F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 7, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
BEVERLY KELLY,
Plaintiff-Appellee,
v. No. 04-1051
METALLICS WEST, INC.,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 01-M-1463 (MJW))
Submitted on the briefs: *
Keith Cross an Joseph Bennett, Cross & Bennett, LLC, Colorado Springs,
Colorado, for Defendant-Appellant.
Douglas R. Ware and R. Neal Mynatt, Ware & Mynatt, L.L.C., Durango,
Colorado, for Plaintiff-Appellee.
Before LUCERO, McKAY, and ANDERSON, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(s); 10th Cir. R. 34.1(G). The cause is
therefore ordered submitted without oral argument.
LUCERO, Circuit Judge.
Plaintiff-appellee Beverly Kelly sued her former employer defendant-
appellant Metallics West, Inc. (Metallics West), alleging unlawful discrimination
and retaliation under the Americans With Disabilities Act of 1990, 42 U.S.C.
§§ 12101-12213 (ADA). The case was tried to a jury, which entered a verdict for
Kelly, finding that Metallics West had violated the ADA by refusing to permit
Kelly to return to work with supplemental oxygen, and by terminating her
employment in retaliation for requesting the accommodation of returning to work
with supplemental oxygen. The jury awarded compensatory damages of $50,000
to Kelly. Metallics West argues that the judgment against it must be reversed for
two reasons: (1) the ADA did not require it to provide Kelly, an employee
“regarded as disabled” but not actually disabled, with reasonable accommodation;
and (2) the ADA did not provide Kelly with a remedy of compensatory damages
for a retaliation claim. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, and
basing our holding on the plain language of the ADA, we AFFIRM .
I
“When reviewing a jury verdict, we review the record in favor of the
prevailing party, and give that party the benefit of all reasonable inferences to be
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drawn from the evidence.” Miller v. Eby Realty Group LLC , 396 F.3d 1105, 1108
(10th Cir. 2005) (quotation omitted). Viewed in accordance with this standard,
the record reflects the following facts.
Kelly began working for Metallics West in April 1996 as a receptionist. In
August 1999, she was promoted to customer service supervisor. A key function
of this position was inputting incoming orders. In mid-May 2000, while still
engaged in the customer service supervisor position with Metallics West, she was
hospitalized due to a blood clot or pulmonary embolism in her lung. 2
She was
discharged from the hospital on May 22 of that year, and returned home on
supplemental oxygen.
Her physician cleared Kelly to return to work on May 30. Kelly attempted
to return to work on May 30 without supplemental oxygen. The attempt did not
go well. She felt short of breath, light-headed, and had a headache. On June 1,
she returned to her doctor, who wrote her a note stating “Patient needs to use 0 2 at
work.” Aplt. App., Vol. III at 875. 3
2
In its statement of facts, Metallics West contends that “during the course of
her employment Kelly had been absent an excessive amount due to illnesses.”
Aplt. Opening Br. at 5. Not only was this interpretation of her personnel records
contested at trial, it is irrelevant to the issues on appeal.
3
A photocopy of this note, like many others inscribed on prescription pads
and entered into the record in this case, is covered by patterned markings that
read “VOID.” Metallics West notes this fact in its brief. Aplt. Opening Br. at 7.
The most reasonable inference to be drawn from the markings, however, is not
(continued...)
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Kelly testified that she provided the note from her doctor to someone at
Metallics West; she did not remember whom. She did recall contacting Michael
Mola, Chairman of the Board of Metallics West, and telling him that she needed
to use oxygen to return to work. She testified that he told her, “No, there will be
no oxygen on the premises.” Id. , Vol. II at 360. He encouraged her to file for
short-term disability instead. Kelly stated that she attempted to describe the
supplemental oxygen device to Mr. Mola, telling him it was only a small device
she could keep beside her desk, but he stated “I don’t want to hear about it.
You’re not bringing that in here.” Id. at 452.
Kelly applied for and received short-term disability benefits from June 2 to
June 19, 2000. Although a CAT scan on June 12 revealed that the embolism had
resolved, Kelly continued to experience shortness of breath. On June 13, her
doctor released her to return to work without oxygen. Her doctor testified that
she gave Kelly this release on a trial basis because Metallics West had told her
she could not return to work with oxygen. In order to build up her air capacity
before attempting to work again, Kelly did not return to her employment until
June 19.
3
(...continued)
that the physician intended to “void” the requirement of oxygen, but that the
markings represent a security feature, designed to prevent patients from
photocopying prescriptions and obtaining drugs that have not been prescribed.
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Kelly worked at Metallics West without oxygen from June 19 until June 26.
During this time period, she began suffering from headaches and lightheadedness.
On June 26, she returned to her doctor to have her oxygen level checked, and
learned that it was low. Her doctor provided her with a release on that date
stating, “May return to work with oxygen.” Id. , Vol. III at 882. This release was
not provided to Metallics West until Kelly’s attorney contacted Metallics West a
month later.
There is no dispute that with supplemental oxygen, Kelly was capable of
performing the essential functions of her job. On June 27, Kelly telephoned
Mr. Mola and told him that her doctor required her to have supplemental oxygen
if she was to return to work. Mr. Mola again refused to allow her to use oxygen
at work. He stated that he did not want the responsibility because she might “fall
over dead.” Id. , Vol. II at 377. He told her to go back on disability, and stated
“I’m going to have a meeting of management and you will be hearing from us.”
Id. at 379.
On the same day, Mr. Mola wrote Kelly a letter which she interpreted as a
termination of her employment, stating:
Relative to our conversation of this morning concerning your
absen[ce]. It appears that your health situation the past few months
has not improved. You have lost considerable time and your words
to me this morning is that you and your doctor have not found the
answer and you would either report to work with an oxygen bottle or
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lose more time. Either condition does not make for a stable
employee.
Based on this information, management in a meeting this morning,
voted to hire a new replacement for your job. This job of order entry
is so critical that we cannot do without a full time person. You will
need to contact Ann or Shawn to arrange your Cobra Insurance
payments.
Bev, you have been an exceptional employee these past years and
your professionalism and genial manner endeared you to all of us.
You are a very special person. If and when your health improves we
will try to work with your doctors and you for a safe return to us. As
I indicated we’d try to find another job within our organization that
fits your talent and drive.
We are all praying for your swift and complete recovery.
Id. , Vol. III at 883.
On July 1, 2000, Metallics West placed a classified advertisement seeking a
“data entry person for order input, also able to handle multi-line phones.” Id. at
884. This position was filled at the end of July 2000. Kelly again applied for and
received short-term disability benefits, which expired on August 28, 2000. She
did not return to work at Metallics West. This action followed.
II
Kelly brought claims against Metallics West for both discrimination and
retaliation under the ADA. After Metallics West moved for summary judgment
on Kelly’s claims, the district court ruled that her need for oxygen did not
constitute a disabling impairment because it was temporary and could be
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alleviated by the use of portable oxygen. 4
The district court permitted the
discrimination claim to go forward, but did so, however, on a theory that
Metallics West had regarded Kelly as disabled and had terminated her
employment because of the perceived disability. (It also denied summary
judgment to Metallics West on the retaliation claim.)
At trial, Metallics West moved for judgment as a matter of law pursuant to
Fed. R. Civ. P. 50(a), arguing that an employee merely perceived by her employer
as disabled is not entitled to receive a reasonable accommodation pursuant to the
ADA. The district court denied the motion. Metallics West also objected to the
district court’s instructions on reasonable accommodation, and tendered a
complex special verdict form that would have required the jury, among other
things, to specify whether Metallics West regarded Kelly as disabled because she
had requested a reasonable accommodation. See id. , Vol. III at 1064-65. The
district court denied the objection to the instruction and rejected the special
verdict form.
The jury then returned a verdict that read as follows:
4
Kelly’s doctor testified that so long as she used supplemental oxygen, she
was able to “do all of life’s major activities.” Aplt. App., Vol. II at 510. Since
corrective measures mitigated the limitation that her condition imposed in
performing major life activities, she was not actually disabled. See Sutton v.
United Air Lines, Inc., 527 U.S. 471, 488-89 (1999).
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1. Did the defendant violate the [ADA] by refusing to permit the plaintiff
to return to work with supplemental oxygen?
yes
2. Did the defendant violate the [ADA] by terminating the plaintiff’s
employment in retaliation for her asking for the accommodation of returning to
work with supplemental oxygen?
yes
If the answer to either or both of these questions is “yes,” then state the
amount of compensatory damages, if any, caused by the defendant’s conduct?
$50,000.00
Id. , Vol. I at 147.
III
We review the denial of a motion for JMOL de novo, using the same
legal standard as the district court. JMOL is only proper when the
evidence and all inferences to be drawn therefrom are so clear that
reasonable minds could not differ on the conclusion. In conducting
our review, we consider the record in its entirety and draw all
reasonable inferences in favor of the nonmoving party. We do not
however weigh the evidence, pass on the credibility of witnesses, or
substitute our conclusions for that of the jury.
Miller , 396 F.3d at 1110-11 (citations and quotations omitted).
We review decisions as to the wording of particular jury instructions and
special verdict forms under an abuse of discretion standard. Johnson v. Unified
Gov’t of Wyandotte County/Kan. City , 371 F.3d 723, 730 (10th Cir. 2004). “In
assessing whether the court properly exercised that discretion, we must examine
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the instructions as a whole to determine whether they sufficiently cover the
issues, facts and evidence in the case. The ultimate question of whether the jury
was properly instructed is a question of law which we review de novo.”
Wolfgang v. Mid-Am. Motorsports, Inc. , 111 F.3d 1515, 1526 (10th Cir. 1997)
(citation omitted).
IV
Metallics West argues that it was legal error for the district court to have
instructed the jury on reasonable accommodation in a “regarded as disabled”
ADA case. Kelly responds that any alleged errors in the verdict form or
instructions concerning reasonable accommodation were harmless. She contends
that the jury could have found in her favor, independent of any duty to
accommodate, on the basis that the ADA was violated when Metallics West
terminated her employment.
Kelly’s harmless error argument resembles the reasoning the district court
employed when it denied Metallics West’s Rule 50(a) motion, ruling that “[t]his
case is not being submitted to the jury on a failure to accommodate theory of
liability,” but that failure to accommodate was merely relevant to Kelly’s
contention that Metallics West perceived or regarded her as disabled. Aplt. App.,
Vol. IIA at 704. Notwithstanding its statement concerning plaintiff’s theory of
the case, however, the district court’s instructions permitted the jury to reach a
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verdict in favor of Kelly on a “failure to accommodate” theory. In explaining
what constitutes “discrimination” under the ADA, for example, the district court
explained that one form of discrimination is
[n]ot making a reasonable accommodation to the known
physical or mental limitations of an otherwise qualified individual
who is regarded as disabled, and denying employment opportunities
to an employee who is an otherwise qualified individual and is
regarded as having a disability if such denial is based on the need of
the employer to make reasonable accommodation to the perceived
physical or mental impairments of the employee.
Id. at 779.
Given the rather general language in the verdict form, which was provided
instead of the more specific verdict form tendered by Metallics West, we cannot
ignore the possibility that the jury made its award in favor of Kelly on a theory
that Metallics West terminated her employment based on her need for reasonable
accommodation. We must therefore address the question of whether such a theory
finds support in the law.
In a previous case from this circuit, we held that an employee who was
“regarded as disabled” had made out a prima facie case of discrimination based
on her employer’s alleged failure to reasonably accommodate her perceived
disability. McKenzie v. Dovala , 242 F.3d 967, 975 (10th Cir. 2001). Metallics
West argues that McKenzie did not actually determine the legal issue, but merely
dealt with the sufficiency of evidence to support a prima facie case of
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discrimination. Some circuits, presented with the legal argument it now makes,
have determined that reasonable accommodation is not available to an employee
merely regarded or perceived as disabled. See Kaplan v. City of N. Las Vegas ,
323 F.3d 1226, 1231-33 (9th Cir.); Weber v. Strippit, Inc. , 186 F.3d 907, 916-17
(8th Cir. 1999); Workman v. Frito-Lay, Inc. , 165 F.3d 460, 467 (6th Cir. 1999);
Newberry v. E. Texas State Univ. , 161 F.3d 276, 280 (5th Cir. 1998). Others hold
that it is available. Williams v. Philadelphia Housing Auth. Police Dep’t , 380
F.3d 751, 773-76 (3d Cir. 2004); Katz v. City Metal Co., Inc. , 87 F.3d 26, 33 (1st
Cir. 1996).
We agree with the Third and First Circuits. The ADA prohibits
discrimination against “a qualified individual with a disability.” 42 U.S.C.
§ 12112. The Act defines “qualified individual” as “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.” Id. § 12111(8). A “disability” is defined as being, among other things,
“regarded as having . . . an impairment” that “substantially limits one or more of
the major life activities of . . . [an] individual.” Id. § 12102(2). 5
Thus, the plain
5
“A person is regarded as disabled when ‘(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
(continued...)
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language of the ADA’s interlocking statutory definitions includes within the
rubric of a “qualified individual with a disability” protected by the ADA
individuals (1) regarded as disabled but (2) who, with reasonable accommodation,
can perform the essential functions of the position that they hold. The facts of
Kelly’s case bring her within this definition.
Despite the foregoing statutory analysis, the Ninth Circuit in Kaplan
expressed concern that such a “formalistic reading of the ADA” would lead to
“bizarre results.” Id. The “bizarre results” primarily concern the more favorable
treatment that would be accorded to those employees “regarded as disabled” by
their employer contrasted with those who are not. See id. (quoting Weber , 186
F.3d at 917). Kaplan reasoned that it would be a “perverse and troubling result”
if “impaired [but not actually disabled] employees would be better off under the
statute if their employers treated them as disabled even if they were not.” See id.
We fail to understand the point, for it is in the nature of any “regarded as
disabled” claim that an employee who seeks protections not accorded to one who
is impaired but not regarded as disabled does so because of the additional
5
(...continued)
activities.’” Lanman v. Johnson County, Ks., 393 F.3d 1151, 1156 (10th Cir.
2004) (quoting Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999)). See
also 29 C.F.R. § 1630.2(l).
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component–“regarded as” disabled. This rationale provides no basis for denying
validity to a reasonable accommodation claim.
The argument that accommodation of perceived disabilities would “do
nothing to encourage . . . employees to educate employers of their capabilities” or
to “encourage the employers to see their employees’ talents clearly,” see id. , is
also flawed. The ADA is concerned with safeguarding the employee’s livelihood
from adverse actions taken on the basis of “stereotypic assumptions not truly
indicative of the individual ability” of the employee. 42 U.S.C. § 12101(a)(7).
As the Third Circuit expressed it, the real danger is not that an employee will fail
to educate an employer concerning her abilities, but that “[t]he employee whose
limitations are perceived accurately gets to work, while [the employee regarded as
disabled] is sent home unpaid.” Williams , 380 F.3d at 775.
That is to say, an employer who is unable or unwilling to shed his or her
stereotypic assumptions based on a faulty or prejudiced perception of an
employee’s abilities must be prepared to accommodate the artificial limitations
created by his or her own faulty perceptions. In this sense, the ADA encourages
employers to become more enlightened about their employees’ capabilities, while
protecting employees from employers whose attitudes remain mired in prejudice.
An additional concern arises regarding the use of the phrase “reasonable
accommodation.” Can it be inherently “unreasonable” to accommodate an
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employee who is only regarded as disabled? Congress does not appear to have
thought so, for its definition of “reasonable accommodation” makes no distinction
between employees who are actually disabled and those who are merely regarded
as disabled. See 42 U.S.C. § 12111(9). Reasonable accommodation for a
disabled person includes “acquisition or modification of equipment or devices,”
such as the oxygen Kelly requested in this case. Id. We conclude that an
employer must reasonably accommodate employees regarded or perceived as
disabled. We thus see no reason to depart from Congress’s plain language. The
district court did not err by giving the challenged instructions on this point, in
rejecting the tendered special verdict form, or in denying Metallics West’s Rule
50(a) motion.
V
Metallics West contends that the verdict form and the jury instructions
permitted the jury to award compensatory damages for Kelly’s retaliation claim.
It contends that the ADA does not provide for an award of compensatory damages
for a retaliation claim. Metallics West did not raise this issue in the district court.
We will review an issue not raised in district court only for plain error. The error
asserted in this instance is not the sort of “plainly erroneous and prejudicial” error
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requiring reversal under that doctrine. See Reed v. Landstar Ligon, Inc. , 314 F.3d
447, 453-54 (10th Cir. 2002) (further quotation omitted).
The judgment of the district court is AFFIRMED.
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