Gordon v. E.L. Hamm & Associates, Inc.

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.