Colwell v. Suffolk County Police Dept.

• Decision Date: 15 October 1998
• Docket Number: D,No. 1306,1306
• Citation: 1998 WL 718358,158 F.3d 635
• Parties: 8 A.D. Cases 1232, 13 NDLR P 232 Robert N. COLWELL, Charles R. Ellinger and Richard H. Abrams, Jr., Plaintiffs-Appellees, v. SUFFOLK COUNTY POLICE DEPARTMENT, County of Suffolk, Defendants-Appellants. ocket 97-9019.
• Court: U.S. Court of Appeals — Second Circuit

Page 635

158 F.3d 635

8 A.D. Cases 1232, 13 NDLR P 232

Robert N. COLWELL, Charles R. Ellinger and Richard H Abrams, Jr., Plaintiffs-Appellees, v. SUFFOLK COUNTY POLICE DEPARTMENT, County of Suffolk Defendants-Appellants.

No. 1306, Docket 97-9019.

United States Court of Appeals Second Circuit.

Argued March 19, 1998.

Decided Oct. 15, 1998.

Randy Berler, Assistant County Attorney, Suffolk County, Hauppauge, NY (Robert J. Cimino, Suffolk County Attorney, Theodore D. Sklar, Craig D. Pavlik, Assistant County Attorneys, on the brief) for Defendants-Appellants.

Brian J. Davis, East Meadow, NY (Daniel J. Baker, Neil H. Angel, Certilman Balin Adler & Hyman, LLP, on the brief) for Plaintiffs-Appellees.

B e f o r e: JACOBS, LEVAL, and GIBSON, ^* Circuit Judges.

JACOBS, Circuit Judge:

Three Suffolk County police officers prevailed in a jury trial on their claim they were denied promotions as a result of discrimination in violation of the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (1994) ("ADA"). The United States District Court for the Eastern District of New York (Block, J.), denied the defendants' motion for judgment as a matter of law, and the defendants appealed. We conclude the evidence at trial was insufficient to support the jury's finding that the officers were disabled within the meaning of the ADA, and therefore reverse and remand with instructions to enter judgment for the defendants.

BACKGROUND

Lieutenant Robert N. Colwell, Sergeant Richard H. Abrams, and Sergeant Charles R. Ellinger are three veteran police officers with the Suffolk County Police Department ("SCPD"). As a result of injuries, each officer was assigned to do "light duty" for a substantial part of his career. Ordinarily, a light duty assignment means that the officer is unable to perform the regular duties of a police officer, but is nonetheless able to perform some police duties subject to specific restrictions depending upon the nature of the injury. See N.Y. Gen. Mun. Law § 207-c (McKinney 1982). For Colwell, Abrams, and Ellinger, these restrictions generally relieved them from duties involving "confrontation."

In February 1993 all three officers were bypassed for promotion to higher ranks within the SCPD. After filing a charge of employment discrimination with the Equal Employment Opportunity Commission ("EEOC") and receiving right to sue letters, the officers filed a complaint against the SCPD and the County of Suffolk (collectively "the County"), alleging that they were qualified for the positions for which they were denied promotions, and that they were denied those promotions because of their disabilities, in violation of the ADA.

A. The Evidence at Trial.

At trial, the officers sought to prove that they had been on "light duty" status as a result of physical disabilities, that the Commissioner of the SCPD had instituted a policy to deny promotions to those on light duty assignment, and that as a result they had been denied promotions in rank they otherwise would have won. At trial, each officer presented evidence regarding his physical impairments, his qualifications for promotion to higher rank, and the effect of the denial of that promotion. The following evidence concerning their physical impairments is recounted in the light most favorable to the officers.

1. Lieutenant Colwell

Lieutenant Colwell suffered a series of back injuries: one in 1979 pushing a disabled vehicle from a roadway; two others pulling people from cars; and yet another when he fell down some icy steps in 1984. According to Dr. Robert Reiss, a police surgeon at the County's Medical Evaluation Unit, Colwell suffers from "a chronic low back syndrome with left leg sciatica with increasing symptomatology."

Colwell testified to the following limitations: he cannot stand in one spot or in a "military type of formal ceremonial position" for any period of time without feeling "excruciating pain"; he has difficulty sleeping and relies on over-the-counter sleep aids or vicodin; he cannot lift "very heavy objects"; he cannot take a "two or three or four hour drive" without stopping to stretch his legs; he avoids doing mechanical work on his and his daughter's cars; although he does "basic chores," he is limited in his ability to do work in "any type of constructive areas"; he cannot "go shopping in the mall and stand around while [his wife] is trying on dresses"; and he cannot ski or golf or do "anything like that." In Colwell's case, light duty status meant "no confrontation, no heavy lifting, [and] no prolonged sitting or standing."

2. Sergeant Abrams

Sergeant Abrams suffered a series of lower back injuries: one in 1981; another while trying to arrest someone in 1983; and yet another when he slipped on ice getting out of a patrol car in 1991. According to Dr. Reiss, Abrams has a "chronic degenerative disk disease of his neck and lower back" and the range of motion in Abrams' lower back is "minimally depressed." As a result of these injuries, Abrams suffers headaches, backaches, neck pain, and pain radiating down his arms and legs.

Abrams testified generally that the injury "affects [his] entire life" and "[e]verything [he does] is in a limited capacity." As to specific limitations, Abrams testified that he cannot do mechanical work on automobiles (which used to be his hobby); he cannot "bend over for long periods"; he cannot do any heavy lifting or moving of furniture; he has "trouble" doing yard work, and if he tries raking, it "bothers" his back and neck; he cannot "continuously reach up," so that "painting or plastering" is painful; he has "some difficulty" driving, and if he drives for periods of time, he has to "stop and get out and walk around and stretch out a little bit"; he cannot stand "for a long period of time" or else he "start[s] to get a pain down in [his] lower back and shooting pain down into [his] leg"; and he cannot sit in one position too long, but has to "keep getting up and down and moving around." At work, Abrams cannot sit "for long periods of time" at his desk; he has to get up and "walk around to just stretch it out." Abrams would not be able to sit in a patrol car for twelve hours without being able to move around, "cannot get in and out of a [patrol] car excessively," and cannot do "excessive driving." Finally, in responding to an emergency, Abrams would have to walk, not run, to his patrol car. Abrams was assigned to light duty for a period of time after each injury, but after the 1991 injury he never returned to full duty status. While on light duty, Abrams was restricted from engaging in confrontation, doing any heavy lifting, excessive driving, and "excessive getting in and out of" an automobile.

Abrams' neurologist, Dr. Donald Holzer, explained that "Abrams [is] capable of performing some duties of his police work, but certainly not the majority of them." When asked how "such tasks as lifting or pushing or moving objects or digging or snow shovelling, that type of thing" would be affected, Holzer responded that:

There would be significant limitations. I mean he's not totally impaired to the point where he can do nothing, and, in fact, Mr. Abrams was working at the time I saw him, although in a light duty capacity. And that was my opinion at the time, and which has remained right through my seeing him up to the present time, has been that Mr. Abrams is capable of a light duty situation, but nothing further than that.

Asked what Abrams is "able to do in terms of work," Holzer opined:

Mr. Abrams certainly is not capable of any physical confrontation.... He is capable certainly of doing sedentary work, provided he has the ability to get up, change position. He can certainly infrequently reach over his shoulder, bend, twist, he can lift objects maybe ten to twenty pounds infrequently. He can stand and walk for short periods of time, maybe half an hour to an hour at a time. He is certainly capable of working an eight hour day with limitations.

3. Sergeant Ellinger

Sergeant Ellinger suffered a cerebral hemorrhage in 1984, after which he was hospitalized for approximately 30 days, and remained at home for an additional six months. On return to work in June 1985, Ellinger was assigned to light duty status, which meant that he was to "work days to avoid stress and confrontation and to avoid extreme elements such as cold and heat."

According to Ellinger, the only remaining symptom is that he sometimes experiences a sensation in his head that feels like the onset of another cerebral hemorrhage. That sensation occurs when he experiences stress or fear, or engages in physical exertion such as shoveling snow. Ellinger uses biofeedback techniques, easing the fear by "thinking good thoughts" or picturing "clouds [with] the sun coming through."

As to specific limitations, Ellinger refrains from doing physical work such as shoveling snow or heavy lifting, or else does it "very slowly"; does summertime digging or planting in his garden slowly; refrains from physical exercise in the wintertime; and wears hats.

In December 1992, Dr. Leonard Weitzman, a member of the Police Department's medical evaluation unit, determined that Ellinger was fit for full duty as a policeman. At trial, however, Ellinger presented a letter from his doctor, Dr. Friedling, which recommended that Ellinger work the day shift, indoors only, with overtime only between eight a.m. and eight p.m., and that he avoid stress and confrontation. The doctor warns that "[a]t no time should this patient work late tours or rotating shifts." Suffolk County's Medical Review Unit concurred in this recommendation, and Ellinger elected to follow those restrictions, even after returning to full duty status.

B. The Judgment.

The jury found that the County discriminated against the officers on the basis of their disabilities in denying their promotions. The jury also awarded each officer more than $200,000 in compensatory damages. The district court...