Jordan v. City of Baton Rouge

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________

No. 98-30989 Summary Calendar _______________

FRANK C. JORDAN, Plaintiff-Appellee, VERSUS

CITY OF BATON ROUGE, Defendant-Appellant. _________________________

Appeal from the United States District Court for the Middle District of Louisiana _________________________

August 3, 1999

Before JOLLY, SMITH, and WIENER, in front of his home. Circuit Judges. Jordan used substantial amounts of JERRY E. SMITH, Circuit Judge:* medication in an attempt to control the asthma. Over time, he began to succeed. By The City of Baton Rouge appeals a final 1992, he had lost weight, was able to walk and judgment entered against it on Frank Jordan's run, and took karate classes. Because he felt Americans with Disabilities Act (“ADA”) he had his asthma under control, he decided to claim. Finding no reversible error, we affirm. seek reinstatement. He underwent five separate medical exams, with each examiner I. concluding that he was fit to return to work Jordan served as a Baton Rouge police and that his asthma no longer was a disabling officer from February 1978 to May 1987. His condition. tour of duty ended when he took disability retirement on account of stress-related asthma In August 1992, Jordan applied for that began to develop in 1985. Despite efforts reinstatement. He first unsuccessfully to keep it under control, he suffered from attempted to meet with Chief Phares, then severe asthma problems. He was forced to be applied to the Civil Service Board, submitting inactive, which resulted in a substantial weight documentation from his medical examinations gain. He could not even walk to the mailbox to support reinstatement. Soon thereafter, the Civil Service Board's secretary informed Jordan that he needed to obtain clearance from * Pursuant to 5TH CIR. R. 47.5, the court has the Retirement Board before the Civil Service determined that this opinion should not be Board could consider his application. He did published and is not precedent except under the not. limited circumstances set forth in 5TH CIR. R. 47.5.4. In October 1992, Jordan voluntary

submitted to a sixth medical examination, resolved.” administered by Dr. Marla Albanes, who Johnson acknowledged requesting that the provides services to the city, including fitness- chief have Jordan medically evaluated. Only for-duty examinations for police officers. when pressed on cross-examination did he add Albanes also cleared him for work. When the that the board's position was that Jordan first Civil Service Board met later that month, it had to go to the Reti rement Board. Johnson determined that Jordan had to seek review recalled one other officer who had taken a from the Retirement Board before it could medical retirement and sought to return; hear his application; Jordan did not do so. Johnson believed that he too was reinstated by a court after the board would not authorize his In November 1992, Jordan appealed the return. The parties stipulated that Phares Civil Service Board's decision to a state court, believed Jordan had to apply to the Retirement which reversed the Board and ordered it to Board. decide whether he should be allowed to return to work. In May 1993, the Civil Service The City moved for judgment as a matter of Board directed Phares immediately to arrange law, contending that Jordan had not proven he for Jordan's evaluation by a physician and had, or that the city regarded him as having, a psychiatrist to determine whether he was able disability. It also argued that Jordan had sued to return to work. Two days later, Jordan the wrong entity; any complaints were began working again. attributable to the Board, and any actions and perceptions were its responsibility. It The city has given Jordan full back pay, and characterized the situation as a dispute over he continues to serve as an officer. In this suit, procedure, which did not constitute an adverse he seeks general damages (emotional distress, employment action. It also argued that any mental pain and suffering) and attorney's fees. perception of disability Jordan had proved He testified that, while awaiting the city's demonstrated only a limited perception and decision, he had to perform menial jobs to that he was not perceived as being support himself. This was an emotionally substantially limited in the major life activity of difficult time and led to his divorce. He spent working. Finally, the city contends Jordan had $2,000 to renew his commercial truck-driving a duty to mitigate his damages by appearing license and spent time hauling heavy before the Retirement Board. equipment. He also worked for a hardware store and a forklift business, where he earned Jordan responded that the city did perceive little more than the minimum wage. him as disabled and that the requirement that he go before the Retirement Board When reinstated, Jordan believed he could discriminated against him on account of that do as much as any other officer. He had no perception. He also averred that the city problem performing his job. He testified that waived any argument that it is not responsible no other officers who applied for reinstatement for the Civil Service Board by failing to raise had to go through the Retirement Board as he it in its answer, or even in subsequent was instructed to do. pleadings. Finally, because the city is his employer, it was responsible for the board's Lieutenant Vernet Johnson of the Police actions. Department was the chairman of the Civil Service Board when Jordan applied. Johnson The court, through a magistrate judge, said the board had no involvement in hiring agreed and entered judgment for Jordan. The and firing; it merely heard appeals of personnel City appeals, raising essentially the same decisions. Most of the board's members were arguments: (1) It is not responsible for the against reinstating Jordan. He opposed board; (2) no evidence was adduced that the reinstatement because he “didn't have proof “employer” perceived him as disabled; and that the medical problems he had [were] (3) Jordan did not suffer an adverse

employment action at the city's hands. making. As the district court aptly observed, accepting the city's argument would place a II. victim of the board's discrimination in the In reviewing judgments on the merits from untenable position of being unable to recover civil bench trials, we review conclusions of law from either the city (not the proper defendant) de novo and conclusions of fact for clear error. or the board (not the employer). See Read v. United States Dep't of Treasury, 169 F.3d 243, 247 (5th Cir. 1999); North Alamo Water Supply Corp. v. City of San Juan, 90 F.3d 910, 914-15 (5th Cir. 1996). “If the district court's account of the evidence is plausible in light of the record viewed in its entirety, we may not reverse even if we are convinced that, had we been sitting as the trier of fact, we would have weighed the evidence differently.” Id. at 915. Where, as here, the facts are essentially uncontested, however, “our review of the judgment is plenary.” Read, 169 F.3d at 247.

III. A. The city argues that under state law, the board is an independent entity for which it cannot be held responsible; Jordan should have sued the board instead of the city. We do not consider this argument. As the court noted, and the city does not dispute, failure to sue the proper party must be raised as an affirmative defense; if not, it is waived unless the court grants leave to amend the pleadings. See Bokunewicz v. Purolator Prods., Inc., 907 F.2d 1396, 1402 (3d Cir. 1990). The city never sought to amend, but only raised the defense at trial.

Even if it had amended its pleadings, we would not be convinced. Louisiana law provides, “A municipal fire and police civil service board is created in the municipal government.” LA. REV. STAT. § 33:2476.1 The board acts as an agent of the city, and the city may be held responsible for its discriminatory actsSSeven if the Board maintains a certain amount of independence from the rest of city government in its decision

1 Article XIV, § 15.1(6) of Louisiana's former constitution, retained as a statute when the state adopted a new constitution, also provides for the creation of a board in the municipal government.

B. applied the law in finding that this constitutes The city contends that the court erred in a record of impairment.4 finding Jordan disabled. A plaintiff can prove disability by establishing that he (1) has a In addition, the City regarded Jordan as physical or ment al “impairment” that disabled. A person is perceived as disabled if “substantially limits” one or more of the (1) the employer treated him as though he had “major life activities;” (2) has a record of such an impairment that limited major life activities, an impairment; or (3) is regarded as having even if the impairment he has did not; (2) he such an impairment. See 42 U.S.C. has an impairment that limits major life § 12102(2). Jordan claims to be healthy now, activities only because of the attitudes of making the first alternative inapposite. The others toward the impairment; or (3) he has no court found both alternatives two and three impairment, but the employer treated him as applicable. We agree. though he has a substantially limiting impairment.5 First, Jordan has a “record” of impairment if he has a history of having a physical When he reapplied to the force, Jordan had impairment that substantially limits one or his asthma under control. He no longer more of his life activities. See 29 C.F.R. suffered from an impairment that substantially § 1630.2(k). He does; he suffered from severe limited his major life activities; nonetheless, he asthma; this constitutes an impairment, i.e., a was treated as if he did. Johnson testified that condition or disorder that affects his most of the Civil Service Board opposed respiratory system. 2 The uncontroverted reinstatement and that, although he could not evidence establishes that he had been classified speak for the other members, he opposed it as suffering from severe asthma. See Sherrod because he did not have proof that the medical v. American Airlines, Inc., 132 F.3d 1112, problems were resolved. 1120-21 (5th Cir. 1998) (explaining record of impairment established by history of Johnson thus acted under the presumption classification of impairment). that Jordan still suffered from the same impairment substantially affecting major life Further, Jordan's history of asthma activities as before. The court did not clearly substantially affected a major life activity. He err in refusing to credit Johnson's testimony had severe trouble breathing, which itself is a that the board did not reinstate Jordan because major life activity. See Bridges v. City of they thought he first needed to go to the Bossier, 92 F.3d 329, 332 (5th Cir. 1996), Retirement Board; Johnson did not testify to cert. denied, 519 U.S. 1093 (1997) (citing that effect until pressed on cross-examination. 29 C.F.R. § 1630.2(i)). For a time, he also could not perform the most basic of daily manual, ambulatory tasks, such as walking to his mailbox.3 The court did not clearly err in 4 finding a history of severe asthma that The City argues that Jordan was healthy when restricted Jordan's activity, and it correctly he returned to work and thus did not suffer from an impairment. But the definition here relies on a record of such an impairment, and Jordan has a record of severe asthma. Nor is it significant that 2 See 29 C.F.R. § 1630.2(h); see also Deas v. little evidence suggests he was disabled in the River West, L.P., 152 F.3d 471, 476 n.8 (5th Cir. major life activity of working. That is but one area 1998) (citing 29 C.F.R. § 1630.2(h)). that a disability can affect; here, his severe asthma affected his breathing and such simple daily tasks 3 as retrieving his mail. See Sherrod, 132 F.3d at 1120 (“To determine whether an individual is substantially limited in a 5 major life activity other than working, the court See Zenor v. El Paso Healthcare Sys., Ltd., looks to whether that person can perform the 176 F.3d 847, 859 (5th Cir. 1999); Bridges, normal activities of daily living.”). 92 F.3d at 331; see also 29 C.F.R. § 1630.2(l).

C. The City argues that Jordan suffered no adverse employment action at the city's hands. For the most part, this argument simply reiterates the city's first contention, which we already have rejected, that the city cannot be held liable for the board's wrongful actions. The city also appears to aver that it took no adverse action other than asserting a legal position that did not prevail; this, it contends, cannot constitute adverse employment action.

Jordan complains, however, that the city attempted to require him, as a disabled person, to apply to the Retirement Board for reinstatement SSsomet hing non-disabled persons were not required to do. As the district court concluded, absent a business necessity, “the ADA does not allow the City to create one set of rules for applicants with a disability history and a separate set of rules for those who have no such history.”

The city has not offered a business reason for doing this. Instead, it appears that the city simply placed additional hurdles in Jordan's way, making it more difficult for him to be reinstated simply because he has a history of disability. By delaying reinstatement through these dilatory tactics, the city took adverse employment action against Jordan.

AFFIRMED.