Byrne v. Board of Educ., School of West Allis-West Milwaukee

• Decision Date: 10 November 1992
• Docket Number: ALLIS-WEST,No. 91-1113,91-1113
• Parties: 60 Fair Empl.Prac.Cas. (BNA) 329, 60 Empl. Prac. Dec. P 41,862, 78 Ed. Law Rep. 675, 2 A.D. Cases 284, 3 NDLR P 170 Mary Ellen BYRNE, Plaintiff-Appellant, v. BOARD OF EDUCATION, SCHOOL OF WESTMILWAUKEE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 560

979 F.2d 560

60 Fair Empl.Prac.Cas. (BNA) 329,

60 Empl. Prac. Dec. P 41,862, 78 Ed. Law Rep. 675,

2 A.D. Cases 284, 3 NDLR P 170

Mary Ellen BYRNE, Plaintiff-Appellant, v. BOARD OF EDUCATION, SCHOOL OF WEST ALLIS-WEST MILWAUKEE,

Defendant-Appellee.

No. 91-1113.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 4, 1991.

Decided Nov. 10, 1992.

Arthur Heitzer, Milwaukee, Wis. (argued), for plaintiff-appellant.

Herbert P. Wiedemann (argued), Thomas Pence, Foley & Lardner, Milwaukee, Wis., for defendant-appellee.

Before WOOD, Jr. and CUDAHY, Circuit Judges, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

Appellant Mary Ellen Byrne was an elementary school teacher in West Allis-West Milwaukee, Wisconsin, whose employment was terminated by the appellee Board of Education of that school district ["School Board"]. Alleging discriminatory treatment by the School Board because of her handicap, a sensitivity to the fungus aspergillus fumigatus, Ms. Byrne brought this action based upon federal claims under the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Civil Rights Act, 42 U.S.C. § 1983, and upon a state claim under the Wisconsin Fair Employment Act, § 111.31 et seq. Wis.Stats. Following a ten-day trial the jury issued a verdict in favor of the School Board. Ms. Byrne's appeal challenges the trial court's denial of her motions for directed verdict and new trial.

I. BACKGROUND

Appellant started teaching for the School Board in the suburban Milwaukee district in 1965; she was transferred from Franklin to General Mitchell Elementary School in 1978. During the 1983 school year, Ms. Byrne began experiencing respiratory difficulties, sinus and throat problems, fatigue and flu-like symptoms which grew worse during the work week but got better on weekends and in the summer. In December 1983 Ms. Byrne consulted Jordan Fink, M.D., professor at the Medical College of Wisconsin and Chief of its Allergy Department. Upon his advice she reported to the school principal that her classroom seemed to be a source of her discomfort and that her doctor had made various recommendations for change. In response the school district inspected and cleaned the heating and ventilating system, added new filters, tested the temperature and humidity in her classroom, analyzed dust samples, removed the fiberglass drapes, and installed a humidifier. Nevertheless, Ms. Byrne's symptoms persisted.

After a period of intermittent absences, Ms. Byrne began a medical leave of absence on December 6, 1984. In January 1985 she was hospitalized for a lung challenge test which revealed that she was allergic to aspergillus fumigatus, a common fungus found in many environments, and possibly to other potentially toxic airborne organisms. Dr. Fink advised her that exposure could lead to permanent lung disease; he refused to release her to work in an environment where there was an undue risk of contact with the fungus. On the physician's recommendation, the School Board transferred her. However, Ms. Byrne's brief attempt to teach at Longfellow School in February 1985 proved unsuccessful; she worked there only two weeks.

Away from the classroom, however, her symptoms decreased. Between February 1985 and December 1989 Ms. Byrne gradually did volunteer work, had part-time jobs, completed her masters degree in education, and resumed some physical activities. There were openings for elementary school teachers during that time; however, Ms. Byrne claimed that none was offered to her, and the School Board responded that she did not apply for any of them. After granting Ms. Byrne medical leaves for two and one-half years, in August 1987 the School Board terminated her employment.

Ms. Byrne commenced this action alleging that she was a handicapped individual and that the School Board violated her rights, first by failing to accommodate her handicap within the workplace and then by terminating her because of her handicap. Once the district court denied defendant's motion for summary judgment, the jury trial began on July 9, 1990. Plaintiff's witnesses included an expert on building ventilation systems and her physician, Dr. Fink, an expert on pulmonary diseases. The evidence was conflicting as to whether exposure at school caused her symptoms, and whether the school's responses to her doctor's requests for improvements in Ms. Byrne's classroom were adequate. Dr. Fink stated that Ms. Byrne was not totally disabled to teach in any classroom or school; he believed that the situation could be fixed. At the close of evidence, Ms. Byrne requested a directed verdict. After the court denied that motion, the jury answered a general verdict in favor of the School Board. Following the court's denial of her motion for new trial, Ms. Byrne filed this appeal.

II. THE STATUTE AND REGULATIONS

Section 504 of the Rehabilitation Act of 1973 makes it unlawful for a federal grant recipient to discriminate against an otherwise qualified handicapped individual. Carter v. Casa Central, 849 F.2d 1048, 1053 (7th Cir.1988) (citing Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 626, 104 S.Ct. 1248, 1250, 79 L.Ed.2d 568 (1984), and Anderson v. University of Wisconsin, 841 F.2d 737, 740 (7th Cir.1988)). The Act requires that:

[n]o otherwise qualified individual with handicaps ... shall, solely by reason of her or his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....

29 U.S.C. § 794(a). Therefore a plaintiff basing her claim upon the Act must establish that (1) she is an "individual with handicaps"; (2) she is "otherwise qualified"; (3) she is excluded from programs solely because of the handicap; and (4) the programs from which she is excluded are operated by an agency that is federally funded. In this case the last element was not challenged; but, with respect to the other three, Ms. Byrne bore the initial burden at trial of establishing that she was entitled to protection under the Act by offering proof concerning each requirement. See Taub v. Frank, 957 F.2d 8, 10 (1st Cir.1992); Gilbert v. Frank, 949 F.2d 637, 640 (2nd Cir.1991).

In determining whether a person is "handicapped," the regulations promulgated by the Department of Health and Human Services with the oversight and approval of Congress are of significant assistance. School Board of Nassau County v. Arline, 480 U.S. 273, 279, 107 S.Ct. 1123, 1127-28, 94 L.Ed.2d 307 (1987). In both the statute and the regulations "individual with handicaps" is defined as:

any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.

29 U.S.C. § 706(8)(B); ¹ 45 C.F.R. § 84.3(j)(1) (1990). The regulations then elucidate the critical terms of that definition:

Physical ... impairment means (A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine....

Major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

45 C.F.R. § 84.3(j)(2)(i) and (ii). The Arline Court explains that "the definition of 'handicapped individual' is broad, but only those individuals who are both handicapped and otherwise qualified are eligible for relief." Arline, 480 U.S. at 284-85, 107 S.Ct. at 1129.

III. MOTION FOR DIRECTED VERDICT

According to the appellant, the evidence established as a matter of law that she qualified as a "handicapped individual" and that she was fired because of that handicap. In this appeal she claims that the district court erred in denying her motion for a directed verdict on those two key elements of 29 U.S.C. § 706(8).

A. Standard of Review

Rule 50 of the Federal Rules of Civil Procedure, which governs the trial court's decision whether to direct a verdict, gives the court discretion to grant judgment against a party that has failed to present legally sufficient evidence on a claim it has fully argued. ² If the court determines that the party bearing the burden of proof has produced sufficient evidence upon which a jury could properly proceed to a verdict, it may direct the verdict. Richardson v. Indianapolis, 658 F.2d 494, 498 (7th Cir.1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1442, 71 L.Ed.2d 657 (1982) (quoted in Garrett v. Barnes, 961 F.2d 629, 632 (7th Cir.1992)). On the other hand, the trial court may appropriately refuse a motion to direct a verdict

" 'where the evidence, along with the inferences to be reasonably drawn therefrom, when viewed in the light most favorable to the party opposing such motion, is such that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions.' "

Garrett, 961 F.2d at 631 (quoting McClure v. Cywinski, 686 F.2d 541, 544 (7th Cir.1982)).

Our review of the trial court's denial of a motion for directed verdict is de novo. Garrett, 961 F.2d at 632. However, we review all the evidence in the light most favorable to the nonmovant School Board, and will not reverse such a denial unless the evidence permits only one reasonable conclusion: a verdict in favor of the movant Ms. Byrne. Wallace v. Mulholland, 957 F.2d 333, 337 (7th Cir.1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) and Warrington v. Elgin, Joliet & Eastern Ry. Co., 901 F.2d 88, 89 (7th Cir.1990)).

B. Section 706(8)(B)(i)

It is not disputed that Ms. Byrne's sensitivity to aspergillus is a physical impairment. The first issue, then, is whether...