Newberry v. East Texas State University

• Citation: 161 F.3d 276
• Decision Date: 18 November 1998
• Docket Number: No. 97-10648,97-10648
• Parties: 130 Ed. Law Rep. 1083, 8 A.D. Cases 1595, 14 NDLR P 53 James H. NEWBERRY, Plaintiff-Appellant, v. EAST TEXAS STATE UNIVERSITY; William Wadley; Robert E. Houston, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 276

161 F.3d 276

130 Ed. Law Rep. 1083, 8 A.D. Cases 1595,

14 NDLR P 53

James H. NEWBERRY, Plaintiff-Appellant, v. EAST TEXAS STATE UNIVERSITY; William Wadley; Robert E Houston, Defendants-Appellees.

No. 97-10648.

United States Court of Appeals Fifth Circuit.

Nov. 18, 1998.

Robert E. Goodman, Jr., Dallas, TX, for Plaintiff-Appellant.

Martin Joseph Thompson, Jr., Austin, TX, for Defendants-Appellees.

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

Before KING, GARWOOD and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In this disabilities case, plaintiff James H. Newberry appeals the district court's refusal to instruct the jury that a "perception of disability" or "record of disability" would qualify as a disability under the Americans with Disabilities Act. Under the facts of this case, no reasonable jury could have found that there existed a "perception of disability" or "record of disability" without first finding that Newberry had a "disability." We thus find that he was not entitled to an instruction concerning "perception of disability" or "record of disability." We also affirm the trial court's dismissal of various other claims.

I

James H. Newberry, a tenured professor of photography at East Texas State University, was fired in 1994. He filed suit, alleging that he suffered a psychiatric disability. Newberry claimed that Dr. William Wadley and Dr. Robert E. Houston, superiors of his at ETSU, conspired to violate his civil rights and that ETSU dismissed him illegally on account of his disability.

Newberry's association with ETSU, which has since moved underneath the umbrella of Texas A&M University and is called Texas A&M--Commerce, began in 1979, when he started working as a professor of photography there. The employment relationship was troubled from early on, as Newberry's faculty colleagues recommended that he be denied tenure. Nonetheless, ETSU granted Newberry tenure in 1984.

Newberry's initial appointment was in the Department of Journalism and Graphic Arts. Tension, however, developed between Newberry and Dr. Jack Hillwig, appointed as department chair in August 1989. Newberry, according to Hillwig, worked fewer hours than his colleagues, preferred to work only on Tuesdays and Thursdays, did not work in the morning, and kept no office hours. Hillwig also testified that Newberry threatened and harassed him. Hillwig subsequently resigned, out of fear, according to ETSU, that Newberry would undermine Hillwig's own chance of winning tenure. At that time, Houston, the Dean of the College of Arts and Sciences, found Newberry's conduct to be noncollegial, and suggested to Newberry that he obtain counseling.

In 1992, a group that included Newberry recommended that the photography program be moved to the Department of Art, and ETSU acceded to the request. The Department was headed by Dr. Wadley, and Houston was Wadley's superior. Soon enough, however, Newberry wished he was back in the Department of Journalism and Graphic Arts. Witnesses testified that he threatened to sue Wadley, refused to attend 8 a.m. faculty meetings, and resisted participating in graduate reviews of art students. Several faculty members, apparently concerned that Newberry's behavior would cause Wadley to leave, approached Houston. On December 1, 1993, Houston sent a memorandum to Newberry warning him that if his behavior towards his colleagues did not become more professional, he might be dismissed.

Newberry and Houston met several times in the next two weeks, but the substance of those meetings is unclear. Houston also met with Newberry's campus counselor Randy Bodenhemer, who later denied that he told Houston that Newberry was disabled. On February 15, 1994, Newberry drafted a proposal under which ETSU would grant him a year's paid sick leave, during which he would study art in New York. There is some dispute as to whether Newberry made this proposal spontaneously or whether Houston had earlier suggested the year off. In any event, Houston refused to grant the request in the absence of a letter from a psychiatrist indicating that Newberry required accommodation.

On May 23, 1994, Wadley recommended Newberry's dismissal, and Newberry was dismissed two days later, though he would continue to receive salary and benefits for a year. Newberry duly filed an appeal according to ETSU procedures. A faculty committee voted, 6-5, that Newberry's tenure should not be revoked, but recommended that Newberry not be returned to the Department of Art. This vote, however, was merely advisory, and ETSU President Jerry Morris upheld Newberry's dismissal. ETSU's Board of Regents in turn upheld this decision.

Newberry filed suit against ETSU, Wadley, and Houston, alleging numerous claims. The most important of these claims for purposes of this appeal are that ETSU violated the Americans with Disabilities Act, 42 U.S.C. §§ 12111-12213, and that the defendants conspired to violate his civil rights in violation of 42 U.S.C. §§ 1985 and 1986. Newberry filed additional federal claims under 42 U.S.C. § 1983 and the Rehabilitation Act, 29 U.S.C. §§ 701-797b. State claims included intentional infliction of emotional distress, civil conspiracy, and a claim under the Texas Labor Code.

The trial lasted six days. At trial, a psychiatrist and a licensed professional counselor who had treated Newberry between 1992 and 1994 both testified. The counselor testified that Newberry suffered from obsessive compulsive traits, and the psychiatrist specifically diagnosed him as suffering from obsessive compulsive personality disorder. Testimony indicated that Newberry had also seen another psychiatrist for treatment. That psychiatrist and Newberry's regular physician made diagnoses of obsessive compulsive disorder as well.

According to Newberry's testifying witnesses, the obsessive compulsive disorder had numerous effects on Newberry's basic physical and mental functions at work and at home. Newberry himself testified that he had difficulty cleaning himself, waking up, sleeping, scheduling his daily routine, and controlling his bowel function. The disorder, he testified, also interfered with his relations with others by instilling in him excessive perfectionism, rigidly ethical behavior, and an insistence on addressing all details of his interpersonal relationships.

As early as late 1992, according to Newberry, Wadley observed physical symptoms of depression and suggested that Newberry obtain counseling. In April 1993, Houston advised Newberry that he believed Newberry suffered from a serious psychological problem and should seek psychiatric or other mental health care. In December 1993, Houston, aware that Newberry was seeing a licensed professional counselor employed by ETSU, met with the counselor and allegedly indicated that he believed Newberry was suffering from psychological problems, and suggested to the counselor the possibility of Newberry's taking a leave of absence. At around the same time, Houston discussed Newberry with other faculty members, who allegedly characterized Newberry with phrases like "paranoid," "nuts," "crazy," and "having mental difficulties." Houston also discussed Newberry with ETSU's inside counsel and its president. Finally, between February and April, 1994, Houston was authorized to visit with Newberry's psychiatrist to obtain a diagnosis of a mental disorder. Although the psychiatrist contacted him, Houston decided not to visit with the psychiatrist.

No witness testified that he perceived Newberry to be disabled. Dr. Alan Harris, Newberry's psychiatric expert; Randy Bodenhemer, his psychologist; James Cornehls, Newberry's economic expert; two former students of Newberry's; and various members of the faculty and administration all testified that they did not regard him as disabled.

After Newberry rested his case, the defendants moved for judgment pursuant to Federal Rule of Civil Procedure 50(a). The court dismissed the §§ 1985 and 1986 claims on the basis that Wadley and Houston were protected by qualified immunity. In addition, it dismissed the § 1983 claim, on the basis that ETSU is not a "person" subject to suit under that section, and the emotional distress claim, in the absence of evidence of outrageous conduct. The court refused to dismiss the ADA claim.

While the court did not specifically comment on the remaining claims, the Rehabilitation Act and Texas Labor Code claims essentially overlap with the ADA claim, and Newberry's proposed jury instructions did not mention these claims specifically. Newberry's proposed jury instructions did specifically mention the Texas civil conspiracy claim. The court's jury instructions omitted this claim, perhaps because the court had dismissed the similar § 1985 claim.

At the charge conference, Newberry did not object to the omission of the conspiracy claim. He did, however, specifically object to the judge's truncation of the definition of "disability" that Newberry had offered with respect to the first element of the ADA claim. Under the plaintiff's proposal, Newberry would satisfy this element by showing "that he had a disability or perceived disability or record of disability." The court, however, refused to include the "perceived disability or record of disability" language. At the charge conference, the court overruled Newberry's objection.

The jury found that Newberry was not a qualified individual with a disability under the ADA, and the court entered judgment on the verdict. Newberry appeals. He specifically challenges only the district court's charge as to "disability" and the dismissal of the conspiracy claims.

II

It is uncontested that the definition of "disability" that appellant requested tracked the statutory language. See 42 U.S.C. § 12102(2) ("Disability means ... (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a...