No. 98-1968
In the Supreme Court of the United States
CHARLES F. GRESHAM, PETITIONER
v.
WILLIAM HENDERSON, POSTMASTER GENERAL
OF THE UNITED STATES
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney General
MARLEIGH D. DOVER
MATTHEW M. COLLETTE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the jury correctly found that the Postal Service's refusal to rehire
petitioner was based on factors unrelated to his record of a disability.
In the Supreme Court of the United States
No. 98-1968
CHARLES F. GRESHAM, PETITIONER
v.
WILLIAM HENDERSON, POSTMASTER GENERAL
OF THE UNITED STATES
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
OPINION BELOW
The opinion of the court of appeals (Pet. App. 3a-6a) is unpublished, but
the decision is noted at 166 F.3d 347 (Table).
JURISDICTION
The judgment of the court of appeals was entered on December 14, 1998. A
petition for rehearing was denied on March 10, 1999. The petition for a
writ of certiorari was filed on June 8, 1999 (Pet App. 1a-2a). The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. Petitioner has been an epileptic since childhood and first began having
seizures at work in 1978. According to the testimony of petitioner and his
physician, these seizures would last no longer than 25 minutes, during which
petitioner would go into a trance-like state and be either unresponsive
or disoriented and confused. Gov't C.A. Br. 3-4.
Petitioner worked for the United States Postal Service as a distribution
clerk beginning in May 1966. Pet. 3. In 1986, the Postal Service discharged
petitioner for several on-the-job incidents. The Notice of Removal set out
three charges. The first charge concerned erratic behavior during contacts
with customers that made petitioner unable to meet the requirements of his
position. In particular, petitioner took $10 from a customer who wanted
stamps, put the money in his pocket, and took off his tie and unbuttoned
his shirt; he took $25 from a customer, said "Oh my God," and
left the building; he threatened a customer at his counter by warning her
that he was "crazy enough to do anything"; and he responded to
a customer's putting $20 on the counter by saying it was "time for
me to go" and leaving. Pet. C.A. Br. App. Addendum, PX 29, at 1.
After two such incidents, petitioner submitted assurances from doctors that
his problems were under control, and the Postal Service abandoned plans
to demote him. When a "fitness for duty" examination showed that
petitioner's problems were not under control, the Postal Service attempted
to accommodate him by moving him to a temporary position answering the phone
and setting meters. Pet. C.A. Br. App. Addendum, PX 29, at 1-2.
The second charge concerned misconduct. The Notice of Removal recited the
Postal Service's difficulties in finding work for petitioner after he was
removed from his window position, set out its efforts to accommodate him
with a light duty assignment, and charged him with sabotaging those efforts
by going AWOL rather than working the assignment it had found for him. Pet.
C.A. Br. App. Addendum, PX 29, at 2.
The third charge involved threatening postal employees. The charge specified
that, in a conversation with a Labor Relations Assistant:
You told him that you could not be responsible for your actions, that you
were psychotic. As the conversation went on, you told him that you had two
firearms charges against you, and that you were dangerous. Not only did
the Labor Relations Assistant feel threatened by these comments, but you
pose a potential threat to others with whom you have to work.
Pet. C.A. Br. App. Addendum, PX 29, at 2.
Shortly after the effective date of his removal, petitioner applied to the
Office of Personnel Management for disability retirement. His application
was granted in September, 1986. Pet. App. 4a, 21a-24a.
2. In April 1993, petitioner requested reinstatement to his former employment
with the Postal Service. Petitioner stated that his previous "retirement"
was based upon seizures that interfered with his ability to perform his
duties, and that new drug therapy had abated his seizures. Pet. App. 4a.
The Postal Service official who made the decision whether to rehire petitioner,
Ms. Littleton, testified that she reviewed petitioner's work history, including
his official personnel file and the previous Notice of Removal. Pet. App.
4a; Pet. C.A. Br. App. 263-272. These showed that petitioner had been disciplined
several times for excessive absenteeism, and had been suspended several
times. Id. at 268-269. Ms. Littleton did not believe there was a connection
between petitioner's medical condition and excessive absenteeism, id. at
202, and petitioner himself testified that there were times when his absenteeism
was not caused by his epilepsy, id. at 116-117.
Ms. Littleton also consulted petitioner's "rap sheet," which showed
several arrests. Pet. C.A. Br. App. 259. Petitioner had been fined $10 in
1968 for aggravated assault in an incident that arose from a domestic dispute.
Pet. C.A. Br. App. Addendum, PX 35; see also Pet. C.A. Br. App. 82-83. In
addition, petitioner had been arrested and charged with aggravated assault
in 1982, in an incident in which he brought a gun to the office of his ex-wife.
Id. at 84-86. The latter charges ultimately were dropped. Id. at 87. There
was no evidence that petitioner was in a "trance-like" state or
exhibited other signs of epilepsy at the time of these incidents.
The Postal Service declined to offer petitioner a position. In a letter
to petitioner, Ms. Littleton explained that the Postal Service considers
a number of factors in reaching a decision on reinstatement requests, including
"safety, attendance, work performance and attitude," and that
its decision declining to reinstate petitioner was based upon his work records
and evaluation at the time of his separation from the Postal Service. Pet.
C.A. Br. App. Addendum, PX 5. Ms. Littleton testified that when she referred
to "work performance" she included his disciplinary record. Pet.
C.A. Br. App. 266-267. She also testified that her reference to "safety"
included a Postal Service policy of "zero tolerance" policy concerning
violence in the workplace, which covers threats and perceived threats. Id.
at 253.
3. Petitioner brought this action, alleging that the Postal Service violated
the Rehabilitation Act of 1973, 29 U.S.C. 791, 794, in refusing to rehire
him in 1993. Following a jury trial, the jury returned a verdict for the
Postal Service. Pet. App. 4a. The district court denied petitioner's motion
for judgment as a matter of law and his motion for a new trial, and petitioner
appealed.
4. The court of appeals affirmed. Pet. App. 3a-6a. The court first held
that the district court did not abuse its discretion in instructing the
jury that the Postal Service was not required to consider petitioner's application
further if it had genuine concerns that petitioner's past problems would
recur. The court rejected petitioner's contention that the instruction improperly
permitted the jury to find that the Postal Service was not required to consider
petitioner's improved condition. As the court explained, "The jury
was free to conclude that the Postal Service believed plaintiff's problems
would recur for reasons not related to his disability or that he was not
qualified for the position he sought, thereby relieving the Postal Service
from an obligation to evaluate his application further." Id. at 5a.
The court of appeals also rejected petitioner's contention that he was entitled
to judgment as a matter of law or a new trial. Pet. App. 5a-6a. With respect
to petitioner's contention that the Postal Service violated the Rehabilitation
Act by failing to examine whether his past work record was caused by his
disability and by failing to take into account his present medical condition,
the court of appeals concluded that "[t]he jury heard evidence and
received instructions on plaintiff's theory of his case," but that
"[i]t was not required to find in [his] favor." Id. at 5a. Based
on the evidence in this case, "[t]he jury was free to find that plaintiff
was not qualified for the position or that the Postal Service's hiring decision
was not related to his disability." Ibid.
The court of appeals also held that the district court did not abuse its
discretion in excluding testimony from a friend and former coworker of petitioner
that the Postal Service's reasons for not rehiring petitioner were pretextual.
Pet. App. 6a. Finally, the court of appeals stated that it would "decline
to address [petitioner's] claims that the Postal Service failed to meet
its affirmative burdens because the issue was raised for the first time
on appeal." Ibid.
ARGUMENT
The court of appeals correctly held that petitioner received every opportunity
to present his theory of the case to the jury, and that the district court
committed no reversible error in conducting the trial. The unpublished decision
of the court of appeals does not conflict with any decision of this Court
or any other court of appeals. Further review is not warranted.
1. Petitioner contends (Pet. 7-12) that further review is warranted to consider
whether mitigating measures, such as medication, should be considered in
determining whether petitioner is disabled under the Rehabilitation Act.
He states that the Postal Service concluded that he was not disabled in
1993, when he sought to be rehired, only because the Postal Service took
into account the medication he was taking for his epilepsy in assessing
his condition.
This issue is not properly before the Court. The jury was instructed that
petitioner was asserting that he had a "past record or history of a
substantially limiting condition" when he applied for reemployment
in 1993, Pet. C.A. Br. App. 443, not that he had an "actual" disability
at that time. See 29 U.S.C. 706(8)(B) (defining disability in terms of actual
disability, record of a disability, or regarded as disability). Petitioner
did not object to the absence of any language regarding mitigating measures
in the instructions, nor did he request any jury instruction that would
have addressed the mitigating measures issue. And petitioner's briefs in
the court of appeals did not raise (and the court of appeals did not address)
any issue regarding mitigating measures.
In any event, this Court has recently resolved the question whether mitigating
measures should be taken into account in assessing the existence of a disability
under the Americans with Disabilities Act of 1990 (ADA), and it has rejected
the argument petitioner presents here. In Sutton v. United Air Lines, Inc.,
No. 97-1943 (June 22, 1999), this Court held that "disability under
the Act is to be determined with reference to corrective measures."
Slip op. 15. See also Albertson's, Inc. v. Kirkingburg, No. 98-591 (June
22, 1999), slip op. 9 (noting that "mitigating measures must be taken
into account in judging whether an individual possesses a disability.").
The definition of "disability" in the ADA, 42 U.S.C. 12102(2),
is "drawn almost verbatim," Bragdon v. Abbott, 118 S. Ct. 2196,
2202 (1998), from the Rehabilitation Act. Compare 42 U.S.C. 12102(2) (ADA)
with 29 U.S.C. 706(8)(B) (Rehabilitation Act). Accordingly, there is no
reason to believe that the rule regarding mitigating measures would be any
different under the Rehabilitation Act. Thus, the Court has already rejected
petitioner's position that mitigating measures should not be taken into
account in determining the existence of a disability.
2. Petitioner contends (Pet. 12-15) that the Tenth Circuit erred by declining
to address his contention that the Postal Service failed to meet its affirmative
burden of accommodating those who are disabled. The "affirmative burden"
to which he refers appears to be the burden of extending to him what he
believes to be the "reasonable accommodation" of "perform[ing]
medical tests to confirm or deny [a physician's] opinion that [petitioner's]
epilepsy and the byproducts thereof are now under medical control, allowing
[petitioner] to perform the essential job functions." Pet. 13-14 (quoting
Pet. App. 20a). See also Pet. C.A. Br. 35 (stating claim as based on the
fact that petitioner "asked [the Postal Service] to accommodate his
disability during the application process by taking his epilepsy into account
as the cause of his prior poor work record").
The court of appeals did address this contention. It noted that petitioner
"argues that the Postal Service violated the Rehabilitation Act when
it failed to examine whether his past unfavorable work record was caused
by his disability and failed to evaluate his present medical condition."
Pet. App. 5a. The court of appeals explained that "[t]he jury heard
evidence and received instructions on [petitioner's] theory of his case,"
ibid., which consisted of his claim that his prior poor work performance
and other difficulties were the result of his disability. The jury, however,
rejected petitioner's theory. As the court of appeals noted, the jury found
that "[petitioner] was not qualified for the position or that the Postal
Service's hiring decision was not related to his disability." Ibid.*
There was no basis to overturn that finding.
3. Petitioner claims (Pet. 17-21) that the decision of the court of appeals
conflicts with the Second Circuit's decision in Teahan v. Metro-North Commuter
R.R., 951 F.2d 511, 517 (1991), cert. denied, 506 U.S. 815 (1992). Petitioner
contends that the circuits are divided concerning the standard governing
an employer's response to behavior that is a manifestation of a disability.
a. As petitioner points out, the majority of courts have held that an employer
may discharge an employee for misconduct, irrespective of whether that misconduct
was caused by a disability. See, e.g., Williams v. Widnall, 79 F.3d 1003,
1006-1007 (10th Cir. 1996); Newland v. Dalton, 81 F.3d 904, 906 (9th Cir.
1996); Maddox v. University of Tennessee, 62 F.3d 843, 848 (6th Cir. 1995).
Petitioner contends, however, that the Second Circuit adopted a somewhat
different approach in Teahan, holding that adverse action taken in response
to an employee's misconduct that is a manifestation of a disabling condition
constitutes discrimination on the basis of disability.
At least one court has suggested that Teahan need not be read as broadly
as petitioner reads it. In Crandall v. Paralyzed Veterans of America, 146
F.3d 894, 897 (D.C. Cir. 1998), the court of appeals expressed doubt as
to whether Teahan "can be read to endorse the general proposition that
if a disability causes poor job performance, and if the poor performance
causes dismissal, then the dismissal was 'by reason of' the disability."
Rather, the court held, "[i]t seems more probable that the court intended
merely to be sure that employers could not get off the hook by showing that
they bore no discriminatory animus against the disability itself, independently
of their attitude toward its manifestations." Ibid. Until the Second
Circuit clarifies its position, it cannot be concluded that there is a conflict
in the circuits on this point.
b. In any event, this case does not present an occasion to address the question
whether adverse action taken in response to an employee's misconduct that
is manifestation of a disability constitutes discrimination on the basis
of the disability. The district court instructed the jury that petitioner
had to prove that "[t]he fact that he had exhibited conduct that was
a product of a disability was a motivating factor in the Postal Service's
decision not to reemploy him." Pet. C.A. Br. App. 441. That instruction
closely resembles the rule that petitioner asserts was adopted in Teahan:
that an employer discriminates against a disabled person when the employer
takes adverse action that is motivated by conduct that is a manifestation
of the employee's disability. Because the jury resolved the factual disputes
in this case on the basis of instructions that embodied essentially the
legal rule that petitioner now states he desires, this case does not present
the question whether that rule is correct.
4. Finally, petitioner contends (Pet. 22) that the decision of the court
of appeals is "inconsistent with the rulings of this Court regarding
the affirmative duties of a federal government employer to reasonably accommodate
a handicapped person under the Rehabilitation Act." There is, however,
no disagreement among the parties in this case regarding whether the federal
government has an obligation to provide reasonable accommodations to a disabled
person. Indeed, the instructions informed the jury of the Postal Service's
obligations in this regard. The jury was instructed that "qualified
individual with a disability" means "an individual with a disability
who nevertheless can perform the essential functions of the employment position
he holds or desires, with or without a reasonable accommodation, and who
meets experience and education requirements of the position." Pet App.
14a (emphasis added). The same instruction went on to state that a Postal
Service regulation declaring an employee to be ineligible for reinstatement
if he or she has been fired for cause "does not override the Postal
Service's obligation under the Rehabilitation Act to give individualized
consideration to an applicant for reinstatement by an otherwise qualified
individual." Ibid.
The jury therefore was well aware of its task: to determine whether petitioner
could perform the functions of the job with reasonable accommodation, and
to determine whether the Postal Service gave proper consideration to his
application for reemployment. The jury simply reached a decision with which
petitioner disagrees. As the court of appeals held, there is no basis to
overturn the jury's verdict in this case.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney General
MARLEIGH D. DOVER
MATTHEW M. COLLETTE
Attorneys
AUGUST 1999
* It is true that the court of appeals stated, at the end of its opinion,
that it "decline[d] to address [petitioner's] claims that the Postal
Service failed to meet its affirmative burdens because the issue was raised
for the first time on appeal." Pet. App. 6a. In our view, the court
did address the issue that petitioner raises in his petition, and we cannot
determine what issue the court of appeals was declining to address. In any
event, if there were any issue that the court of appeals failed to address,
review by this Court would not be warranted to consider whether the court
of appeals correctly determined-in an unpublished opinion-that petitioner
had failed to present a particular issue in the district court.