Opinion
CIVIL ACTION 98-CV-2838
September 12, 2003
MEMORANDUM AND ORDER
After a five day trial, a jury awarded damages to the plaintiff, Carl J. Bjorklund ("Bjorklund"), on his claim that the defendant Philadelphia Housing Authority ("PHA") had violated his rights under the Americans with Disabilities Act of 1990 when it terminated his employment. It also found that PHA had not discriminated against him on the basis of his age and had not violated the Family Medical Leave Act.
PHA has filed post-trial motions challenging the verdict. PHA's arguments can be summarized as two-fold: (1) there was insufficient evidence that PHA had regarded Bjorklund as disabled; and, (2) the court did not apply the correct standard in ruling on its Batson challenge.
A reasonable jury could have found that PHA perceived Bjorklund as disabled where the evidence showed that Sadie Glover ("Glover"), Bjorklund's supervisor, knew of his illness, treatment and hospitalizations. The jury's focus was properly on the reactions and perceptions of the employer, specifically Glover who interacted and worked with him, rather than on Bjorklund's condition. The jury's conclusion that PHA considered Bjorklund unable to perform any job as a result of his perceived disability cannot be overturned viewing the facts and inferences in a light most favorable to Bjorklund.
PHA's Batson argument is also without merit. Contrary to PHA's assertion, the court conducted an inquiry necessary to assure the absence of any racially motivated exercise of two of Bjorklund's peremptory challenges. The court then found Bjorklund's race-neutral reasons for excluding two African-Americans from the jury credible.
Background
Based upon his 30 years experience in the human resources field, Bjorklund was hired by PHA as benefits manager in February 1992. Two years after joining PHA, his position was eliminated and he was reassigned to a different job.
In November 1994, Bjorklund was diagnosed with non-Hodgkins lymphoma. He underwent chemotherapy and radiation treatments through the Summer of 1995. Scheduling his treatments around business hours, he was able to sustain a normal workload with minimal interruptions. As a result of the cancer and treatments, Bjorklund needed cardiovascular rehabilitation, requiring him to work a "flex" schedule. When he discussed the possibility of taking extended leave to recuperate, his supervisor was unaccommodating. Instead, she suggested that he retire or take a part-time position somewhere else. Bjorklund chose neither.
After completion of his cardiovascular rehabilitation program in March 1996, Bjorklund received, for the first time, a negative performance evaluation and was placed in a probationary program. Though Bjorklund completed all the requirements of his probation, PHA terminated his employment on June 6, 1996.
Bjorklund instituted this action against PHA, alleging that he was wrongfully terminated because he was of an advanced age, because he attempted to exercise his rights under the Family Medical Leave Act, and because PHA regarded him as disabled under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12111. On January 10, 2003, after a five day trial, the jury returned its verdict. PHA filed timely post-trial motions.
This case was reassigned from the calendar of the late Honorable Jay C. Waldman on September 4, 2002.
Standard of Review
Judgment as a matter of law can be granted only where there is no legally sufficient evidentiary basis for a reasonable jury to find in favor of the verdict winner. Foster v. Nat'l Fuel Gas Co., 316 F.3d 424, 428 (3d Cir. 2003) (citing Fed.R.Civ.P. 50(a)(1)). Thus, a jury verdict will not be disturbed unless the record is "critically deficient of that quantum of evidence from which a jury could have rationally reached its verdict." Feldman v. Philadelphia Hous. Auth., 43 F.3d 823, 828 (3d Cir. 1994) (quoting Swineford v. Snyder County, 15 F.3d 1258, 1265 (3d Cir. 1994)).
At the conclusion of Bjorklund's case in chief, PHA moved for judgment as a matter of law. Once the motion was denied, PHA proceeded to offer evidence in its own defense. Consequently, the motion for judgment as a matter of law must be decided on the record as it stood at the close of all the evidence. See Trs. of Univ. of Pennsylvania v. Lexington Ins. Co., 815 F.2d 890, 903 (3d Cir. 1987).
Only where "the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks [the] conscience" can a new trial be granted for insufficiency of the evidence. Greenleaf v. Garlock, Inc., 174 F.3d 352, 366 (3d Cir. 1999) (quoting Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991)). A trial court may not substitute its judgment of the facts and its own credibility determinations for that of the jury. Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 211 (3d Cir. 1992).
Regarded As Disabled
PHA disputes that it had regarded Bjorklund as disabled. Thus, our task is to determine whether there was sufficient evidence from which a reasonable jury could have concluded that PHA had considered him disabled.
In an employment discrimination case under the ADA, the plaintiff must establish that he is a qualified individual who has a disability, and has suffered an adverse employment action as the result of discrimination. See Tice v. Centre Area Transp. Auth., 247 F.3d 506, 511-12 (3d Cir. 2001). A "qualified individual" is defined as a person with a disability who, with or without reasonable accommodation, can perform the essential functions of the position he or she either holds or desires. See id. The ADA defines "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or, (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2).
To be regarded as disabled, a plaintiff must show that his employer erroneously believed that he either (a) had an impairment and the impairment substantially limited major life activities; or, (b) had a nonlimiting impairment that the employer erroneously believed was limiting; or, (c) the plaintiff had an impairment that substantially limits major life activities only as a result of the attitudes of others toward the impairment. See Rinehimerv. Cemcolift, Inc., 292 F.3d 375, 381 (3d Cir. 2002) (citing Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 187 (3d Cir. 1999)). For a plaintiff to be considered substantially limited in the major life activity of working, the employer must believe he can not perform a broad class of jobs. See Tice, 247 F.3d at 514. If an employer "misinterprets information about an employee's limitations to conclude that the employee is incapable of performing a wide range of jobs, that employee is regarded as disabled under the ADA." Rinehimer, 292 F.3d at 381 (quoting Taylor, 177 F.3d at 190).
To determine whether the employer regarded the plaintiff as disabled, the inquiry centers on what information the employer had regarding the plaintiff's condition and its response to that information. Buskirk v. Apollo Metals, 307 F.3d 160, 167 (3d Cir. 2002). Accordingly, we examine the record to see how the jury could have reached its decision within this context.
In November 1994, approximately four months after he was transferred to a new position at PHA as a senior recruiter, Bjorklund informed Edward France ("France"), the head of PHA's human resources department, that he was diagnosed with cancer. (NT. 1/6/03 at 71, 89-90). Glover testified that she first learned about Bjorklund's cancer from France at a manager's meeting. (NT. 1/8/03 (Rothschild) at 35). France contradicted Glover, stating that it was she who had initially told him about the cancer. (NT. 1/8/03 (White) at 115).
In April 1995, Bjorklund was placed on a chemotherapy and radiation regimen that continued through the summer. (NT. 1/6/03 at 92-93). During his treatment, he was hospitalized on two occasions. He called Glover from the hospital. (NT. 1/6/03 at 94). Nevertheless, she denied ever learning the reason he was there. (NT. 1/8/03 (Rothschild) at 47). She also denied knowing he was undergoing chemotherapy treatment. (NT. 1/6/03 at 94; NT. 1/9/03 at 30-31).
There was ample evidence from which the jury could find Glover's testimony incredible. While working at his desk, which was situated a few feet from the entrance to Glover's office, Bjorklund displayed visible side effects of the chemotherapy. (NT. 1/6/03 at 75, 94). His hair was whitening, and he appeared drawn and gaunt. (NT. 1/6/03 at 94; NT. 1/9/03 at 30-31). Glover denied knowing Bjorklund was receiving radiation treatment five days a week for six weeks during June and July of 1995 even though he suffered from burnt skin and fatigue, and had to work a flex schedule. (NT. 1/6/03 at 95; NT. 1/9/03 at 31-32).
Glover approved Bjorklund's absence from work, signing the leave request form which noted that Bjorklund was having an angioplasty on September 22, 1995. (NT. 1/7/03 at 6-7). Nevertheless, at trial she repeatedly denied ever knowing why he was in the hospital. (NT. 1/8/03 (Rothschild) at 46-48). Following the angioplasty, Bjorklund had to undergo cardiovascular rehabilitation several times a week over a period of three months, requiring him to work a flex schedule again. (NT. 1/7/03 at 7-8). Even though she had approved the modified schedule, Glover proclaimed ignorance of why Bjorklund needed to work a flex schedule. (NT. 1/8/03 (Rothschild) at 47).
Until Bjorklund informed Glover that he would need to undergo additional rehabilitation, she had rated him in the satisfactory to superior range. (NT. 1/7/03 at 10). After she became aware of his heart condition, her attitude changed. (NT. 1/7/03 at 8). In early October 1995, she issued him a formal warning because he had not recreated monthly reports for June through August. (NT. 1/8/03 (Rothschild) at 51). At the same time she accused him of not completing his work, she removed his clerical and typing support, making performance of his job more difficult. (NT. 1/7/03 at 19-20).
In the performance evaluation issued prior to Bjorklund's announcing his need for further cardiac treatment, Glover had not mentioned any requirement to prepare the monthly reports and did not inquire of Bjorklund about them before issuing the evaluation. (NT. 1/8/03 (Rothschild) at 51-52). Before the cancer diagnosis, Glover had considered him to be a "really good experienced employee that could just jump in the job." (NT. 1/8/03 (White) at 157). Following Bjorklund's transfer to her department, Glover found him to be knowledgeable in his new position and was satisfied with his performance. (NT. 1/8/03 (Rothschild) at 42). Thus, considering Glover's apparent change in attitude after Bjorklund's getting sick, the jury could have concluded that the report criticism had been pretextual.
In February 1996, Bjorklund's cardiologist recommended that he take some time off from work to fully recuperate from the fatigue that resulted from all his treatments. (NT. 1/7/03 at 28; 1/8/03 (Rothschild) at 46). When he discussed his doctor's recommendation with Glover, she suggested he should retire. (NT. 1/7/03 at 29-31). At trial, she denied this conversation had taken place or that she had ever suggested that Bjorklund retire. (NT. 1/9/03 at 40; NT. 1/8/03 (Rothschild) at 37).
Citing a purported decline in performance, Glover placed Bjorklund on a "corrective action plan," a 90 day probationary period in which the employee had to fulfill certain objectives. (NT. 1/9/03 at 41-42). It was the first time PHA had used such a plan. (NT. 1/7/03 at 41-42). During the pendency of the probationary period, Glover was required to provide "coaching, feedback and general assistance" to Bjorklund. (Corrective Action Plan Step 12 found at Plaintiffs Trial Exhibit 61 (Bates Number 00316)) (NT. 1/7/03 at 40-41). Contrary to the directive, Glover offered no help to Bjorklund. (NT. 1/7/03 at 41).
Despite Bjorklund's completing the plan objectives, Glover terminated him at the conclusion of the probationary period. She cited his failure to attend an early June meeting and other unspecified responsibilities that he had supposedly neglected. (NT. 1/9/03 at 52-53). She testified that just before the conclusion of the 90 day probationary period, Bjorklund failed to attend a one-on-one meeting she had scheduled with him. The jury was informed and she conceded that their desks were close enough to one another that she could have called over to him to arrange the meeting at any moment. (NT. 1/9/03 at 53). She did not.
When initially placed on the plan, Bjorklund had requested a meeting with France. (N.T. 1/7/03 at 36). His request was never granted. France ultimately relied on Glover's recommendation to terminate Bjorklund without ever meeting with him. (N.T. 1/7/03 at 36).
From his work in the human resources department, Bjorklund was aware of several vacancies at PHA. He attempted to transfer to one of those other positions at PHA. (NT. 1/7/03 at 43-45). His requests were ignored or rebuffed. Id. Arlene Bell, an assistant director at PHA, told him there were no positions available for him at PHA. Id. He was told that he was overqualified for any vacancies in the finance department. Id. Glover told him she had nothing available for him. Id. A reasonable fact finder easily could have concluded that PHA did not want Bjorklund, with his perceived disability, working there.
Bjorklund presented considerable evidence of Glover's changed attitude towards him. In September 1995, Glover had given Bjorklund a positive evaluation. A month later, after he told her he would require additional cardiac treatment, her evaluations and assessments of his performance were critical, resulting in the implementation of the corrective action plan and eventually his termination.
This evidence, viewed in the light most favorable to Bjorklund as the verdict winner, exhibits Glover's increasing frustration with Bjorklund's medical conditions, and her belief that his illnesses prevented him from performing the essential functions of his job. Her perception ultimately led to his termination.
In reaching its verdict, the jury made credibility determinations which were exclusively within their province. See Scully v. US WATS, Inc., 238 F.3d 497, 506 (3d Cir. 2001). As fact finder, the jury considered the relationship each witness had with the parties, how the testimony of each witness was supported or contradicted by other evidence in the case, and the inconsistencies and discrepancies in the testimony of a witness or among witnesses. (NT. 1/10/03 (White) at 17-18). The jury was free to accept or reject all, none, or part of the testimony of each witness. Id. How the jury evaluated the witnesses is not for a court to question as long as it is reasonable and supported by the evidence.
Ignoring the standard of review at this stage, PHA relies on testimony which supports its position while disregarding the evidence which is favorable to Bjorklund. PHA cites selected testimony from Glover and France in an effort to demonstrate that they did not regard Bjorklund as disabled. Apparently, the jury rejected their explanations as to how and why Bjorklund was treated and perceived by PHA. Weighing the evidence and making credibility determinations, the jury reasonably found that Bjorklund was subjected to an adverse employment action because PHA regarded him as disabled.
"[l]n general, an employer's perception that an employee cannot perform a wide range of jobs suffices to make out a`regarded as' claim." Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 188 (3d Cir. 1999) (emphasis added). Therefore, we are only concerned with what Bjorklund's employers believed and not what his actual capability to perform his job was.
PHA cites Bjorklund's inability to say Glover and France had believed he could not perform the necessary duties of his job when he testified that he did not know what was in their minds. (NT. 1/7/03 at 128). Bjorklund's own perception about his ability to perform his job or what he believed his employers perceived about his abilities to perform his job is irrelevant. See Taylor, 177 F.3d at 188.
PHA emphasizes that France and Glover testified that they never considered Bjorklund disabled. However, PHA's characterization and selection of the facts ignores the contradictory evidence which the jury was free to consider. Indeed, the jury concluded that Bjorklund had been terminated because PHA had regarded him as disabled even though he had been able to perform all the essential functions of his job. By its answer to the jury interrogatory, the jury's finding could not have been clearer.
At the defendant's insistence, the issue was presented to the jury on the jury interrogatory form as follows: "Did the defendant PHA terminate plaintiff Carl T. Bjorklund's employment because PHA regarded the plaintiff as having a disability, that is, because it regarded him as having an impairment that substantially limited a major life activity of working when in fact he had no such impairment or he had an impairment that was not so limiting?" (N.T. 1/10/03 (White) at 5-7).
During his employment at PHA, neither his cancer nor cardiovascular rehabilitation prevented Bjorklund from performing the essential functions of his sedentary job. Indeed, he completed the corrective action plan objectives on time. From the evidence presented, a reasonable jury could have concluded that Glover perceived Bjorklund as disabled, did not believe he was capable of performing a wide range of jobs and took steps to force Bjorklund from his position at PHA. Therefore, a new trial is not warranted. See Fineman, 980 F.2d at 211.
Batson Challenge
PHA argues that the court applied the incorrect standard when ruling on PHA's challenge to Bjorklund's striking of potential jurors pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). PHA contends that Bjorklund, who is white, intentionally struck the four African-American jurors from the jury panel because Glover, a defense witness, is African American. (NT. 1/6/03 at 3).
PHA's disingenuous argument is not supported by the record. PHA agreed to the dismissal of two of the jurors for cause. Yet, both at trial and again in its motion, it suggests that all African-American jurors were stricken by the plaintiff because of their race.
Evaluating a Batson challenge requires a three part inquiry. See Hernandez v. New York, 500 U.S. 352, 358 (1991). First, the complaining party must establish a prima facie case of purposeful discrimination by showing a pattern of peremptory strikes used against jurors of a particular race. Batson, 476 U.S. at 96-97. Second, the striking party must offer a race-neutral explanation for the exercise of the challenges. Id. A race-neutral explanation is one which is based on "something other than the race of the juror" and is free from a discriminatory animus. Hernandez, 500 U.S. at 360. Third, the court must evaluate the credibility of the race-neutral rationale to determine whether it is legitimate or merely pretextual. See Rico v. Leftridge-Byrd, 340 F.3d 178, 185 (3d Cir. 2003); U.S. v. Milan, 304 F.3d 273, 281 (3d Cir. 2002). A trial court's determination of a Batson challenge is considered a finding of fact and will not be reversed unless it is "completely devoid of minimum evidentiary support displaying some hue of credibility, or . . . bears no rational relationship to the supportive eviden[ce]." Milan, 304 F.3d at 281.
PHA argues that the court did not properly question PHA's counsel on whether a prima facie case of discrimination existed and did not require Bjorklund's counsel to offer a race-neutral explanation for striking the two jurors. The court did what PHA claims it did not. It inquired as to the basis for Bjorklund's challenges. It then considered and evaluated plaintiff's counsel's non-race related reasons. Thus, the court fulfilled its "required constitutional task by evaluating [Bjorklund's] reasons against the backdrop of the record to see whether there had been purposeful discrimination." Milan, 304 F.3d at 284.
Once PHA raised the Batson issue, the Court questioned both counsel as to whether race was an issue in this case and invited Bjorklund's counsel to explain his rationale for striking the prospective jurors. (NT. 1/6/03 at 7). Bjorklund's counsel explained his reasons for exercising his challenges. (NT. 1/6/03 at 7-8). One of the excluded jurors was an employee of an insurance company. Id. The other juror's mother lived in PHA housing and was involved in the tenants' council. Id. This prospective juror initially explained that her judgment would be affected due to her mother's relationship with PHA. Id. Though she later suggested that her judgment would not be affected, counsel remained skeptical. Id.
Considering the credibility of plaintiff's counsel, the court determined that the explanations were reasonable and based on accepted trial strategy. See Miller-El v. Cockrell, 537 U.S. 322, ___, 123 S.Ct. 1029, 1041 (2003). Thus, the court concluded that the peremptory challenges were not racially based. (NT. 1/6/03 at 8).
Conclusion
PHA has failed to demonstrate that the jury's verdict is "critically deficient" of the necessary evidence to warrant either entering judgment in favor of PHA or granting a new trial. On the contrary, there is ample evidence to support the jury's findings. Likewise, PHA's Batson challenge is without merit because Bjorklund's counsel had credible race-neutral reasons for excluding the two African-American jurors remaining in the pool after PHA had agreed to strike two other African-Americans. Accordingly, the defendant's post verdict motions will be denied.ORDER
AND NOW, this 12th day of September, 2003, upon consideration of the Defendant Philadelphia Housing Authority's Motion for Judgment as a Matter of Law, or for a New Trial (Docket No. 96) and the plaintiff's response, it is ORDERED that the motion is DENIED.