IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-30474
PETER J. KELLY,
Plaintiff-Appellant,
versus
BOEING PETROLEUM SERVICES,
INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(August 7, 1995)
Before REAVLEY, KING and WIENER, Circuit Judges.
WIENER, Circuit Judge:
This is an appeal from the district court's judgment,
following a jury verdict adverse to Plaintiff-Appellant Peter J.
Kelly, dismissing his suit against his former employer, Defendant-
Appellee Boeing Petroleum Services, Inc. (BPS). Kelly's suit was
for damages and injunctive relief under the Louisiana Civil Rights
Act for Handicapped Persons (the Act).1 On appeal, Kelly complains
that the district court erred reversibly in (1) excluding evidence
of other discriminatory acts and utterances by Kelly's immediate
supervisor, Frank Lemoine, and (2) instructing the jury that a
1
La. Rev. Stat. §§ 46:2251, et seq.
plaintiff, like Kelly, who seeks to recover under the Act on a
reasonable accommodation claim has the burden of proving by a
preponderance of the evidence that the employer intentionally
discriminated on the basis of a handicap when it failed to
accommodate the handicapped employee. Concluding that the trial
court did not commit reversible error in either instance, we
affirm.
I
FACTS AND PROCEEDINGS
BPS provided contract management services to the United States
government for a number of Strategic Petroleum Reserve sites in
Louisiana. Kelly was employed by BPS as Maintenance Manager at one
of the sites (the St. James site) from 1985 until July 1992. The
"physical aspects" of Kelly's employment at the St. James site,
which included inspection of facilities and equipment, could
involve "climbing, bending, walking, and squatting on an average of
three times a week." Except for Lemoine who, as Site Manager for
the company, was Kelly's immediate superior, Kelly was the highest-
ranking BPS official whose principal work assignment was the St.
James site. Permeating the situation at the St. James site was the
overarching animosity that had developed between Lemoine and Kelly;
to say that they did not get along would be an understatement.
There was "constant wrangling" between the two, which began in 1985
and escalated thereafter until, in 1990 or 1991, the relationshipSQ
in Kelly's own wordsSQgot "out of control" and came to the
attention of Lemoine's supervisor.
2
In July 1992, BPS transferred Kelly to another site (the New
Orleans site) to serve as Maintenance Analyst there. He worked for
BPS at the New Orleans site until April 1993, when BPS lost its
management contract to another company for which Kelly continued to
work without interruption.
Early in January 1993, while he was still employed by BPS,
Kelly filed suit in state court against BPS alleging a reasonable
accommodation claim and a discrimination claim under the Act. BPS
subsequently removed the suit to the district court on the basis of
diversity of citizenship. The principal thrust of the suit was
BPS's response to Kelly's requests for reasonable accommodations
for his back condition. Kelly's initial reasonable accommodation
claim implicated the failure of BPS to (1) furnish him an ergonomic
(orthopedic) chair, (2) reduce the number and frequency of the
physically-demanding inspections that he was required to make at
the St. James site, and (3) assign him a parking space specially-
designated for the handicapped (designated parking space) at the
New Orleans site after his transfer there. Kelly's discrimination
claim alleged that BPS violated the Act by transferring him from
the St. James site to the New Orleans site, which resulted in a
longer commute and a perceived demotion in stature (but not in
compensation) in retaliation for his requests for reasonable
accommodation.
Kelly first injured his back lifting weights in 1979, while
serving in the United States Marine Corps. He re-injured his back
late in 1986 while playing softball for the St. James site's team
3
and was hospitalized in connection with that injury. Based on
Kelly's claim that he experienced constant pain while performing
his employment duties following the 1986 aggravation of his 1979
back injury, the Veterans Administration awarded Kelly a 10%
disability rating for his lumbar spine condition, for which he
receives monthly compensation.
In September 1991, Kelly filed a complaint with the United
States Department of Labor's Office of Federal Contract Compliance
Programs (OFCCP), asserting that he was the victim of
discrimination on the bases of his race (Caucasian), sex (male),
handicap, veteran's status, and disabled veteran's status. He also
complained of harassment by his supervisor, Lemoine.
The following February Kelly's lawyer wrote to Jerry Siemers,
President of BPS, seeking accommodations for Kelly's handicap. The
letter requested that BPS retain Kelly's designated parking space,
furnish Kelly with a physician-approved chair providing upper and
lower back support, and reduce the number and frequency of
inspections that Kelly was required to make as Maintenance Manager
of the St. James site. The letter noted that Kelly's "significant
low back and neck pain" made it difficult for him to perform the
physical tasks involved in the site inspections. In addition to
seeking physical accommodations, the letter requested that Siemers
stop Lemoine from making "unjustified, unsupported, and petty
criticisms and reprisals" against Kelly.
Subsequently, the OFCCP completed its investigation and, on
April 20, 1992, informed Kelly of the results. The agency found
4
Kelly to be "an individual with a handicap within the meaning of
Section 503 of the [federal] Rehabilitation Act of 1973," but the
OFCCP determined that BPS "was not aware that [Kelly] was disabled
to the extent that he could not perform his duties . . . perceive[]
[Kelly] as handicapped." The OFCCP also determined that Kelly had
not been harassed or retaliated against and had not sustained any
loss of wages.
One day after the date of OFCCP's letter to Kelly, BPS acted
in response to the February letter from Kelly's lawyer seeking
accommodation. BPS provided Kelly with a letter describing his
job-related physical tasks and requested that an examining
physician, Dr. Robert Hanchey, give his professional opinion
whether Kelly's condition at the time required him to have an
orthopedic chair to perform his duties. The letter did not ask Dr.
Hanchey about Kelly's need for a designated parking space or the
need to limit Kelly's required site inspections. In response, Dr.
Hanchey advised that an ergonomic chair was not a medical
necessity, so BPS did not supply one; neither did Kelly acquire one
on his own in mitigation of damages.
BPS made no adjustments to Kelly's inspection schedule or job
duties but did continue to provide him with a designated parking
space at the St. James site. No such parking space was provided
when BPS transferred Kelly to the New Orleans site. In October
1993, Dr. Hanchey stated in deposition testimony that Kelly had not
been handicapped at the time BPS inquired about Kelly's need for an
ergonomic chair. The physician testified that:
5
With what I had to work with, . . . I d[id]n't
think that [Kelly] [wa]s handicapped to the
point that he be designated that way . . . .
I d[id]n't find him impaired to the degree
that he [could not] do his job or impaired to
the degree that he would be handicapped . . .
I d[id]n't see his current situation requiring
that description.
Although Dr. Hanchey stated that he could not remember if he had
authorized a handicap license plate for Kelly, he said that "[i]f
I did, shame on me." Dr. Hanchey's opinion was that Kelly had a
10% permanent partial/whole body impairment of his lumbar area and
a 5% neck impairment.
Regarding basic life functions, Kelly conceded that his back
injury does not substantially prevent him from caring for himself,
performing manual tasks, seeing, hearing, speaking, breathing, or
learning. He confirmed that he can go shopping, prepare dinner for
himself, and "sometimes" walk around the block; but he stated that
he cannot perform certain types of yard work or errands, play
sports, drive for long periods of time without experiencing pain,
or participate with his children in their sports activities. Kelly
testified that he could not walk for more than 300-400 feet at a
time, that he had trouble lifting objects over five pounds,
reaching, climbing, bending and stooping, and that "[t]he
limitations in my ability to climb have caused severe pain,
especially considering the number and frequency of on-site
inspections which I was ordered to do by Mr. Frank Lemoine" while
employed by BPS at the St. James site.
In addition to Dr. Hanchey, Kelly's physician, a general
practitioner, testified in his deposition that he "turned [Kelly's]
6
case over to Dr. Hanchey for definitive care" and deferred to Dr.
Hanchey's opinion regarding the percentage of Kelly's disability
and whether Kelly needed a special chair. A physical therapist
also examined Kelly during that period. Despite Kelly's many
physical examinations, however, it was not until September 1993,
well after he and BPS parted company, that Kelly was diagnosed by
a neurologist as having multiple sclerosis. The neurologist
determined that at that time Kelly needed an orthopedic chair and
was entitled to a special license plate for the handicapped.
Clearly, however, no one at BPS and none of the health care
professionals who had examined Kelly earlier knew of his multiple
sclerosis when BPS made its decisions (1) not to accommodate Kelly
with the ergonomic chair, (2) not to diminish his inspection
duties, (3) to transfer him to the New Orleans site, and (4) not to
give him a designated parking space at the New Orleans site.
In fact, when Kelly was transferred from the St. James site to
the New Orleans site, at the same rate of pay, the sole
purposeSQaccording to SiemersSQwas to eliminate the "constant
wrangling between site management [Lemoine]" and Kelly; the
transfer had nothing to do with Kelly's physical condition. Even
though the request for Kelly's relocation was initiated by Lemoine,
in whose opinion Kelly was "irresponsible, insubordinate and
blatantly defiant of policy, procedure and[/]or authority," the
transfer decision was not made by Lemoine but by his superiors,
with input from at least three other BPS officials who agreed that
relocating Kelly was the best solution to the friction at the St.
7
James site.
Kelly alleged in his suit against BPS that he qualified as a
handicapped person under La. Rev. Stat. § 46:2251, that BPS failed
to make reasonable accommodations for his handicap, and that his
transfer to the New Orleans site constituted discrimination on the
basis of handicap, as it was instigated by Lemoine because Kelly
was unable to perform the physical requirements of his inspection
duties. Without denying his personal conflict with Lemoine, Kelly
nevertheless took the position at trial that his department ran
well and that he could cooperate with Lemoine regardless of their
differences. The record reflects that Kelly received merit pay
increases in all years preceding 1992, and another in January of
1993, but none in 1992.
BPS countered that (1) it had no knowledge of Kelly's
handicap, (2) Kelly did not fall within the definition of a
"handicapped person" under the state statute, thereby pretermitting
the need to make accommodation, (3) BPS had nonetheless made
efforts to accommodate Kelly's alleged handicap, (4) Kelly's
transfer to the New Orleans facility resulted solely from his
inability to get along with Lemoine, (5) Lemoine did not make the
decision to transfer Kelly to New Orleans, and (6) the BPS
officials who did make the transfer decision did so without
knowledge or consideration of Kelly's alleged inability to perform
the physical requirements of his position as Maintenance Manager of
the St. James site.
After the district court granted a partial summary judgment in
8
favor of BPS,2 the claims that remained to be tried to the jury
fell into either of two categories: (1) reasonable accommodation
or (2) handicap discrimination. Kelly's remaining reasonable
accommodation claim under the Act included the contention that BPS
failed to accommodate his disability by (1) not modifying his work
schedule while he was Maintenance Manager at the St. James site,
and (2) not providing a designated parking space for him at the New
Orleans site. Kelly's handicap discrimination claim under the Act
included the contention that BPS retaliated against him for
requesting reasonable accommodations when it transferred him to the
New Orleans site and denied his 1992 merit pay raise.
At the conclusion of a three-day trial, the jury found that
Kelly was an "otherwise qualified handicapped employee" within the
meaning of the Act, but that he failed to prove by a preponderance
of the evidence that "intentional handicap discrimination" was a
motivating factor in any employment decision by BPS vis-a-vis
Kelly. The district court entered judgment based on the jury's
verdict, dismissing Kelly's claims. Kelly timely appealed,
assigning the two points of reversible error noted above, i.e., the
court's refusal to allow testimonial evidence regarding Lemoine's
allegedly discriminatory remarks to and actions towards other BPS
employees, and the court's instruction to the jury that Kelly was
required to prove "[t]hat intentional handicap discrimination was
a motivating factor in [BPS's] adverse employment decisions."
2
The court dismissed Kelly's claims concerning the ergonomic
chair and a designated parking place at the St. James site, and
Kelly has not re-asserted those claims on appeal.
9
II
ANALYSIS
A. Evidentiary Rulings
1. Standard of Review
We review the evidentiary rulings of the district court
under the deferential abuse-of-discretion standard.3 When, as
here, the district court has conducted, on the record, a carefully
detailed analysis of the evidentiary issues and the court's own
ruling, appellate courts are chary about finding an abuse of
discretion. Here, the district court provided alternative bases
for its rulingsSQrelevance and unfair prejudiceSQwhich we shall
examine in turn to see whether the court's position is supportable
under either or both alternatives.
2. The Evidence Excluded
Kelly proposed to adduce testimony concerning Lemoine's
insensitive actions and unsympathetic attitudes towards other
employees who were members of several disadvantaged minority
groups, including persons with medical, health and handicap
problems, and Lemoine's "Bunker-esque" remarks, jokes and
disparaging statements about these persons and groups. The
district court, in response to BPS's pre-trial Motion in Limine,
ruled inadmissible testimony regarding Lemoine's acts and
statements that implicated matters other than handicap or
3
United States v. West, 22 F.3d 586, 591 (5th Cir.), cert.
denied, 115 S. Ct. 584 (1994); accord United States v. Newman,
982 F.2d 665, 668 (1st Cir. 1992), cert. denied, 114 S. Ct. 59
(1993).
10
disability discrimination. The court did so based on its findings
that:
(1) such evidence of other acts of discrimination not
directed at plaintiff and unrelated to the type of
discrimination at issue (i.e., disability discrimination)
is irrelevant; (2) even assuming some marginal relevance,
such evidence has the substantial potential to confuse
and mislead the jury and is calculated to arouse jury
sympathy of the unfairly prejudicial genre causing the
jury to attempt to punish BPS for other acts of Mr.
Lemoine for which neither he nor BPS is not [sic] on
trial; and (3) the mini-trial which would necessarily
follow evidence of each and every such `other act' would
amount to needless waste of judicial resources and would
add nothing to the plaintiff's case, since the issue here
is whether plaintiff was the target of "disability
discrimination" and there is no suggestion that
plaintiff['s] claims of injury are rooted in either
gender, racial or any type of discrimination other than
disability/handicap discrimination." (emphasis in
original).
In response to that part of Kelly's reply to the Motion in
Limine in which he identified several individuals who would
purportedly testify about Lemoine's acts and comments indicative of
handicap discrimination or bias, however, the court agreed to "hear
such witness' (sic) testimony in camera prior to their taking the
witness stand to determine what portion, if any, of their
testimony, this Court will permit at trial." The court thus denied
BPS's Motion in Limine to the extent it sought to exclude testimony
regarding other instances in which Lemoine's acts or utterances
would directly demonstrate handicap or disability discrimination on
his part.
The evidence excluded following the in camera hearing
comprised testimony that Lemoine (1) disparaged one employee
because he wore a hearing aid; (2) treated another employee in a
11
"less friendly" and more businesslike manner when he returned to
work following heart surgery; (3) treated another insensitively
regarding her health concerns; and (4) was generally "insensitive
and unsympathetic to the medical needs" of BPS employees.
Kelly advocated the admissibility of testimony regarding
Lemoine's handicap-related discriminatory remarks towards other BPS
employees as circumstantial evidence of intentional discrimination,
but the courtSQafter conducting its in camera reviewSQdetermined
that this testimony, like that excluded in limine, was irrelevant
to the particular claims proffered by Kelly and that any probative
value would be outweighed by its potential for unfair prejudice,
confusion and delay. In addition, the court expressed the opinion
that to allow such testimony would open the door to a series of
separate "mini-trials" on each anecdotal incident, implying that
such would further delay the proceedings and confuse the jury.
Kelly nevertheless insists on appeal that in excluding such
testimony the district court abused its discretion by keeping from
the jury evidence of Lemoine's "mind-set and biases towards those
in his employ who were handicapped or infirm." As Kelly makes a
facially plausible case both for the relevance of the testimony
proffered in connection with his discrimination claim and for the
probative value of that evidence not being outweighed by unfair
prejudice, we proceed to scrutinize closely the evidence proffered
in camera and the district court's alternative reasons for
excluding such evidence.
3. Relevance
12
Kelly does not dispute that, to prevail on his
discrimination claim under the Act, he had to show that BPS
intentionally discriminated against him. In support of the
district court's exclusion of the subject testimony, BPS argues
that Kelly's proffered proof of Lemoine's alleged conduct regarding
other employees is not relevant because it does not sufficiently
resemble the treatment of which Kelly complained: job transfer and
denial of pay raise resulting from handicap discrimination.
We have previously observed that "[t]he standard for relevance
is a liberal one."4 "Relevant evidence means evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence."5
Any comments that Lemoine might have directed at Kelly
regarding his particular disability would be clearly relevant and
thus admissible, for that would tend to show discriminatory
animus.6 Less direct evidence of discriminatory intentSQtestimony
of anecdotal instances of Lemoine's conduct towards other BPS
employees is a different matter and one that we must consider. We
therefore turn to an examination of the testimony excluded in the
court's ruling on the Motion in Limine and the testimony excluded
4
EEOC v. Manville Sales Corp., 27 F.3d 1089, 1093 (5th Cir.
1994), cert. denied, 115 S. Ct. 1252 (1995).
5
Fed. R. Evid. 401.
6
See id. at 1094-95 (district court abused discretion in age
discrimination suit by excluding testimony that supervisor referred
to plaintiff as "old man" and described him as "old and
inflexible.")
13
after the court's in camera examination to decide whether the court
abused its discretion in determining relevance.
a. Evidence of Acts Other Than Handicap or Disability
Discrimination
The court in its ruling on BPS's Motion in Limine prohibited
Kelly from presenting testimony about Lemoine's alleged
discriminatory or bigoted acts or statements regarding race, sex
and other categories besides handicap or disability. We agree with
other circuits that have cautioned that an appellate court should
carefully examine blanket pre-trial evidentiary rulings.7 In this
instance, our thorough consideration of the district court's pre-
trial evidentiary ruling leads us to the conclusion that it was
correct.
We do not believe that testimony about Lemoine's random acts
and remarks concerning matters unrelated to handicaps or
disabilities has any tendency to prove that Lemoine discriminated
against Kelly on the basis of his handicap. In Rauh v. Coyne8, the
district court excluded evidence of racial animus in a case
alleging discrimination based on sex and marital status because the
court found that there existed only a "weak correlation" between
7
See Estes, 856 F.2d at 1103 (deeming significant that "the
court's determinations of probative value and prejudice were made
before trial began, rather than during the development of the
plaintiff's case before the jury."); Riordan v. Kempiners, 831 F.2d
690, 697 (7th Cir. 1987) (finding careful review necessary because
judge's discretion was exercised "on a wholesale basis before trial
began, rather than in response to developing course of trial").
8
744 F.Supp. 1181 (D.D.C. 1990).
14
sex and race discrimination.9 Similarly, we find a tenuous
relationship here between discrimination that could be reflected in
Lemoine's derogatory remarks about race, sex, and national origin
and discrimination based on handicap, which is the focus of Kelly's
complaint.
We therefore agree with the district court that Lemoine's acts
of unrelated discrimination are irrelevant, particularly given that
Lemoine was not one of the BPS executives who made or participated
in the ultimate determinations (1) to transfer Kelly to the New
Orleans site and deny him a designated parking space there, (2) to
withhold Kelly's 1992 merit raise, and (3) to refuse to reduce the
number and frequency of Kelly's inspections at the St. James site.
Unlike cases in which the proffered evidence related to the same
kind of discrimination and in which bigoted superiors directly made
or participated in the employment decisions complained of, the
court's ruling regarding anecdotal incidents of unrelated kinds of
prejudice cannot be labeled an abuse of discretion when considered
within the framework of this case.
b. Evidence of Handicap or Disability Discrimination
When a plaintiff must prove intentional discrimination, a
district court can abuse its discretion by limiting a plaintiff's
ability "to show the `atmosphere' in which the plaintiff[]
`operated.'"10 In seeking to demonstrate that the district court
9
Id. at 1183.
10
Ratliff v. Governor's Highway Safety Program, 791 F.2d 394,
402 (5th Cir. 1986). Although courts have held that "background
evidence" of race or sex discrimination should be admitted in cases
15
here thus abused its discretion, Kelly turns for support to a body
of jurisprudence typified by the Eighth Circuit's opinion in Estes
v. Dick Smith Ford, Inc.11
The Estes court held that a trial court abused its discretion
by excluding evidence that tended to show a climate of race and age
bias in a suit alleging discrimination on those grounds.
Specifically, the Estes trial court had refused to admit evidence
that the employer (1) excluded blacks from its work force,
(2) fired two other employees because of their ages, (3) offered
free rides to white customers, but not to black customers, and
(4) referred pejoratively to blacks.12 The Eighth Circuit found,
inter alia, that evidence of the employer's prior acts of race
discrimination against customers was relevant to allegations of
race discrimination against one employee, as the same persons were
responsible for the same types of discrimination. The Estes court
noted:
It defies common sense to say, as [the
employer] implies, that evidence of an
employer's discriminatory treatment of black
customers might not have some bearing on the
question of the same employer's motive in
discharging a black employee.13
The Estes court also found that the district court abused its
in which plaintiff must prove intentional discrimination, we are
aware of no case addressing admissibility of similar evidence in a
handicap discrimination suit; we do not perceive, however, a
meaningful distinction between these types of discrimination cases.
11
856 F.2d 1097 (8th Cir. 1988).
12
See id. at 1102.
13
Id. at 1104.
16
discretion in excluding evidence that one of the employees who
participated in the decision to fire the plaintiff told racist
jokes.14 Although the court noted that isolated racist comments do
not themselves constitute a violation of Title VII, it reasoned
that such evidence is probative whether an employee was discharged
because of discriminatory animus.15
In another Eighth Circuit case, Hawkins v. Hennepin Technical
Center,16 involving unlawful retaliation following an employee's
complaints of allegedly discriminatory employment practices based
on sex, the court invoked Estes to hold that the trial court abused
its discretion in excluding evidence of litigation between the
employer's former students and the employer over alleged acts of
sexual harassment.17 The Hawkins court reasoned that "an atmosphere
of condoned sexual harassment in a workplace increases the
likelihood of retaliation for complaints [of sexual harassment] in
individual cases."18 The court additionally expressed the opinion
that "[b]ecause an employer's past discriminatory policy and
practice may well illustrate that the employer's asserted reasons
for disparate treatment are a pretext for intentional
discrimination, this evidence should normally be freely admitted at
14
Estes, 856 F.2d at 1104.
15
See id.
16
900 F.2d 153 (8th Cir.), cert. denied, 498 U.S. 854 (1990).
17
See id. at 155-56.
18
Id. at 156.
17
trial."19
Casting its lot with the Estes/Hawkins line of jurisprudence,
the Third Circuit recently held in Glass v. Philadelphia Electric
Co.20 that a district court abused its discretion by repeatedly
barring a plaintiff, during the course of the trial, from
introducing evidence of a racially hostile work environment in a
suit alleging race and age discrimination. Citing Hawkins with
approval, the Glass court stated that such evidence "should have
been admitted to help Glass meet his burden of proving intentional
discrimination" and that it was highly probable that the
evidentiary rulings affected the outcome of the case.21 Given the
similarity of the instant case to Estes, Hawkins, and Glass, we
proceed to determine whether the reasoning in those casesSQthat a
background of discrimination is probative of an instance of that
same type of discrimination--applies equally to the handicap-
related testimony proffered by Kelly here.
Kelly urges that the logic of Estes and Hawkins applies here
because Lemoine's allegedly discriminatory acts regarding the
disabilities of other BPS employeesSQfor example, his making fun of
an employee's use of a hearing aid and his jokes about the
disabledSQcould be probative of the question whether Lemoine had an
invidious, discriminatory motive in recommending that Kelly, a
handicapped employee, be transferred to the New Orleans site. Both
19
Id. at 155-56.
20
34 F.3d 188 (3d Cir. 1994).
21
Id. at 195.
18
Estes and Hawkins can be distinguished from the instant case,
however, because in both of those cases the trial courts had
excluded the evidence in question before the trials commenced,
making blanket exclusions in response to motions in limine. The
Eighth Circuit found that aspect noteworthy in both cases and
expressed the opinion that "`blanket evidentiary exclusions can be
especially damaging in employment discrimination cases, in which
plaintiffs must face the difficult task of persuading the fact-
finder to disbelieve an employer's account of its own motives.'"22
Similarly in Glass, the court took note of the "judicial
inhospitability to blanket evidentiary exclusions in discrimination
cases."23 Although the trial court in Glass had repeatedly excluded
the same proffered testimony during the trial -- and not pre-trial
as in Estes and Hawkins -- its repeated exclusions were made in a
consistently blanket fashion from the beginning.
In contrast, the evidentiary rulings to which Kelly most
vociferously objects on appeal were made individually during the
trial, and not under a blanket exclusion. The district court's
careful subjective consideration of the relevance of each proffered
witness' testimony is a factor that we find significant in our
analysis. Despite the distinguishing features of the Estes,
Hawkins, and Glass cases, however, we too must examine the specific
testimony proffered by Kelly to determine whether the trial court
22
Hawkins v. Hennepin Technical Center, 900 F.2d 153, 155
(8th Cir.)(quoting Estes v. Dick Smith Ford, Inc., 856 F.2d 1097,
1103 (8th Cir. 1988)), cert. denied, 498 U.S. 854 (1990).
23
Glass, 34 F.3d at 195.
19
abused its discretion in finding the excluded evidence irrelevant
to Kelly's claims.
In ruling on the admissibility of testimony by those remaining
Kelly witnesses who purportedly would speak to Lemoine's acts or
remarks implicating handicap or disability, the court conducted an
in camera examination during the course of the trial. Our close
reading of the transcript of the court's questioning of some of
these witnesses and of Kelly's counsel, out of the hearing of the
jury, convinces us that the court's ruling cannot be tarred with
the brush of abuse of discretion. When the court analyzed the true
nature of the proffered testimony, relevance essentially
evaporated. In fact, the most telling revelation of the in camera
proceeding may well have been the testimony of one of Kelly's
proposed witnesses expressing his opinion that the reason Kelly and
Lemoine "couldn't get along" was that each of them was a "strong
manager" and simply had a "personality conflict." The proffered
testimony reflected in the in camera transcript revealed, at most,
that Lemoine engaged in typical, blue-collar (as distinguished from
executive suite) workplace kidding, well short of cruel
disparagement or mockery. For example, as characterized by counsel
for BPS at oral argument to this court, Lemoine's remarks about an
employee's use of a hearing aid were made in the same vein as the
self-deprecating remarks that the wearer of the hearing aid himself
made on occasion.
In sum, we are satisfied that the court's relevance rulings,
both in limine and in camera, while admittedly close, did not rise
20
to the level of abuse of discretion.
4. Unfair Prejudice
Even if we were to assume, arguendo, that the district court
erred on its relevance call and did so to the point of abuse of
discretion, we would still sustain the evidentiary rulings of the
district court under its application of Fed. R. Evid. 403.
Rule 403 provides that:
Although relevant, evidence may be excluded if
its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the
jury, or by considerations of undue delay,
waste of time, or needless presentation of
cumulative evidence.24
In ruling on BPS's Motion in Limine, the court conducted the
required balancing test and determined that the probative value of
the proffered evidence was "greatly outweighed by the danger of
unfair prejudice, confusion of the issues, and the veritable
certainty that the presentation of such evidence would mislead and
inflame the jury." Again, our study of the transcript of the
pertinent proceedings, which we conduct under the deferential
abuse-of-discretion standard, constrains us to leave the ruling
undisturbed.
We acknowledge that in discrimination cases
[c]ircumstantial proof of discrimination
typically includes unflattering testimony
about the employer's history and work prac-
ticesSQ evidence which in other kinds of cases
may well unfairly prejudice the jury against
the defendant. In discrimination cases,
however, such background evidence may be
24
Fed. R. Evid. 403.
21
critical for the jury's assessment of whether
a given employer was more likely than not to
have acted from an unlawful motive.25
Nevertheless, given (1) Lemoine's attenuation from the decision-
making process affecting Kelly's employment conditions, (2) the
dearth of evidence showing discriminatory animus or knowledge of
the facts by those BPS executives who did participate directly in
that decision-making process, and (3) the picture, painted by the
overwhelming evidence, of a long-simmering and frequently-boiling
personality conflict between these two strong managers, we are not
prepared to say that the court abused its discretion in its
alternative ruling under Fed. R. Evid. 403 that the evidence should
be excluded as unfairly prejudicial.
5. Substantial Rights
Erroneous evidentiary rulings by the trial court constitute
reversible error only when those rulings have affected a party's
substantial rights.26 An error does not affect substantial rights
"if the court is sure, after reviewing the entire record, that the
error did not influence the jury or had but a very slight effect on
its verdict."27 We do not see that here the exclusion of the
proffered testimony affected Kelly's substantial rights. Having
scoured the record we are satisfied that, even if we assume,
arguendo, that the evidence was relevant and that its probative
25
Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1103
(8th Cir. 1988).
26
See Fed. R. Evid. 103.
27
EEOC v. Manville Sales Corp., 27 F.3d 1089, 1094 (5th Cir.
1994) (citations omitted), cert. denied, 115 S. Ct. 1252 (1995).
22
value was not substantially outweighed by its potential for unfair
prejudice, Kelly's substantial rights were simply not affected.
Even though under different circumstances, we have held that the
exclusion of indirect evidence that is probative of discriminatory
intent can taint a jury's verdict,28 the facts noted in our
discussion of relevance and unfair prejudice distinguish the
instant case. For we can perceive of no influenceSQcertainly none
greater than "very slight"SQthat the excluded testimony, if
admitted, would have had on the jury's verdict; no effect, that is,
other than "unfair prejudice," which neither we nor the district
court can condone. In the face of the overwhelming evidence of
Kelly's employment and back injury histories, the knowledge (or
lack thereof) on the part of BPS officials superior to Lemoine, the
bad chemistry between Kelly and Lemoine, and the opinions of
physicians and the OFCCP, we remain convinced that the modicum of
evidence rejected by the court could hardly have defeated BPS's
plausible, non-discriminatory reasons for the employment decisions
that Kelly points to as evidence of discrimination against him. We
are therefore comfortable in the conclusion that the district court
committed no reversible error in excluding Kelly's proffered
evidence.
28
See, e.g., id. at 1095; see also Estes, 856 F.2d at 1105
(exclusion of evidence was reversible error); Hawkins v. Hennepin
Technical Center, 900 F.2d 153, 155 (8th Cir.) (reversible error),
cert. denied, 498 U.S. 854 (1990); Glass v. Philadelphia Elec. Co.,
34 F.3d 188, 195 (3d Cir. 1994) (reversible error); Riordan v.
Kempiners, 831 F.2d 690, 697-99 (7th Cir. 1987) (reversible error).
23
B. Jury Instruction
The second barrel fired by Kelly at the district court's
conduct of the trial is his complaint that the district court erred
in instructing the jury that Kelly was required to prove by a
preponderance of the evidence "[t]hat intentional handicap
discrimination was a motivating factor in [BPS's] adverse
employment decisions." Although Kelly concedes that this
instruction correctly describes the standard of proof for his
discrimination claim, he insists that the court erred by applying
the same standard to his reasonable accommodation claim. Kelly
contends that to prevail on those claims he should not have been
required to show "intentional" handicap discrimination, only that
BPS failed or refused to accommodate his disability, regardless of
intent.
Before turning to the substantive aspects of Kelly's second
claim on appeal, however, we must determine the correct standard
for our review. Rule 51 of the Federal Rules of Civil Procedure
requires that for an objection to a jury instruction to be
preserved on appeal, a party must "object to it before the jury
retires to consider its verdict, stating distinctly the matter
objected to and the grounds of the objection."29 Kelly failed to
object to the jury instruction he now challenges; therefore, he did
not preserve the issue for appeal. Although Kelly submitted a
proposed jury instruction and a verdict form that the district
court subsequently rejected, we do not find that these proposals
29
Fed. R. Civ. P. 51.
24
made Kelly's position sufficiently clear to the court to satisfy
Rule 51's objection requirement. As Kelly failed to object to the
court's jury instruction, we review Kelly's contention on appeal
under a "plain error" standard.30 In reviewing for plain error in
this instance, we must determine whether "the deficient charge
[wa]s likely responsible for an incorrect verdict which in itself
creates a substantial injustice"31 or resulted in a "`plain error'
so fundamental as to result in a miscarriage of justice."32 We
conclude from the analysis which follows that the instruction now
challenged by Kelly did not produce plain error.
1. Plain Language
Our starting point is with the plain language of the statute
under which Kelly brought his suit, acknowledging that "[i]f
language is plain and unambiguous, it must be given effect."33
In § 2254(C), the Louisiana legislature specified in detail
the types of employer conduct for which an employee may seek
redress under the Act. In particular, § 2254(C)(1) addresses an
employer's obligation to accommodate an employee's disability,
stating that an employer shall not:
30
See Middleton v. Harris Press & Shear, Inc., 796 F.2d 747,
749 (5th Cir. 1986) ("where no timely objection is made to a jury
instruction, the claimed error cannot be reviewed on appeal unless
giving the instruction was `plain error' so fundamental as to
result in a miscarriage of justice").
31
Roberts v. Wal-Mart Stores, Inc., 7 F.3d 1256, 1259
(5th Cir. 1993) (citations omitted).
32
Middleton, 796 F.2d at 749.
33
William N. Eskridge, Jr. & Philip P. Frickey, Legislation
707 (2d ed. 1995).
25
[f]ail or refuse to hire, promote or reasonably
accommodate an otherwise qualified individual on the
basis of a handicap when it is unrelated to the
individual's ability with reasonable accommodation to
perform the duties of a particular job or position.34
When parsed as to reasonable accommodation, the plain language of
this provision prohibits an employer from failing or refusing "to
. . . reasonably accommodate" [1] an otherwise qualified individual
[2] on the basis of a handicap [3] when [such handicap] is
unrelated to the individual's ability [4] with reasonable
accommodation [5] to perform the duties of a particular job or
position."
We first look to see whether the phrase "on the basis of
handicap" requires a plaintiff to show a nexus between the adverse
employment decisionSQhere, refusal to accommodateSQand his
disability.35 Common parlance, rules of grammar, and rules of
statutory interpretation all militate in favor of an interpretation
requiring such nexus. Otherwise, the phrase would be mere
surplusage. At a minimum, "on the basis of handicap" has to mean
that to be actionable the employer's failure or refusal to
accommodate must be motivated by the employee's handicap.
Finding that prerequisite does not, however, resolve the issue
in the instant case, for Kelly insists that he was not required to
prove "intentional" handicap discrimination, only the motivation.
34
La. Rev. Stat. § 46:2254(C)(1).
35
The remainder of the provision, "when [the handicap] is
unrelated to the individual's ability with reasonable accommodation
to perform the duties of a particular job or position," means that
the employee's handicap must not render the employee incapable of
performing his job, given a reasonable accommodation.
26
But regardless of whether Kelly refers to invidious, improperly-
motivated conduct or simply volitional conduct when he objects to
the "intentional" requirement, his concession that he is required
to show "intentional handicap discrimination" to prevail on his
discrimination claim leads inexorably to the conclusion that
perforce he is also required to make the same showing to prevail on
his reasonable accommodation claim. Why? Because the pertinent
language of § 2254(C)(2), which governs Kelly's discrimination
claim, is identical to the language of § 2254(C)(1) which governs
his accommodation claim: Both subsections prohibit an employer
from acting "on the basis of a handicap."36 Thus we ask
rhetorically: If, as Kelly concedes, the phrase "on the basis of a
handicap" in § 254(C)(2) imposes on a plaintiff the burden of
proving "intentional handicap discrimination," must we not
interpret that phrase identicallySQand impose a congruent burden on
a plaintiffSQwhen, in § 2254(C)(1), it is used identically in
reference to reasonable accommodation? Clearly we must.
2. Purpose
We apply the plain language of a statute unless "literal
36
Compare La. Rev. Stat. § 46:2254(C)(1) (An employer shall
not "fail or refuse to hire, promote, or reasonably accommodate an
otherwise qualified individual on the basis of a handicap when it
is unrelated to the individual's ability with reasonable
accommodation to perform the duties of a particular job or
position.") with La. Rev. Stat. § 46:2254(C)(2) (An employer shall
not "[d]ischarge or otherwise discriminate against an otherwise
qualified individual with respect to compensation or the terms,
conditions, or privileges of employment, on the basis of a handicap
when it is unrelated to the individual's ability to perform the
duties of a particular job or position.").
27
interpretation [would] . . . thwart manifest purpose."37 As we have
just noted, the basic rules of statutory construction dictate that
the plain language of § 2254(C)(1) should be interpreted to mean
that a plaintiff must show "intentional handicap discrimination" to
recover on an accommodation claim. As we shall demonstrate, our
literal reading of the plain language does not thwart the purpose
of the legislation.
The stated purpose of the Act is:
[t]o assure that every individual within the
state is afforded an equal opportunity to
enjoy a full and productive life and that the
failure to provide such equal opportunity,
whether because of discrimination, prejudice,
or intolerance[,] not only threatens the
rights and proper privileges of its
inhabitants but menaces the institutions, the
foundation of a free democratic state, and
threatens the peace, order, health, safety,
and general welfare of the state and its
inhabitants.
The opportunity to obtain employment,
education, housing, and other real estate and
full and equal utilization of public services
and programs without discrimination on the
basis of a handicap is a civil right.38
The pertinent language in the Act's stated purpose is capable
of supporting a determination that the legislature intended to make
handicap discrimination actionable only when it is produced by
untoward motivation. The Louisiana legislature specifically
identified as one purpose of the statute the assurance that
individuals would not be denied "equal opportunity . . . because of
37
Litigation, supra note 33, at 707.
38
La. Rev. Stat. § 46:2252 (emphasis added).
28
discrimination, prejudice, or intolerance"39SQthree words used here
not as separate evils but as synonyms for the same abomination.
Had the legislature meant to include deprivation of opportunity
because of mere indifference or inattention to disability, it could
have done so with ease; yet it did not. True, the legislature
included only "discrimination" and omitted "prejudice" and
"intolerance" in the second paragraph of the Act's stated purpose
in which entitlement to be free of discrimination on the basis of
a handicap is defined as a "civil right." But the fact that the
legislature chose to use "prejudice" and "intolerance" synonymously
with "discrimination" in the first paragraph of § 2252 to emphasize
and identify the evil proscribed therein does not justify reading
meaning into the omission of those synonyms from the second
paragraph of § 2252. We do not discern from the omission some
cryptic and unnecessarily subtle legislative intent to include
benign as well as invidious handicap discrimination when defining
the civil right of, inter alia, the opportunity to obtain
employment, while condemning only invidious handicap discrimination
that denies one's opportunity to enjoy a full and productive life.
Rather, we perceive such omission as nothing more sinister than
avoidance of unnecessary repetition, something to be applauded in
statutory drafting. Thus we find nothing in the Act's stated
purpose that supports the existence of a cause of action in
39
Standing alone, the word "discrimination" does not
necessarily connote invidious motives, but here it heads the list
which includes "prejudice and intolerance," apparently indicating
the legislature's intent to proscribe only "bad" discrimination.
29
handicap-based employment discrimination when such discrimination
results benignly from negligence, indifference or inattention. As
such, our reading of the plain language of the statute does not
thwart the manifest purpose of the legislation.
3. Federal Law
Both Kelly and BPS discuss the Act in light of the
federal Rehabilitation Act of 197340 and cases that construe that
statute. We proceed with caution before relying on such federal
sources, however, given several obvious differences between the
state and federal statutes.
a. Language
There admittedly are a number of provisions of the
Louisiana statute that closely parallel provisions in the federal
Rehabilitation Act. For instance, one Louisiana court was
persuaded by such parallelism to look to jurisprudence under the
Rehabilitation Act for guidance in interpreting the term
"handicapped person."41 In the instant situation, however, the text
of the pertinent provision of the state statute does not replicate
40
29 U.S.C. § 701 et seq.
41
See Turner v. City of Monroe, 634 So.2d 981, 984-85
(La. App. 2d Cir. 1994). Under the Act, "`[h]andicapped person'
means any person who has an impairment which substantially limits
one or more major life activities or (a) has a record of such an
impairment or (b) is regarded as having such an impairment." La.
Rev. Stat. § 46:2253(1).
Similarly, the Rehabilitation Act defines "individual with
disability" to mean "any person who (i) has a physical or mental
impairment which substantially limits one or more of such person's
major life activities, (ii) has a record of such an impairment, or
(iii) is regarded as having such an impairment." 29 U.S.C.
§ 706(8)(B).
30
the corresponding provision in the Rehabilitation Act. The federal
statute provides in pertinent part that:
No otherwise qualified individual with a
disability . . . shall, solely by reason of
her or his disability, be excluded from the
participation in, be denied the benefits of,
or be subjected to discrimination.42
The Louisiana statute, on the other hand, states that an employer
shall not,
[f]ail or refuse to hire, promote, or
reasonably accommodate an otherwise qualified
individual on the basis of a handicap when it
is unrelated to the individual's ability with
reasonable accommodation to perform the duties
of a particular job or position.43
Obviously, then, the federal statute proscribes discrimination "by
reason of her or his disability" only when disability is the sole
motivating factor; in contrast, the state statute proscribes
failure to accommodate a handicapped employee "on the basis of
handicap." So, for failure to accommodate to be actionable under
the state statute, handicap discrimination need not be the "sole"
factor motivating the adverse employment decision. In addition, it
is not clear whether "by reason of" in the federal legislation
should be deemed congruent with "on the basis of" in the Louisiana
statute, particularly when those phrases are read in light of the
express purposes of their respective statutes.
b. Purpose
The express purposes of the federal statute are broader
42
29 U.S.C. § 794(a) (1988).
43
La. Rev. Stat. § 46:2254(C)(1).
31
than the express purpose of the state statute. We have already
quoted the purpose provision of the Louisiana statute.44 The
purposes of the Rehabilitation Act with respect to the federal
government's duty to eradicate handicap discrimination are more
expansive and proactive:
The purposes of the Rehabilitation Act are:
(1) to empower individuals with disabilities
to maximize employment, economic sufficiency,
independence, and inclusion and integration
into society, throughSQ
(A) comprehensive and coordinated
state-of-the-art programs of
vocational rehabilitation;
(B) independent living centers and
services;
(C) research;
(D) training;
(E) demonstration projects;
and
(F) the guarantee of equal
opportunity; and
(2) to ensure that the Federal Government
plays a leadership role in promoting the
employment of individuals with disabilities,
especially individuals with severe
disabilities, and in assisting States and
providers of services in fulfilling the
aspirations of such individuals with
disabilities from meaningful and gainful
employment and independent living.45
Although the statements of purposes in both statutes are steeped in
altruism, we perceive their approaches to be sufficiently different
to eschew reliance on parallel legislative purposes.
c. Extant Federal Law
Even if we were to look to federal law for guidance, we
44
La. Rev. Stat. § 46:2252. See quoted text of provision
accompanying note 38, supra.
45
29 U.S.C. § 701(b).
32
would find none regarding our specific question. To recover under
the Rehabilitation Act, a plaintiff generally must prove that he
(1) was an individual with a disability; (2) was "otherwise
qualified"; (3) worked for a "program or activity" that received
federal financial assistance; and (4) was adversely treated solely
because of his disability.46 The parties have not cited a single
case construing the Rehabilitation Act, and we have found none
independently, that considersSQmuch less decidesSQwhether an
employee must prove intentional discrimination to recover
compensatory damages for his employer's refusal to make a
reasonable accommodation. The probable explanation for this dearth
of jurisprudence on the salient point may lie in the observation
that, in the federal context, the concept of reasonable
accommodation almost always arises as a subissue in a claim that an
employer violated the Rehabilitation Act by failing to hire or
promote a disabled individual, not as a free-standing failure to
accommodate claim for compensatory damages. But whatever the
reason, there are simply no cases on point (or at least we have
found none).
Kelly attempts to rely on Alexander v. Choate47 to support his
argument that, to prove his reasonable accommodation claim, he
should not have been required to show that BPS intentionally
discriminated on the basis of his handicap. But, as BPS observes,
46
See Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir.
1993), cert. denied, 114 S.Ct. 1386 (1994).
47
469 U.S. 287 (1985).
33
the reasons that the plaintiff in Alexander was not required to
prove intentional handicap discrimination was because Alexander
involves disparate impact.48 Not so Kelly's reasonable
accommodation claim; it involves disparate treatment, which does
require a showing of intentional discrimination.49 In Alexander,
the Supreme Court advised the courts to consider "two powerful but
countervailing considerationsSQthe need to give effect to the
statutory objectives and the desire to keep § 504 within manageable
bounds."50 The Court observed that "discrimination against the
handicapped was perceived by Congress to be most often the product,
not of invidious animus, but rather of thoughtlessness and
indifferenceSQof benign neglect."51 In Alexander, therefore, the
Court expressly rejected the notion that a plaintiff is required to
show discriminatory intent to establish a prima facie case of
disparate impact under § 504, and required only that a plaintiff
prove his employer's failure to make "reasonable" modifications to
accommodate the handicapped. As Kelly's case is one of disparate
treatment, however, his analogical reliance on Alexander is
misplaced. Federal statutory and jurisprudential sources are
inapposite when the question is whether intent is an essential
48
See id. at 293-99.
49
See, e.g., Pesterfield v. Tennessee Valley Auth., 941 F.2d
437, 443 & n.2 (6th Cir. 1991) (plaintiff must prove discriminatory
intent in case alleging disparate treatment, but no such proof is
required in case alleging disparate impact).
50
Alexander, 469 U.S. at 299.
51
Id. at 295.
34
element of recovery under the Act for failure to accommodate.
Suffice it that, from our review of the language and purpose of the
Act, we find no manifest injustice resulting from the district
court's jury instruction requiring intentional handicap
discrimination for Kelly to prevail on his reasonable accommodation
claim. And, absent manifest injustice, there is no plain error.
III
CONCLUSION
Kelly has failed to convince us that the ambit of the Act,
which governs his reasonable accommodation claim, is broad enough
to reach beyond intentional handicap discrimination and encompass
unknowing, negligent or benign handicap discrimination that
produces a failure to make a reasonable accommodation. We thus
find no plain error, and thus no reversible error, in the district
court's jury instruction that, for Kelly to prevail, the jury had
to find intentional discrimination on account of handicap. Neither
do we find reversible error in the court's rulings excluding
testimony proffered by Kelly. For the foregoing reasons,
therefore, the judgment of the district court is, in all respects,
AFFIRMED.
35