Bristol v. Board of County Commissioners

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 26 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

GARY BRISTOL,

Plaintiff-Appellee,
v.

THE BOARD OF COUNTY
COMMISSIONERS OF THE
COUNTY OF CLEAR CREEK and
DON KRUEGER, in his official
capacity as the Sheriff of the County No. 00-1053
of Clear Creek,

Defendants-Appellants,
_______________________________

COUNTY SHERIFFS OF
COLORADO, INC.,

Amicus Curiae.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 98-Z-1743)

Robert M. Liechty, Denver, Colorado, for Defendants-Appellants.

Evan S. Lipstein of Law Offices of Evan S. Lipstein, Lakewood, Colorado, (John
W. Berry, Denver, Colorado, with him on the brief), for Plaintiff-Appellee.

Josh A. Marks and Andrew D. Ringel, Hall & Evans, L.L.C., Denver, Colorado,
filed a brief on behalf of the Amicus Curiae.
Before EBEL and LUCERO, Circuit Judges, and VRATIL, District Judge. *

EBEL, Circuit Judge.

This appeal involves several issues arising under the Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12101 - 12213. Specifically, we hold, first,

that in a case tried to a jury, the court decides whether the plaintiff has identified

“impairments” and “major life activities” recognized under the ADA, but that the

jury decides whether the plaintiff has demonstrated by a preponderance of the

evidence whether the identified impairment “substantially limits” one or more of

the identified major life activities such that the plaintiff should be considered

“disabled” for purposes of the ADA. Second, we hold that a position is “vacant,”

for purposes of considering whether an employer has a duty to transfer a disabled

employee to that position, see Smith v. Midland Brake, Inc., 180 F.3d 1154, 1175

(10th Cir. 1999) (en banc) (hereinafter, “Midland Brake”), only if the employer

knows, at the time the employee asks for a reasonable accommodation, that the

job opening exists or will exist in the fairly immediate future. A position is not

vacant if, as here, the employer did not know at the time the employee asks for a

reasonable accommodation that the position would become vacant in the fairly

*
Honorable Kathryn H. Vratil, District Court Judge, District of Kansas,
sitting by designation.

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immediate future, even if it did in fact open up a reasonable time after the

employee’s request had been made. Third, we hold that the trial court was correct

in ruling that Bristol could establish discrimination by showing that the County

failed reasonably to accommodate him by reassigning him to a vacant position.

Bristol is not required to establish separate proof of discriminatory intent. Fourth,

we hold that the district court erred by not allowing the jury to decide whether

both the County and the Sheriff are properly treated as Bristol’s employers for

purposes of this lawsuit.

BACKGROUND

A. Gary Bristol

Gary Bristol worked as a jailer for the Sheriff of Clear Creek County, Don

Krueger, from February 1990 to March 1996. On March 23, 1996, Bristol

suffered chest pain after he and other officers had to restrain forcibly a combative

prisoner. Bristol was taken by ambulance from Georgetown, Colorado – where he

was working – to St. Anthony’s Hospital in Denver. Hospital employees treated

and tested Bristol’s heart condition 1 for two to three hours, but he was not

hospitalized.

1
Bristol began having heart troubles in 1991. After a mild heart attack, he
had bypass surgery to clear one artery of obstruction. As a result of this initial
heart problem and surgery, Bristol did not go to work for four to five months.

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 Bristol’s doctors decided to treat his worsened coronary condition with

medicine, rather than surgery. Dr. Jerry Sam Miklin, Bristol’s cardiologist, wrote

to the Sheriff’s Office stating that Bristol’s weakened heart required him to

receive light-duty assignments. The Sheriff complied by assigning Bristol to

work first in the evidence vault for a week, and then on light-duty in the jail,

doing paperwork, monitoring cameras, and opening cell doors. After Bristol took

a stress-test in early April 1996, Dr. Miklin again wrote the Sheriff’s office,

explaining that Bristol’s heart condition was “indefinite” and that he should not

have contact with inmates or any other job that might lead to severe or strenuous

activity. By “indefinite,” Dr. Miklin meant “permanent, cardiac-related

problems.” Specifically, Dr. Miklin prohibited Bristol from lifting more than

fifty pounds on a continuous basis, being exposed to cold weather (except

infrequently), and being in situations that would cause emotional or physical

stress.

Bristol continued doing light-duty work in the jail from mid-April 1996 to

May 20, 1996. On May 20, 1996, however, Bristol was discharged. The

termination notice stated: “Upon review of your doctor’s orders it is apparent that

you can no longer perform the essential functions of a Confinement Officer. . . . I

can not accommodate this restriction on an indefinite schedule. . . . You have the

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right to appeal this decision as outlined in the Clear Creek County Personnel

Policy Manual adopted on April 5, 1994.”

Bristol appealed his termination to the County Personnel Review Board

(“PRB”). The hearing took place on July 11, 1996, and the PRB upheld Bristol’s

dismissal. The PRB encouraged Bristol to apply for available County positions

and stated that he might be given a hiring preference if he was qualified for a job

opening.

There were at least two job openings within the County at the time of the

PRB hearing in mid-July 1996: equipment operator in the road and bridge

department, and appraiser-trainee. Bristol interviewed for both jobs. Shortly

thereafter, however, Dr. Miklin told Bristol that he could not work as an

equipment operator because that job could involve shoveling, lifting heavy

objects, or clearing obstructions off the blades of the equipment.

The County Assessor, Diane Settle, was responsible for hiring the

appraiser-trainee. The appraiser-trainee was one of five positions in the

Assessor’s office. The job description for appraiser-trainee states that the person

holding that position is responsible for: (i) assessing the value of County property

by physically inspecting it and by reviewing market data on similar properties; (ii)

researching and keeping current the Assessor’s computer data-base; and (iii)

responding to questions and complaints in person, by phone, and through

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correspondence. The job description also lists “Required Experience,” which is

described as: “[A] level of knowledge and ability to handle all routine tasks with

considerable assistance in the full range of job duties. Such a level is generally

acquired through up to two (2) years experience in a related field.” The required

education is described as a high school diploma or equivalent, and the required

skills are described as (i) proficient in communications and in public relations and

(ii) moderate skill in typing, the use of PCs, ten-key calculators, and copiers.

Following standard procedure within the County, Buckley reviewed

Bristol’s resume and forwarded it and the other applications to Settle. She

interviewed nine applicants for the job, including Bristol. Her interview with

Bristol lasted ten to fifteen minutes, about as long as every other interview.

Settle believed Bristol was not interested in the job because his wife had

scheduled the interview and because he gave “short, minimal” answers to her

interview questions. He seemed like he was just “going through the motions.”

Settle testified that she hired a man with three years of experience in an assessor’s

office. According to Buckley, Bristol was not given “preference” when he

applied for this job.

After he interviewed for the position of appraiser-trainee, the County did

not inform Bristol of any other job openings from 1996 to 1998 – until he filed

this lawsuit in 1998, at which time the County told him about a bookkeeping

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position, but before he could respond that job was filled. Gail Buckley was not

instructed to keep Bristol advised about other job openings.

In October or November of 1996, the job of dispatcher II came open in the

Sheriff’s Office. The Sheriff’s Office had three types of dispatchers: dispatcher I

(starting dispatcher with no experience); dispatcher II (experienced dispatcher);

and dispatcher III (supervisor). The dispatcher II job required two years previous

experience as a dispatcher and skills to use a dispatcher’s equipment, including

specialized software, and to prioritize incoming calls by importance. Bristol had

received some training as a dispatcher when he was jailer at the Sheriff’s Office,

when he had relieved other dispatchers for short periods of time. Nevertheless,

the Sheriff did not contact Bristol when the dispatcher II job came open because,

as he testified, “it had been so long since we’d heard from him that I had

forgotten about Mr. Bristol.”

After being fired by the County, Bristol worked nights for about a year at a

part-time computer job he found through a temporary agency. He also worked for

two months transporting prisoners within Colorado for a private company, but

quit that job because he was dissatisfied with how the company sought to ensure

the safety of its workers. At the time of trial, Bristol was working part-time for a

rental car company driving rental cars to their outlets. He applied, but was not

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hired, for positions with the Cities of Lakewood and Aurora and the Colorado

State Patrol, among others. He also received disability benefits from the County.

B. The Relationship between the Sheriff’s Office and the County

In Colorado, counties and the offices of county commissioner and county

sheriff are created under separate sections of the Colorado Constitution. See Colo.

Const. art. XIV, § 1 (county), § 6 (county commissioner), and § 8 (county

sheriff). Colorado statutes define the powers and duties of counties, county

commissioners, and county sheriffs. See generally Colo. Rev. Stat. tit. 30.

Sheriffs have the power to appoint undersheriffs and deputies, as well as fix their

salaries, subject to the approval of the board of county commissioners. See Colo.

Rev. Stat. § 30-2-106(1).

Clear Creek County is governed by a Board made up of three county

commissioners. The Board establishes the budget for the Sheriff’s Office.

Employees who work in the Sheriff’s Office are paid out of this budget. The

Sheriff’s Office uses County services for administration, including employee

benefits, accounting, bookkeeping, and personnel. The Sheriff chose to adopt a

County compensation plan. The Sheriff also consults with the County Director on

Human Resources and the County Attorney on personnel issues.

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 The County’s Personnel Review Board reviews policies, procedures, and

personnel issues. It creates and approves job descriptions, including those for the

Sheriff’s Office. The provisions of the County personnel policy manual govern

the Sheriff’s employees. The Sheriff’s Office has its own policy and procedural

manuals for its employees that supplement the County’s general manual.

Bristol’s paychecks were signed by a County commissioner. Bristol took

his personnel questions, e.g., questions about his employee benefits, to the County

human resource director.

C. Procedural History

Bristol filed suit in August 1998. A jury trial was held November 16 to 18,

1999. During the trial, the court ruled, over Appellants’ objections, (1) that the

question of what constituted the “fairly immediate future” for purposes of

determining whether a position was “vacant” under Midland Brake, 180 F.3d at

1175, was to be determined by the jury, and (2) that Bristol’s witness, Dr. Joanne

Bourn, would be allowed to testify as an expert.

At the close of evidence, both parties moved for judgment as a matter of

law under Federal Rule of Civil Procedure 50. Appellants sought judgment as a

matter of law under Rule 50 for the following issues: (i) only the Sheriff’s Office,

not the County, qualified as Bristol’s employer; (ii) the dispatcher II position was

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not “vacant” because it did not become open in the “fairly immediate future”; (iii)

Bristol was not qualified for the appraiser-trainee position; and (iv) Bristol had

failed to prove that Appellants had intended to discriminate when they failed to

reassign him. Bristol moved for judgment as a matter of law on the following: (i)

determining “disability” under the ADA is a question of law for the court and not

a question of fact for the jury; (ii) Bristol was “disabled” for purposes of the

ADA; and (iii) public relations skills were a marginal part of the appraiser-trainee

position. In addition, the parties and the court agreed that the court would

determine whether the County qualified as Bristol’s employer.

Pursuant to Rule 50, the court decided: (1) the Sheriff and the County (not

just the Sheriff) were Bristol’s employers; (2) whether Bristol was “disabled” for

purposes of the ADA was for the court (not the jury) to decide; (3) Bristol was

“disabled” under the ADA; and (4) Bristol did not need to prove with direct

evidence that Appellants acted with a discriminatory motive so long as there was

proof of failing to make a reasonable accommodation.

The court then submitted the case to the jury. Jury Instruction #18 directed

the jury to determine if Appellants had proven by a preponderance of the evidence

that Bristol had failed to mitigate his damages by not taking reasonable steps to

find employment after he was fired. The parties and the court believed at that

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time that back-pay was an issue for the jury, so included a special verdict question

to that effect.

The jury returned a special verdict, (i) finding Bristol had proven that

Appellants had discriminated against him by failing to reasonably accommodate

his disability, (ii) awarding back-pay in the amount of $72,544, and (iii) awarding

compensatory damages 2 of $140,000.

The court held a post-trial hearing regarding damages on December 22,

1999, at which time Appellants called three witnesses. One of those witnesses

was Sarah Nowotny, a vocational rehabilitation consultant, who testified

regarding how long it would take Bristol to find another job in the relevant labor

market. In addition, the parties stipulated to additional medical restrictions

placed on Bristol by Dr. Miklin. The stipulated restrictions prohibited Bristol

from (1) repetitive lifting of more than twenty pounds, (2) exposure to cold

weather less than forty degrees for more than ten minutes at a time, (3) activity

requiring Bristol to lift more than ten pounds with his upper body, and (4)

shoveling. Appellants filed a motion for a new trial on the ground that Dr.

Miklin’s additional restrictions on Bristol constituted a material misrepresentation

Under the ADA, back-pay and front-pay are not “compensatory damages.”
2

See McCue v. Kansas, 165 F.3d 784, 791-92 (10th Cir. 1999).

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of evidence at trial, and they renewed their motion for judgment as a matter of

law.

The court continued the post-trial hearing on January 18, 2000. By that

time, the parties and the court correctly recognized that, pursuant to 42 U.S.C.

§ 2000e-5(g)(1), the court rather than the jury should award back-pay. See McCue

v. Kansas, 165 F.3d 784, 791-92 (10th Cir. 1999). The court adopted the back-

pay award given by the jury. It declined Appellants’ suggestion to make

additional findings on mitigation, letting the jury’s decision in that regard stand

unchanged.

The court awarded front-pay of $26,174. It arrived at that figure by

calculating two years of salary as an appraiser-trainee ($65,998) and subtracting

Bristol’s probable earnings from other employment ($11,024) and anticipated

disability benefits ($28,800) over those two years. It reasoned, “I think Mr.

Bristol is going to need a little extra help in finding that job, and it may indeed

take him two years and some retraining to find a job close to what he was earning

as a jailer.” The court also granted Appellants’ motion for remittitur, lowering

the jury’s award for compensation to the statutory maximum of $100,000, and

Bristol’s motion for attorney fees of $41,609.

This appeal followed.

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 DISCUSSION

To establish a prima facie case under the ADA, a plaintiff must prove: (1)

he is a disabled person as defined by the ADA; (2) he is qualified, with or without

reasonable accommodation, to perform the essential functions of the job held or

desired; and (3) the employer discriminated against him because of his disability.

See Doyal v. Okla. Heart, Inc., 213 F.3d 492, 495 (10th Cir. 2000).

A. “Disability”

The ADA defines “disability” as:

(A) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). At issue in this case is § 12102(2)(A). Three elements

must be established for a plaintiff to be considered “disabled” under this sub-

section of the ADA: first, plaintiff must have a recognized “impairment”; second,

plaintiff must identify one or more appropriate “major life activities”; and third,

plaintiff must show that the impairment “substantially limits” one or more of the

major life activities. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998). The

question presented in this case is who decides, the court or the jury, each of these

three steps.

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 Whether the court or the jury decides an issue is a matter of law reviewed

de novo. See McCue, 165 F.3d at 787. Supreme Court and Tenth Circuit

precedent provide a clear answer to this question: steps one (“impairment”) and

two (“major life activity”) are questions of law for a court to decide, while step

three (“substantially limits”) is a question of fact for a jury.

The determination of whether a plaintiff has a “physical or mental

impairment” for purposes of the ADA involves evaluating whether the plaintiff’s

alleged impairment “satisfies the statutory and regulatory definition” of an ADA

impairment. See Bragdon, 524 U.S. at 637. The Equal Employment Opportunity

Commission (EEOC) further defines “impairment” for purposes of the ADA in 29

C.F.R. § 1630.2(h). It is well established that the list of recognized impairments

found at § 1630.2(h) is “not meant as a comprehensive enumeration” of

impairments, see Poindexter v. Atchison, Topeka & Santa Fe Ry. Co., 168 F.3d

1228, 1231 (10th Cir. 1999), but rather is a “representative list of disorders and

conditions” which aid in determining whether plaintiff’s alleged impairment

qualifies under the ADA. See Bragdon, 524 U.S. at 633; see also 45 C.F.R. pt.

84, App. A, at 345 (2000) (“The definition does not set forth a list of specific

diseases and conditions that constitute physical or mental impairments because of

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the difficulty of ensuring the comprehensiveness of any such list.”). 3 The

exercise of ascertaining whether a plaintiff’s alleged impairment satisfies the

statutory and regulatory definitions under the ADA is decidedly a legal one, and

we have treated it as such in the past. See Poindexter, 168 F.3d at 1230

(“[W]hether a claimed affliction constitutes an impairment under the ADA . . . [is

a] determination[] of law for the court to decide.”).

Similarly, “whether the identified endeavor constitutes a major life activity

[is a] determination[] of law for the court to decide.” Id. As we have stated:

The ADA and Rehabilitation Act regulations also assist courts in
determining whether a particular endeavor may properly be
considered a major life activity. “Rather than enunciating a general
principle for determining what is and is not a major life activity,
[these] regulations instead provide a representative list, defining
[the] term to include ‘functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.’” Bragdon, 524 U.S. at [638], 118
S.Ct. at 2205 (quoting 45 C.F.R. § 84.3(j)(2)(ii) (1997); 28 C.F.R.
§ 41.31(b)(2) (1997)); see also 29 C.F.R. § 1630.2(i) (1998).

Id. at 1231 (alterations in original). Thus, it is not surprising that we concluded

in Poindexter that “the district court erred in submitting the legal issues of

impairment and major life activity to the jury.” Id. at 1232.

3
Strictly speaking, 45 C.F.R. pt. 84, App. A applies only to the
Rehabilitation Act, but courts have applied statements from this appendix to cases
involving the ADA. See Bragdon, 524 U.S. at 633; Poindexter, 168 F.3d at 1231.

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 Before we address the question of who decides the third (“substantially

limits”) step of ADA disability analysis, we pause to reiterate three other points

about steps one and two. First,

in order to state a claim under the ADA, a plaintiff must articulate
with precision the impairment alleged and the major life activity
affected by that impairment.
. . . A plaintiff has the option of clarifying his or her position at the
pleading stage or waiting until trial to prove with particularity the
impairment and major life activity he or she asserts are at issue.

Id. Second, the court must affirmatively identify those impairments and major

life activities upon which plaintiff relies and determine whether they qualify as

such under the ADA. See Doyal, 213 F.3d at 495. Third, a court need consider

only the alleged impairments and major life activities proposed by the plaintiff.

See Poindexter, 168 F.3d at 1231.

In contrast to steps one and two, step three – “tying the two statutory

phrases together [by] ask[ing] whether the impairment substantially limited the

[identified] major life activity,” Bragdon, 524 U.S. as 631 (emphasis added) – is a

factual question for the jury. “The determination of whether an individual is

substantially limited in a major life activity must be made on a case by case

basis.” Albertson’s, Inc v. Kirkingburg, 527 U.S. 555, 566 (1999) (quoting 29

C.F.R. pt. 1630, App., § 1630.2(j) (1998)); see also Sutton v. United Air Lines,

Inc. 527 U.S. 471, 483 (1999); Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th

Cir. 1998) (“Whether an impairment ‘substantially limits’ a major life activity

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depends on the individual and the impairment. Such determinations are not

susceptible to per se rules; they must be made on a case-by-case basis.”).

The ADA’s regulations expounding upon the term “substantially limits”

make clear why this step is factual in nature.

(1) The term substantially limits means:
(i) Unable to perform a major life activity that the average
person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or
duration under which an individual can perform a particular
major life activity as compared to the condition, manner, or
duration under which the average person in the general
population can perform that same major life activity.
(2) The following factors should be considered in determining
whether an individual is substantially limited in a major life activity:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected
permanent or long term impact of or resulting from the
impairment.

29 C.F.R. § 1630.2(j). Determining both how well “the average person in the

general population” performs any given major life activity and whether the

plaintiff has proven he is “unable to perform” or is “significantly restricted” in

performing a major life activity involves weighing evidence and assessing

credibility of witnesses, tasks historically given to the jury in our judicial system.

See Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 625 (1991) (stating

that when the jury is the “principal factfinder, [it is] charged with weighing the

evidence, judging the credibility of witnesses, and reaching a verdict”);

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Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935) (noting the

common-law distinction in which the jury finds facts and the court resolves legal

issues). Likewise, evaluating evidence regarding the three factors of

§ 1630.2(j)(2) and applying those determinations to answer the ultimate question

of whether a plaintiff has carried his burden of demonstrating that his asserted

impairment substantially limits one or more of his asserted major life activities lie

within the traditional province of the jury.

In Davoll v. Webb, 194 F.3d 1116, 1135 (10th Cir. 1999), where this

question was not squarely presented, we assumed this conclusion:

In determining whether the ADA plaintiff is substantially limited in a
major life activity, the jury should consider [three factors].
MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1444 (10th Cir.
1996) (quoting 29 C.F.R. § 1630.2(j)(2)). In determining whether
such a plaintiff is substantially limited with respect to working, the
jury should also consider [three additional factors]. Bolton v.
Scrivner, Inc., 36 F.3d 939, 943 (10th Cir. 1994) (quoting 29 C.F.R.
§ 1630.2(j)(3)(ii)).

Id. at 1135 n.12 (emphasis added). Sister circuits also assume that this decision is

for the jury. See Lebron-Torres v. Whitehall Labs., 251 F.3d 236, 241 (1st Cir.

2001) (discussing that without certain evidence “a jury would not be able to

perform the careful analysis that is necessary to determine that [the plaintiff] was

substantially limited in her ability to work”); Weber v. Strippit, Inc., 186 F.3d

907, 913 (8th Cir. 1999) (entertaining the claim that “a reasonable jury could have

found that he was substantially limited in one or more major life activities”).

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 Most circuit courts agree with our conclusion that this question is factual.

See Kiphart v. Saturn Corp., 251 F.3d 573, 582 (6th Cir. 2001) (“[D]etermining

whether an impairment substantially limits a person in a major life activity

ultimately requires an individualized, fact-specific inquiry into the effect of an

impairment on a plaintiff’s life.”); Maziarka v. Mills Fleet Farm, Inc., 245 F.3d

675, 679 (8th Cir. 2001) (calling the determination of whether an impairment

“substantially limits” a major life activity “highly fact-intensive”) ; Santiago

Clemente v. Executive Airlines, Inc., 213 F.3d 25, 32 (1st Cir. 2000) (relating

that the determination of whether a plaintiff’s impairment substantially limits a

major life activity is a “fact-specific analysis”); Colwell v. Suffolk County Police

Dep’t, 158 F.3d 635, 643 (2d Cir. 1998) (stating that the “substantial limitation”

inquiry is “individualized and fact-specific”); Leisen v. City of Shelbyville, 153

F.3d 805, 808 (7th Cir. 1998) (“[T]his record contains no evidence from which a

reasonable factfinder could conclude that she was substantially limited in the life

activity of working.”). Cf. Wilcott v. Matlack, Inc., 64 F.3d 1458, 1460-61 (10th

Cir. 1995) (stating that the question of whether an ERISA participant was totally

and permanently disabled from any kind of work for purposes of long- and short-

term disability benefits was factual and thus reviewed for clear error). But see

Bartlett v. N. Y. State Bd. of Law Exam’rs, 226 F.3d 69, 80 (2d Cir. 1998)

(“Whether an individual is substantially limited with respect to a major life

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activity is a mixed question of law and fact. We therefore review this aspect of

the district court’s judgment de novo.”) (citation omitted).

The trial judge in this case erroneously concluded that all three steps of the

disability analysis should be decided by the court, based on misreadings of

Bragdon and Poindexter. In Bragdon, the Supreme Court wrote that to determine

whether Respondent was “disabled” under subsection (A) of § 12102(2),

Our consideration . . . proceeds in three steps. First, we consider
whether respondent’s HIV infection was a physical impairment.
Second, we identify the life activity upon which respondent relies
(reproduction and child bearing) and determine whether it constitutes
a major life activity under the ADA. Third, tying the two statutory
phrases together, we ask whether the impairment substantially limited
the major life activity.

See 524 U.S. at 631. The trial court below interpreted this passage to mean that

the court should decide all three steps in all cases. Bragdon’s language is

explained, however, by the fact that the Court was reviewing cross-motions for

summary judgment. See id. at 629. Given that posture, it is unremarkable that the

Court indicated that “we,” meaning the court, should undertake every step.

Indeed, it is apparent that the Supreme Court in Bragdon assumed the

“substantially limits” step was factual when it wrote, “We agree with the District

Court and the Court of Appeals that no triable issue of fact impedes a ruling on

the question of . . . [whether] Respondent’s HIV infection is a physical

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impairment which substantially limits a major life activity, as the ADA defines

it.” 524 U.S. at 641.

Poindexter further confused the trial court because there, in the context of

reviewing a case that had been submitted to a jury, we paraphrased Bragdon,

writing,

First, the court must determine whether the plaintiff has an
impairment. Second, the court must identify the life activity upon
which the plaintiff relies and determine whether it constitutes a major
life activity under the ADA. Third, ‘tying the two statutory phrases
together, [the court] ask[s] whether the impairment substantially
limited the major life activity.’

Poindexter, 168 F.3d at 1230 (alterations in original) (citations to Bragdon

omitted). The Poindexter court continued, “Thus, the Court in Bragdon makes

clear that whether a claimed affliction constitutes an impairment under the ADA

and whether the identified endeavor constitutes a major life activity are

determinations of law for the court to decide.” Id. It is notable that in Poindexter

we did not include the third step in our conclusion that the first and second steps

are determinations of law for the court to decide. The trial court in this case,

however, incorrectly extrapolated from the foregoing that the court was also to

resolve whether an impairment “substantially limits” one or more major life

activities. Given the somewhat misleading language from Bragdon and

Poindexter, it is not surprising that the district court reached its conclusion, and

so today we seek to clarify the issue and hold that when determining whether a

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plaintiff is “disabled” for purposes of the ADA, the third (“substantially limits”)

step is for the jury to decide, while the first (“impairment”) and second (“life

activity”) steps are for the court to decide.

Applying this discussion to the facts of this case, we first find that Bristol

articulated with appropriate precision, and the district court correctly identified,

that Bristol’s alleged impairment was a heart condition. Second, we find that

Bristol asserted, and the district court identified, working as the major life

activity on which he predicated his claim of “disability.” After reviewing the

record, however, we believe Bristol did not articulate with precision that he was

relying on “lifting” as a second major life activity; he did not mention lifting in

his complaint or his Final Pretrial Order. Indeed, all of Bristol’s evidence at trial

regarding his “substantial limitation” was directed at his ability to work. And

even in his final argument to the district court, Bristol never clearly indicated that

he was relying on lifting as a second major life activity. His counsel stated:

[T]he impairment is that he has a weakened heart that according to
Dr. Miklin is operating at something like 50 percent of normal
efficiency. . . . [T]hat results in limiting certainly the major life
activity of working. But an additional major life activity that is
mentioned by the court in Dovall, at least, is lifting. And you heard
Dr. Miklin talk about how Mr. Bristol could not lift anything more
than 50 pounds on a regular basis. But certainly in terms of working,
his lifting impacts working. His inability to be out in the cold
impacts work, and his inability to engage in strenuous activities
limits working.

- 22 -
While in this passage counsel mentions lifting as a major life activity, it is not

sufficiently clear whether he intends it to be distinct or supportive of working.

Likewise, the district court couched Bristol’s inability to lift as a causal

factor in why he was limited in his ability to work and not as a discrete major life

activity:

The activities that are impaired or limited are his ability to have any
stressful or strenuous activity or lift heavy objects on the job. . . . It
limits one or more of his major life activities, to wit: working, . . .
more specifically, strenuous or stressful activity or lifting heavy
objects on the job.

Appellants’ counsel most clearly stated the issue when, in the midst of all this

argument, he asked, “Are we talking about working being the major life activity

that the impairment affects, or are we talking about lifting?” Neither Bristol nor

the court followed up on this question and clarified that lifting was also to be

considered a major life activity. Thus, while we find the issue close, we believe

Bristol articulated with precision and pled with particularity that he was

predicating his claim of disability only on the major life activity of working. 4

Even if Bristol had articulated lifting as a major life activity, it likely
4

would not avail him for two reasons. First, he produced evidence that his heart
condition prevented him from lifting more than fifty pounds on a continuous
basis. “A number of courts have held that lifting restrictions similar to [Bristol’s]
are not substantially limiting. . . .” Thompson v. Holy Family Hosp., 121 F.3d
537, 539-40 (9th Cir. 1997) (finding that a 25 pound lifting restriction for
continuous lifting and a 50 pound restriction no more than twice a day did not
“substantially limit” plaintiff’s ability to lift and citing supporting cases from the
(continued...)

- 23 -
 As to the third (“substantially limits”) step of the ADA’s disability analysis,

we find that the district court erred when it concluded that that step was a

question of law for the court to decide. It is a factual question for the jury.

Therefore, we grant Appellants’ request and remand this case to the district court

for a new trial.

In so doing, we decline Bristol’s suggestion to affirm the district court’s

decision on the alternative ground that the court properly decided, as a matter of

law under Rule 50, that Bristol’s heart condition “substantially limited” his ability

to work. 5 We review de novo a district court’s grant of a motion for judgment as

a matter of law, applying the same standard as the district court. See Knowlton v.

Teletrust Phones, Inc., 189 F.3d 1177, 1186 (10th Cir. 1999). Judgment as a

matter of law is appropriate only “[i]f during a trial by jury a party has been fully

heard on an issue and there is no legally sufficient evidentiary basis for a

4
(...continued)
Fourth, Fifth, and Eighth Circuits). Second, Bristol pointed to no evidence of
how much the average person can lift. Without this evidence, a factfinder cannot
make the comparison between Bristol and the “average person” as ADA
regulations require. See Doyal, 213 F.3d at 497 (“Because [plaintiff] introduced
no evidence suggesting she experienced greater difficulty than anybody else
learning the new computer system or any other new material, she has failed to
demonstrate that she was significantly restricted in learning.”).
5
Of course, our clarification today that this third step is factual and
reserved for the jury does not preclude a court from deciding it in the appropriate
circumstance, e.g., upon a motion for summary judgment (Rule 56) or judgment
as a matter of law (Rule 50).

- 24 -
reasonable jury to find for that party.” Fed. R. Civ. P. 50(a)(1). “[A] court may

grant the motion only if the evidence points but one way and is susceptible to no

reasonable inferences which may support the opposing party’s position.” Davis v.

United States Postal Service, 142 F.3d 1334, 1339 (10th Cir. 1998) (alteration in

original) (quotation marks omitted). We construe the evidence and inferences

therefrom in the light most favorable to Appellants, the non-moving parties. See

Knowlton, 189 F.3d at 1186.

In this case, Bristol would have met his burden if he had demonstrated

sufficiently that his heart condition substantially limited his ability to work:

With respect to the major life activity of working –
(i) The term substantially limits means significantly restricted
in the ability to perform either a class of jobs or a broad range
of jobs in various classes as compared to the average person
having comparable training, skills and abilities. The inability
to perform a single, particular job does not constitute a
substantial limitation in the major life activity of working.

29 C.F.R. § 1630.2(j)(3)(i); see also Sutton v. United Airlines, Inc., 527 U.S. 471,

491 (1999) (“When the major life activity under consideration is that of working,

the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs

allege they are unable to work in a broad class of jobs.”).

Bristol failed to carry this burden. He did not produce evidence of the job

market for “the average person having comparable training, skills and abilities,”

as we have held the regulations require. See Bolton v. Scrivner, Inc., 36 F.3d

- 25 -
939, 944 (10th Cir. 1994) (affirming summary judgment dismissing an ADA claim

because “[t]he evidence does not address Bolton's vocational training, the

geographical area to which he has access, or the number and type of jobs

demanding similar training from which Bolton would also be disqualified”).

Neither did he show that his heart condition prevented him from working in a

broad class of jobs.

Bristol put on one expert, Dr. Joanne Bourn, to establish that his heart

condition substantially limited his ability to work. The closest she came to

testifying directly to this issue came in the following exchange on direct

examination:

Q: [D]o you have an opinion whether [Bristol is] restricted from a
substantial number of jobs that are available in the Denver
metropolitan area?

A: There will be many jobs that he would be capable of assuming the
responsibility, yes.

Q: And how about jobs that he could not do for someone with a high
school – high school diploma and the experience he has?

A: There would be many limitations with that also, yes.

We make two observations regarding Dr. Bourn’s first response. First, it is in the

affirmative. She responds that there are many jobs Bristol could (not “could not”)

do. In context, though, it seems she (or the court reporter) omitted a negative.

Second, even if such an omission occurred, she states merely that Bristol would

- 26 -
not be capable of performing “many jobs.” In her second response, she says he

would have “many limitations.” We find that this testimony does not rise to the

level of proving that Bristol was substantially limited in his ability to work,

especially when we view the evidence in the light most favorable to Appellants,

as we must in addressing this particular argument by Bristol. The Supreme Court

has made clear that for an impairment to substantially limit the ability to work it

must prevent the plaintiff from working in a substantial class of jobs or a broad

range of jobs in various classes. See Sutton, 527 U.S. at 492-493 (stating that,

even assuming plaintiffs could not work as global airline pilots, they had not

produced evidence that they could not work as regional pilots or pilot instructors,

among other positions).

Bristol attempts to buttress Dr. Bourn’s testimony by noting that Bristol had

only a high school education and worked for the majority of his life in blue-collar

jobs. He also recites the specific restrictions Dr. Miklin placed upon him, i.e.,

that he could not lift fifty pounds on a continuous basis, be exposed to cold

weather (except infrequently), be placed in high-stress situations, or undertake

physically strenuous activities. However, this is insufficient to establish that he

was substantially limited in his ability to work. Therefore, we conclude that

Bristol was not “disabled” as a matter of law.

- 27 -
 We also decline to consider Appellants’ suggestion that we enter judgment

as a matter of law for them on this issue. Appellants candidly admit that they did

not move for judgment as a matter of law on the issue, but they urge us to extend

to them the rule for entering summary judgment against a non-moving party,

citing Armijo v. Atchison, Topeka & Santa Fe Railway Co., 27 F.3d 481, 482-83

(10th Cir. 1994) and Dickeson v. Quarberg, 844 F.2d 1435, 1444 n.8 (10th Cir.

1988).

Initially, we note that it is rare for an appellate court to enter summary

judgment in favor of the non-moving party. See Armijo, 27 F.3d at 483 (citing

E.C. Ernst, Inc. v. Gen. Motors Corp., 537 F.2d 105, 109 (5th Cir. 1976)

(“Although it is occasionally proper for an appellate court to enter summary

judgment for the non-moving party, this occurs only in the rare case in which it is

very clear that all material facts are before the reviewing court.”)). More

important, however, the different procedural postures of summary judgment and

judgment as a matter of law make it inappropriate to construe opposing the latter

as equivalent to opposing the former.

“The very mission of the summary judgment procedure is to pierce the

pleadings and to assess the proof in order to see whether there is a genuine need

for trial.” Fed. R. Civ. P. 56, Advisory Committee Notes, 1963 Amendment,

Subdivision (e). Prior to trial, granting summary judgment in favor of the non-

- 28 -
moving party may well “secure the just, speedy and inexpensive determination of

every action” by disposing of an issue or the case before the parties and the court

has invested the resources necessary to carry off a trial. See Celotex Corp. v.

Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).

In contrast, judgment as a matter of law is used during or after a trial. See

Fed. R. Civ. P. 50. By that time, the parties and the court have expended a

terrific amount of resources to produce the evidence upon which the verdict will

rest. Accordingly, Rule 50(a)(2) requires that “a motion for judgment be made

prior to the close of trial, subject to renewal after a jury verdict has been

rendered. The purpose of this requirement is to assure the responding party an

opportunity to cure any deficiency in that party’s proof that may have been

overlooked until called to the party’s attention by a late motion for judgment.”

Fed. R. Civ. P. 50, Advisory Committee Notes, 1991 Amendment, Subdivision

(a). By the time a trial has been mounted, the judicial system has an interest in

curing defects of proof, to the extent that is reasonably possible. Thus, by failing

below to move for judgment as a matter of law, Appellants failed to afford Bristol

the opportunity Rule 50 gives him to reasonably supplement the evidence to

support his claim that his heart condition substantially limited his ability to work.

Consequently, we decline to convert Appellants’ opposition to Bristol’s Rule 50

- 29 -
motion into opposing summary judgment and, thus, do not consider whether we

should direct a verdict for them on this issue.

In conclusion, we reverse the disposition of the trial court and remand for a

new trial consistent with this opinion.

B. “Discrimination”

Bristol alleged that Appellants discriminated against him in violation of the

ADA when they did not reassign him to either the position of appraiser-trainee in

the County Assessor’s Office or the position of dispatcher II in the Sheriff’s

Office. Appellants countered by arguing: (1) Bristol failed to prove that they

possessed discriminatory intent, (2) Bristol was not qualified for either position,

(3) the County was under no duty to transfer Bristol to the position of appraiser-

trainee because the Sheriff, not the County, was Bristol’s employer, and (4) the

dispatcher II job was not “vacant” as a matter of law. We address each issue in

turn.

1. Intent to Discriminate

Appellants argue that the trial court erred by not requiring Bristol to prove

that the County “was motivated by discriminatory intent.” They assert that this

error caused the court to improperly deny (1) their motion for judgment as a

matter of law under Rule 50 and (2) two proposed jury instructions requiring

- 30 -
Bristol to prove discriminatory intent. This argument has no merit. In Midland

Brake, 180 F.3d at 1167, this court held that “the failure reasonably to

accommodate (including reassignment) [is] a prohibited act of discrimination.”

Thus, assuming Bristol established the other elements of his claim, when the

County failed to reassign him to a vacant position it discriminated against him.

Therefore, we affirm the district court’s denial of Appellants’ Rule 50 motion and

jury instructions regarding the alleged need for separate proof of discriminatory

intent.

2. Appraiser-Trainee Position

Appellants argue that they were under no duty to transfer Bristol to the job

of appraiser-trainee because the County was not Bristol’s employer. In addition,

they argue that the trial court erred by denying their Rule 50 motion that Bristol

was not qualified for this position as a matter of law. For the reasons stated

below, we affirm the district court’s ruling on the qualification issue, but reverse

and remand for a jury determination as to whether the County is properly

considered to be Bristol’s employer.

a. The County as Bristol’s employer

Under the ADA, the definition of employer is substantially similar to that

under Title VII, and this court has applied reasoning from Title VII cases to

determine whether an entity is a plaintiff’s employer in the context of the ADA.

- 31 -
See Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir. 1999).

“Acknowledging [that a court] must consider many factors and an employee can

have more than one employer for Title VII purposes, the main focus of the court’s

inquiry is the employer’s right to control the means and manner of the worker’s

performance.” Atchley v. Nordam Group, Inc., 180 F.3d 1143, 1153 (10th Cir.

1999) (quotation marks omitted) (emphasis in original). The other factors used to

determine whether an entity is a plaintiff’s “employer” include:

(1) the kind of occupation at issue, with reference to whether the
work usually is done under the direction of a supervisor or is done by
a specialist without supervision; (2) the skill required in the
particular occupation; (3) whether the employer or the employee
furnishes the equipment used and the place of work; (4) the length of
time the individual has worked; (5) the method of payment, whether
by time or by job; (6) the manner in which the work relationship is
terminated; (7) whether annual leave is afforded; (8) whether the
work is an integral part of the business of the employer; (9) whether
the worker accumulates retirement benefits; (10) whether the
employer pays social security taxes; and (11) the intention of the
parties. No single factor is conclusive. Rather, the courts are to look
at the totality of circumstances surrounding the working relationship
between the parties.

Lambertsen v. Utah Dep’t of Corr., 79 F.3d 1024, 1028 (10th Cir. 1996) (footnote

omitted). 6

6
This court, like others, has lifted the Lambertsen factors from the context
of distinguishing between employees and independent contractors and applied
them to ADA and Title VII cases. As such, they serve as rough-and-ready
reminders in what is simply a totality-of-the-circumstances test.

- 32 -
 The district court granted Bristol’s Rule 50 motion, ruling that the County

was Bristol’s employer. The district court appears to have approached the issue

as a matter of law, and did not set forth any application of the Lambertsen factors.

Rather, after hearing argument from counsel, the court simply stated that “the

Court will rule as a matter of law and grant plaintiff’s motion that both the sheriff

and the board of county commissioners are the employers.” (Tr. 278.)

To the extent that the district court analyzed the question of the County’s

status as an employer as a legal issue, it misconstrued the nature of the inquiry.

In this circuit, determining whether an entity qualifies as an employer is a fact

issue for the jury. See Zinn v. McKune, 143 F.3d 1353, 1357 (10th Cir. 1998)

(finding evidence insufficient for Lambertsen analysis to reach jury in Title VII

case); id. at 1362 (Briscoe, J., concurring) (noting that “whether [defendant] was

[plaintiff’s] employer is a question of fact”). Cf. Marvel v. United States, 719

F.2d 1507, 1515 (10th Cir. 1983) (recognizing that “the determination of whether

an individual is an employee is a question of fact”). But cf. Waxman v. Luna,

881 F.2d 237, 240 (6th Cir. 1989) (analyzing whether person is employee under

ERISA as question of law); Penn v. Howe-Baker Engineers, Inc., 898 F.2d 1096,

1101 n.5 (5th Cir. 1990) (same); Holt v. Winpisinger, 811 F.2d 1532, 1536 (D.C.

Cir. 1987) (same).

- 33 -
 To the extent that the district court couched its ruling “as a matter of law”

based on an implicit conclusion that no reasonable jury could deny the County’s

employer status, see Holter v. Moore and Co., 702 F.2d 854, 855 (10th Cir. 1983)

(recognizing that, although employment relationship is question of fact, “the

sufficiency of the evidence to create an issue of fact for the jury is solely a

question of law”); see also Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d 1495,

1498 (9th Cir. 1995) (“We have long held that whether an employer/employee

relationship exists is usually a question of fact for the jury, so long as there is an

evidentiary basis for its consideration.”), that conclusion was erroneous.

From Lambertsen’s list, factors 3 and 5 through 11 appear to be relevant to

whether the County was Bristol’s employer. However, we must begin with the

“main focus” of the inquiry: Did the County control the means and manner by

which Bristol did his work as jailer? The answer is clearly in the negative; the

Sheriff controlled how Bristol did his job day-to-day, while the County had no

role in those decisions. And even though the Clear Creek County Sheriff’s

Department may have voluntarily chosen to have the County Personnel Review

Board review all terminations of the Sheriff’s employees, under Colorado law the

Sheriff could not have limited his own discretion to hire or fire Bristol. See

Seeley v. Board of County Comm’rs, 791 P.2d 696, 700 (Colo. 1990) (en banc)

(holding that county sheriffs alone have the power to hire and fire their

- 34 -
employees, and that a sheriff does not even “possess the statutory authority to

limit his power to discharge [an employee] at his pleasure”). This would suggest

that factor six – the manner in which the employment relationship is terminated –

also weighs against viewing the County as Bristol’s employer.

However, a reasonable jury could conclude that most of the remaining

factors weigh in favor of a finding that the County was Bristol’s employer. The

County provided the jail and the equipment used in the jail (factor 3). The

County Commissioner signed Bristol’s checks (factor 5). Bristol received leave

on the same basis as other County employees, and it was administered by the

County human resource director (factor 7). The County paid for all benefits

received by employees of the Sheriff’s office. Typically, this includes paying

retirement benefits and social security taxes (factors 9 & 10). Further, the County

paid Bristol’s disability benefits.

It is less clear what the County’s and Bristol’s intentions were regarding

their employment relationship (factor 8), and the jury would be within reason to

accept or reject the notion that Bristol’s work was “integral to the business” of

the County (factor 11). On one hand, the jury could conclude that, insofar as

Bristol was a part of County law enforcement by virtue of working in the

Sheriff’s Office as a jailer, he did work integral to the County’s business of

enforcing the law and keeping good order. On the other hand, the jury could

- 35 -
focus on the distinct identities of the Sheriff and the County Board, and conclude

that the Sheriff’s duties are no more integral to the business of the Board than the

duties of the executive are integral to the business of the legislature.

The employment relationship of Bristol and the County is a close question,

well within the jury’s province. 7 While the County did not oversee Bristol’s work

day-to-day, it did have substantial control over many of the other aspects of the

terms and conditions of his employment as jailer. It was error for the district

court to preclude the jury from determining whether the County can properly be

considered Bristol’s employer. We therefore vacate and remand the district

court’s grant of Bristol’s Rule 50 motion on this issue.

7
We recognize that, in Owens v. Rush, 636 F.2d 283 (10th Cir. 1980), this
court held that, for purposes of determining the scope of Title VII’s coverage,
“the Sheriff should be considered an agent of the County.” Id. at 287. Even
though Title VII excluded employers with fewer than fifteen employees, the court
reasoned that the Sheriff (with fewer than fifteen employees) was not excluded
because the County had more than fifteen employees. The court’s agency finding
was based on the fact that the Sheriff “is elected by the body politic and acts on
its behalf in enforcing the state’s laws.” Id. at 286.
We find that Owens has little relevance to this case, as the essential
question here is whether the County should have independent liability to Bristol
as a co-employer, whereas in Owens the issue was only whether the Sheriff fell
within the statutory definition of an employer under 42 U.S.C. § 2000e(b) by
virtue of being an “agent” of the County. The determination of whether two
entities can be considered a “single employer” to meet the fifteen-employee
requirement is not coextensive with the determination of whether a valid claim
may be stated against both entities. See 1 Lex K. Larson, Employment
Discrimination § 5.03[1], at 5-24 (2d ed. release 58, June 2001).

- 36 -
 b. Bristol’s qualifications for the appraiser-trainee position

Appellants assert that the district court erred in denying their motion under

Rule 50 that Bristol was not qualified for the position of appraiser-trainee as a

matter of law. We note, however, that the County reviewed Bristol’s resume and

decided to interview him. This indicates that the County believed that he was

qualified enough to merit an interview. In addition, Dr. Bourn testified at length

as to why Bristol was qualified for the position of appraiser-trainee. 8 Bristol

himself also testified as to why he believed he was qualified for the position. The

jury heard testimony about the job description, which was entered as plaintiff’s

8
Appellants argue that the trial court erred in permitting Dr. Bourn to testify
as an expert witness for Bristol. “[T]he district court has broad discretion in
determining whether or not to admit expert testimony, and we review a decision
to admit or deny such testimony only for abuse of discretion.” Orth v. Emerson
Elec. Co., White-Rodgers Div., 980 F.2d 632, 637 (10th Cir. 1992). “It is within
the trial court’s broad discretion to decide whether or not an expert’s testimony
will ‘assist the trier of fact to understand the evidence or determine a fact in
issue.’” Id. (quoting Rule 702). Appellants present no evidence that the trial
court abused its discretion in concluding that Dr. Bourn would assist the
factfinder to understand the evidence about whether Bristol was qualified for the
positions he sought and about whether his heart condition substantially limited his
ability to work. Thus, we affirm the trial court’s decision to admit her as an
expert witness.
Appellants further object that the district court erred in permitting Dr.
Bourn to testify that Bristol could be trained for the appraiser-trainee position.
Since Appellants did not object to Dr. Bourn’s testimony regarding training when
she was giving it, we review this objection for plain error. See Pandit v. Am.
Honda Motor Co., Inc., 82 F.3d 376, 379 (10th Cir. 1996); Fed.R.Evid. 103(d).
We decline to exercise our discretion to address this alleged error because it
clearly does not seriously affect the fairness, integrity, or public reputation of
these judicial proceedings. See Jones v. United States, 527 U.S. 373, 389 (1999).

- 37 -
exhibit #9, and why Bristol would or would not fit that description. On appeal,

we review the district court’s denial of a Rule 50 motion by examining the

evidence in the light most favorable to the non-moving party, in this case Bristol.

In that light, there was clearly enough evidence to support the court’s denial of

Appellants’ motion and to send the issue to the jury. We thus affirm the district

court’s decision.

3. Dispatcher II Position

Appellants appeal the trial court’s denial of their Rule 50 motion that the

dispatcher II position was not “vacant” as a matter of law. We have held that a

reasonable accommodation may include reassignment to a vacant position if the

employee is qualified for the job and it does not impose an undue burden on the

employer. See Midland Brake, 180 F.3d at 1169. Thus, an employer is under a

duty to reassign an employee only if the employer has “vacant” positions. See id.

at 1175. “‘[A] vacant position’ includes not only positions that are at the moment

vacant, but also includes positions that the employer reasonably anticipates will

become vacant in the fairly immediate future.” Id.

The parties produced the following evidence: Bristol suffered his minor

heart attack in March 1996. At that time, he requested a light-duty assignment,

which the Sheriff provided. One month after Bristol took his stress test and Dr.

Miklin determined that Bristol should continue on light-duty indefinitely, the

- 38 -
Sheriff decided to fire him. Bristol appealed to the Personnel Review Board on

July 11, and it informed him that his termination was upheld July 16. The

dispatcher II position came open in October or November 1996. At the time the

Sheriff fired Bristol, the Sheriff did not know that the position would become

available in October or November. This final fact is dispositive, causing us to

reverse the trial court’s ruling and enter judgment on this issue for Appellants.

As a matter of law, the dispatcher II position was not “vacant” at the relevant

time because it was not within the contemplation of the Sheriff when he denied

Bristol’s request for a reasonable accommodation and terminated his

employment. 9

Apparently, the district court focused exclusively on Midland Brake’s use

of the term “fairly immediate future,” whereas the language of the opinion makes

clear that another aspect of whether a position is vacant involves the employer’s

subjective knowledge of the upcoming opening:

“[A] vacant position” includes not only positions that are at the
moment vacant, but also includes positions that the employer
reasonably anticipates will become vacant in the fairly immediate
future. See Monette [v. Elec. Data Sys. Corp.], 90 F.3d [1173,] 1187
[(6th Cir. 1996)] (“If, perhaps, an employer knows that a position for
which the disabled applicant is qualified will become vacant in a
short period of time, the employer may be required to offer the

9
Since we find as a matter of law that the dispatcher II position was not
“vacant,” we need not consider Appellants’ further arguments that Bristol was not
qualified for it or that he did not participate in the interactive process.

- 39 -
 position to the employee.”); see also EEOC Guidance, at 39
(“‘Vacant’ means that the position is available when the employee
asks for reasonable accommodation, or that the employer knows that
it will become available within a reasonable amount of time.”).

Midland Brake, 180 F.3d at 1175 (emphasis added); see also 29 C.F.R. pt. 1630,

App., § 1630.2(o) (stating as an example that if “[t]he employer . . . knows that an

equivalent position for which the individual is qualified[] will become vacant next

week,” then that position should be considered “vacant” and the employer may

have a duty to reassign the employee to that position when it becomes available

(emphasis added)). 10

CONCLUSION

We REVERSE and REMAND for jury determinations the district court’s

rulings on whether Bristol is substantially limited in the major life activity of

10
Appellants further complain that the trial court erred in denying their jury
instructions that related to (1) how Bristol’s impairment “substantially limited”
his ability to work, (2) whether the County was Bristol’s employer, and (3)
whether Bristol needed to prove affirmatively that Appellants intended to
discriminate against him. As Appellants acknowledge, this complaint is
derivative of our consideration on the merits of each of the above issues. Thus,
given our dispositions above, we hold that the trial court (1-2) erred in not giving
jury instructions on “substantially limited” and on whether the County was
Bristol’s employer, and (3) did not err in refusing to give an instruction regarding
whether Bristol proved that Appellants intentionally discriminated against him.
In addition, given our rulings, Appellants’ argument for a new trial is moot.
Finally, Appellants appeal several rulings pertaining to remedies. Because
those asserted errors do not appear likely to recur in the event of a retrial, we
decline to consider them given our reversal and remand on the issue of liability.

- 40 -
working, and as to whether the County is properly considered to be Bristol’s

employer. Further, we REVERSE the district court’s denial of Appellants’ Rule

50 motion that the dispatcher II position was not “vacant” as a matter of law, and

enter judgment on this issue for Appellants. We REMAND for a new trial

consistent with this opinion.

- 41 -
No. 00-1053, Bristol v. Board of County Commissioners of the County of Clear

Creek

LUCERO, Circuit Judge, dissenting.

While I agree with most of the majority opinion and find it well-reasoned, I

write separately because I respectfully disagree with the majority’s analysis of

whether the County was an employer of Bristol. Short of upsetting Colorado’s

system of local government, we could not uphold a jury finding of fact that

plaintiff is an employee of the County. I therefore ultimately conclude that as a

matter of law the plaintiff cannot be an employee of the County. We should

respect the constitutional scheme that the State of Colorado has created to govern

its various counties, and we should not empower a jury to force one state

constitutional officer to be responsible for the actions of another.

I

I agree with the majority that the multi-factor test we developed in

Lambertsen v. Utah Department of Corrections, 79 F.3d 1024, 1028 (10th Cir.

1996), is the correct starting point for our analysis. I also agree that, as a general

rule, “determining whether an entity qualifies as an employer is a fact issue for

the jury.” (Majority Op. at 33.) However, in this particular context the

combination of the Lambertsen test with Colorado constitutional and statutory law
regarding local government requires a finding that, as a matter of law, the County

could not have been plaintiff’s employer.

As the majority correctly points out, the “main focus of the court’s inquiry

is the employer’s right to control the manner of the worker’s performance.”

Atchley v. Nordam Group, Inc., 180 F.3d 1143, 1153 (10th Cir. 1999) (quotation

omitted). The majority and I agree that the County clearly did not have control

over the manner of Bristol’s performance in this case, and the majority

acknowledges that the Sheriff had complete control over Bristol’s job

performance. But a close examination of Colorado law makes clear just how

complete and exclusive the Sheriff’s control over his employees is.

The county sheriff is a constitutional office in Colorado, a position that is

separate and distinct from the board of county commissioners. See Colo. Const.

art. XIV, § 6 (election of county commissioners), § 8 (election of sheriffs and

other county officers). Colorado state law explicitly provides that sheriffs have

the power to hire and fire employees at will. Colo. Rev. Stat. § 30-10-506. The

Colorado Supreme Court has not only held that county sheriffs alone have the

power to hire and fire their employees, but also that a sheriff does “not possess

the statutory authority to limit his power to discharge [an employee] at his

pleasure.” Seeley v. Bd. of County Comm’rs, 791 P.2d 696, 700 (Colo. 1990) (en

banc) (quotation omitted) (holding that a county sheriff had the power to hire and

-2-
fire employees at will, despite adoption of a personnel manual that purported to

limit that power). Thus, even though the Clear Creek County Sheriff’s

Department may have voluntarily chosen to have the County Personnel Review

Board review all terminations of the Sheriff’s employees, under Colorado law the

Sheriff could not have restrained his discretion to hire or fire Bristol in this

manner. At any time he could have disregarded the Personnel Review Board’s

recommendations.

Other Colorado state court cases emphasize the lack of control that a

county’s board of county commissioners has over a sheriff’s employees and over

the employees of other county officials whose independence is protected under

Colorado law and the Colorado Constitution. See, e.g., Schroeder v. Bd. of

County Comm’rs, 381 P.2d 820, 822–23 (Colo. 1963) (holding that once a board

of county commissioners has approved the salary for an employee, it could not

have used its budgetary power over the county superintendent of schools to force

him to fire that employee, where the superintendent’s power to hire and fire was

established by state law); Tunget v. Bd. of County Comm’rs, 992 P.2d 650, 652

(Colo. Ct. App. 1999) (holding that the sheriff, not the county or board of

commissioners, was liable for injuries resulting from the sheriff’s employees’

-3-
negligence because “[t]he sheriff, not the county or the Board, has the right of

control with respect to the [sheriff’s] deputies”). 1

Federal district courts have also considered control by a county over a

sheriff’s employees to be a factor in the context of suits under Title VII of the

Civil Rights Act and 42 U.S.C. § 1983. A number of courts have stated that the

sheriff can terminate his employees at will, regardless of the existence of a county

personnel manual or other actions by a board of county commissioners. See

Goodwin v. Debekker, 716 F. Supp. 1363, 1365 (D. Colo. 1989) (holding that a

sheriff had not limited his discretion to fire an employee through adoption of the

county’s personnel policy manual); Jackson v. Johns, 714 F. Supp. 1126, 1130 (D.

Colo. 1989) (same); see also Harrison v. Bd. of County Comm’rs, 775 F. Supp.

365, 369 (D. Colo. 1991) (“Colorado law is clear that a sheriff may revoke the

appointment of a deputy sheriff at his or her pleasure.”); Coover v. Summit

County, No. 86-F-12, 1986 WL 28915, at *2 (D. Colo. Mar. 21, 1986) (holding

that a sheriff’s employee does not have a property interest in his job because he

1
While a board of county commissioners may have to approve the overall
budget of a sheriff’s department and the salaries of the sheriff’s employees, the
Colorado Supreme Court has indicated that the sheriff is free to adjust the number
or salary of his employees as long as he stays within the overall budget provided
by the board. See Tihonovich v. Williams, 582 P.2d 1051, 1055–56 (Colo. 1978)
(en banc).

-4-
can be terminated at will by the sheriff, and “[t]his mandate could not be

abrogated or restricted at the county level”). 2

Of the other eleven Lambertsen factors, the majority concludes that eight

might be pertinent. (Majority Op. at 34.) Even though Lambertsen does not

prescribe a quantitative analysis, for the purposes of this discussion I do not

dispute the majority’s determination that factors five (method of payment), seven

(annual leave), nine (accumulation of retirement benefits), and ten (payment of

social security taxes) might weigh in favor of finding that the County was the

employer of plaintiff. I concur with the majority’s conclusion that it is unclear in

2
Two federal district courts have held that sheriff’s department employees
are employees of the county. See Robertson v. Bd. of County Comm’rs, 985 F.
Supp. 980, 985 (D. Colo. 1997) (holding that sheriff’s department employees are
employees of the county for purposes of a Fair Labor Standards Act suit because
of the board’s approval of salaries and budget); Johnson v. Bd. of County
Comm’rs, 859 F. Supp. 438, 442 (D. Colo. 1994) (holding that a board is the
plaintiff’s employer for purposes of Title VII). Both of these cases relied to a
great extent on our decision in Owens v. Rush, 636 F.2d 283 (10th Cir. 1980).
See Robertson, 985 F. Supp. at 985; Johnson, 859 F. Supp. at 441. I agree with
the discussion in the majority opinion that while Owens does control the fifteen-
worker jurisdictional issue, it is not controlling on the issue of who has
responsibility to provide accommodation to a worker. (Majority Op. at 36 n.7.)
Moreover, both of these cases relied on the ability of a board of county
commissioners to control the number and salary of a sheriff’s employees through
the budgetary process. See Robertson, 985 F. Supp. at 985; Johnson, 859 F.
Supp. at 441. However, as pointed out in note 1, supra, the mere fact that the
number or salary of employees can be controlled through the budgetary process
does not mean that a board can also determine the hiring and firing of particular
employees. And as the Colorado Supreme Court held in Schroeder, 381 P.2d at
822–23, a board of county commissioners (despite its budgetary authority) has no
power to order the termination of a particular employee of a county officer.

-5-
which direction factor eleven (the intentions of the parties regarding the

employment relationship) points. (Id. at 35.) I also agree with the majority’s

conclusion that factor six (the manner in which the employment relationship is

terminated) weighs in favor of finding that the County is not plaintiff’s employer

because, under Colorado case law, the Sheriff’s Department could have ignored

any recommendation of reinstatement by the Personnel Review Board. (Id.)

According to the majority’s analysis of factor eight of the Lambertsen test,

it is unclear whether Bristol’s work was “integral to the business of the County”

because the Sheriff’s Department is involved in law enforcement, which is one of

the responsibilities of the County. (Id.) I conclude, however, that it is

impossible as a matter of law for this factor to be resolved in favor of plaintiff.

There is a significant and essential distinction between the Board’s power to pass

laws to be enforced by the Sheriff, a legislative function, and the Sheriff’s powers

to enforce those laws, an executive function. As the majority notes, the Sheriff’s

duties are thus no more integral to the business of the Board than the duties of the

executive of any government are integral to the business of the legislature. (Id. at

36.)

I also disagree with the majority’s conclusion that factor three (the

provision of equipment and place of work) weighs in favor of finding that the

County was plaintiff’s employer. The majority argues that because the County

-6-
provided the jail and the equipment used in the jail by the Sheriff, the County

might be considered plaintiff’s employer. (Id. at 35.) But the Board is also

responsible for “providing and maintaining adequate courtrooms and other court

facilities” for state judicial officers. Colo. Rev. Stat. § 13-3-108. By the same

logic, this would mean that the Board might be responsible for the hiring and

firing of all judicial employees in Colorado, even though it is the state that funds

the courts, and it is the judicial branch itself that establishes salaries, personnel

policies, and its own budget. Id. §§ 13-3-104 to -106. I cannot conclude that

factor three has any meaningful weight in this context.

The Colorado Constitution and Colorado state law have created a system of

independent, separate constitutional county offices, with each office responsible

for its own employees. Under the most important element of the Lambertsen

test—the right to control a worker’s performance—the evidence is overwhelming

that the County had no control at all over Bristol. To my mind, this fact is what

matters most. While it is true that no one factor is to be determinative in the

Lambertsen analysis, control is the “main focus” of the inquiry, Lambertsen, 79

F.3d at 1028, especially when the other eleven Lambertsen factors are fairly

evenly balanced.

Under Colorado law it was impossible for the County to have had control

over the Sheriff’s decision to fire plaintiff in this case. But a jury finding that the

-7-
County was the employer of plaintiff would effectively be a finding that the

County could have had control over the Sheriff’s decision. Such a finding would

be counter to Colorado law and would have to be overturned on a motion for

judgment as a matter of law. Therefore, I conclude that a proper application of

Colorado constitutional and statutory law to the facts of this case would yield a

Lambertsen analysis that holds as a matter of law that the County is not an

employer of Bristol.

There is an additional way in which a jury finding in favor of plaintiff and

against the County would undermine Colorado’s local government structure.

Without naming the County Assessor as a party, plaintiff seeks relief against the

County because of the claimed discriminatory refusal by the County Assessor to

hire him. (Majority Op. at 30–31.) Like the Sheriff, the Assessor is a

constitutional officer whose position is established separately from the Board of

County Commissioners. See Colo. Const. art. XIV, § 8 (election of assessors and

other county officers). And like the Sheriff, Colorado law provides that the

Assessor has the power to hire and fire his own employees. See Colo. Rev. Stat.

§ 30-2-104 (stating that the “county assessors . . . may appoint such deputies,

assistants, and employees as shall be necessary”). The Colorado Supreme Court

has held that, under this statutory provision, county officers have the independent

power to determine who should fill positions within their departments, and that

-8-
the board of county commissioners may not interfere with those decisions. See

Schroeder, 381 P.2d at 822–23 (interpreting a previous version of § 30-2-104 with

identical relevant language, and holding that the county cannot effectively

eliminate a position previously established by a county officer and approved by

the board by refusing to fund the position). In suing the County over the

Assessor’s decision not to hire plaintiff, plaintiff is, in essence, asking that the

Board be held liable for a hiring decision—the decision by the County Assessor

not to hire plaintiff—over which it had no power under Colorado law.

II

Principles of comity and federalism reinforce my analysis of this issue.

The above discussion of control over a sheriff’s employees must be

considered in the broader context of Colorado constitutional law. Division of

authority over local government employees is part of a larger structure of county

offices and county government that was established by the people of Colorado

when they formed their constitution. See Colo. Const. art. XIV, §§ 6, 8.

Colorado courts have gone to great lengths to protect this constitutional

scheme, and the state supreme court has repeatedly emphasized the independence

of the various county constitutional offices both from other county officials and

from the state legislature itself. For example, it has held unconstitutional state

laws that attempted to place qualifications on holding the office of sheriff because

-9-
the constitution explicitly lists the qualifications that must be met by elected

sheriffs. Jackson v. Colorado, 966 P.2d 1046, 1051 (Colo. 1998) (en banc). The

Colorado Supreme Court has come to the same conclusion with respect to County

Assessors. See Reale v. Bd. of Real Estate Appraisers, 880 P.2d 1205, 1211

(Colo. 1994) (en banc) (“The Colorado Constitution reserves no authority in the

state legislature to change, add to, or diminish the qualifications for

constitutionally created offices.”).

Colorado county constitutional officers are officers with limited powers.

For instance, officers such as sheriffs may not undertake actions that are not

within their inherent or statutory authority. See, e.g., Douglass v. Kelton, 610

P.2d 1067, 1068 (Colo. 1980) (en banc) (holding that sheriffs had no power to

issue permits for concealed weapons, because such power was not granted to them

by statute, nor was it part of the inherent authority of a sheriff); Skidmore v.

O’Rourke, 383 P.2d 473, 476–77 (Colo. 1963) (en banc) (holding for the same

reasons that a county treasurer did not have the power to file suit to recover taxes

owed).

A finding of fact by the jury that the County was plaintiff’s employer would

undermine the constitutional scheme for county offices created by the people of

Colorado and protected by Colorado case law. A conclusion that Bristol, a

member of the Sheriff’s Department, is an employee of the County would make

-10-
the County responsible for finding an alternate position for Sheriff’s Department

employees who have been fired by the Sheriff. Not only would this undermine

the independence of the Sheriff, but it would also create a strong incentive for the

County to interfere with the Sheriff’s constitutionally and statutorily protected

right to hire and fire employees, because the County would be liable for those

decisions. Moreover, because a jury finding for plaintiff would, in the future,

require the County to seek alternate positions for Sheriff’s Department employees,

the County might even be forced to exceed its statutory and constitutional powers

in order to fulfill that requirement.

Likewise, a finding by a jury that the County was liable for the Assessor’s

decision not to hire plaintiff would be contrary to Colorado law and would

undermine Colorado’s constitutional scheme for local government. Such a

finding would provide an incentive for the County to interfere in the decision of

the Assessor and other county officers to hire and fire employees, contrary to the

provisions of Colorado Revised Statutes § 30-2-104. In essence, the federal

courts would be holding a Colorado governmental agency liable for failing to

exceed its statutory authority under Colorado law. There must be few, if any,

actions that we could take that would be more corrosive of the sovereignty of the

State of Colorado and of our federal system of government.

-11-
 These considerations buttress my conclusion that the County cannot be

Bristol’s employer. As we have the ability, reasonably and plausibly, to apply a

statute to avoid intrusion on state governmental functions we should do so. See

Lyes v. City of Riviera Beach, 166 F.3d 1332, 1343–44 (11th Cir. 1999) (holding

that “federalism and comity concerns . . . should play a significant role in

determining whether to treat as one body two governmental entities that are

separate and distinct under state law,” and that “substantial deference” should be

accorded to “a state lawmaking body’s determination of whether two or more

governmental entities are separate and distinct” for Title VII purposes); cf.

Gregory v. Ashcroft, 501 U.S. 452, 470 (1991) (stating that where federal law is

ambiguous it should be interpreted in a manner to avoid intrusion on state

government functions). I would hold that, as a matter of law, the County is not an

employer of Bristol, and that the County therefore had no obligation to

accommodate Bristol.

This presents the basis of my dissent.

-12-
 F I L E D
United States Court of Appeals
Tenth Circuit

DEC 12 2002
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GARY BRISTOL,

Plaintiff - Appellee,

v.

THE BOARD OF COUNTY
COMMISSIONERS OF THE
COUNTY OF CLEAR CREEK and
DON KRUEGER, in his official No. 00-1053
capacity as the Sheriff of the County
of Clear Creek,

Defendants - Appellants,
_______________________________

COUNTY SHERIFFS OF
COLORADO, INC.,

Amicus Curiae.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 98-Z-1743)

Robert M. Liechty, Denver, Colorado, for Defendants-Appellants.

Evan S. Lipstein of Law Offices of Evan S. Lipstein, Lakewood, Colorado, (John
W. Berry, Denver, Colorado, with him on the brief), for Plaintiff-Appellee.
Josh A. Marks and Andrew D. Ringel, Hall & Evans, L.L.C., Denver, Colorado,
filed a brief on behalf of the Amicus Curiae.

Before TACHA, Chief Judge, SEYMOUR, EBEL, KELLY, HENRY,
BRISCOE, LUCERO, MURPHY, HARTZ and O’BRIEN, Circuit
Judges. *

LUCERO, Circuit Judge.

We granted en banc rehearing in this case to further consider whether the

Board of County Commissioners of Clear Creek County, Colorado (“Board”)

owes a duty to provide accommodation under the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12101 et seq., to Gary Bristol, an employee of the County

Sheriff. We hold that, because under Colorado law a Board lacks the power to

control the hiring, termination, or supervision of a Sheriff’s employees, or

otherwise control the terms and conditions of their employment, there can be no

basis upon which a jury could determine that the Board owes such a duty. Our

prior panel opinion is vacated in part, and we reverse the district court’s ruling on

this issue and remand with instructions to dismiss the action as to the Board.

*
Judge Michael W. McConnell joined the court after oral argument in the
instant case and did not participate in this decision.

-2-
 I

From February 1990 until May 1996, Gary Bristol worked as a confinement

officer for the Clear Creek County Sheriff, Don Krueger. In March of 1996,

Bristol was treated for a heart condition that, according to his cardiologist, would

prevent him from having contact with inmates or engaging in severe or strenuous

activity. Bristol was temporarily reassigned to light duty in the jail, but his

cardiologist later wrote to the Sheriff to inform him that Bristol’s heart condition

would restrict his activities indefinitely. On May 20, 1996, the Sheriff discharged

Bristol on the grounds that Bristol could no longer perform the essential functions

of his job as a confinement officer and the Sheriff could not accommodate his

disability on a permanent basis. Bristol appealed to the County Personnel Review

Board (“PRB”). The PRB upheld his dismissal, but encouraged him to apply for

available Clear Creek County positions, suggesting he might be given a hiring

preference if he was qualified for a County job opening.

At the time of Bristol’s PRB hearing, there were at least two job openings

in offices of Clear Creek County officials: equipment operator in the road and

bridge department, and appraiser-trainee in the County Assessor’s office. 1 Bristol

interviewed for both jobs. Bristol’s cardiologist, however, told him that he could

1
A position later became available in the Sheriff’s Office for which
Bristol was not considered, but this is not relevant to the issue whether the Board
had a duty to provide accommodation to Bristol.

-3-
not perform the duties of an equipment operator, and Diane Settle, the County

Assessor, did not hire Bristol for the appraiser-trainee position. After working

for two years in non-County positions, Bristol filed suit against the Board and the

Sheriff in August 1998. Among other claims, Bristol alleged that both the Board

and the Sheriff were his employers for ADA purposes and illegally discriminated

against him by refusing to offer him a job that did not exceed his physical

limitations. Bristol sought reinstatement, back pay, attorney’s fees, other

damages, and costs.

At trial, defendants moved for judgment as a matter of law, arguing that

only the Sheriff was Bristol’s employer. The district court ruled that both the

Sheriff and the Board of County Commissioners were Bristol’s employers as a

matter of law. A jury returned a verdict for Bristol, awarding him damages and

attorney’s fees. Defendants appealed. Exercising appellate jurisdiction pursuant

to 28 U.S.C. § 1291, a panel of this circuit held, over a dissent, that the district

court should have allowed the jury to determine whether “the County [i.e., the

Board] can properly be considered Bristol’s employer.” Bristol v. Bd. of County

Comm’rs, 281 F.3d 1148, 1166 (10th Cir. 2002). The dissent argued that, as a

matter of law, the Board is not an employer of Bristol and had no duty to

accommodate Bristol’s disability. Id. at 1173 (Lucero, J., dissenting). We

-4-
granted en banc rehearing on the question of the Board’s status as an alleged

employer of Bristol. 2

II

Because the district court denied defendants’ motion for judgment as a

matter of law, in which defendants argued, inter alia, that only the Sheriff was

Bristol’s employer, 3 this appeal turns on whether the district court properly

disposed of the Rule 50 motion. “We review de novo a district court's disposition

of a motion for judgment as a matter of law, applying the same standard as the

district court.” Wilson v. Tulsa Junior College, 164 F.3d 534, 536 (10th Cir.

1998). “We must enter judgment as a matter of law in favor of the moving party

if there is no legally sufficient evidentiary basis . . . with respect to a claim or

defense . . . under the controlling law.” Baty v. Willamette Indus., Inc., 172 F.3d

2
It is important to point out what the instant case is not about. We are not
faced with a situation where a judgment has been levied against a County official
and the County must levy a tax under Colo. Rev. Stat. § 30-25-104 to pay for the
judgment. Nor must we decide whether Bristol, an employee of the Sheriff, can
be called a “County employee” for any purpose other than ADA accommodation.
Employees of the County Sheriff are, of course, “County employees” in the same
sense that employees of the federal judiciary are “federal employees.” Such
common usage has no bearing on our construction of the ADA. The instant case
is about whether the Board can be considered an employer of Bristol so as to
trigger the accommodation requirements of the ADA.
3
The Board and the Sheriff were represented by the same attorney and
filed a joint motion for judgment as a matter of law. Among other claims, they
argued that only the Sheriff was Bristol’s employer.

-5-
1232, 1241 (10th Cir. 1999) (alterations in original) (quotation omitted). When a

defendant seeks judgment as a matter of law, the controlling question “is whether

the plaintiff has arguably proven a legally sufficient claim.” Turnbull v. Topeka

State Hosp., 255 F.3d 1238, 1241 (10th Cir. 2001), cert. denied, 122 S. Ct. 1435

(2002). In the present case, whether the Rule 50 motion was properly disposed of

depends, in turn, on the construction of the ADA and its definition of “employer.”

The ADA requires a “covered entity” to provide “reasonable

accommodations to the known physical or mental limitations of an otherwise

qualified individual with a disability who is an applicant or employee .” 42 U.S.C.

§ 12112. An “employer” is a “covered entity” under the ADA. Id. § 12111.

“Employer” is defined, as in Title VII, as “a person engaged in an industry

affecting commerce who has 15 or more employees for each working day in each

of 20 or more calendar weeks in the current or preceding calendar year.” Id.; see

also Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir. 1999) (noting

the similarity between the definitions of “employer” under the ADA and Title

VII).

When courts construe statutory terms related to employment, it is often in

the context of determining whether a particular entity is an “employee” or an

“independent contractor.” See, e.g., Cmty. for Creative Non-Violence v. Reid,

490 U.S. 730, 751–53 (1989) (applying common-law principles to determine

-6-
whether a sculptor was an employee or an independent contractor); Oestman v.

Nat’l Farmers Union Ins. Co., 958 F.3d 303, 305 (10th Cir. 1992) (asking the

same question with respect to an insurance agent). In distinguishing employees

from independent contractors for purposes of social legislation, courts have

historically examined both the control the alleged employer has over the alleged

employee and the “economic reality” of the situation, Bartels v. Birmingham, 332

U.S. 126, 130 (1947), including the permanency of the relation and the skill

required. Courts have accordingly adopted a “hybrid test” that considers both

control and multiple “economic reality” factors. Mares v. Marsh, 777 F.2d 1066,

1067 (5th Cir. 1985); see also Spirides v. Reinhardt, 613 F.2d 826, 831–32 (D.C.

Cir. 1979) (elaborating the eleven factors of the “hybrid test” in the Title VII

context). 4

4
Under the hybrid test, the factors used to determine whether a plaintiff is
an employee or an independent contractor include the employer’s right to control
the “means and manner” of the worker’s performance as well as:

(1) the kind of occupation at issue, with reference to whether the
work usually is done under the direction of a supervisor or is done by
a specialist without supervision; (2) the skill required in the
particular occupation; (3) whether the employer or the employee
furnishes the equipment used and the place of work; (4) the length of
time the individual has worked; (5) the method of payment, whether
by time or by job; (6) the manner in which the work relationship is
terminated; (7) whether annual leave is afforded; (8) whether the
work is an integral part of the business of the “employer”; (9)
whether the worker accumulates retirement benefits; (10) whether the
(continued...)

-7-
 We originally adopted the hybrid test in its intended context, i.e., for the

purpose of distinguishing an employee from an independent contractor. Oestman,

958 F.2d at 305. In subsequent cases, however, we have used the hybrid test to

solve a different problem: determining which of two entities was a plaintiff’s

“employer” under Title VII. See, e.g., Sizova v. Nat’l Inst. of Standards & Tech.,

282 F.3d 1320, 1328–29 (10th Cir. 2002); Lambertsen v. Utah Dep’t of Corr., 79

F.3d 1024, 1028 n.1 (10th Cir. 1996). Our prior panel opinion applied the hybrid

test in the instant case, following Lambertsen and its progeny. Bristol, 281 F.3d

at 1164. We take this opportunity, sitting en banc, to clarify that the hybrid test

does not provide an appropriate framework in the present situation, where there is

no allegation that Bristol is an independent contractor of the Board.

Courts have elaborated two other tests that are more applicable to the

present context: the joint-employer test and the single-employer test. First, a

plaintiff who is the employee of one entity may seek to hold another entity liable

by claiming that the two entities are joint employers. This joint-employer test

acknowledges that the two entities are separate, but looks to whether they co-

determine the essential terms and conditions of employment. See, e.g., Graves v.

4
(...continued)
“employer” pays social security taxes; and (11) the intention of the
parties.

Oestman, 958 F.2d at 305 (quoting Spirides, 613 F.2d at 831).

-8-
Lowery, 117 F.3d 723, 727–28 (3d Cir. 1997); Virgo v. Riviera Beach Assocs.,

Ltd., 30 F.3d 1350, 1359–61 (11th Cir. 1994); Rivas v. Federacion de

Asociaciones Pecuarias de Puerto Rico, 929 F.2d 814, 819–21 (1st Cir. 1991).

Second, a plaintiff who is the employee of one entity may seek to hold another

entity liable by arguing that the two entities effectively constitute a single

employer. See, e.g., Romano v. U-Haul Int’l, 233 F.3d 655, 662 (1st Cir. 2000);

Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995); EEOC v.

Wooster Brush Co. Employees Relief Ass’n, 727 F.2d 566, 571–72 (6th Cir. 1984).

Although these two tests are sometimes confused, they differ in that the single-

employer test asks whether two nominally separate entities should in fact be

treated as an integrated enterprise, while the joint-employer test assumes that the

alleged employers are separate entities. See Clinton’s Ditch Coop. Co. v. NLRB,

778 F.2d 132, 137–38 (2d Cir. 1985) (explaining the difference between the two

tests); see also Rivas, 929 F.2d at 820 n.16 (same).

Unlike the hybrid test, both the joint-employer test and the single-employer

test are designed for situations where there is more than one alleged employer. 5 In

5
In various factual contexts, other tests have been followed by the courts,
such as the agency test, the alter ego test, and the instrumentality test. See Frank
v. U.S. West, Inc., 3 F.3d 1357, 1362 n.2 (10th Cir. 1993). These tests are often
helpful in dealing with a subsidiary and its parent corporation, when the plaintiff
seeks to pierce the corporate veil and hold the parent liable under a federal
statute. Because the joint-employer test and single-employer test are most
(continued...)

-9-
the present case, Bristol did not ask us to apply either the joint-employer test or

the single-employer test, relying instead on the hybrid test we followed in

Lambertsen. Because the hybrid test is not applicable to the facts of the instant

case, however, we proceed to analyze whether the Board can be considered

Bristol’s employer under either the joint-employer test or the single-employer test.

III

Courts applying the joint-employer test treat independent entities as joint

employers if the entities “share or co-determine those matters governing the

essential terms and conditions of employment.” Virgo, 30 F.3d at 1360. In other

words, courts look to whether both entities “exercise significant control over the

same employees.” Graves, 117 F.3d at 727 (applying the joint-employer test to

determine if state-court clerks were employees of the county as well as the judicial

branch); see also Virgo, 30 F.3d at 1360 (looking to control to determine whether

a hotel and the partnership that owned it were “joint employers” under Title VII).

Under the Colorado constitution, the County Sheriff is a distinct position,

separate from the Board of County Commissioners. See Colo. Const. art. XIV, § 6

(election of County Commissioners); § 8 (election of Sheriffs and other county

5
(...continued)
applicable to the present factual context, we will limit our analysis to these two
tests.

- 10 -
officers). Sheriffs have exclusive control over the hiring and firing of their

employees, Colo. Rev. Stat. § 30-10-506, and even self-imposed limitations on

their right to discharge employees at will are invalid, Seeley v. Bd. of County

Comm’rs, 791 P.2d 696, 700 (Colo. 1990) (en banc). Most important to control

over the terms and conditions of an employment relationship is the right to

terminate it under certain circumstances—a power exclusively vested in the

Colorado Sheriffs with respect to their deputies. Colo. Rev. Stat. § 30-10-506;

Seeley, 791 P.2d at 699.

Because the Board of County Commissioners has no control over the

Sheriff’s employees, the Board is not liable for negligent acts of the Sheriff’s

employees. See Tunget v. Bd. of County Comm’rs, 992 P.2d 650, 652 (Colo. Ct.

App. 2000). While the Sheriff could fire Bristol at his pleasure, the Board could

not fire Bristol even for good cause. We agree with the Colorado Court of

Appeals that “[t]he sheriff, not the county or the Board, has the right of control

with respect to the deputies.” Id.

Bristol relies on a group of Title VII cases from various district courts, in

which a County’s budgetary control over the Sheriff’s office was held sufficient to

make the County an “employer.” See, e.g., Spencer v. Byrd, 899 F. Supp. 1439,

1440–41 (M.D.N.C. 1995); Johnson v. Bd. of County Comm’rs, 859 F. Supp. 438,

440–41 (D. Colo. 1994); Manley v. Mobile County, 441 F. Supp. 1351, 1355–56

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(S.D. Ala. 1977). While the Clear Creek County Board of County Commissioners

does have the authority to adopt an overall budget for all County officials,

including Sheriffs, this budgetary power gives the Board of County Commissioners

no right to force a constitutionally independent official to hire or fire an employee.

See, e.g., Schroeder v. Bd. of County Comm’rs, 381 P.2d 820, 822–23 (Colo.

1963) (holding that once a Board of County Commissioners has approved the

salary for an employee of a county official, it cannot use its budgetary power to

force the official to fire that employee, where the official’s power to hire and fire

was established by state law). Evidence at trial established that the Board’s

budgetary authority could not be used to influence hiring and firing decisions.

Bristol could have been fired only by the Sheriff, not by the Board, just as it was

the Sheriff and not the Board who hired him. Budgetary power, in and of itself,

does not establish the control necessary to treat the Sheriff and the Board as joint

employers.

Furthermore, no evidence was introduced suggesting that the Board had any

de facto authority over the Sheriff’s employment decisions. 6 Bristol’s failure to

6
In the present case, the Sheriff did choose to have his decision reviewed
by the County PRB, but this was a voluntary choice and the PRB’s decision was
merely advisory. Bristol’s counsel conceded at oral argument before the en banc
court that the PRB had no authority to reverse the Sheriff’s termination decision,
characterizing the PRB’s “authority” as advisory. This conclusion is in accord
with the Colorado Supreme Court’s decision in Seeley, 791 P.2d at 700.

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allege facts indicating that the Board had de facto responsibility over his

employment distinguishes this case from Graves. In Graves, a group of state-court

clerks brought a Title VII claim against Dauphin County, Pennsylvania, arguing

that the county and the Pennsylvania judicial branch should be treated as joint

employers. 117 F.3d at 723, 727. Because the clerks alleged that the county

“assumed de facto responsibility” over their employment, the Third Circuit found

sufficient evidence for the jury to determine the county’s liability under the joint-

employer theory. Id. at 727–28 (“[T]he Clerks claim that the County, through its

funding, actions, and policies, exercised the requisite control over the daily

employment activities of the Clerks to incur liability as a co-employer.”).

According to the clerks in Graves, they were told that “they were subject to

termination and/or reinstatement by the County and that two of them were hired by

the County.” Id. at 729. By contrast, Bristol does not allege that he was ever

informed that the County had the power to terminate his employment in the

Sheriff’s office—not surprisingly, because the County had no such power. We

conclude that Bristol cannot satisfy the joint-employer test.

Alternatively, Bristol could seek to establish the Board’s liability by

showing that the Board and the Sheriff effectively constituted a single employer.

Courts applying the single-employer test generally weigh four factors:

“(1) interrelations of operation; (2) common management; (3) centralized control

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of labor relations; and (4) common ownership and financial control.” Wooster

Brush Co., 727 F.2d at 571. Courts generally consider the third

factor—centralized control of labor relations—to be the most important. See, e.g.,

Romano, 233 F.3d at 666 (“[T]here is near unanimity that control of labor

operations i.e., control of employment decisions, is the most important of the four

factors.”); Skidmore v. Precision Printing & Packaging, Inc., 188 F.3d 606, 617

(5th Cir. 1999) (“[C]ourts have focused almost exclusively on one question:

which entity made the final decisions regarding employment matters relating to the

person claiming discrimination?”). Thus, the extent to which the Board can be

said to control the labor relations of the Sheriff’s employees is highly

determinative under the single-employer test. As discussed above, the Board had

no such control over the Sheriff’s employees.

Of the other factors applied by the courts under the single-employer test, the

fourth—common ownership and financial control—is clearly irrelevant to a case

involving governmental entities, which do not issue stock and are not owned by

private parties. Moreover, no evidence has been introduced suggesting that the

second factor—common management—is met here. Only the first factor,

interrelations of operation, could conceivably help Bristol. Evidence at trial

showed that the Board had budgetary authority over the Sheriff’s office and the

Sheriff used county services for administrative purposes. Nevertheless, in light of

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the independence of the Sheriff’s office from the Board under the Colorado

constitution, even the first factor does not weigh heavily in Bristol’s favor. In any

event, the first factor cannot counterbalance the Board’s complete lack of control

over labor relations in the Sheriff’s office. We conclude that, in light of the

evidence introduced in the present case, Bristol cannot establish that the Board and

the Sheriff effectively constitute a single employer.

Bristol argues that Owens v. Rush, 636 F.2d 283 (10th Cir. 1980), imposes

liability on the Board in the present case. Owens did conclude that a Kansas

Sheriff was an agent of the County, but for the sole purpose of satisfying the

fifteen-employee jurisdictional requirement of Title VII. 636 F.2d at 286–87. No

such jurisdictional question is at issue in the present case, because the Sheriff of

Clear Creek had more than fifteen employees. Because we are presently faced

with a case where the jurisdictional requirement is indisputably met, Owens is not

implicated.

Bristol also cites several cases from other circuits in support of his

contention that the Board is his employer. Four of these cases involve § 1983

actions in which the acts of the Sheriff were held to set the “official policy” of the

County, thus making the County liable under § 1983 for the Sheriff’s

unconstitutional actions and those of the Sheriff’s employees. See Lucas v.

O’Loughlin, 831 F.2d 232, 233 (11th Cir. 1987) (termination in violation of First

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Amendment); Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986) (strip search);

Blackburn v. Snow, 771 F.2d 556, 571 (1st Cir. 1985) (same); Marchese v. Lucas,

758 F.2d 181, 188–89 (6th Cir. 1985) (assault by deputies). These cases do

suggest that counties can be held liable for the misdeeds of Sheriffs and their

employees when the Sheriff is held to set “official policy” for the county.

In the present case, however, the Sheriff was not setting “official policy” in

firing Bristol, except to the extent that requiring employees to be able to perform

their jobs can be called a “policy.” Bristol lost his job because he could no longer

perform it. This situation is different than those presented in the § 1983 cases

cited by Bristol, which generally involve a pattern of misconduct approved by the

Sheriff. Accordingly, the § 1983 cases cited by Bristol are not analogous to the

present case, and we do not consider them persuasive.

IV

In sum, the Board had no duty as an “employer” under the ADA to provide

reasonable accommodation to Bristol. As a general rule, “determining whether an

entity qualifies as an employer is a fact issue for the jury.” Bristol, 281 F.3d at

1165. Juries are normally entrusted to apply the appropriate legal standard to the

facts of each case. In the instant case, however, our conclusion that neither the

joint-employer test nor the single-employer test can be satisfied requires judgment

as a matter of law:

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 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 that 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.

Fed. R. Civ. P. 50. Given the absence of an employment relationship between

Bristol and the Board, there is no “legally sufficient evidentiary basis for a

reasonable jury to find” that the Board was Bristol’s employer. Defendants’

motion for judgment as a matter of law should have been granted on this point, and

our prior panel opinion should have remanded with instructions to dismiss the

Board from this case. In all other respects, our prior opinion stands.

V

Our prior panel opinion is VACATED IN PART, the judgment of the

district court is REVERSED, and the case is REMANDED with instructions to

dismiss this action as to the Board.

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