Bristol v. Board of County Commissioners of County of Clear Creek, (10th Cir. 2002)
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PUBLISH
UNITED STATES COURT
OF APPEALS
TENTH CIRCUIT
GARY BRISTOL,
Plaintiff-Appellee,
v.
THE BOARD OF COUNTY
COMMISSIONERS OF THE
COUNTY OF CLEAR CREEK and
DON KRUEGER, in his official
capacity as the Sheriff of the County
of Clear Creek,
Defendants-Appellants,
COUNTY SHERIFFS OF
COLORADO, INC.,
Amicus Curiae.
No. 00-1053
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 98-Z-1743)
Robert M. Liechty, Denver, Colorado, for Defendants-Appellants.
Evan S. Lipstein of Law Offices of Evan S. Lipstein, Lakewood, Colorado, (John
W. Berry, Denver, Colorado, with him on the brief), for Plaintiff-Appellee.
Josh A. Marks and Andrew D. Ringel, Hall & Evans, L.L.C., Denver, Colorado,
filed a brief on behalf of the Amicus Curiae.
Before EBEL and
name="11">LUCERO, Circuit Judges, and
name="12">VRATIL, District Judge.
name="txt*">(*)
EBEL, Circuit Judge.
This appeal involves several issues arising under the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12101 - 12213. Specifically, we hold, first,
that in a case tried to a jury, the court decides whether the plaintiff has identified
"impairments" and "major life activities" recognized under the ADA, but that the
jury decides whether the plaintiff has demonstrated by a preponderance of the
evidence whether the identified impairment "substantially limits" one or more of
the identified major life activities such that the plaintiff should be considered
"disabled" for purposes of the ADA. Second, we hold that a position is "vacant,"
for purposes of considering whether an employer has a duty to transfer a disabled
employee to that position, see Smith v. Midland Brake, Inc.,
1175
(10th Cir. 1999) (en banc) (hereinafter, "Midland Brake"), only if the employer
knows, at the time the employee asks for a reasonable accommodation, that the
job opening exists or will exist in the fairly immediate future. A position is not
vacant if, as here, the employer did not know at the time the employee asks for a
reasonable accommodation that the position would become vacant in the fairly
immediate future, even if it did in fact open up a reasonable time after the
employee's request had been made. Third, we hold that the trial court was
correct in ruling that Bristol could establish discrimination by showing that the
County failed reasonably to accommodate him by reassigning him to a vacant
position. Bristol is not required to establish separate proof of discriminatory
intent. Fourth, we hold that the district court erred by not allowing the jury to
decide whether both the County and the Sheriff are properly treated as Bristol's
employers for purposes of this lawsuit.
BACKGROUND
A. Gary Bristol
Gary Bristol worked as a jailer for the Sheriff of Clear Creek County, Don
Krueger, from February 1990 to March 1996. On March 23, 1996, Bristol
suffered chest pain after he and other officers had to restrain forcibly a combative
prisoner. Bristol was taken by ambulance from Georgetown, Colorado where
he was working to St. Anthony's Hospital in Denver. Hospital employees
treated and tested Bristol's heart condition(1)
for two to three hours, but he was not
hospitalized.
Bristol's doctors decided to treat his worsened coronary condition with
medicine, rather than surgery. Dr. Jerry Sam Miklin, Bristol's cardiologist, wrote
to the Sheriff's Office stating that Bristol's weakened heart required him to
receive light-duty assignments. The Sheriff complied by assigning Bristol to
work first in the evidence vault for a week, and then on light-duty in the jail,
doing paperwork, monitoring cameras, and opening cell doors. After Bristol took
a stress-test in early April 1996, Dr. Miklin again wrote the Sheriff's office,
explaining that Bristol's heart condition was "indefinite" and that he should not
have contact with inmates or any other job that might lead to severe or strenuous
activity. By "indefinite," Dr. Miklin meant "permanent, cardiac-related
problems." Specifically, Dr. Miklin prohibited Bristol from lifting more than
fifty pounds on a continuous basis, being exposed to cold weather (except
infrequently), and being in situations that would cause emotional or physical
stress.
Bristol continued doing light-duty work in the jail from mid-April 1996 to
May 20, 1996. On May 20, 1996, however, Bristol was discharged. The
termination notice stated: "Upon review of your doctor's orders it is apparent that
you can no longer perform the essential functions of a Confinement Officer. . . . I
can not accommodate this restriction on an indefinite schedule. . . . You have the
right to appeal this decision as outlined in the Clear Creek County Personnel
Policy Manual adopted on April 5, 1994."
Bristol appealed his termination to the County Personnel Review Board
("PRB"). The hearing took place on July 11, 1996, and the PRB upheld Bristol's
dismissal. The PRB encouraged Bristol to apply for available County positions
and stated that he might be given a hiring preference if he was qualified for a job
opening.
There were at least two job openings within the County at the time of the
PRB hearing in mid-July 1996: equipment operator in the road and bridge
department, and appraiser-trainee. Bristol interviewed for both jobs. Shortly
thereafter, however, Dr. Miklin told Bristol that he could not work as an
equipment operator because that job could involve shoveling, lifting heavy
objects, or clearing obstructions off the blades of the equipment.
The County Assessor, Diane Settle, was responsible for hiring the
appraiser-trainee. The appraiser-trainee was one of five positions in the
Assessor's office. The job description for appraiser-trainee states that the person
holding that position is responsible for: (i) assessing the value of County property
by physically inspecting it and by reviewing market data on similar properties;
(ii) researching and keeping current the Assessor's computer data-base; and (iii)
responding to questions and complaints in person, by phone, and through
correspondence. The job description also lists "Required Experience," which is
described as: "[A] level of knowledge and ability to handle all routine tasks with
considerable assistance in the full range of job duties. Such a level is generally
acquired through up to two (2) years experience in a related field." The required
education is described as a high school diploma or equivalent, and the required
skills are described as (i) proficient in communications and in public relations
and (ii) moderate skill in typing, the use of PCs, ten-key calculators, and copiers.
Following standard procedure within the County, Buckley reviewed
Bristol's resume and forwarded it and the other applications to Settle. She
interviewed nine applicants for the job, including Bristol. Her interview with
Bristol lasted ten to fifteen minutes, about as long as every other interview.
Settle believed Bristol was not interested in the job because his wife had
scheduled the interview and because he gave "short, minimal" answers to her
interview questions. He seemed like he was just "going through the motions."
Settle testified that she hired a man with three years of experience in an
assessor's office. According to Buckley, Bristol was not given "preference"
when he applied for this job.
After he interviewed for the position of appraiser-trainee, the County did
not inform Bristol of any other job openings from 1996 to 1998 until he filed
this lawsuit in 1998, at which time the County told him about a bookkeeping
position, but before he could respond that job was filled. Gail Buckley was not
instructed to keep Bristol advised about other job openings.
In October or November of 1996, the job of dispatcher II came open in the
Sheriff's Office. The Sheriff's Office had three types of dispatchers: dispatcher I
(starting dispatcher with no experience); dispatcher II (experienced dispatcher);
and dispatcher III (supervisor). The dispatcher II job required two years previous
experience as a dispatcher and skills to use a dispatcher's equipment, including
specialized software, and to prioritize incoming calls by importance. Bristol had
received some training as a dispatcher when he was jailer at the Sheriff's Office,
when he had relieved other dispatchers for short periods of time. Nevertheless,
the Sheriff did not contact Bristol when the dispatcher II job came open because,
as he testified, "it had been so long since we'd heard from him that I had
forgotten about Mr. Bristol."
After being fired by the County, Bristol worked nights for about a year at a
part-time computer job he found through a temporary agency. He also worked
for two months transporting prisoners within Colorado for a private company, but
quit that job because he was dissatisfied with how the company sought to ensure
the safety of its workers. At the time of trial, Bristol was working part-time for a
rental car company driving rental cars to their outlets. He applied, but was not
hired, for positions with the Cities of Lakewood and Aurora and the Colorado
State Patrol, among others. He also received disability benefits from the County.
B. The Relationship between the Sheriff's Office and the County
In Colorado, counties and the offices of county commissioner and county
sheriff are created under separate sections of the Colorado Constitution. See
Colo. Const. art. XIV, § 1 (county), § 6 (county commissioner), and § 8
(county
sheriff). Colorado statutes define the powers and duties of counties, county
commissioners, and county sheriffs. See generally Colo. Rev. Stat. tit. 30.
Sheriffs have the power to appoint undersheriffs and deputies, as well as fix their
salaries, subject to the approval of the board of county commissioners. See Colo.
Rev. Stat. § 30-2-106(1).
Clear Creek County is governed by a Board made up of three county
commissioners. The Board establishes the budget for the Sheriff's Office.
Employees who work in the Sheriff's Office are paid out of this budget. The
Sheriff's Office uses County services for administration, including employee
benefits, accounting, bookkeeping, and personnel. The Sheriff chose to adopt a
County compensation plan. The Sheriff also consults with the County Director
on Human Resources and the County Attorney on personnel issues.
The County's Personnel Review Board reviews policies, procedures, and
personnel issues. It creates and approves job descriptions, including those for the
Sheriff's Office. The provisions of the County personnel policy manual govern
the Sheriff's employees. The Sheriff's Office has its own policy and procedural
manuals for its employees that supplement the County's general manual.
Bristol's paychecks were signed by a County commissioner. Bristol took
his personnel questions, e.g., questions about his employee benefits, to the
County human resource director.
C. Procedural History
Bristol filed suit in August 1998. A jury trial was held November 16 to 18,
1999. During the trial, the court ruled, over Appellants' objections, (1) that the
question of what constituted the "fairly immediate future" for purposes of
determining whether a position was "vacant" under Midland Brake, 180 F.3d at
1175, was to be determined by the jury, and (2) that Bristol's witness, Dr. Joanne
Bourn, would be allowed to testify as an expert.
At the close of evidence, both parties moved for judgment as a matter of
law under Federal Rule of Civil Procedure 50. Appellants sought judgment as a
matter of law under Rule 50 for the following issues: (i) only the Sheriff's
Office, not the County, qualified as Bristol's employer; (ii) the dispatcher II
position was not "vacant" because it did not become open in the "fairly
immediate future"; (iii) Bristol was not qualified for the appraiser-trainee
position; and (iv) Bristol had failed to prove that Appellants had intended to
discriminate when they failed to reassign him. Bristol moved for judgment as a
matter of law on the following: (i) determining "disability" under the ADA is a
question of law for the court and not a question of fact for the jury; (ii) Bristol
was "disabled" for purposes of the ADA; and (iii) public relations skills were a
marginal part of the appraiser-trainee position. In addition, the parties and the
court agreed that the court would determine whether the County qualified as
Bristol's employer.
Pursuant to Rule 50, the court decided: (1) the Sheriff and the County (not
just the Sheriff) were Bristol's employers; (2) whether Bristol was "disabled" for
purposes of the ADA was for the court (not the jury) to decide; (3) Bristol was
"disabled" under the ADA; and (4) Bristol did not need to prove with direct
evidence that Appellants acted with a discriminatory motive so long as there was
proof of failing to make a reasonable accommodation.
The court then submitted the case to the jury. Jury Instruction #18 directed
the jury to determine if Appellants had proven by a preponderance of the
evidence that Bristol had failed to mitigate his damages by not taking reasonable
steps to find employment after he was fired. The parties and the court believed at
that time that back-pay was an issue for the jury, so included a special verdict
question to that effect.
The jury returned a special verdict, (i) finding Bristol had proven that
Appellants had discriminated against him by failing to reasonably accommodate
his disability, (ii) awarding back-pay in the amount of $72,544, and (iii)
awarding compensatory damages(2) of
$140,000.
The court held a post-trial hearing regarding damages on December 22,
1999, at which time Appellants called three witnesses. One of those witnesses
was Sarah Nowotny, a vocational rehabilitation consultant, who testified
regarding how long it would take Bristol to find another job in the relevant labor
market. In addition, the parties stipulated to additional medical restrictions
placed on Bristol by Dr. Miklin. The stipulated restrictions prohibited Bristol
from (1) repetitive lifting of more than twenty pounds, (2) exposure to cold
weather less than forty degrees for more than ten minutes at a time, (3) activity
requiring Bristol to lift more than ten pounds with his upper body, and (4)
shoveling. Appellants filed a motion for a new trial on the ground that Dr.
Miklin's additional restrictions on Bristol constituted a material
misrepresentation of evidence at trial, and they renewed their motion for
judgment as a matter of law.
The court continued the post-trial hearing on January 18, 2000. By that
time, the parties and the court correctly recognized that, pursuant to 42 U.S.C.
McCue v. Kansas, 165 F.3d 784, 791-92 (10th Cir. 1999). The court adopted the
back-pay award given by the jury. It declined Appellants' suggestion to make
additional findings on mitigation, letting the jury's decision in that regard stand
unchanged.
The court awarded front-pay of $26,174. It arrived at that figure by
calculating two years of salary as an appraiser-trainee ($65,998) and subtracting
Bristol's probable earnings from other employment ($11,024) and anticipated
disability benefits ($28,800) over those two years. It reasoned, "I think Mr.
Bristol is going to need a little extra help in finding that job, and it may indeed
take him two years and some retraining to find a job close to what he was earning
as a jailer." The court also granted Appellants' motion for remittitur, lowering
the jury's award for compensation to the statutory maximum of $100,000, and
Bristol's motion for attorney fees of $41,609.
This appeal followed.
DISCUSSION
To establish a prima facie case under the ADA, a plaintiff must prove: (1)
he is a disabled person as defined by the ADA; (2) he is qualified, with or
without reasonable accommodation, to perform the essential functions of the job
held or desired; and (3) the employer discriminated against him because of his
disability. See Doyal v. Okla. Heart, Inc., 213 F.3d 492, 495 (10th Cir. 2000).
A. "Disability"
The ADA defines "disability" as:
(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 an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. 12102(2). At issue in this case is § 12102(2)(A). Three elements
must be established for a plaintiff to be considered "disabled" under this sub-section of the ADA:
first, plaintiff must have a recognized "impairment"; second,
plaintiff must identify one or more appropriate "major life activities"; and third,
plaintiff must show that the impairment "substantially limits" one or more of the
major life activities. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998). The
question presented in this case is who decides, the court or the jury, each of these
three steps.
Whether the court or the jury decides an issue is a matter of law reviewed
de novo. See McCue, 165 F.3d at 787. Supreme Court and Tenth Circuit
precedent provide a clear answer to this question: steps one ("impairment") and
two ("major life activity") are questions of law for a court to decide, while step
three ("substantially limits") is a question of fact for a jury.
The determination of whether a plaintiff has a "physical or mental
impairment" for purposes of the ADA involves evaluating whether the plaintiff's
alleged impairment "satisfies the statutory and regulatory definition" of an ADA
impairment. See Bragdon, 524 U.S. at 637. The Equal Employment
Opportunity
Commission (EEOC) further defines "impairment" for purposes of the ADA in 29 C.F.R. § 1630.2(h). It is well established that the list of recognized impairments
found at § 1630.2(h) is "not meant as a comprehensive enumeration" of
impairments, see Poindexter v. Atchison, Topeka & Santa Fe Ry. Co., 168
F.3d
1228, 1231 (10th Cir. 1999), but rather is a "representative list of disorders and
conditions" which aid in determining whether plaintiff's alleged impairment
qualifies under the ADA. See Bragdon, 524 U.S. at 633; see also 45 C.F.R. pt.
84, App. A, at 345 (2000) ("The definition does not set forth a list of specific
diseases and conditions that constitute physical or mental impairments because of
the difficulty of ensuring the comprehensiveness of any such list.").
name="txt3a">(3) The
exercise of ascertaining whether a plaintiff's alleged impairment satisfies the
statutory and regulatory definitions under the ADA is decidedly a legal one, and
we have treated it as such in the past. See Poindexter, 168 F.3d at 1230
("[W]hether a claimed affliction constitutes an impairment under the ADA . . . [is
a] determination[] of law for the court to decide.").
Similarly, "whether the identified endeavor constitutes a major life activity
[is a] determination[] of law for the court to decide." Id. As we have stated:
The ADA and Rehabilitation Act regulations also assist courts in
determining whether a particular endeavor may properly be
considered a major life activity. "Rather than enunciating a general
principle for determining what is and is not a major life activity,
[these] regulations instead provide a representative list, defining
[the] term to include 'functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.'" Bragdon, 524 U.S. at [638], 118
S.Ct. at 2205 (quoting 45 C.F.R. § 84.3(j)(2)(ii) (1997); 28 C.F.R. § 41.31(b)(2) (1997)); see also 29 C.F.R. § 1630.2(i) (1998).
Id. at 1231 (alterations in original). Thus, it is not surprising that we concluded
in Poindexter that "the district court erred in submitting the legal issues of
impairment and major life activity to the jury." Id. at 1232.
Before we address the question of who decides the third ("substantially
limits") step of ADA disability analysis, we pause to reiterate three other points
about steps one and two. First,
in order to state a claim under the ADA, a plaintiff must articulate
with precision the impairment alleged and the major life activity
affected by that impairment.
. . . A plaintiff has the option of clarifying his or her position at the
pleading stage or waiting until trial to prove with particularity the
impairment and major life activity he or she asserts are at issue.
Id. Second, the court must affirmatively identify those impairments and major
life activities upon which plaintiff relies and determine whether they qualify as
such under the ADA. See Doyal, 213 F.3d at 495. Third, a court need consider
only the alleged impairments and major life activities proposed by the plaintiff.
See Poindexter, 168 F.3d at 1231.
In contrast to steps one and two, step three "tying the two statutory
phrases together [by] ask[ing] whether the impairment substantially limited the
[identified] major life activity," Bragdon, 524 U.S. as 631 (emphasis added) is
a factual question for the jury. "The determination of whether an individual is
substantially limited in a major life activity must be made on a case by case
basis." Albertson's, Inc v. Kirkingburg, 527 U.S. 555, 566 (1999) (quoting 29 C.F.R. pt. 1630, App., § 1630.2(j) (1998)); see also Sutton v. United Air
Lines,
Inc. 527 U.S. 471, 483 (1999); Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th
Cir. 1998) ("Whether an impairment 'substantially limits' a major life activity
depends on the individual and the impairment. Such determinations are not
susceptible to per se rules; they must be made on a case-by-case basis.").
The ADA's regulations expounding upon the term "substantially limits"
make clear why this step is factual in nature.
(1) The term substantially limits means:
(i) Unable to perform a major life activity that the average
person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or
duration under which an individual can perform a particular
major life activity as compared to the condition, manner, or
duration under which the average person in the general
population can perform that same major life activity.
(2) The following factors should be considered in determining
whether an individual is substantially limited in a major life activity:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected
permanent or long term impact of or resulting from the
impairment.
29 C.F.R. § 1630.2(j). Determining both how well "the average person in the
general population" performs any given major life activity and whether the
plaintiff has proven he is "unable to perform" or is "significantly restricted" in
performing a major life activity involves weighing evidence and assessing
credibility of witnesses, tasks historically given to the jury in our judicial system.
See Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 625 (1991)
(stating
that when the jury is the "principal factfinder, [it is] charged with weighing the
evidence, judging the credibility of witnesses, and reaching a verdict");
Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935) (noting the
common-law distinction in which the jury finds facts and the court resolves legal
issues). Likewise, evaluating evidence regarding the three factors of
§ 1630.2(j)(2) and applying those determinations to answer the ultimate question
of whether a plaintiff has carried his burden of demonstrating that his asserted
impairment substantially limits one or more of his asserted major life activities
lie within the traditional province of the jury.
In Davoll v. Webb, 194 F.3d 1116, 1135 (10th Cir. 1999), where this
question was not squarely presented, we assumed this conclusion:
In determining whether the ADA plaintiff is substantially limited in
a major life activity, the jury should consider [three factors].
MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1444 (10th Cir.
1996) (quoting 29 C.F.R. § 1630.2(j)(2)). In determining whether
such a plaintiff is substantially limited with respect to working, the
jury should also consider [three additional factors]. Bolton v.
Scrivner, Inc., 36 F.3d 939, 943 (10th Cir. 1994) (quoting 29 C.F.R. § 1630.2(j)(3)(ii)).
Id. at 1135 n.12 (emphasis added). Sister circuits also assume that this decision
is for the jury. See Lebron-Torres v. Whitehall Labs., 251 F.3d 236, 241 (1st
Cir. 2001) (discussing that without certain evidence "a jury would not be able to
perform the careful analysis that is necessary to determine that [the plaintiff] was
substantially limited in her ability to work"); Weber v. Strippit, Inc., 186 F.3d
907, 913 (8th Cir. 1999) (entertaining the claim that "a reasonable jury could
have found that he was substantially limited in one or more major life activities").
Most circuit courts agree with our conclusion that this question is factual.
See Kiphart v. Saturn Corp., 251 F.3d 573, 582 (6th Cir. 2001) ("[D]etermining
whether an impairment substantially limits a person in a major life activity
ultimately requires an individualized, fact-specific inquiry into the effect of an
impairment on a plaintiff's life."); Maziarka v. Mills Fleet Farm, Inc., 245 F.3d
675, 679 (8th Cir. 2001) (calling the determination of whether an impairment
"substantially limits" a major life activity "highly fact-intensive"); Santiago
Clemente v. Executive Airlines, Inc., 213 F.3d 25, 32 (1st Cir. 2000) (relating
that the determination of whether a plaintiff's impairment substantially limits a
major life activity is a "fact-specific analysis"); Colwell v. Suffolk County Police
Dep't, 158 F.3d 635, 643 (2d Cir. 1998) (stating that the "substantial limitation"
inquiry is "individualized and fact-specific"); Leisen v. City of Shelbyville, 153
F.3d 805, 808 (7th Cir. 1998) ("[T]his record contains no evidence from which a
reasonable factfinder could conclude that she was substantially limited in the life
activity of working."). Cf. Wilcott v. Matlack, Inc., 64 F.3d 1458, 1460-61
(10th
Cir. 1995) (stating that the question of whether an ERISA participant was totally
and permanently disabled from any kind of work for purposes of long- and short-term disability
benefits was factual and thus reviewed for clear error). But see
Bartlett v. N. Y. State Bd. of Law Exam'rs, 226 F.3d 69, 80 (2d Cir. 1998)
("Whether an individual is substantially limited with respect to a major life
activity is a mixed question of law and fact. We therefore review this aspect of
the district court's judgment de novo.") (citation omitted).
The trial judge in this case erroneously concluded that all three steps of the
disability analysis should be decided by the court, based on misreadings of
Bragdon and Poindexter. In Bragdon, the Supreme Court wrote that to
determine
whether Respondent was "disabled" under subsection (A) of § 12102(2),
Our consideration . . . proceeds in three steps. First, we consider
whether respondent's HIV infection was a physical impairment.
Second, we identify the life activity upon which respondent relies
(reproduction and child bearing) and determine whether it constitutes
a major life activity under the ADA. Third, tying the two statutory
phrases together, we ask whether the impairment substantially
limited the major life activity.
See 524 U.S. at 631. The trial court below interpreted this passage to mean that
the court should decide all three steps in all cases. Bragdon's language is
explained, however, by the fact that the Court was reviewing cross-motions for
summary judgment. See id. at 629. Given that posture, it is unremarkable that
the
Court indicated that "we," meaning the court, should undertake every step.
Indeed, it is apparent that the Supreme Court in Bragdon assumed the
"substantially limits" step was factual when it wrote, "We agree with the District
Court and the Court of Appeals that no triable issue of fact impedes a ruling on
the question of . . . [whether] Respondent's HIV infection is a physical
impairment which substantially limits a major life activity, as the ADA defines
it." 524 U.S. at 641.
Poindexter further confused the trial court because there, in the context of
reviewing a case that had been submitted to a jury, we paraphrased Bragdon,
writing,
First, the court must determine whether the plaintiff has an
impairment. Second, the court must identify the life activity upon
which the plaintiff relies and determine whether it constitutes a
major life activity under the ADA. Third, 'tying the two statutory
phrases together, [the court] ask[s] whether the impairment
substantially limited the major life activity.'
Poindexter, 168 F.3d at 1230 (alterations in original) (citations to Bragdon
omitted). The Poindexter court continued, "Thus, the Court in Bragdon makes
clear that whether a claimed affliction constitutes an impairment under the ADA
and whether the identified endeavor constitutes a major life activity are
determinations of law for the court to decide." Id. It is notable that in
Poindexter
we did not include the third step in our conclusion that the first and second steps
are determinations of law for the court to decide. The trial court in this case,
however, incorrectly extrapolated from the foregoing that the court was also to
resolve whether an impairment "substantially limits" one or more major life
activities. Given the somewhat misleading language from Bragdon and
Poindexter, it is not surprising that the district court reached its conclusion, and
so today we seek to clarify the issue and hold that when determining whether a
plaintiff is "disabled" for purposes of the ADA, the third ("substantially limits")
step is for the jury to decide, while the first ("impairment") and second ("life
activity") steps are for the court to decide.
Applying this discussion to the facts of this case, we first find that Bristol
articulated with appropriate precision, and the district court correctly identified,
that Bristol's alleged impairment was a heart condition. Second, we find that
Bristol asserted, and the district court identified, working as the major life
activity on which he predicated his claim of "disability." After reviewing the
record, however, we believe Bristol did not articulate with precision that he was
relying on "lifting" as a second major life activity; he did not mention lifting in
his complaint or his Final Pretrial Order. Indeed, all of Bristol's evidence at trial
regarding his "substantial limitation" was directed at his ability to work. And
even in his final argument to the district court, Bristol never clearly indicated that
he was relying on lifting as a second major life activity. His counsel stated:
[T]he impairment is that he has a weakened heart that according to
Dr. Miklin is operating at something like 50 percent of normal
efficiency. . . . [T]hat results in limiting certainly the major life
activity of working. But an additional major life activity that is
mentioned by the court in Dovall, at least, is lifting. And you heard
Dr. Miklin talk about how Mr. Bristol could not lift anything more
than 50 pounds on a regular basis. But certainly in terms of
working, his lifting impacts working. His inability to be out in the
cold impacts work, and his inability to engage in strenuous activities
limits working.
While in this passage counsel mentions lifting as a major life activity, it is not
sufficiently clear whether he intends it to be distinct or supportive of working.
Likewise, the district court couched Bristol's inability to lift as a causal
factor in why he was limited in his ability to work and not as a discrete major life
activity:
The activities that are impaired or limited are his ability to have any
stressful or strenuous activity or lift heavy objects on the job. . . . It
limits one or more of his major life activities, to wit: working, . . .
more specifically, strenuous or stressful activity or lifting heavy
objects on the job.
Appellants' counsel most clearly stated the issue when, in the midst of all this
argument, he asked, "Are we talking about working being the major life activity
that the impairment affects, or are we talking about lifting?" Neither Bristol nor
the court followed up on this question and clarified that lifting was also to be
considered a major life activity. Thus, while we find the issue close, we believe
Bristol articulated with precision and pled with particularity that he was
predicating his claim of disability only on the major life activity of working.
name="txt4a">(4)
As to the third ("substantially limits") step of the ADA's disability
analysis, we find that the district court erred when it concluded that that step was
a question of law for the court to decide. It is a factual question for the jury.
Therefore, we grant Appellants' request and remand this case to the district court
for a new trial.
In so doing, we decline Bristol's suggestion to affirm the district court's
decision on the alternative ground that the court properly decided, as a matter of
law under Rule 50, that Bristol's heart condition "substantially limited" his
ability to work.(5) We review de novo a
district court's grant of a motion for
judgment as a matter of law, applying the same standard as the district court. See
Knowlton v. Teletrust Phones, Inc., 189 F.3d 1177, 1186 (10th Cir. 1999).
Judgment as a matter of law is appropriate only "[i]f during a trial by jury a party
has been fully heard on an issue and there is no legally sufficient evidentiary
basis for a reasonable jury to find for that party." Fed. R. Civ. P. 50(a)(1). "[A]
court may grant the motion only if the evidence points but one way and is
susceptible to no reasonable inferences which may support the opposing party's
position." Davis v. United States Postal Service, 142 F.3d 1334, 1339 (10th Cir.
1998) (alteration in original) (quotation marks omitted). We construe the
evidence and inferences therefrom in the light most favorable to Appellants, the
non-moving parties. See Knowlton, 189 F.3d at 1186.
In this case, Bristol would have met his burden if he had demonstrated
sufficiently that his heart condition substantially limited his ability to work:
With respect to the major life activity of working
(i) The term substantially limits means significantly restricted
in the ability to perform either a class of jobs or a broad range
of jobs in various classes as compared to the average person
having comparable training, skills and abilities. The inability
to perform a single, particular job does not constitute a
substantial limitation in the major life activity of working.
29 C.F.R. § 1630.2(j)(3)(i); see also Sutton v. United Airlines, Inc., 527
U.S.
471, 491 (1999) ("When the major life activity under consideration is that of
working, the statutory phrase 'substantially limits' requires, at a minimum, that
plaintiffs allege they are unable to work in a broad class of jobs.").
Bristol failed to carry this burden. He did not produce evidence of the job
market for "the average person having comparable training, skills and abilities,"
as we have held the regulations require. See Bolton v. Scrivner, Inc., 36 F.3d
939, 944 (10th Cir. 1994) (affirming summary judgment dismissing an ADA
claim because "[t]he evidence does not address Bolton's vocational training, the
geographical area to which he has access, or the number and type of jobs
demanding similar training from which Bolton would also be disqualified").
Neither did he show that his heart condition prevented him from working in a
broad class of jobs.
Bristol put on one expert, Dr. Joanne Bourn, to establish that his heart
condition substantially limited his ability to work. The closest she came to
testifying directly to this issue came in the following exchange on direct
examination:
Q: [D]o you have an opinion whether [Bristol is] restricted from a
substantial number of jobs that are available in the Denver
metropolitan area?
A: There will be many jobs that he would be capable of assuming the
responsibility, yes.
Q: And how about jobs that he could not do for someone with a high
school high school diploma and the experience he has?
A: There would be many limitations with that also, yes.
We make two observations regarding Dr. Bourn's first response. First, it is in the
affirmative. She responds that there are many jobs Bristol could (not "could
not") do. In context, though, it seems she (or the court reporter) omitted a
negative. Second, even if such an omission occurred, she states merely that
Bristol would not be capable of performing "many jobs." In her second response,
she says he would have "many limitations." We find that this testimony does not
rise to the level of proving that Bristol was substantially limited in his ability to
work, especially when we view the evidence in the light most favorable to
Appellants, as we must in addressing this particular argument by Bristol. The
Supreme Court has made clear that for an impairment to substantially limit the
ability to work it must prevent the plaintiff from working in a substantial class of
jobs or a broad range of jobs in various classes. See Sutton, 527 U.S. at
492-493
(stating that, even assuming plaintiffs could not work as global airline pilots,
they had not produced evidence that they could not work as regional pilots or
pilot instructors, among other positions).
Bristol attempts to buttress Dr. Bourn's testimony by noting that Bristol
had only a high school education and worked for the majority of his life in blue-collar jobs. He
also recites the specific restrictions Dr. Miklin placed upon him,
i.e., that he could not lift fifty pounds on a continuous basis, be exposed to cold
weather (except infrequently), be placed in high-stress situations, or undertake
physically strenuous activities. However, this is insufficient to establish that he
was substantially limited in his ability to work. Therefore, we conclude that
Bristol was not "disabled" as a matter of law.
We also decline to consider Appellants' suggestion that we enter judgment
as a matter of law for them on this issue. Appellants candidly admit that they did
not move for judgment as a matter of law on the issue, but they urge us to extend
to them the rule for entering summary judgment against a non-moving party,
citing Armijo v. Atchison, Topeka & Santa Fe Railway Co., 27 F.3d 481, 482-83
(10th Cir. 1994) and Dickeson v. Quarberg, 844 F.2d 1435, 1444 n.8 (10th Cir.
1988).
Initially, we note that it is rare for an appellate court to enter summary
judgment in favor of the non-moving party. See Armijo, 27 F.3d at 483 (citing
E.C. Ernst, Inc. v. Gen. Motors Corp., 537 F.2d 105, 109 (5th Cir. 1976)
("Although it is occasionally proper for an appellate court to enter summary
judgment for the non-moving party, this occurs only in the rare case in which it is
very clear that all material facts are before the reviewing court.")). More
important, however, the different procedural postures of summary judgment and
judgment as a matter of law make it inappropriate to construe opposing the latter
as equivalent to opposing the former.
"The very mission of the summary judgment procedure is to pierce the
pleadings and to assess the proof in order to see whether there is a genuine need
for trial." Fed. R. Civ. P. 56, Advisory Committee Notes, 1963 Amendment,
Subdivision (e). Prior to trial, granting summary judgment in favor of the non-moving party may
well "secure the just, speedy and inexpensive determination of
every action" by disposing of an issue or the case before the parties and the court
has invested the resources necessary to carry off a trial. See Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
In contrast, judgment as a matter of law is used during or after a trial. See
Fed. R. Civ. P. 50. By that time, the parties and the court have expended a
terrific amount of resources to produce the evidence upon which the verdict will
rest. Accordingly, Rule 50(a)(2) requires that "a motion for judgment be made
prior to the close of trial, subject to renewal after a jury verdict has been
rendered. The purpose of this requirement is to assure the responding party an
opportunity to cure any deficiency in that party's proof that may have been
overlooked until called to the party's attention by a late motion for judgment."
Fed. R. Civ. P. 50, Advisory Committee Notes, 1991 Amendment, Subdivision
(a). By the time a trial has been mounted, the judicial system has an interest in
curing defects of proof, to the extent that is reasonably possible. Thus, by failing
below to move for judgment as a matter of law, Appellants failed to afford
Bristol the opportunity Rule 50 gives him to reasonably supplement the evidence
to support his claim that his heart condition substantially limited his ability to
work. Consequently, we decline to convert Appellants' opposition to Bristol's
Rule 50 motion into opposing summary judgment and, thus, do not consider
whether we should direct a verdict for them on this issue.
In conclusion, we reverse the disposition of the trial court and remand for a
new trial consistent with this opinion.
B. "Discrimination"
Bristol alleged that Appellants discriminated against him in violation of the
ADA when they did not reassign him to either the position of appraiser-trainee in
the County Assessor's Office or the position of dispatcher II in the Sheriff's
Office. Appellants countered by arguing: (1) Bristol failed to prove that they
possessed discriminatory intent, (2) Bristol was not qualified for either position,
(3) the County was under no duty to transfer Bristol to the position of appraiser-trainee because
the Sheriff, not the County, was Bristol's employer, and (4) the
dispatcher II job was not "vacant" as a matter of law. We address each issue in
turn.
1. Intent to Discriminate
Appellants argue that the trial court erred by not requiring Bristol to prove
that the County "was motivated by discriminatory intent." They assert that this
error caused the court to improperly deny (1) their motion for judgment as a
matter of law under Rule 50 and (2) two proposed jury instructions requiring
Bristol to prove discriminatory intent. This argument has no merit. In Midland
Brake, 180 F.3d at 1167, this court held that "the failure reasonably to
accommodate (including reassignment) [is] a prohibited act of discrimination."
Thus, assuming Bristol established the other elements of his claim, when the
County failed to reassign him to a vacant position it discriminated against him.
Therefore, we affirm the district court's denial of Appellants' Rule 50 motion
and jury instructions regarding the alleged need for separate proof of
discriminatory intent.
2. Appraiser-Trainee Position
Appellants argue that they were under no duty to transfer Bristol to the job
of appraiser-trainee because the County was not Bristol's employer. In addition,
they argue that the trial court erred by denying their Rule 50 motion that Bristol
was not qualified for this position as a matter of law. For the reasons stated
below, we affirm the district court's ruling on the qualification issue, but reverse
and remand for a jury determination as to whether the County is properly
considered to be Bristol's employer.
a. The County as Bristol's employer
Under the ADA, the definition of employer is substantially similar to that
under Title VII, and this court has applied reasoning from Title VII cases to
determine whether an entity is a plaintiff's employer in the context of the ADA.
See Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir. 1999).
"Acknowledging [that a court] must consider many factors and an employee can
have more than one employer for Title VII purposes, the main focus of the
court's inquiry is the employer's right to control the means and manner of the
worker's performance." Atchley v. Nordam Group, Inc.,
(10th Cir. 1999) (quotation marks omitted) (emphasis in original). The other
factors used to determine whether an entity is a plaintiff's "employer" include:
(1) the kind of occupation at issue, with reference to whether the
work usually is done under the direction of a supervisor or is done
by a specialist without supervision; (2) the skill required in the
particular occupation; (3) whether the employer or the employee
furnishes the equipment used and the place of work; (4) the length of
time the individual has worked; (5) the method of payment, whether
by time or by job; (6) the manner in which the work relationship is
terminated; (7) whether annual leave is afforded; (8) whether the
work is an integral part of the business of the employer; (9) whether
the worker accumulates retirement benefits; (10) whether the
employer pays social security taxes; and (11) the intention of the
parties. No single factor is conclusive. Rather, the courts are to look
at the totality of circumstances surrounding the working relationship
between the parties.
Lambertsen v. Utah Dep't of Corr., 79 F.3d 1024, 1028 (10th Cir. 1996)
(footnote omitted).(6)
The district court granted Bristol's Rule 50 motion, ruling that the County
was Bristol's employer. The district court appears to have approached the issue
as a matter of law, and did not set forth any application of the Lambertsen
factors. Rather, after hearing argument from counsel, the court simply stated that
"the Court will rule as a matter of law and grant plaintiff's motion that both the
sheriff and the board of county commissioners are the employers." (Tr. 278.)
To the extent that the district court analyzed the question of the County's
status as an employer as a legal issue, it misconstrued the nature of the inquiry.
In this circuit, determining whether an entity qualifies as an employer is a fact
issue for the jury. See Zinn v. McKune, 143 F.3d 1353, 1357 (10th Cir. 1998)
(finding evidence insufficient for Lambertsen analysis to reach jury in Title VII
case); id. at 1362 (Briscoe, J., concurring) (noting that "whether [defendant] was
[plaintiff's] employer is a question of fact"). Cf. Marvel v. United States, 719
F.2d 1507, 1515 (10th Cir. 1983) (recognizing that "the determination of whether
an individual is an employee is a question of fact"). But cf. Waxman v. Luna,
881 F.2d 237, 240 (6th Cir. 1989) (analyzing whether person is employee under
ERISA as question of law); Penn v. Howe-Baker Engineers, Inc., 898 F.2d 1096,
1101 n.5 (5th Cir. 1990) (same); Holt v. Winpisinger, 811 F.2d 1532, 1536 (D.C.
Cir. 1987) (same).
To the extent that the district court couched its ruling "as a matter of law"
based on an implicit conclusion that no reasonable jury could deny the County's
employer status, see Holter v. Moore and Co., 702 F.2d 854, 855 (10th Cir.
1983)
(recognizing that, although employment relationship is question of fact, "the
sufficiency of the evidence to create an issue of fact for the jury is solely a
question of law"); see also Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d 1495,
1498 (9th Cir. 1995) ("We have long held that whether an employer/employee
relationship exists is usually a question of fact for the jury, so long as there is an
evidentiary basis for its consideration."), that conclusion was erroneous.
From Lambertsen's list, factors 3 and 5 through 11 appear to be relevant to
whether the County was Bristol's employer. However, we must begin with the
"main focus" of the inquiry: Did the County control the means and manner by
which Bristol did his work as jailer? The answer is clearly in the negative; the
Sheriff controlled how Bristol did his job day-to-day, while the County had no
role in those decisions. And even though the Clear Creek County Sheriff's
Department may have voluntarily chosen to have the County Personnel Review
Board review all terminations of the Sheriff's employees, under Colorado law the
Sheriff could not have limited his own discretion to hire or fire Bristol. See
Seeley v. Board of County Comm'rs, 791 P.2d 696, 700 (Colo. 1990) (en banc)
(holding that county sheriffs alone have the power to hire and fire their
employees, and that a sheriff does not even "possess the statutory authority to
limit his power to discharge [an employee] at his pleasure"). This would suggest
that factor six the manner in which the employment relationship is terminated
also weighs against viewing the County as Bristol's employer.
However, a reasonable jury could conclude that most of the remaining
factors weigh in favor of a finding that the County was Bristol's employer. The
County provided the jail and the equipment used in the jail (factor 3). The
County Commissioner signed Bristol's checks (factor 5). Bristol received leave
on the same basis as other County employees, and it was administered by the
County human resource director (factor 7). The County paid for all benefits
received by employees of the Sheriff's office. Typically, this includes paying
retirement benefits and social security taxes (factors 9 & 10). Further, the
County paid Bristol's disability benefits.
It is less clear what the County's and Bristol's intentions were regarding
their employment relationship (factor 8), and the jury would be within reason to
accept or reject the notion that Bristol's work was "integral to the business" of
the County (factor 11). On one hand, the jury could conclude that, insofar as
Bristol was a part of County law enforcement by virtue of working in the
Sheriff's Office as a jailer, he did work integral to the County's business of
enforcing the law and keeping good order. On the other hand, the jury could
focus on the distinct identities of the Sheriff and the County Board, and conclude
that the Sheriff's duties are no more integral to the business of the Board than the
duties of the executive are integral to the business of the legislature.
The employment relationship of Bristol and the County is a close question,
well within the jury's province.(7) While the
County did not oversee Bristol's
work day-to-day, it did have substantial control over many of the other aspects of
the terms and conditions of his employment as jailer. It was error for the district
court to preclude the jury from determining whether the County can properly be
considered Bristol's employer. We therefore vacate and remand the district
court's grant of Bristol's Rule 50 motion on this issue.
b. Bristol's qualifications for the appraiser-trainee position
Appellants assert that the district court erred in denying their motion under
Rule 50 that Bristol was not qualified for the position of appraiser-trainee as a
matter of law. We note, however, that the County reviewed Bristol's resume and
decided to interview him. This indicates that the County believed that he was
qualified enough to merit an interview. In addition, Dr. Bourn testified at length
as to why Bristol was qualified for the position of appraiser-trainee.
name="txt8a">(8) Bristol
himself also testified as to why he believed he was qualified for the position.
The jury heard testimony about the job description, which was entered as
plaintiff's exhibit #9, and why Bristol would or would not fit that description.
On appeal, we review the district court's denial of a Rule 50 motion by
examining the evidence in the light most favorable to the non-moving party, in
this case Bristol. In that light, there was clearly enough evidence to support the
court's denial of Appellants' motion and to send the issue to the jury. We thus
affirm the district court's decision.
3. Dispatcher II Position
Appellants appeal the trial court's denial of their Rule 50 motion that the
dispatcher II position was not "vacant" as a matter of law. We have held that a
reasonable accommodation may include reassignment to a vacant position if the
employee is qualified for the job and it does not impose an undue burden on the
employer. See Midland Brake, 180 F.3d at 1169. Thus, an employer is under a
duty to reassign an employee only if the employer has "vacant" positions. See
id.
at 1175. "'[A] vacant position' includes not only positions that are at the
moment vacant, but also includes positions that the employer reasonably
anticipates will become vacant in the fairly immediate future." Id.
The parties produced the following evidence: Bristol suffered his minor
heart attack in March 1996. At that time, he requested a light-duty assignment,
which the Sheriff provided. One month after Bristol took his stress test and Dr.
Miklin determined that Bristol should continue on light-duty indefinitely, the
Sheriff decided to fire him. Bristol appealed to the Personnel Review Board on
July 11, and it informed him that his termination was upheld July 16. The
dispatcher II position came open in October or November 1996. At the time the
Sheriff fired Bristol, the Sheriff did not know that the position would become
available in October or November. This final fact is dispositive, causing us to
reverse the trial court's ruling and enter judgment on this issue for Appellants.
As a matter of law, the dispatcher II position was not "vacant" at the relevant
time because it was not within the contemplation of the Sheriff when he denied
Bristol's request for a reasonable accommodation and terminated his
employment.(9)
Apparently, the district court focused exclusively on Midland Brake's use
of the term "fairly immediate future," whereas the language of the opinion makes
clear that another aspect of whether a position is vacant involves the employer's
subjective knowledge of the upcoming opening:
"[A] vacant position" includes not only positions that are at the
moment vacant, but also includes positions that the employer
reasonably anticipates will become vacant in the fairly immediate
future. See Monette [v. Elec. Data Sys. Corp.], 90 F.3d [1173,] 1187
[(6th Cir. 1996)] ("If, perhaps, an employer knows that a position for
which the disabled applicant is qualified will become vacant in a
short period of time, the employer may be required to offer the
position to the employee."); see also EEOC Guidance, at 39
("'Vacant' means that the position is available when the employee
asks for reasonable accommodation, or that the employer knows that
it will become available within a reasonable amount of time.").
Midland Brake, 180 F.3d at 1175 (emphasis added); see also 29 C.F.R. pt.
1630,
App., § 1630.2(o) (stating as an example that if "[t]he employer . . . knows that
an equivalent position for which the individual is qualified[] will become vacant
next week," then that position should be considered "vacant" and the employer
may have a duty to reassign the employee to that position when it becomes
available (emphasis added)).(10)
CONCLUSION
We REVERSE and REMAND for jury determinations the district court's
rulings on whether Bristol is substantially limited in the major life activity of
working, and as to whether the County is properly considered to be Bristol's
employer. Further, we REVERSE the district court's denial of Appellants' Rule
50 motion that the dispatcher II position was not "vacant" as a matter of law, and
enter judgment on this issue for Appellants. We REMAND for a new trial
consistent with this opinion.
No. 00-1053, Bristol v. Board of County Commissioners of the County of Clear
Creek
LUCERO, Circuit Judge, dissenting.
While I agree with most of the majority opinion and find it well-reasoned, I
write separately because I respectfully disagree with the majority's analysis of
whether the County was an employer of Bristol. Short of upsetting Colorado's
system of local government, we could not uphold a jury finding of fact that
plaintiff is an employee of the County. I therefore ultimately conclude that as a
matter of law the plaintiff cannot be an employee of the County. We should
respect the constitutional scheme that the State of Colorado has created to govern
its various counties, and we should not empower a jury to force one state
constitutional officer to be responsible for the actions of another.
I
I agree with the majority that the multi-factor test we developed in
Lambertsen v. Utah Department of Corrections, 79 F.3d 1024, 1028 (10th Cir.
1996), is the correct starting point for our analysis. I also agree that, as a general
rule, "determining whether an entity qualifies as an employer is a fact issue for
the jury." (Majority Op. at 33.) However, in this particular context the
combination of the Lambertsen test with Colorado constitutional and statutory
law regarding local government requires a finding that, as a matter of law, the
County could not have been plaintiff's employer.
As the majority correctly points out, the "main focus of the court's inquiry
is the employer's right to control the manner of the worker's performance."
Atchley v. Nordam Group, Inc.,
omitted). The majority and I agree that the County clearly did not have control
over the manner of Bristol's performance in this case, and the majority
acknowledges that the Sheriff had complete control over Bristol's job
performance. But a close examination of Colorado law makes clear just how
complete and exclusive the Sheriff's control over his employees is.
The county sheriff is a constitutional office in Colorado, a position that is
separate and distinct from the board of county commissioners. See Colo. Const.
art. XIV, § 6 (election of county commissioners), § 8 (election of sheriffs and
other county officers). Colorado state law explicitly provides that sheriffs have
the power to hire and fire employees at will. Colo. Rev. Stat. § 30-10-506. The
Colorado Supreme Court has not only held that county sheriffs alone have the
power to hire and fire their employees, but also that a sheriff does "not possess
the statutory authority to limit his power to discharge [an employee] at his
pleasure." Seeley v. Bd. of County Comm'rs, 791 P.2d 696, 700 (Colo. 1990)
(en banc) (quotation omitted) (holding that a county sheriff had the power to hire
and fire employees at will, despite adoption of a personnel manual that purported
to limit that power). Thus, even though the Clear Creek County Sheriff's
Department may have voluntarily chosen to have the County Personnel Review
Board review all terminations of the Sheriff's employees, under Colorado law the
Sheriff could not have restrained his discretion to hire or fire Bristol in this
manner. At any time he could have disregarded the Personnel Review Board's
recommendations.
Other Colorado state court cases emphasize the lack of control that a
county's board of county commissioners has over a sheriff's employees and over
the employees of other county officials whose independence is protected under
Colorado law and the Colorado Constitution. See, e.g., Schroeder v. Bd. of
County Comm'rs, 381 P.2d 820, 82223 (Colo. 1963) (holding that once a board
of county commissioners has approved the salary for an employee, it could not
have used its budgetary power over the county superintendent of schools to force
him to fire that employee, where the superintendent's power to hire and fire was
established by state law); Tunget v. Bd. of County Comm'rs, 992 P.2d 650, 652
(Colo. Ct. App. 1999) (holding that the sheriff, not the county or board of
commissioners, was liable for injuries resulting from the sheriff's employees'
negligence because "[t]he sheriff, not the county or the Board, has the right of
control with respect to the [sheriff's] deputies").
name="txt1b">(1)
Federal district courts have also considered control by a county over a
sheriff's employees to be a factor in the context of suits under Title VII of the
Civil Rights Act and 42 U.S.C. § 1983. A number of courts have stated that the
sheriff can terminate his employees at will, regardless of the existence of a
county personnel manual or other actions by a board of county commissioners.
See Goodwin v. Debekker, 716 F. Supp. 1363, 1365 (D. Colo. 1989) (holding
that a sheriff had not limited his discretion to fire an employee through adoption
of the county's personnel policy manual); Jackson v. Johns, 714 F. Supp. 1126,
1130 (D. Colo. 1989) (same); see also Harrison v. Bd. of County Comm'rs, 775
F. Supp. 365, 369 (D. Colo. 1991) ("Colorado law is clear that a sheriff may
revoke the appointment of a deputy sheriff at his or her pleasure."); Coover v.
Summit County, No. 86-F-12, 1986 WL 28915, at *2 (D. Colo. Mar. 21, 1986)
(holding that a sheriff's employee does not have a property interest in his job
because he can be terminated at will by the sheriff, and "[t]his mandate could not
be abrogated or restricted at the county level").
name="txt2b">(2)
Of the other eleven Lambertsen factors, the majority concludes that eight
might be pertinent. (Majority Op. at 34.) Even though Lambertsen does not
prescribe a quantitative analysis, for the purposes of this discussion I do not
dispute the majority's determination that factors five (method of payment), seven
(annual leave), nine (accumulation of retirement benefits), and ten (payment of
social security taxes) might weigh in favor of finding that the County was the
employer of plaintiff. I concur with the majority's conclusion that it is unclear in
which direction factor eleven (the intentions of the parties regarding the
employment relationship) points. (Id. at 35.) I also agree with the majority's
conclusion that factor six (the manner in which the employment relationship is
terminated) weighs in favor of finding that the County is not plaintiff's employer
because, under Colorado case law, the Sheriff's Department could have ignored
any recommendation of reinstatement by the Personnel Review Board. (Id.)
According to the majority's analysis of factor eight of the Lambertsen test,
it is unclear whether Bristol's work was "integral to the business of the County"
because the Sheriff's Department is involved in law enforcement, which is one of
the responsibilities of the County. (Id.) I conclude, however, that it is
impossible as a matter of law for this factor to be resolved in favor of plaintiff.
There is a significant and essential distinction between the Board's power to pass
laws to be enforced by the Sheriff, a legislative function, and the Sheriff's
powers to enforce those laws, an executive function. As the majority notes, the
Sheriff's duties are thus no more integral to the business of the Board than the
duties of the executive of any government are integral to the business of the
legislature. (Id. at 36.)
I also disagree with the majority's conclusion that factor three (the
provision of equipment and place of work) weighs in favor of finding that the
County was plaintiff's employer. The majority argues that because the County
provided the jail and the equipment used in the jail by the Sheriff, the County
might be considered plaintiff's employer. (Id. at 35.) But the Board is also
responsible for "providing and maintaining adequate courtrooms and other court
facilities" for state judicial officers. Colo. Rev. Stat. § 13-3-108. By the same
logic, this would mean that the Board might be responsible for the hiring and
firing of all judicial employees in Colorado, even though it is the state that funds
the courts, and it is the judicial branch itself that establishes salaries, personnel
policies, and its own budget. Id. §§ 13-3-104 to -106. I cannot conclude
that
factor three has any meaningful weight in this context.
The Colorado Constitution and Colorado state law have created a system of
independent, separate constitutional county offices, with each office responsible
for its own employees. Under the most important element of the Lambertsen
test--the right to control a worker's performance--the evidence is overwhelming
that the County had no control at all over Bristol. To my mind, this fact is what
matters most. While it is true that no one factor is to be determinative in the
Lambertsen analysis, control is the "main focus" of the inquiry, Lambertsen, 79
F.3d at 1028, especially when the other eleven Lambertsen factors are fairly
evenly balanced.
Under Colorado law it was impossible for the County to have had control
over the Sheriff's decision to fire plaintiff in this case. But a jury finding that
the County was the employer of plaintiff would effectively be a finding that the
County could have had control over the Sheriff's decision. Such a finding would
be counter to Colorado law and would have to be overturned on a motion for
judgment as a matter of law. Therefore, I conclude that a proper application of
Colorado constitutional and statutory law to the facts of this case would yield a
Lambertsen analysis that holds as a matter of law that the County is not an
employer of Bristol.
There is an additional way in which a jury finding in favor of plaintiff and
against the County would undermine Colorado's local government structure.
Without naming the County Assessor as a party, plaintiff seeks relief against the
County because of the claimed discriminatory refusal by the County Assessor to
hire him. (Majority Op. at 3031.) Like the Sheriff, the Assessor is a
constitutional officer whose position is established separately from the Board of
County Commissioners. See Colo. Const. art. XIV, § 8 (election of assessors and
other county officers). And like the Sheriff, Colorado law provides that the
Assessor has the power to hire and fire his own employees. See Colo. Rev. Stat.
§ 30-2-104 (stating that the "county assessors . . . may appoint such deputies,
assistants, and employees as shall be necessary"). The Colorado Supreme Court
has held that, under this statutory provision, county officers have the independent
power to determine who should fill positions within their departments, and that
the board of county commissioners may not interfere with those decisions. See
Schroeder, 381 P.2d at 82223 (interpreting a previous version of §
30-2-104
with identical relevant language, and holding that the county cannot effectively
eliminate a position previously established by a county officer and approved by
the board by refusing to fund the position). In suing the County over the
Assessor's decision not to hire plaintiff, plaintiff is, in essence, asking that the
Board be held liable for a hiring decision--the decision by the County Assessor
not to hire plaintiff--over which it had no power under Colorado law.
II
Principles of comity and federalism reinforce my analysis of this issue.
The above discussion of control over a sheriff's employees must be
considered in the broader context of Colorado constitutional law. Division of
authority over local government employees is part of a larger structure of county
offices and county government that was established by the people of Colorado
when they formed their constitution. See Colo. Const. art. XIV, §§ 6, 8.
Colorado courts have gone to great lengths to protect this constitutional
scheme, and the state supreme court has repeatedly emphasized the independence
of the various county constitutional offices both from other county officials and
from the state legislature itself. For example, it has held unconstitutional state
laws that attempted to place qualifications on holding the office of sheriff
because the constitution explicitly lists the qualifications that must be met by
elected sheriffs. Jackson v. Colorado, 966 P.2d 1046, 1051 (Colo. 1998) (en
banc). The Colorado Supreme Court has come to the same conclusion with
respect to County Assessors. See Reale v. Bd. of Real Estate Appraisers, 880
P.2d 1205, 1211 (Colo. 1994) (en banc) ("The Colorado Constitution reserves no
authority in the state legislature to change, add to, or diminish the qualifications
for constitutionally created offices.").
Colorado county constitutional officers are officers with limited powers.
For instance, officers such as sheriffs may not undertake actions that are not
within their inherent or statutory authority. See, e.g., Douglass v. Kelton, 610
P.2d 1067, 1068 (Colo. 1980) (en banc) (holding that sheriffs had no power to
issue permits for concealed weapons, because such power was not granted to
them by statute, nor was it part of the inherent authority of a sheriff); Skidmore
v. O'Rourke, 383 P.2d 473, 47677 (Colo. 1963) (en banc) (holding for the same
reasons that a county treasurer did not have the power to file suit to recover taxes
owed).
A finding of fact by the jury that the County was plaintiff's employer
would undermine the constitutional scheme for county offices created by the
people of Colorado and protected by Colorado case law. A conclusion that
Bristol, a member of the Sheriff's Department, is an employee of the County
would make the County responsible for finding an alternate position for Sheriff's
Department employees who have been fired by the Sheriff. Not only would this
undermine the independence of the Sheriff, but it would also create a strong
incentive for the County to interfere with the Sheriff's constitutionally and
statutorily protected right to hire and fire employees, because the County would
be liable for those decisions. Moreover, because a jury finding for plaintiff
would, in the future, require the County to seek alternate positions for Sheriff's
Department employees, the County might even be forced to exceed its statutory
and constitutional powers in order to fulfill that requirement.
Likewise, a finding by a jury that the County was liable for the Assessor's
decision not to hire plaintiff would be contrary to Colorado law and would
undermine Colorado's constitutional scheme for local government. Such a
finding would provide an incentive for the County to interfere in the decision of
the Assessor and other county officers to hire and fire employees, contrary to the
provisions of Colorado Revised Statutes § 30-2-104. In essence, the federal
courts would be holding a Colorado governmental agency liable for failing to
exceed its statutory authority under Colorado law. There must be few, if any,
actions that we could take that would be more corrosive of the sovereignty of the
State of Colorado and of our federal system of government.
These considerations buttress my conclusion that the County cannot be
Bristol's employer. As we have the ability, reasonably and plausibly, to apply a
statute to avoid intrusion on state governmental functions we should do so. See
Lyes v. City of Riviera Beach, 166 F.3d 1332, 134344 (11th Cir. 1999) (holding
that "federalism and comity concerns . . . should play a significant role in
determining whether to treat as one body two governmental entities that are
separate and distinct under state law," and that "substantial deference" should be
accorded to "a state lawmaking body's determination of whether two or more
governmental entities are separate and distinct" for Title VII purposes); cf.
Gregory v. Ashcroft,
ambiguous it should be interpreted in a manner to avoid intrusion on state
government functions). I would hold that, as a matter of law, the County is not
an employer of Bristol, and that the County therefore had no obligation to
accommodate Bristol.
This presents the basis of my dissent.
FOOTNOTES
Click footnote number to return to corresponding location in the text.
*.Honorable Kathryn H. Vratil, District Court
Judge, District of Kansas,
sitting by designation.
1.Bristol began having heart troubles in
1991. After a mild heart attack, he
had bypass surgery to clear one artery of obstruction. As a result of this initial
heart problem and surgery, Bristol did not go to work for four to five months.
2.Under the ADA, back-pay and front-pay
are not "compensatory damages."
See McCue v. Kansas, 165 F.3d 784, 791-92 (10th Cir. 1999).
3.Strictly speaking, 45 C.F.R. pt. 84, App. A
applies only to the
Rehabilitation Act, but courts have applied statements from this appendix to cases
involving the ADA. See Bragdon, 524 U.S. at 633; Poindexter, 168
F.3d at 1231.
4.Even if Bristol had articulated lifting as a
major life activity, it likely
would not avail him for two reasons. First, he produced evidence that his heart
condition prevented him from lifting more than fifty pounds on a continuous
basis. "A number of courts have held that lifting restrictions similar to
[Bristol's] are not substantially limiting. . . ." Thompson v. Holy Family Hosp.,
121 F.3d 537, 539-40 (9th Cir. 1997) (finding that a 25 pound lifting restriction
for continuous lifting and a 50 pound restriction no more than twice a day did not
"substantially limit" plaintiff's ability to lift and citing supporting cases from the
Fourth, Fifth, and Eighth Circuits). Second, Bristol pointed to no evidence of
how much the average person can lift. Without this evidence, a factfinder cannot
make the comparison between Bristol and the "average person" as ADA
regulations require. See Doyal, 213 F.3d at 497 ("Because [plaintiff] introduced
no evidence suggesting she experienced greater difficulty than anybody else
learning the new computer system or any other new material, she has failed to
demonstrate that she was significantly restricted in learning.").
5.Of course, our clarification today that this
third step is factual and
reserved for the jury does not preclude a court from deciding it in the appropriate
circumstance, e.g., upon a motion for summary judgment (Rule 56) or judgment
as a matter of law (Rule 50).
6.This court, like others, has lifted the
Lambertsen factors from the context
of distinguishing between employees and independent contractors and applied
them to ADA and Title VII cases. As such, they serve as rough-and-ready
reminders in what is simply a totality-of-the-circumstances test.
7. We recognize that, in Owens v.
Rush, 636 F.2d 283 (10th Cir. 1980), this
court held that, for purposes of determining the scope of Title VII's coverage,
"the Sheriff should be considered an agent of the County." Id. at 287. Even
though Title VII excluded employers with fewer than fifteen employees, the court
reasoned that the Sheriff (with fewer than fifteen employees) was not excluded
because the County had more than fifteen employees. The court's agency finding
was based on the fact that the Sheriff "is elected by the body politic and acts on
its behalf in enforcing the state's laws." Id. at 286.
We find that Owens has little relevance to this case, as the essential
question here is whether the County should have independent liability to Bristol
as a co-employer, whereas in Owens the issue was only whether the Sheriff fell
within the statutory definition of an employer under 42 U.S.C.
virtue of being an "agent" of the County. The determination of whether two
entities can be considered a "single employer" to meet the fifteen-employee
requirement is not coextensive with the determination of whether a valid claim
may be stated against both entities. See 1 Lex K. Larson, Employment
Discrimination § 5.03[1], at 5-24 (2d ed. release 58, June
2001).
8.Appellants argue that the trial court erred in
permitting Dr. Bourn to testify
as an expert witness for Bristol. "[T]he district court has broad discretion in
determining whether or not to admit expert testimony, and we review a decision
to admit or deny such testimony only for abuse of discretion." Orth v. Emerson
Elec. Co., White-Rodgers Div., 980 F.2d 632, 637 (10th Cir. 1992). "It is within
the trial court's broad discretion to decide whether or not an expert's testimony
will 'assist the trier of fact to understand the evidence or determine a fact in
issue.'" Id. (quoting Rule 702). Appellants present no evidence that the trial
court abused its discretion in concluding that Dr. Bourn would assist the
factfinder to understand the evidence about whether Bristol was qualified for the
positions he sought and about whether his heart condition substantially limited
his ability to work. Thus, we affirm the trial court's decision to admit her as an
expert witness.
Appellants further object that the district court erred in permitting Dr.
Bourn to testify that Bristol could be trained for the appraiser-trainee position.
Since Appellants did not object to Dr. Bourn's testimony regarding training when
she was giving it, we review this objection for plain error. See Pandit v. Am.
Honda Motor Co., Inc., 82 F.3d 376, 379 (10th Cir. 1996); Fed.R.Evid. 103(d).
We decline to exercise our discretion to address this alleged error because it
clearly does not seriously affect the fairness, integrity, or public reputation of
these judicial proceedings. See Jones v. United States, 527 U.S. 373, 389
(1999).
9.Since we find as a matter of law that the
dispatcher II position was not
"vacant," we need not consider Appellants' further arguments that Bristol was
not qualified for it or that he did not participate in the interactive process.
10.Appellants further complain that the
trial court erred in denying their jury
instructions that related to (1) how Bristol's impairment "substantially limited"
his ability to work, (2) whether the County was Bristol's employer, and (3)
whether Bristol needed to prove affirmatively that Appellants intended to
discriminate against him. As Appellants acknowledge, this complaint is
derivative of our consideration on the merits of each of the above issues. Thus,
given our dispositions above, we hold that the trial court (1-2) erred in not giving
jury instructions on "substantially limited" and on whether the County was
Bristol's employer, and (3) did not err in refusing to give an instruction regarding
whether Bristol proved that Appellants intentionally discriminated against him.
In addition, given our rulings, Appellants' argument for a new trial is moot.
Finally, Appellants appeal several rulings pertaining to remedies. Because
those asserted errors do not appear likely to recur in the event of a retrial, we
decline to consider them given our reversal and remand on the issue of liability.
1. While a board of county commissioners
may have to approve the overall
budget of a sheriff's department and the salaries of the sheriff's employees, the
Colorado Supreme Court has indicated that the sheriff is free to adjust the number
or salary of his employees as long as he stays within the overall budget provided
by the board. See Tihonovich v. Williams, 582 P.2d 1051, 105556
(Colo. 1978)
(en banc).
2. Two federal district courts have held that
sheriff's department employees
are employees of the county. See Robertson v. Bd. of County Comm'rs, 985 F.
Supp. 980, 985 (D. Colo. 1997) (holding that sheriff's department employees are
employees of the county for purposes of a Fair Labor Standards Act suit because
of the board's approval of salaries and budget); Johnson v. Bd. of County
Comm'rs, 859 F. Supp. 438, 442 (D. Colo. 1994) (holding that a board is the
plaintiff's employer for purposes of Title VII). Both of these cases relied to a
great extent on our decision in Owens v. Rush, 636 F.2d 283 (10th Cir. 1980).
See Robertson, 985 F. Supp. at 985; Johnson, 859 F. Supp. at 441. I
agree with
the discussion in the majority opinion that while Owens does control the fifteen-worker
jurisdictional issue, it is not controlling on the issue of who has
responsibility to provide accommodation to a worker. (Majority Op. at 36 n.7.)
Moreover, both of these cases relied on the ability of a board of county
commissioners to control the number and salary of a sheriff's employees through
the budgetary process. See Robertson, 985 F. Supp. at 985; Johnson,
859 F.
Supp. at 441. However, as pointed out in note 1, supra, the mere fact that the
number or salary of employees can be controlled through the budgetary process
does not mean that a board can also determine the hiring and firing of particular
employees. And as the Colorado Supreme Court held in Schroeder, 381 P.2d at
82223, a board of county commissioners (despite its budgetary authority) has no
power to order the termination of a particular employee of a county officer.
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This document cites
- U.S. Court of Appeals for the Tenth Circuit - Caryn Mccue, Plaintiff-Appellee-Cross-Appellant, v. State of Kansas, Department of Human Resources; Joe Dick; Joseph Ybarra; Bill Medlock; Bob Molander, Defendants-Appellants-Cross-Appellees., 165 F.3d 784 (10th Cir. 1999)
- U.S. Court of Appeals for the Tenth Circuit - William Adrian Butler, Plaintiff-Appellant, v. City of Prairie Village, Kansas; H. Monroe Taliaferro, Jr., Mayor; Barbara J. Vernon, City Administrator; Carol Pendleton, Chairman of Policy and Services Committee; Jerald R. Robnett, Former Director of Public Works Department, Defendants-Appellees., 172 F.3d 736 (10th Cir. 1999)
- U.S. Court of Appeals for the Tenth Circuit - Pierre Knowlton, Plaintiff-Appellee Cross-Appellant, v. Teltrust Phones, Inc., a Utah Corporation, Defendant-Appellant Cross-Appellee., 189 F.3d 1177 (10th Cir. 1999)
- U.S. Court of Appeals for the Tenth Circuit - Carol Doyal, Plaintiff - Appellant v. Oklahoma Heart, Inc., Defendant - Appellee., 213 F.3d 492 (10th Cir. 2000)
- U.S. Court of Appeals for the Tenth Circuit - Jerilyn Zinn, Plaintiff-Appellant, v. David Mckune, in His Individual and Official Capacity; State of Kansas Department of Corrections; Fritz Young, Defendants-Appellees., 143 F.3d 1353 (10th Cir. 1998)
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