Jacques v. Clean-Up Group, Inc.

• Decision Date: 03 April 1996
• Docket Number: CLEAN-UP,No. 95-2209,95-2209
• Parties: , 45 Fed. R. Evid. Serv. 780, 5 A.D. Cases 1594, 18 A.D.D. 32, 8 NDLR P 326 Richard JACQUES, Plaintiff-Appellant, v.GROUP, INC., Defendant-Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 506

96 F.3d 506

65 USLW 2272, 45 Fed. R. Evid. Serv. 780,

5 A.D. Cases 1594,

18 A.D.D. 32, 8 NDLR P 326

Richard JACQUES, Plaintiff-Appellant, v. CLEAN-UP GROUP, INC., Defendant-Appellee.

No. 95-2209.

United States Court of Appeals,

First Circuit.

Heard April 3, 1996.

Decided Sept. 19, 1996.

Eric M. Mehnert, with whom Hawkes & Mehnert, was on brief, Augusta, ME, for appellant.

John S. Bobrowiecki, Jr., with whom Farris, Susi, Heselton & Ladd, P.A., was on brief, Gardiner, ME, for appellee.

Before TORRUELLA, Chief Judge, CYR and BOUDIN, Circuit Judges.

TORRUELLA, Chief Judge.

Appellant Richard Jacques ("Jacques"), a person with epilepsy, brought suit against Appellee Clean-Up Group, Inc. ("the Group") seeking damages under the Americans with Disabilities Act ("the ADA" or "the Act"), 42 U.S.C. § 12101 et seq. The jury returned a verdict in favor the Group and, subsequently, the district court denied Jacques' motion for judgment as a matter of law pursuant to Federal Rules of Civil Procedure 50 and upheld the jury verdict. Before us is Jacques' appeal of the decision and judgment below. Jacques also appeals from an evidentiary ruling. We affirm.

I. BACKGROUND

Jacques argues that there is insufficient evidence to support the jury verdict and that the district court therefore should have granted his motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(a) & (b). We review the court's denial of the Rule 50 motion de novo, examining the evidence in the light most favorable to the nonmovant, the Group. Golden Rule Ins. Co. v. Atallah, 45 F.3d 512, 516 (1st Cir.1995). "[W]e may not consider the credibility of witnesses, resolve conflicts in testimony, or evaluate the weight of the evidence." Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.1987). Reversal of the denial of the motion is warranted "only if the facts and inferences 'point so strongly and overwhelmingly in favor of the movant' that a reasonable jury could not have reached a verdict against that party." Atallah, 45 F.3d at 516 (quoting Acevedo-Daz v. Aponte, 1 F.3d 62, 66 (1st Cir.1993)). Thus, we present the facts in the light most favorable to the Group as the jury could have found them.

Clean-Up Group, Inc., a Maine corporation, is a small cleaning company, located approximately two-and-a-half miles from Jacques' residence. Jacques was employed by the Group as an all-purpose cleaning person between November 6, 1993, and February 1994. Because of his epilepsy, Jacques is not permitted to operate a motor vehicle in Maine. Throughout his employment, the Group had regularly assigned Jacques to more than forty hours per week at various job sites and considered him to be a conscientious and good worker. Jacques reported to his various assignments by walking, riding his bicycle, or riding in one of the Group's vans, which were routinely used when employees, working as a crew, and equipment had to be transported to a job site. Employees riding in vans were driven to and from the Group's office. The Group had never provided transportation to its employees under other circumstances. On February 19, 1994, Jacques was laid off from the Group when the crew to which Jacques was assigned was dissolved. A few days later, on February 24, the Group offered Jacques a full-time assignment cleaning the Kennebec Ice Arena (the "Arena"), which was about three miles from Jacques' home. Of those laid off, Jacques was the only one of his crew to be offered another assignment. Although he had never requested a ride to an assignment in the past, because he could not drive and the Arena was approximately three miles from his home, Jacques asked the Group's manager, Chris Buck ("Buck"), whether he would be catching a ride from the Group's headquarters or whether a company van would pick him up on its way to the job site. Buck replied that Jacques would have to arrange for his own transportation to the Arena. Jacques' response was that he would inquire into bus routes and schedules and would telephone Buck right back. Upon gathering the relevant information, Jacques telephoned Buck and informed him that he could take a bus and arrive at the Arena sometime between 10:00 a.m. and 10:30 a.m. In reply, Buck informed him that starting at that time was unacceptable. The Arena assignment required a start time of 8:00 a.m. as certain public areas had to be completed prior to, at least, 9:30 a.m. Buck told Jacques that he would find someone else for the Arena assignment. Another employee, who the evidence shows did not have a disability, was subsequently assigned to that assignment.

Jacques was not dismissed from the Group for his failure to perform the Arena assignment and continued to be assigned to work seven hours a week on Sundays at the Carlton Woolen Mills (the "Mills"), an assignment which generally was considered one of the dirtiest. Jacques had previously worked at the Mills. The record suggests that it was often an assignment Group employees did in order to earn overtime. The Group provided Jacques with transportation to the Mills in one of the company vans in which two other employees also traveled. Jacques reported to the Mills assignment from February 27, 1994, through March 27, 1994, at which point Jacques discontinued reporting to that assignment. Jacques has not worked for the Group since then. Shortly after February 25, 1994, Jacques began soliciting direct employment from some of the Group's customers. In connection with his job search, Jacques sent a letter dated March 3, 1994, to one of the Group's customers, in which he made disparaging statements about the Group (the "March 3 letter").

Jacques subsequently brought this civil action under the ADA, alleging that the Group discriminated against him in regard to his right of return from layoff, rehire and job assignment by failing to find a "reasonable accommodation" for his disability. ¹ After the court denied Jacques' motion for partial summary judgment, ² the issues of intentional discrimination and punitive damages were tried to a jury on July 11, 1995. At the close of the Group's evidence, Jacques moved for judgment as a matter of law pursuant to Fed.R.Civ.P. 50, which motion was denied. On July 17, 1995, the jury returned a verdict finding that the Group did not illegally discriminate against Jacques on the basis of his disability and, consequently, did not reach the issues of compensatory and punitive damages. Appellant moved again for judgment as a matter of law pursuant to Fed.R.Civ.P. 50. After reviewing briefs from both parties, the district court issued its memorandum and decision on October 2, 1995, in which it denied Jacques' motion and entered judgment in accordance with the jury verdict.

II. APPLICABLE LAW

The ADA is a federal civil rights statute, enacted "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). "In the employment context, the ADA prohibits a 'covered entity' (defined as 'a person engaged in an industry affecting commerce who has 15 or more employees') from 'discriminat[ing] 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.' " Katz v. City Metal Co., Inc., 87 F.3d 26, 30 (1st Cir.1996) (quoting 42 U.S.C. § 12112(a)); see Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 671 (1st Cir.1995). The regulations ³ adopted under the ADA provide that it is unlawful for a covered entity to discriminate on the basis of "disability," see 42 U.S.C. § 12102(2) (defining term), against a "qualified individual with a disability," see 42 U.S.C. § 12111(8) (defining term), in regard to, inter alia, the right of return from layoff, 29 C.F.R. Ch. XIV § 1630.4(b), and job assignments, 29 C.F.R. Ch. XIV § 1630.4(d).

The ADA further provides that the term "discriminate" includes:

not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity....

42 U.S.C. § 12112(b)(5)(A). Reasonable accommodations include, inter alia, "job restructuring [and] part-time or modified work schedules." 42 U.S.C. § 12111(9); see 29 C.F.R.App. § 1630.2(o) (defining reasonable accommodation). Furthermore, in order

[t]o determine the appropriate reasonable accommodation, it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individuals with a disability in need of the accommodation.

29 C.F.R. § 1630.2(o)(3).

To establish a claim of disability discrimination under the ADA, a plaintiff must prove three things by a preponderance of the evidence:

First, that he [or she] was disabled within the meaning of the Act. Second, that with or without reasonable accommodation he [or she] was able to perform the essential functions of [the] job. And, third, that the employer discharged him [or her] in whole or in part because of his [or her] disability.

Katz, 87 F.3d at 30. A plaintiff may also indirectly prove his or her case "by using the prima facie case and burden shifting methods that originated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." Id. n. 2 (citations omitted); see Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 162-63 (5th Cir.1996) (citations omitted). Under the McDonnell Douglas analysis, a plaintiff must first prove by a preponderance of the evidence that he or she (i) has a disability within the meaning of the Act; (ii) is qualified to perform the essential functions of the job, with or without reasonable...