Gasser v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 2005 Decided March 31, 2006

No. 04-7018

NEAL F. GASSER,
APPELLEE/CROSS-APPELLANT

v.

DISTRICT OF COLUMBIA,
APPELLANT/CROSS-APPELLEE

Consolidated with
04-7024

Appeals from the United States District Court
for the District of Columbia
(No. 00cv00534)

Donna M. Murasky, Senior Assistant Attorney General,
Office of Attorney General for the District of Columbia, argued
the cause for appellant/cross-appellee. With her on the briefs
were Robert J. Spagnoletti, Attorney General, and Edward E.
Schwab, Deputy Attorney General.

Gregg D. Adler argued the cause for appellee/cross-
appellant. On the briefs was Michael P. Deeds. James L.
Kestell entered an appearance.
 2

Before: GINSBURG, Chief Judge, RANDOLPH, Circuit
Judge, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge: The District of Columbia
appeals from the judgment entered after a verdict in favor of
Neal F. Gasser, a sergeant in the D.C. Metropolitan Police
Department, finding the District liable to him under the
Americans with Disabilities Act of 1990 (“Disabilities Act”), 42
U.S.C. §§ 12101-12213. Gasser cross-appeals from the district
court’s order refusing to direct the Police Department to
promote him to Lieutenant. Among the matters in controversy
is the proper application of the evidentiary standard laid down
in Duncan v. Washington Metropolitan Area Transit Authority,
240 F.3d 1110 (D.C. Cir. 2001) (en banc).

I.

Gasser’s complaint alleged that the Police Department
violated the Disabilities Act when it refused to return him to full
duty. See Gasser v. Ramsey, 125 F. Supp. 2d 1, 1-2 (D.D.C.
2000). After a jury failed to reach a verdict, the case was set for
retrial. The district court denied the District’s motions for
judgment as a matter of law after Gasser presented his case-in-
chief and after the close of all the evidence. The jury returned
a special verdict in Gasser’s favor and awarded him $34,096 for
emotional distress.

The evidence, viewed most favorably to Gasser, see Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51
(2000), showed as follows. Gasser joined the Police Department
as a patrol officer in 1986 and was promoted to master patrol
 3

officer in 1991 and to sergeant in 1994.1 Police Department
policy requires that all officers be “street ready” or “fit for full
duty” regardless of rank. This means that all officers –
including the Chief of Police – must be able to perform patrol
functions from time to time. Each officer is expected to be able
to subdue a suspect within a matter of minutes, with or without
assistance.

In July 1996, Gasser suffered a mesenteric vein thrombosis
– a blood clot in his abdomen. Though Gasser twice previously
had been treated for discrete clots in his legs, this time doctors
diagnosed a protein S deficiency. Protein S deficiency is an
inherited disorder that tends to cause blood to clot. Doctors treat
protein S deficiency with anticoagulants – blood thinners – of
which Coumadin is the most commonly prescribed. Gasser’s
hematologist, Dr. Harold S. Mirsky,2 prescribed Coumadin in
1996 to treat Gasser’s blood disorder, and Coumadin has been
part of Gasser’s regimen ever since.

Gasser went on limited duty for six months after he began
taking Coumadin. Limited duty is a temporary status, intended
to provide sick or injured officers an opportunity to recover
completely while preparing to return to full duty. An officer
cannot be promoted or earn overtime on limited duty. The
District’s Police and Fire Clinic provides care for, and makes

1
A patrol officer is a first-responder, handling the day-to-day
activities on the street as calls come in on the radio. A master patrol
officer has the same responsibilities, but also takes on supervisory
responsibilities if a sergeant is not on the scene. A sergeant’s
responsibilities are more supervisory, with less involvement in day-to-
day activities on the street. Gasser, for example, made only three or
four arrests each year as a sergeant.
2
Dr. Mirsky is a board-certified hematologist with more than
thirty-nine years of experience treating patients with blood disorders.
 4

decisions concerning the duty status of, sick or injured officers.
Because limited duty is not a full-time status, once the doctors
at the Clinic provide all the medical care they can, a patient still
unable to fulfill the obligations of his rank is involuntarily
retired – a process involving multiple levels of recommendation
and review. At all times relevant to this case, Dr. Michelle
Smith-Jeffries was the Clinic physician who decided when
officers should be placed on limited duty.

By the end of 1996, Clinic physicians agreed to return
Gasser to full-duty status upon receiving a letter from Dr.
Mirsky urging them to do so.3 Clinic physicians knew Gasser
continued to take Coumadin after returning to full duty. He
performed at full duty without incident for a number of years.
But when he sprained his wrist in an off-duty car accident in
December 1998, he again reported to the Clinic.

At the Clinic, Gasser met Dr. Craig Thorne, a physician
specializing in occupational medicine, who thought Gasser
should be on limited duty because he was taking Coumadin. Dr.
Mirsky wrote a letter to Dr. Smith-Jeffries, Dr. Thorne’s
supervisor, regarding Gasser’s condition. In the letter, Dr.
Mirsky stated that Gasser was “not at any excessive risk of
bleeding” unless he experienced “significant trauma.”4 Because

3
Dr. Smith-Jeffries testified that the Clinic’s documentation
concerning Gasser’s return to full duty is, at best, inconsistent. She
stated that the “physician’s note clearly states that no full duty while
on coumadin, that he should be returned to limited duty.” She further
testified that a different physician noted on Gasser’s chart that Gasser
should be returned to full duty; although this was crossed out and
“limited duty” circled, “the police officer who was on duty at that
time” wrote “return to full duty” on the form.
4
At trial, Dr. Mirsky explained that his assessment was based
on Gasser’s international normalized ratio (“INR”), which is a way to
 5

Dr. Mirsky understood Gasser’s responsibilities to be
supervisory, Dr. Mirsky saw no reason to “restrict [Gasser] from
working as a full duty sergeant.” Although Dr. Thorne was
inclined to leave Gasser on limited duty, he consulted Dr. Smith-
Jeffries because “Gasser really wanted to work.”

Dr. Smith-Jeffries agreed with Dr. Thorne’s preliminary
diagnosis and was not convinced by Dr. Mirsky’s letter that
Gasser should return to full duty. The letter “perplexed” Dr.
Smith-Jeffries because Dr. Mirsky acknowledged that Gasser
was at an excessive risk of bleeding if he experienced
“significant trauma,” but nevertheless urged his return to full
duty. Dr. Mirsky believed Gasser could resume his
responsibilities as a “full duty sergeant,” based on what Gasser
told him about his supervisory duties as a sergeant. The relevant
question for Dr. Smith-Jeffries, however, was not whether
Gasser could resume supervisory duties, but whether he was “fit
for full duty,” which includes patrol duty.

Ultimately, Drs. Thorne and Smith-Jeffries decided to refer
Gasser to another hematologist, Dr. Joseph P. Catlett, for an
“independent opinion.” After examining Gasser in late June
1999, Dr. Catlett sent a letter to Dr. Smith-Jeffries in which he
concluded that Gasser had an increased risk of “trauma-
associated bleeding due to Coumadin use.” However, rather
than giving Dr. Smith-Jeffries an independent opinion of
Gasser’s fitness for full duty, Dr. Catlett “defer[red] to [her]
expertise” and told her “the decision lies with [her] office.” Dr.

measure blood’s ability to clot. Dr. Mirsky stated that when Gasser’s
INR tests between two and three he “is not at risk of excessive
bleeding.” He also testified that Gasser “regularly tested” at that level
and that over time a patient’s INR level stabilizes. At the time of trial,
Gasser had been on Coumadin for six years without experiencing “any
excessive bleeding.”
 6

Smith-Jeffries was not satisfied with this deferential position
and decided to have another physician render an independent
judgment.

She contacted the occupational health clinic at Johns
Hopkins and scheduled Gasser to see Dr. Virginia Weaver in
August 1999. Dr. Weaver is a board-certified physician in
internal and occupational medicine. After meeting with Gasser,
Dr. Weaver concluded that he faced an “increased risk for
bleeding” as a police officer taking Coumadin. She was
concerned that he might suffer severe trauma and excessive
bleeding when “engaging in high speed pursuits, participating in
raids, [or] discharging firearms at persons.” For these reasons,
Dr. Weaver believed Gasser “would be a threat to coworkers and
to the public [because] he could become incapacitated very
quickly and then he would not be there to assist coworkers.”
Given Gasser’s experience and desire to return to full duty, Dr.
Weaver thought that it “would have been wonderful” if he could
have maintained a job as a trainer or supervisor without any time
on the street. But recognizing that this was not possible under
the Police Department policy, she recommended that he not
return to full duty.

Based on Dr. Weaver’s report, Dr. Smith-Jeffries
concluded that her original assessment was correct, that Gasser
faced an “increased risk for harm, and that he should not work
as a full duty police officer.” The consequences to Gasser were
severe. Beyond making Gasser ineligible for overtime pay and
further promotion, the Police Department took Gasser’s
uniform, badge, and gun. It also confined him to desk duty and
did not allow him to visit crime scenes. The Police Department
also generally prohibited him from riding in a squad car for fear
that a car in which he was riding might, in an emergency, be
diverted to a crime scene where he could suffer life-threatening
physical trauma.
 7

Although the Police Department never returned Gasser to
full duty, it did return his uniform, badge, and gun in December
1999. Shortly thereafter, however, the Police Department
initiated the process of involuntary retirement. Gasser brought
this suit before that process could be completed.

At trial, Gasser presented to the jury the deposition
testimony of Dr. Francis A. Thomas, a vocation rehabilitation
specialist. Gasser used the testimony to establish the number of
jobs the Police Department regarded him as unable to perform.
Dr. Thomas began his analysis by determining the universe of
jobs in the Washington-D.C. area for which Gasser was
qualified absent any impairment. He found 206,000 such jobs.
Dr. Thomas then removed from this group those jobs the Police
Department regarded Gasser as unable to perform. Rather than
removing jobs that involve a risk of physical trauma, however,
Dr. Thomas presumed that Gasser would be able to perform
only those jobs with responsibilities that resembled the desk
duties he performed while on limited duty. He therefore
removed from consideration all “heavy duty jobs” and “medium
type jobs” and presumed that the Police Department regarded
Gasser as able to perform only “light and sedentary type jobs.”
So restricted, Gasser could perform only 28.6% of the 206,000
jobs for which Dr. Thomas determined he was otherwise
eligible. Dr. Thomas did not take into account the driving
restriction the Police Department placed on Gasser, nor did he
specifically analyze the types of law enforcement jobs Gasser
was able to perform.

After entry of judgment on the verdict, the District renewed
its motion for judgment as a matter of law. The district court
ruled that (1) even though Dr. Thomas erred in assuming that
Gasser could perform only light and sedentary jobs, this error
was offset by evidence that, in the District’s view, Gasser could
not perform jobs involving driving, and (2) that Gasser
 8

presented sufficient evidence for the jury to conclude he was not
a direct threat to his own safety.

Gasser filed a post-trial motion to alter or amend the
judgment to include his immediate reinstatement to full-duty
status, lost overtime wages and prejudgment interest, attorney
fees and costs, and promotion to Lieutenant. The court amended
the judgment to include all the relief requested except for the
promotion, finding insufficient evidence in the record to justify
this.5

The District now appeals the district court’s order denying
judgment as a matter of law. Gasser cross-appeals, claiming the
district court should have ordered the Police Department to
promote him to Lieutenant.

II.

We review de novo the district court’s denial of the
District’s motion for judgment as a matter of law. See Curry v.
District of Columbia, 195 F.3d 654, 658-59 (D.C. Cir. 1999). If
the evidence supporting the verdict is “significantly probative,”
the verdict will stand “unless the evidence and all reasonable
inferences that can be drawn therefrom are so one-sided that
reasonable men and women could not disagree on the verdict.”
Id. at 659 (quoting Smith v. Wash. Sheraton Corp., 135 F.3d
779, 782 (D.C. Cir. 1998)) (internal quotation marks omitted).
Our duty is to “draw all reasonable inferences” in Gasser’s favor
without “mak[ing] credibility determinations or weigh[ing] the
evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). We will therefore “disregard all evidence
favorable to” the District “that the jury is not required to

5
The court awarded Gasser $64,179.71 in lost overtime wages
and prejudgment interest, and $157,397.20 in attorney fees and costs.
 9

believe” and “give credence to the evidence favoring” Gasser.
Id. at 151.

The District asks us to vacate the judgment below for either
of two reasons: because Gasser presented insufficient evidence
that his disability, if any, substantially limited his ability to
work, see Duncan v. Wash. Metro. Area Transit Auth., 240 F.3d
1110, 1114-16 (D.C. Cir. 2001) (en banc), or because the
District adequately showed that he poses a direct threat to his
own safety, which the Supreme Court has held is an affirmative
defense to Disabilities Act liability, see Chevron U.S.A. Inc. v.
Echazabal, 536 U.S. 73, 86-87 (2002). We reach only the
District’s first argument.

The Disabilities Act provides that a covered employer shall
not “discriminate” against a disabled individual because of his
disability. 42 U.S.C. § 12112(a); 29 C.F.R. § 1630.4. A
“disability” is not just a “physical or mental impairment,” as
common usage might suggest. 42 U.S.C. § 12102(2)(A); 29
C.F.R. § 1630.2(g)(1). The Disabilities Act also prevents
employers from taking adverse employment actions against
those they “regard[] as having” a physical or mental
impairment. 42 U.S.C. § 12102(2)(C) (emphasis added); 29
C.F.R. § 1630.2(g)(3).6 The purpose of “regarded as” claims is

6
The Supreme Court has recognized two ways an individual
may be “regarded as” disabled. See Sutton v. United Air Lines, Inc.,
527 U.S. 471, 489 (1999) (employer’s mistaken belief either that
employee has a disability or that employee’s actual disability
substantially limits major life activity); see also Murphy v. United
Parcel Serv., Inc., 527 U.S. 516, 521-22 (1999); Haynes v. Williams,
392 F.3d 478, 481 n.2 (D.C. Cir. 2004). The Equal Employment
Opportunity Commission’s regulations suggest a third. 29 C.F.R.
§ 1630.2(l)(2) (substantial limitation arising from others’ attitudes
about impairment).
 10

to protect employees from “misperceptions [that] often ‘resul[t]
from stereotypic assumptions not truly indicative of . . .
individual ability.’” Sutton v. United Air Lines, Inc., 527 U.S.
471, 489 (1999) (quoting 42 U.S.C. § 12101(7)) (second and
third alterations in original). An employer therefore may run
afoul of the Disabilities Act “when it makes an employment
decision based on a physical or mental impairment, [whether]
real or imagined.” Id. at 490.

In “regarded as” cases, not every adverse employment
action gives rise to liability under the Disabilities Act. The
“regarded as” disability must “substantially limit[]” a “major life
activit[y].” 42 U.S.C. § 12102(2)(A); 29 C.F.R. § 1630.2(g)(1);
see Haynes v. Williams, 392 F.3d 478, 481-82 (D.C. Cir. 2004).7
The District argues that any limitations it regarded Gasser as
having were not “substantial[],” see Sutton, 527 U.S. at 490-91,
and that Gasser did not prove that they were, as he must, see
Haynes, 392 F.3d at 482.

In Sutton, the Supreme Court, relying on Equal
Employment Opportunity Commission regulations, held that a
Disabilities Act plaintiff like Gasser must demonstrate that he is
precluded from a “substantial class of jobs” or a “broad range of

7
What constitutes a “major life activity” is not at issue in this
appeal, although the District raised the issue before the district court.
Gasser claims that the District discriminated against him because of a
perceived disability that would substantially limit his ability to work.
Whether “working” is a “major life activit[y]” under the Disabilities
Act, as the Equal Employment Opportunity Commission’s regulations
suggest, 29 C.F.R. § 1630.2(i), is a question we have not yet decided.
Like the Supreme Court, see Sutton, 527 U.S. at 492, we have
assumed arguendo that it is, see Duncan, 240 F.3d at 1114 n.1, despite
the “difficulties the issue presents,” id. at 1117 (Randolph, J.,
concurring); see Sutton, 527 U.S. at 492. We do so again in this case.
 11

jobs,”8 not just “one type of job, a specialized job, or a particular
job of choice.” 527 U.S. at 492; Duncan, 240 F.3d at 1115; see
29 C.F.R. § 1630.2(j)(3)(i). “If jobs utilizing an individual’s
skills . . . are available, one is not precluded from a substantial
class of jobs. Similarly, if a host of different types of jobs are
available, one is not precluded from a broad range of jobs.”
Sutton, 527 U.S. at 492.

It is not very precise to define a “substantial” limitation as
preclusion from a “substantial” class or “broad” range of jobs.
Whether a limitation precluding a plaintiff from 100 jobs is
“substantial” depends, in part, on whether the plaintiff is
otherwise qualified for 200 jobs or 200,000. In Duncan we
explained that the relevant inquiry “depends primarily on the
availability of jobs for which the impaired person qualifies,”
which must be an “individualized inquiry.” 240 F.3d at 1114
(citation and internal quotation marks omitted). Our holding in
Duncan was as follows:

[T]he [Disabilities Act] requires a plaintiff . . . to produce
some evidence of the number and types of jobs in the local
employment market in order to show he is disqualified
from a substantial class or broad range of such jobs; that is,
the total number of such jobs that remain available to the

8
Gasser urges affirmance based on his preclusion from a
substantial class or broad range of jobs. The District claims Gasser is
limited to arguing only that he has been precluded from a broad range
of jobs because he did not present the other theories to the jury. The
usual rule is that a prevailing party may support the judgment on any
ground raised or decided in the district court. See, e.g.,
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 38-39 (1989); Mass.
Mut. Life Ins. Co. v. Ludwig, 426 U.S. 479, 481 (1976); Nat’l Fed’n
of Fed. Employees v. Greenberg, 983 F.2d 286, 289 (D.C. Cir. 1993).
The record sufficiently supports Gasser’s having raised his contention
regarding a substantial class of jobs.
 12

plaintiff in such a class or range in the relevant market
must be sufficiently low that he is effectively precluded
from working in the class or range.

Id. at 1115-16 (citing Sutton, 527 U.S. at 491-92). The
plaintiff’s evidence must be “significantly probative” so that the
jury is not “left in the dark” about the vocational limitations the
plaintiff faces. Id. at 1115.

Gasser concedes that the District’s liability was premised
on its view that he is “medically unable to perform jobs having
duties or even possible duties with potential for trauma.”
Corrected Br. of Appellee/Cross-Appellant 22. But rather than
looking to the reason Gasser was precluded from being a full-
duty officer – potential for trauma – Dr. Thomas based his jobs
analysis on the functions Gasser performed as a limited-duty
officer. Dr. Thomas’s analysis treated Gasser as precluded from
“heavy duty jobs” and “medium type jobs” because, in Dr.
Thomas’s words, “[Gasser’s] job now is to fill out forms on
injured police officers.” Dr. Thomas assumed Gasser was
“restricted from a vast number of . . . jobs that require hard,
outside kind of work, given the limitations that are placed on
him.”

This was error, as the district court recognized. Under
Duncan, if the perceived impairment is, as Gasser concedes, that
he cannot be exposed to risk of trauma, then the question is
whether his preclusion from exposure to a risk of trauma
“disqualified him from a substantial class or broad range of
jobs.” 240 F.3d at 1115. Dr. Thomas answered a different
question – whether preclusion from engaging in heavy physical
exertion disqualified Gasser from a substantial class or broad
range of jobs. Dr. Thomas’s testimony therefore was probative
of jobs that require physical exertion, not just jobs that involve
risk of trauma. Compare Giordano v. City of New York, 274
 13

F.3d 740, 749 (2d Cir. 2001) (“[Plaintiff] introduced evidence
that establishes at most that the defendants regarded him as
disabled from police or other investigative or security jobs that
involve a substantial risk of physical confrontation.”). Gasser
should have presented evidence of the number of jobs he would
be unable to perform because they involve a risk of trauma. It
is not sufficient to short-cut this analysis by looking at Gasser’s
responsibilities in his limited-duty role. There may well be
medium- and heavy-duty jobs that do not involve risk of trauma.
Dr. Thomas’s analysis therefore was not probative –
significantly or otherwise – of whether Gasser was precluded
from a broad range or a substantial class of jobs, as Duncan
requires. See 240 F.3d at 1115; Giordano, 274 F.3d at 749
(“The record contains no evidence from which we can infer that
the [police department] thought, or had grounds for thinking,
that other jobs in the public or private sector . . . carry the same
nature or degree of risk.”); Colwell v. Suffolk County Police
Dep’t, 158 F.3d 635, 644 (2d Cir. 1998) (concluding that police
officer’s back injury “disqualifies him from only a narrow range
of jobs (those involving physical confrontation) and thus his
impairment is not a substantially limiting one”) (citation and
internal quotation marks omitted).9

Gasser argues that Duncan’s evidentiary standard applies
only to plaintiffs claiming preclusion from a broad range of jobs.
Based on that premise, he urges us to uphold the judgment
below despite the flaws in Dr. Thomas’s analysis because the

9
Gasser also claims that placing him on limited duty violated
the Disabilities Act because the District “based its decision entirely on
‘myths, fears and stereotypes.’” Corrected Br. of Appellee/Cross-
Appellant 33 (quoting 29 C.F.R. pt. 1630, app.). The record does not
bear him out. All indications are that the District sought informed,
objective, individualized medical judgments from multiple physicians
about the risks to which Gasser was exposed.
 14

District regarded Gasser as unable to perform two classes of
jobs: driving jobs and law enforcement jobs. The premise is
mistaken. The class-of-jobs limitations he alleges must be
“substantial” under the Disabilities Act. 42 U.S.C.
§ 12102(2)(A), (C). Duncan’s evidentiary standard applies to
all claims of “substantial limitation,” whether from a broad
range or a substantial class of jobs. 240 F.3d at 1115-16.
Gasser therefore failed to satisfy his evidentiary burden.

The district court reached the same conclusion but decided
that the “error was more than offset by the fact that [Dr.
Thomas] did not omit from his consideration positions
involving driving, which [the District] has precluded Plaintiff
from doing.” Gasser v. Ramsey, No. 00-534, mem. op. at 6 n.2
(D.D.C. Nov. 7, 2003). We do not believe this is correct. As
discussed above, Gasser presented no evidence of the number
of jobs erroneously included in Dr. Thomas’s tally of jobs he
could not perform – that is, medium- and heavy-duty jobs
without a risk of trauma. Nor did Gasser present evidence of
the number of jobs “involving driving” the District regards him
as unable to perform. In fact, Dr. Thomas testified that when he
conducted his analysis he did not know that the District had
restricted Gasser from driving. The district court’s ruling that
one unquantified number can somehow “offset” another is
inconsistent with Duncan’s requirement that the plaintiff
present “some evidence” that is “significantly probative” of the
“number and types of jobs” unavailable to the plaintiff. 240
F.3d at 1115. The District claims the limitation was not on
driving generally, but on being in a squad car that, in an
emergency, could be diverted to a crime scene where Gasser
could be exposed to life-threatening trauma. Gasser presented
no evidence justifying an inference that the driving limitation
was more substantial than this. Compare Murphy v. United
Parcel Serv., Inc., 527 U.S. 516, 524 (1999) (“At most,
petitioner has shown that he is regarded as unable to perform
 15

the job of mechanic only when that job requires driving a
commercial motor vehicle – a specific type of vehicle used on
a highway in interstate commerce.”).

In a case like this, in which the jury-verdict loser was
entitled to judgment as a matter of law, we have discretion to
“instruct the district court to enter judgment against the jury-
verdict winner” or to “return the case to the trial court” for it to
assess “whether a new trial, rather than judgment for [the]
defendant, should be ordered.” Weisgram v. Marley Co., 528
U.S. 440, 443-44 (2000). The latter disposition is appropriate
if “the district court is better positioned” than we are to decide
whether circumstances warrant a new trial. Id. Here it is not.
Gasser was on “notice, before the close of evidence, of the . . .
evidentiary deficienc[ies]” repeatedly alleged by the District in
its motions for judgment as a matter of law. Id. at 454. The
expert testimony he elicited from Dr. Thomas was insufficient.
“It is implausible to suggest . . . that parties will initially present
less than their best expert evidence in the expectation of a
second chance should their first try fail.” Id. at 455. Gasser
“had a full and fair opportunity to present [his] case,” and
“further proceedings are unwarranted.” Id. at 444.

For the foregoing reasons, the district court’s judgment on
the verdict entered July 24, 2003, and its post-trial orders
awarding reinstatement, lost overtime wages and prejudgment
interest, and attorney fees and costs, are reversed. The case is
remanded to the district court with instructions to enter
judgment for the District of Columbia.

So ordered.