Katz v. City Metal Co., Inc.

• Decision Date: 06 March 1996
• Docket Number: No. 95-2234,95-2234
• Citation: 87 F.3d 26
• Parties: 5 A.D. Cases 1120, 8 NDLR P 169 Alexander KATZ, Plaintiff, Appellant, v. CITY METAL CO., INC., Milton Wilcox, and Peter Bruno, Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 26

87 F.3d 26

5 A.D. Cases 1120, 8 NDLR P 169

Alexander KATZ, Plaintiff, Appellant, v. CITY METAL CO., INC., Milton Wilcox, and Peter Bruno,

Defendants, Appellees.

No. 95-2234.

United States Court of Appeals, First Circuit.

Heard March 6, 1996.

Decided July 2, 1996.

Robert E. Savage, Warwick, RI, for appellant.

Michael P. DeFanti, Providence, RI, with whom Hinckley, Allen & Snyder was on brief, for appellees.

Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

BOWNES, Senior Circuit Judge.

Plaintiff/Appellant Alexander Katz ("Katz") sued his former employer, Defendant/Appellee City Metal Co. ("City Metal"), its President Milton Wilcox ("Wilcox") and its

                Chief Executive Officer Peter Bruno ("Bruno"), under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.  (1995) ("ADA"), and the Rhode Island Fair Employment Practices Act, R.I. Gen. Laws §§ 28-5-1 et seq.  (1995), claiming that City Metal unlawfully discriminated against him by discharging him because of a disability.   See 42 U.S.C. § 12112(a);  R.I. Gen. Laws §§ 28-5-6, 5-7.   At the close of Katz's case, the district court granted City Metal's motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(a)(1), finding that Katz had not presented evidence sufficient to show that he had a "disability" as defined under the ADA. 1  Katz appeals.   We reverse and remand for a new trial
                

I. BACKGROUND

City Metal is a corporation that buys and sells scrap metal, employing more than fifteen employees. Katz was hired by City Metal on July 1, 1991. On September 27, 1992, he suffered a heart attack. Five weeks later, Wilcox telephoned Katz and told him his employment was terminated. This lawsuit followed, and ended at the close of Katz's case in a judgment as a matter of law for City Metal.

"We review the grant of a Rule 50(a) motion for judgment as a matter of law de novo, under the same standards as the district court." Andrade v. Jamestown Housing Auth., 82 F.3d 1179, 1186 (1st Cir.1996). Accordingly, we "examine the evidence and all fair inferences in the light most favorable to the plaintiff [and] may not consider the credibility of witnesses, resolve conflicts in testimony, or evaluate the weight of the evidence." Richmond Steel, Inc. v. Puerto Rican American Ins. Co., 954 F.2d 19, 22 (1st Cir.1992) (internal quotation marks and citations omitted). To warrant submission of an issue to the jury, the plaintiff must present "more than a mere scintilla" of evidence and may not rely on conjecture or speculation. Id. "[T]he evidence offered must make the existence of the fact to be inferred more probable than its nonexistence." Resare v. Raytheon Co., 981 F.2d 32, 34 (1st Cir.1992) (internal quotation marks and citations omitted). To affirm the withdrawal of any claim from the jury, we must find that, as a matter of law, the record would permit a reasonable jury to reach only one conclusion as to that issue. Richmond Steel, 954 F.2d at 22.

With this standard in mind we rehearse the evidence adduced by Katz.

The Trial Testimony

Katz testified as follows. City Metal hired him in July of 1991 as a scrap metal salesman because of his prior experience in the field. He was assigned various territories which he serviced by traveling in a company car. At the end of 1991, Bruno asked Katz to take an inside position in customer relations as a liaison between the company and its customers. Katz accepted and continued in that position until July of 1992. During that time Katz also helped to train Wilcox, who was new to the business, and trained other salesmen. In July of 1992, Katz, at his request, returned to being a salesman. Up until the time he was discharged, Katz did not receive any negative reports or comments about the quality of his performance and was not informed that his job was in jeopardy.

On Sunday, September 27, 1992, while Katz was in Cleveland visiting his family, he had a heart attack and was taken by ambulance to the Cleveland Clinic. During his seven-day stay there, Katz underwent two angioplasty procedures and some testing, and was kept in cardiac intensive care. He was discharged from the hospital on Saturday, October 3, 1992, and telephoned Wilcox on the following Monday to explain the situation. Wilcox then sent Katz Rhode Island temporary disability application forms. Katz submitted them and received disability payments for six months, the maximum payable under Rhode Island law.

After his discharge from the hospital, Katz had great difficulty breathing, even while sitting down, and was extremely limited in his ability to walk. After a few steps, he became short of breath and experienced chest pains, broke into sweats and became nauseous. It was necessary that he keep stress to a minimum.

Katz went to the company office on the Thursday afternoon following his hospital discharge for the purpose of discussing his return to work. Due to the effects of his heart attack, Katz was unable to walk to the company's office on the second floor. Wilcox therefore came down to Katz's car, where the two had a conversation. Katz asked about his customers and told Wilcox he wanted to return to work as soon as possible, even if it was initially in a limited capacity. Wilcox told him not to worry about his customers, and that the main thing was for Katz to get well.

Katz stayed in Rhode Island for about a week after his conversation with Wilcox. The cold weather, however, restricted his breathing which, in turn, made walking even more difficult. Since Wilcox had told him that his first objective should be to get well, Katz decided to recuperate at his family's apartment in Miami, Florida.

On Friday, the last working day of October, Wilcox telephoned Katz and told him that he was discharged. Katz called Wilcox the following Monday and offered to return to work on a part-time basis with a reduction in salary and to accept whatever accommodations the company would make.

At the time of the trial in October of 1995, Katz still had some trouble breathing and walking. He was working, having obtained a job on February 17, 1995 (after a lengthy search beginning in January of 1993), selling bonds for the State of Israel.

Katz also called Wilcox as a witness. He testified that Katz's brother called to tell him about the heart attack two days after it occurred, and that he never questioned that Katz had a heart attack. He testified that Katz looked tired when he met him in the parking lot, and that he told Katz that his main objective should be to recover. Wilcox testified, however, that he had decided to fire Katz on September 4, 1992 (prior to the heart attack), for failing to submit a weekly travel schedule as required, and that he had merely waited until the end of October to so inform Katz. Katz also called Bruno as a witness, who testified that he was instrumental in hiring Katz, but was not familiar with the circumstances of his termination.

The Judgment As A Matter Of Law

After Katz, Wilcox, and Bruno had testified, Katz's attorney informed the court that he had one more witness--Katz's treating physician in Rhode Island--whom he had subpoenaed for the following day. The court recessed until the following day, when Katz's attorney informed the court that the doctor had declined to appear in court until Friday, three days hence, and requested that he be permitted to present the doctor's testimony in rebuttal after the defendants' case. The court stated that it would deal with the issue when it arose and was not sure the doctor's testimony was "vital to the essence of your claim."

When asked to state its position on the matter, City Metal stated that it had received Katz's medical records and that it did not dispute that Katz suffered a heart attack or that it perceived that he suffered a heart attack, but that it did contest that Katz was actually disabled within the meaning of the ADA. At that point, the court stated that Katz could not prove that he was disabled without the testimony of his doctor, and Katz again requested either a continuance or that the doctor be permitted to testify in rebuttal. The court denied those requests and Katz rested.

City Metal then moved for judgment as a matter of law, arguing that in order to prove a disability under the ADA and the Rhode Island Fair Employment Practices Act, Katz was required to show that the heart attack "severely restricted a basic life activity on a permanent and continuing basis," and that he had failed to do so because there had been no medical testimony that Katz was permanently impaired in a major life activity. In response, Katz argued that his testimony established that the heart attack resulted in The district court ruled as follows:

                hospitalization, and impaired his ability to breathe, walk, perform manual tasks, care for himself and work, and that the evidence therefore met each of the three alternative definitions of the term "disability" under the ADA--that he had a physical impairment that substantially limited one or more major life activities, that he had a record of such an impairment, and that City Metal regarded him as having such an impairment.   See 42 U.S.C. § 12102(2)
                

The question is whether it produced a permanent disability that he can't perform his work. It's obvious he's a salesman, and he's still selling.... In order for the Plaintiff to recover in this case, the Plaintiff must make a showing that he has some type of permanent impairment, physical impairment in one or more of life's major activities. There's been no showing of that in this case.

The only evidence is that he has a blocked artery that was opened up by balloon angioplasty. That does not show that he has a permanent disability or heart disease. I know. I've been there. I had a heart attack.

People recover from heart attacks and go on with life's functions. I know, I've done it, and I had an artery that was completely blocked and not reopened....