was insufficient evidence adduced
at trial to support the jury's finding that Gordon had a physical
or mental impairment that substantially limited one or more of his
major life activities or that he was regarded by Hamm as having
such an impairment, we conclude that the district court erred in
denying Hamm's renewed motion for judgment as a matter of law on
the ADA claim. We hold that Gordon did not have a disability under
the ADA. Accordingly, he is not entitled to the Act's protections.
The judgment of the district court is, therefore, REVERSED,
and the matter is REMANDED to the district court so that it may
enter judgment for Hamm on the ADA claim.