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holding that plaintiff's inability to work, due to flare-ups of his diabetes, for 21 days in a six month period was sufficient to support a finding that plaintiff was substantially limited in the major life activity of working
Summary of this case from Brown v. BKW Drywall Supply, Inc.Opinion
CASE NO. 98-CV-4233-JPG.
June 21, 2001.
MEMORANDUM OPINION AND ORDER
Before this Court is a post-trial motion filed by Defendant Continental General Tire, Inc. (Doc. 76, 77). Plaintiff Adrian Carruth ("Carruth") has responded (Docs. 78, 79), and Continental has replied (Doc. 80). For the following reasons, this motion is denied.
I. BACKGROUND
This case involved allegations that Continental, Carruth's former employer, violated the Americans with Disabilities Act ("ADA") and the Family and Medical Leave Act ("FMLA") when it took adverse employment actions against Carruth because he had diabetes mellitus and because he asserted his rights under the FMLA. As to Carruth's ADA claim, a jury found that Carruth, who suffers from diabetes mellitus, was substantially limited in a major life activity and awarded him $175,000 in damages along with an additional $250,000 in punitive damages. As to Carruth's FMLA claim, a jury found that Continental retaliated against Carruth for exercising his rights under the FMLA and awarded Carruth $75,000 in damages.
Continental, unhappy with the adverse jury verdict, moved to reduce all damage awards. Continental urged arguments similar to the ones currently before this Court. Without going into the reasoning, it is enough here to say that this Court capped Carruth's total recovery on his ADA claim to $300,000 pursuant to 42 U.S.C. § 1981a (Doc. 70, at p. 12), reduced the jury award's of $75,000 for compensatory damages to $50,195.27 (Doc 70, at pp. 12-13; Doc. 73, at pp. 2-3), and determined the proper amount of prejudgment interest and FMLA liquidated damages.
II. DISCUSSION
Continental has now fired another round of post-trial motions. Continental now seeks judgment notwithstanding the verdict as to both claims, a new trial based on various trial errors, and for additional remittur of the amount of verdict and judgment. This Court will address each request in turn.
A. Motion For Judgment As A Matter Of Law
Continental moves for judgment notwithstanding the verdict on both claims. Continental's motion "can be granted only when reasonable people, viewing the facts most favorably to the plaintiff and disregarding conflicting unfavorable testimony, could not conclude that the plaintiff has made out a prima facie case." Thomas v. Stalter, 20 F.3d 298, 301 (7th Cir. 1994) (quotations and internal quotation marks omitted).
1. ADA claim
Continental argues that there was no evidence upon which a reasonable jury could have found Carruth substantially limited in a major life activity (Doc. 76, ¶ 2). Specifically, Continental maintains that a reasonable jury could never have viewed Carruth as substantially limited in working, arguing that (1) because Carruth's blood sugar flare-ups were largely controlled through corrective measures, he cannot be considered disabled; and, alternatively, (2) because Carruth's blood sugar flare-ups were so infrequent and had such a minimal adverse impact on his ability to show up to work, the flare-ups could not have "substantially limited" his ability to work generally.
First, Continental argues that Carruth cannot be disabled under the ADA because, after taking into account mitigating measures, his diabetic condition is largely controllable. In support, Carruth relies on Sutton v. United Airlines, Inc., 527 U.S. 471 (1999). There, severely myopic job applicants brought an ADA discrimination action against an airline, challenging the airline's minimum-vision requirement for the position of global pilot. The applicants argued that, without glasses, they could hardly see. They urged the Court to access their visual impairments without reference to any correcting measures they could have employed, even measures that could, with ease, fully correct their impairments forever (e.g., wearing glasses).
The Court rejected that argument, concluding that "[a] `disability' exists only where an impairment `substantially limits' a major life activity, not where it `might,' `could,' or `would' be substantially limiting if mitigating measures were not taken." Id. at 482. The Court was satisfied that the applicants' myopic vision was not a "disability" under the ADA, inasmuch as the applicants themselves admitted that wearing glasses would fully correct their visual impairment forever. See id. at 488. See also id. at 482-83 (noting three times that an individual is not disabled if his impairment "is corrected").
Noteworthy was the Court's avoidance of the issue of whether individuals, who are unable to always fully control their impairment despite taking the prescribed correcting measures, could still be disabled. The Court did note that "one has a disability . . . if, notwithstanding the use of a corrective device, that individual is substantially limited in a major life activity." Sutton, 527 U.S. at 488 (emphasis added). Illustrating this principle, the Court stated that "individuals who take medicine to lessen the symptoms of an impairment so that they can function but nevertheless remain substantially limited" are disabled. Id. (emphasis added). Therefore, an individual can apparently be "disabled" due to impairments and limitations that persist despite that individual's use of all of the prescribed mitigating measures. See Murphy v. United Parcel Service, Inc., 527 U.S. 516, 521 (1999) ("Because the question whether petitioner is disabled when taking medications is not before us, we have no occasion here to consider whether petitioner is `disabled' due to limitations that persist despite his medication. . . .").
The Seventh Circuit's recent case of Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001), supports this conclusion. There, insulin-dependent diabetic John Lawson applied for a train conductor job with CSX, was turned down, and sued CSX for discriminating against him because he had diabetes. Lawson had been diabetic since birth. To manage his disease, Lawson had to "monitor carefully blood sugar levels and minimize fluctuations in his blood sugar." Id. at 918. Lawson's monitoring required "`continued vigilance' and strict adherence to `a perpetual multi-faceted and demanding treatment regime'" Id. In addition to injecting himself with insulin, Lawson had to "follow a diet plan, exercise daily, and test his blood sugar several times a day." Id. Throughout his life "Lawson has had great difficulty regulating his blood sugar levels" which has lead to flare-ups during which he experiences "`wildly fluctuating glucose levels with hyperglycemia'" and, at times, severe hypoglycemic reactions. Id.
Lawson wanted to be a train conductor. So he applied to a train conductor trainee program that was offered by CSX through his local community college. See id. at 920. After being cleared by his doctor to work despite his diabetes, Lawson began the five-week training and completed it with good grades. Afterward, Lawson interviewed with CSX, informing the interviewers that he had diabetes, that his diabetes substantially prevented him from working for a number of years, and that he had been educating his classmates about the symptoms and treatment of hypoglycemia. CSX denied Lawson a job, and there was evidence that CSX's reason for doing so was phony. After Lawson filed suit against CSX for disability discrimination, CSX reconsidered its earlier decision and hired him.
The district court held that Lawson was not substantially limited in his ability to work or eat for purposes of ADA as result of his treated diabetes. First, the court decided that the evidence Lawson produced that he was substantially limited in working (i.e., Lawson's testimony that he had been unable to work for years) was not credible. The court also noted that, since he was rehired, Lawson had been able to work just fine. Second, after noting that Lawson had a fairly extensive dietary treatment regimen, the court held that an individual could only be substantially limited in eating if his "actual physical ability to ingest food is restricted." Id. at 924. Finding no physical food barrier preventing Lawson from ingesting, the court found that Lawson's extensive dietary treatment regimen (and the consequences of failing to follow it) was not a substantial limitation on his ability to eat when he was compared with the rest of the population.
Normally, judges do not make credibility determinations or weigh evidence on summary judgment motions.
The Seventh Circuit reversed the district court, finding evidence that Lawson was substantially limited in eating. The court noted that Sutton required courts determining whether a claimed disability is substantially limiting to "examine the plaintiff's condition as it exists after corrective or mitigating measures used to combat the impairment are taken into account." Id.
The Seventh Circuit did not address wh ether Lawson w as actually substantially limited in w orking. Carruth never submitted a jury instruction that listed eating as a major life function.
Thus, with respect to Lawson, the court found that it had to consider the beneficial effect that Mr. Lawson's diabetes medication had in controlling his condition when determining whether he was substantially limited in his ability to eat. See id. Citing evidence that Lawson's restrictions were actually severe, the court distinguished his eating restrictions from other eating restrictions that courts failed to find substantially limiting (e.g., not being able to eat peanuts). The court noted that, after experiencing a blood sugar drop, Lawson had to stop everything and desperately search out the right types of foods that could bring his blood-sugar levels back to normal so that he did not become dizzy, weak, incoherent, or otherwise incapacitated. See id. at 924-25. The court also cited evidence that "even when taking insulin, Mr. Lawson's `ability to regulate his blood sugar and metabolize food is difficult, erratic, and substantially limiting.'" Id. at 924 (emphasis added). Ultimately, the court held that "a jury could find that the prescribed treatment Mr. Lawson must take to survive with diabetes causes symptoms that substantially limit the major life activity of eating." Id. at 926.
The court made one more observation worth noting. It distinguished Sutton noting that, unlike the mitigating measures diabetics normally take, the mitigating measures in Sutton could easily, fully, and indefinitely correct the impairment at issue:
The wearing of corrective lenses to neutralize the effects of myopia, at issue in Sutton, 527 U.S. at 475, involves none of the coordination of multifaceted factors or the constant vigilance that, according to this record, Mr. Lawson must demonstrate on a daily basis.Id. at 925-26. See also Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 599-600 (7th Cir. 1998) (noting that the impairing effects of lupus, which "lie dormant and flare from time to time," could support an inference that she was disabled after the first lupus flare). In making these statements, the court distinguished the type of mitigating measures available to diabetics as opposed to the ones available to the severely-myopic plaintiffs in Sutton and reiterated a court's obligation to undertake "an individualized inquiry based on the particular circumstances of each case" to determine whether the actual limiting effects could reach the level of "substantial." Id. at 926.
In this case, while Carruth's diabetic condition is largely controlled by corrective measures, Carruth still suffered blood sugar flare-ups despite taking all of the prescribed mitigating measures (e.g., monitoring diet, exercise, etc.). To start, two things are clear. The first is that Carruth is not substantially limited from working simply because he has diabetes. See Sutton, 527 U.S. at 482 (noting that diabetics have to show how they were substantially limited in a major life activity after taking the prescribed mitigating measures). The second is that Carruth is not insubstantially limited in working simply because the underlying impairment causing his limitation is diabetes. See Lawson, 245 F.3d at 926 (rejecting the belief that Sutton stands for the proposition "that no diabetic can ever be considered disabled under the ADA's meaning"). Instead, this Court must assess whether the actual (as opposed to hypothetical) limiting effects of Carruth's condition still "substantially limited" his ability to work generally after taking into account the mitigating measures. Here, Carruth had a number of diabetic flare-ups despite taking the prescribed mitigating measures. Therefore, this Court must determine whether a jury was entitled to find that the cumulative effects of the limiting effects Carruth faced after taking the prescribed mitigating measures "substantially limited" his ability to work generally.
It would be strange if courts started treating the Supreme Court's diabetic dicta as a bases for treating dia betic impairm ents more unfavorably than other impairments. Indeed, this illness-classification approach is the exact approach that the Supreme Court rejected when it used its diabetic example. The Supreme Court's command was clear: look at the evidence of the actual limitations that the impairment causes; do not focus on the impairment's name.
The Supreme Court's did not declare diabetes to be a per se non-disability in Sutton. Rather, it intimated that diabetics who choose not to monitor their blood sugar cannot complain about subsequent blood sugar bouts caused by that failure. See Sutton, 527 U.S. at 483 . Indeed, a "per se non-disability" reading of this dicta in Sutton would fly in the face of the Court's own repeated admo nitions that courts must undertake an individualized disability inquiry. See Albertson's, Inc. v. Kirkingbu rg, 527 U.S. 555, 566 (1999) (noting that "the Court of Appeals did not pay much heed to the statutory obligation to determine the existence of disabilities on a case-by-case basis"). The Court had little sympathy for diabetics" if they failed to monitor their blood sugar levels. . . ." Sutton, 527 U.S. at 483. Sutton's "if they failed to monitor" language was geared more to the diabetics that failed to monitor their conditions at all, not the ones who did monitor it but whose monitoring turned out to be not alway successful. See id. at 488 (noting that "one has a disability . . . if notwithstanding the use of a corrective device, that individual is substantially limited in a major life activity").
Having rejected Continental's argument that diabetes is a per se non-disability because it can be controlled most of the time, this Court must consider Continental's second argument that Carruth failed to present sufficient evidence at trial for a jury to find that his diabetic condition could have "substantially limited" his ability to work generally. Continental notes that Carruth worked, at the very least, from November 20, 1995, to May 20, 1996, in his diabetic condition (six months). Continental argues that, at best, Carruth's evidence demonstrated that the two blood sugar bouts caused him to be unable to work seven days during the entire six-month period after which doctors diagnosed him with diabetes. Though any missed work day admittedly limits an individual's ability to work every day of the year, Continental argues any limitation Carruth experienced on his ability to work generally was not substantial. See Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 506 (7th Cir. 1998) (noting that "not every impairment that affects a major life activity will be considered disabling; only if the resulting limitation is significant will it meet the ADA's test"). Specifically, Continental argues that, inasmuch as Carruth's blood sugar bouts occurred infrequently (twice) over a long period of time (six months) and were not of long duration (averaging three and a half days per bout), the cumulative effect of Carruth's actual limitation (an inability to work seven days in a six-month period) did not "substantially limit" his ability to work generally when compared to the rest of the population.
Continental is referring to two of Carruth's blood sugar bout absences. The first lasted from February 13, 1996, to February 16, 1996 (4 days), and the second lasted from April 22, 1996, to April 23, 1996 (2 days). However, at trial, Carruth presented to the jury plaintiff's exhibit 33 indicating that he was prevented from working until April 24, 1996. This Court will use the seven-day figure, a figure more favorable to Carruth, but this Court notes that it would reach the same conclusion even if the six-day figure was employed.
Carruth responds, arguing that evidence of these two blood sugar bouts was, contrary to Continental's assertions, not the only evidence before the jury as to his actual limitations. In particular, Carruth points to plaintiff's exhibit 33, which is some evidence that Carruth was totally disabled from working from November 28, 1995, through December 11, 1995. This changes things a bit. Instead of being unable to work for seven days, as Continental suggests, Carruth has presented some basis for a jury determination that Carruth was unable to work for 14 additional days (November 28, 1995, through December 11, 1995) in addition to the seven days argued by Continental. The issue, then, is quite simple: Was a jury allowed to draw the inference that an inability to work (i.e., to work at all) for 21 days out of a six-month period could constitute a "substantial limitation" on an individual's ability to work generally when compared with the population?
Carruth's other evidence of being unable to work does not appear to have any relation to his diabetic condition. Carruth went "home early" after his October 9, 1995, report of dizziness. Whether the jury had a basis to conclude this one day where Carruth went home early was because of diabetes will not matter in this Court's determination. Also, the fact that Continental fired Carruth (as it turned out improperly) does not alter the limiting effects that Carruth's diabetic flare-ups caused, namely, Carruth's inability to be able to show up for work those additional 14 days.
A survey of the applicable case law is necessary to adequately address this issue. Vande Zande v. State of Wis. Dept. of Admin., 44 F.3d 538 (7th Cir. 1995), sets the stage. There, paraplegic Lori Vande Zande sued her employer, the State of Wisconsin, for disability discrimination. As a result of a spinal cord tumor, Vande Zande was paralyzed from the waist down. Wisconsin accommodated her walking difficulty in numerous ways (e.g., restructuring some facilities in her building, buying special adjustable furniture for her, contributing money toward daily personal care items she needed, and allowing her to rearranging her schedule around medical appointments). Vande Zande's paralysis also made her prone to develop pressure ulcers, the treatment of which often required her to stay at home for several weeks to recover. The ulcer incident at issue required that she stay at home for eight weeks straight. The question was not whether Vande Zande was "disabled" because of her ulcers, inasmuch as her paralysis already caused her to be substantially limited in walking and, thus, "disabled." See id. at 541. Rather, the question was whether Wisconsin had a duty to reasonably accommodate those ulcers. Wisconsin argued it had no such duty, because the ulcers themselves did not independently meet the statutory definition of "disability" as distinguished from Vande Zande's paralysis which clearly did.
The Seventh Circuit rejected Wisconsin's argument. The Seventh Circuit first noted that employees suffering intermittent, episodic impairments (e.g., a broken leg) would not be "disabled." See id. at 544. However, the court noted, Vande Zande already met the statutory definition of being disabled, because she was "substantially limited" in her ability to walk. The question, as the court framed it, was whether Wisconsin had a duty to reasonably accommodate Vande Zande's ulcers. The court held that Wisconsin had such a duty, reasoning that "an intermittent impairment that is a characteristic manifestation of an admitted disability is, we believe, a part of the underlying disability and hence a condition that the employer must reasonably accommodate." Id. at 544. The court went on to find for Wisconsin because the accommodation Vande Zande sought (i.e., installing a home computer for her so she could avoid wasting some of her sick days) was simply unreasonable.
In a later decision, the court stressed that Vande Zande was never arguing that her intermittent flare-ups met the statutory definition of a "disability." See Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944 (7th Cir. 2000).
The Vande Zande court made one further observation worth noting. First, it closed the door on disabilities like one-time broken legs (i.e., temporary, episodic impairments not caused by chronic conditions). However, Vande Zande left unanswered the question of whether recurring, episodic impairments caused by underlying, chronic conditions caused so significant an adverse impact on the afflicted individual's inability to show up to work that such a limitation on that individual's ability to work might render that individual "substantially limited" in working generally. The court admitted that AIDS (i.e., a chronic condition that destroyed the immune system) would not intuitively meet the statutory definition of "disability" — presumably because people can work fine without an immune system — unless courts looked at the cumulative effects that having such a disease had on that afflicted individual's ability to work generally (i.e., the destruction of afflicted individual's immune system allowed a whole host of common, opportunistic diseases to invade that individual who could no longer effectively fight them off because he had no immune system). That set up a distinction between non-recurring impairments caused by one-time injuries (e.g., broken legs) as opposed to recurring, episodic, impairing manifestations of chronic, underlying conditions from which an individuals suffer.
In E.E.O.C. v. Sears, Roebuck Co., 233 F.3d 432 (7th Cir. 2000), the Seventh Circuit concluded that the episodic and intermittent nature of manifestations chronic condition (e.g., diabetes) did not bar an impaired individual's ADA claim. See id. at 440 n. 4. There, Judith Keane's diabetes and neuropathy resulted in a numbness in her right leg after she had to walk long distances. Keane was fine if she stayed in her work area, because only short walks were needed there. But Keane could not tolerate the longer walks (e.g., from parking lot or to the cafeteria). Keane wanted permission to park in the handicapped parking spots closer to the building and to use a short cut to the cafeteria. Sears permitted her to park in the handicapped spots but did not let her use the cafeteria short cut. Keane was therefore forced to take the long way to eat lunch. The district court granted summary judgment in Sears' favor, and Keane appealed.
The Seventh Circuit reversed the district court, finding sufficient evidence whether Keane's condition "substantially limited" her ability to walk when compared with the general population. Sears had argued that the flare-ups occurred the farther she was forced to walk and, thus, could be considered "episodic." Because her flare-ups could be considered "episodic," Sears relied on Vande Zande, 44 F.3d at 544, which held that "[i]ntermittent, episodic impairments are not disabilities. . . ." The Sears court rejected that argument, noting that Vande Zande was making that statement with respect to a temporary, episodic impairment caused by a one-time injury (e.g., a broken leg) as opposed to recurring, episodic, impairing manifestations of or flare-ups caused by some chronic, underlying chronic condition (e.g., Keane's numb-leg impairment caused by her neuropathy). Accordingly, the Sears court held that the episodic and intermittent nature of the manifestations of Keane's diabetic/neuropathic condition was "not dispositive in the disability inquiry." Sears, 233 F.3d at 440 n. 4.
Summing up thus far, Vande Zande determined that an individual suffering one episodic impairment caused by a temporary injury (e.g., a broken leg) was not disabled. Sears concluded that episodic, impairing manifestations of or flare-ups (i.e., a numb leg) caused by an underlying, chronic condition (i.e., diabetes/neuropathy) should be treated differently. Sears noted that employees suffering from such impairments could, under certain circumstances, be disabled. Sears left unclear the answer to one question: When do episodic, impairing manifestations or flare-ups (e.g., diabetic flare ups) caused by an underlying chronic condition (e.g., diabetes) recur so infrequently that the cumulative limiting effect of those manifestations or flare-ups cannot objectively reach the level of "substantially limiting" an individual's ability to work generally when compared with the general population?
Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944 (7th Cir. 2000), a case that was decided after the jury trial in this case, shed some light on the answer. There, arthritis-stricken Gregory Moore sued his employer for disability discrimination. Aside from difficulties Moore had with his rheumatoid arthritis when he was forced to work in excessively cold, wet, and damp environments, Moore claimed that he had occasional temporarily-incapacitating flare-ups (i.e., one or two per year) caused by rapid barometric pressure changes, during which his joints would swell and he would be unable to move for one or two days per flare. See id. at 948. Moore argued that "his `flare-ups' caused him to be completely debilitated while they last and that, therefore, the flare-ups render his condition a disability." Id. Moore relied on Vande Zande for the proposition that "an intermittent impairment that is a characteristic manifestation of an admitted disability is . . . a part of the underlying disability and hence a condition that the employer must reasonably accommodate." Id. at 952 (quoting Vande Zande).
The Seventh Circuit rejected Moore's argument. The court started by distinguishing the Vande Zande case:
We believe Mr. Moore misapprehends the holding of Vande Zande. In that case, the plaintiff was paralyzed from the waist down, and her paralysis made her prone to develop pressure ulcers. The question in that case was not whether Vande Zande was disabled, but whether her employer had a duty to reasonably accommodate her when she developed these ulcers. In that situation, we stated that "an intermittent impairment that is a characteristic manifestation of an admitted disability is, we believe, a part of the underlying disability and hence a condition that the employer must reasonably accommodate." Id. at 544. Mr. Moore does not seek accommodation for an intermittent impairment resulting from an "admitted disability"; instead, he attempts to use his intermittent flare-ups to establish that his impairment is a disability. Vande Zande, therefore, is not controlling.Moore, 221 F.3d at 952. Ultimately, the Seventh Circuit did "not believe that Mr. Moore's infrequent flare-ups, one or two per year, render his condition a disability." Id. See Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 594 (7th Cir. 1998) (affirming a jury verdict in favor an ADA plaintiff who had two flares of her lupus, one of which however lasted around 26 days and the other lasted nine days, noting that lupus "has periods of inactivity and periods of flare").
Other courts apply similar reasoning to find that an individual's inability to show up to work occasionally — while certainly limiting that individual's ability to work — does not limit it substantially if the absences are infrequent and short. For example, in E.E.O.C. v. Sara Lee Corp., 237 F.3d 349, 352 (4th Cir. 2001), the Fourth Circuit held that an epileptic who suffered a seizure once every year, the duration of which was a couple minutes, was not substantially limited from working generally. In Todd v. Academy Corp., 57 F. Supp.2d 448 (S.D. Tex. 1999), a district court held that an epileptic who suffered eight 15-second-long seizures over a five-month period was not substantially limited from working generally. In Moreno v. American Ingredients Company, 2000 WL 527808 (D. Kan. April 7, 2000), a district court held that a epileptic who suffered a seizure about once every month and a half, the impairing duration of which lasted several hours, was not substantially limited in working generally. And, in Perkins v. St. Louis County Water Co., 160 F.3d 446 (8th Cir. 1998), the Eighth Circuit held that an individual who experienced two vertigo/vomiting episodes as a result of his Meniere's disease which resulted in a total of two weeks and three days of absences over a period of three years was not substantially limited in working generally. These cases demonstrate that, while some impairments may adversely affect an individual's ability to show up to work every day of the year, impairments generally do not significantly limit that individual's ability to show up for work if the impairments are infrequent and short. Cf. Davidson, 133 F.3d at 506 (noting that "not every impairment that affects a major life activity will be considered disabling; only if the resulting limitation is significant will it meet the ADA's test").
Meniere's disease is a disease of the inner ear characterized by deafness, vertigo, and tinnitus (i.e., a ringing, roaring, or hissing sound in one or both ears). Stedman's Medical Dictionary, 518 (27th ed. 2000).
Read together, Vande Zande, Sears and Moore, impart three guiding principles to courts faced with individuals who suffer episodic impairments that (1) are temporary and (2) do not stem from an already-admitted disability (e.g., like Vande Zande's pressure ulcers that stemmed from her paralysis, which was an admitted disability). First, a temporary, episodic impairment that is singular (i.e., does not recur because of some underlying condition) is not a "disability" (e.g., a broken leg). Second, a temporary, episodic impairment that recurs periodically as a result of some underlying, chronic condition from which the individual suffers (i.e., a manifestation of or a flare-up caused by the underlying condition) may constitute a disability if, after considering taking into account the prescribed mitigating measures, the cumulative impact of the flare-ups still substantially limits that individual's ability to work generally. Third, at some point, temporary, episodic flare-ups caused by underlying, chronic conditions — even totally incapacitating flare-ups — may recur so infrequently over a long period of time (e.g., one or two times a year) and have so minimal an adverse impact on that individual's ability to show up to work (e.g., being unable to work two to four days per year) that the cumulative adverse impact of those flare-ups cannot objectively be said to "substantially limit" that individual's ability to work generally. Moore, 221 F.3d at 952.
See Plant v. Morton Intern., Inc., 212 F.3d 929, 938 (6th Cir. 2000) (holding that temporary physical conditions do not generally constitute substantial impairments and the mere possibility of recurrence is not sufficient to establish substantial impairment).
This Court notes that impairments causing no significantly greater absenteeism in the general population would not objectiv ely substantially limit that individual's ability to work generally when that individual is compared with the rest of the population. See Ryan v. Grae Rybicki, 1996 WL 680256, *4 (E.D. N.Y. Nov. 13, 1996) ("To the extent that [plaintiff] must stay near a bathroom when her condition becomes aggravated, she is not unlike many others who suffer from periodic diarrhea or other stomach problems, yet are fully capable of tending to their everyday life requirements, even during spells of discomfort."), aff'd, 135 F.3d 867 (2nd Cir. 1998).
Here, this Court ordered the parties to cite to the evidence that was before the jury as to Carruth's actual limitations. When viewed most favorably to Carruth (the prevailing party), the evidence at trial indicated that Carruth's diabetic condition made him unable to work about 21 days in a period of about six months. Being unable to show up for work prevents an employee from not only working one job, but any job. Being unable to work at all for 21 days in six months is much more frequent and lengthy of an inability to show up for work than the Moore plaintiff's inability to show up for work two to four days per year. Indeed, Carruth's inability to work dwarfs that of the average person's inability to work due to occasional, brief bouts of random illnesses. Admittedly, six or seven days in a period of six months might have yielded a different conclusion. But, given the cumulative adverse impact that Carruth's diabetic condition had on his ability to be able to show up for work, this Court believes that a reasonable jury could find that Carruth's inability to work 21 days out of a period of six months provides an adequate basis for jury determination that that limitation on Carruth's ability to work generally was substantial. See Sutton, 527 U.S. at 491 (defining "substantially limits" as meaning "considerable or specified to a large degree") (citation and internal quotation marks omitted).
Continental has been making a big deal about a post-adverse-employment-action job Carruth took. In general, this Court is unclear how an individual's ability or inability to work at some point after the adverse employment action has any significant bearing on the issue at hand, which requires an individualized assessment of whether, at the time Continental took the adverse employment action, Carruth was disabled. Admittedly, evidence that he took a job after the adverse employment action might bear on the jury's determination whether or not to believe Carruth, but it does not mean that, at the time Continental took the adverse employment action, Carruth was not disabled. This Court focuses on whether Carruth met the statutory definition of being "disabled" at the time of the adverse employment action, and this focus is entirely consistent with Seventh Circuit case law, E.E.O.C. v. Sears, Roebuck Co., 233 F.3d 432, 438 (7th Cir. 2000); Duda v. Board of Educ. of Franklin Park Public School Dist. No. 84, 133 F.3d 1054, 1059 (7th Cir. 1998); Harrington v. Rice Lake Weighing Sy stems, Inc., 122 F.3d 456, 461 (7th Cir. 1997); Ray v. Cassens Transport Co., 212 F.3d 96 9, 974 (7th Cir.20 00) (and citations thereto); cf. Feldman v. American Memorial Life Ins. Co., 196 F.3d 78 3, 790 (7th Cir. 199 9); as well as the case law in other circuits, Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 884 (6th Cir.1996); Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1047 (8th Cir.), cert. denied 528 U.S. 1050 (1999); Cash v. Smith, 231 F.3d 13 01, 1306 n. 5 (11th Cir. 2000); Monroe v. Cortland County, N Y, 37 F. Supp.2d 546, 553 (N.D. N.Y. 1999).
Finally, this Court notes that the arguments related to whether there was enough evidence to establish that Continental "perceive d" Carru th as disabled are misplaced, inasmuch as Carruth did not submit any jury instructions in support of his perception-based disability theory.
For these reasons, this Court rejects Continental's argument that it is entitled to judgment notwithstanding the verdict on the ADA claim.
2. FMLA claim
Continental argues that there was no evidence upon which a jury could have found (1) that Continental discriminated against Carruth by retaliating against him for his exercise of rights under the FMLA (Doc. 76, ¶ 3) or (2) that Carruth suffered an adverse employment action in relation to Continental's FMLA discrimination (Doc. 76, ¶ 3).
This Court has already addressed this issue, in part, in another order rejecting Continental's attempts to argue that Carruth should not be entitled to FMLA liquidated damages (Doc. 70, at pp. 21-22). First, this Court found that the jury in this case had more than enough evidence before it to conclude that the actual firing was in retaliation for Carruth's numerous assertions of FMLA leave and his frequent complaints to the Department of Labor. Second, this Court found that it was entirely reasonable for a jury to conclude that the reasons proffered by Continental (i.e., insubordination and leaving early without permission) were a pretext to intentional FMLA retaliation. Finally, contrary to Continental's steadfast arguments, a jury was not required to believe that the only adverse employment action that was the subject of FMLA retaliation was the one absentee point. Given the timing and history of Carruth's previous problems at Continental in connection with his numerous FMLA leave requests, it would have been entirely reasonable for the jury to have found that Carruth's discharge was based on these events.
For these reasons, this Court rejects Continental's argument that it is entitled to judgment notwithstanding the verdict on the FMLA claim.
B. Motion For A New Trial
Continental moves for a new trial on both Carruth's ADA and FMLA claims, arguing that (1) the verdict was against the manifest weight of the evidence, because the jury was confused, too passionate, prejudiced, and/or too sympathetic; (2) this Court erroneously admitted evidence which requires a new trial; and (3) this Court erred in refusing certain jury instructions proffered by Continental. This Court will address each argument in turn.
1. Manifest Weight Of The Evidence
The jury found in favor of Carruth on both his claims, but Continental believes that the verdict cannot be reconciled with the evidence and that this Court should therefore grant its motion for a new trial pursuant to Federal Rule of Civil Procedure 59. The Seventh Circuit has held:
Only when a verdict is contrary to the manifest weight of the evidence should a motion for a new trial challenging the jury's assessment of the facts carry the day. Moreover, the district court, having seen the presentation of the evidence and observed the course of the trial, is in a unique position to rule on a new trial motion. . . . As long as there is a reasonable basis in the record to support it, we will not overturn a jury's verdict.Cefalu v. Village of Elk Grove, 211 F.3d 416, 424 (7th Cir. 2000) (internal citations, quotations, and quotation marks omitted).
Continental offers little in the way of argument on this point. This Court rejects Continental's general and conclusory assertion as a substitute for argument. In addition, this Court has seen the presentation of the evidence and observed the course of the trial. Based on the evidence presented at trial, there is more than a reasonable basis in the record to support the jury's verdict as to both claims. This Court does not find that Continental has shown that the jury's verdict is contrary to the manifest weight of the evidence. Therefore, this Court rejects Continental's conclusory assertions and will not overturn the jury's verdict on this basis.
2. Evidentiary Rulings
To have any chance at succeeding on a motion for a new trial based on improper evidentiary rulings, the losing party must show that (1) the record contains no evidence on which the district court rationally could have based its decision or where the supposed facts found are clearly erroneous, (2) such an error had a "substantial influence over the jury," and (3) the result reached was "inconsistent with substantial justice." Agushi v. Duerr, 196 F.3d 754, 759 (7th Cir. 1999) (noting that parties challenging "evidentiary rulings of the district court are like rich men who wish to enter the Kingdom: their prospects compare with those of camels who wish to pass through the eye of the needle"). The Seventh Circuit has also commented:
No error in either the admission or the exclusion of evidence . . . is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.Wheeler v. Sims, 951 F.2d 796, 802 (7th Cir.1992) (quotation omitted).
First, Continental challenges this Court's admission of the testimony of Fred Wrightam. He was an investigator for the U.S. Department of Labor who took the position that the blood sugar rule Continental imposed upon Carruth was not in accord with the FMLA. Continental believed that Mr. Wrightam's opinion amounted to a legal opinion that Continental, by imposing the blood sugar rule, violated the FMLA. Continental argues that this Court erred in allowing Mr. Wrightam to testify because (1) his testimony as to his position was irrelevant under Rule 402; and (2) his testimony as to his position was too prejudicial under Rule 403. The crux of the argument is that evidence of prior administrative findings/positions are irrelevant.
In this case, this Court correctly refused to exclude statements made by Mr. Wrightam to Continental in April 1996 based on irrelevancy. The statements were relevant to the issue of whether Continental was motivated to fire Carruth because of the constant involvement and antagonization of the U.S. Department of Labor, which was directly precipitated by Carruth's constant complaints. This Court has already dealt at length with this issue and is convinced that its original ruling on the issue was correct (Doc. 50). This Court also notes that it gave a limiting instruction to the jury as to this testimony.
Second, Continental challenges this Court's admission of evidence related to Carruth's November 1995 firing. This Court has already dealt with this issue at length and will not do so again. For the same reasons this Court previously gave for allowing this evidence (Doc. 50, at p. 7), this Court rejects Continental's argument that its admission was erroneous.
Third, Continental challenges this Court's admission of evidence related to the disciplinary treatment of Eric Rodotz. Continental asserted that Carruth's termination based in part on "leaving the plant without permission" which was mandated by the discipline policy. However, Eric Rodotz testified that he left the plant without permission, that his supervisor knew that he left the plant without permission, but that Continental decided, contrary to its disciplinary policy, to not fire him for that offense and only sanction him for some lesser offense of leaving the work area (Trans. at p. 330-31). This Court's ruling allowing this evidence was proper, especially where it was Continental that asserted that, when an employee leaves the plant without permission, he is fired.
In any event, even if this Court did err in some respect — which it did not — Continental has not shown that any such error had a "substantial influence over the jury" and that the result reached was "inconsistent with substantial justice." Continental has not met its burden of showing that there are proper grounds to upset the jury's verdict and order a new trial in this case based on allegedly erroneous evidentiary rulings.
3. Jury Instructions
Continental argues that this Court erred when it failed to submit to the jury two jury instructions it proffered. On a motion for a new trial based on a district court's rulings on jury instructions, a new trial is not awarded unless, "considering all the instructions, the evidence and the arguments, it appears that the jury was misled and its understanding of the issues was seriously affected to the prejudice of the complaining party." E.E.O.C. v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1283 (7th Cir. 1995). This Court will address each jury instruction in turn.
a. Pretext/Honest Belief Jury Instruction
Continental first claims that this Court committed error by refusing its pretext/honest belief jury instruction. That instruction read:
If you conclude that the individuals who made the decision to terminate the plaintiff's employment with the defendant honestly believed that their stated reasons for terminating the plaintiff's employment, then you must find in favor of the defendant and against the plaintiff, even if you do not agree with those reasons, and even if you believe that the defendant should not have discharged the plaintiff for those reasons.
Def.'s Proposed Jury Instruction No. 3. See McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir.1992) (noting that "the issue of pretext . . . addresses the issue of whether the employer honestly believes in the reasons it offers"); Richter v. Hook-SupeRx, Inc., 142 F.3d 1024, 1029 (7th Cir. 1998).
Continental's pretext instruction is simply a legal principle employed by courts during the pretrial stage of an employment discrimination case, and judges "need not deliver instructions describing all valid legal principles." Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir.1994). They "may and usually should leave the subject to the argument of counsel." Id. See Hasham v. California State Bd. of Equalization, 200 F.3d 1035, 1051 (7th Cir. 2000). The Gehring case is particularly illustrative in this respect:
[Plaintiff's] other arguments concern the jury instructions. He wanted the judge to walk the jury through the paradigm established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The judge declined, for the very good reason that the Supreme Court has held that this burden-shifting model applies to pretrial proceedings, not to the jury's evaluation of evidence at trial. Once the judge finds that the plaintiff has made the minimum necessary demonstration (the "prima facie case") and that the defendant has produced a [non-discriminatory] explanation, the burden-shifting apparatus has served its purpose, and the only remaining question — the only question the jury need answer — is whether the plaintiff is a victim of intentional discrimination.Gehring, 43 F.3d at 343. See Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1350 (7th Cir. 1995).
In this case, this Court instructed the jury, on both claims, that, to find in favor of Carruth, they needed to conclude that, when Continental took the adverse employment action, it did so intentionally attempting to discriminate against Carruth. Rather than describing each possible inference of the evidence, this Court left the subject of the interpretation of the evidence to the argument of counsel. This Court is convinced that it issued a balanced and fair set of instructions that accurately stated the law. Indeed, despite declining to instruct the jury on all possible legal principles, this Court "graciously allowed Defendant's lawyer to ask the jury to draw the inference expressed in his proposed instruction." Hasham, 200 F.3d at 1051. See Trial Trans. at pp. 484-85 ("[P]retext will be mentioned nowhere in the instructions. You can argue it."). Finally, this Court believes that a "jury is well-equipped to evaluate the evidence and use its good `common sense' to come to a reasoned decision," Sheehan v. Donlen Corp., 173 F.3d 1039, 1046 (7th Cir. 1999), rendering Continental's apparent worry that the jury disregarded other jury instructions and found liability based on reasons unrelated to ADA or FMLA discrimination simply unconvincing.
b. Sutton Mitigating Measures Jury Instruction
Continental next claims that this Court committed error by refusing its mitigating measures jury instruction based on Sutton v. United Airlines, Inc., 527 U.S. 471 (1999). Continental's instruction read:
An individual with an impairment that is largely corrected by medication or other measures does not have a "disability" within the meaning of the Americans With Disabilities Act. To be considered "disabled" under the Americans With Disabilities Act, a person whose impairment is being largely corrected by medication or other measures must still be "substantially limited" in a "major life activity," as defined elsewhere in these instructions.
Def.'s Proposed Jury Instruction No. 4. However, after Carruth objected to Continental's instruction, this Court proposed an alternative instruction to both parties:
If a person is taking measures to correct for, or mitigate, a physical impairment, the effects of those measures must be taken into account when judging whether that person is "substantially limited" in a major life activity.
Def.'s Modified Proposed Jury Instruction No. 4. Carruth's attorney agreed to the instruction, stating: "I have no problem with the one the Court has proposed" (Trial Trans. at p. 488, ¶ 3-4). Likewise, Continental's attorney agreed to the instruction and actually withdrew his Proposed Jury Instruction No. 4, stating: "If the Court is going to give instruction No. 4 [Def.'s Modified Proposed Jury Instruction No. 4], I, contingent on that, I'll waive and withdraw Defendant's No. 4" (Trial Trans. at p. 488, ¶¶ 13-15).
This Court drafted this instruction and labeled it as Defendant's Modified Proposed Jury Instruction No. 4. Also, this Court notes that, when the transcript states "to correct a metaphysical impairment," this Court actually said "to correct for, or mitigate, a physical impairment" which is consistent with the language of Defendant's Modified Proposed Jury Instruction No. 4 and this Court's own recollection (Trial Trans. at p. 487, 488). See 28 U.S.C. § 753(b) (transcript is only prima facie evidence of wh at was said in court).
In this case, this Court holds Continental to its attorney's word and finds that Continental withdrew the instruction that it now claims this Court should have given. See Miller v. Willow Creek Homes, Inc., 249 F.3d 629, 631 (7th Cir. 2001) ("The [appellants] would have us ignore the clear statements of their intent announced by their attorney in open court."). Also, Defendant's Modified Proposed Jury Instruction No. 4 accurately and sufficiently reflects the state of the law as enunciated by the Supreme Court in Sutton. See E.E.O.C. v. Sears, 233 F.3d at 439 (7th Cir. 2000) ("Sutton merely dictates that the analysis of whether a person is substantially limited in a major life activity must be conducted with reference to the mitigating device.").
C. Motion For Remittur Of The Amount Of Verdict And Judgment
Continental rehashes its old arguments that the amount of the verdict and judgment should be reduced. This Court already dealt with these arguments in its previous orders and will not restate its entire reasoning here (Docs. 70, 73). Therefore, for the same reasons this Court previously rejected Continental's previous arguments, this Court rejects them again.
III. CONCLUSION
For the foregoing reasons, Continental's motion for judgment not withstanding the verdict, for a new trial, and for an order for remittitur of the amount of verdict and judgment (Doc. 76) is DENIED.
IT IS SO ORDERED.