IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-30526
Summary Calendar
_____________________
VALERIE BRANCH
Plaintiff-Appellant
versus
CITY OF NEW ORLEANS; CIVIL SERVICE COMMISSION OF THE
CITY OF NEW ORLEANS
Defendants-Appellees
and
KATY TORREGANO; LEONARD SIMMONS, JR
Defendants
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(93-CV-1273)
_________________________________________________________________
January 31, 1996
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Valerie Branch ("Branch") sued the City of New Orleans ("the
City") alleging discrimination in violation of the Rehabilitation
Act of 1973, 29 U.S.C. §§ 701-796 (1985 and Supp. 1995), and the
Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (1995).
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Following a jury trial, the district court entered judgment for
the City on the jury verdict, and subsequently denied Branch's
post-trial motion for judgment as a matter of law, or,
alternatively, for a new trial. Branch appeals. Finding no
error, we affirm.
I. FACTUAL BACKGROUND
Branch suffers from ulcerative colitis and Crohn's disease.
Her condition was first diagnosed in 1981. Ulcerative colitis is
a chronic inflammation of the lining of the colon; Crohn's
disease is a more severe version of ulcerative colitis. The main
symptom of ulcerative colitis and Crohn's disease is chronic
diarrhea, but the condition is characterized by periods of
remission during which the patient experiences no symptoms, and
periodic flare-ups during which the patient may experience severe
diarrhea and abdominal discomfort. The periods of remission vary
from patient to patient, and it is possible for a person with
this disease to remain asymptomatic for as long as ten years.
Branch was first employed by the City on October 16, 1978,
as a Class III worker under the City Civil Service System. In
August 1991, Branch moved to the Sanitation Department and
assumed the position of Recycling Coordinator for the City. In
May 1992, Branch experienced a flare-up of ulcerative colitis,
causing her to take several days of sick leave. Branch was out
on sick leave from May 18 until June 21, 1992. Branch returned
to work on June 22 and 23, but on the evening of June 23 she
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began experiencing severe abdominal pain, so she again took
several days of sick leave. On July 8, her symptoms having
worsened, Branch was admitted to the hospital. She was
discharged on July 17 and remained at home recovering until she
was terminated from her position on August 24, 1992.
While Branch was out on sick leave, her supervisor, Kathy
Torregano ("Torregano") sent several written memoranda to Branch
requesting information about her sick leave and questioning
Branch's job performance. Specifically, Torregano sent letters
to Branch on June 29, July 9, and July 21 requesting that Branch
provide a doctor's certification of the necessity of her sick
leave, informing Branch that her failure to timely provide a
doctor's certificate--as well as deficient job performance--
subjected her to disciplinary action, and listing the possible
disciplinary options, including termination. Dr. Helm, Branch's
treating physician, sent Torregano letters regarding Branch's
condition on July 29 and August 7; however, Torregano found these
letters unsatisfactory because they did not indicate when Branch
could return to work. On August 19, an administrative hearing
was held to discuss Branch's job performance and her failure to
obtain a proper doctor's certification. Following the hearing,
Torregano informed Branch that she was terminated effective
August 24, 1992, and explained that Branch had a right to appeal
the termination to the New Orleans Civil Service Commission ("the
Commission"). After Branch was notified of her termination, Dr.
Helm sent notice to Torregano that Branch would be recovered and
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able to return to work as of September 8, 1992. Branch filed an
appeal with the Commission, which determined that Branch was
terminated for inadequate job performance and refused to
reinstate her.
On April 16, 1993, Branch sued the City of New Orleans,
Torregano, and Leonard Simmons, the Chief Administrative Officer
for the City, alleging discrimination based on race, disability
and retaliation for protected activities in violation of 42
U.S.C. §§ 1981 and 1983; the Rehabilitation Act of 1973 ("the
Rehabilitation Act"), 29 U.S.C. §§ 701-796; and the Americans
with Disabilities Act ("the ADA"), 42 U.S.C. §§ 12101-12213. The
district court dismissed Branch's claims under sections 1981 and
1983, as well as all claims against the individual defendants,
Torregano and Simmons. On March 30, 1994, Branch filed a second
amended complaint, adding the Commission as a defendant.
Trial by jury began on December 12, 1994. On December 13,
Branch filed a motion for judgment as a matter of law on the
issue of whether Crohn's disease constituted a disability under
the Rehabilitation Act and the ADA; the court denied this motion
by order dated December 19. On December 14, the jury returned
its verdict, answering "no" to the following special
interrogatory: "Do you find by a preponderance of the evidence
that Branch was a qualified person with a disability under the
Rehabilitation Act and the Americans with Disabilities Act?" The
district court entered judgment based on the jury verdict on
January 5, 1995, dismissing with prejudice all claims against all
4
defendants. On January 17, Branch filed a motion for judgment as
a matter of law, or, alternatively, for a new trial, alleging
that the evidence did not support the jury's verdict; the court
denied this motion by order entered May 8, 1995. Branch filed a
timely notice of appeal on May 18, 1995.
II. DISCUSSION
On appeal, Branch raises three points of error. First, she
argues that the district court erred in admitting evidence of the
Commission's conclusions regarding Branch's appeal of her
termination. Second, Branch contends that the district court
erred in denying her December 13, 1994 motion for judgment as a
matter of law that her disease was a protected disability under
the ADA and the Rehabilitation Act. Finally, Branch argues that
the district court erred in denying her post-judgment motion for
judgment as a matter of law. We will address each allegation of
error in turn.
A. Evidentiary Ruling
We review the evidentiary rulings of the district court for
an abuse of discretion. Kelly v. Boeing Petroleum Servs., Inc.,
61 F.3d 350, 356 (5th Cir. 1995). We will not reverse a district
court's evidentiary rulings unless they are erroneous and
substantial prejudice results. The burden of proving substantial
prejudice lies with the party asserting error. F.D.I.C. v.
Mijalis, 15 F.3d 1314, 1318-19 (5th Cir. 1994).
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Following her termination by Torregano, Branch appealed her
supervisor's decision to the Commission, as all civil service
employees have a right to do. The Commission held a hearing to
determine whether Branch's termination was justified, and
concluded that she was fired for deficient job performance.
Prior to trial, Branch moved in limine to exclude all evidence of
the Commission's findings, arguing that the findings were
irrelevant under Federal Rule of Evidence ("FRE") 401, or that
their probative value was substantially outweighed by the danger
of unfair prejudice under FRE 403. The district court denied the
motion, determining that the findings of the Commission were
relevant to Branch's claim of disability discrimination, and that
an instruction that the jury should independently evaluate all of
the evidence would offset any potential for prejudice. During
trial and over Branch's objection, the City mentioned the
Commission hearing and conclusion in its opening statement and
two witnesses testified that the Commission had concluded that
Branch was dismissed for cause. On appeal, Branch renews her
argument that this evidence was irrelevant and prejudicial.
We need not address Branch's claim that this evidence was
erroneously admitted because we hold that any error did not
result in substantial prejudice to Branch because the jury
determined that she was not a qualified individual with a
disability protected by the ADA or the Rehabilitation Act. Thus
the jury did not reach the question whether the City fired her
because of her disability or her job performance.
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B. Judgment as a Matter of Law
During trial, Branch filed a motion for judgment as a matter
of law on the issue of whether ulcerative colitis or Crohn's
disease was a protected disability under the Rehabilitation Act
and the ADA. The district court denied this motion, reasoning
that, although the City did not contest that Branch suffers from
Crohn's disease, it contended and had presented evidence that her
medical impairment does not substantially limit her major life
activities; therefore, a jury could reasonably conclude that
Branch was not a person with a disability as defined in the
Rehabilitation Act and the ADA. After judgment was entered,
Branch renewed her motion for judgment as a matter of law,
arguing that the evidence did not support the jury's conclusion
that she was not a qualified person with a disability. Once
more, the district court denied this motion, as well as Branch's
alternative new trial motion. On appeal, she again contends that
ulcerative colitis is a protected disability as a matter of law,
and because the City did not contest that she suffers from
ulcerative colitis, she was entitled to judgment as a matter of
law, or at least a new trial to determine whether the City
discriminated against her because of her disability.
We review the district court's denial of a motion for
judgment as a matter of law de novo. Conkling v. Turner, 18 F.3d
1285, 1300 (5th Cir. 1994). We employ the same standard as the
district court to determine whether sufficient evidence exists to
support the jury verdict. Leatherwood v. Houston Post Co., 59
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F.3d 533, 536 (5th Cir. 1995). We consider all the evidence in
the light most favorable to the party opposed to the motion. Id.
A judgment as a matter of law should not be granted unless "the
facts and inferences point so strongly and overwhelmingly in
favor of one party that the court believes that reasonable
[persons] could not arrive at a contrary verdict." Id.;
Conkling, 18 F.3d at 1323. We review the denial of a motion for
new trial for an abuse of discretion. Calcasieu Marine Nat'l
Bank v. Grant, 943 F.2d 1453, 1464 (5th Cir. 1991).
To recover under the Rehabilitation Act, a plaintiff
generally must demonstrate that she was an otherwise qualified
individual with a disability, that she worked for a program or
activity that received federal financial assistance, and that she
was adversely treated solely because of her disability. Kelly,
61 F.3d at 365. The ADA similarly prohibits discrimination
"against a qualified individual with a disability because of the
disability" with respect to hiring, firing and other terms and
conditions of employment. 42 U.S.C. § 12112(a); Dutcher v.
Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir. 1995). The ADA
and the Rehabilitation Act define a disability in essentially the
same terms. Daugherty v. City of El Paso, 56 F.3d 695, 698 (5th
Cir. 1995). The term "disability" means:
(A) a physical or mental impairment that substantially
limits one or more of the major life activities of [an
individual with a disability];
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
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42 U.S.C. § 12102(2); see also 29 U.S.C. § 706(8)(B). The
parties did not dispute that ulcerative colitis and Crohn's
disease are physical impairments, nor did the City contest the
allegation that Branch suffers from ulcerative colitis and
Crohn's disease. Rather, the City argued and presented evidence
that Branch is not an individual with a disability because her
physical impairment does not limit one or more of her major life
activities.
"A physical impairment, standing alone, is not necessarily a
disability as contemplated by the ADA." Dutcher, 53 F.3d at 726.
"Major life activities," under the ADA and the Rehabilitation
Act, include "functions such as caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing,
learning and working." Id.; 29 C.F.R. § 1630.2(i). "Whether an
impairment substantially limits a major life activity is
determined in light of (1) the nature and severity of the
impairment, (2) its duration or expected duration, and (3) its
permanent or expected permanent or long-term impact." Dutcher,
53 F.3d at 726 (footnotes omitted); 29 C.F.R. § 1630.2(j)(1)(i),
(ii).
Sufficient evidence was presented at trial to support the
jury's determination that Branch was not a qualified individual
with a disability, because sufficient evidence was presented to
support the conclusion that Branch's medical impairment did not
substantially limit one of her major life activities. First,
Branch testified that she functions normally when her condition
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is inactive, and that her flare-ups usually occur only about once
a year, and last only for a few days. Branch also testified
that, except for her July 1992 hospitalization, her flare-ups
force her to alter her diet and her sleeping patterns, but
otherwise they ordinarily do not affect her daily routine.
Branch's expert witness, Dr. Hunter, testified that ulcerative
colitis or Crohn's disease could stay in remission for periods as
long as ten years. Although he testified that the symptoms
associated with the disease included chronic diarrhea and
abdominal pain, he did not testify that it was an inherently
limiting disease, nor did he testify as to specific ways in which
the disease could limit a patient's activities.
Although Branch testified that the attacks of diarrhea and
abdominal discomfort inconvenienced her, substantial evidence was
presented that this inconvenience did not rise to the level of a
substantial limitation on her major life activities. Branch's
employment records show that, although she was diagnosed with
ulcerative colitis in 1981, she was able to function normally
throughout her tenure with the City, with the exception of her
summer 1992 flare-up. The evidence additionally demonstrated
that, following her termination, Branch has been able to maintain
employment and has experienced no serious flare-ups. In sum,
sufficient evidence exists in the record to support the jury's
verdict that Branch was not a qualified individual with a
disability as defined by the Rehabilitation Act and the ADA.
Therefore, the district court did not err in denying Branch's
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motion for judgment as a matter of law, nor did it abuse its
discretion in denying her motion for a new trial.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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