By Ronald Miller, J.D. Finding that whether possessing a commercial driver’s license (CDL) was an essential function of an employee’s job was a factual question that was properly put before a jury, the Seventh Circuit affirmed a lower court judgment that the termination of the diabetic employee amounted to disability discrimination. Additionally, the appeals court disagreed with the employer’s contention that the district court’s jury instructions on this issue were inconsistent with federal regulations and Seventh Circuit precedent (Brown v. Smith, June 28, 2016, Williams, A.). The long-term employee developed diabetes and became unable to maintain his CDL. From an employment standpoint, that fact was irrelevant over the course of the next decade. However, several years after being promoted to a position that required a CDL, he was fired. The employee sued his municipal employer, alleging that his termination amounted to disability discrimination since possession of a CDL was not an essential function of his job. Additionally, the employee contended that the employer retaliated against him in response to his support of the losing candidate for mayor in violation of the First Amendment. The district court concluded that a genuine factual issue existed as to whether driving a bus and possessing a CDL was an essential function for street supervisors, and whether political loyalty was a prerequisite for the supervisor position. Thus, it denied the employer’s motion for summary judgment. Thereafter, a jury sided with the employee and awarded him damages. Essential job function. On appeal, the employer argued that the district court should have ruled as a matter of law that possession of a CDL was an essential job function. Alternatively, it claimed that the district court erred in instructing the jury about the essential-function inquiry, and in concluding that the employee adequately mitigated his damages. The principal dispute here was whether the district court should have resolved the "essential function" question (instead of the jury), and whether time spent driving a bus while possessing a CDL is a relevant factor. The employer insisted that the essential function inquiry was a question of law for the district court, since the job description for the employee’s street-supervisor position "establishes—as a matter of law—that the City considers the CDL requirement to be an essential job function." However, the Seventh Circuit disagreed. Rather, the appeals court concluded that the essential function inquiry was a factual question, not a question of law. A "question of law" typically concerns "the meaning of a statutory or constitutional provision, regulation, or common law doctrine rather than … whether the party opposing summary judgment had raised a genuine issue of material fact." Because the essential-function inquiry is a factual question that goes to the sufficiency of the evidence, it cannot be preserved for appellate review after trial solely with a summary judgment motion; rather, the complaining party must file a post-verdict motion under Rule 50(b). In this instance, because the employer failed to file such a motion here, it waived its bid to win judgment as a matter of law on this ground. At any rate, pointed out the appeals court, there was ample evidence to support the jury’s conclusion that having a CDL was not an essential function. Here, the employee’s supervisor testified that he knew he did not have a CDL when he became a street supervisor, and that driving buses was not a key responsibility for supervisors. Further, past incumbents of the position performed the job without needing to drive a bus. Additionally, replacement bus drivers could be generally secured within 10 minutes. Thus, a CDL was not an essential job function. Jury instruction. The employer also contended that the district court erred by instructing the jury that, in determining whether possession of a CDL was an essential function, it could consider "the amount of time spent on the job performing the function in question." However, the employer conceded that the applicable regulation unambiguously stated that evidence of whether a particular function is essential includes time spent performing the function, 29 C.F.R. Sec. 1630.2(n)(3). The employer also pointed to the Seventh Circuit’s model jury instruction concerning essential functions, which it claimed was silent regarding the amount of time spent performing job functions. Because no single factor enumerated in Sec. 1630.2(n) can comprise the entire analysis, the district court did not abuse its discretion in instructing the jury to consider the time spent driving buses in evaluating the essential function. Mitigation of damages. Finally, the appeals court rejected the employer’s contention that the district court erred in awarding damages to the employee because he failed to take reasonable steps to mitigate his losses. The employer failed to meet its burden. While it faulted the employee for failing to seek any employment at other local transit companies, it admitted that it had the only bus company in town. Nor did it show that there were other transit companies within a reasonable driving distance. Further, the fact that the employee started his own company ignored the fact that "self-employment, if reasonable, counts as permissive mitigation."
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