Leatherwood v. Houston Post Co.

                  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Supp.1993) (repealed and recodified as Tex.Labor Code § 21.001 et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.




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