Linda L. Poindexter v. Atchison, Topeka and Santa Fe Railway Company

168 F.3d 1228, 1999 Colo. J. C.A.R. 1692, 1999 U.S. App. LEXIS 2869, 1999 WL 92255

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 24, 1999
• Docket: 97-3273
• Status: Published

Opinions

' TACHA, Circuit Judge.

This action stems from plaintiffs claim that her employer, The Atchison, Topeka and Santa Fe Railway Company (“Santa Fe”), violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., when it refused to transfer her to Kansas City after she developed a panic disorder that prevented her from traveling the highways between her home in Kansas City and her workplace in Topeka. The case proceeded to trial, and the jury returned a verdict in favor of Ms. Poindexter. After denying Santa Fe’s motion for judgment as a matter of law, or, in the alternative, a new trial, the trial court entered a final judgment in accordance with the jury verdict. Defendant appeals, and we take jurisdiction under 28 U.S.C. § 1291. We reverse and remand for a new trial.

Background

Ms. Poindexter began her employment with Santa Fe on June 3, 1974, in its Kansas City, Kansas office, where she worked until June 1993. Pursuant to a system-wide reorganization in which Santa Fe consolidated its customer quality and support functions, Ms. Poindexter accepted a transfer to Topeka. Ms. Poindexter had the option of actually moving from Kansas City to Topeka or simply accepting relocation funds. She chose to accept the relocation compensation and commute, typically car pooling with other Santa Fe employees.

In October 1993, plaintiff experienced a panic attack while returning from a vacation in Arkansas with her sister. A second panic attack occurred while driving the carpool group to Topeka in early November 1993. At her request, the others in the group took over all driring responsibilities. Shortly thereafter, Ms. Poindexter went on medical leave of absence and remained in that status throughout the trial.

After taking the medical leave of absence, Ms. Poindexter sought a transfer to Santa Fe’s Kansas City office because of her condition. Santa Fe denied her transfer request. Ms. Poindexter asserts that this violates the ADA as a discriminatory refusal to reasonably accommodate her disability.

Discussion

The 7iDA prohibits employers from discriminating “against a qualified individual with a disability because of the disability of such individual.” 42 U.S.C. § 12112(a). A qualified individual with a disability is one “who, with or without reasonable accommodation, can perform the essential functions of the employnent position.” 42 U.S.C. § 12111(8). Therefore, to establish a viable claim under uhe ADA, a plaintiff must prove by a preponderance of the evidence that (1) she has a disability; (2) she is qualified for the position; and (3) her employer discriminated agains; her because of her disability. See Sutton v. United Air Lines, Inc., 130 F.3d 893, 897 (10th Cir.1997), cert. granted, 67 U.S.L.W. 3433 (U.S. Jan. 8, 1999) (No. 97-1943); Siemon v. AT&T Corp., 117 F.3d 1173, 1175 (10th Cir.1997). Because we reverse based upon the “disability” prong, we do not address the two latter elements.

“Disability” under the ADA is a term of art. The statute defines it as:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a reco rd of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). The Supreme Court in Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 2202, 141 L.Ed.2d 540 (1998), recently announced, ‘'consideration of subsection (A) of the defintion proceeds in three steps.” First, the court must determine whether the plaintiff has an impairment. See id. 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. See id. Third, “tying the two statutory phrases together, [the court] ask[s] whether the impairment substantially limited the major life activity.” Id. 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. It follows that a plaintiff must specifically plead or prove at trial the impairments and the major life activities he or she asserts are at issue. See id. at 2205 (“[I]t may seem legalistic to circumscribe our discussion to the activity of reproduction. We have little doubt that had different parties brought the suit they would have maintained that an HIV infection imposes substantial limitations on other major life activities.”).

In construing the ADA provisions, the Supreme Court has looked beyond the statutory language to the regulations interpreting both the ADA and the Rehabilitation Act of 1973. See Bragdon, 524 U.S. at -, 118 S.Ct. at 2202-05; see also 42 U.S.C. § 12201 (noting that courts should not construe the ADA to apply lesser standards than those in the Rehabilitation Act and its regulations). These regulations prove particularly helpful in defining what constitutes an impairment or major life activity under the ADA.

When the Department of Health and Human Services issued regulations defining impairment under the ADA, it adopted the Rehabilitation Act regulations without change. See 29 C.F.R. pt. 1630, app. at 347. A physical or mental impairment is:

(1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskele-tal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or

(2) Any mental or physical disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

29 C.F.R. § 1630.2(h) (1998). Although this definition is not meant as a comprehensive enumeration, the commentary accompanying the Rehabilitation Act regulations “contains a representative list of disorders and conditions constituting physical impairments, including ‘such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and ... drug addiction and alcoholism.’ ” Bragdon, 524 U.S. at -, 118 S.Ct. at 2202 (quoting 42 Fed.Reg. 22685 (1977), reprinted in 45 C.F.R. pt. 84, app. A at 334 (1997)).

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 -, 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. § 1630.2G) (1998). As the Department of Health and Human Services asserts, “This list is not exhaustive. For example, other major life activities include, but are not limited to, sitting, standing, lifting, and reaching.” 29 C.F.R. pt. 1630, app. at 347 (1998). Finally, if the asserted major life activity is not one of the examples listed above, under the plain meaning of the word “major,” the “ ‘touchstone for determining an activity’s inclusion under the statutory rubric is its significance.’ ” See Bragdon, 524 U.S. at -, 118 S.Ct. at 2205 (quoting Abbott v. Bragdon, 107 F.3d 934, 940 (1st Cir.1997)). For example, this court in Pack v. Kmart Corp., 166 F.3d 1300, 1302 (10th Cir.1999) recently recognized that sleeping, although not enumerated in the regulations, constitutes a major life activity, while concentration does not. The court asserted, “In deciding whether a particular activity is a ‘major life activity,’ we ask whether the activity is significant within the meaning of the ADA.” Pack v. Kmart Corp., 1999 WL 51882, at *3. We then held

that sleeping is a major life activity, but concentration is not. Sleeping is a basic activity that the average person in the general population can perform with little or no difficulty_ However, concentration is not itself a major life activity. Concentration may be a significant and necessary component of ,a major life activity, such as working, learning, or speaking, but it is not an ‘activity’ itself.”

See Pack, at 1303-04.

In this case, the court neither found nor precisely articulated an impairment and major life activity that the impairment may have affected. Instead, the district court erred in submitting these legal questions to the jury. Thus, we cannot discern upon which possible major life activity the jury rendered its verdict. The jury had no guidance as to which endeavors it could properly consider as major life activities in reaching its decision.¹ The court’s lack of articulation likely resulted from the fact that neither the court nor the parties had the guidance provided by the Supreme Court in Bragdon. Plaintiff may have also failed to properly plead or prove with particularity the major life activity her asserted panic disorder affected, thereby contributing to the district court’s error. The Supreme Court in Brag-don made clear that the court, in making determinations of law and formulating jury instructions, is to analyze only the major life activity asserted by the plaintiff. See Bragdon, 524 U.S. at -, 118 S.Ct. at 2205 (explicitly limiting its analysis to the major life activity of reproduction and declining to speculate about other possible major life activities that the HIV infection might have impaired). Thus, we emphasize that 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 tha; impairment.

This holding does not in any way change the federal n atice pleading requirements. 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 ma.jor life activity he or she asserts are at issue. In this case, Ms. Poindexter did not speciiically plead the major life activities she believes were impaired. However, on the record before us, we cannot ascertain whether Ms. Poindexter sufficiently presented the legal issues during trial to the district court for the required analysis. We disagree with the dissent’s conclusion that Ms. Poin-dexter articulated commuting as her major life activity. At best, the record is ambiguous. Therefore, we cannot, on review, determine whether she met this burden.

Even assuming that she met her burden of proving with particularity her asserted major life activities, the district court erred in submitting the legal issues of impairment and major life activity to the jury. While defendants apparently did not object to the jury instructions at trial, we may review civil instructions for plain error in limited insta ices involving a miscarriage of justice or instructions “‘patently plainly erroneous and prejudicial.’ ” See Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1516 (10th Cir.1984), aff'd, 472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985) (quoting Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917, 925 (10th Cir.1984)); see also Phillips v. Duro-Last Roofing, Inc., 973 F.2d 869, 871 (10th Cir.1992); Ryder v. City of Topeka, 814 F.2d 1412, 1427-23 (10th Cir.1987). We find this case presents such a rare instance. The instruction was erroneous, and the fact that the plaintiff prevailed despite her possible failure to identify any specific major life activity prejudiced the defendant. In a situation, such as this, in which the judge delegates to the jury a decision that he or she should make, we find plain error. Therefore, we REVERSE the judgment of the district court and REMAND for a new trial.

1 . The dissent argues that we "overlook[] the district court’s denial of the employer’s motions for summary judgment and judgment as a matter of law that, at a minimum, implicitly decided these issues of law.” We do not. First, the district court did not clearly decide what, if anything, constituted a major life activity in this case. It merely stated that sufficient evidence existed to submit the issue to the jury. Second, even if the district court had determined as a matter of law the major life activity at issue in this case, it did not pass that information along to the jury. The jury must receive guidance regarding which major life activities it could consider in its deliberations. Without appropriate jury instructions, we have no way of knowing whether the jury verdict rested on a proper major life activity.