117 F.3d 800 (5th Cir. 1997), 96-60510, Foreman v. Babcock & Wilcox Co.

Docket Nº:96-60510.
Citation:117 F.3d 800
Party Name:Earl FOREMAN, Plaintiff-Appellant, v. The BABCOCK & WILCOX COMPANY, et al., Defendants, The Babcock & Wilcox Company, Defendant-Appellee.
Case Date:July 10, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 800

117 F.3d 800 (5th Cir. 1997)

Earl FOREMAN, Plaintiff-Appellant,


The BABCOCK & WILCOX COMPANY, et al., Defendants,

The Babcock & Wilcox Company, Defendant-Appellee.

No. 96-60510.

United States Court of Appeals, Fifth Circuit

July 10, 1997

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[Copyrighted Material Omitted]

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Jim D. Waide, III, Tupelo, MS, for Plaintiff-Appellant.

Taylor B. Smith, John Wilson Eaton, III, Mitchell, McNutt, Threadgill, Smith & Sams, Columbus, MS, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Mississippi.


Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

The opinion issued in this case under date of May 22, 1997 is withdrawn and the following is issued in place thereof.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. 5

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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

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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.

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