McNely v. Ocala Star-Banner Corp.

Citation99 F.3d 1068
Decision Date20 November 1996
Docket NumberSTAR-BANNER,No. 95-3179,95-3179
Parties, 6 A.D. Cases 78, 9 NDLR P 46, 10 Fla. L. Weekly Fed. C 542 Bernard F. McNELY, Plaintiff-Appellant, v. OCALACORPORATION, a Florida Corporation; The New York Times Company, a foreign corporation, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Kevin H. O'Neill, E.C. Langford, Langford Hill & Trybus, P.A., Tampa, FL, Kevin H. O'Neill, Haas, Arend, Ramey & Beik, P.A., Tampa, FL, for Plaintiff-Appellant.

Theresa M. Gallion, Carlos J. Burruezo, Jackson Lewis Schnitzler & Krupman, Orlando, FL, Gregory I. Rasin, Jackson Lewis Schnitzler & Krupman, New York City, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Florida.

Before BIRCH and CARNES, Circuit Judges, and MICHAEL *, Senior District Judge.

CARNES, Circuit Judge:

In this Americans with Disabilities Act ("ADA") case, Bernard McNely appeals from a judgment entered pursuant to a jury verdict in favor of the defendants, Ocala Star-Banner Corporation and the New York Times Company. This appeal presents the question of whether a plaintiff suing under the ADA can recover for discrimination without showing that his disability was the sole cause for the adverse employment action taken against him. We hold that he can, and that the district court erred by submitting to the jury a special interrogatory verdict form that allowed recovery for McNely's ADA discrimination claim only if the jury found that he was terminated "solely because of his alleged disability." Similarly, we hold that it was error for the district court to require the jury to find that McNely was terminated "solely because he engaged in a statutorily protected expression" in order for him to recover on his ADA retaliation claim. Finally, in view of the pleadings and evidence in this case, we hold that the district court erred by requiring the jury to find that McNely was "terminated" in violation of the ADA in order for McNely to recover on either his discrimination claim or his retaliation claim.


The Ocala Star-Banner Corporation ("Star-Banner"), a subsidiary of the New York Times Company, publishes a daily newspaper entitled the "Ocala Star-Banner." McNely began his employment with Star-Banner in June 1980. Initially, McNely worked as a "pressman." Nine years later, in August 1989, McNely was promoted to Night Supervisor of the Camera Department.

In April 1992, McNely underwent brain surgery as a result of an arteriovenous malformation of the brain. That surgery was generally successful, except that McNely subsequently began experiencing vision problems. It was later determined that the surgery had caused McNely to develop a form of "left homonymous hemianopsia." In simpler terms, the surgery damaged part of McNely's brain, and as a result, he cannot clearly see the left half of visual images.

McNely's vision problems made it difficult, if not impossible, to perform "close color registration," a process involving the overlaying and lining up of color negatives to produce a color image, which is then printed onto newsprint as a color picture. Close color registration is but one of the duties of a supervisor in the camera department and, for a time, Star-Banner arranged for someone to assist McNely with his performance of that task. That assistance came to an end, however, when Star-Banner came to believe that McNely's eye trouble could be corrected with new eyeglasses. At some point thereafter, McNely filed a grievance about his working conditions with the Equal Employment Opportunity Commission ("EEOC").

For a time, McNely managed his duties without the assistance that Star-Banner had withdrawn. In August 1993, however, McNely's vision difficulties--or his perception of them--led to a 40-minute shutdown of the Star-Banner printing presses. McNely insisted that the shutdown was caused by his inability to perform close color registration without assistance, but Star-Banner management contended it was caused by McNely's willful refusal to perform his job. Subsequently, McNely was relieved of his supervisory duties and was reassigned to the building maintenance department. When McNely objected to that, he was reassigned to do clerical work. Later, Star-Banner reassigned McNely to the shipping and loading department, which required him to perform tasks that he contends were "difficult or impossible for a man of Plaintiff's medical and physical condition to perform."

On January 18, 1994, McNely met with Charles Stout, the highest-ranking executive at Star-Banner, to discuss McNely's overall work situation, including his work assignments. That meeting did not go well. McNely ended up losing his temper and calling Stout an "arrogant son-of-a-bitch." Understandably, that conduct ended the meeting, and McNely was immediately suspended without pay. Star-Banner determined that McNely's suspension would last for approximately six months, and that his employment would be terminated on July 28, 1994. 1 By letter, Stout informed McNely that his suspension and termination had "resulted from your repeated belligerent, abusive and insubordinate conduct towards me and others at the Ocala Star-Banner."

During his suspension, McNely received a "right to sue" notice from the EEOC. Thereafter, McNely filed this lawsuit alleging violations of the ADA. In Counts I and III, McNely alleged that Star-Banner and the New York Times had wrongfully discriminated against him because of his disability. In Counts II and IV, McNely alleged that the defendants had retaliated against him for engaging in protected expression, specifically for filing his EEOC grievance.

Following five days of trial, McNely's claims were submitted to the jury with a special interrogatory verdict form. After more than seven hours of deliberation, the jury found: (1) that McNely is an "individual with a disability" within the meaning of the ADA; (2) that McNely had proven he was able to perform the essential functions of the position of Camera Room Night Supervisor; (3) that the defendants had failed to prove that they had reasonably accommodated McNely; and (4) that allowing McNely to work as a Camera Room Night Supervisor would not have imposed an undue hardship on the defendants. 2 Despite those findings, the jury's ultimate verdict was for the defendants, because the jury answered "No" to questions five and six on the verdict form, as follows:

5. Do you find, by a preponderance of the evidence, that Plaintiff has proved that he was terminated solely because of his alleged disability?

Yes No X

---------- ----------

6. Do you find, by a preponderance of the evidence, that Plaintiff has proved that he was terminated solely because he engaged in a statutorily protected expression?

Yes No X

---------- ----------

After the district court denied his motion for a new trial, McNely filed this appeal. McNely's primary contentions on appeal are that the special interrogatory verdict form was fatally flawed in two ways. First, McNely contends that inclusion of the term "solely" in questions five and six erroneously prevented the jury from returning a verdict for the plaintiff if the jury found that impermissible discrimination or retaliation had a determinative effect on the defendants' decisionmaking process, but was not the sole reason for the employment decision. Second, McNely contends that questions five and six erroneously narrowed the jury's inquiry to whether McNely was "terminated" because of discrimination or retaliation, even though the ADA authorizes recovery for adverse employment actions that fall short of termination and even though McNely had put on evidence of such actions in this case. 3


We apply the same deferential standard of review to a special interrogatory verdict form that we apply to a district court's jury instructions. Cf. Bank South Leasing, Inc. v. Williams, 778 F.2d 704, 706 (11th Cir.1985) (holding that district court erred by failing to give jury instructions consistent with special interrogatory verdict). So long as the jury instructions and verdict form "accurately reflect the law, the trial judge is given wide discretion as to the style and wording employed." U.S. v. Starke, 62 F.3d 1374, 1380 (11th Cir.1995) (citing McElroy v. Firestone Tire & Rubber Co., 894 F.2d 1504, 1509 (11th Cir.1990)). On appeal, we examine whether the jury instructions and verdict form, considered as a whole, were sufficient "so that the jurors understood the issues and were not misled." Id. (quoting Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1569 (11th Cir.1991)). As for the subsidiary issue of whether the jury instructions and verdict form "accurately reflect the law," Starke, 62 F.3d at 1380, we review that de novo, as with any other question of law. E.g., Swint v. City of Wadley, Ala., 51 F.3d 988, 994 (11th Cir.1995).


The defendants contend that McNely waived his objections to the verdict form because he failed to state his objections to the verdict form after it was read to the jury. We disagree. McNely's counsel raised his objections to the verdict form specifically and directly on two separate occasions. Before the case was submitted to the jury, the court held a jury charge conference. At that conference, McNely's counsel objected to the verdict form on the same bases that he raises on appeal: (1) the inclusion of the term "solely" in questions five and six, and (2) the limiting use of the word "termination" in the same questions. McNely's counsel made extensive arguments in support of his request that the verdict form be modified accordingly. The district court stated that it was "not inclined to change" the form, but would consider the matter overnight. The charge conference was then continued to the next day.

When the charge conference was reconvened...

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