Armstrong v. Burdette Tomlin Memorial Hosp.

• Decision Date: 30 January 2006
• Docket Number: No. 03-3553.,03-3553.
• Citation: 438 F.3d 240
• Parties: Arnie ARMSTRONG, Appellant v. BURDETTE TOMLIN MEMORIAL HOSPITAL; Richard Kraus, Individually and in his capacity as employee of Defendant Burdette Tomlin Memorial Hospital; Edward L. Moylett, Individually and in his capacity as employee of Defendant Burdette Tomlin Memorial Hospital.
• Court: U.S. Court of Appeals — Third Circuit

Page 240

438 F.3d 240

Arnie ARMSTRONG, Appellant v. BURDETTE TOMLIN MEMORIAL HOSPITAL; Richard Kraus, Individually and in his capacity as employee of Defendant Burdette Tomlin Memorial Hospital; Edward L. Moylett, Individually and in his capacity as employee of Defendant Burdette Tomlin Memorial Hospital.

No. 03-3553.

United States Court of Appeals, Third Circuit.

Argued September 15, 2004.

January 30, 2006.

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William B. Hildebrand, (Argued), Feldman & Hildebrand, Cherry Hill, NJ, for Appellant.

Timothy M, Crammer, (Argued), Crammer & Bishop, Absecon, NJ, for Appellees.

Before ALITO, AMBRO and FISHER, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Arnie Armstrong appeals from an order of the United States District Court for the District of New Jersey denying his motion for a new trial on his claims of failure to accommodate his disability, as well as age discrimination and disability discrimination. Armstrong contends that the District Court erred in charging the jury regarding the elements of his claims and the parties' respective burdens of proof, and in approving jury interrogatories. He also challenges the Court's refusal to grant a retrial on his claims brought under the Fair Labor Standards Act. Although we are not persuaded by all of Armstrong's arguments, we reverse the District Court insofar as it denied his motion for a new trial on his failure to accommodate and disability discrimination claims, and remand for a new trial.

I. Factual Background

Armstrong began working at Burdette-Tomlin Memorial Hospital (the "Hospital")¹ in 1980, following several years of unemployment due to an earlier neck and back injury.² Within a year, Armstrong became a full-time shipping and receiving clerk.³ Richard Kraus became Armstrong's immediate supervisor beginning in 1983 or 1984, and remained his supervisor for the duration of Armstrong's employment at the Hospital.

Armstrong alleges that he took the clerk position because it did not involve heavy lifting that would exacerbate his back and neck problems. The position required placing supplies on carts, pushing the carts and putting the supplies away. According to the Defendants, the position required clerks to be able to lift items weighing up to 150 pounds.⁴ Armstrong received satisfactory or better evaluations and regular raises throughout his tenure at the Hospital. In 1998, his last full year there, he received a perfect attendance award.

A. Missed Work

Because of recurring back and neck pain, Armstrong missed work for several extended periods during his employment. He was out on disability for more than a month in 1993 (and his grievance challenging increased workloads failed). He had allegedly told his union representative that he could not physically perform the work. When he returned to work a month later, a doctor's note read that he could perform only "light duty" functions. Because the stock clerk's position was not a "light duty" job, the Hospital said Armstrong would either have to bid on other jobs or return to his stock clerk position with all the duties required of the position. Armstrong chose to return to his stock clerk position and its full duties.

Armstrong missed work again for several weeks after he re-injured his back and neck during an unsuccessful attempt to jump from a shelf onto a shaky stool in July 1996. Although Armstrong claims the injury resulted from this fall, the Defendants say that Armstrong continued to work without complaint until October 17, 1996, three months after the fall, and that Armstrong's sworn application for disability benefits revealed that he injured himself while working on his farm. Just as he did following the 1993 injury, Armstrong again returned to work with a doctor's note stating that he could not perform heavy lifting, pulling, or bending. But, when told by the Hospital that a distribution stock clerk was not a "light duty" position, and that he could therefore not return to his distribution stock clerk job, Armstrong produced a new note saying that he could work without restriction.

B. Alleged Harassment

Armstrong alleges that he was harassed by Kraus and other Hospital workers following his return to work. Kraus, Armstrong contends, told him that he worked too slowly and should consider retirement or find another, less demanding, job. He allegedly told Armstrong, "[Y]ou're getting old, we need to have some young blood in the [H]ospital," and he could not have a "cripple" working in his department. Armstrong further claims that Kraus singled him out by increasing his workload and assigning another employee to check and document his work. Kraus denies these allegations and notes that Armstrong never complained to Kraus's supervisor of any harassment.⁵

In addition to the claimed harassment by his immediate supervisor, Armstrong asserts that Ed Moylett (to repeat, the Hospital's Human Resources Director) told Armstrong that he (Moylett) would continually retaliate against Armstrong until he could be fired. This threat allegedly occurred after Armstrong refused to take early retirement. Moylett denies making these comments.

C. Linen Distribution

Beginning in 1997, the Hospital created a full-time position for a linen distribution clerk after it ended a contract with a private vendor. A linen distribution clerk injured his back in November 1998, creating an opening in his department. According to Armstrong, the linen job is considerably more strenuous than his stock clerk job because it requires employees repeatedly to bend down and pick up 20 to 30 pound bundles of linen from a five-foot-deep cart. The Defendants dispute Armstrong's claim that the linen job is more strenuous, noting that the lifting required for that job—up to 50 pounds—is considerably less than the 150 pounds required of distribution clerks, and that the linen cart has a low-cut front, 30 inches from the floor, so that short workers can easily reach the bundles.

Kraus posted the linen job opening for several weeks, but no one applied. Believing that he might be assigned to this job, Armstrong sent several letters to Kraus in December 1998, reminding Kraus about his chronic back problems and urging his supervisor not to assign him to linen work. The Hospital decided, however, that distribution stock clerks would share the linen clerk's functions when no linen clerk was on-duty, and Armstrong's union agreed, even after Armstrong filed a grievance to prevent transfer of these duties. Armstrong was told by Kraus that he would be required to perform the linen job for at least six months.⁶

D. Requested Accommodation

Armstrong attempted to do the linen job, but after two weeks he required emergency room treatment. Armstrong brought a doctor's note back to work, stating that he could not perform excessive lifting, bending, pushing, or pulling because it was "aggravating an old condition." Armstrong claimed that the main problem was that the linen cart had tall sides, and reaching over the sides to lift the linen bundles re-aggravated his condition. Although witnesses for the Defendants testified that there is a low-cut front making it easier to remove linens, Armstrong disputes this contention.

According to Moylett, he advised Armstrong that he must be capable of delivering linen in order to perform the essential functions of the distribution stock clerk position. If he could not, Armstrong could apply for other Hospital jobs. Moylett contends that Armstrong never applied for other positions, and that Armstrong also declined an option to switch to the night shift.⁷ Moylett further claims that he had Armstrong demonstrate the duties he performed to determine the particular problems he had delivering linen, and concluded that the only problem appeared to be that Armstrong did not want to do this work.⁸

Armstrong says that he asked for his "old job" back because he could perform all of those duties without injury, but his request was refused. When Armstrong produced an additional doctor's note stating that he could not do excessive bending, lifting, pulling, or pushing, Moylett determined that Armstrong could not perform any essential function of a distribution stock clerk, even though Armstrong claimed the only task he could not perform was linen distribution, as the distribution stock clerk position required heavier lifting and more strenuous activity than the functions performed by a linen clerk.

On February 2, 1999, Moylett sent Armstrong a letter acknowledging that he had received the doctor's note, and that because Armstrong could not "perform the basic job functions of your Distribution Clerk position," Armstrong could: "1. Transfer to a mutually agreed upon position in the hospital that you will be able to satisfactorily perform, taking into account your physical limitations. This option was offered to you in May 1998 then again in January 1999. 2. Apply for temporary disability insurance or 3. Resign from the [H]ospital." Armstrong was given until February 8, 1999 to make a decision, after which he would be removed from the payroll based upon his "inability to perform the job functions of your position."

According to Armstrong, because no other jobs were available and since he could not have his "old job" back, he had no choice but to go out on disability. Moylett says that he met with Armstrong several times during the year that he was out on disability to discuss possible job options with him. But when Armstrong did not return to work within a year capable of performing the distribution stock clerk duties (including the linen clerk functions), he was formally terminated.

II. Procedural History

Armstrong filed suit against the Defendants in July 2000 for uncompensated overtime under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., and employment discrimination under the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. § 10:5-1, et seq. In April 2002, he...