Kelly v. Boeing Petroleum Services, Inc.

• Decision Date: 07 August 1995
• Docket Number: No. 94-30474,94-30474
• Parties: 42 Fed. R. Evid. Serv. 1074, 4 A.D. Cases 1284, 6 NDLR P 451 Peter J. KELLY, Plaintiff-Appellant, v. BOEING PETROLEUM SERVICES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 350

61 F.3d 350

42 Fed. R. Evid. Serv. 1074, 4 A.D. Cases

1284, 6 NDLR P 451

Peter J. KELLY, Plaintiff-Appellant, v. BOEING PETROLEUM SERVICES, INC., Defendant-Appellee.

No. 94-30474.

United States Court of Appeals Fifth Circuit.

Aug. 7, 1995.

J. Arthur Smith, III, Durward D. Casteel, Baton Rouge, LA, for appellant.

Richard Anthony Goins, Janis Van Meerveld, Adams & Reese, New Orleans, LA, for appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, KING and WIENER, Circuit Judges.

WIENER, Circuit Judge:

This is an appeal from the district court's judgment, following a jury verdict adverse to Plaintiff-Appellant Peter J. Kelly, dismissing his suit against his former employer, Defendant-Appellee Boeing Petroleum Services, Inc. (BPS). Kelly's suit was for damages and injunctive relief under the Louisiana Civil Rights Act for Handicapped Persons (the Act). ¹ On appeal, Kelly complains that the district court erred reversibly in (1) excluding evidence of other discriminatory acts and utterances by Kelly's immediate supervisor, Frank Lemoine, and (2) instructing the jury that a plaintiff, like Kelly, who seeks to recover under the Act on a reasonable accommodation claim has the burden of proving by a preponderance of the evidence that the employer intentionally discriminated on the basis of a handicap when it failed to accommodate the handicapped employee. Concluding that the trial court did not commit reversible error in either instance, we affirm.

I FACTS AND PROCEEDINGS

BPS provided contract management services to the United States government for a number of Strategic Petroleum Reserve sites in Louisiana. Kelly was employed by BPS as Maintenance Manager at one of the sites (the St. James site) from 1985 until July 1992. The "physical aspects" of Kelly's employment at the St. James site, which included inspection of facilities and equipment, could involve "climbing, bending, walking, and squatting on an average of three times a week." Except for Lemoine who, as Site Manager for the company, was Kelly's immediate superior, Kelly was the highest-ranking BPS official whose principal work assignment was the St. James site. Permeating the situation at the St. James site was the overarching animosity that had developed between Lemoine and Kelly; to say that they did not get along would be an understatement. There was "constant wrangling" between the two, which began in 1985 and escalated thereafter until, in 1990 or 1991, the relationship--in Kelly's own words--got "out of control" and came to the attention of Lemoine's supervisor.

In July 1992, BPS transferred Kelly to another site (the New Orleans site) to serve as Maintenance Analyst there. He worked for BPS at the New Orleans site until April 1993, when BPS lost its management contract to another company for which Kelly continued to work without interruption.

Early in January 1993, while he was still employed by BPS, Kelly filed suit in state court against BPS alleging a reasonable accommodation claim and a discrimination claim under the Act. BPS subsequently removed the suit to the district court on the basis of diversity of citizenship. The principal thrust of the suit was BPS's response to Kelly's requests for reasonable accommodations for his back condition. Kelly's initial reasonable accommodation claim implicated the failure of BPS to (1) furnish him an ergonomic (orthopedic) chair, (2) reduce the number and frequency of the physically demanding inspections that he was required to make at the St. James site, and (3) assign him a parking space specially designated for the handicapped (designated parking space) at the New Orleans site after his transfer there. Kelly's discrimination claim alleged that BPS violated the Act by transferring him from the St. James site to the New Orleans site, which resulted in a longer commute and a perceived demotion in stature (but not in compensation), in retaliation for his requests for reasonable accommodation.

Kelly first injured his back lifting weights in 1979, while serving in the United States Marine Corps. He re-injured his back late in 1986 while playing softball for the St. James site's team and was hospitalized in connection with that injury. Based on Kelly's claim that he experienced constant pain while performing his employment duties following the 1986 aggravation of his 1979 back injury, the Veterans Administration awarded Kelly a 10% disability rating for his lumbar spine condition, for which he receives monthly compensation.

In September 1991, Kelly filed a complaint with the United States Department of Labor's Office of Federal Contract Compliance Programs (OFCCP), asserting that he was the victim of discrimination on the bases of his race (Caucasian), sex (male), handicap, veteran's status, and disabled veteran's status. He also complained of harassment by his supervisor, Lemoine.

The following February Kelly's lawyer wrote to Jerry Siemers, President of BPS seeking accommodations for Kelly's handicap. The letter requested that BPS retain Kelly's designated parking space, furnish Kelly with a physician-approved chair providing upper and lower back support, and reduce the number and frequency of inspections that Kelly was required to make as Maintenance Manager of the St. James site. The letter noted that Kelly's "significant low back and neck pain" made it difficult for him to perform the physical tasks involved in the site inspections. In addition to seeking physical accommodations, the letter requested that Siemers stop Lemoine from making "unjustified, unsupported, and petty criticisms and reprisals" against Kelly.

Subsequently, the OFCCP completed its investigation and, on April 20, 1992, informed Kelly of the results. The agency found Kelly to be "an individual with a handicap within the meaning of Section 503 of the [federal] Rehabilitation Act of 1973," but the OFCCP determined that BPS "was not aware that [Kelly] was disabled to the extent that he could not perform his duties [nor] ... perceive[d] [Kelly] as handicapped." The OFCCP also determined that Kelly had not been harassed or retaliated against and had not sustained any loss of wages.

One day after the date of OFCCP's letter to Kelly, BPS acted in response to the February letter from Kelly's lawyer seeking accommodation. BPS provided Kelly with a letter describing his job-related physical tasks and requested that an examining physician, Dr. Robert Hanchey, give his professional opinion whether Kelly's condition at the time required him to have an orthopedic chair to perform his duties. The letter did not ask Dr. Hanchey about Kelly's need for a designated parking space or the need to limit Kelly's required site inspections. In response, Dr. Hanchey advised that an ergonomic chair was not a medical necessity, so BPS did not supply one; neither did Kelly acquire one on his own in mitigation of damages.

BPS made no adjustments to Kelly's inspection schedule or job duties but did continue to provide him with a designated parking space at the St. James site. No such parking space was provided when BPS transferred Kelly to the New Orleans site. In October 1993, Dr. Hanchey stated in deposition testimony that Kelly had not been handicapped at the time BPS inquired about Kelly's need for an ergonomic chair. The physician testified that:

With what I had to work with, ... I d[id]n't think that [Kelly] [wa]s handicapped to the point that he be designated that way.... I d[id]n't find him impaired to the degree that he [could not] do his job or impaired to the degree that he would be handicapped ... I d[id]n't see his current situation requiring that description.

Although Dr. Hanchey stated that he could not remember if he had authorized a handicap license plate for Kelly, he said that "[i]f I did, shame on me." Dr. Hanchey's opinion was that Kelly had a 10% permanent partial/whole body impairment of his lumbar area and a 5% neck impairment.

Regarding basic life functions, Kelly conceded that his back injury does not substantially prevent him from caring for himself, performing manual tasks, seeing, hearing, speaking, breathing, or learning. He confirmed that he can go shopping, prepare dinner for himself, and "sometimes" walk around the block; but he stated that he cannot perform certain types of yard work or errands, play sports, drive for long periods of time without experiencing pain, or participate with his children in their sports activities. Kelly testified that he can not walk for more than 300-400 feet at a time, that he has trouble lifting objects over five pounds, reaching, climbing, bending and stooping, and that "[t]he limitations in my ability to climb have caused severe pain, especially considering the number and frequency of on-site inspections which I was ordered to do by Mr. Frank Lemoine" while employed by BPS at the St. James site.

In addition to Dr. Hanchey, Kelly's physician, a general practitioner, testified in his deposition that he "turned [Kelly's] case over to Dr. Hanchey for definitive care" and deferred to Dr. Hanchey's opinion regarding the percentage of Kelly's disability and whether Kelly needed a special chair. A physical therapist also examined Kelly during that period. Despite Kelly's many physical examinations, however, it was not until September 1993, well after he and BPS parted company, that Kelly was diagnosed by a neurologist as having multiple sclerosis. The neurologist determined that at that time Kelly needed an orthopedic chair and was entitled to a special license plate for the handicapped. Clearly, however, no one at BPS and none of the health care professionals who had examined Kelly earlier knew of his multiple sclerosis when BPS made its decisions (1) not to accommodate Kelly with the ergonomic chair, (2) not to diminish his inspection duties, (3) to transfer him to the New Orleans site, and (4) not to give him a...