Rossbach v. City of Miami

• Decision Date: 07 June 2004
• Docket Number: No. 03-13348.,03-13348.
• Citation: 371 F.3d 1354
• Parties: Steve ROSSBACH, Raul Cairo, Ernesto R. Sam, Lawson Sutton, Francisco J. Gorordo, Plaintiffs-Appellants, v. CITY OF MIAMI, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

371 F.3d 1354

Steve ROSSBACH, Raul Cairo, Ernesto R. Sam, Lawson Sutton, Francisco J. Gorordo, Plaintiffs-Appellants, v. CITY OF MIAMI, Defendant-Appellee.

No. 03-13348.

United States Court of Appeals, Eleventh Circuit.

June 7, 2004.

Michael B. Feiler, Feiler & Leach P.L., Miami, FL, for Plaintiffs-Appellants.

Mimi Vivien Turin, Miami, FL, for Defendant-Appellee.

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

Before ANDERSON, CARNES and FAY, Circuit Judges.

PER CURIAM:

Steve Rossbach, Raul Cairo, Ernesto Sam, Lawson Sutton and Francisco Gorordo, police officers for the City of Miami (herein collectively referred to as "the Officers" or "Plaintiffs"), appeal the district court's granting of the City's motion for judgment as a matter of law after a jury awarded the Officers a total of $160,000 for damages resulting from discrimination at the hands of the City. The Officers brought this action under the Americans with Disabilities Act ("ADA" or "the Act"), claiming that the City's policy precluding light and limited duty officers from engaging in off-duty jobs discriminated against them based on their disabilities. Because we find that Plaintiffs did not offer any evidence to show that their impairments substantially limited any major life activity, we affirm the district court's holding that Plaintiffs, though classified as "disabled" by the City itself, failed to prove they were disabled under the ADA. AFFIRMED.

I.

Rossbach and four fellow City of Miami Police Officers brought this action alleging employment discrimination in violation of the ADA. Each officer applied for off-duty employment within the police department, and each was denied based on a policy prohibiting light or limited duty officers from working any off-duty assignments.¹ The case proceeded to trial and, at the end of the Officers' case, the City moved for a directed verdict under Rule 50 of the Federal Rules of Civil Procedure. The district court reserved ruling on the motion and the City renewed it after all evidence was received. The jury returned a verdict for the Officers.

After the verdict was handed down, the district court heard oral argument on the City's Rule 50 motion. In its written order reversing the jury's verdict, the court found that the Officers failed to introduce sufficient evidence to show that they were disabled under the ADA. Specifically, the court held that Officer Rossbach failed to demonstrate that his physical impairments substantially limited any major life activity.² Recognizing that Rossbach's impairments perhaps caused discomfort and inconvenience with respect to sleeping, standing and sitting, the court determined that there was simply no evidence that these major life activities were "substantially limited," as that term is understood under the ADA.

II.

We review the district court's granting of the City's motion for judgment as a matter of law de novo, considering only the evidence that may properly be considered and the reasonable inferences drawn from it in the light most favorable to the nonmoving party. Slicker v. Jackson, 215 F.3d 1225, 1229 (11th Cir.2000). Where "no legally sufficient evidentiary basis exists for a reasonable jury to find for that party on that issue," judgment as a matter of law is proper. Moore's Federal Practice, § 59.50[5], 3d Ed., Vol. 12 (1998).

III.

The Officers first contend that they introduced ample evidence for the jury to properly conclude each was disabled under the ADA.³ A prima facie case of employment discrimination under the ADA is established by demonstrating that Plaintiffs: (1) have a disability; (2) are qualified, with or without reasonable accommodations; and (3) were unlawfully discriminated against because of their disability. 42 U.S.C. § 12112(a). As discussed above, the district court found that the Officers failed to satisfy the first element of the test. The ADA defines "disability" to include: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2).

Disability under the first definition above, according to the Supreme Court, involves a three-step analysis. Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). First, plaintiffs must be impaired. Next, the court must identify the life activity that the plaintiff claims has been limited and determine whether it is a major life activity under the ADA. The regulations interpreting the Rehabilitation Act of 1973 define major life activities as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 45 C.F.R. § 84.3(j)(2)(ii).⁴ If not contained within these exemplars, the activity must be "significant" to everyday life. Bragdon, 524 U.S. at 638, 118 S.Ct. 2196. Several courts, for example, have found that sleeping constitutes a major life activity. See Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir.1999). Finally, the court must determine whether the impairment "substantially limits" that life activity. The EEOC defines this phrase to mean "significantly restricted as to the condition, manner or duration under which the average person in the general population can perform the same major life activity." 29 C.F.R. § 1630.2(j)(1).

The first step of the analysis is undisputedly satisfied here. Each officer testified to significant impairments that, more often than not, resulted from injuries sustained in performing the physically-demanding job of a combat-ready police officer. Among other things, Rossbach severely injured his arm in a car door while trying to apprehend a suspect, suffered a herniated disc and nerve damage in his back after being involved in a near head-on collision while on duty, and re-injured his neck when an escalator in the courthouse stopped working. Cairo severely injured, and re-injured, his right knee on numerous occasions while trying to apprehend a suspect and, later, by being hit by a police car. Gorordo also injured his right knee while on dignitary detail and suffered severe neck and back injuries while practicing control techniques with an overly-aggressive corrections officer. Sam, too, tore ligaments in his knee during a charity football game and later re-injured the same knee in a car accident, in which he also suffered a concussion and injured his back. Finally, Sutton tore the meniscus in his knee in an on-duty accident and later suffered two herniated discs and high blood pressure. All were, at one time or another, classified as light or limited duty police officers by the City and were placed in a variety of administrative-type jobs within the department.⁵

Proceeding to the second step, the district court sorted through the variety of activities that the Officers claimed were hindered by their impairments, and properly focused on the major life activities of walking, sitting, standing and sleeping.⁶ The court rejected the Officers' contention that these particular life activities were substantially limited by their impairments. We agree. Though our Court has not squarely addressed this issue, other courts have consistently held that someone who walks, sits, stands or sleeps "moderately below average" is not disabled under the Act. See, e.g., Kelly v. Drexel Univ., 94 F.3d 102, 107 (3d Cir.1996); Harmon v. Sprint United Mgt. Corp., 264 F.Supp.2d 964 (D.Kan.2003); 29 C.F.R. app. § 1630.2(j). Particularly relevant to our analysis is a Second Circuit decision remarkably similar to ours, in which that court reversed the jury's verdict and found that three light duty police officers failed to prove they were disabled under the ADA. Colwell v. Suffolk County Police Dept., 158 F.3d 635 (2d Cir.1998).

In Colwell, the court chastised plaintiff for engaging in "hedging and a studied vagueness" when describing his limitations:

For example, Colwell has difficulty standing "at attention" for "any period of time" or standing "in one spot." This difficulty is overcome, however, if he is able "to move around a lot." Colwell cannot sit "too long," and "prolonged" sitting is a problem at work. As far as lifting is concerned, Colwell can lift "light objects," but not "very heavy objects." At work, Colwell's difficulty standing "in one particular area" for "more than an hour at a time" causes him difficulty when he lectures recruits (which is part of his job). In order to avoid this problem, Colwell has to "move around." Similarly as to sleep, Colwell failed to show that his limitation should be deemed substantial. Essentially Colwell's evidence on this point was that he takes a medication as a sleep aid and that "I usually get a tough night's sleep." Difficulty sleeping is extremely widespread. Colwell made no showing that his affliction is any worse than is suffered by a large portion of the nation's adult population.

Id. at 644; see also, Chanda v. Engelhard, 234 F.3d 1219, 1222 (11th Cir.2000) ("substantially limits" meant that "a diminished activity tolerance for normal daily activities such as lifting, running and performing manual tasks, as well as lifting restriction, did not constitute a disability under the ADA."); Hilburn, 181 F.3d at 1228 ("diminished activity tolerance" is not the same as substantial limitation).

We are faced with equivalent allegations here. Each of the Officers claims that his impairment prevents him from standing, sitting, walking or sleeping for "extended periods of time." For example, Rossbach alleges that he cannot sit or stand "for long periods," and testified that he "does not go a single night and have a solid night's sleep." Cairo also cannot walk or sit for "long periods of time" and, according to his testimony, "cannot sleep normally." In fact, each of the Officers' testimony — as in Colwell — was couched in vague terms and...