Gordon v. EL Hamm & Associates, Inc.

• Decision Date: 04 December 1996
• Docket Number: No. 95-3077.,95-3077.
• Citation: 100 F.3d 907
• Parties: Mervin GORDON, Plaintiff-Appellee, v. E.L. HAMM & ASSOCIATES, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

100 F.3d 907

Mervin GORDON, Plaintiff-Appellee, v. E.L. HAMM & ASSOCIATES, INC., Defendant-Appellant.

No. 95-3077.

United States Court of Appeals, Eleventh Circuit.

December 4, 1996.

Charles F. Henley, Jr., Kimberly T. Acuna, Haynsworth, Baldwin, Johnson & Harper, Jacksonville, FL, for Defendant-Appellant.

Susan Smith Erdelyi, Marks, Gray, Conroy & Gibbs, Jacksonville, FL, for Plaintiff-Appellee.

Before COX, Circuit Judge, HILL, Senior Circuit Judge, and VINING^*, Senior District Judge.

VINING, Senior District Judge:

I. INTRODUCTION

In this appeal, we review the district court's denial of the defendant's renewed motion for judgment as a matter of law on the plaintiff's claim under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., on which the jury returned a verdict for the plaintiff. The district court concluded that the evidence adduced at trial supported the jury's finding that the plaintiff was a "qualified individual with a disability" under the ADA. We REVERSE the judgment of the district court and REMAND the matter to the district court and direct it to enter judgment for the defendant on the ADA claim.

II. PROCEDURAL AND FACTUAL BACKGROUND

In December 1993, Mervin Gordon filed suit against Hamm & Associates, Inc. ("Hamm"), alleging that Hamm unlawfully discriminated against him on the basis of his disability and age, in violation of the ADA, and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.. A jury subsequently rendered a verdict for Gordon on the ADA claim and for Hamm on the ADEA claim.

Following the verdict, Hamm filed a renewed motion for judgment as a matter of law or, alternatively, a motion for a new trial. The district court denied the motion, and this appeal followed.

In 1992 Hamm contracted with the United States Navy to perform on-site maintenance for military housing at an air station in Jacksonville, Florida. Thereafter, Hamm hired Gordon in January 1993 to work on this project. Gordon's duties included performing general maintenance work, especially work that focused on air conditioning, heating, and refrigeration repair. At all times during his employment with Hamm, Gordon's immediate supervisor was Ken Van Horn. Van Horn was the work leader at the site and was responsible for ensuring that all work was completed in a timely fashion.

In May 1993, Gordon's physician determined that he had a cancerous growth on his shoulder. An oncologist, Dr. Jadeja, subsequently confirmed that Gordon had malignant lymphoma. Dr. Jadeja ordered a bone marrow test to determine how extensive the cancer was and to assess Gordon's prognosis and possible treatment. From June 18 until June 28, 1993, Gordon took an extended medical leave of absence to undergo the bone marrow test. The bone marrow test revealed that the cancer had not spread anywhere else in Gordon's body. Dr. Jadeja recommended that Gordon undergo a series of treatments, consisting of blood tests once a week and chemotherapy once every three weeks.

On June 25, 1993, Gordon received his first chemotherapy treatment and continued on his schedule of treatments until November 1, 1993. According to Dr. Jadeja, Gordon was able to continue with his normal activities during the treatments. He noted that Gordon's life activities were limited by the chemotherapy to the extent that Gordon had to go to the doctor's office, receive the treatments, and endure the side effects that often occur in many patients. The side effects that Gordon experienced included weakness, dizziness, swelling of the ankles and hands, numbness of the hands, the loss of body hair, and vomiting.

Gordon was released for work by his doctors on June 28, 1993, and on that date he appeared at work, prepared to commence his duties. Hamm, however, did not return Gordon to work at that time. According to Gordon, Van Horn would not permit him to work and instructed him to contact Hamm's home office in Virginia Beach, Virginia. Gordon subsequently attempted to contact Bobby Davis, Hamm's vice president who oversaw the project in Jacksonville, at Hamm's home office. On July 7, Gordon was finally able to speak with Davis about his work situation. Davis instructed Gordon to report to work on July 8 and further stated that Hamm would accommodate Gordon to the best of its ability. Davis told Gordon that if his situation changed or if he had problems at work he should call him back. During the telephone conversation, Gordon did not complain about any alleged problems he had been having with Van Horn.

On July 8, Gordon returned to work, physically capable of performing his duties as a repairman. The accommodations that Gordon needed as a result of his cancer included leaving work a couple of hours early every Friday for blood testing and chemotherapy. Gordon asserts that upon his return to work on July 8 the terms, conditions, and privileges of his job had changed substantially. Specifically, he alleges that he was no longer assigned to heating ventilation and air conditioning work but was required to perform general maintenance-type work. Gordon also claims that Van Horn assigned him to more physically taxing work. In addition, he asserts that he no longer had access to a company vehicle as he had prior to commencing his period of medical leave. Moreover, he contends that he was not re-issued a set of keys so that he could access units at the air station which needed repairs.

On July 16, Gordon and Van Horn had a dispute after Gordon inadvertently cut a window shade for one of the units at the air station improperly. A confrontation ensued, and Gordon contends that Van Horn informed him that he was fired, that he did not want Gordon at the air station, and that Gordon was attempting to sabotage his job. Van Horn admits that he was upset and that he questioned Gordon as to whether he was trying to sabotage Van Horn's job. Van Horn denies, however, that he fired Gordon. Instead, he claims that he simply told Gordon to go home.

After the confrontation at the housing unit, Gordon and Van Horn eventually rode back to Hamm's office together. During the ride back to the office, the dispute was not discussed. According to Gordon, when they arrived at the office, Van Horn told him that when he got his "head screwed on" he could call him about his job. R5-103-214. Van Horn agrees that he informed Gordon to call him after both of them had cooled down. Gordon thereafter went into the office, signed out, and went home. Gordon did not subsequently talk to Davis or Van Horn about this incident. He did, however, contact an attorney, who later wrote Hamm, requesting that Gordon be reinstated. Hamm declined to reinstate Gordon allegedly because Gordon failed to contact Van Horn or Davis as instructed and because it had been able to complete the project work in a timely fashion without adding to the staff.

III. THE ISSUES ON APPEAL AND STANDARD OF REVIEW

Hamm contends that there was insufficient evidence adduced a trial to support the jury's finding that Gordon had a disability under the ADA. Specifically, it asserts that Gordon is not a "qualified individual with a disability" under the ADA, as Gordon neither had a physical or mental impairment that substantially limited one or more of his major life activities, nor was he regarded by Hamm as having such an impairment. Accordingly, Hamm argues that the district court erred by denying its renewed motion for judgment as a matter of law on the ADA claim.¹

In reviewing a district court's disposition of a renewed motion for judgment as a matter of law, an appellate court employs the same standard utilized by the district court in determining whether to grant the motion. Walker v. NationsBank of Florida, 53 F.3d 1548, 1555 (11th Cir.1995). In determining whether to grant such a motion, a court should consider all of the evidence in the light most favorable to the nonmoving party and with all reasonable inferences drawn in favor of such party. Id. at 1555; MacPherson v. University of Montevallo, 922 F.2d 766, 770 (11th Cir.1991). If the facts and inferences are so strong that a court opines that reasonable persons in the exercise of impartial judgment could not arrive at a contrary verdict, a district court must grant a renewed motion for judgment as a matter of law. Id. If, however, the evidence is such that reasonable and fair-minded individuals in the exercise of impartial judgment might reach different conclusions, a court must deny the motion. Id. Nevertheless, a jury question does not exist because of the presence of a mere scintilla of evidence; rather, there must be a conflict in substantial evidence to create a question for the jury. Walker, 53 F.3d at 1555; Verbraeken v. Westinghouse Electric Corporation, 881 F.2d 1041, 1045 (11th Cir.1989).

IV. THE LEGAL ANALYSIS

The ADA provides that no covered employer 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). In the ADA, Congress has imposed upon employers the duty to provide reasonable accommodations for known disabilities unless doing so would result in an undue hardship to the employer. 42 U.S.C. § 12112(b)(5)(A). In order to establish a prima facie case of discrimination under the ADA, a plaintiff must demonstrate that (1) he has a disability; (2) he is a qualified individual; and (3) he was subjected to unlawful discrimination as the result of his disability. Pritchard v. Southern Company Services, 92 F.3d 1130, 1132 (11th Cir.1996); Morisky v. Broward County, 80 F.3d 445, 447 (11th Cir.1996). In addition, a plaintiff must demonstrate that the employer had either actual or constructive knowledge of the disability or considered the employee to be disabled. Morisky, 80...