United States Court of Appeals,
Fifth Circuit.
No. 94-60087.
Carlton E. LEATHERWOOD, Jr., Plaintiff-Appellant,
v.
HOUSTON POST COMPANY, Defendant-Appellee.
Aug. 1, 1995.
Appeal from United States District Court for the Southern District
of Texas.
Before POLITZ, Chief Judge, EMILIO M. GARZA and STEWART, Circuit
Judges.
STEWART, Circuit Judge:
Plaintiff Carlton Leatherwood, Jr., filed suit against his
employer, the Houston Post Company, alleging violation of ERISA, 29
U.S.C. § 1101 et seq., and violation of the Texas Commission on
Human Rights Act, Tex.Rev.Civ.Stat.Ann. art. 5221k (Vernon 1987 &
Supp.1993) (repealed and recodified as Tex.Labor Code § 21.001 et
seq.) (hereinafter referred to as "TCHRA"). The district court
severed the two claims and set the pendent state claim for jury
trial. After a jury verdict in favor of Leatherwood, the district
court entered partial final judgment in favor of the Houston Post.
Leatherwood appeals the district court's judgment on his state
claim under the TCHRA. We affirm.
FACTS
Leatherwood suffers from bipolar disorder and experiences
cyclical psychotic episodes of both mania and depression. He
worked for the defendant, the Houston Post (the Post) from 1967
1
until he was terminated in July of 1989. Between 1976 and 1989, he
was hospitalized periodically due to his mental disorder. Each
hospitalization was preceded by a change in Leatherwood's behavior
and thinking. It appears that over the years Leatherwood's
disorder has been controlled with medication. Leatherwood
underwent an involuntary hospitalization in December of 1988 which
lasted about two weeks and was preceded by at least one month of
manic behavior during which he tendered his resignation. He
returned to work in January of 1989 and was informed that his
resignation would be accepted, effective sometime in March 1989.
The effective date was extended and Leatherwood was still employed
with the Post when he entered another manic period in May 1989.
Leatherwood was hospitalized in June of 1989, and his employment
with the Houston Post was terminated effective July 12, 1989.
Leatherwood filed suit against the Post, alleging that it had
discriminated against him on the basis of his disability.
Leatherwood claims that his disorder did not affect his ability to
perform the job and that, prior to new management which took over
in the fall of 1988, the Post reasonably accommodated his disorder.
He claims that the new management had a lower tolerance for his
illness. After trial, a jury found that (1) Leatherwood's mental
disability did not unreasonably impair his ability to perform his
job, and that (2) his mental disability was the determining factor
in the Houston Post's decision to discharge him. The Post filed a
2
Motion for Judgment Notwithstanding the Verdict.1
The district court found that the evidence of past
accommodation shed no light on the ability of the Post to
accommodate Leatherwood's disability during the time period which
more immediately preceded his dismissal. The district court also
noted that uncontroverted evidence shows that Leatherwood was
impaired from effectively performing his job for at least four of
the nine months immediately preceding his termination,2 and
concluded that, as a matter of law, such an impairment is
unreasonable. The court found that the evidence is likewise
uncontroverted that Leatherwood was an acceptable and perhaps even
a very good writer who could meet deadlines when he was well and
unaffected by his illness, but that he was not capable of
performing his job during the more severe psychotic episodes of his
bipolar illness. Due to the uncontroverted effect of Leatherwood's
disability on his job performance, the district court granted the
Post's motion and entered judgment as a matter of law in favor of
the Houston Post and against Leatherwood. Leatherwood appeals,
asserting that the evidence supported the jury verdict and that,
therefore, the district court erred in entering the judgment
against him.
1
Although the parties and the district court refer to this
motion as "Judgment Notwithstanding the Verdict" we shall refer
to it herein as "Judgment as a Matter of Law", which is now the
proper terminology pursuant to Fed.R.Civ.P. 50.
2
At oral argument, Leatherwood's counsel contended that he
was impaired from effectively performing his job for three months
rather than four.
3
STANDARD OF REVIEW
We review the district court's ruling on the motion for
judgment as a matter of law to determine whether a reasonable trier
of fact could conclude that Leatherwood's mental disability did not
unreasonably impair his ability to perform his job, and that his
mental disability was the determining factor in the Houston Post's
decision to discharge him. See Atkin v. Lincoln Property Co., 991
F.2d 268, 270 (5th Cir.1993). When a case has been fully tried on
the merits, the adequacy of a party's showing at any particular
stage is unimportant; we focus our inquiry on whether the record
contains evidence upon which a reasonable trier of fact could have
concluded as the jury did. Id., at 271 (citation and internal
quotation marks omitted). A mere scintilla of evidence is
insufficient to present a question for the jury. The motions for
judgment as a matter of law should not be decided on the basis of
which side has the better of the case, nor should it be granted
only when there is a complete absence of probative facts to support
a jury verdict; there must be a conflict in substantial evidence
to create a jury question. See Tutor v. Ranger Ins. Co., 804 F.2d
1395, 1397 (5th Cir.1986), citing Boeing Co. v. Shipman, 411 F.2d
365, 374-75 (5th Cir.1969) (en banc).
In reviewing a district court's disposition of a motion for
judgment as a matter of law, we employ the same standard as the
district court to determine whether sufficient evidence exists to
support the jury verdict. Portis v. First National Bank of New
Albany, Miss., 34 F.3d 325, 327 (5th Cir.1994), quoting Little v.
4
Republic Refining Co., 924 F.2d 93, 95 (5th Cir.1991); Atkin at
270. Considering all the evidence in the light and with all
reasonable inferences most favorable to the party opposed to the
motion, that standard is as follows: "If the facts and inferences
point so strongly and overwhelmingly in favor of one party that the
court believes that reasonable men could not arrive at a contrary
verdict," the court should enter judgment as a matter of law. See
Portis, at 328, and Atkin at 270, each quoting Boeing Co. v.
Shipman, 411 F.2d at 374.
DISCUSSION
Leatherwood argues that the testimony and other evidence
showed by a preponderance that his disability did not impair his
ability to perform his job. He cites testimony by his supervisors,
co-workers, and psychiatrist, which indicates that his work was
acceptable, comparable to that of others, and that the
hospitalizations were no more of an inconvenience to the Houston
Post than if he had a long vacation.3 By contrast, the Post
asserts that Leatherwood failed to prove that his disability did
not impair his ability to reasonably perform his job as copy
3
Leatherwood also contends that the district court should
not have considered, or accorded great weight or deference to,
the SSA determination that he was disabled prior to his
discharge. However, he does not challenge the admissibility of
either the testimony or other evidence about the SSA
determination. Nevertheless, we note that the record reveals
that Leatherwood's counsel questioned Leatherwood's psychiatrist
about the SSA determination. Moreover, both the evidence and the
district court's memorandum indicate that the SSA determination
was neither (1) dispositive of the district court's judgment, nor
(2) the sole evidence regarding Leatherwood's ability to perform
his job duties.
5
editor, or to perform the duties of another available position, at
the time of his discharge.
Under the TCHRA, it is unlawful for an employer to discharge
an individual or otherwise to discriminate against an individual
with respect to compensation or the terms, conditions, or
privileges of employment because of disability.4 We have observed
that the term "because of disability" refers to discrimination
because of or on the basis of a physical or mental condition that
does not impair an individual's ability to reasonably perform a
job, and that this definition is similar to the "otherwise
qualified" requirement under section 504 of the Rehabilitation
Act.5 See Chiari v. City of League City, 920 F.2d 311 (5th
4
We note that, prior to its recodification, the TCHRA did
not expressly impose an accommodation requirement. See Chiari v.
City of League City, 920 F.2d 311, 319 (5th Cir.1991). We also
note that Leatherwood has not shown either that he requested any
specific accommodation, or what specific accommodation would have
"worked" during his manic episodes (other than having someone
else perform the duties which he either could not or did not
perform). It is for this reason that we do not address
Leatherwood's arguments regarding the Post's failure or refusal
to continue accommodating his disability in 1989.
5
In reviewing a case brought pursuant to the TCHRA, the
court may look not only to relevant provisions of the state
statute, but when necessary, also to analogous federal provisions
contained in Title VII. Daniels v. Allied Elec. Contractors
Inc., 847 F.Supp. 514 (E.D.Tex.1994).
In the context of federal law, our colleagues of the
District of Columbia Circuit have observed the following:
Unlike a person's race, an employer may legitimately take a
disability into consideration in determining whether an
applicant or employee is qualified for a particular
position. See Barth v. Gelb, 2 F.3d 1180, 1186
(D.C.Cir.1993), cert. denied sub nom. Barth v. Duffy, ---
U.S. ----, 114 S.Ct. 1538, 128 L.Ed.2d 190 (1994). Three
categories of disability discrimination cases that may be
brought under § 501 of the Rehabilitation Act, 29 U.S.C.A. §
6
Cir.1991), and the cases and statutes cited therein.
The instant case involves a jury's specific determination
that there has been disability-based discrimination against an
employee whose disability did not impair his ability to reasonably
perform his job. There is no question but that Leatherwood could
reasonably perform his job when his mental health was stable.
However, this specific finding by the jury does not address the
question of whether Leatherwood's disability impaired his job
performance during his psychotic episodes versus during the times
when there was no manifestation of his mental disability. The jury
was not asked to make this distinction.
Historically, each of Leatherwood's manic episodes lasted for
several weeks prior to a hospitalization which would also last for
several weeks. Leatherwood's psychiatrist, Dr. Archie Blackburn,
testified that a manic episode is an "episode that results in
substantial inability to either work or carry on social
relationships." The June 1989 episode was hypomanic—less severe
791, are (1) where the employer asserts that its challenged
action was done for reasons unrelated to the employee's
disability; (2) where the employer challenges a employee's
claim that he is an "otherwise qualified" person who, with
"reasonable accommodation, can perform the essential
functions of the position in question"; and (3) where the
employer offers the affirmative defense of "undue hardship"
on the operation of its program, in which the employer
contends that the accommodation required is unreasonable.
See and compare, Barth, id.
In the instant case, the parties agree that Leatherwood
is disabled and was discharged for reasons related to his
disability. The parties disagree about whether Leatherwood
could perform the functions of his position either with or
without reasonable accommodation.
7
than a manic episode. The uncontroverted pre-hospitalization
effects of Leatherwood's 1988 manic episode included increased
absences from work, reduced accuracy, reduced production, increased
confusion, and general unreliability.6 Similarly, it is
uncontroverted that his pre-hospitalization 1989 hypomanic episode
affected Leatherwood's memory, judgment, and work product. Of the
many plaintiff's witnesses who testified about Leatherwood's
ability to work in various positions with the Post, only a few
worked with the Post during his November-December 1988 and June
1989 episodes. These witnesses neither supervised nor worked with
Leatherwood on a day to day basis during the 1988-1989 episodes,
and their testimony does not controvert the Post's evidence that
prior to each of the last two hospitalizations Leatherwood could
not perform his job duties for several weeks either due to absences
or because his judgment was affected by his disability such that
his work had to be either closely scrutinized, or actually
performed, by others. Leatherwood himself did not recall much of
what occurred during the manic or hypomanic period which preceded
each of these two hospitalizations. In the last year of his
employment, each pre-hospitalization psychotic episode lasted
anywhere from three to eight weeks.
Assuming as true all the testimony and other evidence that is
favorable to Leatherwood, the record does not indicate that he
6
Leatherwood challenges the Post's assertion that he was
occasionally belligerent prior to his hospitalization in December
1988, but concedes that he remembers little of what occurred
during this pre-hospitalization manic episode.
8
could reasonably perform his duties during his pre-hospitalization
psychotic episodes. The evidence reveals that during Leatherwood's
employment in 1988 and 1989, when his illness was symptomatic, it
affected his judgment and his ability to reasonably perform his
duties with the Post for several weeks prior to the respective
hospitalizations. In other words, the record supports a finding
that Leatherwood's work was acceptable and comparable to that of
others when his bipolar illness was asymptomatic, and that the
hospitalizations were no more of an inconvenience to the Houston
Post than if he had a periodic one to four week long vacation; but
it does not support a finding that Leatherwood could reasonably
perform his work during his psychotic episodes.
The district court observed that, periodically, Leatherwood
was away from work due to his bipolar illness for a total of four
months out of the last nine months of his employment with the Post.
The district court determined that, as a matter of law, these
absences were a part of the evidence which demonstrated that
Leatherwood could not reasonably perform his job. Leatherwood
concedes that during this time he was away from work for a total of
about three months. Whether it was three months or four months, we
agree that Leatherwood's disability-based absence from his job as
an editor for this daily newspaper, for 33 to 44 percent of his
last nine months of employment strongly indicates that, for the
purposes of the TCHRA, his disability rendered him unable to
reasonably work in this position as a matter of law.
Leatherwood makes much of a letter which his psychiatrist, Dr.
9
Blackburn, wrote to the Post in February 1989 which stated that
Leatherwood could continue his usual work. The Post, on the other
hand, emphasizes the content of another letter Dr. Blackburn wrote
to the SSA in November 1989 which stated that Leatherwood had been
"mostly, seriously disabled" since September 1988. Other
physicians also testified about Leatherwood's condition. In light
of our discussion in Singletary v. Bowen, 798 F.2d 818, 823 (5th
Cir.1986) and Leidler v. Sullivan, 885 F.2d 291 (5th Cir.1989),7 we
make the following observations about the various opinions of
whether Leatherwood's disability impaired his ability to perform
his job as follows:
As noted above, the evidence demonstrated that, during
7
We summarized Singletary in Leidler, 885 F.2d at 292-293 as
follows:
First, Singletary held that the twelve-month durational
requirement for disability could be met in severe
mental illness cases even though a claimant is able to
work sporadically at a series of jobs....
The second lesson of Singletary is that the
Secretary must consider whether an applicant with a
serious mental illness remains able to engage in
substantial gainful activity when, although he is
capable of performing work, he cannot maintain regular
employment.
We emphasize that neither Singletary nor Leidler is an
employment discrimination case. We refer to these cases
herein solely for the purpose of demonstrating one way in
which an employee can be capable of performing a job, in
general, and yet at the same time have a disability which is
either seriously disabling or which impairs the employee's
ability to continuously or reasonably perform that job.
When viewed in this context, the instant conflict over
whether Leatherwood was able to perform the duties of his
job with the Post is more apparent than real. See and
compare, Singletary, 798 F.2d at 823.
10
manifestations of his mental disability, Leatherwood was unable to
function reasonably in the position from which he was terminated.
See and compare, Chevron Corp. v. Redmon, 745 S.W.2d 314, 318
(Tex.1987) (noting that a person may not sue under the TCHRA if his
disability impairs his ability to do that particular job). During
his December 1988 manic episode, Leatherwood resigned. He returned
to work in January 1989 on a temporary basis.8 This temporary term
was extended through the time which preceded his June 1989
hospitalization, and his employment was officially terminated in
July 1989.
Even if we were to assume that the entirety of Leatherwood's
version of the evidence is true, Leatherwood has not shown that he
could reasonably perform his job duties during any of his manic
episodes,9 and particularly during any of the manifestations of his
disability which occurred between September 1988 and June 1989.10
Leatherwood admits that his work was affected when he experienced
manic episodes. The jury was not asked to distinguish between
Leatherwood's ability to perform his job when his illness was
8
When he returned to work in January 1989, Leatherwood was
informed that his resignation was accepted and effective in 60
days.
9
During his pre-1988 manic episodes, it would become
apparent to one or more of Leatherwood's co-workers or
supervisors that his behavior had changed and Leatherwood would
be hospitalized soon thereafter. There is no indication whether
Leatherwood could reasonably perform his job duties during any
period that was after this behavior change but before the
resultant hospitalization.
10
At most, Leatherwood has presented a scintilla of evidence
that other employees made mistakes and he made no more mistakes
than others.
11
symptomatic and when it was asymptomatic. The district court
properly examined the evidence of Leatherwood's ability to perform
his duties at the Post during his pre-hospitalization psychotic
episodes as well as post-hospitalization stability. We agree that,
as a matter of law, no reasonable jury could have found that
Leatherwood's disability did not impair his ability to perform his
job during the time periods which preceded hospitalization. Thus,
Leatherwood was not entitled to relief under the TCHRA and we
affirm the district court judgment.
CONCLUSION
For the foregoing reasons, the district court correctly
determined that Leatherwood's disability impaired his ability to
reasonably perform his job duties and that no reasonable jury could
have concluded otherwise. Accordingly, the judgment of the
district court is AFFIRMED.
12