WOLSKI v. CITY OF ERIE
Filing
67
MEMORANDUM OPINION AND ORDER denying 50 Motion for Judgment as a Matter of Law; granting 50 Motion for New Trial. Signed by Judge Sean J. McLaughlin on 09/28/2012. (kas)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MARY WOLSKI,
Plaintiff,
v.
CITY OF ERIE,
Defendant.
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Case No. 1:08-cv-289-SJM
MEMORANDUM OPINION
McLAUGHLIN, SEAN J., District J.,
After being terminated from her job as a firefighter with the City of Erie,
Plaintiff Mary Wolski commenced this civil action under Title I of the Americans with
Disabilities Act (―ADA‖), 42 U.S.C.A. § 12117(a).1 Following a five-day trial, a jury
found in favor of Wolski. Presently pending before the Court is the Defendant‘s motion
for judgment as a matter of law and/or for a new trial. 2 For the reasons set forth below,
the City‘s motion will be granted in part and denied in part.
I. FACTUAL BACKGROUND
Wolski was hired as the first female firefighter in the City of Erie Fire Department
in 1997. During her tenure she performed well and gained the respect of her peers.
1
Wolski also asserted a claim under related provisions of the Pennsylvania Human Relations Act
(―PHRA‖), Pa. Stat. Ann. tit. 43, § 951 et seq. Because the legal standards governing liability and
damages were essentially the same under both the ADA and the PHRA, the case was submitted to the
jury only as an ADA claim.
2
This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331.
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In April 2005, Wolski‘s mother was diagnosed with MRSA, resulting in months of
hospitalization, multiple surgeries, and ultimately a pronged and painful decline.
Wolski‘s mother passed away on Christmas Eve, 2005 at the age of 69.
Over the course of her mother‘s illness, Wolski took an extensive amount of
FMLA leave from her job in order to care for her mother. During this time, the City
made no efforts to terminate, demote, or discipline Wolski as a result of her absences
and, in fact, many of Wolski‘s co-workers expressed concern or support for her.
Following her mother‘s death, Wolski experienced feelings of personal guilt and
began suffering from panic attacks. In September of 2006, she took sick leave from her
job. Upon the recommendation of her primary care physician, Wolski began seeing a
psychiatrist to help her cope with her grief. She developed a severe depression and
began taking multiple prescription medications to address her mental health problems.
In conversations with the City's benefits coordinator, Colleen Faytek, Wolski
disclosed that she was seeing a psychiatrist, was on medications and was receiving
counseling. Wolski eventually agreed to return to work on a part time basis, with the
intent of performing two half-days of light duty per week beginning December 12, 2006.
When December 12, 2006 arrived, however, Wolski did not report to work and
the City was unable to contact her. Consequently, Fire Chief Anthony J. Pol sent his
deputy, Vance Duncan, to Wolski's residence in order to check on her. Deputy Chief
Duncan later generated a report of his encounter with Wolski:
[Wolski] asked me to come in and sit down. She explained that she
has been very depressed and has had some suicidal thoughts. She stated
she has been going to the doctor and seeing a psychiatrist. She also
stated she has begun a new medication yesterday and that the previous
medications ―did not work.‖ Some medications made her ―feel anxious.‖
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She said that ―the new medication may take several days until it makes
her feel better.‖ She also stated that she did not want to talk to anyone
today; that is the reason she did not answer the phone when Colleen
(Faytek) called earlier. She said that she has been depressed due [to] the
circumstances (her mother's death last Christmas eve) and she has not
been out of the house much.
I told her that we were concerned since she did not answer the
phone. We wanted to make sure that she was okay. I also told her that if
she needed anyone to talk to, feel free to call myself, Chief Pol, Colleen
(Faytek) or [Human Resources Manager] Connie Cook.
She stated that it would probably help if she got out of the house
and came back to work. She said that she has not been motivated to [do]
anything.
I once again told Mary to call Colleen the next day or two and at the
latest to call on Friday. I also restated that she should call either me, Chief
Pol or Connie Cook also at anytime to talk.
(See Pl.‘s Ex. 2.)
After leaving Wolski's house, Deputy Chief Duncan contacted Chief Pol and
related the foregoing events, adding that ―something needs to be done.‖ He was
transferred to Connie Cook and left her a voicemail message, then completed the
foregoing report.
On December 27, 2006, Wolski's immediate supervisor, Lt. Darren Hart,
telephoned to check on Wolski in light of the fact that it was the anniversary of her
mother's death. Wolski advised Lt. Hart that she was ―freaking out, but I have my family
with me, so I'll be okay.‖
The following day, overwhelmed by severe depression and the side-effects of her
medication, Wolski attempted to take her life in her father‘s vacant residence.3 She
3
Wolski‘s father was himself receiving in-patient care at the time of this incident, which is why his house
was uninhabited.
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disconnected the smoke alarm, ingested an overdose of pills, and set some clothing on
fire in the bathtub with the intent to commit suicide through carbon monoxide poisoning.
Wolski subsequently extinguished the fire out of concern that property damage or
danger to others might occur if she were to lose consciousness while the fire was still
burning. She subsequently passed out and was discovered by family members who
sought emergency medical treatment.
Meanwhile, emergency fire crews arrived on scene. Although the fire was
already extinguished, the firefighters sprayed down some areas with water to ensure
that any hot spots would not reignite.
Wolski was initially hospitalized in Pittsburgh, then transferred to Erie where her
medications for severe depression were changed prior to her release in January 2007.
She was ultimately diagnosed with severe depression – single episode.
In the wake of these events, the City of Erie police department commenced an
investigation concerning possible criminal charges relating to the setting of the fire.
Ultimately, the Erie County District Attorney declined to press charges.
In the meantime, however, Wolski had approached Chief Pol at a retirement
party on March 6, 2007 and inquired what she had to do in order to be able to return to
her job. According to Wolski, Chief Pol replied that he did not know and suggested that
the matter would have to await resolution of the pending criminal investigation. On April
3, 2007, after Plaintiff‘s sick time was depleted, Chief Pol placed Wolski on paid
administrative leave.
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On April 11, 2007, after the DA had officially decided to forego criminal charges,
Chief Pol signed a letter of termination directed to Wolski. The letter stated, in relevant
part:
The reasons for this action were referenced in my letter of April 4,
2007, placing you on paid leave pending the completion of the
investigation of the December 28, 2006[ ] incident involving you. On that
date, you started a fire in your residence, having disconnected the smoke
detectors and carbon monoxide detectors, and took an overdose of
medication as a suicide attempt. Family members extinguished the fire,
but the City firefighting crew was dispatched to your home; and you were
taken by helicopter to Pittsburgh for emergency medical treatment to save
your life.
This incident renders you presumptively unsuited to be a firefighter,
as you pose an ongoing threat to the safety of the public, other firefighters
and yourself, having set a fire in a residence.....
Aside from Chief Pol, those having input into the decision to terminate Wolski‘s
employment included the City‘s Human Resources Director, Connie Cook, and the
Mayor of the City of Erie.
After being terminated from her job, Wolski unsuccessfully pursued a grievance
procedure pursuant to her collective bargaining agreement. At some point after June
26, 2007, Wolski submitted to the City, for the first time, a letter from Lance Besner,
M.D, a treating psychiatrist. This letter, dated June 26, 2007, consisted of one sentence
indicating that Wolski had been medically cleared to return to work as of March 15,
2007.
Wolski subsequently submitted another letter from Dr. Besner dated August 6,
2007 which purported to summarize Wolski's mental status, both past and present, as
well as her medication trials. This letter was received by the City on August 28, 2007.
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Two days later, hearings commenced before the City's Civil Service Commission
relative to Wolski‘s appeal from her unsuccessful grievance procedure. During these
hearings, the Civil Service Commission heard testimony from Chief Pol and Connie
Cook, among others, concerning the circumstances surrounding Wolski‘s termination.
Following three days of testimony, the Commission rendered an adverse decision on
December 11, 2007, stating the following:
Upon reviewing all the notes from the testimony, as well as the transcripts
of the proceedings, the Civil Service Commission upholds the action of the
City of Erie, in the matter surrounding the discharge of Ms. Mary Wolski.
While fully recognizing the unique and painful circumstances affecting Ms.
Wolski during the time in question, her admission on November 20, 2007,
regarding her setting a fire at 1834 East 35th Street, is the single most
significant act a fire fighter may not commit.
The act of establishing a fire in a residence is wholly incompatible with the
role of the fire fighter, despite the mitigating circumstances of Ms. Wolski's
psychological state.
(Defs.' Ex J.) The Commission‘s decision became final for purposes of state law after
Wolski withdrew her appeal to the Erie County Court of Common Pleas on March 10,
2009.
II.
LEGAL BACKGROUND
Title I of the ADA prohibits covered employers from discriminating against
qualified individuals with disabilities because of their disabilities with regard to ―terms,
conditions, and privileges of employment‖ including, among other things, job application
procedures and the hiring, advancement, or discharge of employees. See 42 U.S.C.
§12112(a). The statute defines prohibited acts of discrimination to include the use of
employment ―qualification standards … that screen out or tend to screen out an
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individual with a disability or a class of individuals with disabilities‖ unless the employer
shows that the standard being invoked is ―job-related for the position in question and is
consistent with business necessity.‖ 42 U.S.C. §12112(6). Valid job ―qualification
standards‖ may include a requirement that an individual not pose a ―direct threat‖ to the
health or safety of other individuals in the workplace, 42 U.S.C. at § 12113(b); 29 C.F.R.
§ 1630.15(b)(2), which is understood as ―a significant risk of substantial harm to the
health or safety of the individual or others that cannot be eliminated or reduced by
reasonable accommodation.‖ 29 C.F.R. at § 1630.2(r).
Where a perceived ―direct threat‖ is invoked as a job qualification standard,
however, the employer‘s determination of ―direct threat‖ must be based on an
―individualized assessment of the individual‘s present ability to safely perform the
essential functions of the job.‖ 29 C.F.R. at § 1630.2(r). Such an assessment must, in
turn, be based on ―a reasonable medical judgment that relies on the most current
medical knowledge and/or on the best available objective evidence.‖ Id. In determining
whether an individual would pose a direct threat, the factors to be considered include:
(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the
likelihood that the potential harm will occur; and (4) the imminence of the potential harm.
Id.
Further guidance is provided by the EEOC‘s enforcement handbook relative to
psychiatric disabilities:
Under the ADA, an employer may lawfully exclude an individual from
employment for safety reasons only if the employer can show that
employment of the individual would pose a ―direct threat.‖ [ ] Employers
must apply the ―direct threat‖ standard uniformly and may not use safety
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concerns to justify exclusion of persons with disabilities when persons
without disabilities would not be excluded in similar circumstances. [ ]
***
… With respect to the employment of individuals with psychiatric
disabilities, the employer must identify the specific behavior that would
pose a direct threat.[ ] An individual does not pose a ―direct threat‖ simply
by virtue of having a history of psychiatric disability or being treated for a
psychiatric disability.[ ]
(EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric
Disabilities (Pl.‘s Ex. 6) at p. 219 (footnotes omitted).)
The enforcement handbook also speaks directly to the issue of attempted
suicide:
35. Does an individual who has attempted suicide pose a direct threat when s/he
seeks to return to work?
No, in most circumstances. As with other questions of direct threat, an employer
must base its determination on an individualized assessment of the person‘s
ability to safely perform job functions when s/he returns to work. Attempting
suicide does not mean that an individual poses an imminent risk of harm to
him/herself when s/he returns to work. In analyzing direct threat (including the
likelihood and imminence of any potential harm), the employer must seek
reasonable medical judgments relying on the most current medical knowledge
and/or the best available factual evidence concerning the employee.
(Id. at Question 35, p. 220.)
III.
PROCEDURAL BACKGROUND
Wolski commenced this suit on October 20, 2008, claiming that she was
intentionally discharged by the City on account of disability in violation of the ADA.
More specifically, Wolski contends that the City terminated her because it believed that
she posed a direct threat to the health and safety of others in her workplace. Wolski
avers that the City violated the ADA by failing to comply with the Act‘s regulatory
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scheme inasmuch as it failed to conduct an individualized assessment based on
objective criteria in determining that she posed a ―direct threat‖ to the workplace and
instead based its threat assessment on subjective perceptions, irrational fears,
stereotypes and patronizing attitudes.
In defending this case, the City has denied that Wolski was terminated because
of a concern that she posed a ―direct threat‖ to others in her workplace. Rather, the City
has asserted that Wolski was discharged solely for her act of intentionally setting a fire
in her father‘s home. Thus, the City reasons, there was no need for it to perform a
―direct threat‖ analysis in this case because Wolski was subject to termination only on
the basis of her past misconduct.
On June 8, 2010, the City filed its motion for summary judgment arguing, among
other things, that no genuinely disputed issue existed as to whether the City‘s proffered
reason for Wolski‘s termination was a pretext for disability-related discrimination.
Because the case had been litigated to that point as one of alleged pretextual
employment discrimination, we analyzed Plaintiff‘s evidence under the familiar burdenshifting paradigm outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Based largely on testimony that had been proffered by Chief Pol and Ms. Cook both at
the proceedings before the Civil Service Commission and at depositions for this case,
this Court found that a genuine dispute existed in the record concerning the issue of
pretext. See generally Wolski v. City of Erie, 773 F. Supp. 2d 577, 587-92 (W.D. Pa.
2011). In addressing the question of pretext in light of Plaintiff‘s theory that she was
terminated because of an unsupported, generalized fear that she posed a ―direct threat‖
to her workplace, we stated the following:
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For purposes of the ―qualification standards‖ defense, it appears
that the critical factor in determining whether future accommodation and/or
an individualized assessment is required is whether the termination was
premised upon past misconduct that violated a workplace standard or,
rather, upon perceived safety or performance concerns going forward.
Here, the City insists that the ―individualized assessment‖ regulations
pertaining to employees who pose a ―direct threat‖ are inapplicable
because Wolski was terminated solely on the basis of her past
misconduct. However, this assertion merely begs the question whether in
fact a jury would be required to find, as a matter of law, that Wolski's
termination was premised solely on her own past misconduct or whether,
on the contrary, a jury would be justified in finding that her termination was
at least partly motivated by the City's generalized concerns relative to her
perceived psychiatric disability. On this record at least, we cannot say that
the record is so one-sided that a reasonable fact-finder would be
precluded from finding that Wolski's perceived disability was a motivating
factor in the City's decision to discharge her. Accordingly, the City's
motion for summary judgment as to the ADA claim will be denied.
773 F. Supp. 2d at 592.
At trial, the City once again took the position that the ―individualized assessment‖
regulations pertaining to employees who pose a ―direct threat‖ are inapplicable because
Wolski was terminated solely on the basis of her past misconduct. Moreover, the City
challenged Plaintiff‘s ability to establish that she was a ―disabled‖ individual within the
meaning of the Act. Specifically, at the close of Wolski‘s case in chief, the City moved
for judgment as a matter of law under rule 50(a) on the ground that Wolski had not
shown that she was ―regarded as‖ disabled by the City and had not proffered sufficient
evidence to rebut the City‘s proffered explanation for her discharge.
This Court denied the City‘s Rule 50(a) motion and submitted the case to the jury
as a mixed-motives case because, on further consideration of the issue, we found
sufficiently direct evidence of discriminatory animus to invoke the analysis set forth in
Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45 (1989), as discussed by our Court
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of Appeals in Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089 (3d Cir. 1995). The
jury ultimately returned a verdict in favor of Wolski, and the City filed its pending motions
for judgment notwithstanding the verdict and/or a new trial.
IV. STANDARD OF REVIEW
Rule 50(a)(1) of the Federal Rules of Civil Procedure authorizes the entry of
judgment as a matter of law according to the following standard:
(1) In General. If a party has been fully heard on an issue during a jury
trial and the court finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that issue, the court
may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party
on a claim or defense that, under the controlling law, can be
maintained or defeated only with a favorable finding on that issue.
Fed.R.Civ.P. 50(a)(1). A motion for relief under Rule 50(a) may be made at any time
before the case is submitted to the jury. Fed.R.Civ.P. 50(a)(2).
Where, as here, the court does not grant the Rule 50(a) motion, ―the court is
considered to have submitted the action to the jury subject to the court's later deciding
the legal questions raised by the motion.‖ Fed.R.Civ.P. 50(b). In the event an adverse
judgment is entered, the movant may, within 28 days thereafter, renew the motion for
judgment as a matter of law. Id. In ruling upon a renewed motion, the court may do any
of the following:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
Fed. R. Civ. P. 50(b).
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In deciding the Defendant's Rule 50(b) motion, the Court must view the evidence
in the light most favorable to the prevailing, non-moving party— to wit, the Plaintiff,
giving her the benefit of every fair and reasonable inference. Toledo Mack Sales &
Service, Inc. v. Mack Trucks, Inc., 530 F.3d 204, 209 (3d Cir.2008). See also, Davis v.
Berks County Philadelphia, 351 Fed. Appx. 640, 643 (3d Cir. 2009) (―A district court
should grant a motion for judgment as a matter of law only if, ‗viewing the evidence in
the light most favorable to the nonmovant and giving [him] the advantage of every fair
and reasonable inference, there is insufficient evidence from which a jury reasonably
could find liability.‖) (citing Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d
Cir.1993))(alteration in the original).
Rule 59 permits the trial court, on motion, to ―grant a new trial on all or some of
the issues – and to any party – as follows: (A) after a jury trial, for any reason for which
a new trial has heretofore been granted in an action at law in federal court.‖ Fed. R.
Civ. P. 59(a)(1)(A).
V.
DISCUSSION
To establish a prima facie case of disability-related discrimination, Wolski was
required to show that she (1) is disabled, (2) is otherwise qualified to perform the
essential functions of the job in question, with or without reasonable accommodations
by the employer, and (3) has suffered an adverse employment action as a result of her
disability. Hohider v. United Parcel Service, Inc., 574 F.3d 169, 186 (3d Cir.2009)
(citation omitted); Turner v. Hershey Chocolate, U.S., 440 F.3d 604, 611 (3d Cir. 2006).
The term ―disability‖ is statutorily defined to mean: (A) a physical or mental impairment
that substantially limits one or more of the major life activities of an individual, (B) a
record of such impairment, or (C) being regarded as having such impairment. See 42
U.S.C. §12102(2).
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At trial, Wolski attempted to establish the prima facie element of ―disability‖ by
arguing that (a) she was regarded as disabled by the relevant decision-makers and/or
(b) she had a record of a ―disability‖ within the meaning of the Act.4 The City now
moves for judgment as a matter of law on the grounds that Wolski failed to submit
evidence sufficient to satisfy either definition of disability.
A. Record of Disability
The City contends that the evidence introduced at trial was insufficient to support
a finding that Wolski has a ―record‖ of a disability. Specifically, the City alleges that
Wolski ―failed to adduce evidence that the City utilized a record of Wolski‘s impairment
as a reason for an adverse employment action, as the term record of impairment is
used in 29 C.F.R. §1630.2(k) (2007).‖ (Def.‘s Post Trial Motions [50] at p. 1.)
Moreover, the City claims, Wolski ―failed to introduce evidence as to how the City
considered her impairment as substantially limiting one or more major life activities
taking into account the nature and extent of her condition.‖ (Id. at p. 2.) The City further
argues that Wolski ―failed to adduce evidence that the City had knowledge of or
misclassified her as suffering from a permanent or long term mental condition when it
took an adverse employment action against her, or had any material objective
knowledge of the severity or durational aspects of the impairment such as to constitute
a record of impairment.‖ (Id. at p. 2.)
4
There was no dispute by the City that Wolski was otherwise qualified for the job of firefighter and
suffered an adverse employment decision. Thus, the only aspect of Wolski‘s prima facie case which was
litigated at trial was the issue as to whether she established that she had a ―disability‖ within the meaning
of the Act.
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Wolski contends that the City‘s challenges relative to record of disability have
been waived because they were not raised in the City‘s Rule 50(a) motion during trial.
Rule 50(a)(2) provides that a motion for judgment as a matter of law may be made at
any time before the case is submitted to the jury, and that such a motion, if made, ―must
specify the judgment sought and the law and facts that entitled the movant to the
judgment.‖ Fed. R. Civ. P. 50(a)(2). Normally, ―a defendant‘s failure to raise an issue in
a Rule 50(a)(2) motion with sufficient specificity to put the plaintiffs on notice waives the
defendant‘s right to raise the issue in their Rule 50(b) motion.‖ Williams v. Runyon, 130
F.3d 568, 571-72 (3d Cir. 1997) (citing authority). See also Chainey v. Street, 523 F.3d
200, 218 (3d Cir. 2008); Noble Biomaterials v. Argentum Medical, LLC, Civil Action No.
3:08-CV-1305, 2011 WL 4458796 at *3 (M.D. Pa. Sept. 23, 2011); Reynolds v.
University of Pennsylvania, 747 F. Supp. 2d 522, 540-41 (E.D. Pa. 2010); Cipriani v.
Lycoming County Housing Authority, 177 F. Supp. 2d 303, 314 (M.D. Pa. 2001). ―In
assessing whether a motion for judgment as a matter of law brought under Rule
50(a)(2) is sufficiently specific, the court should consider not only the text of the motion,
but also ‗the background,‘ as reflected in the record, of what the party now claiming
waiver understood as the tenor of the Rule 50 movant‘s position and theory.‖ CIF
Licensing, LLC v. Agere Systems Inc., 727 F. Supp. 2d 337, 354 (D. Del. 2010) (quoting
Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494 519 n.18 (3d Cir.
1998)).
We agree that the City‘s Rule 50 challenges to Wolski‘s ―record of disability‖
theory are waived because they were not specifically raised prior to submission of the
case to the jury. During the argument which was held relative to the City‘s Rule 50(a)
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motion, the City clearly challenged the sufficiency of Wolski‘s proof as it related to the
issues of ―regarded as‖ disability and pretext. The following discussion then ensued:
THE COURT: All right. Let me ask you a couple of questions, then I‘ll hear from
Mr. Susko. On this record isn‘t it uncontroverted that she had a record of an impairment?
MR. VILLELLA: She had a record of an impairment for --- yeah, temporary
impairment –
THE COURT: She had a record of disability on this record, didn‘t she?
Mr. VILLELLA: She had a record of something that prevented her from going to
work certainly – yes, she could be disabled temporarily for the time that she wasn‘t
coming into work, she was off on sick leave.
THE COURT: Let me ask the question more clearly. On this record doesn‘t the
record here, not suggest but establish, that she had a record of mental disability of which
this employer was aware?
MR. VILLELLA: Yes. We were aware that she had a mental disability –
THE COURT: Why does she even need, although she can pursue it, but why
does she even need to pursue regarded as; that‘s an independent basis for establishing
a prima facie case, isn‘t it?
MR. VILLELLA: It may well be. If there is a record and that‘s not tied into the
regarded as. If she was regarded as at the time she was terminated, as she‘s saying,
that‘s what she‘s zeroing in on, when the termination letter was sent.
THE COURT: But if there‘s a record independently of the question of regarded
as, she‘s satisfied that element of a prima facie case, hasn‘t she?
MR. VILLELLA: If that‘s what the case law would say on that issue – I mean
you‘re saying he‘s asserting both –
THE COURT: Apparently it‘s pled both ways.
MR. VILLELLA: If you‘re saying that is sufficient to distinguish that –
THE COURT: I‘m not saying that, I‘m asking you?
MR. VILLELLA: Right. Then you have to move on to the issue of whether she‘s
got enough to support pretext.
(Tr. of Rule 50 Arg., Ex. A to Pl.‘s Resp. to Def.‘s Post-Trial Mot. [58-1] at pp. 4-5.)
As defense counsel correctly notes, the foregoing discussion arose in the context
of this Court‘s attempt to ascertain whether the City was conceding Wolski‘s
establishment of a record of disability, since that would have mooted the City‘s
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challenge to Wolski‘s ―regarded as‖ theory. Although defense counsel did not
unequivocally concede the issue, and although he vaguely alluded to Plaintiff‘s leave of
absence as ―temporary,‖ he did not specifically frame his Rule 50(a) motion to include
Wolski‘s ―record of disability‖ theory.
A similar discussion occurred during oral argument concerning the parties‘
proposed points for charge, when the Court questioned counsel as to whether there
was any dispute that Wolski had a record of disability within the meaning of the Act.
The purpose of the discussion was to determine whether the jury needed to be
instructed on the issue of ―disability‖ or whether that prima facie element had been
conclusively established. Defense counsel did not concede that a record of disability
had been established as a matter of law, but he did admit to some uncertainty about the
issue. Ultimately, defense counsel appeared to treat the matter as a factual issue to be
argued to the jury, and an instruction as to the temporal durational requirements of
disability was incorporated into the charge.
We also consider the fact that, even though the complaint pled disability under
both ―regarded as‖ and ―record of‖ theories, the City in its trial brief did not raise any
purported deficiencies in Wolski‘s ―record of disability‖ theory. Rather, the City focused
exclusively on perceived defects in Wolski‘s ―regarded as‖ theory and the lack of any
fellow employees that could serve as comparators. Neither argument concerned the
alleged temporariness of Wolski‘s mental impairment.
In addition, we consider the City‘s original Rule 50(b) motion (styled a ―Motion for
Judgment as a Matter of Law in Behalf of Defendant City of Erie‖ [47]), which was filed
the day after the jury rendered its verdict. In this motion, the City identified two issues
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that it believed warranted judgment notwithstanding the verdict: Wolski‘s alleged failure
to establish that she was ―regarded as disabled‖ and Wolski‘s failure to establish that
the City‘s proffered explanation for her termination was a pretext for disability
discrimination. No mention was made concerning the element of disability under a
―record‖ theory.
Given the overall context in which the discussion of Wolski‘s record of disability
occurred in this trial, I find that the issue was not raised at the Rule 50(a) stage with
sufficient specificity. Accordingly, the issue is deemed waived for purposes of the
pending Rule 50(b) motion.
B. Regarded as Disabled
The City also contends that Wolski failed to adduce evidence that she was
―regarded as‖ disabled within the meaning of the Act. A person is ―regarded as‖ having
a disability if she:
(1) Has a physical or mental impairment that does not substantially limit major life
activities but is treated by the covered entity as constituting such limitation;
(2) Has a physical or mental impairment that substantially limits major life
activities only as a result of the attitudes of others toward such impairment; or
(3) Has [no such impairment] but is treated by a covered entity as having a
substantially limiting impairment.
Hershgordon v. Pathmark Stores, Inc., 285 Fed. Appx. 846, 848 (3d Cir. 2008) (quoting
Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 187 (3d Cir.1999)).
If a plaintiff is attempting to establish that the employer believed her to be
substantially limited in the life activity of ―working,‖ then the plaintiff must establish that
the employer believed her to be limited in her ability to work in ―either a class of jobs or
Page 17 of 31
a broad range of jobs in various classes as compared to the average person having
comparable training, skills, and abilities.‖ See Hershgordon, 285 Fed. Appx. at 848
(quoting Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999)); Tice v. Centre Area
Transp. Authority, 247 F.3d 506, 514 (3d Cir. 2001) (citing authority). See also 29
C.F.R. §1630.2(j)(3)(i) (2008) (stating that an individual is ―substantially limited‖ with
regard to working if there is a significant restriction in a person's ―ability to perform either
a class of jobs or a broad range of jobs in various classes as compared to the average
person having comparable training, skills and abilities.‖). ―Stated differently, ―to be
regarded as substantially limited in the major life activity of working, one must be
regarded as precluded from more than a particular job.‖ Hershgordon, supra, at 848
(quoting Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 523 (1999)). See also 29
C.F.R. §1630.2(j)(3)(i) (―The inability to perform a single, particular job does not
constitute a substantial limitation in the major life activity of working.‖); Taylor, 177 F.3d
at 192 (―An employer who simply, and erroneously, believes that a person is incapable
of performing a particular job will not be liable under the ADA. Liability attaches only to
a mistake that causes the employer to perceive the employee as disabled within the
meaning of the ADA, i.e., a mistake that leads the employer to think that the employee
is substantially limited in a major life activity.‖).5
5
It should be noted that the ADA Amendments Act of 2008 (P.L. 110-325, 122 Stat. 3555) (the ―2008
Amendments‖) made numerous changes to the ADA‘s definition of ―disability‖ so as, in part, to overrule
the Supreme Court‘s decision in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), which, it was felt,
had unduly narrowed the scope of protection intended to be afforded by the Act. Most relevantly, the
2008 Amendments make clear that ―working‖ is a ―major life activity,‖ and they eliminate any requirement
that the plaintiff prove an inability to perform a broad range of jobs. Thus, under the current form of the
law, ―[a] plaintiff meets the requirement of being ‗regarded as‘ disabled if she establishes that she has
been discriminated against ‗because of an actual or perceived impairment whether or not the impairment
limits or is perceived to limit a major life activity.‘‖ Section 4 of the ADA Amendments Act of 2008
(emphasis added).
Page 18 of 31
The City contends that Wolski failed to produce evidence sufficient for a jury to
find that she was regarded as being precluded from either a class of jobs or a broad
range of jobs in various classes. According to the City, Wolski produced, at most,
evidence suggesting that she was viewed as unable to perform the job of firefighter, a
single job.
The City‘s objection is well-taken. The evidence at trial was sufficient to support
a reasonable inference that the City‘s decision-makers regarded Wolski as incapable of
performing the job of firefighter by reason of her mental impairment. However,
numerous federal court decisions have held that the job of firefighter does not constitute
a ―class of jobs‖ or a ―broad range of jobs in various classes‖ for purposes of
establishing a ―substantial limitation‖ in the major life activity of ―working.‖ See, e.g.
Shipley v. City of University City, 195 F.3d 1020, 1023 (8th Cir. 2000) (plaintiff‘s ADA
claim was legally insufficient where he failed to produce evidence that he was regarded
as unable to perform other jobs besides that of firefighter) (citing Smith v. City of Des
Moines, Iowa, 99 F.3d 1466 (8th Cir. 1996)); Bridges v. Bossier, 92 F.3d 329, 335 (5th
Cir. 1996) (―firefighters alone do not constitute a ‗class of jobs‘‖) (following Welsh v. City
of Tulsa, Oklahoma, 977 F.2d 1415, 1416-1420 (10th Cir. 1992) (Rehabilitation Act
case)); Green v. New York City Fire Department, No. 08 Civ. 0491 (BMC), 2008 WL
5377959 at *9 (E.D.N.Y. Dec. 23, 2008) (finding that ―[t]he firefighter position, as utilized
by the FDNY, is similarly a single job‖); Parker v. City of Williamsport, 406 F. Supp. 2d
The 2008 Amendments were effective as of January 1, 2009. See id. at § 8. It is well established
among the various courts of appeals that the Amendments are not retroactive to cases pending prior to
their effective date. See Weidow v. Scranton School Dist., 460 Fed. Appx. 181, 185 n. 7 (3d Cir. 2012)
(observing that ―[e]very Court of Appeals to consider the issue has held that the ADAAA does not have
retroactive effect‖ and agreeing with those decisions) (citing authority). Thus, we apply the law of this
circuit as it existed prior to the 2008 Amendments.
Page 19 of 31
534, 546-47 (M.D. Pa. 2005) (terminated firefighter failed to show substantial limitation
in major life activity of working where he failed to submit evidence of his work-related
abilities and qualifications, the jobs available in his geographic area, the number of jobs
utilizing his particular abilities and the number of those jobs from which he is disqualified
due to his impairments, or the number of jobs that do not utilize his particular abilities
and the number of those jobs from which he is disqualified due to his impairments)
(citing 29 C.F.R. § 1630.2(j)(3)(ii)(A)-(C)); Taraila v. City of Wilmington, No. CIV. A. 99564-GMS, 2000 WL 1708218 at *4 (D. Del. Oct. 12, 2000) (―An impairment preventing
someone from being a firefighter is not substantial limitation on a ‗class‘ or ‗range‘ of
jobs.‖) (citing authority); Serrano v. County of Arlington, 986 F. Supp. 992, 998-99 (E.D.
Va. 1999) (County did not regard plaintiff as unable to perform a ―class of jobs or broad
range of jobs in various classes‖; rather, they perceived him as being precluded only
from the position of firefighter and, therefore, did not regard plaintiff as disabled within
the meaning of the ADA). But see Haynes v. City of Montgomery, Alabama, 344 Fed.
Appx. 519, 520 (11th Cir. 2009) (finding sufficient evidence to establish that city
perceived firefighter as substantially limited from performing a broad range of jobs
where, among other things, notes and testimony from city‘s medical expert established
that doctor would not have cleared firefighter to work in any safety-sensitive position or
drive a vehicle of any kind, including a fire truck).
Wolski attempted to rebut this alleged deficiency at trial by pointing to testimony
on the part of Connie Cook wherein Ms. Cook essentially admitted that she regarded
Wolski as being ―disabled.‖ However, this argument becomes somewhat circular
because ―regarded as‖ disability depends upon a showing that the plaintiff was regarded
Page 20 of 31
by the employer as disabled within the meaning of the ADA, which in turn depends upon
a showing that the plaintiff was regarded as somehow being substantially limited in a
major life activity – here, working. See Sutton v. United Air Lines, Inc., 527 U.S. 471,
489 (1999) (―There are two apparent ways in which individuals may fall within this
statutory definition [of ―regarded as‖ disability]: (1) a covered entity mistakenly believes
that a person has a physical impairment that substantially limits one or more major life
activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting
impairment substantially limits one or more major life activities. In both cases, it is
necessary that a covered entity entertain misperceptions about the individual—it must
believe either that one has a substantially limiting impairment that one does not have or
that one has a substantially limiting impairment when, in fact, the impairment is not so
limiting.‖).6
Here, the record is devoid of any evidence establishing that Chief Pol and/or Ms.
Cook regarded Wolski as unable to perform other jobs besides that of firefighter.
Moreover, the testimony at trial established that the vast majority of positions within the
Erie Bureau of Fire were firefighter positions and only a handful of non-firefighter jobs
existed within the Bureau. Thus, there is insufficient evidence to support a finding that
various classes of jobs existed within the Bureau of Fire. Accordingly, the City was
entitled to a finding, as a matter of law, that Wolski could not establish that she was
―regarded as‖ disabled. In order to ascertain the legal implications of this error,
6
In addition, it would seem that Ms. Cook‘s testimony concerning ―regarded as‖ disability involves a legal
conclusion, as to which parties cannot make legally binding admissions.
Page 21 of 31
however, as well as the appropriate remedy, we must consider the City‘s remaining
post-trial challenges.
C. Failure to Rebut Pretext/ Mixed-Motives Charge
The City‘s remaining arguments in favor of post-trial relief are two-fold but will be
addressed together. First, the City contends that Wolski failed to produce evidence
sufficient to rebut the City‘s proffered reason for her termination (namely, the intentional
setting of a fire) and to support an inference of pretextual disability discrimination. The
City maintains that this failure of proof entitles it to judgment as a matter of law.
Second, and relatedly, the City contends that this Court erred in instructing the
jury on mixed-motives as opposed to submitting the case to the jury on a pretext theory.
The City maintains that this alleged error by the Court entitles it to a new trial.
Addressing the second point first, I conclude that there was no error in submitting
this case to the jury on a mixed-motives/ Price Waterhouse7 theory. In Starceski v.
Westinghouse Electric Corp., 54 F.3d 1089 (3d Cir. 1995), the Third Circuit Court of
Appeals discussed the type of evidence that would warrant a Price Waterhouse
instruction. Quoting Griffiths v. CIGNA Corp., 988 F.2d 457 (3d Cir. 1993), the court
noted that ―a charge on a ‗mixed-motives‘ theory of employment discrimination requires
‗conduct or statements by persons involved in the decisionmaking process that may be
viewed as directly reflecting the alleged discriminatory attitude.‖ 54 F.3d at 1096
(quoting Griffiths, 988 F.2d at 470). Further, quoting Armbruster v. Unisys Corp., 32
F.3d 768 (3d Cir. 1994), the court observed that:
7
See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
Page 22 of 31
[I]n a [mixed-motives] case unaffected by the Civil Rights Act of 1991, the
evidence the plaintiff produces is so revealing of discriminatory animus
that it is not necessary to rely on any presumption from the prima facie
case [as is necessary in a pretext action] to shift the burden of production.
Both the burden of production and the risk of non-persuasion are shifted to
the defendant who … must persuade the factfinder that[,] even if
discrimination was a motivating factor in the adverse employment
decision, it would have made the same employment decision regardless of
its discriminatory animus.
54 F.3d at 1096 (quoting Armbruster, 32 F.3d at 778 (alterations and emphasis in the
original). Finally, quoting from Justice O‘Connor‘s concurring opinion in Price
Waterhouse, the court of appeals recalled that stray remarks in the workplace,
statements by nondecisionmakers, or statements by decisionmakers that are unrelated
to the decisional process itself will not suffice as grounds to shift the burden of
persuasion onto the employer. Id. (quoting Price Waterhouse v. Hopkins, 490 U.S. 228,
277 (1989)). Rather, ―[w]hat is required is … direct evidence that decisonmakers placed
substantial negative reliance on an illegitimate criterion in reaching their decision.‖ Id.
(quoting Price Waterhouse, supra, at 277) (ellipsis and emphasis in the original).
In this case, there was evidence at trial in the form of statements by the City‘s
decision-makers which, if construed in the light most favorable to Wolski, could be
interpreted as reflecting a direct discriminatory animus sufficient to warrant the burdenshifting paradigm of Price Waterhouse. Chiefly, this came in the form of testimony from
Chief Pol and Connie Cook which had been offered at Wolski‘s hearing before the Civil
Service Commission and/or at depositions in this civil action.
For example, at Wolski‘s civil service hearing, Connie Cook was questioned
hypothetically as to whether the City would have had concerns about Wolski‘s mental
status if she had attempted suicide by a different method not involving the setting of a
Page 23 of 31
fire. Cook‘s response was, ―I think that if there were no fire, we would still have the
same concerns. A firefighter on any kind of medication is always a concern for my
department, as well as the fire department.‖ When asked if that was ―part of the reason
why you object to [Wolski] returning [to work]‖ – i.e., ―because you perceive her or
regard her as having a disability because of her mental status,‖ Cook responded, ―I
would have to say yes.‖
At her deposition taken in connection with this case, Ms. Cook was asked
whether ―it would be fair to say that there was sort of a generalized fear that there could
be a relapse of Mary‘s mental illness,‖ to which she replied, ―Yes.‖ The question was
posed, ―[Y]ou didn‘t know when or you didn‘t know how, but there was a generalized
fear that this can occur sometime in the future again?‖ Ms. Cook again responded,
―Yes.‖ When asked during trial about the basis for the City‘s generalized fear that
Wolski‘s severe depression might recur, Ms. Cook explained, ―[W]e didn‘t have enough
information about her condition, so you always fear the unknown.‖ Ms. Cook
acknowledged having testified at deposition that, once she knew about Wolski‘s
depression and suicide attempt, nothing could change her mind about Wolski being an
ongoing threat. She further acknowledged her prior testimony to the effect that, once
the onset of depression came, the City‘s assumption was that it would be with her for
the rest of her life. Asked at trial, ―You also believed that there was no guarantee that
some type of depression episode or attempted suicide would not reoccur in the future,‖
Ms. Cook replied, ―That‘s correct.‖
Ms. Cook was also questioned at trial about concerns she had relative to
Wolski‘s medication regimen. The following exchange occurred:
Page 24 of 31
Q. Part of your thinking was that even though you didn‘t have
records or reports or a list of Mary‘s medication at the time of her
termination, you had some personal experience with your mother taking
Ativan, according to your previous testimony?
A. Yes.
Q. And you believe you thought that your mother was lethargic?
A. Yes.
Q. That‘s why you had some problems with Mary returning
because if a firefighter was taking Ativan, he or she could be lethargic like
your mother?
A. I saw the affects [sic] of the drug on my mother and I didn‘t
understand how a person could take that drug and be a firefighter.
Q. … you didn‘t even know that Mary was taking Ativan before the
termination, correct?
A. I don‘t think so.
Q. But even if you did, you don‘t know what the dosages were, do
you?
A. No.
Q. You don‘t know how it affects people at different age groups, do
you?
A. No.
Q. You don‘t know how it affects people taking one a day or
several a day or what the drug regiment was, do you?
A. No.
Ms. Cook also read into the trial record testimony from her deposition wherein
she had raised the rhetorical questions: ―What if this happens again. What if her
medications change and we don‘t know about it. What if she becomes unstable and [is
as] calculating about killing herself as she was the last time. And what if she drives the
Page 25 of 31
fire truck into the side of a building and kills the whole crew.‖ Asked at deposition
whether she ―raise[d] those what if questions at that time as far as arriving at the
presumption that [Wolski] posed an ongoing threat,‖ Cook replied, ―Yes, we did discuss
it.‖ When asked at deposition what the reason was for concluding that the City could
not continue to employ Mary as a firefighter, Cook had responded, ―We felt that she
posed an ongoing risk for the safety of firefighters, citizens.‖ Cook also read into the
trial record her explanation at deposition as to why there was confusion about Wolski‘s
possible ongoing risk to firefighters and citizens – to wit: ―We had no guarantee that
there wouldn‘t be another episode of depression. We had no guarantee that her
medication might alter her mental status, her demeanor.‖
During trial, Chief Pol was questioned about statements he had made before the
Civil Service Commission relative to Wolski‘s post-termination hearing. When asked at
that hearing ―what about her mother‘s death [ ] might cause a lingering problem for
[Wolski] that could flare-up into a similar event into the future,‖ Chief Pol responded:
Because of the dates of the incident coinciding with her mother's funeral,
the one-year anniversary, you know, I have concerns in the future what's
going to happen next year.... I have no proof or anything that I can
endanger [sic] — being on medication, driving a fire truck — my job is to
protect the firefighters, all of them. And I can't believe — I can't sit here
and say that I want — I can have her back driving a fire truck and fighting
fires and endanger other people. My job is to the firefighter first and to the
citizen second.
…
I just have concerns about the feedback I'm getting from other firefighters
about her coming to work and the trust they have. Firefighting is a very
close business, somebody has to have your back, somebody has to drive
you there safely and get you there safely, and there's concerns. And
that's the feedback I'm getting. And as Chief, that's what I'm saying today,
nothing has changed my mind to say that she should come back to work.
Page 26 of 31
(Pl.‘s Ex. 14.)
The jury was also informed of Chief Pol‘s admission at deposition that he had
had concerns about Wolski driving while on medications. When asked if events would
have played out any differently had Wolski supplied her psychiatrist‘s report to the City
prior to being placed on administrative leave, Chief Pol suggested in his deposition
testimony that such information may have given rise to an evaluation process. Further,
Chief Pol admitted at trial that the fire and Wolski‘s medications were considerations
that were discussed in connection with Wolski‘s termination.
In light of the foregoing testimony, the case was properly submitted to the jury on
a mixed-motives/ Price Waterhouse instruction. Both Ms. Cook and Chief Pol
contributed to the decision-making process and both had made statements which could
be viewed as directly evidencing a discriminatory bias in the form of a generalized fear
about Wolski‘s mental state, formed without the benefit of any objective medical or
psychological evidence. Thus, there was no error involved in charging this case to the
jury under a mixed-motives theory.
Based largely on the same evidence, I find that the evidence was easily sufficient
to rebut the City‘s proffered explanation for Wolski‘s termination, even if the case had
been submitted to the jury under a pretext theory with Wolski bearing the burden of
persuasion. The City nevertheless contends that this Court erred in ―fail[ing] to
recognize the magnitude of Wolski‘s misconduct and its impact upon the City in
evaluating her claim of discrimination under the ADA, as requested in the City‘s
Requested Points for Charge at number seven,‖ which read as follows:
Page 27 of 31
You should consider the nature of Plaintiff‘s action of setting an intentional
fire in the context of the qualifications and requirements of her job as a
Pennsylvania firefighter in evaluating the credibility and validity of the City
of Erie‘s stated reason for terminating Plaintiff from employment.
(Def.‘s Requested Points for Charge [34] at p. 3, ¶ 7.)
This appears to be merely another way of arguing that the Court failed to accept
the City‘s proffered explanation for Wolski‘s termination. As we have seen however,
there was ample evidence in the record to suggest that the City‘s decision-makers
based their employment decision at least partly on unsubstantiated fears that Wolski
would pose a threat to others by virtue of her mental illness and medications. The jury
was free to credit or reject the City‘s proffered explanation for its adverse employment
action, and it was not unreasonable for the jury to conclude on this record that the City
failed to satisfy its burden of proving that it would have fired Wolski even absent any
considerations about her mental impairment.
Moreover, insofar as the City‘s requested point for charge is concerned, we find
no error or unfair prejudice by virtue of its omission. The significance to the City of a
firefighter who intentionally sets a fire was a point that defense counsel forcefully argued
throughout the trial and during closing statements. Accordingly, the Court rejects the
City‘s argument that a mixed-motives charge was improper and/or that the trial evidence
was legally insufficient to satisfy a finding of disability related discrimination.
D. Legal Remedy
Having thus concluded that the trial record is insufficient to support Wolski‘s
theory that she was regarded as disabled, we must determine what legal remedy, if any,
is appropriate. Here, the jury was properly instructed that Wolski had to establish
Page 28 of 31
―disability‖ within the meaning of the ADA as a necessary element of her prima facie
case. The jury was further instructed, however, that Wolski could establish disability
under either a ―record‖ theory or a ―regarded as‖ theory. At trial, we found the evidence
sufficient to support a finding that Wolski had a record of disability and, for the reasons
previously discussed, we have concluded that the City‘s post-trial challenges to that
ruling have been waived.
Significantly, the case was submitted to the jury (albeit absent any objections
from counsel) with a general verdict form which simply asked, ―Do you find the
Defendant, the City of Erie, liable under the Americans with Disabilities Act based on its
conduct in terminating the Plaintiff‘s employment?‖ The jury answered this question
affirmatively. Thus, the jury clearly must have found Wolski to be ―disabled‖ within the
meaning of the ADA as a predicate for liability, yet it cannot be conclusively determined
from the verdict form whether the jury concluded that Wolski was ―disabled‖ based on a
―record‖ theory, a ―regarded as‖ theory, or both.
Under the precedent of this circuit, the legal ramifications of this error are clear:
―Where a jury has returned a general verdict and one theory of liability is not sustained
by the evidence or legally sound, the verdict cannot stand because the court cannot
determine whether the jury based its verdict on an improper ground.‖ Wilburn v.
Maritrans GP Inc., 139 F.3d 350, 361 (3d Cir.1998). See also Brokerage Concepts v.
U.S. Healthcare, Inc., 140 F.3d 494, 534 (3d Cir.1998) (where jury instruction invited the
jury to find liability on an erroneous basis as well as a valid basis, ―the proper course
[was] for [the court] to remand for a new trial rather than to attempt to divine the basis of
the jury‘s verdict‖); Limbach Co. v. Sheet Metal Workers Int'l Assoc., 949 F.2d 1211,
Page 29 of 31
1217-18 (3d Cir.1991) (―Under this court's jurisprudence, we must set aside a general
verdict if it was based on two or more independent grounds one of which was
insufficient, and we cannot determine whether the jury relied on the valid ground.‖), aff'd
on rehearing en banc, 949 F.2d 1241 (3d Cir.1991); Avins v. White, 627 F.2d 637, 646
(3d Cir. 1980) (―‘Where … a general verdict may rest on either of two claims – one
supported by the evidence and the other not – a judgment thereon must be reversed.‘‖).
Because the jury was permitted to find Wolski disabled under a ―regarded as‖ theory
and because we cannot discern from the verdict slip whether the jury in fact made such
a finding and/or whether it served as the sole basis for a finding of disability, we must
grant the City‘s request for a new trial.
IV. CONCLUSION
Based upon the foregoing reasons, the City‘s motion for judgment as a matter of
law and/or new trial will be granted in part and denied in part. Specifically, the City‘s
request for judgment as a matter of law will be denied; however, its alternative request
for a new trial will be granted. An appropriate order follows.
Page 30 of 31
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MARY WOLSKI,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CITY OF ERIE,
Defendant.
Case No. 1:08-cv-289-SJM
ORDER
AND NOW, this 28th Day of September, 2012, for the reasons set forth in the
accompanying Memorandum Opinion,
IT IS HEREBY ORDERED that the Defendant‘s motion for judgment as a matter
of law and/or new trial [50] shall be, and hereby is, GRANTED in part and DENIED in
part as follows:
1. The Defendant‘s motion for judgment as a matter of law pursuant to Federal
Rule of Civil Procedure 50(b) shall be and, hereby is, DENIED; and
2. The Defendant‘s motion for a new trial pursuant to Federal Rule of Civil
Procedure 59 shall be, and hereby is, GRANTED.
IT IS SO ORDERED.
s/
Sean J. McLaughlin
SEAN J. McLAUGHLIN
United States District Judge
cm: All counsel of record.
Page 31 of 31
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