Strass v. Kaiser Foundation Health Plan of Mid-Atlantic

744 A.2d 1000, 2000 D.C. App. LEXIS 6, 2000 WL 38468

• Court: District of Columbia Court of Appeals
• Decided: January 20, 2000
• Docket: 96-CV-1122
• Status: Published

Opinions

WAGNER, Chief Judge.

This case involves claims of breach of contract and wrongful termination of employment under the District of Columbia Human Rights Act, D.C.Code § 1-2512(a)(1) (1992) (Human Rights Act or the Act), which prohibits an employer from discharging an employee for discriminatory reasons, including physical handicap. After being terminated from her employment, appellant, Stephanie Strass, sued her former employer, Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc. (Kaiser), alleging that her employment had been terminated because of her physical handicap, hypertension, in violation of the Human Rights Act and contract of employment. A jury returned a verdict in favor of Strass in the total amount of $525,047.00. The trial court set aside the verdict and granted judgment as a matter of law to Kaiser on both the breach of contract claim and violation of the Human Rights Act. The trial court concluded that Strass failed to prove that her physical condition could be accommodated reasonably. On the breach of contract claim, the court concluded that the evidence was insufficient to permit a jury to conclude that there was an express or implied agreement between Kaiser and Strass. Strass argues on appeal that the evidence and the law support the jury’s verdict on both her theories of liability. We agree and reverse and remand for further proceedings consistent with this opinion.

I. Factual Background

In April 1988, Kaiser hired Strass as its Director of Public Affairs. Her job responsibilities included various public relations functions, such as writing publications for members, community relations, media relations, and special events. In addition, Strass was responsible for handling questions arising in the course of Kaiser’s dealings with the public. At the beginning of her employment with Kaiser, in addition to Strass, her department had two public affairs representatives, a secretary and one on-call person who worked one day per week. By the late fall of 1990, Strass’ department had decreased by two, leaving the Public Relations Department with only one other full-time professional in the Washington office.¹

In the late summer of 1991, Strass began experiencing headaches, fatigue, an inability to relax, and insomnia. Strass attributed her symptoms to pressures associated with working with a short staff and preparation for Kaiser’s annual board of directors’ meeting scheduled to be held in November 1991. On August 15, 1991, Strass reported her symptoms to Dr. Seo-nae Pak. After several visits in which Strass’ blood pressure readings were elevated, Dr. Pak diagnosed Strass as having hypertension, which he attributed to her work situation.², ■

Dr. Marón testified that Strass’ blood pressure was normal from 1977 to August 1991. However, from August 1991 until February 1992, “[a] period of time in which [Strass] was surrounded by employment stresses,” Strass’ blood pressure was abnormal. Dr. Marón further testified that Strass’ abnormal blood pressure reading continued about 46% of the time, through June 1994, two years after Strass’ termination from Kaiser. Dr. Marón testified that Strass’ hypertension was caused by “an unusual and extraordinary stressful situation related to her employment at Kaiser.” He also testified that, to a reasonable degree of medical certainty, if the particular stress situation had been eliminated, her blood pressure would have returned to normal. He also testified that removal of the stress and addressing the condition without medication was the preferable course of action.

In early October 1991, Strass informed her supervisor, Robin Thomashauer, that she had been diagnosed with hypertension and that the stress of preparing for the board meeting with inadequate staff was making her ill. Thomashauer said that Strass’ condition and the job situation was not “a good fit.” About a week later, Strass went to see Rick Snocker, Kaiser’s manager of human resources, seeking a solution to the situation. Snocker suggested during this meeting that Strass’ medical condition might qualify for reasonable accommodation. Strass then visited Gary Fernandez, Thomashauer’s boss, seeking reasonable accommodation for her illness. Strass suggested restructuring her job, filling the staff vacancies in her office, or transferring her to another position within the organization.

In January 1992, Strass expressed an interest to Thomashauer in a newly created position of Director of Community Relations. In spite of Strass’ background in community relations, she was not offered the position. At trial, Thomashauer testified that the position was not given to Strass because it was believed that Strass’ bitterness towards the company would inhibit her from effectively representing Kaiser in the community.

In early February 1992, Strass met with Thomashauer and Snocker, and they asked her to consider the Compass Career Reappraisal Program, a program designed to assess the suitability of an employee for his or her current job or another position within Kaiser. On February 18, 1992, Strass conditionally declined the offer for enrollment in the program, stating in writing the following reasons for her decision:

In view of the fact that Kaiser Perma-nente will not assure me: (1) that my right to privacy will be protected; (2) that the information obtained will be treated as confidential; (3) that the information obtained will not be used to my detriment, I decline to enroll in the Compass Career Reappraisal Program unless my enrollment is required as a condition to remaining employed at Kaiser Permanente.

That same day, Thomashauer gave Strass a memorandum terminating her employment with Kaiser.³ A memo dated the same date was placed in Strass’ personnel file indicating that her negative attitude was a factor in her inability to carry out her job responsibilities effectively.

At the time of Strass’ termination, Kaiser had a progressive discipline policy in effect. This policy, Section 8.03 of the Personnel Policy Manual, provided for specific steps to be followed prior to termination of employment with Kaiser. There was a disclaimer in the introduction of the Personnel Policy Manual indicating that it was not a contract. However, other language in the document -used mandatory terms in setting forth various conditions of employment, including, e.g., vacation, severance pay, health and safety conditions. There was also a declaration that the manual was Kaiser’s statement of intention in matters covered by the policy.

II. Analysis

A. Standard of Review

“A judgment notwithstanding the verdict is proper only in extreme cases, where ‘no reasonable person, viewing the evidence in the light most favorable to the prevailing party, could reach a verdict in favor of that party.’ ” Lyons v. Barrazotto, 667 A.2d 314, 320 (D.C.1995) (quoting Oxendine v. Merrell Dow Pharm., Inc., 506 A.2d 1100, 1103 (D.C.1986), cert. denied, 493 U.S. 1074, 110 S.Ct. 1121, 107 L.Ed.2d 1028 (1990) (citations omitted)). If there is some evidence from which the jury could find for a party on the required elements of the claim, or where the resolution of the case requires the resolution of factual issues or a determination of the credibility of witnesses, the case should be submitted to the jury. Id. at 320 (citing Washington Welfare Ass’n, Inc. v. Poindexter, 479 A.2d 313, 315 (D.C.1984)) (other citation omitted). Where the trial court grants a post-verdict motion for judgment as a matter of law, this court applies the same standard of review on appeal. Id. (citation omitted).

B. Claim Under the Human Rights Act

In setting aside the verdict for Strass, the trial court concluded that the evidence was insufficient to allow a reasonable juror to conclude that Kaiser unlawfully terminated Strass in violation of the Human Rights Act. Specifically, the trial court determined that no reasonable juror could conclude on the evidence presented that Strass was a handicapped person within the meaning of the Act because she had failed to establish that a reasonable accommodation could be made for her claimed disability. Strass argues that the trial court erred in vacating the jury’s finding that Kaiser failed to accommodate her physical handicap in violation of the Human Rights Act.

The Human Rights Act “prohibits an employer from discharging an employee based wholly or partially upon discriminatory reasons, including physical handicap.” D.C.Code § l-2512(a)(1)⁴; American Univ. v. Commission on Human Rights, 598 A.2d 416, 421 (D.C.1991) (citing D.C.Code § l-2512(a)(l) (1987)). To establish a prima facie case of discrimination based upon handicap, a claimant is required to prove that

“(a) except for his [or her] physical handicap, he [or she] is qualified to fill the position; (b) he [or she] has a handicap that prevents him from meeting the physical criteria for employment; and (c) the challenged physical standards have a disproportionate impact on persons having the same handicap from which he [or she] suffers. To sustain this prima facie case, there should also be a facial showing or at least plausible reasons to believe that the handicap can be accommodated or that the physical criteria are not ‘job related.’ ”

American Univ., 598 A.2d at 422 (quoting Prewitt v. United States Postal Serv., 662 F.2d 292, 309-10 (5th Cir.1981)). Special interrogatories were submitted to the jury in this case covering each of the foregoing elements.⁵ The jury found for Strass on each of these issues. In addition, the jury found specifically that Strass had proved “that Kaiser intentionally discriminated against her, in whole or in part, on the basis of her physical handicap.”

At the time relevant to this case, the Act defined a physical handicap as “a bodily or mental disablement which may be the result of injury, illness or congenital condition for which reasonable accommodation can be made.”⁶ D.C.Code § 1-2502(23). Thus, under this statutory definition, Strass had to prove that her claimed disability, hypertension, was a condition for which reasonable accommodation could be made. Id.; American Univ., supra, 598 A.2d at 422. The trial court’s decision setting aside the jury’s verdict on the claim under the Human Rights Act rested upon its conclusion that Strass had failed to prove there was any reasonable accommodation which Kaiser could have provided that would have enabled Strass to perform the essential functions of her job. While recognizing that usually, the question of reasonableness of accommodation is a question of fact for the jury, the trial court determined that the undisputed facts showed that the accommodations requested were unreasonable as a matter of law. Since this argument forms the basis of the trial court’s ruling, we address it first.

Strass proposed two ways for Kaiser to accommodate her condition: (1) restore staff in her department to a full complement of four full-time public affairs representatives; or (2) transfer her to a newly created position of Director of Community Affairs. She contends that the first requested accommodation would have restored the staffing in her department to the level which existed when she handled the position without experiencing hypertension. She contends that the alternative request, a transfer, would have placed her in a position of performing some of the duties required in her public affairs position, but with fewer demands. Thus, Strass argues that the trial court erred in concluding that reasonable accommodation could not be made because it failed to view the facts and reasonable inferences in her favor and accepted Kaiser’s evidentiary assessment that Strass’ recommended accommodations were merely “speculative.”

Assuming first, for the sake of argument, that the accommodations requested would have controlled or eliminated her hypertension, Strass had to show that the accommodations were reasonable. Kaiser argues that' Strass’ proposed accommodations were not required by law, and the trial court agreed. Specifically, Kaiser contends that an employer is not required to accommodate a handicapped employee by reassigning her to a different position. In support of this argument, Kaiser relies upon the decisions in Guillot v. Garrett, 970 F.2d 1320 (4th Cir.1992), Chiari v. City of League City, 920 F.2d 311 (5th Cir.1991), and Carter v. Tisch, 822 F.2d 465 (4th Cir.1987). Neither Chiari or Carter support Kaiser’s position. In Chiari, at issue was whether reasonable accommodation under the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), required an employee to create a new job for the handicapped individual.⁷ In Carter, the employee sought as an accommodation a light duty assignment. 822 F.2d at 467. In that case, the court concluded that an alternative assignment was not required “unless the employer normally provides such alternative employment under its existing policies.” Id. Here, Strass did not request the company to create a new position, but only that it assign her to a job reasonably available. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 289 n. 19, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987). Although dicta, the Supreme Court stated the rule on this issue in Arline as follows:

Employers have an affirmative obligation to make a reasonable accommodation for a handicapped employee. Although they are not required to find another job for an employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment opportunities reasonably available under the employer’s existing policies.

Id. (citing 45 C.F.R. § 84.12). This passage tends to support Strass’ claim that she should have been considered for another position available in the organization.

In Guillot, the third case relied upon by Kaiser, the 4th Circuit declined to read the passage from Arline as imposing upon the employer an obligation to assign to another position, an employee who was no longer qualified to hold his current position, with or without accommodation. Guillot, supra, 970 F.2d at 1326-27. The employee in Guillot had lost a top security clearance after it was learned that he failed to disclose his drug and alcohol dependency. Therefore, the employee was no longer eligible for the position he had held. The court held in Guillot that reasonable accommodation does not require an employer “to transfer or reassign an employee who is not otherwise qualified for the position he then holds.” Id. at 1327. The court did observe, however, that neither “under the Rehabilitation or Civil Rights Acts, may a government agency or department deny the handicapped employee — because of his handicap — opportunities that are available under existing statutes or regulations.” Id. The primary purpose of the District’s Human Rights Act is to eliminate all employment discrimination. See Daka, Inc. v. Breiner, 711 A.2d 86, 94 (D.C.1998) (citing Estate of Underwood v. National Credit Union Admin., 665 A.2d 621, 637 (D.C.1995)) (referencing the legislative history of the Human Rights Act). It would further that objective to interpret reasonable accommodation to include, as the Supreme Court articulated in Arline, supra, that the employer “cannot deny an employee alternative employment opportunities reasonably available under the employer’s existing policies.” 480 U.S. at 289 n. 19, 107 S.Ct. 1123.

Under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. (1995), the definition of reasonable accommodation includes “job restructuring” and “reassignment to a vacant position.” Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir.1996) (citing 42 U.S.C. § 12111(9)); see also Johnston v. Morrison, Inc., 849 F.Supp. 777, 779 (N.D.Ala.1994). Kaiser points out correctly that this law did not become effective until July 26, 1992, after Strass’ discharge. See Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 443 (1st Cir.1997). The ADA is not retroactive. Id. Kaiser contends, therefore, that this court cannot look to the terms of the ADA or cases decided under it for guidance, unless consistent with prior Rehabilitation Act law. To address this issue, we need not resolve whether this court can look to subsequent enactments and cases based thereon as guidance for the meanings of words in our own preexisting statute. For, not only is there nothing in the Human Rights Act which would preclude an interpretation of reasonable accommodation in our statute to include the requirement that the employer not deny reasonable alternative and available employment for which the employee is qualified, but that meaning may be inferred within the context of the Act, particularly given its broad purposes. See Arline, supra, 480 U.S. at 289 n. 19, 107 S.Ct. 1123. Clearly, the employer could not deny her the employment because of her handicap without violating the Human Rights Act. Id. We are persuaded that, in determining whether’ the employer failed to make reasonable accommodation for Strass’ condition, the jury could consider properly evidence that there was a vacant position available which Strass was qualified to fill. The position, according to Strass’ evidence, was less demanding. Instead, the company hired for the position someone who, according to the evidence, had difficulties in two other management positions with the company. Considered with the other evidence of how Strass’ termination came about, the jury could have concluded that the employer could have, but declined to, accommodate her condition. Kaiser argues that it sought to accommodate Strass in other ways, but that she insisted on only two accommodations. Considering all the evidence and the reasonable inferences therefrom, the jury was at liberty to reject Kaiser’s version of the events.

Strass also requested as an accommodation that Kaiser restore the staff removed from her department. Kaiser argues that employers are not required to assign employees or hire new employees to perform an employee’s duties in order to accommodate that individual’s condition. While job restructuring, under certain circumstances, may be a reasonable accommodation, an employer is not required to reallocate essential functions of a particular position. Johnston, supra, 849 F.Supp. at 779.⁸ The employer is not required to hire staff to perform the essential functions of the job which the employee cannot perform. Id. at 779-80; accord, Reigel v. Kaiser Found. Health Plan, 859 F.Supp. 963, 978 (E.D.N.C.1994). An employer is not required “to make fundamental or substantial modifications in its operations to assure every disabled individual the benefit of employment.” Id. (citations omitted). Moreover, an employer is not required to place a stress-sensitive employee in a virtually stress-free environment. Pesterfield v. Tennessee Valley Auth., 941 F.2d 437, 442 (6th Cir.1991).

However, this case is different than Johnston, Reigel, and Pesterfield. Here, there was evidence that Strass could perform her functions before her staff was removed. She did not request additional staff to perform her job; she requested to return to the status quo before she experienced the conditions which brought on the hypertension. The vacancies needed to be filled in order that she could perform her job, and the new staff, presumably, could perform the jobs previously performed by former staff. There was evidence that the company deferred filling the vacancies until after Strass’ termination. As Strass summarizes her argument, the jury could have determined from the evidence that the company learned of her disability, attempted to force her to quit by failing to fill the positions on her staff essential to the performance of the job, denied her alternative employment for which she was qualified, and then filled the staff positions for her replacement shortly after she left Kaiser. While an employer is not required to hire employees to perform the functions of the job that a handicapped individual cannot perform, the employer cannot deliberately create conditions which render it impossible for a handicapped person to discharge the responsibilities of the position for the purpose of forcing the handicapped person to quit. That is essentially Strass’ claim in this ease.⁹ Although Kaiser offered evidence to counter Strass’ evidence as outlined, the jury could have rejected it in favor of Strass’ version of the facts. Viewing the evidence in the light most favorable to Strass, it cannot be said that no reasonable juror could find in her favor on the Human Rights Act claim.

Kaiser makes two additional arguments which require only brief discussion. Kaiser argues that no reasonable juror could find that Strass had a physical handicap within the meaning of the Human Rights Act. It contends first that Strass did not prove that she had a perceived or actual disablement and that her condition did not meet the definition of a handicapped person under federal law in that it did not substantially limit one of her major life’s functions.¹⁰ Our dissenting colleague also takes this position. Instead of applying the definition of handicap which was in effect at the time Strass’ claim arose, D.C. Human Rights Act, D.C.Code § 1-2502(23)¹¹ and regulations then in effect, 4 DCMR § 599.1 (1995),¹² they rely principally on the more restrictive requirements of the subsequently amended local statute which redefined the protected class using the term “disability,” instead of “handicapped.” ¹³ Although the term disability in the amended version of the Human Rights Act is defined in language identical to the federal definition appearing in the Americans with Disabilities Act, 42 U.S.C. § 12102(2) and federal regulations, the new law and the federal case law interpreting this language, cited in the dissenting opinion, are not controlling in resolving this case which arose under prior law.

Moreover, this issue is not properly before this court. Kaiser did not proceed to trial on the theory that the definition of disability under the subsequent enactment controlled.¹⁴ It did not raise this issue in its motion for judgment as a matter of law, and the trial court did not consider it.¹⁵ Rather, in its motion, Kaiser relied specifically upon the definition prior to the amendment of the Human Rights Act, ie., D.C.Code § 1-2502(23).¹⁶ Then, it argued only that Strass did not meet the definitional requirements of § 1-2502(23) factually because: (1) her condition was controlled by medication and her pressure was low at one point; and (2) there was no showing that reasonable accommodation could be made for her condition. “[I]t is not appropriate at this juncture to inject a different defense theory which was not presented at trial.” Vector Realty Group v. 711 14th St., 659 A.2d 230, 233 (D.C.1994) (citing Easter Seal Soc’y for Disabled, Children v. Berry, 621 A.2d 482, 488-89 (D.C.1993)). There are some differences between federal law and the Human Rights Act and the regulations governing it which define more broadly those covered under the Act.¹⁷

Under the provisions of the Human Rights Act in effect at the time her claim arose, it is sufficient that Strass showed that she had a physical disability and that Kaiser discriminated against her in her employment, in whole or in part, because of it. Although Kaiser points to other evidence from which the jury could have found that it had non-discriminatory reasons for discharging Strass, there was evidence from which the jury could have determined that the reasons either did not exist or were pretextual. The jury apparently did that, and there is no basis for disturbing its findings.¹⁸

C. Contract Claim,

Strass argues that the trial court erred in setting aside the jury’s verdict on her breach of contract claim. Strass’ theory of recovery was that Kaiser breached its implied contract by terminating her without following the progressive discipline policies outlined in Kaiser’s Personnel Policy Manual (Manual), and the jury found in her favor on that claim.¹⁹ In granting Kaiser’s post-trial motion for judgment as a matter of law, the trial court concluded that “the evidence presented at trial was insufficient to allow a reasonable jury to conclude that there was an express or implied agreement between Kaiser and its employees which superseded the disclaimer in the Manual, or that there were any special circumstances or inducements suggesting that plaintiff had a contract different from that of the other Kaiser employees.” Strass argues here, as she did in the trial court, that Kaiser’s disclaimers in the Manual do not automatically relieve it of its obligation to follow the progressive discipline policies set forth in the Manual before terminating her employment. She contends that the evidence was sufficient to allow the jury to conclude that Kaiser had that contractual obligation. Kaiser contends that the Manual’s contractual disclaimer was unambiguous and that there was no evidence of any agreement which would supersede it. We review first the legal principles governing our resolution of the parties’ respective positions and then consider their application to the facts presented at trial.

There is a well-settled presumption in this jurisdiction that “a hiring not accompanied by an expression of a specific term of duration creates an employment relationship terminable at will by either party at any time.” Nickens v. Labor Agency of Metro. Washington, 600 A.2d 818, 816 (D.C.1991) (citations omitted). However, this presumption can be rebutted by evidence that the parties intended that termination be subject to specific preconditions. Id. (citing Washington Welfare Ass’n, Inc. v. Wheeler, 496 A.2d 613, 616 (D.C.1985)). The terms of an employer’s personnel or policy manual may be sufficient to raise a jury question as to whether the manual creates contractual rights for the employee. Wheeler, 496 A.2d at 615; Nickens, 600 A.2d at 817. In Wheeler, the letter of employment specified no period of employment; however, the employer’s Personnel Policy and Procedures Manual distinguished between the procedures for discharge of permanent and probationary employees. 496 A.2d at 615. In Wheeler, it was determined that since these terms in the Manual evidenced the parties’ intent that certain preconditions be met before the employment could be terminated, the contract was distinguishable from an employment-at-will contract. Id. at 616. Thus, the trial court’s decision permitting the case to go to the jury and denying the employer’s motion for judgment notwithstanding the verdict was upheld. Id. Similarly, in Nickens, the employee contended that the employer’s personnel policies manual established preconditions to termination which the employer breached. 600 A.2d at 817. There, the policies manual required that each staff member receive a copy and “accept ‘the position and the Personnel Policies governing his/her employment’ in writing,” after which the agency head would sign the employee action form. Id. We said that these factors provided evidence that the parties intended the manual to establish contractual rights, or at the very least, raised a factual question for resolution by the factfinder. Id.

The decisions in Wheeler and Nickens show that contractual rights may arise from language in employee manuals. However, employers can effectively disclaim any implied contractual obligation arising from such provisions. Smith v. Union Labor Life Ins. Co., 620 A.2d 265, 269 (D.C.1993) (citing Goos v. National Ass’n of Realtors, 715 F.Supp. 2, 4 (D.D.C. 1989)). “The legal effect of such a disclaimer is, in the first instance, a question for the court to decide.” Id. In Smith, a disclaimer in the personnel handbook stated that “it is not an employment contract and does not guarantee any fixed terms and conditions of employment.... Employment for management personnel is for no definite period, is terminable at will and is subject to satisfactory performance.” 620 A.2d at 269 n. 1. This language, absent facts or circumstances indicating a superseding agreement or unconscionability, was found sufficient for the court to conclude as a matter of law that the management employee was an employee at-will who could be discharged with or without cause. Id. at 269.

Not in every case will a contractual disclaimer clause be adequate to relieve an employer of obligations specified in its regulations. See Greene v. Howard Univ., 134 U.S.App.D.C. 81, 88, 412 F.2d 1128, 1135 (1969).²⁰ In Greene, provisions in the university’s Faculty Handbook made clear that a faculty member who was not finally informed by April 15 that his contract would not be renewed, had reason to believe that he could rely on returning to the university the following semester, 134 U.S.App.D.C. at 86-87, 412 F.2d at 1133-34. The university argued that it had no contractual obligation to give such notice because qualifying language in the employee’s handbook relieved the university of any obligation to observe its regulations to that effect. Included in the handbook was a section reading, “without contractual obligation to do so” in connection with its purpose to give employees notice by certain fixed dates. 134 U.S.App.D.C. at 87, 412 F.2d at 1134. The D.C. Circuit rejected the argument that other provisions of the handbook were negated automatically by the disclaimer and held the disclaimer to be in conflict with a rational interpretation of the bargain between the parties. 134 U.S.App.D.C. at 88, 412 F.2d at 1135. Against these legal principles, we consider whether the disclaimers in Kaiser’s Policy Manual and Handbook entitle Kaiser to judgment as a matter of law, or whether construed in light of other provisions in the documents, a jury triable question is created as to Kaiser’s obligations to its employees before termination.

Kaiser relies upon disclaimers in the Manual and the Employee Handbook to support its argument that there was no contractual requirement that Kaiser comply with progressive discipline procedures before terminating Strass. The introduction in the Manual states that it is not a contract, reading in relevant part as follows:

This Personnel Policy Manual is designed to provide each employee with a clear set of guidelines for situations which develop in the workplace. This manual is not a contract, but rather a statement of the intention of the Kaiser-Georgetown Community Health Plan, Inc., in matters covered by the policies contained herein.

Similarly, the Employee Handbook states that “[t]he contents of the [Manual] are presented as a matter of information only and are not to be understood or construed as a promise or contract between the Company and its employees.” However, as Strass argues, other provisions of the Manual contradict these disclaimers. While Kaiser’s Policy Manual states at the outset that it is not a contract, it declares in the very same sentence that it is “a statement of the intention of Kaiser ... in matters covered by the policies contained [in the document].” Some evidence that the policy’s terms are mandatory also appears on the next page of the document, which provides:

Where there are conflicts with existing union contracts, the contracts shall' be controlling. However, where union contracts are silent, the Personnel Policy Manual shall be controlling. (Emphasis added.).

Strass argues that the Manual affirmatively imposes reciprocal duties upon non-probationary employees. Further, she contends there was evidence that Kaiser’s practices were to conform to the progressive discipline procedure. Section 8.03 of Kaiser’s Personnel Policy Manual covers “progressive discipline”.²¹ This procedure includes the following steps: (a)-informal counseling; (b) formal counseling; (c) written warning; (d) final warning, suspension; (e) discharge; and (f) immediate dismissal for severe infractions. It also provides for documentation of disciplinary action and for representation of the employees during disciplinary meetings.

The section on progressive discipline contains language which tends to support that Kaiser intended, and the employee could reasonably expect, that application of this policy was required before termination. The Manual provides, for example, that “[i]nformal counseling will occur when the supervisor recognizes unsatisfactory work performance”; that “[fjormal counseling will occur after a repeated infraction”; “[t]he final warning will be administered as the fourth step”; and that “[ejxcept in cases of gross misconduct or gross negligence, a discharge will be preceded by a final warning.” This section of the Manual is preceded by Kaiser’s statement that it is their “policy to adhere to an established protocol to ensure fair and consistent treatment of employees in handling of disciplinary action.”

Other provisions of the policy also support Strass’ position that it was intended by Kaiser to govern the rights and responsibilities of Kaiser and its employees. These provisions are also covered by the mandatory term, “shall,” rather than the permissive, “may.” The Manual contains provisions governing leave, wages, salary, benefits, health and safety, employee services, grievance procedures, and other conditions of employment. An examination of these sections reveal that they specify obligations for both the employer and employee. The Manual designates, for example, specific holidays for which employees will be paid, providing that “when a holiday falls on Sunday, the following Monday shall be a paid holiday.” (Policy Manual, Section 3.01). It provides for a “floating holiday” for which compensation “ ‘shall ’ be equal to the employee’s regularly scheduled work day,” up to eight hours. (Policy Manual, Section 3.02). In instances of non-compliance with the provisions set forth in the Manual, the employee is subject to forfeiture of certain benefits. For example, under Section 8.04, unless non-probationary employees comply with the notice requirements for termination set forth in the policy, that employee “shall not be entitled to payment of ... accrued • [vacation] leave.” It is difficult to comprehend how the non-contractual qualifier in the beginning of the Manual can be viewed reasonably to abrogate what clearly appear to be obligations of the employer and employee of this type. By adopting written policies for consistent application to the terms of employment,

“the employer chooses, presumably in its own interest, to create an environment in which the employee believes that, whatever the personnel policies and practices, they are established and official at any given time, purport to be fair, and are applied consistently and ■uniformly to each employee.”

Sisco v. GSA Nat’l Capital Fed. Credit Union, 689 A.2d 52, 57 (D.C.1997) (quoting Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880, 892 (1980)).

“This court has held that a personnel manual that states specific preconditions that must be met before employment will be terminated is sufficiently clear to rebut the presumption of at-will employment.” Rinck v. Association of Reserve City Bankers, 676 A.2d 12, 16 (D.C. 1996) (citing Wheeler, supra, 496 A.2d at 616 ). While there is language in Kaiser’s policy manual that it is not a contract, this qualifier is rationally at odds with other language in the document. Construing the document as a whole, a jury could conclude reasonably that the employer intended to be bound by its terms, including those related to its progressive discipline policy. See Greene, supra, 134 U.S.App.D.C. at 88, 412 F.2d at 1135. The progressive discipline policies in this case established preconditions to termination, and are similar to those provisions which can rebut the presumption of at-will employment. See Sisco, supra, 689 A.2d at 57; see also Rinck, 676 A.2d at 16 (citation omitted). We recognize that Sisco allows that an employer, by disclaimer, may negate the reasonableness of the employee’s expectation that the employer will be bound. 689 A.2d at 57. However, that does not answer the question whether the disclaimer in this case, considered with reference to the entire document, effectively relieved Kaiser of any and all obligations which the policies set forth. See Greene, 134 U.S.App.D.C. at 87, 412 F.2d at 1134. A jury question was raised as to this issue. Therefore, the trial court’s initial determination to submit the issue to the jury was correct, and the decision to set aside the jury’s verdict on the claim, erroneous.²²

For the foregoing reasons, the grant of judgment as a matter of law for Kaiser is reversed, and the case is remanded with instructions for the trial court to consider first Kaiser’s alternate request that the jury’s award of damages be reduced.²³ If denied, then, the jury verdict shall be reinstated.

Reversed and remanded.

1 . One individual terminated employment with Kaiser, and the other was discharged.

2 . At trial. Dr. Barry Marón, Strass' medical expert, defined hypertension as high blood pressure which means readings of at least 140 systolic or 90 diastolic on more than one occasion within a close period of time.

3 . The memo read as follows:

Based on your decision regarding the [C]a-reer [Rjeappraisal [Pjrogram and our prior discussions concerning other available opportunity within the organization, I find it necessary to terminate your employment. In light of your tenure with Kaiser Perma-

nente, we will offer you full out placement services as well as two months’ severance pay. Your health insurance will continue through the end of the month in which the second month you pay in. In addition, you’re entitled to your full vacation balance.

4 . D.C.Code § 1-2512(a)(1) reads as follows:

It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based upon the race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, physical handicap, matriculation, or political affiliation of any individual:

(1) To fail or refuse to hire, or to discharge, any individual; or otherwise discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee!.]

5 . The jury was asked to determine: (1) whether "Strass demonstrate^] that she had a physical handicap that prevented her from meeting the physical criteria of her job"; (2) whether "she was qualified to fill her job at Kaiser except for her physical handicap”; (3) whether she showed "that the physical requirements of the job ... had a disproportionate impact on other people with her same physical handicap”; (4) whether "her handicap could have been reasonably accommodated”; and (5) whether "Kaiser intentionally discriminated against her, in whole or in part, on the basis of her physical handicap.”

6 . This section was repealed in 1994, but was applicable at the time Strass filed her complaint.

7 . "Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against otherwise qualified handicapped individuals in programs and activities that receive federal financial assistance” and applicable federal regulations. Chiari, supra, 920 F.2d at 315, 318.

8 . In determining the kind of proof required to prove Human Rights Act violations, this court has looked to cases decided under analogous federal statutes for guidance. American Univ., supra, 598 A.2d at 422.

9 . Strass also claimed discrimination based upon disparate treatment. The trial court did not consider this issue separately in ruling on the motion for judgment as a matter of law. In light of our disposition, we need not address it here.

10 . Under federal regulations, a handicapped person was defined at the time Strass' cause of action arose, as one who:

(1) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) has a record of such impairment, or (3) is regarded as having such an impairment.

29 C.F.R. § 1613.702(a)(repealed 1992). The definition is the same under the ADA, 42 U.S.C. § 12102(2) and current regulations under the Rehabilitation Act. See 29 C.F.R. § 1614.203(a) (1999).

11 . The term "handicap” was then defined in the Human Rights Act as "a bodily or mental disablement which may be the result of an injury, illness or congenital conditions which does not preclude the capacity to perform a particular job and for which reasonable accommodation can be made.”

12 . For the applicable text of this section, see note 17, infra.

13 . The term "disability” is defined in the amended Human Rights Act as

a physical or mental impairment that substantially limits one or more of the major life activities of an individual having a record of such an impairment or being regarded as having such an impairment.

D.C.Code § 1-2502(5A) (1999).

14 . The trial court instructed the jury consistent with the definition in the prior statute.

15 . Indeed, Kaiser again asserts in its brief that the law enacted after Strass’ claim arose is not controlling. In arguing for rejection of a right in the employee for reassignment in some circumstances under 42 U.S.C. § 12111(9)(B), it argues that the provision is not applicable because it became effective after Strass’ discharge. Kaiser acknowledges that while the court may look for guidance in ADA cases which are consistent with the relevant law, “the Court should not afford Strass a substantive reassignment right that no law afforded during the time she was employed.”

16 . Kaiser did not challenge by cross-appeal the correctness of the trial court’s instruction based on the definition of the law in effect at the time the claim arose. Thus, the trial court's determination in that regard would not be properly before us. See Bible Way Church v. Beards, 680 A.2d 419, 431 (D.C. 1996), cert. denied, 520 U.S. 1155, 117 S.Ct. 1335, 137 L.Ed.2d 494 (1997); Griffith v. Butler, 571 A.2d 1161, 1163 n. 3 (D.C.1990).

17 . The District of Columbia Employment Guidelines for Human Rights Law, 4 DCMR § 599.1 provides the following definition for physical handicap, in pertinent part:

[A] bodily or mental disablement which may be the result of injury, illness or congenital condition which does not preclude the capacity to perform a particular job and for which reasonable accommodation can be made. Physical or mental disablement means any physiological disorder or condition .... The term physical or mental disabilities includes, but is not limited to, such diseases and conditions as ... heart disease, diabetes, mental retardation, and emotional illness.

18 . In any event, we are satisfied that there was ample evidence from which the jury could find, as the jury did, that Strass’ condition, although controlled by medication, was a disability within the meaning of the Act. See Harris v.H & W Contracting Co., 102 F.3d 516, 522 (11th Cir.1996) (disease capable of substantially limiting major life activities if left untreated qualifies as a handicap); see also Oswalt v. Sara Lee Corp., 74 F.3d 91, 92 (5th Cir.1996) (recognizing that evidence that high blood pressure substantially limits a major life activity may bring it within the ADA). Compare Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (upholding dismissal of complaint for disability discrimination under the ADA where glasses or contact lenses corrected the petitioners’ vision to function identically with individuals without a similar impairment), with Murphy v. United Parcel Serv., 527 U.S. 516, 119 S.Ct. 2133, 2137, 144 L.Ed.2d 484 (1999) (citing Sutton and upholding affir-mance of summary judgment based upon determination of no disability in that petitioner’s condition in a medicated state does not substantially limit a major life activity under the ADA).

19 .The trial court instructed the jury with respect to the breach of contract claim:

One of the issues that you’ll have to consider in determining whether the policy manual was a contract is the effect of the disclaimer of that manual. While in its express disclaimer that the manual is not a contract, it [is] evidence that the employer did not intend to be bound by it, other provisions of the manual and the employer’s actions may contradict and demonstrate that there was a contract, notwithstanding the disclaimer.

Thus, the employer’s manual or its other written policies, statement or its instructions to its employees may show that the employer really had contracted' with its employees to follow the provisions of the manual. But unless the plaintiff has established by a preponderance of all the evidence that Kaiser clearly planned to abandon the disclaimer and enter into a new agreement with the plaintiff, your verdict on the plaintiff’s contract claim must be for Kaiser.

20 . The opinion in Greene is binding precedent under M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971).

21 . The relevant portion of Section 8.03 reads as follows:

The disciplinary procedure which follows is intended as a guide for supervisors and employees to follow for most problems which arise in the workplace. However, severe infractions or problems such as gross misconduct or gross neglect of duty may warrant by-passing any or all of the early steps in the procedure.

22 . The trial court had previously denied Kaiser’s motion for summary judgment presenting essentially the same theory. In light of our disposition of this issue, we need not decide whether the motions judge’s prior ruling denying summary judgment for Kaiser on this question precluded the trial court from considering the issue because of "law of the case” rules, which generally preclude a court from reconsidering the same question of law previously decided by a court of coordinate jurisdiction. See Williams v. Mount Jezreel Baptist Church, 589 A.2d 901, 907 (D.C.1991). We also need not consider whether the trial court erred in denying admission of evidence of orders and training that Strass received from Kaiser showing its requirements that the policies in the Manual be followed.

23 . Kaiser did not designate its request as one for remittitur, but that appears to be its nature. Therefore, we remand to the trial court for consideration of the issue.