Powers v. MJB Acquisition Corp.

• Decision Date: 08 July 1999
• Docket Number: PLAINTIFFS-APPELLEES,No. 98-8053,DEFENDANT-APPELLANT,98-8053
• Citation: 184 F.3d 1147
• Parties: (10th Cir. 1999) GARY MICHAEL POWERS AND KIMBERLY ANN POWERS,, v. MJB ACQUISITION CORPORATION, A WYOMING CORPORATION, D/B/A WYOMING TECHNICAL INSTITUTE,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1147

184 F.3d 1147 (10th Cir. 1999)

GARY MICHAEL POWERS AND KIMBERLY ANN POWERS, PLAINTIFFS-APPELLEES, v. MJB ACQUISITION CORPORATION, A WYOMING CORPORATION, D/B/A WYOMING TECHNICAL INSTITUTE, DEFENDANT-APPELLANT.

No. 98-8053

U.S. Court of Appeals, Tenth Circuit

July 08, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING (D.C. No. 97-CV-139)

[Copyrighted Material Omitted] Diane Vaksdal Smith (David P. Hersh and Rosemary Orsini, with her on the briefs), Burg Simpson Eldredge Hersh & Houliston, P.C., Englewood, Colorado, for Defendant-Appellant.

Robert T. Moxley (Richard Gage with him on the brief), Gage and Moxley, Cheyenne, Wyoming; and John E. Stanfield (Clinton D. Summerfield with him on the brief), Stanfield & Summerfield Law Office, Laramie, Wyoming, for Plaintiffs-Appellees.

Before Porfilio, Magill,^* and Lucero, Circuit Judges.

Porfilio, Circuit Judge.

A Wyoming federal jury returned a verdict for plaintiff, Gary Michael Powers, on his claims of disability discrimination under the American Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973; negligence; and breach of good faith. In addition to the jury's assessment of damages, the district court awarded attorney fees. Defendant, MJB Acquisition Corporation, doing business as Wyoming Technical Institute (Wyo Tech), now challenges the legal basis of the judgment tied to the instructions given, various evidentiary rulings, and the award of attorney fees. Because we have determined the district court failed to instruct the jury that to sustain a claim of compensatory damages under the Rehabilitation Act the plaintiff must prove defendant intentionally discriminated against him, we reverse the judgment in part and remand for retrial.

At age nineteen, Michael Powers broke his back in a car accident. Two years later, he was able to walk with the aid of crutches. In 1987, nineteen years after the accident, Mr. Powers had surgery to insert two rods in his back. As a result, he became an incomplete or partial paraplegic, meaning he could walk using forearm crutches for his hands and braces on his legs. The left brace extended from above the knee to the sole of his foot, and the right from below the knee to the foot.

In 1994, when Mr. Powers and his wife, Kimberly, lived in Bul Verde, Texas, he received a mailing from Wyo Tech in Laramie, Wyoming, advertising training opportunities which "in just 6 to 9 months" would bring a new career "with good pay." Mr. Powers contacted Wyo Tech who sent Robert Saldana, equipped with a video, catalog of classes, and an application, to visit Mr. Powers in his home. Significantly, the application included the question, "Do you have any disability that could prevent you from completing the program (i.e., physical, learning, emotional)?" to which Mr. Powers responded, "yes." Nevertheless, Mr. Saldana described how Mr. Powers could become an auto body repairman earning $36,000 a year. After Mr. Saldana's second visit, Mr. Powers called Wyo Tech in Laramie to discuss accommodations for his disability. Assured the school understood his needs, Mr. Powers completed the application and sent it along with his $100 registration fee.

Mr. Powers received his acceptance letter in November 1994, shortly after his first child was born, and the family sold their home and moved to Laramie in time for Mr. Powers to start classes on April 3, 1995. He soon discovered to participate in the auto body course, students were required to carry tools and materials for the shop work. This was a difficult task for Mr. Powers whose hands were occupied in ambulating and stabilizing his body.

On April 27, 1995, Mr. Powers attempted to move a tray of plastic filler to his project car. As he reached out to place the tray on a metal rack by the vehicle, he lost his balance and fell. He fractured his right leg in three places requiring surgery to implant rods, pins, and screws in his shattered tibia.

The fall also consigned Mr. Powers to the use of a wheelchair for the substantial part of his activity. Consequently, he was unable to complete the auto body course and dropped out of school. Wyo Tech did not refund any of Mr. Powers' $14,900 tuition.

Mr. Powers filed this action in April 1997, alleging Wyo Tech discriminated against him because of his disability and the discrimination resulted in personal injury. He sought redress under the ADA, 42 U.S.C. §§ 12101-12213; the Rehabilitation Act, 29 U.S.C. §§ 701-796l (the Act); and state causes of action for negligence; breach of the duty of good faith and fair dealing; fraud; and intentional infliction of emotional distress. Ultimately, the final pretrial order declared the issues to be tried were whether Wyo Tech: (1) "negligently fail[ed] to provide a safe environment" for Mr. Powers; (2) breached its "duty of good faith and fair dealing and act[ed] fraudulently by misrepresenting the accessibility of [its] programs and Plaintiff Gary Power's [sic] employability following completion of his training"; and (3) failed to provide accommodation in violation of the ADA or the Rehabilitation Act.

At trial, Mr. Powers testified to making numerous inquiries about accommodations for his class and stated Wyo Tech assured him he would have equipment available for him to use in his classes. For example, Wyo Tech promised a "motostand," a standing or sitting electrical wheelchair, to use in the shop, or an inexpensive cart with handles and friction wheels on which he could roll his tools, along with other accommodations.¹

At the close of the evidence, Wyo Tech moved for a judgment as a matter of law on each of Mr. Powers' claims. The district court denied the motion, believing all the issues should be submitted to the jury. The jury found Wyo Tech was negligent and the negligence was the proximate cause of Mr. Powers' damages; it allocated 70% to Wyo Tech and 30% to Mr. Powers and awarded $10,000 in damages. The jury further found Wyo Tech not only breached its contract with Mr. Powers but also based on a special relationship failed to act in good faith and deal fairly. It set damages at $15,000 for the breach. Although the jury found Wyo Tech did not make a false representation to Mr. Powers, it found he justifiably relied to his detriment on Wyo Tech's statements as true. Finally, the jury found Wyo Tech discriminated against Mr. Powers because of his disability and failed to provide reasonable accommodation; and for this liability, the jury awarded $560,000 in compensatory damages. Wyo Tech has appealed this judgment.

"An Otherwise Qualified Individual"

Wyo Tech asserts Mr. Powers is not "an otherwise qualified individual" as required by the Rehabilitation Act. It contends Mr. Powers admitted on cross-examination he did not think he could "do the work at school and at whatever job [I] could find." Moreover, Wyo Tech asserts plaintiff's expert, Robert Bradshaw, made a similar admission. It argues these circumstances make clear Mr. Powers is not qualified as a matter of law because there is no way he could perform the necessary tasks of the occupation.

In response, but without supporting authority, Mr. Powers asserts Wyo Tech is estopped from asserting this claim, pointing out the admissions committee assured him in its letter:

[Y]our acceptance means we have assured ourselves that you demonstrate the ability and desire to meet the high standards we set for our students. Your acceptance also means that you should have confidence in your ability to complete your training successfully.

(emphasis added). Moreover, he reminds us it is uncontroverted Mr. Saldana also signed an enrollment agreement stating, "in my judgment the Student meets the requirements and standard of the School and I recommend his/her acceptance."

Section 504 of the Rehabilitation Act states: "No otherwise qualified individual with a disability... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...." 29 U.S.C. § 794(a). A prima facie case consists of proof (1) plaintiff is handicapped under the Act; (2) he is "otherwise qualified" to participate in the program; (3) the program receives federal financial assistance; and (4) the program discriminates against plaintiff. Woodman v. Runyon, 132 F.3d 1330, 1337 (10th Cir. 1997).

Wyo Tech contends the district court erred by not granting its "motion for directed verdict"² on the ground that Mr. Powers was not "an otherwise qualified person" and no substantive evidence supported the verdict.³ We review the ruling on a JMOL de novo applying the same standards as the district court. Wiles v. Michelin North America, Inc., 173 F.3d 1297, (10th Cir. 1999); Towerridge, Inc. v. T.A.O., Inc., 111 F.3d 758, 762 (10th Cir. 1997). We apply the same "genuine issue" requirement as in summary judgment, Wiles, 173 F.3d at 1297; and we may find error in the denial of a motion for judgment as a matter of law "only if the evidence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion." Towerridge, 111 F.3d at 762 (quoting Haines v. Fisher, 82 F.3d 1503, 1510 (10th Cir. 1996)). "We construe the evidence and inferences most favorably to the nonmoving party." Id. (quoting Doan v. Seagate Tech., Inc., 82 F.3d 974, 976 (10th Cir. 1996)). Guided by these principles, we find no error in the refusal of the motion for judgment as a matter of law.

Wyo Tech's argument fails to make a distinction between the state of Mr. Powers' classification as an otherwise qualified person before and after the fall which ultimately confined him to a wheelchair. That distinction is critical here because plaintiff's claim for relief is grounded upon his condition at the time he was accepted for enrollment.

As we understand from the partial transcript in the...