Roberts v. Progressive Independence, s. 98-6062

• Decision Date: 13 July 1999
• Docket Number: Nos. 98-6062,98-6098,s. 98-6062
• Citation: 183 F.3d 1215
• Parties: (10th Cir. 1999) CHARLES ROBERTS, Plaintiff-Appellee/Cross-Appellant, v. PROGRESSIVE INDEPENDENCE, INC., an Oklahoma corporation, SHARON JOHNSON, in her capacity as Executive Director of Progressive Independence, and JOHNNY HOBAUGH, MELVIN HALL, GLENN HARING, ROBERT VANHOOZER, and ERVIN KEITH, in their capacity as members of the Board of Directors of Progressive Independence, Inc., Defendants-Appellants/Cross-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1215

183 F.3d 1215 (10th Cir. 1999)

CHARLES ROBERTS, Plaintiff-Appellee/Cross-Appellant, v. PROGRESSIVE INDEPENDENCE, INC., an Oklahoma corporation, SHARON JOHNSON, in her capacity as Executive Director of Progressive Independence, and JOHNNY HOBAUGH, MELVIN HALL, GLENN HARING, ROBERT VANHOOZER, and ERVIN KEITH, in their capacity as members of the Board of Directors of Progressive Independence, Inc., Defendants-Appellants/Cross-Appellees.

Nos. 98-6062, 98-6098

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 13, 1999

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CIV-96-1850-L) [Copyrighted Material Omitted] Douglas A. Rice (Gladys E. Cherry with him on the briefs) of Derryberry, Quigley, Solomon & Naifeh, Oklahoma City, Oklahoma, for Plaintiff-Appellee/ Cross-Appellant.

George M. Emerson of Riggs, Abney, Neal, Turpen, Orbison, & Lewis, Oklahoma City, Oklahoma, for Defendants-Appellants/Cross-Appellees.

Before SEYMOUR, Chief Judge,MAGILL^* and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Charles Roberts brought two claims against Progressive Independence, Inc., and its director and board members (collectively, "PI"), under the Rehabilitation Act ("Act"): (1) wrongful termination; and (2) failure to provide reasonable accommodation for a trip to a business conference in Miami, Florida. The district court granted PI summary judgment on the wrongful termination claim, and a jury awarded Roberts $85,000 under the reasonable accommodation claim. PI appeals, and Roberts cross-appeals. We affirm in part, reverse in part, and remand.

BACKGROUND

Roberts is a thirty-three year old man with cerebral palsy. Because of his disability, Roberts must use a motorized wheelchair and requires assistance in meeting his daily needs. Such assistance includes lifting Roberts in and out of his wheelchair, feeding and dressing him, and aiding him in using the bathroom and maintaining personal hygiene. To meet these needs, Roberts uses the services of personal care attendants ("PCAs") for approximately six hours per day.

PI qualifies as an independent living center under the Rehabilitation Act. It offers services to, and advocates training for, the disabled. It is funded through federal and state programs, and at the relevant time employed five persons, all of whom were disabled. Sharon Johnson is the executive director of PI; the remaining defendants are members of PI's board of directors.

Roberts began working for PI in January of 1995 as an assistive technology assistant. On the morning of April 24, 1996, Johnson informed Roberts that he would be required to attend a conference sponsored by the National Industries for the Severely Handicapped Conference, which was to be held in Miami, Florida, from April 27 through May 1, 1996. Johnson asked Roberts to prepare a memorandum detailing his needs for the trip.¹

Later in the day, Roberts submitted to Johnson a memorandum detailing the following needs:

Personal Care

1. External catheter applied daily

This is my main concern. If it is not applied appropriately accidents will occur. The attendant should be highly used to applying this assistive technology. Sterility and proper cleaning procedures should be implemented for cross infection control.

2. Dressing/undressing.

3. Total shower assistance/shower chair

4. Apply pacemaker antenna/change batteries

5. Assistance with cleaning after bowel movements

6. Get out proper medication (I can take it myself)

7. Feeding at meals

8. Transportation

9. Charging chair

10. Shaving/teeth brushing

Wheelchair Information:

I have contacted Veazey, my vendor. Airlines do not allow chairs on board that they are aware. They usually disassemble chairs and crate them. Damage usually occurs so insurance should be considered.

After reviewing this memo, Johnson suggested two hours of attendant care each morning and two hours each evening, which Roberts agreed was satisfactory. While Roberts was in Johnson's office, she spoke with the Visiting Nurses Association (VNA) in Florida.² Johnson indicated to the VNA that she would finalize plans the next day while on the plane (via telephone) or once she was in Miami.

Later in the day, Roberts tried to find out more about the details of his care, but was advised by Johnson that she did not have any time for questions or comments. Lacking additional information about his care, Roberts grew anxious that evening, and decided that the best way to ensure adequate care was to take his own PCA with him on the trip. To that end, Roberts arranged for Pat Collins, his PCA, to accompany him, making airline reservations for her on his flight to Miami.

The next morning, April 25, Roberts presented Johnson an additional memo regarding his trip. The memo stated, in pertinent part:

From all formal information in this 24 hours it is obvious from any person with a disability I have not received personal peace of mind that this will meet my standards. I cannot feel comfortably safe with a strange attendant performing the necessary tasks. I have arranged for my personal care attendant, who is familiar with my own needs, to attend to me during these conference days. Time did not permit you to allow me the opportunity to discuss this with you after my memo dated April 24th regarding my requirements for the trip. I attempted to do so but you indicated that you do not have time for questions. Although we did discuss the Miami attendant to be with me two hours in the morning and two hours in the evening to ensure that my safety and personal needs will be met satisfactorily throughout the day I feel more attendant care is needed. My independent skills have proven that several experiences with me are necessary before an attendant gives adequate minimum care.

I am respectfully requesting that funds allocated towards the Home Health Agency in Miami be reallocated to Patricia Collins. This can be done after May 1, 1996.

After reading the memo, Johnson either told Roberts that it was unacceptable, or that PI would not be paying for Roberts' attendant to fly. In any event, Roberts testified that Johnson told him that "you can go on my terms or be terminated," and he responded, "I guess I am terminated."

Roberts then went to a nearby business. Johnson found him and Roberts testified that she told him, "[Y]ou need to give me the keys to the office or come back." Roberts gave Johnson the keys. Later that day, Roberts returned to PI's offices with his parents to retrieve his personal belongings.

Roberts filed a formal grievance with PI that was heard by a committee composed of certain PI board members. The committee found that the accommodations Johnson offered were sufficient, denied Roberts' grievance, and found that he was not terminated or constructively discharged, but rather resigned. Roberts appealed to the full board, which upheld the decision and declined to reinstate him.

Roberts then filed a complaint in federal district court. He alleged two causes of action under 504 of the Rehabilitation Act, 29 U.S.C. 794: (1) failure of PI to provide reasonable accommodation for the Florida trip; and (2) unlawful termination because of Roberts' inability to make the trip under the terms and conditions required by PI.

Subsequently, PI moved for summary judgment. The court granted summary judgment on the termination claim, because Roberts could not establish that his termination "was based solely on his disability," as required under the Act. However, the court denied summary judgment on the reasonable accommodation claim, finding there were "genuine issues of material fact with respect to the reasonableness of the accommodations offered by Johnson."

Roberts then filed an application for reconsideration or rehearing of the court's order on summary judgment, which the court considered along with PI's motion for judgment on the pleadings. The court denied both motions. With respect to PI's motion, the court rejected PI's contention that the granting of summary judgment on the wrongful termination claim rendered the reasonable accommodation claim moot.

The reasonable accommodation claim was tried to a jury. Before the verdict, both sides moved for judgment as a matter of law under Fed. R. Civ. P. 50. The court denied the motions, and the jury subsequently returned a verdict in favor of Roberts for $85,000 in compensatory damages. PI then renewed its Rule 50 motion for judgment as a matter of law or, in the alternative, remittitur. PI inter alia reasserted that the court's granting of summary judgment on the termination claim made the reasonable accommodation claim moot, and also argued that there was insufficient evidence to support the jury's liability determination. The court denied the motion.

PI appeals from the jury verdict rendered in favor of Roberts, and from the district court's denial of PI's motion for judgment as a matter of law or remittitur. Roberts cross-appeals from the court's entry of summary judgment in favor of PI on the wrongful termination claim. Both sides also appeal the district court's denial of various requested jury instructions.

DISCUSSION

The district court had jurisdiction under 28 U.S.C. 1331. We have appellate jurisdiction under 28 U.S.C. 1291. We address, in turn, the issues of reasonable accommodation, wrongful termination, jury instructions, and remittitur.

I. Reasonable Accommodation

PI argues that the district court's grant of summary judgment in its favor on Roberts' wrongful termination claim rendered his reasonable accommodation claim moot, and hence entitled him to judgment as a matter of law on the reasonable accommodation claim. PI raised this argument in a motion for judgment on the pleadings filed after summary judgment, and renewed it in motions for judgment as a matter of law before and after the verdict. The district court denied the motions.

"We review the district court's denial of a renewal motion for judgment as...