IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30528
Summary Calendar
ROBERT P. THOMPSON,
Plaintiff-Appellant,
versus
CADDO PARISH COMMISSION; ET AL,
Defendants,
PARISH OF CADDO,
Defendant-Appellee.
___________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 97-CV-0467
___________________
December 17, 1998
Before JOLLY, SMITH, and Wiener, Circuit Judges.
PER CURIAM:*
In this employment discrimination case grounded in an alleged
violation of the Americans With Disabilities Act (“ADA”),1
Plaintiff-Appellant Robert P. Thompson asks us to reverse the
judgment of the district court, rendered on the basis of the
unanimous jury verdict against Thompson, in favor of Defendant-
*
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that this opinion should not be published and is not precedent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.
1
42 U.S.C. § 12101 et seq.
Appellee the Parish of Caddo (“Caddo Parish”). In his appellate
brief, Thompson concedes that, of the three employment
discrimination claims he asserted in the district court, only one
—— failure of Caddo Parish to make a reasonable accommodation for
his disability —— has any viability on appeal. He further
acknowledges that even as to this one remaining claim, his burden
is a heavy one: He must obtain reversal of the adverse judgment by
convincing us either that (1) no reasonable jury could have reached
this verdict on the basis of the record evidence; or (2) the
district court abused its discretion in admitting certain evidence
and that so doing constituted reversible error. Our review of the
record on appeal, including the entire transcript, the briefs of
the parties, and the applicable law, satisfies us that Thompson
cannot bear his burden on either score, so we affirm.
I.
FACTS AND PROCEEDINGS
Thompson is a wheelchair-bound polio victim who worked for
Caddo Parish for approximately 17 years. Immediately prior to
assuming the post he was filling when his employment terminated,
Thompson was a dispatcher in the Caddo Parish Highway Department,
a position he had held and performed with distinction for years.
As a result of an extensive reorganization by Caddo Parish,
Thompson’s Highway Department dispatcher’s position and five other
similar positions were eliminated. Thompson was neither laid off
nor demoted, however; rather, he was reassigned to Caddo Parish’s
2
Animal and Mosquito Control Department —— as a dispatcher, and at
no reduction in or loss of pay or benefits.
The evidence is undisputed that, at his new job location,
Thompson was required to use a time clock located in the kennel
area of the facility; that animals —— at least dogs, including
Rottweilers —— were allowed to roam the kennel area unleashed;
that, after Thompson had worked in his new position for less than
three weeks, an incident is alleged to have occurred in which an
unleashed and unsupervised Rottweiler attempted to attack Thompson;
and that he was barely able to avoid actual contact by wheeling his
chair through a door to safety in the nick of time. Thompson
immediately called for and received a conference with his
supervisor and the Human Resources (“HR”) director of the Parish
the next day.
Viewing the evidence and its reasonable inferences in the
light most favorable to the jury verdict, as we must, the record
supports factual findings that Thompson requested an accommodation,
specifically, a return to his old job (which no longer existed);
that his supervisor and the HR director countered by proposing an
accommodation comprising use of a different time clock and location
of his workstation in an area of the building —— remote from the
kennel area —— where unleashed animals would not be present; that
Thompson rejected the proposed accommodations out of hand,
insisting on a transfer from the Animal and Mosquito Control
Department; and that he requested and was granted 10 days annual
leave, at the end of which he refused to return to work at the
3
Animal and Mosquito Department under any circumstance, declined a
less favorable job elsewhere, and tendered his resignation.
Thompson filed a complaint with the Equal Opportunity
Employment Commission (“EEOC”), received a right-to-sue letter, and
thereafter filed the instant lawsuit. During the course of the
ensuing jury trial Thompson objected to, inter alia, admission of
testimony by his supervisor and the Caddo Parish HR director to the
effect that, if Thompson had not resigned precipitously but instead
had allowed Caddo Parish time to do so, it would have made an
adequate accommodation to his disability. The record contains
conflicting testimony regarding compliance by Caddo Parish with
various notification and posting requirements of the ADA. The jury
trial ended in an unanimous verdict against Thompson, from which he
timely appealed.
II.
ANALYSIS
A. Standard of Review
As acknowledged by Thompson, our standard of review of the
sufficiency of the evidence to support a jury verdict is quite
deferential: “Unless the evidence is of such quality and weight
that reasonable and impartial jurors could not arrive at such a
verdict, the findings of the jury must be upheld.”2 Again, we
review the evidence in the light most favorable to the jury verdict
and uphold that verdict unless “there is no legally sufficient
2
Ham Marine, Inc. v. Dresser Ind., 72 F.3d 454, 459 (5th
Cir. 1995).
4
evidentiary basis for a reasonable jury to find” as the jury did.3
“Appellate review of evidentiary rulings is confined to determining
whether the trial judge abused his discretion.”4
B. Sufficiency of the Evidence to Support the Jury Verdict.
The parties stipulated that Thompson is a “Qualified
Individual with a Disability” for purposes of the ADA,5 and that
Caddo Parish is a “covered entity” and “employer” under that act.
Although there is some quibbling in the appellate briefs as to
whether Thompson requested an accommodation, we assume for purposes
of this analysis that he did, albeit the accommodation he requested
appears to have been limited to reassignment to his old job or at
least to a dispatcher’s position or equivalent somewhere other than
in the Animal and Mosquito Control Department. There is no
evidence that Thompson was phobic or otherwise overly concerned
about animals prior to the Rottweiler incident; neither is the
disability he proffers a new “canine phobia.” Rather, Thompson
contends that his polio/wheelchair disability makes him more
vulnerable than nondisabled employees to animal attack.
The record contains testimony by Thompson’s supervisor and the
HR director of Caddo Parish that they met with Thompson the day
following the alleged dog attack, that they promised accommodations
would be made, including use of a time clock by Thompson at a
3
Hiltgen v. Sumrall, 47 F.3d 695, 700 (5th Cir. 1995)
(citing Fed. R. Civ. P. 50(a)(1)).
4
Smith v. A.C.& S, Inc., 843 F.2d 854, 857 (5th Cir. 1988).
5
42 U.S.C. § 12111(8).
5
different “dog free” location coupled with assurance that dogs
would be required to be leashed at all times throughout the
building, and that Caddo Parish would promptly take any other steps
reasonably necessary to ensure Thompson’s safety on the job. There
is no record evidence that Thompson advanced any ADA-related
complaints about his new workplace prior to the alleged Rottweiler
incident or that his complaints at the meeting the day thereafter
implicated any other ADA deficiencies in the physical
characteristics of his new workplace; only that he doggedly
insisted on a transfer out of the Animal and Mosquito Control
Department. The record also confirms that Thompson rejected the
proffered accommodations out of hand and, after taking 10 days
annual leave, submitted his written resignation.6
Keeping in mind that, on appeal, conflicts in testimony (and
there are many in the instant record) must be resolved in favor of
the jury verdict, our review of the record as a whole convinces us
that, given the deference owed to the jury as fact-finder, coupled
with the reasonable inferences and the credibility calls that go
with the job, a reasonable jury could have reached the verdict that
this one reached on the basis of such evidence and inferences. This
applies to Caddo Parish’s proffering a reasonable accommodation for
Thompson’s disability as well as complying with various notice and
6
The record also reflects that, as an alternative to the
animal prevention accommodations proposed by Caddo Parish, Thompson
was offered a lesser job at lesser pay; however, that alternative
clearly would not have constituted an adequate accommodation for
ADA purposes had it been the only accommodation offered.
6
posting requirements of the ADA —— another contested issue of fact
on which the jury could have gone either way.
Likewise, the state of the record is such that the jury could
reasonably have concluded that Caddo Parish took no adverse
employment action against Thompson —— actual or constructive ——
much less one based solely on his disability. Caddo Parish was not
required to assign him to a position that was already occupied;7
neither was it required to create a new position to accommodate
Thompson. The fact that Thompson did not like his new work
assignment does not make it an adverse employment decision.8 We
conclude that, when properly viewed for purposes of appeal, the
evidence as a whole is sufficient to support the jury verdict.
C. Evidentiary Rulings
The district court’s decision to admit, over Thompson’s
objection, the testimony of his supervisor and the HR director of
Caddo Parish to the effect that, had Thompson given them a chance,
they would have taken action constituting a reasonable
accommodation for purposes of the ADA, does not rise to the level
of abuse of discretion.9 Moreover, even if we were to conclude
that the district court abused its discretion in admitting this
testimony, doing so would not have constituted reversible error.
7
See Still v. Freeport-McMoRan, Inc., 120 F.3d 50 (5th Cir.
1997).
8
Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539,
555 (5th Cir. 1997).
9
See, e.g., Robinson v. Bump, 894 F.2d 758, 762-63, reh.
den., 899 F.2d 11 (5th Cir. 1990); Soden v. Freightliner Corp., 714
F.2d 498 (5th Cir. 1983).
7
First, the testimony regarding the accommodations offered at the
meeting on the day following the dog attack is sufficient to
support a jury conclusion that Caddo Parish had in fact proposed a
reasonable accommodation, so that whatever else the Parish might
have done subsequently if given an opportunity is surplusage.
Second, the other record evidence obviously credited by the jury is
more than sufficient to support its findings, even absent the
complained-of testimony. We do not view that testimony as being so
prejudicial as to have rendered the jury trial unfair or the
verdict unreliable.
III.
CONCLUSION
The law does not require perfection in a jury trial; indeed,
few if any could ever earn that grade. Here, however, the record
confirms that the instant jury trial was conducted free of
reversible error and that the stipulated or undisputed evidence, in
combination with disputed evidence credited by the jury, is more
than sufficient to sustain its verdict. For the foregoing reasons,
the judgment of the district court, grounded in the unanimous
verdict of the jury, is, in all respects,
AFFIRMED.
8