Jacques v. Dimarzio, Inc.

• Decision Date: 05 October 2004
• Docket Number: No. 03-9080.,No. 03-9109.,03-9080.,03-9109.
• Citation: 386 F.3d 192
• Parties: Audrey JACQUES, Plaintiff-Appellee-Cross-Appellant, v. DIMARZIO, INC., Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

386 F.3d 192

Audrey JACQUES, Plaintiff-Appellee-Cross-Appellant, v. DIMARZIO, INC., Defendant-Appellant-Cross-Appellee.

No. 03-9080.

No. 03-9109.

United States Court of Appeals, Second Circuit.

Argued June 11, 2004.

Decided October 5, 2004.

As Amended October 8, 2004.

Appeal from the United States District Court for the Eastern District of New York, Frederic Block, J.

COPYRIGHT MATERIAL OMITTED

Gary Ettelman, Ettelman & Hochheiser, Garden City, NY, for Defendant-Appellant-Cross-Appellee.

Tatiana Ingman and Grace Won, Legal Interns, (Donna Lee, on the brief), BLS Legal Services Corporation, Brooklyn, NY, for Plaintiff-Appellee-Cross-Appellant.

Before: WALKER, Chief Judge, JACOBS, Circuit Judge, STANCEU, Judge.^*

JACOBS, Circuit Judge.

Defendant DiMarzio, Inc. ("DiMarzio") appeals from judgment entered after a jury trial in the United States District Court for the Eastern District of New York (Block, J.) awarding $190,000 in damages to Plaintiff Audrey Jacques, a former DiMarzio employee who alleged that DiMarzio fired her because she was "regarded as" disabled, in violation of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12102(2)(C). Jacques cross-appeals from a ruling that she failed to make out prima facie claims under 42 U.S.C. §§ 12102(2)(A) (discrimination against the disabled) and (B) (discrimination against those with a "record" of a disability).

We hold that the district court erred when it instructed the jury that an impairment causing a "perceived" demeanor of (inter alia) "hostility" and "social withdrawal" qualifies under the ADA as a "perceived" disability substantially limiting Jacques's ability to "interact with others." We affirm the district court's ruling that Jacques failed to make out prima facie claims under either 42 U.S.C. §§ 12102(2)(A) or (B).

Background

I

DiMarzio is an electric-guitar manufacturer with factory and assembly operations in Staten Island, New York. In 1989, DiMarzio hired Jacques to work in its factory as a packager and assembler of guitar components. Before she was terminated in 1996, DiMarzio received average to above-average employee evaluations. Jacques v. DiMarzio, Inc., 200 F.Supp.2d 151, 154 (E.D.N.Y.2002).

When an appeal comes to us after a jury verdict, we view the facts of the case in the light most favorable to the prevailing party. Promisel v. First Am. Artificial Flowers, Inc., 943 F.2d 251, 253 (2d Cir.1991).

Jacques has had psychiatric problems since she began to suffer "severe and major depressions" as a teenager and has been continually treated for these problems on an inpatient and outpatient basis for over forty years. Jacques, 200 F.Supp.2d at 154. In December 1991, while in a period of depression, Jacques refused surgical treatment for uterine hemorrhaging. Id. As a result, Jacques's work attendance was erratic for several months. Id. In 1992, Jacques took a two-week leave of absence to recover from her infection; this was when she first informed the plant manager, Michael Altilio, that she "was suffering from severe depression and a depression disorder" and that she was taking Prozac. Altilio was "very understanding" and indicated that Prozac was "a very good medication." With Jacques's permission, Altilio informed Jacques's immediate supervisor Betty Capotosto, who was considerably less sympathetic; Capotosto told Jacques that, while on leave, she should "get crayons and a coloring book and make pot holders."

In 1993, Jacques was diagnosed by her treating psychiatrist as having a "chronic" form of "Bi-polar II Disorder."² Her complaint describes two major depressive episodes after 1992: one following a minor car accident in 1994 and another when her mother became "seriously ill." Jacques indicated that her relations with her coworkers deteriorated after her two-week leave in 1992, though the majority of the instances she offers to support this deterioration are from 1996.³

Beginning in early 1996, Jacques complained that factory safety had worsened because of overcrowding and poor ventilation. That March, she sought emergency room treatment for "severe headaches, blurred vision, nasal congestion, and nausea" which she attributed to factory conditions. When she reported this theory to Altilio, he told her she was "giddy" and walked away. Jacques attempted repeatedly and unsuccessfully to get DiMarzio to pay for the emergency room treatment.

From 1990 through 1996, Jacques also repeatedly expressed safety concerns about DiMarzio's practice of allowing factory employees to supplement their income by taking piecework "home" (a practice known at the company as "homework"). She specifically cited "the dangers of solder and flux, glue, fumes, inadequate ventilation, and the absence of safety glasses" when work was performed at home. Jacques, 200 F.Supp.2d at 154. Nevertheless, between April and June 1996, Jacques repeatedly asked her superiors for homework to supplement her own income. Capotosto and Altilio always refused, citing Jacques's report of an adverse reaction to solder fumes in March 1996. Capotosto and Altilio also told Jacques that they did not trust her to do the work safely at home without supervision. In August 1996, Jacques again confronted Altilio about the dangers of homework and argued that the practice violated New York safety laws. Altilio rebuffed her concerns.

By August 1996, Jacques's working relationship with Altilio and Capotosto had become poisonous, as all three attested. According to Altilio, Capotosto "was no longer really able to effectively do her job because" she felt obliged "to tiptoe around [Jacques] and not say something wrong to get [Jacques] upset and cause a whole scene." Altilio, concluding that Jacques's presence at the DiMarzio factory had become counterproductive, nevertheless resolved to "keep" Jacques and "maintain [her] income" by giving her a job as an "outside subcontractor" working off the plant's premises. To this end, on August 30, 1996, Altilio informed Jacques that, because of her "ongoing conflicts with other workers" he wanted her to perform her guitar assembly work exclusively at home. Jacques, 200 F.Supp.2d at 155. Altilio testified that Jacques expressed interest in this proposal, but Jacques testified that her perception of the offer was that "if I didn't take this proposal, I wouldn't have a job." On September 3, 1996, Altilio asked Jacques if she would accept his proposal, subject to the conditions that there would be "no more conflicts" with coworkers and that she "could not hold [DiMarzio] liable if [she] was injured at home." Jacques indicated that she first wanted to consult with a lawyer.

On September 5, 1996, before Altilio or Jacques could agree on the terms of an independent contractor arrangement, Altilio indicated that one of Jacques's coworkers, Leandra Mangin, had lodged a complaint against her for "harassment": Mangin had received a phone call at work from one of her children, and when Jacques answered the phone she allegedly announced that the call was for "that b* * * *" — a comment that the child overheard. According to Altilio, this was the latest in a series of harassing comments that Jacques had made to Mangin. Jacques acknowledged that she frequently teased and ridiculed Mangin but insists that this behavior was "girl-talk and not harassment." Following the harassment complaint, Jacques called in sick for the next two workdays because she was "too upset to leave [her] house and expose [herself] to the anxieties of the workplace."

Over the next few days, Jacques and Altilio discussed her situation (in person and by phone) several times; on one occasion Altilio said Jacques "should see a psychiatrist." Finally, on September 11, 1996, Altilio told Jacques that she could return to work, but should "leave if [she] felt upset and [should] avoid ... Mangin." Altilio also said that he would continue to investigate the possibility of allowing her to work at home. Later that day, he called Jacques back and informed her that he had spoken with Larry DiMarzio, the owner of the company, who had rejected the idea of allowing Jacques to work at home and instead instructed Altilio to terminate Jacques based on her "numerous conflicts with supervisors and ... coworkers."

II

On October 23, 1996, Jacques filed a pro se complaint against DiMarzio with the National Labor Relations Board ("NLRB"), alleging that she had been discharged in violation of the National Labor Relations Act ("NLRA"). Jacques, 200 F.Supp.2d at 155. In response, DiMarzio provided the NLRB with a written statement from Altilio and Capotosto that described Jacques as a "technically competent and productive worker" whose "only technical shortcoming" was a need for "explicit, detailed directions on how to continue her work" whenever anything "unexpected" happened.

This statement went on to describe Jacques as a "problem employee": she was prone to "[c]onfrontations with co-workers, ... intolerance of [ethnic minorities in the] production department,⁴ [and][e]motional problems in dealing with supervisory staff"; she was the "most confrontational person we have ever employed"; her supervisors and coworkers felt obliged to treat her with "kid gloves." The statement further explained that Mr. DiMarzio, in firing Jacques, "saw no reason why his supervisory staff should be forced to make such an extreme effort to tiptoe around and cater to someone who was emotionally unstable." Summarized supporting statements by eight of Jacques plant coworkers (in addition to Altilio and Capotosto) suggested — at the very least — that her coworkers and supervisors found Jacques to be intimidating and mercurial.

The NLRB found no violation of the NLRA and dismissed the complaint. Jacques, 200 F.Supp.2d at 155. After failing to win relief in a claim before the New York State Division of Human Rights, Jacques sought and received a right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC")...