Sutton v. Lader

• Decision Date: 25 August 1999
• Docket Number: No. 98-9362,98-9362
• Parties: (11th Cir. 1999) Robert A. SUTTON, Plaintiff-Appellee, v. Philip LADER, Administrator of the Small Business Administration, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1203

185 F.3d 1203 (11th Cir. 1999)

Robert A. SUTTON, Plaintiff-Appellee, v. Philip LADER, Administrator of the Small Business Administration, Defendant-Appellant.

No. 98-9362.

United States Court of Appeals Eleventh Circuit.

Aug. 25, 1999.

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Georgia. (No. 4:95-CV-029-RLV), Robert L. Vining, Jr., Judge.

Before CARNES, Circuit Judge, HILL, Senior Circuit Judge, and HOEVELER^*, District Judge.

HILL, Senior Circuit Judge:

Robert A. Sutton sued the Administrator of the Small Business Administration under the Rehabilitation Act, 29 U.S.C. 704-794e alleging disability discrimination. The district court entered judgment for plaintiff on his claim for back pay and awarded him $15,394.10 in back pay and $109,752 in attorneys' fees. Defendant appeals both awards.

I.

On February 2, 1994, the Small Business Administration Disaster Assistance Program (SBA) hired Robert A. Sutton to work as a disaster relief construction analyst on a thirty-day appointment¹ to Northridge, California, the site of a powerful earthquake causing extensive damage. The job involved assessing the earthquake damage and the needs of disaster victims. It is physically demanding--requiring climbing and crawling inside collapsed buildings and other debris under disaster conditions and exposure to chemicals, fumes and dust.²

Sutton left for California on February 4, 1994. Unfortunately, he suffered a heart attack that night. He was hospitalized and underwent an angioplasty the next day. He was released from the hospital four days later, on February 10. Due to these circumstances, Sutton was unable to begin his on-site training, or perform any duties as a construction analyst.

Five days later, on February 15, Sutton contacted his supervisor to discuss his return to work. He was advised that he would need a medical release before the SBA could permit him to return to the physically demanding duties of construction analyst.

The next day, February 16, Sutton had a second heart attack. He had bypass surgery on February 18, and remained hospitalized for six more days. When his SBA supervisor did not hear from him, he called to inquire and learned of the second attack and the surgery. Sutton told him he was ready to return to work, and his supervisor reiterated that a medical release to work specifically as a construction analyst would be necessary.

On February 28, 1994, ten days after his bypass surgery, Sutton provided the SBA with a letter from a Dr. J. Nathan Rubin stating that Sutton would be totally disabled from February 3 through March 10, 1994, and "partially disabled" from March 19 to April 1, 1994. The letter stated that Sutton could not lift, carry, climb, climb ladders or work around dust. The letter further stated that Sutton could kneel, bend, stoop, twist, and push and pull for only one hour a day, and that he should not be exposed to chemicals, solvents, and fumes for more than one hour each day. At trial, Sutton conceded that the doctor who wrote the letter was unaware of the duties of a construction analyst.

Shortly thereafter, Sutton visited the SBA offices in California to discuss his employment. He was informed that since he could not perform the duties of a construction analyst, the SBA would allow his temporary appointment to expire, but would extend it one week to March 12 so that he could return to Atlanta at SBA expense. He was told that if he wanted to be reappointed as a construction analyst, he would have to provide the SBA with a letter that specifically permitted him to perform those duties.

On March 29, seventeen days after his return from California, Sutton consulted a cardiologist, Dr. Martin, and secured a letter stating that Sutton could return "to his professional duties." This doctor later testified that Sutton did not inform him of the nature of these "professional duties." The doctor also testified that his letter did not release Sutton to perform the duties of a construction analyst.

Nine days later, Sutton did inform the cardiologist of those duties and asked him to write a new letter releasing Sutton to work as a construction analyst. The doctor refused to do so without a stress test and full examination.

On May 4, 1994, Sutton submitted a letter from a third cardiologist, Dr. Dale Haggman, which effectively released him to perform the duties of a construction analyst. On that date, however, the SBA was no longer hiring construction analysts for the Northridge earthquake disaster, or any other disaster.³ The Atlanta office did not hire construction analysts again until July when floods in south Georgia caused by tropical storm Alberto necessitated additional construction analysts. The SBA telephoned Sutton and offered him a new thirty-day appointment as a construction analyst, but he declined because he had decided to open a remodeling business in the Chattanooga area.

Sutton sued the SBA in January of 1995 under the Rehabilitation Act claiming back pay for employment discrimination, front pay and overtime pay for constructive discharge, and compensatory damages. During the four day trial in late 1997, Sutton expressed surprise during his cross-examination regarding the demand for front pay, and abandoned that claim. After the close of evidence, the district court granted the SBA's motion to dismiss the compensatory damages claim for lack of evidence. The court, however, deferred ruling on the SBA's motion for judgment as a matter of law on the remaining back pay claim.⁴

On August 28, 1998, the district court denied the motion and entered judgment for Sutton, holding that the SBA did not allow him to return to work because it perceived him to be disabled between March 7, 1994, and July 9, 1994, when he was offered another position but refused it. The court awarded Sutton back pay for this period of time in the amount of $15,394.10. The court also granted Sutton's motion for attorneys' fees although it noted that his affidavit made it impossible for the court to determine the amount of time devoted by his attorneys to the sole issue on which he prevailed. The court also noted that the staffing on the case was "clearly excessive" (six attorneys and six paralegals) and that work on the constructive discharge claim could have been avoided if the attorneys had "simply conferred with their client." Despite these defects, the court awarded $109,752 in fees as "a compromise."

We review the SBA's appeal of the denial of its motion for judgment as a matter of law de novo, applying the same legal standards as the district court. Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907, 910 & 915 (11th Cir.1996).

II.

The Rehabilitation Act (the Act) prohibits federal agencies from discriminating in employment against otherwise qualified individuals with a disability. 29 U.S.C. 791. To establish a prima facie case of discrimination under the Act, an individual must show that (1) he has a disability; (2) he is otherwise qualified for the position; and (3) he was subjected to unlawful discrimination as the result of his disability. E.L. Hamm & Assocs., 100 F.3d at 910;⁵ Severino v. North Fort Myers Fire Control Dist., 935 F.2d 1179, 1183 (11th Cir.1991).

The Act defines "individual with a disability" as any person who:

(I) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such an impairment.

29 U.S.C. 706(8)(B). Sutton claims that the SBA "regarded" him as having a physical impairment and discriminated against him by refusing to allow him to return to his job as a construction analyst for that reason.

A person is "regarded" as having an impairment if he:

has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer as constituting such a limitation; has a physical or mental impairment that substantially limits major life activities only as a result of the attitude of an employer toward such impairment; or [has no physical or mental impairment] but is treated by an employer has having such an impairment.

29 C.F.R. 1614.203(a)(5).

In holding that the SBA wrongfully terminated Sutton, the district court said only:

It is undisputed that the SBA did not allow the plaintiff to return to work after his heart attacks; furthermore, from the evidence adduced at trial, it is clear that the SBA's decision not to allow the plaintiff to return to work, even though he had obtained medical releases, was based upon the SBA's perception that the plaintiff could not do the work because of his heart attacks.

The district court apparently found that Sutton had no physical impairment, but was treated by the SBA as though he did when it refused to allow him to return to work prior to the expiration of his temporary appointment. We disagree.

III.

In order for Sutton to prevail on a "perception" theory under the Act, he must be able to show that the SBA refused to allow him to return to work because it regarded him as having a physical impairment as that term is defined by the Act. E.L. Hamm & Associates, 100 F.3d at 913. Not every physical impairment is a disability under the Act. Hilburn v. Murata Electronics N. A., Inc., 181 F.3d 1220, 1226-27 (11th Cir.1999) (citing Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1132 (11th Cir.), amended in part on reh'g by 102 F.3d 1118 (11th Cir.1996)). Thus, in order for a plaintiff to prevail on a perception theory of disability discrimination, he must be able to show that, as with a real impairment, the perceived impairment is "substantially limiting" and significant. Id.; Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1327 (11th Cir.1998). See also Ellison v. Software Spectrum, Inc., 85 F.3d 187, 191 (5th Cir.1996).⁶ In determining whether a physical impairment substantially limits...