United States Court of Appeals,
Eleventh Circuit.
No. 95-3179.
Bernard F. McNELY, Plaintiff-Appellant,
v.
OCALA STAR-BANNER CORPORATION, a Florida corporation; The New
York Times Company, a foreign corporation, Defendants-Appellees.
Nov. 20, 1996.
Appeal from the United States District Court for the Northern
District of Florida. (No. CV94-10057-MMP), Maurice Mitchell Paul,
Chief Judge.
Before BIRCH and CARNES, Circuit Judges, and MICHAEL*, Senior
District Judge.
CARNES, Circuit Judge:
In this Americans with Disabilities Act ("ADA") case, Bernard
McNely appeals from a judgment entered pursuant to a jury verdict
in favor of the defendants, Ocala Star-Banner Corporation and the
New York Times Company. This appeal presents the question of
whether a plaintiff suing under the ADA can recover for
discrimination without showing that his disability was the sole
cause for the adverse employment action taken against him. We hold
that he can, and that the district court erred by submitting to the
jury a special interrogatory verdict form that allowed recovery for
McNely's ADA discrimination claim only if the jury found that he
was terminated "solely because of his alleged disability."
Similarly, we hold that it was error for the district court to
require the jury to find that McNely was terminated "solely because
*
Honorable James H. Michael, Senior U.S. District Judge for
the Western District of Virginia, sitting by designation.
he engaged in a statutorily protected expression" in order for him
to recover on his ADA retaliation claim. Finally, in view of the
pleadings and evidence in this case, we hold that the district
court erred by requiring the jury to find that McNely was
"terminated" in violation of the ADA in order for McNely to recover
on either his discrimination claim or his retaliation claim.
I. BACKGROUND FACTS
The Ocala Star-Banner Corporation ("Star-Banner"), a
subsidiary of the New York Times Company, publishes a daily
newspaper entitled the "Ocala Star-Banner." McNely began his
employment with Star-Banner in June 1980. Initially, McNely worked
as a "pressman." Nine years later, in August 1989, McNely was
promoted to Night Supervisor of the Camera Department.
In April 1992, McNely underwent brain surgery as a result of
an arteriovenous malformation of the brain. That surgery was
generally successful, except that McNely subsequently began
experiencing vision problems. It was later determined that the
surgery had caused McNely to develop a form of "left homonymous
hemianopsia." In simpler terms, the surgery damaged part of
McNely's brain, and as a result, he cannot clearly see the left
half of visual images.
McNely's vision problems made it difficult, if not impossible,
to perform "close color registration," a process involving the
overlaying and lining up of color negatives to produce a color
image, which is then printed onto newsprint as a color picture.
Close color registration is but one of the duties of a supervisor
in the camera department and, for a time, Star-Banner arranged for
someone to assist McNely with his performance of that task. That
assistance came to an end, however, when Star-Banner came to
believe that McNely's eye trouble could be corrected with new
eyeglasses. At some point thereafter, McNely filed a grievance
about his working conditions with the Equal Employment Opportunity
Commission ("EEOC").
For a time, McNely managed his duties without the assistance
that Star-Banner had withdrawn. In August 1993, however, McNely's
vision difficulties—or his perception of them—led to a 40-minute
shutdown of the Star-Banner printing presses. McNely insisted that
the shutdown was caused by his inability to perform close color
registration without assistance, but Star-Banner management
contended it was caused by McNely's willful refusal to perform his
job. Subsequently, McNely was relieved of his supervisory duties
and was reassigned to the building maintenance department. When
McNely objected to that, he was reassigned to do clerical work.
Later, Star-Banner reassigned McNely to the shipping and loading
department, which required him to perform tasks that he contends
were "difficult or impossible for a man of Plaintiff's medical and
physical condition to perform."
On January 18, 1994, McNely met with Charles Stout, the
highest-ranking executive at Star-Banner, to discuss McNely's
overall work situation, including his work assignments. That
meeting did not go well. McNely ended up losing his temper and
calling Stout an "arrogant son-of-a-bitch." Understandably, that
conduct ended the meeting, and McNely was immediately suspended
without pay. Star-Banner determined that McNely's suspension would
last for approximately six months, and that his employment would be
1
terminated on July 28, 1994. By letter, Stout informed McNely
that his suspension and termination had "resulted from your
repeated belligerent, abusive and insubordinate conduct towards me
and others at the Ocala Star-Banner."
During his suspension, McNely received a "right to sue" notice
from the EEOC. Thereafter McNely filed this lawsuit alleging
violations of the ADA. In Counts I and III, McNely alleged that
Star-Banner and the New York Times had wrongfully discriminated
against him because of his disability. In Counts II and IV, McNely
alleged that the defendants had retaliated against him for engaging
in protected expression, specifically for filing his EEOC
grievance.
Following five days of trial, McNely's claims were submitted
to the jury with a special interrogatory verdict form. After more
than seven hours of deliberation, the jury found: (1) that McNely
is an "individual with a disability" within the meaning of the ADA;
(2) that McNely had proven he was able to perform the essential
functions of the position of Camera Room Night Supervisor; (3)
that the defendants had failed to prove that they had reasonably
accommodated McNely; and (4) that allowing McNely to work as a
Camera Room Night Supervisor would not have imposed an undue
1
The defendants contended that they suspended McNely for six
months, instead of terminating him immediately, "[i]n an act of
extraordinary compassion ... so that he would remain eligible for
medical benefits," but McNely characterized the suspension as
"yet another attempt by the employer to force Mr. McNely to sever
his employment with the Ocala Star Banner voluntarily."
hardship on the defendants. 2 Despite those findings, the jury's
ultimate verdict was for the defendants, because the jury answered
"No" to questions five and six on the verdict form, as follows:
5. Do you find, by a preponderance of the evidence, that
Plaintiff has proved that he was terminated solely because of
his alleged disability?
Yes No X
6. Do you find, by a preponderance of the evidence, that
Plaintiff has proved that he was terminated solely because he
engaged in a statutorily protected expression?
Yes No X
After the district court denied his motion for a new trial,
McNely filed this appeal. McNely's primary contentions on appeal
are that the special interrogatory verdict form was fatally flawed
in two ways. First, McNely contends that inclusion of the term
"solely" in questions five and six erroneously prevented the jury
from returning a verdict for the plaintiff if the jury found that
impermissible discrimination or retaliation had a determinative
effect on the defendants' decisionmaking process, but was not the
sole reason for the employment decision. Second, McNely contends
that questions five and six erroneously narrowed the jury's inquiry
to whether McNely was "terminated" because of discrimination or
retaliation, even though the ADA authorizes recovery for adverse
employment actions that fall short of termination and even though
2
The defendants did not cross-appeal to challenge any of
these four findings, and we express no opinion about them.
McNely had put on evidence of such actions in this case.3
II. STANDARDS OF REVIEW
We apply the same deferential standard of review to a special
interrogatory verdict form that we apply to a district court's jury
instructions. Cf. Bank South Leasing, Inc. v. Williams, 778 F.2d
704, 706 (11th Cir.1985) (holding that district court erred by
failing to give jury instructions consistent with special
interrogatory verdict). So long as the jury instructions and
verdict form "accurately reflect the law, the trial judge is given
wide discretion as to the style and wording employed." U.S. v.
Starke,
62 F.3d 1374, 1380 (11th Cir.1995) (citing McElroy v.
Firestone Tire & Rubber Co.,
894 F.2d 1504, 1509 (11th Cir.1990)).
3
McNely makes two additional contentions in his quest for a
new trial, but neither of those need detain us long. First,
McNely contends that the verdict form and related jury
instructions were flawed because they failed to address a
provocation "defense" to McNely's alleged work place misconduct,
including his outburst during his meeting with Stout. However,
McNely does not cite, and we have not found, any authority that a
provocation defense to employee misconduct is recognized under
the ADA, or that provocation is in any way relevant to an ADA
claim. Therefore, we reject McNely's contention that the verdict
form and jury instructions should have addressed his provocation
defense.
McNely also contends that the district court permitted
defense counsel to engage in an impermissible "golden rule"
argument at trial. McNely charges that defense counsel
engaged in a prohibited golden rule argument by inviting the
jury to put itself in the defendants' position when
considering McNely's alleged work place misconduct and
evaluating whether he was terminated because of his
disability. However, an impermissible golden rule argument
is an argument "in which the jury is exhorted to place
itself in a party's shoes with respect to damages." Burrage
v. Harrell,
537 F.2d 837, 839 (5th Cir.1976) (emphasis
added). As in Burrage, "[i]n this case the argument
complained of was not in any way directed to the question of
damages; rather it related only to the reasonableness of
appellee's actions."
Id. (citations omitted). Accordingly,
the argument was not impermissible.
On appeal, we examine whether the jury instructions and verdict
form, considered as a whole, were sufficient "so that the jurors
understood the issues and were not misled."
Id. (quoting Wilkinson
v. Carnival Cruise Lines, Inc.,
920 F.2d 1560, 1569 (11th
Cir.1991)). As for the subsidiary issue of whether the jury
instructions and verdict form "accurately reflect the law,"
Starke,
62 F.3d at 1380, we review that de novo, as with any other question
of law. E.g., Swint v. City of Wadley, Ala.,
51 F.3d 988, 994
(11th Cir.1995).
III. WHETHER McNELY WAIVED HIS OBJECTIONS TO THE VERDICT FORM
The defendants contend that McNely waived his objections to
the verdict form because he failed to state his objections to the
verdict form after it was read to the jury. We disagree. McNely's
counsel raised his objections to the verdict form specifically and
directly on two separate occasions. Before the case was submitted
to the jury, the court held a jury charge conference. At that
conference, McNely's counsel objected to the verdict form on the
same bases that he raises on appeal: (1) the inclusion of the term
"solely" in questions five and six, and (2) the limiting use of the
word "termination" in the same questions. McNely's counsel made
extensive arguments in support of his request that the verdict form
be modified accordingly. The district court stated that it was
"not inclined to change" the form, but would consider the matter
overnight. The charge conference was then continued to the next
day.
When the charge conference was reconvened the next day, the
following exchange occurred between the court and McNely's counsel:
THE COURT: When we parted yesterday, I told you I didn't
think I was going to change this verdict, and I'm not, except
for the agreed language change we made on—I forget where it
was. Other than that, it is as it was yesterday.
MR. O'NEILL: Your Honor, if I may just for the record, I
would like to perfect our objections to certain aspects of the
verdict form that we raised yesterday; and, in particular,
Your Honor, I think probably the major objection we have is
the insertion of the words "solely because of the alleged
disability" as that appears in Instruction 5 and Instruction
6 on the verdict form, Your Honor.
Thereafter, McNely's counsel provided the court with argument and
citations of authority in support of his objections, including his
objection to the limiting use of the word "termination" in
questions five and six. Once again, the district court denied
counsel's request to modify the verdict form.
After closing arguments, the district court delivered its
instructions to the jury, including instructions about completion
of the verdict form. The district court then gave counsel the
opportunity to raise any new objections, but specifically stated:
"[A]ll prior motions, all prior objections, both to the
instructions or any matters that have taken place in the trial, all
motions will be considered raised again at this time. All previous
rulings will continue to apply." In view of that assurance,
McNely's counsel did not raise and reargue the same objections that
he had already raised and argued twice, and that the district court
had twice overruled. In these circumstances, we hold that McNely's
counsel preserved his objections to the verdict form, and we
proceed now to the merits of those objections. See Landsman
Packing Co. v. Continental Can Co.,
864 F.2d 721, 726 (11th
Cir.1989).
IV. WHETHER USE OF THE TERM "SOLELY" IN THE VERDICT FORM
CORRECTLY STATED THE LIABILITY STANDARD UNDER THE AMERICANS WITH
DISABILITIES ACT
The stated purpose of the ADA is "to provide a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities." 42 U.S.C.A.
§ 12101(b)(1) (West 1995). Title I of the ADA, which applies to
the private sector, provides for the elimination of
disability-based discrimination as follows:
No covered entity shall discriminate against a qualified
individual with a disability because of the disability of such
individual in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment.
Id. § 12112(a) (emphasis added). Title II of the ADA, which
applies to public sector employment, contains a parallel provision.
It provides:
Subject to the provisions of this subchapter, no
qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any
such entity.
Id. § 12132 (emphasis added).
The ADA also seeks to eliminate retaliation by employers
against employees who seek to enforce their statutory rights.
Specifically, Title IV of the ADA provides as follows:
No person shall discriminate against any individual
because such individual has opposed any act or practice made
unlawful by this chapter or because such individual made a
charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this chapter.
Id. § 12203(a) (emphasis added).
The defendants contend that the foregoing provisions impose
liability only if the employer takes an adverse employment action
solely because of a reason prohibited by the statute, and for that
reason the verdict form provided the jurors with an accurate
statement of the law. Conversely, McNely contends that those
provisions impose liability if a prohibited reason was but one
factor in the employer's decision, so long as the inclusion of that
prohibited factor made the difference in the decision. Stated
differently, McNely contends that the ADA requires only "but-for"
causation before liability can be imposed. In McNely's view, the
verdict form misstated the liability standard applicable to this
case. We agree.
A. The Statutory Language
As with any other statute, the appropriate starting point for
our analysis is the plain language of the statute itself. "We must
give effect to this plain language unless there is good reason to
believe Congress intended the language to have some more
restrictive meaning." Shaw v. Delta Air Lines,
463 U.S. 85, 97,
103 S. Ct. 2890, 2900,
77 L. Ed. 2d 490 (1983) (citations omitted).
As an initial matter, we note that the foregoing liability
provisions do not contain the word "solely," or any other similar
restrictive term. Therefore, unless we can discern a very good
reason to read the restrictive term "solely" into two statutory
provisions where it is not found, this is a simple case.
The defendants argue that a good reason for judicially writing
"solely" into the statute may be found in the ADA itself, when read
in conjunction with the Rehabilitation Act. Specifically, the
defendants point to the following language in the ADA:
Except as otherwise provided in this chapter, nothing in
this chapter shall be construed to apply a lesser standard
than the standards applied under title V of the Rehabilitation
Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued
by Federal agencies pursuant to such title.
42 U.S.C.A. § 12201(a) (West 1995). The defendants then point out
that the liability provision of the Rehabilitation Act contains the
word "solely," as follows:
No otherwise qualified handicapped individual in the
United States, as defined in section 706(7) of this title,
shall, solely by reason of his handicap, be excluded from the
participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving
Federal financial assistance or under any program or activity
conducted by any Executive agency or by the United States
Postal Service.
29 U.S.C.A. § 794 (West 1985) (emphasis added). Thus, argue the
defendants, the ADA can provide no greater relief to victims of
discrimination than the Rehabilitation Act, which sets up a
sole-cause liability scheme, see, e.g., Severino v. North Fort
Myers Fire Control Dist.,
935 F.2d 1179, 1182-83 (11th Cir.1991)
(affirming judgment in favor of employer on Rehabilitation Act
claim because employee could not demonstrate that he was
discriminated against solely on the basis of his handicap).
Assuming that "lesser standard" in section 12201(a) means a
more plaintiff-friendly standard, the defendants' argument has some
superficial appeal. However, it loses its appeal upon closer
inspection, because the same ADA provision the defendants rely upon
to import the sole-cause liability standard of the Rehabilitation
Act contains the limiting language "[e]xcept as otherwise provided
in this chapter," 42 U.S.C.A. § 12201(a) (West 1995). Because
Congress has used language in the ADA that is broader than the
language included in the comparable provision of the Rehabilitation
Act, we are not persuaded that section 12201(a) nonetheless directs
us to import into the ADA the more restrictive Rehabilitation Act
language. Instead, we are convinced that section 12201(a), by its
own terms, directs us not to do so.
Moreover, we believe that importing the restrictive term
"solely" from the Rehabilitation Act into the ADA cannot be
reconciled with the stated purpose of the ADA—"the elimination of
discrimination against individuals with disabilities," 42 U.S.C.A.
§ 12101(b)(1) (West 1995). That is true, because a standard that
imposes liability only when an employee's disability is the sole
basis for the decision necessarily tolerates discrimination against
individuals with disabilities so long as the employer's decision
was based—if ever so slightly—on at least one other factor. A
liability standard that tolerates decisions that would not have
been made in the absence of discrimination, but were nonetheless
influenced by at least one other factor, does little to "eliminate"
discrimination; instead, it indulges it. The plain language of
the Rehabilitation Act appears to mandate such indulgence, but the
plain language of the ADA does not.
Because we believe that importing the term "solely" into the
ADA is not warranted under the statute's plain language, is not
authorized by section 12201(a), and is not consistent with the
explicitly stated purpose of the statute, our analysis could stop
at this point. Nevertheless, for the sake of completeness, we add
that even if section 12201(a) were viewed to create an ambiguity,
for the following reasons, the ADA's legislative history would
support the same result we reach under our plain language analysis.
B. Legislative History
The ADA's legislative history does not directly inform us why
Congress chose to leave the word "solely" out of the liability
provision of Title I (the private sector title applicable to this
case), nor why Congress left that term out of the anti-retaliation
provision of Title IV. However, the legislative history does
clearly explain why Congress chose to leave the word "solely" out
of Title II (the public sector title). Because the relevant causal
language in the liability provisions of all three titles is
substantially identical, compare 42 U.S.C. § 12112(a) ("because of
the disability") with id. § 12132 ("by reason of such disability")
and id. § 12203 ("because such individual has made a charge"),
Congress' rationale for leaving "solely" out of the Title II
liability provision sheds some light on its rationale for leaving
the same word out of the parallel Title I and Title IV provisions.
The House Committee Report explained the decision to leave "solely"
out of Title II, as follows:
The Committee recognizes that the phrasing of section 202
in this legislation differs from section 504 [of the
Rehabilitation Act] by virtue of the fact that the phrase
"solely by reason of his or her handicap" has been deleted.
The deletion of this phrase is supported by the experience of
the executive agencies charged with implementing section 504
[of the Rehabilitation Act]. The regulations issued by most
executive agencies use the exact language set out in section
202 in lieu of the language included in the section 504
statute.
A literal reliance on the phrase "solely by reason of his
or her handicap" leads to absurd results. For example, assume
that an employee is black and has a disability and that he
needs a reasonable accommodation that, if provided, will
enable him to perform the job for which he is applying. He is
a qualified applicant. Nevertheless, the employer rejects the
applicant because he is black and because he has a disability.
In this case, the employer did not refuse to hire the
individual solely on the basis of his disability—the employer
refused to hire him because of his disability and because he
was black. Although the applicant might have a claim of race
discrimination under title VII of the Civil Rights Act, it
could be argued that he would not have a claim under section
504 [of the Rehabilitation Act] because the failure to hire
was not based solely on his disability and as a result he
would not be entitled to a reasonable accommodation.
The Committee, by adopting the language used in
regulations issued by the executive agencies, rejects the
result described above.
H.R.Rep. No. 485(II), 101st Cong., 2nd Sess., at 85 (1990). The
Senate Committee Report contains a virtually identical passage.
See S.Rep. No. 116, 101st Cong., 1st Sess., at 44-45 (1989).
The explanation the congressional committees gave shows that
Congress knew exactly what it was doing when, by omitting the word
"solely," it provided a different liability standard under Title II
of the ADA than it provided under the Rehabilitation Act. Congress
deliberately used different language in the ADA, because it
believed inclusion of the word "solely" in Title II could lead to
absurd results. We have no reason to believe that Congress
intended to condemn absurd results in Title II of the ADA, but
using substantially identical language in Titles I and IV of the
same statute wanted to invite those same absurd results. As we
explain below, turning to other evidence of congressional intent,
our conclusion is bolstered by the fact that when Congress enacted
the ADA, the Supreme Court already had rejected the notion that
"because of" in Title VII cases could be construed to mean "solely
because of."
C. The Supreme Court's Interpretation of "Because of" in Title
VII Cases
Title VII makes it unlawful for an employer "to fail or refuse
to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin." 42 U.S.C.A. § 2000e-2(a)(1) (West 1994)
(emphasis added). The relevant causal language of Title VII's
liability provision is substantially identical to the causal
language at issue in this case. Compare id. (Title VII) ("because
of") with 42 U.S.C.A. § 12101(b)(1) (ADA Title I) ("because of")
and 42 U.S.C.A. § 12203 (ADA Title IV anti-retaliation provision)
("because").
When Congress enacted the ADA in 1990, the Supreme Court had
already authoritatively determined that, for Title VII cases,
"because of" does not mean "solely because of." In Price
Waterhouse v. Hopkins, 490 U.S. 228,
109 S. Ct. 1775,
104 L. Ed. 2d
268 (1989), the Supreme Court focused on the nature of the causal
connection required by the phrase "because of" in Title VII cases.
No opinion of the Court garnered a majority of the votes in Price
Waterhouse, in part because the justices held differing views about
whether the "because of" requirement meant that the impermissible
consideration was a "but-for" cause, or meant only that it had been
taken into account in the decisionmaking process. Compare
id. at
244, 109 S.Ct. at 1787 (plurality opinion) with
id. at 262-63, 109
S.Ct. at 1797 (O'Connor, J., concurring in the judgment). However,
all of the justices agreed that "because of," as used in Title VII,
does not mean "solely because of." See
id. at 241, 109 S.Ct. at
1785 (plurality opinion);
id. at 258-59, 109 S.Ct. at 1795 (White,
J., concurring in the judgment);
id. at 262-63, 109 S.Ct. at 1797
(O'Connor, J., concurring in the judgment);
id. at 284, 109 S.Ct.
at 1808 (Kennedy, J. dissenting); see also Miller v. CIGNA Corp.,
47 F.3d 586, 592-94 (3rd Cir.1995) (analyzing and summarizing the
"because of" analysis contained in the various Price Waterhouse
opinions).
A familiar canon of statutory construction is that
"evaluation of congressional action must take into account its
contemporary legal context." Morse v. Republican Party of
Virginia, --- U.S. ----,
116 S. Ct. 1186, 1190,
134 L. Ed. 2d 347
(1996) (plurality opinion) (citing Cannon v. University of Chicago,
441 U.S. 677, 698-99,
99 S. Ct. 1946, 1958-59,
60 L. Ed. 2d 560
(1979)); see also Motorcity of Jacksonville, Ltd. v. Southeast
Bank N.A.,
83 F.3d 1317, 1331 (11th Cir.1996) (en banc)
(recognizing principle that "Congress legislates against the
background of the existing common law"). That presumption is
particularly compelling where, as here, Congress adopts operative
language to which the Supreme Court has recently given an
authoritative interpretation in a similar context. When Congress
enacted the ADA, it did so against the backdrop of recent Supreme
Court employment discrimination case law that interpreted the
phrase "because of" not to mean "solely because of." We think
Congress knew what it was doing, and we hold that the ADA imposes
liability whenever the prohibited motivation makes the difference
in the employer's decision, i.e., when it is a "but-for" cause.
D. ADA Cases from Other Circuits
Despite the plain language of the ADA, its legislative
history, and the Supreme Court's interpretation of identical causal
language in Title VII, the defendants argue that we should
nonetheless interpret "because of" to mean "solely because of."
They contend that precedents from the Fourth, Fifth, Seventh, and
Tenth Circuits support that interpretation, and point us to Doe v.
University of Maryland Medical Sys.,
50 F.3d 1261 (4th Cir.1995);
Myers v. Hose,
50 F.3d 278 (4th Cir.1995); Rizzo v. Children's
World Learning Ctrs.,
84 F.3d 758 (5th Cir.1996); Despears v.
Milwaukee County,
63 F.3d 635 (7th Cir.1995); and White v. York
Int'l Corp.,
45 F.3d 357 (10th Cir.1995). Even if all five of
those cases from four other circuits had actually held that
"because of" means "solely because of" under the ADA, we would
still part company with those circuits, because we are firmly
convinced that such an interpretation is contrary to the language
of the statute and the intent of Congress. However, in this case,
our task is made much easier by the fact that only one of the five
decisions cited by the defendants actually held that "because of"
in the ADA context means "solely because of." The others did not.
In University of Maryland Medical
Sys., 50 F.3d at 1266, the
Fourth Circuit affirmed summary judgment for an employer in an ADA
case because the employee was not a "qualified employee with a
disability" within the meaning of the ADA. Although the court
stated that an ADA plaintiff is required to prove that he was
discriminated against "solely on the basis of the disability" in
order to prove his case,
id. at 1264-65, that observation is
dictum. Because the court determined that the plaintiff was not a
qualified employee with a disability to begin with, it was not
required to, and did not purport to, examine the causal connection
between the plaintiff's termination and his disability.
Similarly, in
Myers, 50 F.3d at 282, the Fourth Circuit
affirmed summary judgment for an employer in an ADA case because
the employee was not a qualified individual with a disability.
Although the court observed in dicta that "the substantive
standards for determining liability are the same" under the ADA and
the Rehabilitation Act,
id. at 281, the court was not required to,
and did not purport to, authoritatively resolve the issue that
faces us today.
In
Rizzo, 84 F.3d at 760, the Fifth Circuit reversed summary
judgment in favor of an employer, because it found that a genuine
question of material fact existed as to whether the plaintiff was
a qualified individual with a disability. Because the defendant in
that case did not deny that the plaintiff was terminated because of
her disability, there were no causal connection questions in the
case. See
id. at 762. Although the court did observe that the ADA
required the plaintiff to prove that her employer took an adverse
employment action "solely because of her disability," that
observation has no bearing on the court's decision; it is dictum.
In
White, 45 F.3d at 363, the Tenth Circuit affirmed summary
judgment for an employer because the employee was not a qualified
individual with a disability. As with the foregoing cases, the
court had no occasion to consider the causal connection question at
issue in this case, and it explicitly declined to address "whether
York terminated [the plaintiff] solely because of his disability."
Id. A court does not make a holding with language directed toward
an issue it expressly declines to address.
To summarize, the foregoing cases do not trouble us. Although
they do contain dicta that supports the defendants' position, we
are not required to follow dicta contained in our own precedents,
much less dicta from our sister circuits. Dicta can sometimes be
useful when it contains a persuasive analysis of a particular
issue, but the opinions in the foregoing cases are not even useful
for that purpose, because they do not include any meaningful
analysis of whether "because of" in the ADA context means "solely
because of." The passing references that those cases make to the
applicable causal standard shed little or no light on the question,
and give us no pause.
However, Despears v. Milwaukee County,
63 F.3d 635 (7th
Cir.1995), is more problematic. In that ADA case, the Seventh
Circuit affirmed summary judgment for an employer.
Id. at 637. In
doing so, it held—not merely stated in dicta, but held—that
judgment for the employer was proper, because the alleged
disability was not the sole cause of the demotion in question. No
extended discussion or helpful rationale is given in Despears for
the holding that the ADA requires a showing of sole causation.
Because we believe that holding is contrary to the language of the
statute, the will of Congress, and the Supreme Court's
interpretation of substantially identical causal language in the
Title VII context, we decline to follow it.
We hold that the "because of" component of the ADA liability
standard imposes no more restrictive standard than the ordinary,
everyday meaning of the words would be understood to imply. In
everyday usage, "because of" conveys the idea of a factor that made
a difference in the outcome. The ADA imposes a "but-for" liability
standard. The contrary verdict form language is error which
requires reversal. That is not the only error in the verdict form.
V. WHETHER THE VERDICT FORM ERRONEOUSLY LIMITED RECOVERY TO
"TERMINATION"
According to questions five and six of the verdict form, in
order for the jury to return a verdict for McNely on either his
discrimination claim or his retaliation claim, the jury was
required to find that McNely was "terminated" for a prohibited
reason. However, the ADA protects against more than termination.
It prohibits discrimination "in regard to job application
procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions,
and privileges of employment." 42 U.S.C.A. § 12112(a) (West 1995);
see also
id. § 12203 (anti-retaliation provision) (prohibiting
employers to "discriminate"). In other words, the ADA prohibits a
broad variety of adverse employment actions, whenever those actions
are taken for a prohibited reason.
McNely's complaint alleged a variety of adverse employment
actions short of his ultimate termination. Specifically,
paragraphs twenty-two and twenty-three of his complaint, which were
incorporated into every count, made the following allegations:
22. After withdrawing Plaintiff's reasonable
accommodation in the Camera Department, Defendant reassigned
Plaintiff to janitor's duty requiring Plaintiff to clean
toilets and bathrooms, among other janitorial duties.
23. Defendant subsequently reassigned Plaintiff to the
shipping and loading department, and required Plaintiff to
perform loading and other physically strenuous tasks difficult
or impossible for a man of Plaintiff's condition to perform.
It is undisputed that, after the 40-minute press delay in
August 1993, Star-Banner reassigned McNely to the building
maintenance department. It is also undisputed that after McNely
complained about being assigned to the maintenance department,
Star-Banner reassigned him to do clerical work, and then reassigned
him once again to the distribution department. At trial, evidence
about those transfers was admitted, and McNely argued to the jury
that those actions were taken for a discriminatory reason. In
turn, Star-Banner argued that those transfers were an attempted
accommodation of McNely's medical condition. The jury instructions
informed the jury that McNely could recover for "adverse employment
action," defined as "action that has a negative effect on terms,
privileges, or other conditions of employment, such as hiring, job
assignment, termination, granting leave, promotion and
compensation." Nevertheless, over McNely's objection, the district
court declined to modify the verdict form to permit recovery for
adverse employment action short of termination. As a result, the
verdict form was inconsistent with the ADA, with the complaint,
with the evidence presented at trial, and with the jury
instructions.
VI. CONCLUSION
The verdict form submitted to the jury in this case did not
accurately reflect the law or the evidence presented at trial.
First, the verdict form required a finding of sole causation in
order for McNely to recover, while the ADA requires only a finding
of "but-for" causation. Second, the verdict form barred recovery
for adverse employment actions short of termination, when the ADA
permits recovery for those less drastic forms of discrimination and
when evidence of such lesser discrimination was presented at trial.
Under these circumstances, we cannot conclude that the jurors
understood the issues and were not misled by the verdict form. See
U.S. v. Starke,
62 F.3d 1374, 1380 (11th Cir.1995) (quoting
Wilkinson v. Carnival Cruise Lines, Inc.,
920 F.2d 1560, 1569 (11th
Cir.1991)).
Therefore, we REVERSE the judgment of the district court and
REMAND for a new trial.
