Biagio Stragapede v. City of Evanston

Filing

Filed opinion of the court by Judge Sykes. AFFIRMED. Diane P. Wood, Chief Judge; Frank H. Easterbrook, Circuit Judge and Diane S. Sykes, Circuit Judge. [6857794-1] [6857794] [16-1344]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1344
BIAGIO STRAGAPEDE,
Plaintiff-Appellee,
v.
CITY OF EVANSTON, ILLINOIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 12 C 08879 — Edmond E. Chang, Judge.

____________________
ARGUED SEPTEMBER 12, 2016 — DECIDED JULY 31, 2017
____________________
Before WOOD, Chief Judge, and EASTERBROOK and SYKES,
Circuit Judges.
SYKES, Circuit Judge. Biagio Stragapede worked in water
services for the City of Evanston for 14 years. In 2009 he
suffered a traumatic brain injury at home. The City placed
him on a temporary leave of absence during his recovery
and rehabilitation. When he was medically cleared to return
to work, Stragapede resumed full-time employment with the
City. After just a few weeks, however, the City again placed

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him on administrative leave and later terminated his employment. Stragapede sued for violation of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.,
claiming that the City discriminated against him based on
his disability.
After a weeklong trial, the jury found the City liable and
awarded $225,000 in damages. The judge then held an
evidentiary hearing on the issue of equitable remedies and
concluded that Stragapede was entitled to backpay plus
interest from the date he was fired until the time of judgment. The City moved for judgment as a matter of law, a
new trial, and remittitur. All three motions were denied, and
final judgment was entered for Stragapede.
The City attacks the judgment in several respects. First,
the City challenges the denial of its motion for judgment as a
matter of law, arguing that Stragapede was not a qualified
person under the ADA because he was unable to perform the
essential functions of his job. Alternatively, the City argues
that even if Stragapede was qualified, he posed a direct
threat to himself and to others, which is a statutory defense
to liability. Finally, the City argues that the judge incorrectly
calculated the backpay award. We reject these arguments
and affirm.
I. Background
From 1996 to 2010, Stragapede was employed as a waterservices worker for the City of Evanston. The job entailed a
variety of tasks, including finding leaks, testing water pressure, and replacing water meters.
In September 2009 Stragapede suffered a traumatic brain
injury at home. The City placed him on a leave of absence

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while he underwent rehabilitation. Before allowing
Stragapede to return to work, the City required an evaluation by its occupational healthcare provider. The healthcare
provider referred Stragapede to Dr. Zoran Grujic for a
neurological assessment. Dr. Grujic examined Stragapede
and advised the City that he was capable of returning to
work. The doctor suggested, however, that the City prepare
a work trial to test Stragapede’s ability to perform the daily
functions of his job in the field. From June 2 through June 4,
the City gave Stragapede a three-day work trial, which he
passed. On June 7 the City reinstated Stragapede to full-time
employment.
In anticipation of Stragapede’s return to work, the City
made two accommodations for him: He was permitted to be
off-task to consult with his supervisors if he had any questions, and he could use a map, pen and paper, and a tape
recorder as needed to perform his duties. From June 7 until
June 22, Stragapede appeared to do his job without much
trouble.
Beginning on Wednesday, June 23, however, the City noticed some worrisome developments that continued over the
following week. On that day Stragapede requested assistance to change out a water meter. The next day a city employee observed Stragapede driving through an intersection
while looking down at his lap; the light was green, no pedestrians were present, and his momentary inattention did not
result in an accident. On Friday Stragapede spent two hours
at a job site installing a meter but was unable to complete the
task. The following Monday Stragapede mistakenly went to
the wrong location—Green Bay Road rather than Gross
Point Road—for a “JULIE locate,” which involves locating

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and marking obscured water mains and sewer lines. On
Wednesday Stragapede had another directional mishap,
arriving at Colfax Place instead of Colfax Street for a water
turn-on. Finally, on Thursday, July 1, Stragapede tripped on
a set of steps and hurt his toes.
Based on these incidents, on July 2 the City again placed
Stragapede on administrative leave and relayed its concerns
to Dr. Grujic. He responded with two letters—one in July
and one in September. In the July letter, Dr. Grujic concluded
that these incidents were related to Stragapede’s brain injury.
In the September letter, Dr. Grujic wrote more pointedly that
the incidents identified by the City rendered Stragapede
unable to perform the essential functions of his job. On
September 24 the City terminated Stragapede’s employment.
Stragapede sued the City alleging that he was fired because of his disability in violation of the ADA. A jury returned a verdict for Stragapede and awarded $225,000 in
damages. The judge then turned to the issue of equitable
remedies, concluding that Stragapede was entitled to backpay plus interest from the date he was fired until the time of
judgment. The judge did not award front pay. The jury’s
damages award and the judge’s backpay calculation brought
the total award to $354,070.72.
The City moved for a new trial under Rule 59, judgment
as a matter of law under Rule 50(b), and remittitur and
amendment of the judgment under Rule 59(e). The judge
denied all three motions and entered judgment for
Stragapede.

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II. Analysis

The City challenges the denial of its motions for judgment as a matter of law and for remittitur and amendment
of the judgment.
A. Judgment as a Matter of Law
We review de novo the district court’s denial of the City’s
motion for judgment as a matter of law. EEOC v. Mgmt. Hosp.
of Racine, Inc., 666 F.3d 422, 431 (7th Cir. 2012). The scope of
review is limited to whether the evidence presented at trial
is sufficient to support the verdict when viewed in the light
most favorable to the nonmoving party. Id. We will reverse
only if “on the basis of the admissible evidence, no rational
jury could have found for the prevailing party.” Id. (quotation marks omitted).
1. Essential Functions
The ADA prohibits discrimination against a qualified individual with a disability on the basis of that disability.
Basith v. Cook County, 241 F.3d 919, 926–27 (7th Cir. 2001). A
qualified individual is one “who, with or without reasonable
accommodation, could perform the essential functions of the
employment position.” Id. at 927.
The parties do not dispute the essential functions of a
water-services worker for the City of Evanston. Nor does the
City point to any particular function that Stragapede was
incapable of performing. Instead, the City argues that
Stragapede was unable to do the job in general and isolates
three categories of evidence to support this claim:
Dr. Grujic’s testimony, the testimony of Stragapede’s
coworkers, and Stragapede’s attendance record.

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Dr. Grujic examined Stragapede only once, in the spring
of 2010 in connection with his return to work. Based on this
assessment, the doctor advised the City by letter dated
April 6 that Stragapede should be able to resume work. After
Stragapede returned to work, however, the City sought a
reevaluation and sent information to Dr. Grujic related to
Stragapede’s performance on the job. Based on the information he received from the City, Dr. Grujic wrote a second
letter in July 2010 advising that the work difficulties identified by the City were related to Stragapede’s brain injury.
Finally, in a third letter in September 2010, Dr. Grujic said
that Stragapede was unable to perform the essential functions of his job. But he hedged his opinion, noting that it was
based entirely on information provided by the City.
It’s the jury’s job to weigh conflicting evidence, make
credibility determinations, and evaluate the trial record
based on its collective common sense. See United States v.
Bloch, 718 F.3d 638, 643 (7th Cir. 2013) (“[T]he law relies on
the collective common sense and human experience of the
jury.”). The jury may have given Dr. Grujic’s April opinion
more weight than his later opinions; the latter two were
based entirely on information supplied by the City, and the
jurors may have questioned whether the information was
accurate or complete. See Cooper v. Carl A. Nelson & Co.,
211 F.3d 1008, 1021 (7th Cir. 2000) (pointing out that the jury
might disbelieve a doctor’s testimony when an opposing
party “elicited testimony that [the doctor] had really done no
investigation”). It was not irrational for the jury to discount
Dr. Grujic’s September opinion that Stragapede was unable
to perform the essential functions of his job.

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The City next points to testimony by Vicki Biner, one of
Stragapede’s supervisors. Biner testified that Stragapede
could not complete his meter-installation and other waterservices work. But Biner had never observed Stragapede in
the field. In contrast, Stragapede’s direct supervisor, Tim
Bartus, observed Stragapede in the field and testified that he
was capable of installing meters perfectly. In addition, Bartus
performed three to four spot checks on Stragapede’s JULIE
work and found it accurate each time. The jury was charged
with sorting through these conflicting reports and deciding
how much weight, if any, each deserved.
Finally, the City contends that Stragapede was so frequently absent from his job that he was unable to fulfill even
its most basic function—regular attendance. To support this
position, however, the City counts as absences from work
Stragapede’s returns to the office to ask questions. It’s true
that the ADA does not protect persons who have erratic or
unexplained absences from work, EEOC v. Yellow Freight
Sys., Inc., 253 F.3d 943, 948 (7th Cir. 2001), but we have “not
establish[ed] a hard-and-fast rule that no absences from
work need be tolerated,” id. at 949 (quoting Waggoner v. Olin
Corp., 169 F.3d 481, 485 (7th Cir. 1999)). The evidence shows
that Stragapede had to return to the office three or four times
to seek assistance with his computer login and password.
The jury could reasonably conclude that these infrequent
and temporary office trips should not count as absences
from work.
2. Direct Threat
The ADA provides a defense if the employee’s disability
poses “a direct threat to the health or safety of other individuals in the workplace.” 42 U.S.C. § 12113(b). A “direct

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threat” is “a significant risk to the health or safety of others
that cannot be eliminated by a reasonable accommodation.”
Id. § 12111(3). Four factors determine whether the risk is
significant: “(1) the duration of the risk; (2) the nature and
severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of potential
harm.” Emerson v. N. States Power Co., 256 F.3d 506, 514 (7th
Cir. 2001).
The City’s primary argument is that it does not matter
whether Stragapede actually posed a direct threat to health
or safety; it’s enough that the City thought he was a direct
threat. The Supreme Court disagrees: “The ADA’s direct
threat provision stems from the recognition … of the importance of prohibiting discrimination against individuals
with disabilities while protecting others from significant
health and safety risks.” Bragdon v. Abbott, 524 U.S. 624, 649
(1998). Bragdon holds that an employer’s “belief that a significant risk existed, even if maintained in good faith, would
not relieve him from liability.” Id. Rather, a “direct threat”
defense is based solely on “medical or other objective evidence.” Id.
The medical and objective evidence here was mixed. To
support the defense, the City relied on testimony from
Stragapede’s supervisor, the incident in which Stragapede
took his eyes off the road while driving through an intersection, the incidents in which Stragapede mistakenly reported
to the wrong location, and Dr. Grujic’s opinion.
The jury was free to discount this evidence or to treat it
as insufficient to support an inference that Stragapede posed
an actual threat to his own safety or the safety of others.
Stragapede testified in general terms that he followed safety

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protocols. He also testified that the intersection incident
occurred only because he was reaching to grab a clipboard
that had bounced off the seat and fallen. He noted, moreover, that the light was green and no pedestrians were present. Reasonable jurors could accept this explanation and
reject the City’s argument that the incident supports an
inference that Stragapede was a safety threat. The jury also
might reasonably have concluded that the two directional
mishaps were not a safety issue at all. Lastly, as we’ve noted,
the jury was free to discount Dr. Grujic’s July and September
opinions, which relied entirely on the City’s characterization
of Stragapede’s performance.
We take the City at its word that “not just anyone” can
do Stragapede’s job. But the more focused inquiry is whether Stragapede could do it without significant risk to health or
safety. It was reasonable for the jury to conclude that he
could.
The City also argues that the judge wrongly excluded evidence that Stragapede was involved in an auto accident
before his head injury. The judge ruled that the earlier
accident was impermissible character evidence under
Rule 404(b) of the Federal Rules of Evidence. That may have
been a mistake; the judge failed to consider whether character was an element of a claim or defense. When that is the
case, evidence of that character trait may be admissible.
MCCORMICK ON EVIDENCE § 187 (Kenneth S. Broun ed., 7th
ed. 2016). The City offered the preinjury accident as evidence
that Stragapede’s driving posed a safety risk, an aspect of its
direct-threat defense.
Even if the judge wrongly excluded this evidence, the error is harmless if “the record indicates the trial result would

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have been the same.” Lewis v. City of Chicago Police Dep’t,
590 F.3d 427, 440 (7th Cir. 2009). The City’s direct-threat
defense was predominantly based on Dr. Grujic’s opinions;
the single episode of inattentive driving did not loom large.
The evidentiary error, if there was one, was harmless.
3. Undue Hardship
The City makes a last-ditch argument that an accommodation suggested by Dr. Grujic—that a coworker should
observe Stragapede’s work—would have been an undue
hardship to its water-services operation. The glaring problem with this argument is that undue-hardship analysis is
appropriate only when the court finds that an accommodation is necessary. See 42 U.S.C. § 12112(b)(5)(A) (stating that
to “discriminate against a qualified individual on the basis of
disability” includes “not making reasonable accommodations to the known physical or mental limitations of an
otherwise qualified individual … unless such covered entity
can demonstrate that the accommodation would impose an
undue hardship on the operation of the business of such
covered entity”). The jury’s determination that Stragapede
was capable of performing the essential functions of his job
did not depend on the presence of a ride-along companion.
The question of undue hardship is beside the point.
B. Remittitur of the Backpay Award
The City’s final argument is a challenge to the judge’s denial of its motion to amend the backpay award under
Rule 59(e). We review the denial of a Rule 59(e) motion for
abuse of discretion. Burritt v. Ditlefsen, 807 F.3d 239, 252 (7th
Cir. 2015). Amendment of the judgment is proper only when
“the movant presents newly discovered evidence that was

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not available at the time of trial or if the movant points to
evidence in the record that clearly establishes a manifest
error of law or fact.” In re Prince, 85 F.3d 314, 324 (7th Cir.
1996). A manifest error occurs “when the district court
commits a wholesale disregard, misapplication, or failure to
recognize controlling precedent.” Burritt, 807 F.3d at 253
(internal quotation marks omitted).
A plaintiff who wins a favorable verdict on an ADA claim
is presumptively entitled to backpay. David v. Caterpillar, Inc.,
324 F.3d 851, 865 (7th Cir. 2003). The plaintiff must submit
evidence to support his calculation of backpay, Hutchison v.
Amateur Elec. Supply, Inc., 42 F.3d 1037, 1044 (7th Cir. 1994),
and the burden then “shifts to the defendant to show that
the [employee] failed to mitigate damages or that damages
were in fact less than [he] asserts,” id. The City does not
contest the initial sum Stragapede claimed. Instead, the City
concentrates its argument on a claimed failure to mitigate
damages.
To prove a failure to mitigate in this context, the employer must show that “(1) the [employee] failed to exercise
reasonable diligence to mitigate his damages, and [that]
(2) there was a reasonable likelihood that the [employee]
might have found comparable work by exercising reasonable
diligence.” Fleming v. County of Kane, 898 F.2d 553, 560 (7th
Cir. 1990) (emphases omitted). The City argues that we
should abandon this two-part framework in favor of an
approach endorsed by the Second Circuit, which eliminates
the employer’s burden to prove the availability of other
comparable employment. See Greenway v. Buffalo Hilton Hotel,
143 F.3d 47, 54 (2d Cir. 1998). We decline to do so for two
reasons.

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First, our framework for evaluating mitigation questions
is longstanding and has been repeatedly reaffirmed. See
Brown v. Smith, 827 F.3d 609, 616 (7th Cir. 2016); EEOC v.
Ilona of Hungary, Inc., 108 F.3d 1569, 1581 (7th Cir. 1996);
Hutchison, 42 F.3d at 1044; EEOC v. Gurnee Inn Corp., 914 F.2d
815, 818 (7th Cir. 1990); United States v. City of Chicago,
853 F.2d 572, 578 (7th Cir. 1988); Wheeler v. Snyder Buick, Inc.,
794 F.2d 1228, 1234 (7th Cir. 1986). Second, even in a precedential vacuum, our two-part approach best comports with
the concept of mitigation in this context. An employee can
mitigate his damages only if it is within his power to reduce
the harm he suffered. The plaintiff’s backpay award should
not be reduced based on failure to mitigate if reasonably
diligent effort would not have been likely to produce comparable employment. The judge faithfully applied circuit
precedent in declining to reduce the backpay award for
failure to mitigate. There was no manifest error.
AFFIRMED.