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Brown v. Smith, No. 15-1114 (7th Cir. June 28, 2016)

| Jun 29, 2016 | Daily Developments in EEO Law |

Here’s a nice, short decision affirming a judgment of $25,200 in compensatory damages and $65,274.64 in back pay for an ADA plaintiff fired because of his insulin-dependent diabetes. The court underscores that the question of “essential function” under that statute is a factual one for a jury to resolve. And the court also holds that starting a business, even one that fails, is a valid method of mitigating damages.

Brown v. Smith, No. 15-1114 (7th Cir. June 28, 2016): A central question in this case was whether holding a commercial driver’s license (CDL) was an “essential function” for a street supervisor at the City of Anderson Transit System (CATS). Brown lost his CDL because of his health condition, but – as the panel opinion notes – “[f]or nearly a decade, this development proved irrelevant.” That’s because Brown, as a mechanic and later a supervisor, did not have to get behind the wheel.

Brown’s last job at CATS, before he was fired, was to “ensure that drivers left the bus garage with the requisite paperwork and with operational vehicles.” Brown testified that “he performed the duties of his street‐supervisor position for four years without ever needing to drive a bus.” While the official job description listed holding a CDL as a condition of employment, other witnesses testified that it was  indeed rare for a supervisor to drive a bus.

The city argued that the court, not the jury, should have decided the “essential function” issue as a matter of law. Yet the court holds that whether a job duty is an “essential function” involves the weighing of facts and inferences that is reserved to a jury. It also holds that the city waived any challenge to the jury’s finding here by not challenging the verdict in a post-trial Rule 50 motion.

Even without the City’s waiver, though, the panel holds that the verdict on this element was sound. Not only did street supervisors seldom drive buses, but in the unusual instance where a bus had to be moved, replacement drivers with CDLs were easily procured: “Brown and … an other street supervisor … testified that replacement drivers could generally be secured within 10 minutes, which allowed street supervisors to focus on ensuring that other bus drivers were operating adequately.”

The city secondarily argued that the jury was misinstructed on “essential function” because it permitted the jury to infer that a duty was not essential if it was not performed very often. Of course, as the panel notes, “federal regulations unambiguously state that ‘[e]vidence of whether a particular function is essential includes, but is not limited to,’ time spent performing the function. 29 C.F.R. § 1630.2(n)(3).” Yet the city argued that the time factor was “not relevant” in this case “because the emergencies that would force a street supervisor to drive a bus would infrequently occur.” The panel holds that while the city was free to argue this point to a jury, it did not make the time spent driving irrelevant to the inquiry, but only one of several factors the jury could weigh.

Finally, the city argued that Brown did not mitigate his damages by seeking reemployment elsewhere. The panel holds, though, that Brown’s self-employment – running a truck-driving business – counts toward the mitigation defense. “[T]here is little reason to doubt that Brown’s business was a legitimate and reasonable attempt to make money. for one, hauling trailers across the country is certainly related to Brown’s various positions at CATS, which involved driving, fixing, and supervising the operation of municipal buses. Moreover, during 2012, Brown made 63 trips over 187 days as he worked to establish his business. And he shut down operations not because he became bored with the work, but because he was unable to generate sufficient profits.”

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