Eshelman v. Agere Systems, Inc.

Citation554 F.3d 426
Decision Date30 January 2009
Docket NumberNo. 05-4895.,05-4895.
PartiesJoan ESHELMAN v. AGERE SYSTEMS, INC., formerly Lucent Technologies, Inc., Agere Systems Inc., Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

David S. Fryman (argued), William K. Kennedy, Ballard, Spahr, Andrews & Ingersoll, LLP, Philadelphia, PA, for Appellant.

Ronald H. Surkin (argued), Gallagher, Schoenfeld, Surkin, Chupein & DeMis, Media, PA, for Appellee.

Before: FISHER, CHAGARES, and GREENBERG, Circuit Judges.

OPINION OF THE COURT

CHAGARES, Circuit Judge.

Plaintiff/appellee Joan Eshelman (Eshelman) instituted a lawsuit against her former employer, defendant/appellant Agere Systems, Inc. (Agere) claiming, inter alia, that Agere discriminated against her in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. At trial, Eshelman argued alternatively that Agere unlawfully discharged her because of her record of cancer-related disability, or because it regarded her as disabled. The jury found in Eshelman's favor, and awarded her back pay and compensatory damages totaling $200,000.00. Agere argues that there was insufficient evidence to sustain the jury verdict with respect to either theory of liability. Further, Agere argues that the District Court1 improperly instructed the jury concerning "reasonable accommodation," and that the District Court improperly granted Eshelman's post-trial motion to augment the jury's award to offset the negative tax consequences Eshelman would incur from receiving a lump-sum back pay award. None of these four challenges has merit, and we will therefore affirm.

I.

Eshelman was hired in 1981 by Western Electric, the predecessor company to Agere.2 Over the next twenty years, Eshelman advanced through the company, eventually attaining a position of supervisor of the Chief Information Office of Agere's Reading, Pennsylvania facility. In 1998, Eshelman was diagnosed with breast cancer, and took a medical leave of absence from September 1998 until March 1999 while she was treated. Eshelman's doctor regularly submitted documents about her health and treatment to Agere's Health Services Department. Further, Eshelman herself kept both the Health Services Department and her supervisors, Joseph DiSandro and David Baily, informed about her condition. The Health Services Department maintained detailed entries entitled "Disability Information Notes" regarding Eshelman.

After her leave of absence, Eshelman returned to work on a part-time basis with the support of DiSandro and Baily. Upon returning to Agere, Eshelman advised DiSandro and Baily that she was suffering from a cognitive dysfunction resulting from her chemotherapy treatment for her breast cancer. Eshelman informed DiSandro and Baily that as a result of her condition — colloquially known as "chemo brain"she was struggling with shortterm memory loss. The duration of this malady is indefinite. Here, it is undisputed that Eshelman suffered from memory loss well after she returned to work following her chemotherapy-related leave of absence. Eshelman was able to cope with her memory deficiencies by carrying a notebook and taking more notes than she had prior to undergoing chemotherapy. There is no record evidence that Eshelman's need to take additional notes adversely impacted her work performance or Agere's perception of her as a valued employee.

Several months after returning to work, Eshelman advised her supervisors that due to her memory problems, she was concerned about driving to unfamiliar places, which she had to do from time to time as part of her job. To compensate for her hesitancy about driving, Eshelman arranged to ride with other employees to meetings in unfamiliar locales, or alternatively to participate in such meetings by telephone. Despite these precautions, there were times when Eshelman lost her bearings while driving when she was going somewhere she "hadn't been for a while or someplace new." Appendix (App.) 10. When this occurred, Eshelman would pull over to the side of the road to get her "focus back." Id.

The parties agree that upon her return to work, Eshelman excelled at her job, as evidenced by her outstanding performance appraisals, promotions, raises, and bonuses. Though DiSandro completed Eshelman's performance appraisals, the appraisals included an overall assessment from both DiSandro and Baily. In 1999 and 2000, Eshelman received Agere's highest possible performance rating. And, in June 2001, DiSandro and Baily promoted Eshelman to a higher managerial position, which was accompanied by a $7,000.00 raise.

In October 2001, Agere suffered a substantial decline in profitability, and implemented a company-wide reduction in force almost immediately. Agere management apparently did not intend to close Agere's manufacturing operations in Reading, Pennsylvania in the initial stages of the restructuring; rather, they hoped to staff it more leanly. Ultimately, however, Agere's "Force Management Program" (FMP) led to the closure of Agere's Reading facility and the layoff of 18,000 employees worldwide. As part of Agere's FMP, Eshelman was selected for layoff effective December 30, 2001. Agere's administration of the FMP was the primary focus at trial.

Agere's FMP was designed to rank employees based on an objective assessment of skills that would be needed following Agere's corporate restructuring. Employees who scored below a certain level were identified as possible candidates to be laid off; those who were above the cutoff would remain employed following the restructuring. Consistent with his desire to retain Eshelman, and based on Eshelman's excellent performance history, DiSandro initially rated Eshelman highly, and also made efforts to shield Eshelman from termination by suggesting to Stephen Levanti, Agere's senior manager in charge of manufacturing, and Baily that in lieu of terminating Eshelman, Agere might be able to transfer her to a different Agere facility in the area.

When DiSandro broached the subject of a transfer with Eshelman, Eshelman expressed her concern about traveling to new locations given her memory problems. More specifically, Eshelman sent an email to DiSandro stating that she would "have trouble with the drive" without carpooling, explaining that "[s]ince my chemo my memory banks storing sense of direction are flawed — a fact I don't like to brag about." App. 1038. Eshelman formalized her concerns by sending an email to DiSandro on October 26, 2001, citing: (i) increased commuting expense; (ii) hardship of daily commute, especially in bad weather; (iii) potential relocation expenses; (iv) her husband's need to remain in their current county of residence, Berks County; and (v) the potential for some telecommuting. Notwithstanding these concerns, Eshelman also stated her confidence in her ability to perform any job.

DiSandro discussed Eshelman's concerns with Baily and Levanti. At Baily and Levanti's direction, DiSandro changed Eshelman's FMP score from one of the highest scores of any Agere employee to one of the lowest. At trial, Baily testified that the change in Eshelman's score was based in part on Agere's perception that Eshelman would be unable to travel to Agere's Allentown and Breinigsville sites, a limitation Baily attributed to Eshelman's chemotherapy. Baily further testified that another factor that led Agere to change Eshelman's FMP score was its belief that Eshelman lacked "the ability to perform the job in Breinigsville and Allentown." App. 651. No one from Agere ever discussed either concern with Eshelman, or gave her any opportunity to address management's concerns after it altered her FMP score. Based on her adjusted, lower FMP score, Eshelman was placed at risk for termination, and was ultimately laid off effective December 30, 2001.

Subsequent to her termination, Eshelman filed suit against Agere, alleging discrimination on the basis of age and disability. Eshelman's disability claims asserted that Agere unlawfully slated her for termination based on its belief that her cancer-related memory problems would compromise her performance in the restructured company. More specifically, Eshelman asserted that Agere selected her for termination: (i) because Agere regarded her as having a disability; (ii) because she had a record of a disability; and (iii) in retaliation for Eshelman having requested an accommodation.

Following trial, the jury returned a special verdict form in which it determined: (i) that Agere did not discriminate against Eshelman on the basis of her age in violation of the Age Discrimination in Employment Act or the Pennsylvania Human Relations Act (PHRA); (ii) that Agere did not retaliate against Eshelman in violation of the ADA or the PHRA; but (iii) that Agere did discriminate against Eshelman in violation of the ADA and the PHRA. The jury did not specify the theory upon which it found Agere liable — i.e., whether it accepted Eshelman's "regarded as" disabled claim or her "record of" disability claim, or both. For these violations, the jury awarded Eshelman $170,000.00 in back pay and $30,000.00 in compensatory damages.

At the conclusion of Eshelman's case-in-chief and at the conclusion of all the evidence, Agere moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a), which the District Court denied. Pursuant to Rule 50(b), Agere renewed this motion following the jury verdict, and alternatively requested a new trial pursuant to Federal Rule of Civil Procedure 59. Eshelman opposed Agere's motions and filed a motion for an additional monetary award to offset the negative tax consequences of receiving the back pay the jury awarded her in a single lump sum. On October 20, 2005, the District Court granted Eshelman's motion to augment her back pay award and denied Agere's motion to set aside the jury verdict. This appeal followed.

On appeal, Agere argues that the District Court erred: (i) in...

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