Cook v. State of R.I., Dept. of Mental Health, Retardation, and Hospitals

Decision Date10 September 1993
Docket NumberNo. 93-1093,93-1093
Parties63 Empl. Prac. Dec. P 42,673, 62 USLW 2345, 2 A.D. Cases 1476, 3 ADD 457, 4 NDLR P 267 Bonnie COOK, Plaintiff, Appellee, v. STATE OF RHODE ISLAND, DEPARTMENT OF MENTAL HEALTH, RETARDATION, AND HOSPITALS, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

John L.P. Brequet, for plaintiff, appellant.

Lynette Labinger, with whom Roney & Labinger was on brief, for defendant, appellee.

Mary L. Clark, with whom James R. Neeley, Jr., Deputy Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, and Vincent J. Blackwood, Asst. Gen. Counsel, were on brief for U.S. E.E.O.C., amicus curiae.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and BARBADORO, * District Judge.

SELYA, Circuit Judge.

This pathbreaking "perceived disability" case presents a textbook illustration of the need for, and the operation of, the prohibition against handicap discrimination contained in section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (1993 Supp.). Concluding, as we do, that plaintiff's proof satisfied the burdens articulated by the district court in its jury instructions, we uphold the denial of defendant's various post-trial motions and affirm the judgment below.

I. BACKGROUND

At the times material hereto, defendant-appellant Department of Mental Health, Retardation, and Hospitals (MHRH), a subdivision of the Rhode Island state government, operated the Ladd Center as a residential facility for retarded persons. Plaintiff-appellee Bonnie Cook worked at Ladd as an institutional attendant for the mentally retarded (IA-MR) from 1978 to 1980, and again from 1981 to 1986. Both times she departed voluntarily, leaving behind a spotless work record. The defendant concedes that Cook's past performance met its legitimate expectations.

In 1988, when plaintiff reapplied for the identical position, she stood 5'2"' tall and weighed over 320 pounds. During the routine pre-hire physical, a nurse employed by MHRH concluded that plaintiff was morbidly obese 1 but found no limitations that impinged upon her ability to do the job. Notwithstanding that plaintiff passed the physical examination, MHRH balked. It claimed that Cook's morbid obesity compromised her ability to evacuate patients in case of an emergency and put her at greater risk of developing serious ailments (a "fact" that MHRH's hierarchs speculated would promote absenteeism and increase the likelihood of workers' compensation claims). Consequently, MHRH refused to hire plaintiff for a vacant IA-MR position.

Cook did not go quietly into this dark night. Invoking section 504, she sued MHRH in federal district court. 2 MHRH moved to dismiss the complaint, see Fed.R.Civ.P. 12(b)(6), averring that morbid obesity can never constitute a handicap within the meaning of the Rehabilitation Act. The district court denied the motion. See Cook v. Rhode Island, 783 F.Supp. 1569 (D.R.I.1992). Pretrial discovery followed.

In due season, the parties tried the case to a jury. At the close of the evidence, appellant moved for judgment as a matter of law. The court reserved decision, see Fed.R.Civ.P. 50(a), and submitted the case on special interrogatories (to which appellant interposed no objections). The jury answered the interrogatories favorably to plaintiff 3 and, by means of the accompanying general verdict, awarded her $100,000 in compensatory damages. The district court denied appellant's motions for judgment as a matter of law and for a new trial, entered judgment on the verdict, and granted equitable relief to the plaintiff. MHRH lost little time in filing a notice of appeal.

II. STANDARD OF REVIEW

This appeal contests liability, not remediation. As formulated by MHRH, the appeal turns on whether there was sufficient evidence to permit a verdict in plaintiff's favor. Thus, appellate review is plenary. See Rolon-Alvarado v. Municipality of San Juan, 1 F.3d 74, 77 (1st Cir.1993); Jordan-Milton Mach., Inc. v. F/V Teresa Marie, II, 978 F.2d 32, 34 (1st Cir.1992). A reviewing court applies the same standard that governed adjudication of the Rule 50 motion below: we "scrutiniz[e] the proof and the inferences reasonably to be drawn therefrom in the light most hospitable to the nonmovant," Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.1987), refraining entirely from "differential factfinding," Rolon-Alvarado, 1 F.3d at 76. In the process, we may "not consider the credibility of witnesses, resolve conflicts in testimony, or evaluate the weight of the evidence." Wagenmann, 829 F.2d at 200. We can overturn a jury's verdict and grant judgment in favor of the verdict loser only if the evidence, so viewed, is such that reasonable minds could not help but reach an outcome at odds with the verdict. See Rolon-Alvarado, 1 F.3d at 77; Veranda Beach Club Ltd. Partnership v. Western Sur. Co., 936 F.2d 1364, 1383-84 (1st Cir.1991).

In this case, appellant also moved for a new trial. A trial court's denial of such a motion is examined through a somewhat different glass. See Wagenmann, 829 F.2d at 200-01. But, although appellant makes a passing reference to the trial court's ruling in this respect, it presents no reasoned discussion of, or analysis addressed to, the new trial issue. That ends the matter. We are firm adherents to the principle "that issues adverted to on appeal in a perfunctory manner, not accompanied by some developed argumentation, are deemed to have been abandoned." Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir.1990); accord United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990).

III. ANALYSIS

In handicap discrimination cases brought pursuant to federal law, the claimant bears the burden of proving each element of her chain. See Joyner by Lowry v. Dumpson, 712 F.2d 770, 774 (2d Cir.1983); Sedor v. Frank, 756 F.Supp. 684, 686 (D.Conn.1991). The elements derive from section 504 of the Rehabilitation Act, which provides in relevant part: "[n]o otherwise qualified individual ... shall, solely by reason of her or his disability, ... be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. Sec. 794(a). To invoke the statute in a failure-to-hire case, a claimant must prove four things: (1) that she applied for a post in a federally funded program or activity, (2) that, at the time, she suffered from a cognizable disability, (3) but was, nonetheless, qualified for the position, and (4) that she was not hired due solely to her disability. Here, MHRH concedes that it received substantial federal funding for the operation of the Ladd Center. We turn, then, to the remaining links that forge the chain. We subdivide our discussion into five segments, the first three of which deal directly with the existence vel non of a covered impairment (actual or perceived).

A

The plaintiff proceeded below on a perceived disability theory, positing that she was fully able although MHRH regarded her as physically impaired. These allegations state a cause of action under the Rehabilitation Act, for the prophylaxis of section 504 embraces not only those persons who are in fact disabled, but also those persons who bear the brunt of discrimination because prospective employers view them as disabled. See 29 U.S.C. Sec. 706(8)(B) (defining a disabled person, for Rehabilitation Act purposes, as any person who actually has, or who "is regarded" as having, a "physical or mental impairment which substantially limits one or more of such persons major life activities"). Up to this point in time, however, few "perceived disability" cases have been litigated and, consequently, decisional law involving the interplay of perceived disabilities and section 504 is hen's-teeth rare. Thus, this case calls upon us to explore new frontiers.

Our task is greatly simplified because regulations implementing the Rehabilitation Act, promulgated by the federal Equal Employment Opportunity Commission (EEOC), limn three ways in which a person can qualify for protection under section 504 on the basis of a perceived disability. 4 The trial court charged the jury that it could consider plaintiff's claim under the first and third methods, but not under the second. The plaintiff has not cross-appealed from this determination, so we leave to one side cases which, unlike this one, arguably come within the purview of 45 C.F.R. Sec. 84.3(j)(2)(iv)(B).

It is noteworthy that section 504's perceived disability model can be satisfied whether or not a person actually has a physical or mental impairment. See 45 C.F.R. Sec. 84.3(j)(2)(iv). It is also noteworthy that the regulations define the term "physical or mental impairment" broadly; it includes, inter alia, any physiological disorder or condition significantly affecting a major bodily system, e.g., musculoskeletal, respiratory, or cardiovascular. See id. Sec. 84.3(j)(2)(i)(A). The term also encompasses disorders and conditions "whose precise nature is not at present known." Id., App. A, Subpart A(3), at 377 (1992). And the regulations are open- ended; they do not purport to "set forth [an exclusive] list of specific diseases and conditions ... because of the difficulty of ensuring the comprehensiveness of any such list." Id.

This regulatory framework sets the stage for our analysis. In order to prevail on her perceived disability claim, Cook had to show either that (1) while she had a physical or mental impairment, it did not substantially limit her ability to perform major life activities, 45 C.F.R. Sec. 84.3(j)(2)(iv)(A), or, alternatively, that (2) she did not suffer at all from a statutorily prescribed physical or mental impairment, id. Sec. 84.3(j)(2)(iv)(C); 5 and she also had to prove that MHRH treated her impairment (whether actual or perceived) as substantially limiting one or more of her major life activities. Id. Sec. 84.3(j)(2)(iv)(A), (C)....

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