Brown v. Smith, No. 15-1114 (7th Cir. 2016)
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During his 28 years at the City of Anderson Transit System (CATS), Brown developed diabetes and became unable to maintain his commercial driver’s license (CDL). He was then working as a dispatcher, which did not require a CDL. Brown was active in the Democratic Party. In 2004, the city elected Mayor Smith, a Republican, and Brown was demoted to the position of mechanic’s helper. Although possession of a CDL was listed in the job description, CATS granted Brown an accommodation. Years later, when Smith was defeated by a Democrat, Brown was promoted to a street‐supervisor position. Possession of a CDL was listed in the job description. His supervisors were aware of his inability to obtain a CDL when they promoted him. Brown worked as a street supervisor until he was fired in 2012—shortly after Smith was reelected--due to Brown's inability to “obtain CDL.” In a suit alleging disability discrimination, 42 U.S.C. 12112(a), a jury awarded Brown damages. The Seventh Circuit affirmed. The essential‐function issue is a factual question that was properly put before the jury, and the jury instructions, that it could consider “the amount of time spent on the job performing the function in question,” were consistent with federal regulations and precedent.
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In the United States Court of Appeals For the Seventh Circuit No. 15 1114 JACK BROWN, ____________________ Plaintiff Appellee, v. KEVIN SMITH, Mayor of the City of Anderson, et al., Defendants Appellants. ____________________ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 12 CV 1712 — Tanya Walton Pratt, Judge. ____________________ ARGUED SEPTEMBER 11, 2015 — DECIDED JUNE 28, 2016 ____________________ Before BAUER, WILLIAMS, and HAMILTON, Circuit Judges. WILLIAMS, Circuit Judge. During his lengthy tenure at the City of Anderson Transit System (CATS), Plaintiff Jack Brown developed diabetes and became unable to maintain his commercial driver’s license (CDL). For nearly a decade, this development proved irrelevant—at least from an em ployment standpoint. However, several years after being 2 No. 15 1114 promoted to a position that required a CDL, Brown was fired. He sued the City of Anderson and others, alleging that his termination amounted to disability discrimination since possession of a CDL was not an essential function of his job. After the City unsuccessfully moved for summary judgment, a jury sided with Brown and awarded him damages. The City raises several arguments on appeal. Principally, it contends that the district court should have ruled as a mat ter of law that possession of a CDL was an essential job func tion. Alternatively, the City claims that the district court erred in instructing the jury about the essential function in quiry, and in concluding that Brown adequately mitigated his damages. We disagree. The essential function issue is a factual question that was properly put before the jury, and the district court’s jury instructions on this issue were con sistent with federal regulations and our precedent. We also conclude that Brown reasonably attempted to mitigate his damages by starting his own trailer hauling business, de spite the fact that the business ultimately failed. So we affirm the district court’s judgment. I. BACKGROUND Brown held several different positions during his 28 year career at CATS, and his trajectory at the company appears to have tracked the City’s shifting political winds. From 1984 to 1998, he worked as a bus driver—initially as an “extra board” (i.e., part time) driver, then as a full time driver. Both positions required him to possess a CDL, and he did so. He was later elevated to a dispatcher position, which did not involve driving responsibilities or require a CDL. This pro motion proved fortuitous when, after developing insulin dependent diabetes, Brown had to relinquish his CDL. No. 15 1114 3 Throughout this period, Brown was an active participant in the City’s Democratic Party. In 2004, Brown was demoted to the position of mechan ic’s helper—a demotion that coincided with the election of Kevin Smith, a Republican, as Mayor. Although possession of a CDL was listed in the job description, CATS granted Brown an accommodation (i.e., an exemption) whereby he could maintain the job without re obtaining a CDL. Several years later, when Smith was defeated by a Democrat, Brown was promoted to a street supervisor position. In this new position, Brown helped ensure that drivers left the bus gar age with the requisite paperwork and with operational vehi cles. Like his previous mechanic’s helper possession, posses sion of a CDL was listed in the street supervisor job descrip tion. Although Brown did not obtain an explicit CDL related accommodation for this new position, his supervisors were aware of his inability to obtain a CDL when they promoted him. Brown worked as a street supervisor until he was fired in 2012—shortly after Smith regained his mayoral seat. Brown’s termination notice listed his inability to “obtain CDL as required in job description” as the reason for his fir ing. Brown did not apply for any jobs at CATS or elsewhere in the ensuing months. Instead, he started his own business hauling trailers across the country. But after about a year in, the business failed to generate adequate revenue, and Brown began collecting Social Security disability benefits. Brown ultimately filed suit against the City, alleging that it failed to accommodate his diabetes related disability in violation of the Americans with Disabilities Act, and that it retaliated against him in response to his support for Smith’s 4 No. 15 1114 Democratic opponent in violation of the First Amendment. The district court denied the City’s motion for summary judgment, concluding that a genuine factual issue existed as to whether driving a bus while possessing a CDL was an es sential function for street supervisors, and whether political loyalty was a prerequisite for the supervisor position. A jury trial ensued and at its conclusion, the jury found for Brown on the ADA claim and for the City on the First Amendment claim. Brown was awarded $25,200 by the jury in compensatory damages, and $65,274.64 by the court in lost wages, benefits, and interest. This appeal followed. II. ANALYSIS The Americans with Disabilities Act prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to … [the] discharge of employ ees.” 42 U.S.C. § 12112(a). Such discrimination can take the form of “not making reasonable accommodations to the known physical or mental limitations of an otherwise quali fied [employee] with a disability,” so long as such accom modation would not “impose an undue hardship on the op eration of the business.” Id. § 12112(b)(5)(A). An employee is “qualified” if she “can perform the essential functions of the employment position,” with or without “reasonable accom modation.” Id. § 12111(8). The principal dispute here concerns the “essential func tion” question—specifically, whether the district court should have resolved the issue (instead of the jury), and whether time spent driving a bus while possessing a CDL is a relevant factor. The parties also dispute whether Brown No. 15 1114 5 had adequately mitigated his damages while operating his trailer hauling business. A. “Essential Function” Issue Was Factual Question for Jury The City contends that the district court should have en tered summary judgment in its favor on Brown’s ADA claim. Specifically, it insists that the essential function in quiry was a question of law for the district court (and not the jury), since the job description for Brown’s street supervisor position “establishes—as a matter of law—that the City con siders the CDL requirement to be an essential job function.” We disagree. The essential function inquiry is a factual question, not a question of law. As Brown notes, a “question of law” typical ly concerns “the meaning of a statutory or constitutional provision, regulation, or common law doctrine rather than … whether the party opposing summary judgment had raised a genuine issue of material fact.” Ahrenholz v. Bd. of Trustees of Univ. of Ill., 219 F.3d 674, 676–77 (7th Cir. 2000) (involving interlocutory appeals); see also, e.g., Ortiz v. Jordan, 562 U.S. 180, 190 (2011) (observing that pure questions of law “typically involve contests not about what occurred, or why an action was taken or omitted, but disputes about the sub stance and clarity of pre existing law”); Houskins v. Sheahan, 549 F.3d 480, 489 (7th Cir. 2008) (“While we owe deference to the jury’s resolution of the contested factual issues, the de termination of whether speech is constitutionally protected is a question of law for the court.”). Our recent decision in Shell v. Smith, 789 F.3d 715 (7th Cir. 2015)—a case with near ly identical facts—illustrates this point. 6 No. 15 1114 In Shell, the plaintiff worked at CATS as a former me chanic’s helper, which, according to the job description, re quired him to have a CDL. Although his poor hearing and vision prevented him from obtaining a CDL, he held the po sition for 12 years. When a new general manager was in stalled, the plaintiff’s employment was terminated due to his inability to obtain a CDL. The district court granted the City’s motion for summary judgment on the plaintiff’s ADA claim but we reversed. In doing so, we recognized that the essential function issue was a factual question, insofar as we concluded that a genuine factual issue existed as to whether a CDL was necessary to perform the essential functions of the mechanic’s helper position. Id. at 717. And because the essential function inquiry is a factual question that goes to the sufficiency of the evidence, it can not be preserved for appellate review after trial solely with a summary judgment motion; rather, the complaining party must file a post verdict motion under Rule 50(b). Ortiz, 562 U.S. at 189 (2011); Unitherm Food Sys., Inc. v. Swift Eckrich, Inc., 546 U.S. 394, 401–02 (2006). Because the City failed to file such a motion here, it has waived its bid to win judg ment as a matter of law on this ground. See id. Even if the City had not waived its sufficiency of the evidence argument, there is ample evidence here to support the jury’s conclusion—expressly noted on the verdict form— that having a CDL was not an essential function. To be sure, Brown’s job description lists possession of a CDL as a job re quirement, but the content of a job description is merely one of several factors courts consider when determining whether a function is essential. 29 C.F.R. § 1630.2(n)(3); Shell, 789 F.3d at 718. One such factor concerns the “employer’s judgment No. 15 1114 7 as to which functions are essential.” 29 C.F.R. § 1630.2(n)(3)(i). Here, Brown’s supervisor, Mark Baugher, testified that he knew Brown did not have a CDL when Brown became a street supervisor, and that driving buses was not a key responsibility for supervisors because other individuals with CDLs were typically available to drive bus es when necessary. Two other relevant factors are the “amount of time spent on the job performing the function,” and the “work experi ence of past incumbents in the job.” Id. §§ 1630.2(n)(3)(iii), (vi). Here, Brown testified he performed the duties of his street supervisor position for four years without ever need ing to drive a bus. Baugher testified that during his own 20 year tenure as a street supervisor, only once did an emer gency arise in which he drove a bus. And Leo Williams, yet another former street supervisor, testified that during his four year tenure, he drove a bus only three or four times. In addition, one may consider the “consequences of not requiring the incumbent to perform the function.” Id. § 1630.2(n)(3)(iv). Both Brown and John Inholt, another street supervisor, testified that replacement drivers could general ly be secured within 10 minutes, which allowed street su pervisors to focus on ensuring that other bus drivers were operating adequately. So there was adequate evidence to support the jury’s conclusion that having a CDL was not an essential job function. B. Jury Instruction Proper Regarding Time Spent on Essential Functions The City also contends that the district court erred by in structing the jury that, in determining whether possession of 8 No. 15 1114 a CDL was an essential function, it could consider “the amount of time spent on the job performing the function in question.” We review a district court’s decisions on jury in structions for abuse of discretion. Aldridge v. Forest River, Inc., 635 F.3d 870, 876 (7th Cir. 2011). Reversal is warranted only if an instruction misstates the law in a way that mis guides the jury to the extent that the complaining party suf fered prejudice. Hasham v. Cal. State Bd. of Equalization, 200 F.3d 1035, 1051 (7th Cir. 2000). The City concedes, as it must, that federal regulations unambiguously state that “[e]vidence of whether a particu lar function is essential includes, but is not limited to,” time spent performing the function. 29 C.F.R. § 1630.2(n)(3); see also Shell, 789 F.3d at 718. The City offers several reasons for ignoring these regulations, but none are persuasive. The City argues that, while the time spent factor may be relevant in other situations, it is not relevant here because the emergencies that would force a street supervisor to drive a bus would infrequently occur. But the relevance of a given factor often waxes and wanes depending on the particular circumstances presented. That doesn’t mean that the factor should be jettisoned completely. It simply means that the ju ry can take this into consideration and that the parties can tailor their closing arguments to accentuate or minimize the factors as they see fit. See EEOC v. AutoZone, Inc., 809 F.3d 916, 923 (7th Cir. 2016) (holding that the district court “was not obligated to promulgate … an inference within the jury instructions that the job function was not essential for a par ticular reason,” and that the court could “instead allow the [plaintiff] to make its … argument to the jury in its closing arguments”). Doing otherwise would impermissibly transfer No. 15 1114 9 fact finding responsibilities from the jury to the judge by narrowing the scope of the factual inquiry. The City also points to our model jury instruction con cerning essential functions, which it claims is silent regard ing the amount of time spent performing job functions. See Seventh Circuit Pattern Jury Instructions § 4.05.1 But as Brown correctly notes, the City ignores subsection d of the Committee’s Comments, which not only cites § 1630.2(n) but also notes that “evidence of whether a particular function is essential can include … how much time was spent on the job performing the function.” Id. § 4.05 cmt. d. 1 Section 4.05 reads: Under the ADA, Plaintiff was “qualified” if he had the skill, experience, education, and other requirements for the job and could do the job’s essential functions, either with or without [de scribe requested accommodation]. You should only consider Plain tiff’s abilities at the time when [describe challenged employment de cision]. Not all job functions are “essential.” Essential functions are a job’s fundamental duties. In deciding whether a function is es sential, you may consider the reasons the job exists, the number of employees Defendant has to do that kind of work, the degree of specialization the job requires, Defendant’s judgment about what is required, the consequences of not requiring an employee to satisfy that function, and the work experience of others who held position. [In addition to specific job requirements, an employer may have general requirements for all employees. For example, the employer may expect employees to refrain from abusive or threatening conduct toward others, or may require a regular lev el of attendance.] Seventh Circuit Pattern Jury Instructions § 4.05 (alterations in original). 10 No. 15 1114 Finally, the City claims that in Basith v. Cook County, 241 F.3d 919 (7th Cir. 2001), we held that the time spent factor is irrelevant when “an employer has a valid reason for treating a job function as essential and that function goes to the core of the business’s operation.” But we announced no such rule in Basith. Rather, we concluded—after considering time spent and the other factors in the aggregate—that the job func tion at issue was essential. Id. at 928–30. Furthermore, just as no single factor enumerated in § 1630.2(n) can comprise the entire essential function analysis, see, e.g., id.; Shell, 789 F.3d at 718, nor can a single factor be excluded before the analysis has even begun. So the district court did not abuse its discre tion in instructing the jury to consider a street supervisor’s time spent driving buses. C. Brown Mitigated Damages Finally, the City argues that the district court erred in awarding Brown damages because he failed to take reasona ble steps to mitigate his losses. We review a district court’s findings regarding mitigation of damages for clear error. Payne v. Sec. Sav. & Loan Ass’n, F.A., 924 F.2d 109, 111 (7th Cir. 1991). A lost wages award “compensates an unlawfully dis charged employee for the loss of earnings that he sustains as a result of the discharge.” Mattenson v. Baxter Healthcare Corp., 438 F.3d 763, 771 (7th Cir. 2006); EEOC v. Ilona of Hun gary, Inc., 108 F.3d 1569, 1580 (7th Cir. 1997). Critically, a plaintiff alleging employment discrimination generally is required to mitigate damages by making diligent efforts to obtain reasonably comparable employment. See Mattenson, 438 F.3d at 771; Williams v. Pharmacia, Inc., 137 F.3d 944, 954 (7th Cir. 1998). The employer generally bears the burden of No. 15 1114 11 proving a failure to mitigate, which entails showing not only a lack of “reasonable diligence” but also “a reasonable likeli hood that the plaintiff might have found comparable work by exercising reasonable diligence.” Hutchison v. Amateur Elec. Supply, Inc., 42 F.3d 1037, 1044 (7th Cir. 1994). The City has failed to meet this burden. It faults Brown for failing to “seek any employment at any local transit companies”; however, it admitted at oral argument that CATS was the only bus company in town when Brown was fired. Nor has the City shown that any other transit compa ny was within a reasonable driving distance of Brown’s resi dence. The City also faults Brown for starting his own company but ignores the fact that “self employment, if reasonable, counts as permissible mitigation.” Smith v. Great Am. Restau rants, Inc., 969 F.2d 430, 438 (7th Cir. 1992). And based on the evidence from trial, there is little reason to doubt that Brown’s business was a legitimate and reasonable attempt to make money. For one, hauling trailers across the country is certainly related to Brown’s various positions at CATS, which involved driving, fixing, and supervising the opera tion of municipal buses. Moreover, during 2012, Brown made 63 trips over 187 days as he worked to establish his business. And he shut down operations not because he be came bored with the work, but because he was unable to generate sufficient profits. These efforts are readily distinguishable from the cases on which the City relies. In Hansard v. Pepsi Cola Metropolitan Bottling, the court held that a former vending machine re pairman had failed to adequately mitigate damages by oper ating a booth at flea markets on the weekend. 865 F.2d 1461, 12 No. 15 1114 1468 (5th Cir. 1989). In doing so, the court emphasized that the plaintiff “did not approach the flea market as a busi ness,” that the work “was never more than a part time en terprise,” and that the plaintiff was “fully capable of con tinuing his job search during the week.” Id.; cf. Smith, 969 F.2d at 438 (distinguishing Hansard on identical grounds). And while the plaintiff in Boyd v. SCM Allied Paper operated his own barbeque and car wash business following his ter mination, there is no indication whether and to what extent these endeavors were related to his previous position, nor any discussion about how long the endeavors lasted or the time and resources the plaintiff devoted to them. No. 84 241, 1986 WL 15558, at *14–15 (N.D. Ind. June 16, 1986). So the district court did not clearly err in concluding that Brown had mitigated his damages. III. CONCLUSION The judgment of the district court is AFFIRMED.
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