117 F. 3d 800 - Foreman v. Babcock & Wilcox Company

The opinion issued in this case under date of May 22, 1997 is withdrawn and the following is issued in place thereof.

In this case under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. Earl Foreman alleged at trial that his employer failed to reasonably accommodate Foreman's limitations arising from his heart condition. At the close of all evidence, the district court entered judgment as a matter of law in favor of the employer, holding that the evidence could not support a jury finding that Foreman was either qualified for, or entitled to, the positions he sought. Foreman now appeals. For the following reasons, we AFFIRM.

Plaintiff/Appellant Earl Foreman ("Foreman") had been an employee of Defendant/Appellee Babcock & Wilcox Company ("B & W") for over 22 years.1 B & W is located in West Point, Mississippi, and operates a welding and steel fabrication facility where it builds and welds industrial boilers and associated parts. B & W consists, in part, of two large buildings called "shops," where the boilers are assembled and welded. These shops contain approximately 400 welding machines and three electrical sub-stations. High-voltage power lines run throughout the shops.

Foreman was working at B & W as an "expeditor."2 An expeditor makes deliveries of necessary materials and supplies to the shops, thereby expediting the manufacturing process. Expediters also unload trucks, receive materials, work on computers, and store inventory.3 Under a collective bargaining agreement ("CBA") entered into with the workers' union,4 Foreman's seniority entitled him to a "level seven" position as an expeditor.5⁵

In March 1994, Foreman underwent surgery and had a pacemaker installed by Dr. David H. Mulholland. In a letter dated May 3, 1994, Dr. Mullholland informed B & W that Foreman was medically restricted from working within six feet of any welding equipment because of possible electromagnetic interference with his pacemaker. Dr. Mulholland further restricted Foreman from working within 40-50 feet of the power lines which ran throughout the shops. It is undisputed that these limitations effectively precluded Foreman from working within the shop areas.

On this same date, May 3, 1994, Foreman also presented to B & W a short-term disability claim which was signed by Foreman's treating physician, Dr. Andrzej Wartak. This disability claim stated that Foremen needed to miss work from March 25, 1994 until June 13, 1994.

On June 13, 1994, Foreman did not return to work; instead, he submitted another letter from Dr. Wartak stating that Foreman should remain off work indefinitely. Dr. Wartak affirmed the work restrictions as set forth by Dr. Mulholland (presumably in anticipation of Foreman's eventual return to work).

In September 1994, Foreman filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging that B & W discriminated against him by not allowing him to return to work as an expeditor, and by failing to reasonably accommodate him with a new position. Foreman also filed a grievance with his union. In response to Foreman's complaints, on September 26, 1994, B & W personnel manager Dale Ulbrich met with Foreman and union representative Robert Shaffer for the purpose of discussing Foreman's return to work.

It is unclear what was discussed during this meeting. Apparently, Foreman argued that he should be allowed to either return to work as a level 7 expeditor, or be given another position of comparable pay. B & W denied both requests. B & W told Foreman that he could not return to work as an expeditor because the medical restrictions imposed upon him by his doctor precluded him from performing the essential job function of working in the shops. B & W also told Foreman that it could not offer him other requested positions because: (1) these positions did not exist or were not available and (2) the "bona fide seniority provisions" of B & W's CBA prevented B & W from doing so.

Two weeks after this meeting, B & W offered Foreman a position as a level 1 janitor, a position which Foreman had previously held.6 B & W maintains that this was the only position which it could offer Foreman given his qualifications, medical restrictions, job availability, and the seniority provisions of the CBA. Foreman accepted the position of janitor.

In May 1995, Foreman brought suit in federal court alleging that B & W violated the Americans with Disabilities Act by failing to accommodate his alleged disability. In July 1996, the case was tried before a jury. At the close of Plaintiff's case, B & W moved for judgment as a matter of law. The district court held that "Plaintiff has proved, in the Court's opinion, that he has a disability." However, the district court denied B & W's motion pending further development of the facts "as to the essential functions of an expeditor."

At the close of all evidence, B & W made a renewed motion for judgment as a matter of law, contending that no reasonable jury could find either that Foreman was a qualified individual with a disability under the ADA, or that B & W failed to reasonably accommodate him. The district court granted B & W's motion, holding, inter alia, as follows:

I'm of the opinion that no reasonable jurors could in fact find that the plaintiff, under these circumstances, is a qualified individual with a disability, in that the plaintiff cannot perform the essential functions of the job expeditor with or without reasonable accommodation. It is not a reasonable accommodation to require this manufacturer defendant to eliminate an essential function of the job of expeditor and in effect create a new job for the plaintiff.

The district court did not address the issue of whether the "bona fide seniority provisions" of B & W's collective bargaining agreement prevented B & W from giving Foreman another position. Foreman filed the instant appeal.

We review de novo the decision of a district court to grant judgment as a matter of law, applying the same legal standard as it used. Omnitech Int'l Inc. v. Clorox Co., 11 F.3d 1316, 1322-23 (5th Cir.1994). Judgment as a matter of law is proper after a party has been fully heard by the jury on a given issue, and "there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue." FED. R. CIV. P. 50(a). In evaluating such a motion, formerly referred to as a motion for directed verdict, the court is to consider all of the evidence (and not just that evidence which supports the non-mover's case) in the light most favorable to the non-movant, drawing all factual inferences in favor of the non-moving party, and leaving credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts to the jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253-55, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Conkling v. Turner, 18 F.3d 1285, 1300 (5th Cir.1994); Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc). "A mere scintilla of evidence is insufficient to present a question for the jury." Boeing Co., 411 F.2d at 374. A motion for judgment as a matter of law "should not be decided by 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." Id. at 374-75.

We must affirm a judgment of the district court if the result is correct, even if our affirmance is upon grounds not relied upon by the district court. Elizarraras v. Bank of El Paso, 631 F.2d 366 (5th Cir.1980); see Stegmaier v. Trammell, 597 F.2d 1027 (5th Cir.1979) (it is firmly established that an appellate court must affirm the lower court's judgment if the result is correct even though it is based upon an improper ground); Securities & Exchange Commission v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943) (limiting the rule to cases where appellate court need not make findings of fact); Williams v. AgriBank, FCB, 972 F.2d 962, 964 (8th Cir.1992) (holding that a judgment can be affirmed on any grounds fairly supported by the record); McKenzie v. Renberg's Inc., 94 F.3d 1478 (10th Cir.1996) (an appellee may defend the judgment won below any ground supported by the record, even grounds not relied upon by the district court), cert. denied, --- U.S. ----, 117 S.Ct. 1468, 137 L.Ed.2d 682 (1997).

We hold that Foreman did not adduce evidence which would allow a reasonable jury to find that he was disabled, as defined under the Americans with Disabilities Act. For this reason, we hold that judgment as a matter of law in favor of B & W is appropriate. Alternatively, we hold that the district court did not err in finding that Foreman failed to offer evidence upon which a jury could reasonably conclude that he was qualified for the position of expeditor, or that the accommodations which he requested were reasonable.

The American with Disabilities Act ("ADA") is a federal anti-discrimination statute designed to remove barriers which prevent qualified individuals with disabilities from enjoying the same employment opportunities that are available to individuals without disabilities. 29 C.F.R. § 1630, App. (1996).7 The ADA expansively prohibits discrimination in employment against people with disabilities, providing that, "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).

A "disability" includes a physical or mental impairment that substantially limits one or more of an individual's major life activities. 42 U.S.C. § 12102(2). "Discrimination" includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity...." 42 U.S.C. § 12112(b)(5)(A).

Throughout this litigation, B & W has argued that Foreman is not disabled, as defined under the ADA. If Foreman is not disabled, he would not be entitled to a reasonable accommodation, nor would his qualification for the position sought be relevant. Thus, the first issue we must address is whether Foreman adduced evidence which would allow a reasonable trier of fact to determine that he was disabled. For the following reasons, we hold that he did not.

Under the ADA, a "disability" means: (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(2). Foreman does not argue that he is entitled to relief under the second part of this definition; however, he does argue that he is entitled to relief under parts one and three. Therefore, we must ask if Foreman had an impairment that substantially limited one or more of his major life activities, or was regarded by B & W as having such an impairment.

Substantial Limitation--Foreman is considered disabled under the ADA if he is substantially limited in a major life activity. "Substantially limits" generally 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 persons in the general population can perform the same major life activity. 29 C.F.R. § 1630.2(j)(1). Foreman argues that his pacemaker substantially limited him from the major life activity of working as an expeditor at the B & W facility. We disagree.

Pursuant to the Code of Federal Regulations, "[t]he 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." 29 C.F.R. § 1630.2(j)(3) (1996) (emphasis in original).8 "The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Id. "Thus, an individual is not substantially limited in working just because he or she is unable to perform a particular job for one employer, or because he or she is unable to perform a specialized job or profession requiring extraordinary skill, prowess, or talent." 29 C.F.R. § 1630.2(j), App. (1996); see Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727 (1995). "The determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices." C.F.R. § 1630.2(j), App. (1996).

After reviewing the entire record, we hold that Foreman has offered no evidence upon which a jury could conclude that his heart condition, prior to the installation of his pacemaker, significantly restricted his 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. Likewise, Foreman has offered no evidence upon which a jury could conclude that his heart condition significantly restricted his ability to perform either a class of jobs or a broad range of jobs even after the installation of his pacemaker. At trial and on appeal, Foreman argues that the only job which he was substantially limited from performing with his pacemaker was that of an expeditor. In fact, Foreman argues that he is fully capable of performing virtually every other job at the plant. The record is replete with such evidence.9 Because the evidence so overwhelmingly indicates that Foreman was substantially limited by his alleged disability from performing only a single, particular job, a jury could not reasonably find that he has a substantial limitation in the major life activity of working, as contemplated by the ADA.

Regarded as Having a Disability--Even though Foreman does not have a substantial limitation in the major life activity of working, he may fall within the statutory definition of disability if he was regarded by B & W as being disabled. There are three different ways in which an individual may satisfy the definition of "being regarded as having a disability":

(1) [If he has] a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;

(2) [If he has] a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or

(3) [If he has] none of the impairments defined in paragraph (h)(1) or (2) of this section but is treated by a covered entity as having a substantially limiting impairment.

29 C.F.R. § 1630.2(l ). Only subpart (1) is relevant to the instant case.

An individual satisfies subpart (1) of this definition if he has an impairment that is not substantially limiting, but the employer perceives the impairment as being substantially limiting. 29 C.F.R. § 1630.2(l ), App. (1996). An employer does not necessarily regard an employee as having a substantially limiting impairment simply because it believes that she is incapable of performing a particular job; the statutory reference to a substantial limitation indicates instead that an employer regards an employee as substantially limited in his or her ability to work by finding the employee's impairment to foreclose generally the type of employment involved. Ellison v. Software Spectrum, Inc., 85 F.3d 187, 192 (5th Cir.1996); see also 29 C.F.R. § 1630.2(j)(3)(I).

While it is uncontroverted that Foreman does have a heart impairment, as stated earlier, his impairment does not substantially limit a major life activity. Thus, for purposes of satisfying subpart (1) of the definition, the question is whether Foreman was treated by B & W as having an impairment that substantially limits a major life activity. After thoroughly and carefully reviewing the entire record, we find no evidence upon which a reasonable jury could determine that B & W perceived or treated Foreman's condition as being substantially limiting, as defined under the ADA.10 Accordingly, Foreman has not shown that he was regarded by B & W as being disabled.

Alternatively, even if Foreman was disabled as defined under the ADA, he offered no evidence upon which a jury could find that he was a qualified individual. Under the ADA,

[t]he term "qualified individual with a disability" means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential....

42 U.S.C. § 12111. Thus, "[w]hile the ADA focuses on eradicating barriers, the ADA does not relieve a disabled employee or applicant from the obligation to perform the essential functions of the job. To the contrary, the ADA is intended to enable disabled persons to compete in the work-place based on the same performance standards and requirements that employers expect of persons who are not disabled." 29 C.F.R. § 1630, App. Background (1996).

The record is replete with evidence that an essential function of the expeditor's job is to carry materials into the shop areas.11 While it is true that the expeditor's job is not limited to this role, it is uncontroverted that going into the shop area constitutes at least 20-30% of the expeditor's responsibility.12 Based upon the record before us, we hold that the district court did not err in determining that going into the shop area is an essential function of the expeditor's job, and that Foreman's pacemaker rendered him medically unqualified to perform that essential function.

Foreman argues that the district court erred by holding that B & W was not obligated to provide a reasonable accommodation for the limitations arising from his alleged disability. In support of his argument, Foreman asserts that he is entitled to either of two proposed accommodations: a new job or an alteration of his existing job responsibilities. Specifically, he argues that he is entitled to at least one of the "100 salary positions" of which he claims he is capable of performing, or an alteration to his job as an expeditor, such that he not be required to make deliveries into the shop areas. After reviewing the entire record, we hold that, even if Foreman was disabled and qualified under the ADA, his requested accommodations are not reasonable.

The ADA defines "Reasonable Accommodation" as follows:

The term "reasonable accommodation" may include--

(A) making existing facilities used by employees readily accessible to and usable by individual with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment of devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

42 U.S.C. § 12111. An employer is not required to create "light duty" jobs to accommodate. Turco v. Hoechst Celanese Chemical Group, Inc., 101 F.3d 1090, 1094 (5th Cir.1996).

In granting judgment as a matter of law in favor of B & W, the district court held, inter alia:

In effect, what the plaintiff is asking this court to do is hold that a new job or a new job category should be created to accommodate him. That job category would be that of an expeditor but without having to supply the materials to the shop to expedite production.

* * * * * *

[H]ere the plaintiff is not seeking merely restructure of this job....[P]lainiff seeks to entirely change one of his primary job functions.

* * * * * *

It is not a reasonable accommodation to require this manufacturer defendant to eliminate an essential function of the job of expeditor and in effect create a new job for the plaintiff.

Foreman admits that, under the terms of the CBA, he would not otherwise be entitled to the reassignments which he seeks because he does not have the requisite seniority.13 However, Foreman argues that the seniority provisions of the CBA violate the ADA because they preclude B & W from offering him these reassignments. Foreman argues that B & W's obligation to accommodate him under the ADA trumps B & W's obligation to honor its seniority provisions under the collective bargaining agreement. We disagree.

Following the other circuits which have considered this issue, we hold that the ADA does not require an employer to take action inconsistent with the contractual rights of other workers under a collective bargaining agreement. See Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8th Cir.1995); Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1051 (7th Cir.1996) ("After examining the text, background, and legislative history of the ADA duty of 'reasonable accommodation', we conclude that the ADA does not require disabled individuals to be accommodated by sacrificing the collectively bargained, bona fide seniority rights of other employees."), cert. denied, --- U.S. ----, 117 S.Ct. 1318, 137 L.Ed.2d 480 (1997); Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir.1995) (recognizing that plaintiffs' collective bargaining agreement prohibits their transfer to any other job because plaintiffs lack the requisite seniority).

Regardless, even if there were no CBA in place, B & W would not be obligated to accommodate Foreman by reassigning him to a new position. "[W]e do not read the ADA as requiring affirmative action in favor of individuals with disabilities, in the sense of requiring disabled persons be given priority in hiring or reassignment over those who are not disabled. It prohibits employment discrimination against qualified individuals with disabilities, no more and no less." Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir.1995), cert. denied, 516 U.S. 1172, 116 S.Ct. 1263, 134 L.Ed.2d 211 (1996).

Additionally, Foreman offers no evidence showing that any of the requested positions are, or were, available. For the accommodation of a reassignment to be reasonable, it is clear that a position must first exist and be vacant. Under the ADA, an employer is not required to give what it does not have. Foreman also fails to offer evidence showing that he is otherwise qualified to meet the hiring criteria for these requested positions.14 In other words, he has failed to establish that he possesses the requisite skill, experience, education, and other job-related requirements to qualify for these positions. Indeed, the record is bare as to what those prerequisites might be. In short, Foreman has not offered evidence upon which a reasonable jury could find that he is entitled to the accommodations sought.

Foreman did not adduce evidence which would allow a reasonable jury to find that he was disabled, as defined under the ADA. For this reason, we hold that judgment as a matter of law in favor of B & W is appropriate. Alternatively, we hold that the district court did not err in finding that Foreman failed to offer evidence upon which a jury could reasonably conclude that he was qualified for the position of expeditor, or that the accommodations which he requested were reasonable. For these reasons, the judgment of the district court is AFFIRMED.