REVISED, October 26, 1999
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-11234
SUSAN IVY,
Plaintiff-Appellee,
VERSUS
TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
October 25, 1999
Before DUHÉ, BARKSDALE, and EMILIO M. GARZA, Circuit Judges
DUHÉ, Circuit Judge:
In this Americans with Disabilities Act (“ADA”) wrongful
termination case we consider the employer’s appeal from the
district court’s judgment for the employee. In light of the
Supreme Court’s recent decision in Sutton v. United Air Lines,
Inc., U.S. , 119 S.Ct. 2139, (1999), which was not available
to the trial court, we vacate and remand for further consideration.
BACKGROUND
Susan Ivy (“Ivy”) has a diagnosed bilateral hearing
impairment. She wears a hearing aid in her right ear to help
correct her impairment. On August 27, 1996 Ivy interviewed with
John Noyes (“Noyes”) of the Texas Department of Protective and
Regulatory Services (“Department”) for a job with the Department.
Noyes recommended hiring Ivy and she started working for the
Department as a Child Protective Services Specialist 1 on October
1, 1996. Ivy was to spend the first three months of her employment
in classroom and on-the-job training.
Kathy Jones (“Jones”) was Ivy’s supervisor and conducted Ivy’s
on-the-job training. One day early in Ivy’s tenure, Jones
attempted to call to Ivy down a hallway and received no response.
Jones later testified that this incident led her to suspect that
Ivy had a hearing impairment. On October 29 and November 4, 1996
Jones trained Ivy and others in telephone intake. Jones had the
trainees take calls over a speaker phone while she and the other
trainees listened. Ivy had trouble hearing the callers during her
first session, but did not mention it to Jones. In the second
session, Ivy asked Jones for permission to pick up the telephone
receiver in order to hear better. Jones refused, stating that
Jones had to hear both sides of the conversation for training
purposes.
On November 7, 1996 Jones called Ivy into her office to
discuss “a sensitive subject.” Jones asked if Ivy could process
the information that she received over the telephone. Ivy told
Jones about her hearing loss and her need to wear a hearing aid.
The women then discussed Ivy’s discharge options including her
quitting or being fired. Shortly thereafter Jones asked Noyes to
join them in the office and discuss Ivy’s termination. Noyes
directed Jones to write up a dismissal of Ivy. He also instructed
Ivy to pick up her dismissal papers on November 12th.
Ivy sued the Department under the ADA and Title I of the Civil
Rights Act of 1991. A bench trial resulted in judgment in Ivy’s
favor.
STANDARD OF REVIEW
This case presents mixed questions of law and fact, subject to
differing standards of review. Bridges v. City of Bossier, 92 F.3d
329, 332 (5th Cir. 1996), citing Reich v. Lancaster, 55 F.3d 1034,
1044-45 (5th Cir. 1995). We review the district court’s factual
findings for clear error and its legal conclusions de novo. Id.
DISCUSSION
The ADA prohibits an employer from discriminating against a
“qualified individual with a disability” on the basis of his
disability. 42 U.S.C. § 12112(a). To establish a prima facie case
under the ADA one must show: (1) that he has a disability; (2) that
he was qualified for the job; and (3) that he was subject to an
adverse employment decision because of his disability. Zenor v. El
Paso Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th Cir. 1999),
citing Robertson v. Neuromedical Ctr., 161 F.3d 292, 294 (5th Cir.
1998)(per curiam), cert. denied, U.S. ,119 S. Ct. 1575,
(1999).
The ADA defines a “disability” as: (1) a mental or physical
impairment that substantially limits one or more major life
activities of an individual, (2) a record of such an impairment, or
(3) being regarded as having such an impairment. Sherrod v.
American Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998),
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citing 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g). The district
court found as a matter of fact and concluded as a matter of law
that Ivy’s impairment substantially limited her major life activity
of hearing.
In Sutton v. United Air Lines, Inc., U.S. , 119 S.Ct.
2139 (1999), the Supreme Court held that, contrary to agency
guidelines, corrective and mitigating measures must be considered
in determining whether an individual is disabled under the ADA.
Sutton, 119 S.Ct. at 2146. The particularized inquiry mandated by
the ADA centers on substantial limitation of major life activities,
not mere impairment. Id. at 2147. As such, courts must examine
how an impairment affects one’s life activities in light of one’s
attempts to correct his impairment. Id. at 2146.
Ivy used a hearing aid to mitigate the effects of her hearing
loss. Under Sutton the district court should have examined Ivy’s
hearing loss as corrected when determining whether she was
substantially impaired. The district court heard evidence of the
extent of Ivy’s corrected hearing loss in the form of audiological
test data. These test data indicated that Ivy’s hearing could be
corrected to 92% with one hearing aid and 96% with two hearing
aids. These data and the testimony of Ivy’s long-time audiologist
interpreting them may not suggest a substantial impairment of the
major life activity of hearing. Similarly, Ivy’s testimony that
she does not consider herself disabled and does not have much
trouble functioning in the workplace despite her impairment
possibly suggests that her corrected hearing impairment is not a
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substantial limitation of a major life activity. These facts and
the court’s colloquy with trial counsel concerning the
mitigated/unmitigated impairment issue make it unclear whether the
district court’s inquiry centered on Ivy’s impairment as corrected.
Although we are aware that Sutton was not available to the
district court at the time it rendered judgment, the parties
briefed and argued the mitigated/unmitigated hearing issue at trial
and are bound by the Supreme Court’s subsequent resolution of this
issue. Accordingly, we vacate the district court’s judgment and
remand for further consideration in light of Sutton.
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