Chiari v. City of League City

• Decision Date: 09 January 1991
• Docket Number: No. 89-6310,89-6310
• Citation: 920 F.2d 311
• Parties: 59 Fair Empl.Prac.Cas. 1758, 55 Empl. Prac. Dec. P 40,514, 1 A.D. Cases 1721 Antonio CHIARI, Plaintiff-Appellant, v. CITY OF LEAGUE CITY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 311

920 F.2d 311

59 Fair Empl.Prac.Cas. 1758,

55 Empl. Prac. Dec. P 40,514, 1 A.D. Cases 1721

Antonio CHIARI, Plaintiff-Appellant, v. CITY OF LEAGUE CITY, Defendant-Appellee.

No. 89-6310.

United States Court of Appeals, Fifth Circuit.

Jan. 9, 1991.

Robert M. Wood, Kingwood, Tex., for plaintiff-appellant.

William Scott Helfand, Hirsch, Glover, Robinson & Sheiness, Houston, Tex., for defendant-appellee.

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

Before CLARK, Chief Judge, THORNBERRY, and HIGGINBOTHAM, Circuit Judges.

THORNBERRY, Circuit Judge:

Parkinson's disease is a degenerative nerve disorder, characterized by tremors and muscle rigidity. It currently affects over one million Americans, one of whom is Antonio Chiari. Chiari asks us to make an unpleasant decision: whether the physical debilitation caused by his disease has discomfited his efforts to overcome the physical demands of his job. We find that it has. Therefore, because Chiari is no longer qualified to be a construction inspector, the City of League City, Texas, did not discriminate against him under federal or Texas law by firing him, and we AFFIRM the decision of the district court, which granted summary judgment in favor of the City.

I. FACTS AND PROCEDURAL HISTORY

Antonio Chiari is a sixty-six year old professional engineer who was diagnosed with Parkinson's disease in 1981. In 1982, he was hired by the City of League City, Texas, as a construction inspector. As a construction inspector, Chiari was responsible for approving construction plans proffered by private contractors and verifying that their work was completed properly. Almost fifty percent of the job was spent on the site of one or more construction projects, where he would have to visually inspect the contractors' work. These inspections required a significant amount of physical activity: walking around the construction site, climbing into ditches to inspect pipes, and climbing up the structure of uncompleted buildings. Chiari does not dispute this.

In early 1987, Joseph A. Murphy, the Director of Administrative Services for the City, noticed that Chiari was experiencing greater difficulty walking. At one point, he saw Chiari stumble while walking down the hallway of City Hall. Also, a private contractor told David J. Hegemier, Chiari's immediate supervisor, that Chiari had fallen while surveying the construction of a library. Hegemier notified Murphy of this report.

Murphy was concerned about Chiari's safety and the safety of others working with him. Consequently, in February 1987, he asked Chiari to see a neurosurgeon, Dr. Randhir Sinha. After examining Chiari, Dr. Sinha stated that Chiari had an unsteady "shuffling gait" and muscle rigidity, both of which caused him to lose his balance. Based on the physical demands of the job, Dr. Sinha concluded that Chiari was not fit to be a construction inspector.

In March 1987, Chiari was examined by his neurologist, Dr. Edward F. Good. After examining Chiari, Dr. Good wrote a letter to the City, which stated that he saw "no particular limitation of [Chiari's] work as long as he [did] not climb." He also wrote that he did not feel that Chiari posed "any hazard to himself or others on his job."

In April 1987, Murphy asked Chiari to see another neurosurgeon, Dr. Charles A. Borne. Dr. Borne's assessment was identical to Dr. Sinha's: Chiari had an unsteady "shuffling gait" and body rigidity, which occasionally caused him to lose his balance. Dr. Borne also concluded that Chiari was unable to continue his job as a construction inspector and that he would be a danger to himself and his co-workers if he were to continue. Dr. Borne noted, however, that Chiari's "intellect and intelligence functioning [were] excellent" and that he could handle any job that would not require physical exertion.

Murphy and Paul J. Nutting, the City Administrator, reviewed the reports from the three physicians and then conferred with Hegemier about Chiari's situation. They concluded that his physical limitations prevented him from continuing in his present job. ¹ They tried to find a way to restructure the job in order to accommodate his disease but could find no practical way of doing this. Chiari was fired on April 24, 1987.

In October 1988, Chiari filed suit against the City of League City in Texas court, ² alleging that the City had violated the Texas Bill of Rights; a common law duty of good faith and fair dealing; the Texas Commission on Human Rights Act, see TEX.REV.CIV.STAT.ANN. art. 5221k, Sec. 5.01 (Vernon Supp.1990); and section 504 of the Rehabilitation Act of 1973, see 29 U.S.C.A. Sec. 794 (West 1985 & Supp.1990). One month later, the City removed the case to federal court. See 28 U.S.C.A. Sec. 1441(b) (West 1973). In November 1989, the district court granted the City's motion for summary judgment and dismissed Chiari's state and federal claims. Chiari did not appeal the district court's decision to dismiss his common law and Texas Bill of Rights theories. See Fed.R.App.P. 28(a); Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir.1988). He does, however, continue to seek recovery under the state and federal statutes.

II. JURISDICTION

Chiari's original petition asserted that the City had violated the Commission on Human Rights Act by discriminating against him because of both his disability and his age. See Plaintiff's Original Petition, Record at 100, 106 (citing TEX.REV.CIV.STAT.ANN. art. 5221k). The age discrimination claim was submerged by the handicap discrimination claims, however, and never resurfaced in any of Chiari's subsequent motions. Consequently, when the district judge categorically dismissed Chiari's state law claims, he neglected to mention Chiari's age discrimination claim. See District Court Order at 4, Record at 3, 6.

Therefore, before addressing the merits of Chiari's appeal, we must determine whether the district court judgment was an appealable final judgment. See 28 U.S.C.A. Sec. 1291 (West Supp.1990). Neither party has addressed this issue, but because we are a court of limited jurisdiction, we must raise it sua sponte. See Morales v. Pan Am. Life Ins. Co., 914 F.2d 83, 85 (5th Cir.1990).

"A final determination as to one of several legal theories is not an appealable final judgment." In re Bassak, 705 F.2d 234, 237 (7th Cir.1983). See Schexnaydre v. Travelers Ins. Co., 527 F.2d 855, 856 (5th Cir.1976) (refusing to accept an appeal because the district court had dismissed only one of the plaintiff's two legal theories). However, if a party abandons one of its claims, a judgment that disposes of the remaining theories is "final," as required by section 1291, if it is apparent that the district judge intended that the judgment dispose of all the claims before him. See Vaughn v. Mobil Oil Exploration & Producing Southeast, Inc., 891 F.2d 1195, 1197-98 (5th Cir.1990). In this case, Chiari failed to urge his age discrimination claim before the district court; therefore, "the judgment of the district court did in fact dispose of all the live issues before it," see id. at 1198, and we have jurisdiction over his appeal.

III. STANDARD OF REVIEW

In reviewing the district court's decision to grant summary judgment, we apply the same standard used by the trial court. See Fed.R.Civ.P. 56(c); Weyant v. Acceptance Ins. Co., 917 F.2d 209, 212 (5th Cir.1990). The test is identical to that used for a directed verdict: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Thus, for us to overturn the judgment in favor of the City, Chiari must demonstrate more than a factual dispute; he must show that there is a "genuine issue of material fact." See id. at 247-48, 106 S.Ct. at 2510 (emphasis in original).

IV. REHABILITATION ACT OF 1973

A. The Statute

Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against otherwise qualified handicapped individuals in programs and activities that receive federal financial assistance. See 29 U.S.C.A. Sec. 794(a) (West Supp.1990). ³ Its purpose is to assure that handicapped individuals receive the same treatment as those without disabilities. See Traynor v. Turnage, 485 U.S. 535, 548, 108 S.Ct. 1372, 1382, 99 L.Ed.2d 618 (1988). To qualify for relief under this statute, Chiari must prove that:

1. Parkinson's disease is a handicap, as that term is defined in section seven of the Act, 29 U.S.C.A. Sec. 706(8)(A) (West Supp.1990);

2. he is "otherwise qualified" to be a construction inspector;

3. he worked for a "program or activity" which received federal financial assistance; and

4. he was fired from his job solely because of his handicap.

See id. The City admits that Parkinson's disease is a handicap, but it argues that Chiari is not "otherwise qualified" to be a construction inspector and that, even if he is, the department for which he worked never received federal funding.

B. Was Chiari "Otherwise Qualified" to be a Construction Inspector?

To determine whether Chiari was "otherwise qualified" to be a construction inspector, we must conduct a two-part inquiry. First, we must determine whether Chiari could perform the "essential functions" of his job. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n. 17, 107 S.Ct. 1123, 1131 n. 17, 94 L.Ed.2d 307 (1987) (citing 45 C.F.R. Sec. 84.3(k) (1985)). The City would not be permitted to fire him if the tasks that he could not perform bore only a marginal relationship to his job. See 45 C.F.R. Sec. 84 appendix A (1989). ⁴ Second, if we determine that Chiari is not able to perform the essential functions of the job, we must decide whether any "reasonable accommodation" by the City would enable Chiari to perform those functions. See Arline, 480 U.S. at 287 n....