Katz v. City Metal Co.

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-2234

ALEXANDER KATZ,

Plaintiff, Appellant,

v.

CITY METAL CO.,INC.,
VERDIG DEUTCHE NICKLE,
AMERICA, INC., MILTON WILCOX,
AND PETER BRUNO,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Robert E. Savage for appellant.

Michael P. DeFanti, with whom Hinckley, Allen & Snyder was on

brief for appellees.

July 2, 1996

BOWNES, Senior Circuit Judge. Plaintiff/Appellant
BOWNES, Senior Circuit Judge.

Alexander Katz ("Katz") sued his former employer,

Defendant/Appellee City Metal Co. ("City Metal"), its

President Milton Wilcox ("Wilcox") and its Chief Executive

Officer Peter Bruno ("Bruno"), under the Americans with

Disabilities Act, 42 U.S.C. 12101 et seq. (1995) ("ADA"),

and the Rhode Island Fair Employment Practices Act, R.I. Gen.

Laws 28-5-1 et seq. (1995), claiming that City Metal

unlawfully discriminated against him by discharging him

because of a disability. See 42 U.S.C. 12112(a); R.I. Gen.

Laws 28-5-6, 5-7. At the close of Katz's case, the

district court granted City Metal's motion for judgment as a

matter of law pursuant to Fed. R. Civ. P. 50(a)(1), finding

that Katz had not presented evidence sufficient to show that

he had a "disability" as defined under the ADA.1 Katz

appeals. We reverse and remand for a new trial.

I.
I.

BACKGROUND
BACKGROUND

City Metal is a corporation that buys and sells

scrap metal, employing more than fifteen employees. Katz was

hired by City Metal on July 1, 1991. On September 27, 1992,

he suffered a heart attack. Five weeks later, Wilcox

1. Because the definition of "handicap" under the Rhode
Island law is substantially identical to the ADA's definition
of "disability," we will not separately address the state law
claim. Compare 42 U.S.C. 12102(2) with R.I. Gen. Law 28-

5-6(9).

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telephoned Katz and told him his employment was terminated.

This lawsuit followed, and ended at the close of Katz's case

in a judgment as a matter of law for City Metal.

"We review the grant of a Rule 50(a) motion for

judgment as a matter of law de novo, under the same standards

as the district court." Andrade v. Jamestown Housing Auth.,

82 F.3d 1179, 1186 (1st Cir. 1996). Accordingly, we "examine

the evidence and all fair inferences in the light most

favorable to the plaintiff [and] may not consider the

credibility of witnesses, resolve conflicts in testimony, or

evaluate the weight of the evidence." Richmond Steel, Inc.

v. Puerto Rican American Ins. Co., 954 F.2d 19, 22 (1st Cir.

1992) (internal quotation marks and citations omitted). To

warrant submission of an issue to the jury, the plaintiff

must present "more than a mere scintilla" of evidence and may

not rely on conjecture or speculation. Id. "[T]he evidence

offered must make the existence of the fact to be inferred

more probable than its nonexistence." Resare v. Raytheon

Co., 981 F.2d 32, 34 (1st Cir. 1992) (internal quotation

marks and citations omitted). To affirm the withdrawal of

any claim from the jury, we must find that, as a matter of

law, the record would permit a reasonable jury to reach only

one conclusion as to that issue. Richmond Steel, 954 F.2d at

22.

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With this standard in mind we rehearse the evidence

adduced by Katz.

The Trial Testimony
The Trial Testimony

Katz testified as follows. City Metal hired him in

July of 1991 as a scrap metal salesman because of his prior

experience in the field. He was assigned various territories

which he serviced by traveling in a company car. At the end

of 1991, Bruno asked Katz to take an inside position in

customer relations as a liaison between the company and its

customers. Katz accepted and continued in that position

until July of 1992. During that time Katz also helped to

train Wilcox, who was new to the business, and trained other

salesmen. In July of 1992, Katz, at his request, returned to

being a salesman. Up until the time he was discharged, Katz

did not receive any negative reports or comments about the

quality of his performance and was not informed that his job

was in jeopardy.

On Sunday, September 27, 1992, while Katz was in

Cleveland visiting his family, he had a heart attack and was

taken by ambulance to the Cleveland Clinic. During his

seven-day stay there, Katz underwent two angioplasty

procedures and some testing, and was kept in cardiac

intensive care. He was discharged from the hospital on

Saturday, October 3, 1991, and telephoned Wilcox on the

following Monday to explain the situation. Wilcox then sent

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Katz Rhode Island temporary disability application forms.

Katz submitted them and received disability payments for six

months, the maximum payable under Rhode Island law.

After his discharge from the hospital, Katz had

great difficulty breathing, even while sitting down, and was

extremely limited in his ability to walk. After a few steps,

he became short of breath and experienced chest pains, broke

into sweats and became nauseous. It was necessary that he

keep stress to a minimum.

Katz went to the company office on the Thursday

afternoon following his hospital discharge for the purpose of

discussing his return to work. Due to the effects of his

heart attack, Katz was unable to walk to the company's office

on the second floor. Wilcox therefore came down to Katz's

car, where the two had a conversation. Katz asked about his

customers and told Wilcox he wanted to return to work as soon

as possible, even if it was initially in a limited capacity.

Wilcox told him not to worry about his customers, and that

the main thing was for Katz to get well.

Katz stayed in Rhode Island for about a week after

his conversation with Wilcox. The cold weather, however,

restricted his breathing which, in turn, made walking even

more difficult. Since Wilcox had told him that his first

objective should be to get well, Katz decided to recuperate

at his family's apartment in Miami, Florida.

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On Friday, the last working day of October, Wilcox

telephoned Katz and told him that he was discharged. Katz

called Wilcox the following Monday and offered to return to

work on a part-time basis with a reduction in salary and to

accept whatever accommodations the company would make.

At the time of the trial in October of 1995, Katz

still had some trouble breathing and walking. He was

working, having obtained a job on February 17, 1995 (after a

lengthy search beginning in January of 1993), selling bonds

for the State of Israel.

Katz also called Wilcox as a witness. He testified

that Katz's brother called to tell him about the heart attack

two days after it occurred, and that he never questioned that

Katz had a heart attack. He testified that Katz looked tired

when he met him in the parking lot, and that he told Katz

that his main objective should be to recover. Wilcox

testified, however, that he had decided to fire Katz on

September 4, 1992 (prior to the heart attack), for failing to

submit a weekly travel schedule as required, and that he had

merely waited until the end of October to so inform Katz.

Katz also called Bruno as a witness, who testified that he

was instrumental in hiring Katz, but was not familiar with

the circumstances of his termination.

The Judgment As A Matter Of Law
The Judgment As A Matter Of Law

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After Katz, Wilcox, and Bruno had testified, Katz's

attorney informed the court that he had one more witness --

Katz's treating physician in Rhode Island -- whom he had

subpoenaed for the following day. The court recessed until

the following day, when Katz's attorney informed the court

that the doctor had declined to appear in court until Friday,

three days hence, and requested that he be permitted to

present the doctor's testimony in rebuttal after the

defendants' case. The court stated that it would deal with

the issue when it arose and was not sure the doctor's

testimony was "vital to the essence of your claim."

When asked to state its position on the matter,

City Metal stated that it had received Katz's medical records

and that it did not dispute that Katz suffered a heart attack

or that it perceived that he suffered a heart attack, but

that it did contest that Katz was actually disabled within

the meaning of the ADA. At that point, the court stated that

Katz could not prove that he was disabled without the

testimony of his doctor, and Katz again requested either a

continuance or that the doctor be permitted to testify in

rebuttal. The court denied those requests and Katz rested.

City Metal then moved for judgment as a matter of

law, arguing that in order to prove a disability under the

ADA and the Rhode Island Fair Employment Practices Act, Katz

was required to show that the heart attack "severely

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restricted a basic life activity on a permanent and

continuing basis," and that he had failed to do so because

there had been no medical testimony that Katz was permanently

impaired in a major life activity. In response, Katz argued

that his testimony established that the heart attack resulted

in hospitalization, and impaired his ability to breathe,

walk, perform manual tasks, care for himself and work, and

that the evidence therefore met each of the three alternative

definitions of the term "disability" under the ADA -- that he

had a physical impairment that substantially limited one or

more major life activities, that he had a record of such an

impairment, and that City Metal regarded him as having such

an impairment. See 42 U.S.C. 12102(2).

The district court ruled as follows:

The question is whether it produced a
permanent disability that he can't
perform his work. It's obvious he's a
salesman, and he's still selling. . . .
In order for the Plaintiff to recover in
this case, the Plaintiff must make a
showing that he has some type of
permanent impairment, physical impairment
in one or more of life's major
activities. There's been no showing of
that in this case.

The only evidence is that he has a
blocked artery that was opened up by
balloon angioplasty. That does not show
that he has a permanent disability or
heart disease. I know. I've been there.
I had a heart attack.

People recover from heart attacks and go
on with life's functions. I know, I've
done it, and I had an artery that was

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completely blocked and not reopened.
Because I went through a rehab program
where I developed the collateral arteries
to take over the function of that artery,
now I can perform. I'm playing tennis.
I'm doing aerobic exercises every other
day. I can perform fully in my life's
functions as a Judge, where there's a lot
more stress than some other vocations.
So I have personal experience in this.
Now a judge can't put aside his personal
experiences in life in deciding cases.

I have decided it as a matter of law. I
have decided the Plaintiff failed to
prove that he had a permanent disability
resulting from his heart attack.

II.
II.

DISCUSSION
DISCUSSION

The district court erred in ruling that there was

insufficient evidence of disability within the meaning of the

ADA. We start with the words of the statute. The Americans

with Disabilities Act is a federal civil rights statute,

enacted "to provide a clear and comprehensive national

mandate for the elimination of discrimination against

individuals with disabilities." 42 U.S.C. 12101(b)(1).

See also Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 671

(1st Cir. 1995). In the employment context, the ADA

prohibits a "covered entity" (defined as "a person engaged in

an industry affecting commerce who has 15 or more employees")

from "discriminat[ing] against a qualified individual with a

disability because of the disability of such individual in

regard to job application procedures, the hiring,

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advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and

privileges of employment." 42 U.S.C. 12112(a). To obtain

relief under the Act, a plaintiff must prove three things.

First, that he was disabled within the meaning of the Act.

Second, that with or without reasonable accommodation he was

able to perform the essential functions of his job. And

third, that the employer discharged him in whole or in part

because of his disability.2

In light of the district court's ruling, we focus

on the first element -- "disability" -- as defined in the

ADA:

The term "disability" means, with respect
to an individual --

(A) a physical or mental impairment that
substantially limits one or more of the
major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an
impairment.

2. A plaintiff may indirectly prove that he was
discriminated against because of a disability by using the
prima facie case and burden shifting methods that originated

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and

were refined and sharpened in Texas Dep't of Community

Affairs v. Burdine, 450 U.S. 248 (1981) and St. Mary's Honor

Ctr. v. Hicks, 509 U.S. 502 (1993). See Benson v. Northeast

Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995); DeLuca v.

Winer Indus., Inc., 53 F.3d 793, 797-98 (7th Cir. 1995);

White v. York Int'l Corp., 45 F.3d 357, 360-61 (10th Cir.

1995).

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42 U.S.C. 12102(2).

A "physical impairment" is "[a]ny physiological

disorder, or condition . . . or anatomical loss affecting,"

inter alia, the "cardiovascular" system. 29 C.F.R. 1630.2

(h)(1) (1995). "Major life activities" are 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).

"Substantially limited" is defined as:

(i) Unable to perform a major life
activity that the average person in the
general population can perform; or

(ii) Significantly restricted as to
the condition, manner or duration under
which an individual can perform a
particular major life activity as
compared to the condition, manner or
duration under which the average person
in the general population can perform
that same major life activity.

29 C.F.R. 1630.2(j)(1). Factors to be considered in

assessing whether an individual is substantially limited in a

major life activity are:

(i) The nature and severity of the
impairment;

(ii) The duration or expected
duration of the impairment; and

(iii) The permanent or long term
impact, or the expected permanent or long
term impact of or resulting from the
impairment.

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29 C.F.R. 1630.2(j)(2).3 According to the Equal

Employment

3. The regulations set forth a more particularized
definition of what it means to be "substantially limited in
the major life activity of working." See 29 C.F.R.

1630(j)(3). We need not consider the permutations of that
definition, however, because if an individual is
substantially limited in a major life activity other than
working, or is so regarded, "no determination should be made
as to whether the individual is substantially limited in
working." 29 C.F.R. Pt. 1630, App., at 403.

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Opportunity Commission's Compliance Manual:

Although short-term, temporary
restrictions generally are not
substantially limiting, an impairment
does not necessarily have to be permanent
to rise to the level of a disability.
Some conditions may be long-term or
potentially long-term, in that their
duration is indefinite and unknowable or
is expected to be at least several
months. Such conditions, if severe, may
constitute disabilities.

2 EEOC Compliance Manual, Interpretations (CCH) 902.4,

6884, p. 5319 (1995). Examples of impairments that are

"usually not disabilities" because they are "temporary,"

"non-chronic," and "of short duration, with little or no long

term or permanent impact," are "broken limbs, sprained

joints, concussions, appendicitis, and influenza." 29 C.F.R.

Pt. 1630, App. at 402.

Especially given that City Metal has never disputed

that Katz had a heart attack, we have no doubt that a

rational jury could conclude, even without expert medical

testimony, that Katz had a condition affecting the

cardiovascular system and therefore that he had a physical

impairment under the ADA.4 29 C.F.R. 1630.2 (h)(1). We

4. In Cook v. State of Rhode Island, Department of Mental

Health, Retardation, and Hospitals, 10 F.3d 17 (1st Cir.

1993), a case under Section 504 of the Rehabilitation Act of
1973 (which is interpreted substantially identically to the
ADA, 42 U.S.C. 12117(b), 12201(a)), we upheld the jury
verdict in favor of plaintiff, in part based on her
presentation of expert medical testimony that "morbid
obesity" was a physiological disorder that affected the
musculoskeletal, respiratory, and cardiovascular systems.

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think, however, that it is a very close question whether Katz

offered sufficient evidence to prove that that impairment

"substantially limited" his major life activities within the

meaning of the ADA, his scheduled expert medical witness

having proved unavailable.

As might reasonably be expected after any major

trauma and resultant medical procedure or surgery, Katz's

ability to breathe, walk and work was substantially limited

in the period immediately following the heart attack and

angioplasty procedures. This does not, however, necessarily

lead to the conclusion that Katz had a disability. See

McDonald v. Commonwealth of Pennsylvania, 62 F.3d 92, 96 (3d

Cir. 1995) (inability to work for two months following

surgery not a disability). We think that it would be

difficult for a lay jury to conclude, based solely on the

immediate effects of a heart attack and angioplasty procedure

on Katz, that those limitations were permanent or persisted

on a long-term basis, or that their duration was indefinite

and unknowable or expected to be at least several months.

Katz was apparently prepared to present medical testimony to

this effect but, as already noted, his medical expert was

unavailable and the court declined to delay the trial.

Id. at 23. In a case like Cook, where it is not obvious to a

lay jury that the condition affects one of the bodily systems
listed in the regulations, expert testimony that it does may
well be necessary to avoid a judgment as a matter of law.

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There is certainly no general rule that medical

testimony is always necessary to establish disability. Some

long-term impairments would be obvious to a lay jury (e.g., a

missing arm) and it is certainly within the realm of

possibility that a plaintiff himself in a disabilities case

might offer a description of treatments and symptoms over a

substantial period that would put the jury in a position

where it could determine that he did suffer from a disability

within the meaning of the ADA. On this record, we think it

is a much closer case whether Katz put such evidence before

the jury.

The bulk of the evidence as to Katz's medical

condition related primarily to his situation immediately

after the operation, including his initial effort to return

to work in which he was so stricken that he could not even

leave the car and climb up a flight of stairs to the office.

Katz did testify that even three years after the operation,

he still felt in poor condition; but that testimony was far

more general and far less specific than his testimony

regarding the impact of the heart attack in the month or so

immediately following its occurrence.

We think it was unwise for the district court to

invoke its own medical experience in explaining its

determination that Katz's evidence was inadequate, since the

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determination of whether an impairment substantially limits a

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major activity must be made on an individual basis:

The determination of whether an
individual has a disability is . . .
based . . . on the effect of that
impairment on the life of the individual.
Some impairments may be disabling for
particular individuals but not for
others.

29 C.F.R. Pt. 1630, App. at 402. See also Chandler v. City

of Dallas, 2 F.3d 1385, 1396 (5th Cir. 1993) (recognizing

that "the effect of a given type of impairment . . . can vary

widely from individual to individual"), cert. denied, 114 S.

Ct 1386 (1994). Nonetheless, it is at least a debatable

question whether, based on Katz's testimony, the jury could

conclude that he suffered from a continuing medical

condition, persisting beyond the period immediately after the

operation, that substantially limited one or more of his

major life activities.

We need not definitively resolve the issue of

whether expert medical testimony was necessary for the case

to go forward on a theory of actual disability in this case,

because we think that the evidence permitted Katz to reach

the jury under one of the alternative definitions of

disability, that City Metal "regarded [Katz] as having such

an impairment." 41 U.S.C. 12102(2)(C). Under the

regulations an individual who has an impairment that is not

substantially limiting (or has no impairment at all) is

nevertheless "disabled" if he is treated by the employer as

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having an impairment that does substantially limit major life

activities. 29 C.F.R. 1630.2(l)(1). An example given is

an employee whose controlled high blood pressure is not a

disability but is reassigned because the employer fears,

wrongly, that the employee may have a heart attack. Id. Pt.

1630, App. See also Cook, 10 F.3d at 20-21, 23, 25 (employer

treated employee as handicapped by refusing to rehire her

based on its belief that her morbid obesity would compromise

her ability to do her job and put her at risk of developing

serious ailments).

In this case, Katz alleged in his complaint that he

was not only actually disabled but also perceived by his

employer to be disabled, and was fired because of it. The

dramatic encounter at the office, in which Katz was unable to

climb the stairs and Wilcox observed his fatigue, is only one

piece of evidence; others included the employer's knowledge

of the heart attack, angioplasty procedure and

hospitalization, and yet another was Katz's own statements to

his employer that when he returned to work it would at least

initially have to be in a limited capacity. Cf. Hamm v.

Runyon, 51 F.3d 721, 724-26 (7th Cir. 1995) (employer did not

"regard" employee as disabled where there was no evidence

that the person who made the decision to fire him was even

told about the employee's arthritis; employee told his direct

supervisor that it was "nothing" and "would pass" and

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continued to do all of the functions of his job). Even if

medical expert testimony were required here to permit the

jury to find that Katz was suffering from a continuing

serious heart condition, the jury certainly did not need

medical testimony in making its own judgment as to what the

employer may have perceived, rightly or wrongly, about Katz's

condition.

When the district court proposed to withdraw the

case from the jury and direct a verdict, Katz argued to the

court that regardless of actual medical condition, he had

provided a basis for the jury to conclude that the employer

perceived him to be disabled. The judge did not directly

respond to this assertion. Katz has renewed it on appeal,

but City Metal's brief also fails to respond in any depth to

the perception argument. At least on this record, we have to

conclude that Katz did provide enough evidence to reach the

jury on the issue of perception which, as already noted, does

constitute disability within the meaning of the Act.

Congress, when it provided for perception to be the

basis of disability status, probably had principally in mind

the more usual case in which a plaintiff has a long-term

medical condition of some kind, and the employer exaggerates

its significance by failing to make a reasonable

accommodation. But both the language and policy of the

statute seem to us to offer protection as well to one who is

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not substantially disabled or even disabled at all but is

wrongly perceived to be so. And, of course, it may well be

that Katz was both actually disabled and perceived to be so.

The second element of proof is ability to perform

the essential functions of the job with or without reasonable

accommodation. See 42 U.S.C. 12111(8). Katz testified

that five days after his discharge from the hospital and

again two days after he was fired, he asked Wilcox to

accommodate him by allowing him to return to work on a part-

time basis. On the latter occasion, Katz suggested a

reduction in salary and said he would accept whatever

accommodations the company would make in order to keep his

job. Reasonable accommodations include, inter alia, "job

restructuring [and] part-time or modified work schedules."

42 U.S.C. 12111(9). As we noted in Grenier v. Cyanamid

Plastics, Inc.:

With respect to known disabilities,
however, the emphasis is on encouraging
the employer to "engage in an interactive
process with the individual to determine
an effective reasonable accommodation."
Guidance IV.B.6b (citing H.R. Rep. No.

485 (Pt. 2), supra, at 65-66,

U.S.C.C.A.N. at 347-48).

70 F.3d at 677. Katz's suggestions were rejected out of

hand. The district judge did not say that Katz had failed to

show that he could perform his job with reasonable

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accommodations, nor does City Metal offer any argument as to

this element on appeal.5

The third element of plaintiff's case, that Katz

was fired because of a disability, or that his disability was

a motivating factor in City Metal's decision to fire him,

Pedigo v. P.A.M. Transport, Inc., 60 F.3d 1300, 1301 (8th

Cir. 1995), also was a question of fact for the jury. The

timing of Katz's firing, one month after his heart attack,

was circumstantial evidence from which the jury could find

that Katz's disability triggered, in whole or in part, his

firing by City Metal.

We rule that the court erred in granting judgment

as a matter of law for City Metal, because the evidence would

permit the conclusion that Katz established that City Metal

regarded him as having an impairment constituting a

disability under section 12102(2)(C) of the Act. Thus, he

proved a prima facie case of discrimination under the ADA and

the Rhode Island Fair Employment Practices Act.

Where there must be a remand for a new trial, we

have broad authority to draft a remand order that is fair and

just. 28 U.S.C. 2106. In this instance, given that Katz

was deprived of his medical testimony more or less by

accident, we see no reason why on retrial he should not be

5. City Metal was free, of course, to attempt to show that
accommodating Katz would have imposed on it an "undue
hardship." 42 U.S.C. 12111(10).

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allowed to present expert testimony in a timely fashion in

order to show an actual disability under the statute.

Accordingly, we reverse and remand for a new trial,

leaving it open to Katz to retry the case under any or all of

the three theories of disability available under the statute.

Costs on appeal awarded to appellant.

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