Legal Research AI

William Collado v. United Parcel Service Co.

Court: Court of Appeals for the Eleventh Circuit
Date filed: 2005-08-02
Citations: 419 F.3d 1143
Copy Citations
69 Citing Cases

                                                                                   [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                             August 2, 2005
                                     No. 04-11297
                                                                        THOMAS K. KAHN
                               ________________________                     CLERK

                            D. C. Docket No. 01-08121-CV-SH

WILLIAM COLLADO,


                                                                           Plaintiff-Appellant,

                                             versus

UNITED PARCEL SERVICE, CO.,
a foreign corporation,

                                                                         Defendant-Appellee.


                               ________________________

                       Appeal from the United States District Court
                           for the Southern District of Florida
                             _________________________

                                       (August 2, 2005)

Before CARNES and COX, Circuit Judges, and STROM *, District Judge.

CARNES, Circuit Judge:

       *
          Honorable Lyle E. Strom, United States District Judge for the District of Nebraska,
sitting by designation.
      Willie Collado appeals the district court’s order setting aside the jury verdict

in his favor and granting judgment as a matter of law for his employer, United

Parcel Service, on his discrimination and retaliation claims under the Americans

with Disabilities Act, 42 U.S.C. § 12101 et seq. Most of Collado’s arguments

revolve around the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.

1817 (1973), framework for proving a discrimination case based on circumstantial

evidence.

      One issue Collado has brought us is particularly interesting because it arises

at the intersection—some might say collision—of two rules of law. It is a well-

established rule in job discrimination cases involving circumstantial evidence that

the existence of a prima facie case should not be revisited after the defendant’s

Fed. R. Civ. P. 50(a) motion has been denied. It is an equally well-established and

even more fundamental rule that judgment should be entered for the defendant

where the plaintiff has failed to prove a necessary element of his case. What

happens when the district court decides at the end of the trial, even after judgment,

that the plaintiff has not proven his claim because he has failed to establish a

necessary element, which also is a component of the prima facie case?

      That occurred in this case. The district court entered under Fed. R. Civ. P.

50(b) a post-verdict judgment for the defendant on the ground that Collado had



                                           2
failed to prove he was disabled, and the court explained its decision in terms of the

plaintiff’s failure to make out a prima facie case. Collado complains that the

court’s Rule 50(b) post-verdict action amounts to revisiting the prima facie case

question after it was settled at the Rule 50(a) stage.

      There are other issues, as well, but before getting to any of the issues we will

set out the historical and procedural facts that frame them all.

                                           I.

      Collado, who has been an insulin-dependent diabetic since he was fourteen

years old, was hired by UPS in 1991 as a part-time truck reloader in one of its

south Florida facilities. He proved to be a well-liked and hard-working employee,

and he was promoted to other positions at UPS, including driving trucks.

      In order to drive most of UPS’s trucks Collado had to be certified by the

federal Department of Transportation. The DOT regulates all vehicles used in

interstate commerce that weigh more than 10,000 pounds and imposes minimum

qualifications for the people who drive those vehicles. 49 C.F.R. §§ 390.3(a),

390.5, 391.1(a). Ninety-five to ninety-eight percent of UPS’s truck fleet in south

Florida is DOT regulated. UPS gives its trucks number designations depending on

the size of the vehicle, ranging from the P-20 (the smallest) to the P-1200 (the

largest). All trucks larger than the P-500s weigh more than 10,000 pounds and are



                                            3
DOT regulated. Any P-500 truck manufactured after 1984 is also DOT regulated

because it weighs more than 10,000 pounds.

      Because UPS does not assign any of its lighter unregulated trucks to regular

full-time routes, it requires all of its full-time truck drivers to be DOT certified.

To become DOT certified, a driver must undergo a physical exam and obtain a

medical examiner’s certificate verifying that he is physically qualified, as defined

by the DOT’s regulations. Id. § 391.41(a).

      In 1993 Collado went to a physician chosen by UPS to get his DOT

certification. He told the doctor about his diabetes and medications. Although the

DOT regulations specifically state that insulin-dependent diabetics are not

physically qualified to drive regulated vehicles, id. § 391.41(b)(3), the doctor

nevertheless certified Collado as physically qualified and gave him a DOT card.

      Based on that mistaken certification, UPS promoted Collado to full-time

driver in October 1994. He held that position for four years, driving several

different routes during that time. Depending on the route he was assigned, Collado

drove trucks that varied in size, ranging from P-500s, some of which are regulated,

through P-1000s, all of which are regulated. As a full-time driver, Collado was

eligible for, and regularly earned, “productivity bonuses” for completing his

deliveries on schedule.



                                            4
       In 1998 UPS district safety manager Herman Radish discovered that Collado

was an insulin-dependent diabetic and, therefore, not physically qualified to hold a

DOT certificate. After learning that, Radish ordered Collado’s manager, Ralph

Terrell, to remove Collado from his full-time driving position.

       Following his removal from the full-time driving job in May of 1998,

Collado was moved through a series of positions at UPS. One of them was a split-

shift position in which Collado worked a partial morning shift inside the UPS

facility and then returned to work another partial shift doing the same thing in the

evening. Later Collado had a non-split, hybrid job where he pre-loaded trucks

each morning and drove a P-500 truck in the afternoon.1 He stayed in that hybrid

position until February or March 1999, when Collado’s new supervisor, Bob Story,

returned him to a full-time driving position and permitted Collado to drive a DOT-

regulated P-1000 truck all day. (It is not clear from the record why Collado was

permitted to return to driving a P-1000 truck in spite of DOT regulations.)

       When safety manager Radish learned that Collado was once more driving

regulated trucks in violation of DOT regulations, Radish had Ralph Terrell, the

center manager, remove Collado from that position. Terrell told Collado that he


       1
         At that time, UPS thought Collado was still eligible to drive all P-500 trucks. UPS did
not learn that P-500s made after 1984 weigh more than 10,000 pounds (and are, therefore, DOT
regulated) until 2000, when a diabetic UPS employee passed out while driving a P-500 truck and
caused a traffic accident death.

                                               5
had been removed because UPS thought he “couldn’t drive” due to his diabetes.

Collado was briefly returned to his old split-shift position. Then, at Collado’s

request, UPS returned him to the non-split, hybrid position, where he spent his

time pre-loading in the morning and driving a non-regulated P-500 truck in the

afternoon.

      On June 9, 1999, after he had twice been removed from his position as a

full-time driver, Collado filed an EEOC charge. He claimed that he was removed

from his position as a full-time driver even though he was “qualified for the

position of Driver,” and he complained about the split-shift and other positions

UPS had given him. Collado also alleged in his EEOC charge that UPS had failed

to put him back in his full-time driver position because he had “complained about

[UPS’s] discriminatory act of removing [him] and insisted on reinstatement.”

      That same month, in investigating Collado’s complaint, Radish learned that

UPS required all diabetic employees to complete a “Diabetes Protocol” before they

could drive any trucks. The protocol is a medical questionnaire used by UPS to

confirm that a diabetic employee is under a physician’s care and successfully

controlling his diabetes. Under its policy, UPS should have required Collado to

complete the protocol before he was ever permitted to drive an unregulated P-500,

but it had not done so because Radish had not been aware of the protocol. Once



                                          6
Radish learned of the protocol, he insisted that Collado complete it before he could

continue to drive the nonregulated P-500 trucks.

      Thus, in June 1999, Collado was removed from his hybrid position, which

involved driving unregulated P-500 trucks in the afternoon, and he was given the

protocol paperwork to have his doctor fill out. While the completion and approval

of Collado’s protocol was pending, UPS moved him to an inside split-shift position

where he would work a total of eight hours divided in two parts stretching over

eighteen or nineteen hours. Collado opted to work only the morning part of that

split-shift due to the difficulty of working both parts of it.

      Collado’s doctor signed his completed protocol on June 25, 1999. After

Collado returned from a two-week paid vacation, he was informed by Terrell that

because his protocol had been completed by his doctor and approved by UPS he

could return to the hybrid pre-load/P-500 driving job. Terrell also asked Collado if

he was going to drop the EEOC charge. Collado responded that he would not.

      Collado returned to the hybrid position, driving what he terms a “junk”

route in the afternoons. Collado found the route undesirable because it required

him to deliver the packages that had been left behind by the other drivers—usually

the heaviest packages. The route also required him to make deliveries within a

large geographic area and to return to the facility to reload his truck during the day,



                                            7
which made it difficult to complete the deliveries on time. During July, Terrell

asked him two or three more times whether he was going to drop the EEOC charge

and said he couldn’t believe Collado would not drop the charges.

      On July 28, 1999, Collado amended his EEOC discrimination charge to

include allegations of further retaliation that had occurred since he filed his first

EEOC charge. He alleged that UPS had retaliated against him for filing the initial

charge by putting him in its smallest truck, denying him a regular route, pressuring

him to withdraw his charge, and subjecting him to adverse working conditions for

proceeding with that charge. After this amendment, Collado continued to drive the

hybrid route, although Terrell allowed him to drive a full eight-hour day whenever

a route and a suitable, non-regulated truck became available.

      Subsequently, Collado injured his back and went on worker’s compensation

leave for about one year. When Collado was cleared to return to work with no

limitations, UPS had filled the hybrid job he had previously held. Ultimately,

Collado was out of work for almost another year because UPS did not have a

position for him. He finally returned to UPS on December 17, 2001, in a “combo”

job, which called for him to pre-load in the morning and drive an unregulated P-

300 truck in the afternoons. Collado still holds that position.

                                           II.



                                            8
       Collado sued UPS for disability discrimination under the ADA, retaliation

under Title VII (later converted by amendment to a claim of ADA retaliation), and

worker’s compensation retaliation under Florida law. In his complaint, Collado

claimed that he was a “qualified individual with a disability” and that “UPS was

aware of [his] history of diabetes.”

       Collado’s claims survived a motion by UPS for summary judgment and the

case proceeded to a jury trial. At the close of Collado’s case-in-chief, UPS made a

motion under Fed. R. Civ. P. 50(a) for judgment as a matter of law.2 It asserted

that Collado had failed to make out a prima facie case of discrimination as required

by McDonnell Douglas because he had shown neither that he was “disabled” for

purposes of the ADA nor that he was “qualified” for the position of full-time

driver. UPS also argued that Collado had failed to make out a prima facie case of


       2
           Rule 50(a) provides:

                Judgment as a Matter of Law.

                (1) If during a trial by jury a party has been fully heard on an issue and there is no
                legally sufficient evidentiary basis for a reasonable jury to find for that party on
                an issue, the court may determine the issue against that party and may grant a
                motion for judgment as a matter of law against that party with respect to a claim
                or defense that cannot under the controlling law be maintained or defeated
                without a favorable finding on that issue.

                (2) Motions for judgment as a matter of law may be made at any time before
                submission of the case to the jury. Such motion shall specify the judgment sought
                and the law and facts on which the moving party is entitled to the judgment.

Fed. R. Civ. P. 50(a).

                                                   9
retaliation because he had not shown that he had suffered an adverse employment

action. The trial court initially reserved ruling on the motion but denied it the next

day. UPS then presented its defense case, calling several witnesses.

      At the close of all the evidence, UPS again moved for judgment as a matter

of law under Rule 50(a) on the grounds that Collado had failed to establish any of

the elements of an ADA discrimination claim or an ADA retaliation claim. The

district court reserved ruling on this second Rule 50(a) motion and sent the case to

the jury. The jury returned a verdict for Collado in the amount of $316,000 on the

ADA discrimination and retaliation claims. It found for UPS on Collado’s state-

law worker’s-compensation retaliation claim. After the verdict, UPS renewed its

motion for judgment as a matter of law under Rule 50(b).3 It argued that Collado


      3
          Rule 50(b) provides:

               Renewing Motion for Judgment After Trial; Alternative Motion for New Trial.

               If, for any reason, the court does not grant a motion for judgment as a matter of
               law made at the close of all the evidence, the court is considered to have
               submitted the action to the jury subject to the court’s later deciding the legal
               questions raised by the motion. The movant may renew its request for judgment
               as a matter of law by filing a motion no later than 10 days after entry of
               judgment—and may alternatively request a new trial or join a motion for a new
               trial under Rule 59. In ruling on a renewed motion, the court may:

                       (1) if a verdict was returned;
                                (A) allow the judgment to stand,
                                (B) order a new trial, or
                                (C) direct entry of judgment as a matter of law; or
                       (2) if no verdict was returned;
                                (A) order a new trial, or

                                                 10
had failed to provide sufficient evidence to support the jury’s verdict as to the

disability element of the ADA discrimination claim and as to any of the elements

of the ADA retaliation claim. UPS also moved for a new trial and for remittitur.

       The district court granted the Rule 50(b) motion and entered final judgment

for UPS. The basis for the ruling on the discrimination claim was the court’s view

that Collado had failed to carry his burden of proof on the issue of whether he is

disabled, the failure being that he had not identified any “major life activity” that

his diabetes limited. In fact, the district court said, Collado’s own testimony was

that his diabetes did not interfere with any major activity. Thus, “[t]aking Collado

at his word,” his claim failed. Some of the court’s discussion was cast in terms of

disability being a component of a prima facie case of ADA discrimination, instead

of an element of the claim itself. The court said, for example, that Collado “has

failed to establish a prima facie case of discrimination and judgment must be

entered as a matter of law in favor of UPS.” It went on to say, however, that “there

was no legally sufficient basis for a reasonabl[e] jury to find for Collado on his

ADA discrimination and retaliation claims.” The court provided no separate




                           (B) direct entry of judgment as a matter of law.

Fed. R. Civ. P. 50(b).

                                            11
explanation for its ruling on the retaliation claim. It struck UPS’s motion for a new

trial and for remittitur as moot.

      Thereafter, UPS moved to alter or amend the district court’s judgment

because the court had not ruled conditionally on the merits of UPS’s motion for a

new trial, as required by Fed. R. Civ. P. 50(c)(1). Collado moved for “clarification

and/or reconsideration” of the grant of judgment to UPS on the ADA

discrimination and retaliation claims.

      In response, the district court entered a second order clarifying and

amending its prior rulings. In this order the court reiterated that Collado’s

evidence was insufficient to support an ADA discrimination verdict in his favor.

The court also stated that “there was insufficient evidence to permit a reasonable

jury to find that UPS retaliated against Collado,” because Collado had failed to

establish a component of his prima facie case for retaliation. The court explained

that, because Collado clearly was not disabled, he could not have had a “good

faith, objectively reasonable belief” that UPS had discriminated against him due to

his impairment, and as a result he had not shown that he had engaged in protected

activity for which he was retaliated against. The court also conditionally granted

UPS’s motion for a new trial on the ground that the verdict for Collado was against




                                          12
the great weight of the evidence. The district court entered final judgment for

UPS, and Collado filed a timely appeal.

                                          III.

      We review de novo a district court’s grant of judgment as a matter of law

under Rule 50(b), applying the same standard as the district court. Cleveland v.

Home Shopping Network, Inc., 369 F.3d 1189, 1192 (11th Cir. 2004). In doing so,

we look at the record evidence, drawing all inferences in favor of the nonmoving

party. Id. at 1192–93. Judgment as a matter of law for the defendant is due when

there is insufficient evidence to prove an element of the claim, which means that

no jury reasonably could have reached a verdict for the plaintiff on that claim. Id.

at 1192; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552 (1986)

(“The moving party is entitled to a judgment as a matter of law [where] the

nonmoving party has failed to make a sufficient showing on an essential element of

her case with respect to which she has the burden of proof.” (internal marks

omitted)); Bogle v. Orange County Bd. of County Comm’rs, 162 F.3d 653, 659

(11th Cir. 1998) (“[I]n order to survive a defendant’s motion for judgment as a

matter of law . . . the plaintiff must present evidence that would permit a

reasonable jury to find in the plaintiff’s favor on each and every element of the

claim.”).



                                           13
                                          IV.

      Collado first challenges the district court’s grant of judgment as a matter of

law to UPS on his ADA discrimination claim. He contends that it was improper

primarily because it was based on the court’s conclusion that he had failed to

establish a component of his McDonnell Douglas prima facie case. In order to

establish a prima facie case of ADA discrimination, Collado had to show that he:

(1) had a disability; (2) was otherwise qualified to perform the job; and (3) was

discriminated against based on his disability. Cleveland, 369 F.3d at 1193. The

district court granted UPS’s Rule 50(b) motion and entered judgment against him,

Collado says, solely because it found that he had not shown the first component of

a prima facie case, which is that he had a disability. According to Collado that was

error, because binding precedent establishes that once a district court has

determined that a prima facie case has been shown and denied a Rule 50(a) motion

on that basis, neither that court nor this one can revisit the prima facie case

question. Collado is right about the rule but wrong about whether it makes any

difference in this case.

      The prima facie case is an important part of the McDonnell Douglas

framework for proving discrimination with circumstantial evidence. On the one

hand, if a plaintiff establishes his prima facie case, he is entitled to a presumption



                                           14
of discrimination and the burden of production shifts to the defendant. Tex. Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094 (1981). If

the defendant then fails to meet its burden of production, the plaintiff is entitled to

judgment as a matter of law based on his unanswered prima facie case. Id.; Wright

v. Southland Corp, 187 F.3d 1287, 1291 (11th Cir. 1999). On the other hand, if a

plaintiff fails to establish a prima facie case, the defendant is entitled to judgment

as a matter of law (unless the plaintiff can prove discrimination by some other

means, such as by direct evidence of discrimination). See, e.g., Cooper v. Southern

Co., 390 F.3d 695, 745 (11th Cir. 2004) (affirming the district court’s grant of

summary judgment to the defendant in a compensation discrimination case because

the plaintiff failed to establish her prima facie case); Schoenfeld v. Babbitt, 168

F.3d 1257, 1267 (11th Cir. 1999) (same).

      Important as the prima facie case question initially is, however, both the

Supreme Court and this Court have repeatedly recognized that there is a point at

which a trial has progressed too far to revisit the question of whether one exists.

That point is “when the defendant fails to persuade the district court to dismiss the

action for lack of a prima facie case, and responds to the plaintiff’s proof by

offering evidence of the reason for the plaintiff’s rejection.” U.S. Postal Serv. Bd.

of Governors v. Aikens, 460 U.S. 711, 714–15, 103 S. Ct. 1478, 1481 (1983)



                                           15
(footnote omitted); accord, e.g., Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60,

67–68, 107 S. Ct. 367, 371 (1986); Cleveland, 369 F.3d at 1194 (“After a trial on

the merits, an appeals court should not revisit whether the plaintiff established a

prima facie case. . . . The only relevant question becomes whether Cleveland’s

termination was motivated by her disability.”); Tidwell v. Carter Prods., 135 F.3d

1422, 1426 n.1 (11th Cir. 1998) (“Our task is not to revisit whether the plaintiff

below successfully established a prima facie case of discrimination. . . . [T]he

question of whether the plaintiff properly made out a prima facie case is no longer

relevant.”); Combs v. Plantation Patterns, 106 F.3d 1519, 1539 n.11 (11th Cir.

1997) (because a full trial on the merits had been held, “the question of whether

Combs properly made out a prima facie case is no longer relevant” (quotation

omitted)); Richardson v. Leeds Police Dep’t, 71 F.3d 801, 806 (11th Cir. 1995)

(per curiam) (“Richardson argues on appeal that the district court erred by visiting

whether he had established a prima facie case of discrimination after the action was

fully tried on the merits, in violation of [Aikens]. We agree that it was wrong for

the court to follow this procedure.”).

      “Where the defendant has done everything that would be required of him if

the plaintiff had properly made out a prima facie case,” the focus should no longer

be on the preliminary question of the prima facie case but on the “ultimate question



                                          16
of discrimination vel non.” Aikens, 460 U.S. at 713–15, 103 S. Ct. at 1481–82.

That is, once the trial has proceeded to the second step of the McDonnell

Douglas burden-shifting framework, the first step, which is the prima facie issue,

should be left behind. From that point, the inquiry should focus on the ultimate

question of “whether the defendant intentionally discriminated against the

plaintiff.” Id. at 715, 103 S. Ct. at 1482 (internal quotation omitted). Or, as we

have put it, at this advanced stage, “the question of whether the plaintiff properly

made out a prima facie case is no longer relevant.” Combs, 106 F.3d at 1539 n.11

(internal quotation omitted); accord Aikens, 460 U.S. at 715, 103 S. Ct. at 1482;

Cleveland, 369 F.3d at 1194.

       The specific wisdom of this “don’t-look-back rule” is evident.4 The goal of

the McDonnell Douglas burden-shifting framework is “progressively to sharpen

the inquiry into the elusive factual question of intentional discrimination.”

Burdine, 450 U.S. at 256 n.8, 101 S. Ct. at 1095 n.8 (1981). “The prima facie case

serves an important function in the litigation: it eliminates the most common

nondiscriminatory reasons for the plaintiff’s rejection.” Id. at 253–54, 101 S. Ct. at

1094. After the defendant has met its burden of production by offering other



       4
         By “specific wisdom” we mean specific to this area of the law, as distinguished from
general wisdom applicable to all of life as conveyed in Satchel Paige’s famous advice: “Don’t
look back. Something might be gaining on you.”

                                              17
legitimate reasons for its employment decision, however, “the presumption raised

by the prima facie case is rebutted, and the factual inquiry proceeds to a new level

of specificity.” Id. at 255, 101 S. Ct. at 1094–95 (footnote omitted). At that point,

the presumption of discrimination that arose when the plaintiff made his prima

facie showing “drops from the case,” id. at 255 n.10, 101 S. Ct. at 1095 n.10,

quoted in Aikens, 460 U.S. at 715, 103 S. Ct. at 1481, and “the case is placed back

into the traditional framework—in other words, the plaintiff still bears the burden

of proving, more probably than not, that the employer took an adverse employment

action against him on the basis of a protected personal characteristic.” Wright v.

Southland Corp., 187 F.3d 1287, 1291 (11th Cir. 1999). It makes sense that once

the product of the prima facie case (a presumption of discrimination) has dropped

out of the case at trial, issues about the prima facie case should drop out as well.

There is no good reason to argue about them any more.

      Collado’s position in this appeal rests on the don’t-look-back rule. He is

right that, because the district court had determined that Collado made out a prima

facie case and had denied UPS’s Rule 50(a) motion on that ground, the court

should not have reconsidered whether a prima facie case existed at the Rule 50(b)

stage. Unfortunately for Collado, that is not the end of the analysis. Our review is,

as we have said, de novo. That means we review the judgment, not the soundness



                                           18
of the district court’s explanation for it. See Sec. & Exch. Comm’n v. ETS

Payphones, Inc., 408 F.3d 727, 736 n.10 (11th Cir. 2005) (per curiam) (“We

review district court judgments; we do not grade the opinions.”); United States v.

$242,484.00, 389 F.3d 1149, 1155 (11th Cir. 2004) (en banc) (“We do not sit to

grade the thoroughness or clarity of district court opinions but to review their

judgments . . . .”). If judgment as a matter of law was due to be granted, it matters

not whether the district court got the reasons for doing so right. See Turner v. Am.

Fed’n of Teachers Local 1565, 138 F.3d 878, 880 n.1 (11th Cir. 1998) (“We must

affirm the judgment of the district court if the result is correct even if the district

court relied upon a wrong ground or gave a wrong reason.”); see also Lucas v.

W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001) (“[W]e may affirm the

[district court’s] judgment on any ground that finds support in the record.”

(internal quotation omitted)); Gaston v. Bellingrath Gardens & Homes, Inc., 167

F.3d 1361, 1363 n.1 (11th Cir. 1999) (per curiam).

       The question for us is only the correctness of the result: was post-verdict

judgment as a matter of law due to be granted to UPS on Collado’s ADA

discrimination claim? We think it was if, as UPS insists and the district court

decided, Collado failed to provide sufficient evidence on the disability element of




                                            19
his ADA claim.5 Collado protests that disability is a component of the prima facie

case for an ADA claim and that allowing a post-verdict judgment as a matter of

law on that ground would violate the rule, which we have just discussed, against

revisiting the existence of a prima facie case at the conclusion of a trial.

       Collado’s position reflects a fundamental misunderstanding of what we are

calling the don’t-look-back rule. That rule prevents an inquiry into the prima facie

case after all of the evidence is in; it does not prevent an inquiry into the existence

of an element of the claim. The authority and duty of a court to decide whether all

elements of a claim have been proven does not end with the denial of a Rule 50(a)

motion. If there is insufficient evidence for a jury reasonably to have found one of

the elements of a claim to have been proven, the court has a duty to grant a proper

Rule 50(b) motion.6


       5
          The elements of an ADA discrimination claim are: (1) “That the Plaintiff had a
‘disability,’ as hereafter defined”; (2) “That the Plaintiff was a ‘qualified individual’ as hereafter
defined”; (3) “That the Plaintiff was [refused employment] [discharged from employment] [not
promoted] by the Defendant”; and (4) “That the Plaintiff’s disability was a substantial or
motivating factor that prompted the Defendant to take that action.” Eleventh Circuit Pattern Jury
Instructions 1.5.2.
       6
          By “proper Rule 50(b) motion” we mean one for which the necessary predecessor Rule
50(a) motion raising those grounds was filed at the close of the trial. See Mark Seitman &
Assocs. v. R.J. Reynolds Tobacco Co., 837 F.2d 1527, 1531 (11th Cir. 1988) (“A defendant’s
[Rule 50(a)] motion for directed verdict at the close of the plaintiff’s case will not suffice unless
it is renewed at the close of all the evidence.”); Sims’ Crane Serv. v. Ideal Steel Prods., Inc., 800
F.2d 1553, 1557 (11th Cir. 1986) (reversing the district court’s grant of defendant’s Rule 50(b)
motion because the defendant had never moved for directed verdict under Rule 50(a)); Shannon
v. BellSouth Telecomm., Inc., 292 F.3d 712, 717 n.3 (11th Cir. 2002) (“If a party asserts new
grounds in its [Rule 50(b)] motion for judgment as a matter of law that it did not assert in its

                                                 20
       Where a component of the prima facie case is also an element of the claim,

as the existence of a disability is in an ADA discrimination case, deciding that the

claim has not been proven may be confused with revisiting the prima facie case.7

Collado’s position does that. His position on the don’t-look-back rule would

require a district court to enter judgment for a plaintiff on a claim even though an

element of the claim had not been proven, and that would pervert the purpose of

the rule. The reason district courts are not allowed to look back at the prima facie

case question once a Rule 50(a) motion on it has been denied is that, as we have

initial motion for judgment as a matter of law, a court may not rely on the new grounds to set
aside the jury’s verdict.” (quotation omitted)).

        We reject Collado’s argument that a district court is powerless to enter judgment as a
matter of law under Rule 50(b) where it has denied, instead of reserved ruling on, the Rule 50(a)
motion. This argument, which has something of a collateral estoppel flavor, has no basis in Rule
50. Instead, Rule 50(b) plainly states that the court is permitted to direct entry of judgment after
a verdict whenever “for any reason” it has not granted a Rule 50(a) motion for judgment as a
matter of law. Fed. R. Civ. P. 50(b). “For any reason” includes situations where the court has
denied the earlier motion. As Wright and Miller explain, Rule 50(b) creates a legal fiction that
“even though the trial court expressly has denied the [Rule 50(a)] motion, it is considered to
have reserved decision on it.” 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2522 (2d ed. 1994); see Neely v. Martin K. Eby Constr. Co., 386 U.S. 317, 321, 87
S. Ct. 1072, 1076 (1967) (“Under Rule 50(b), if a party moves for a directed verdict at the close
of the evidence and if the trial judge elects to send the case to the jury, the judge is ‘deemed’ to
have reserved decision on the motion.”); Montgomery Ward & Co. v. Duncan, 311 U.S. 243,
250, 61 S. Ct. 189, 194 (1940) (Rule 50(b) does not require the court to reserve the question of
law raised in the Rule 50(a) motion).
       7
           Another source of confusion stems from the fact that the term “prima facie case” has
two meanings. Traditionally, it refers to the “quantum of evidence needed to create a jury
question” or “a case strong enough to go to a jury.” Wright, 187 F.3d at 1292. In the
McDonnell Douglas context, however, the term relates to a step in the analytical framework and
means the “establishment of the facts required to establish the McDonnell Douglas
presumption.” Id. When we use the term “prima facie case” in this opinion, we are referring to
the first step of the McDonnell Douglas framework.

                                                 21
explained, once a case has advanced that far in the trial, a court should no longer be

considering analytical preliminaries. Instead, once the Rule 50(a) point is passed,

the entire focus should be on the ultimate issue of whether discrimination has been

proven. Allowing a judgment to stand when there has been no discrimination—as,

for example, when the plaintiff in an ADA discrimination case is not

disabled—would not further the purpose of focusing on whether discrimination has

been proven. It would defeat that purpose and the purpose of the trial.

      There is another way to illustrate why we must reject Collado’s position that

the don’t-look-back rule insulates a failure to prove an element of a claim from

Rule 50(b) scrutiny. The rule prevents us, as well as district courts, from looking

into the existence of a prima facie case after the Rule 50(a) stage. Beaver v.

Rayonier, 200 F.3d 723, 727 (11th Cir. 1999) (“[N]either the district court nor the

court of appeals may revisit the existence of a prima facie case . . . .”). For that

reason, accepting Collado’s position would block us from reviewing on appeal the

sufficiency of the evidence to prove any element of a discrimination claim that is

also a component of the prima facie case. Appellate review of the evidentiary

sufficiency of a claim is something we have the duty to perform when a defendant,

who has properly preserved the issue, brings us an appeal presenting it.




                                           22
      This case illustrates the effect that accepting Collado’s position would have.

He argues that we are barred from reviewing whether he has established the

disability element of his claim. We are barred, he says, because examining that

element would amount to looking back on whether there was a prima facie case;

that’s because the existence of a disability is a critical component of a prima facie

case just as it is an essential element of the claim. Under Collado’s theory any

inquiry into the disability issue after a Rule 50(a) motion has been denied is barred.

He would have us let the tail wag the dog.

      Collado has things backwards. At the end of a trial it is “the question of

whether the plaintiff properly made out a prima facie case [that] is no longer

relevant,” Combs, 106 F.3d at 1539 n.11 (internal quotation omitted), not the

sufficiency of the evidence of discrimination. What counts once a case is past the

Rule 50(a) stage is not whether the case should be past that stage, but “whether the

defendant intentionally discriminated against the plaintiff.” Aikens, 460 U.S. at

716, 103 S. Ct. at 1482 (internal marks omitted).

      One final matter bears discussion before we move on to apply what we have

said to this case. Our holding that the don’t-look-back rule does not bar the district

court from reconsidering, or us from reviewing, the existence of an element of the

claim that is also a component of the prima facie case does not mean that the rule



                                          23
has no force and effect. The rule serves as a bar, prevents a look back, where a

component of the prima facie case that is not an element of the claim is concerned.

See, e.g., Cleveland, 369 F.3d at 1194 (refusing, in reviewing the district court’s

grant of the defendant’s Rule 50(b) motion, to consider its argument that the

plaintiff had failed to establish a non-element component of her prima facie case);

Richardson, 71 F.3d at 801 (vacating the district court’s grant of judgment as a

matter of law to defendant, in part because it was based on the plaintiff’s failure to

establish a non-element component of his prima facie case).

      An example that comes to mind is a Title VII discriminatory failure to

promote claim. The components of the prima facie case are: (1) that the plaintiff

is a member of a protected class; (2) that he was qualified for and applied for the

promotion; (3) that he was rejected; and (4) that other equally or less qualified

employees who were not members of the protected class were promoted. Combs,

106 F.3d at 1539 n.11. The fourth component, the one requiring outside-the-class

comparators, is not an element of the claim itself. Once a district court has denied

a Rule 50(a) motion for failure to show a prima facie case, neither that court nor

this one may conclude that judgment as a matter of law should be granted under

Rule 50(b) solely because no outside-the-class comparators were shown. Although

the absence of comparators may be relevant to whether the plaintiff has proven that



                                          24
his failure to be promoted was the result of discrimination, it is not necessarily a

claim-killing fact at the post-Rule 50(b) stage. Difficult as it might be to prove, a

promotion could be denied for discriminatory reasons even though no one outside

the protected class was promoted—even though there were no comparators and

therefore no prima facie case. See also Wright, 187 F.3d at 1292 (giving a

hypothetical in which a plaintiff alleging discriminatory firing who failed to prove

a component of the prima facie case could nonetheless prove the claim).8

         Back to the present case, we are dealing with a component of the prima facie

case that is also an element of the claim. Before us is an ADA discrimination

claim, and the issue is whether Collado presented sufficient evidence for a jury

reasonably to have found that he is disabled. Unless he has a “disability,” as that

term is defined in the ADA, Collado had no valid ADA discrimination claim and

judgment as a matter of law was properly entered against him at the Rule 50(b)

stage.

         The ADA defines “disability” as: “(A) a physical or mental impairment that

substantially limits one or more of the major life activities of [an] individual; (B) a



         8
          We recognize, of course, that the don’t-look-back rule will not apply in cases like this
one, where all the components of the prima facie case are also elements of the claim itself. That
overlap is true of ADA cases generally, but the inapplicability of the rule in some kinds of
employment discrimination cases is not an argument against the rule’s existence or for applying
the rule in a way in which it was never intended.

                                                25
record of such an impairment; or (C) being regarded as having such an

impairment.” 42 U.S.C. § 12102(2). Starting with alternative (A) of the definition,

it is undisputed that Collado suffers from insulin-dependent diabetes, which is a

physical impairment for ADA purposes, see 45 C.F.R. pt. 84 App. A, subpart

(A)(3) (defining diabetes as an impairment). So, he satisfies the first half of the

alternative (A) definition of “disability.” That is not enough, because the other half

of the definition requires that the impairment substantially limit one or more of his

major life activities; that determination must be made on a case-by-case basis.

      The Supreme Court made that much clear in Sutton v. United Air Lines,

Inc., 527 U.S. 471, 119 S. Ct. 2139 (1999). In the course of explaining why

medicinal or mitigation measures should be considered when determining if a

person is disabled, the Court said:

             The agency guidelines’ directive that persons be judged in their
      uncorrected or unmitigated state runs directly counter to the individualized
      inquiry mandated by the ADA. The agency approach would often require
      courts and employers to speculate about a person’s condition and would, in
      many cases, force them to make a disability determination based on general
      information about how an uncorrected impairment usually affects
      individuals, rather than on the individual’s actual condition. For instance,
      under this view, courts would almost certainly find all diabetics to be
      disabled, because if they failed to monitor their blood sugar levels and
      administer insulin, they would almost certainly be substantially limited in
      one or more major life activities. A diabetic whose illness does not impair
      his or her daily activities would therefore be considered disabled simply
      because he or she has diabetes. Thus, the guidelines approach would create
      a system in which persons often must be treated as members of a group of

                                          26
      people with similar impairments, rather than as individuals. This is contrary
      to both the letter and the spirit of the ADA.

Id. at 483–84, 119 S. Ct. at 2147 (emphasis added). We have a decision to the

same effect. Cash v. Smith, 231 F.3d 1301, 1306 (11th Cir. 2000) (affirming the

grant of summary judgment against an ADA plaintiff because even though “her

diabetes, migraines, and depression . . . have had an adverse impact on Cash’s life,

there is no evidence that they have limited her in a major life activity” (footnote

omitted)).

      What Collado had to do to win on this § 12102(2)(A) definitional track is to

provide evidence from which a jury reasonably could find that his diabetes

substantially impairs at least one major life activity. Collado says he did that

through his own testimony, which he characterizes as having “established that his

diabetes substantially limits his ability to eat normally, digest food without

medication, and maintain any degree of health without carefully monitored insulin

injections . . . .” Assuming that eating is a major life activity, see Fraser v.

Goodale, 342 F.3d 1032, 1039–40 (9th Cir. 2003), Lawson v. CSX Transp., Inc.,

245 F.3d 916, 923 (7th Cir. 2001), Collado’s argument fails because his testimony

did not provide a reasonable basis for the jury to find that his diabetes substantially

impaired his eating.




                                            27
      On direct examination, Collado testified that he had to “watch” what he eats

and avoid certain foods—“mostly sugars”—because of his diabetes. On cross-

examination, however, Collado admitted that as long as he is taking insulin he can

eat and digest his food normally. He even admitted that his diabetes has not

affected his lifestyle in any way. This is how that testimony went:

             Q. [Y]our diabetes does not in any way affect your ability to drive a

             vehicle?

             A. No.

             Q. And you can walk?

             A. Yes.

             Q. You can run?

             A. Yes.

             Q. You can see?

             A. Yes.

             Q. You can eat?

             A. Of course.

             Q. You can digest food?

             A. Yes, as long as I am taking my insulin.

             Q. Exactly. And your diabetes doesn’t affect your ability to work?



                                         28
             A. Correct.

             Q. Or to care for yourself?

             A. Correct.

             Q. In fact, your diabetes hasn’t affected your lifestyle in any way;

             correct?

             A. Correct.

             Q. And with proper self monitoring, you are in no way limited by

             your diabetes in what you do during the day or how you do it; correct?

             A. Yes, that’s true.

      No jury reasonably could find from his testimony that Collado was

substantially limited in eating or any other major life activity. There is nothing to

suggest that Collado is “significantly restricted” in eating as compared to “the

average person in the general population.” See 29 C.F.R. § 1630.2(j)(1) (defining

when an impairment is “substantially limiting”). Many people have to monitor

their food intake for health and lifestyle reasons, and avoiding “mostly sugars” is

not “significantly restricted” for this purpose. If it were, all insulin-dependent

diabetics would have a “disability” for ADA purposes, and we know from Sutton

that they do not. See Sutton, 527 U.S. at 471, 119 S. Ct. 2139.




                                           29
        We find unpersuasive Collado’s attempt to liken himself to the “brittle

diabetic” in Fraser, whom the Ninth Circuit found had presented a genuine issue of

material fact as to whether she was substantially limited in the life activity of

eating. 342 F.3d at 1041. The Fraser Court’s description of that plaintiff’s

extreme dietary limitations shows the difference between Collado’s condition and

hers:

        Fraser’s diabetes regimen is perpetual, severely restrictive, and highly
        demanding. . . . She must vigilantly monitor what and how much she eats.
        She must time her daily shots and meals so carefully that it is not safe for her
        to live alone. (She could end up in the ambulance if she took too long a nap
        between a shot and breakfast.) She must always have certain foods available
        in case her blood sugar drops or skyrockets. . . . She cannot put a morsel of
        food in her mouth without carefully assessing whether it will tip her blood
        sugars out of balance. She cannot skip or postpone a snack or meal without
        cautiously studying her insulin and glucagon levels. She must constantly,
        faithfully, and precisely monitor her eating, exercise, blood sugar, and other
        health factors, and even this is no guarantee of success.

Id.

        We also reject Collado’s argument that the fact he is unable to properly

digest food or stay healthy without medication means he is disabled. As the

Supreme Court told us in Sutton, the question of whether a plaintiff is substantially

impaired for disability purposes is to be considered in light of available mitigation

measures such as taking insulin. 527 U.S. at 482–83, 119 S. Ct. 2146–47. Finally,

nothing in the record shows that Collado’s diabetes substantially limits him, or



                                           30
limits him at all, in any other major life activity. As Collado’s testimony that we

have previously quoted establishes, he is able to drive, etc. See Cash, 231 F.3d at

1306 (stating that plaintiff’s testimony that she was “an active person who walks,

swims, fishes, and had held a 40-hour-a-week job” showed she was not

substantially limited in any major life activity). For all of these reasons, Collado

failed to present evidence from which a jury reasonably could find that he has a

“disability” within the § 12102(2)(A) definition of that term.

      As for the § 12102(2)(B) definition of “disability,” Collado also failed to

present sufficient evidence that he has a record of a substantially limiting

impairment. The evidence shows that Collado has had diabetes for many years,

but the long-term existence of an impairment is not enough to establish a disability.

Instead, a plaintiff must show that the impairment he suffered in the past

substantially limited him in at least one major life activity. 29 C.F.R. § 1630.2(k);

see also Hillburn v. Murata Elec. N. Am., Inc., 181 F.3d 1220, 1228–29 (11th Cir.

1999). There was no evidence from which a jury could determine that Collado’s

diabetes has ever substantially limited him in any major life activity, not in the past

any more than at the time of the trial.

      As for the third alternative definition, Collado has failed to present sufficient

evidence that UPS regarded him as having an impairment that substantially limits a



                                           31
major life activity, which is necessary to satisfy the § 12102(2)(C) definition of

“disability.” See Hillburn, 181 F.3d at 1230; Standard v. A.B.E.L. Servs., Inc., 161

F.3d 1318, 1327 (11th Cir. 1998). Collado contends that UPS’s refusal to let him

drive DOT-regulated trucks due to his diabetes is enough to establish that it

regarded him as substantially limited in the major life activity of driving or

working. The record does show that UPS regarded Collado as unable to fill the

position of full-time truck driver due to his diabetes.

      Being “regarded as unable to perform only a particular job,” however, “is

insufficient, as a matter of law, to prove that [the plaintiff] is regarded as

substantially limited in the major life activity of working.” Murphy v. United

Parcel Serv., 527 U.S. 516, 525, 119 S. Ct. 2133, 2139 (1999). Collado had to

prove that UPS considered him “significantly restricted in the ability to perform

either a class of jobs or a broad range of jobs in various classes.” 29 C.F.R.

§ 1630.2(j)(3)(i); see also Cash, 231 F.3d at 1306. “The inability to perform a

single, particular job does not constitute a substantial limitation in the major life

activity of working. Thus, an impairment must . . . be perceived to preclude [] an

individual from more than one type of job, even if the job foreclosed is the

individual’s job of choice.” Rossbach v. City of Miami, 371 F.3d 1354, 1359 (11th

Cir. 2004) (citation omitted).



                                            32
      There is no evidence that UPS regarded Collado as substantially limited

from any job other than that of full-time driver at UPS, much less from a class or

broad range of jobs. UPS gave Collado several different positions after pulling

him from the full-time driving position. In fact, Collado currently works at UPS in

a position where he pre-loads in the morning and drives an unregulated truck in the

afternoon. No jury reasonably could find that UPS regarded Collado as

substantially impaired from the major life activity of working.

      Nor does the evidence support Collado’s contention that UPS regarded him

as substantially impaired in driving, which he contends is a major life activity. In

any event, we have held that driving is not a major life activity for purposes of the

ADA. See Chenoweth v. Hillsborough County, 250 F.3d 1328, 1329 (11th Cir.

2001) (noting that, while the enumeration of major life activities in the EEOC

regulations is not exhaustive, “driving is not only absent from the list but is

conspicuously different in character from the activities that are listed”).

      Because Collado failed to provide sufficient evidence for a jury reasonably

to find that he suffered from a “disability” within the meaning of that term as it is

defined in the ADA, § 12102(2)(A)–(C), judgment as a matter of law was due to be

granted to UPS on the ADA discrimination claim. The grant of the Rule 50(b)

motion and the resulting judgment for UPS on that claim will be affirmed.



                                           33
                                           V.

      Collado also challenges the judgment for UPS on his ADA retaliation claim.

The ADA provides that “[n]o person shall discriminate against any individual

because such individual has opposed any act or practice made unlawful by [the

ADA] or because such individual made a charge . . . under [the ADA].” 42 U.S.C.

§ 12203(a). Collado contended that UPS removed him from the position of full-

time driver and gave him less desirable positions in retaliation for his filing an

EEOC charge claiming disability discrimination. The jury verdict was in Collado’s

favor on this claim, but the district court concluded that there was insufficient

evidence to support it and granted UPS’s Rule 50(b) motion for judgment as a

matter of law.

      Collado contends here, as he did on the discrimination claim, that the district

court erred in granting UPS’s Rule 50(b) motion, because the court looked back to

whether Collado had established a prima facie case and entered judgment on that

basis. It is not clear to us that the district court did look back to the prima facie

case when it granted judgment on the retaliation claim, but even if the court did,

that mistake does not affect our decision. As with the discrimination claim, our

review of the judgment for UPS is de novo and the question is whether judgment

as a matter of law was due to be entered for UPS, not whether the district court’s



                                            34
reasoning for doing so is correct. See ETS Payphones, Inc., 408 F.3d at 736 n.10;

$242,484.00, 389 F.3d at 1155; Turner, 138 F.3d at 880 n.1.

       In order to prove an ADA retaliation claim, a plaintiff must show that:

(1) he “engaged in conduct protected by the ADA”; (2) he was subjected to an

adverse employment action at the time, or after the protected conduct took place”;

and (3) the defendant “took an adverse employment action against [him] because

of [his] protected conduct.” 3C Fed. Jury Prac. & Instr. § 172.24 (5th ed.)

(essential elements for an ADA retaliation claim).

       As for the first element, UPS argues that Collado failed to establish that he

engaged in any protected activity. We agree with Collado, however, that UPS is

barred from raising this argument because it failed to assert the ground in the Rule

50(a) motion it filed. See Shannon v. BellSouth Telecomms., Inc., 292 F.3d 712,

717 n.3 (11th Cir. 2002) (stating that a court may not rely on a ground for a Rule

50(b) motion that was not included in the Rule 50(a) motion); Ross v. Rhodes

Furniture, Inc., 146 F.3d 1286, 1289 (11th Cir. 1998) (same). The first time UPS

raised its no-protected-activity argument was at the post-verdict stage, and that is

too late.

       As for the adverse action element, Collado cannot rely on UPS removing

him from his full-time driving position. He cannot because that was done before



                                          35
Collado had filed his EEOC charge, and the filing of that charge is the protected

conduct he asserts.9 See Griffin v. GTE Fla., Inc., 182 F.3d 1279, 1284 (11th Cir.

1999) (“At a minimum, [the plaintiff] must show that the adverse act followed the

protected conduct . . . .”). Collado does not contest that very hard but argues

instead that action UPS took after he filed the EEOC charge amounts to adverse

employment action. He testified that, after he filed the charge, UPS removed him

from his hybrid position and put him into a less desirable split-shift position

involving no driving. That position required Collado to work from 4 a.m. until 8

a.m., be off for a long break, and then work from 5 p.m. until 10 p.m. or 11 p.m.

He was only in that position for a couple of weeks. We need not decide if that

short-term change in working hours constituted an adverse employment action,

because even if it did Collado loses on the third element, which is the causal

connection requirement.

       There can be no dispute about the existence of the policy that UPS asserted

as the reason it temporarily removed Collado from his hybrid position which



       9
         Collado’s initial EEOC charge alleged that UPS had retaliated against him on the basis
of other conduct; namely, his insistence on reinstatement after he had been removed from the
full-time driving position in 1998. At trial and in this appeal, however, the only protected
conduct Collado has asserted is the filing of his EEOC charge on June 9, 1999. We will not
consider claims, issues, or arguments that an appellant has not raised in either the district court
or this Court. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir.
2004); Adler v. Duval County Sch. Bd., 112 F.3d 1475, 1481 n.12 (11th Cir. 1997).


                                                 36
involved driving, and put him in the split-shift position which did not. The parties

stipulated that UPS had a “Medical Evaluation Program for Diabetes,” including a

“Diabetes Protocol,” and that it applied to all insulin-dependent diabetics who

wished to drive unregulated trucks.10 The program prohibited diabetic employees

from driving any truck until the protocol had been completed by a medical doctor

and approved by UPS. The employee had to obtain from his doctor a certification

that he was under medical care and that his diabetes was being successfully

controlled. It is also undisputed that an insulin-dependent diabetic whose disease

is not under control can pose serious safety problems when driving trucks. Indeed,

the record establishes that one of UPS’s diabetic employees had previously passed

out while driving a truck for the company and caused a traffic accident death.

       The evidence showed without dispute that at the time Collado was removed

from his hybrid driving position and put into the non-driving, split-shift position,

he had not completed the Diabetes Protocol. There is no evidence that any other

insulin-dependent diabetic had been permitted to drive without completing it. The

record is also undisputed that Collado was transferred back to his preferred hybrid

position as soon as he completed the protocol and it was approved. There is

nothing in the evidence to suggest any delay attributable to UPS in the completion


       10
         Recall that unregulated trucks were the only ones an insulin-dependent diabetic like
Collado could drive under DOT regulations.

                                               37
and approval of the protocol. (The only delay was occasioned by the fact that

Collado was on paid vacation when the protocol was actually sent to UPS and

approved by it). Indeed, he was out of the preferred hybrid position for only, in his

words, “a couple of weeks.”

      The legitimacy and importance, for public safety purposes, of UPS’s

Diabetes Program and Protocol cannot be questioned. Nor can there be any

question that it was fairly and non-discriminatorily applied to Collado. His

argument is that these important safety-related requirements were not applied to

him until he filed the EEOC charge. In other words, Collado got a break to which

he was not entitled, one that might have endangered public safety, and according to

him he would have continued to get that break, and public safety might have

continued to be endangered but for the fact that he filed the EEOC charge. There

are serious public policy problems with interpreting and applying the law in a way

that would discourage employers from enforcing measures that safeguard the

safety of the public, regardless of their motivation for doing so. In any event, no

jury could reasonably find from the evidence that UPS applied its Diabetes

Program and Protocol to Collado for retaliatory reasons.

      The facts Collado pointed to in support of his theory that retaliation is the

reason the important, safety-related requirements that should have been applied to



                                          38
him all along were finally applied to him are that: the Diabetes Program and

Protocol had been in effect since 1995, had never been applied to him before, and

were applied within two months after he filed the EEOC charge; and the manager

who implemented the decision to change Collado’s position pending compliance

with the program and protocol, Ralph Terrell, knew about the filing of the EEOC

charge and asked Collado about it several times. The unrebutted testimony of

Herman Radish, UPS’s safety manager, however, was that he had not been aware

of the diabetes-specific policy and protocol before, even though he had been in that

position since 1992. Radish testified that he had discovered this program and

protocol when investigating whether Collado could be a full-time driver, which is

an issue that arose after he learned that Collado was an insulin-dependent diabetic.

Radish discovered that fact and began investigating the ramifications of it before

Collado filed the EEOC charge. It was Radish who informed Terrell of the

problem and of the requirements of the Diabetes Program and Protocol and

instructed Terrell to ensure that Collado did not drive a truck for UPS until those

requirements were met.

      All of the evidence taken as a whole is insufficient for a jury reasonably to

find a causal connection between Collado’s filing of the EEOC charge and UPS’s

application of its Diabetes Program and Protocol to him, resulting in Collado being



                                          39
removed from a driving position for a couple of weeks. In addition to the dearth of

evidence indicating retaliatory motivation, there is the inescapable fact that Radish

did what any reasonable safety manager in his position would have felt compelled

to do. In view of that, any inference his action was motivated by retaliatory

animus is unreasonable. Judgment was properly entered for UPS on this claim.

      AFFIRMED.




                                          40