Reginald Bingham v. City of Las Vegas

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 19 2013
MOLLY C. DWYER, CLERK
REGINALD BINGHAM, No. 11-16364 U.S. COURT OF APPEALS
Plaintiff - Appellant, D.C. No. 2:08-cv-01861-JCM-RJJ
v.
MEMORANDUM*
CITY OF LAS VEGAS,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted April 17, 2013**
San Francisco, California
Before: KOZINSKI, Chief Judge, and GRABER and CHRISTEN, Circuit Judges.
After trial, a jury found by special verdict that Plaintiff Reginald Bingham
did not suffer from a "disability" within the meaning of the Americans with
Disabilities Act of 1990 ("ADA"). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
1. Because Plaintiff "did not file a pre-verdict motion for judgment as a
matter of law pursuant to Federal Rule of Civil Procedure 50, . . . [he] has not
preserved a challenge to the sufficiency of the evidence to support the verdict."
F.B.T. Prods., LLC v. Aftermath Records, 621 F.3d 958, 962 (9th Cir. 2010)
(internal quotation marks omitted). For the reasons discussed below, we also hold
that the district court did not commit plain error in denying Bingham’s post-trial
Rule 50 motion. See Image Technical Servs., Inc. v. Eastman Kodak Co., 125 F.3d
1195, 1212 (9th Cir. 1997).
2. The district court did not abuse its discretion when it denied Plaintiff’s
motion for a new trial because there was substantial evidence to support the jury’s
verdict. See DSPT Int’l, Inc. v. Nahum, 624 F.3d 1213, 1218 (9th Cir. 2010).
Plaintiff alleged that he was substantially limited in the major life activities
of working and performing manual tasks. See 42 U.S.C. § 12102(1). To be
substantially limited in the major life activity of working, Plaintiff’s impairment
must preclude him from employment in a broad range of jobs. Josephs v. Pac.
Bell, 443 F.3d 1050, 1063 (9th Cir. 2006). To be substantially limited in the major
life activity of performing manual tasks, his impairment must prevent or
substantially restrict him from doing activities that are of central importance to
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most people’s daily lives. Thornton v. McClatchy Newspapers, Inc., 292 F.3d
1045, 1046 (9th Cir. 2002).
Plaintiff’s injury required only a few restrictions in his job: "no lifting over
35 pounds, no bending or stooping, no climbing ladders or steep terrain [with] over
[a] 30-degree incline, occasional climbing [of] stairs, and no walking on unstable
surfaces." And, although Plaintiff testified that his injured knee prevented him
from walking on inclines or rocks, he also testified that he could walk on concrete
and grass. Thus, the evidence supported the jury’s conclusion that Plaintiff did not
suffer from a "disability" within the meaning of the ADA because he was not
precluded from employment in a broad range of jobs and was not substantially
restricted from activities that are of central importance to most people’s daily lives.
Finally, we are unaware of any authority that supports Plaintiff’s argument that the
City’s earlier accommodation of his injury required the jury to find that he actually
had a "disability" within the meaning of the ADA.
AFFIRMED.
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