On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 00-cv-03441) District Judge: Honorable Stanley S. Brotman.
The opinion of the court was delivered by: Ambro, Circuit Judge
Argued September 15, 2004
Before: ALITO, AMBRO and FISHER, Circuit Judges.
Arnie Armstrong appeals from an order of the United States District Court for the District of New Jersey denying his motion for a new trial on his claims of failure to accommodate his disability, as well as age discrimination and disability discrimination. Armstrong contends that the District Court erred in charging the jury regarding the elements of his claims and the parties' respective burdens of proof, and in approving jury interrogatories. He also challenges the Court's refusal to grant a retrial on his claims brought under the Fair Labor Standards Act. Although we are not persuaded by all of Armstrong's arguments, we reverse the District Court insofar as it denied his motion for a new trial on his failure to accommodate and disability discrimination claims, and remand for a new trial.
Armstrong began working at Burdette-Tomlin Memorial Hospital (the "Hospital")*fn1 in 1980, following several years of unemployment due to an earlier neck and back injury.*fn2 Within a year, Armstrong became a full-time shipping and receiving clerk.*fn3 Richard Kraus became Armstrong's immediate supervisor beginning in 1983 or 1984, and remained his supervisor for the duration of Armstrong's employment at the Hospital.
Armstrong alleges that he took the clerk position because it did not involve heavy lifting that would exacerbate his back and neck problems. The position required placing supplies on carts, pushing the carts and putting the supplies away. According to the Defendants, the position required clerks to be able to lift items weighing up to 150 pounds.*fn4 Armstrong received satisfactory or better evaluations and regular raises throughout his tenure at the Hospital. In 1998, his last full year there, he received a perfect attendance award.
Because of recurring back and neck pain, Armstrong missed work for several extended periods during his employment. He was out on disability for more than a month in 1993 (and his grievance challenging increased workloads failed). He had allegedly told his union representative that he could not physically perform the work. When he returned to work a month later, a doctor's note read that he could perform only "light duty" functions. Because the stock clerk's position was not a "light duty" job, the Hospital said Armstrong would either have to bid on other jobs or return to his stock clerk position with all the duties required of the position. Armstrong chose to return to his stock clerk position and its full duties.
Armstrong missed work again for several weeks after he re-injured his back and neck during an unsuccessful attempt to jump from a shelf onto a shaky stool in July 1996. Although Armstrong claims the injury resulted from this fall, the Defendants say that Armstrong continued to work without complaint until October 17, 1996, three months after the fall, and that Armstrong's sworn application for disability benefits revealed that he injured himself while working on his farm. Just as he did following the 1993 injury, Armstrong again returned to work with a doctor's note stating that he could not perform heavy lifting, pulling, or bending. But, when told by the Hospital that a distribution stock clerk was not a "light duty" position, and that he could therefore not return to his distribution stock clerk job, Armstrong produced a new note saying that he could work without restriction.
Armstrong alleges that he was harassed by Kraus and other Hospital workers following his return to work. Kraus, Armstrong contends, told him that he worked too slowly and should consider retirement or find another, less demanding, job. He allegedly told Armstrong, "[Y]ou're getting old, we need to have some young blood in the [H]ospital," and he could not have a "cripple" working in his department. Armstrong further claims that Kraus singled him out by increasing his workload and assigning another employee to check and document his work. Kraus denies these allegations and notes that Armstrong never complained to Kraus's supervisor of any harassment.*fn5
In addition to the claimed harassment by his immediate supervisor, Armstrong asserts that Ed Moylett (to repeat, the Hospital's Human Resources Director) told Armstrong that he (Moylett) would continually retaliate against Armstrong until he could be fired. This threat allegedly occurred after Armstrong refused to take early retirement. Moylett denies making these comments.
Beginning in 1997, the Hospital created a full-time position for a linen distribution clerk after it ended a contract with a private vendor. A linen distribution clerk injured his back in November 1998, creating an opening in his department. According to Armstrong, the linen job is considerably more strenuous than his stock clerk job because it requires employees repeatedly to bend down and pick up 20 to 30 pound bundles of linen from a five-foot-deep cart. The Defendants dispute Armstrong's claim that the linen job is more strenuous, noting that the lifting required for that job-up to 50 pounds-is considerably less than the 150 pounds required of distribution clerks, and that the linen cart has a low-cut front, 30 inches from the floor, so that short workers can easily reach the bundles.
Kraus posted the linen job opening for several weeks, but no one applied. Believing that he might be assigned to this job, Armstrong sent several letters to Kraus in December 1998, reminding Kraus about his chronic back problems and urging his supervisor not to assign him to linen work. The Hospital decided, however, that distribution stock clerks would share the linen clerk's functions when no linen clerk was on-duty, and Armstrong's union agreed, even after Armstrong filed a grievance to prevent transfer of these duties. Armstrong was told by Kraus that he would be required to perform the linen job for at least six months.*fn6
D. Requested Accommodation
Armstrong attempted to do the linen job, but after two weeks he required emergency room treatment. Armstrong brought a doctor's note back to work, stating that he could not perform excessive lifting, bending, pushing, or pulling because it was "aggravating an old condition." Armstrong claimed that the main problem was that the linen cart had tall sides, and reaching over the sides to lift the linen bundles re-aggravated his condition. Although witnesses for the Defendants testified that there is a low-cut front making it easier to remove linens, Armstrong disputes this contention.
According to Moylett, he advised Armstrong that he must be capable of delivering linen in order to perform the essential functions of the distribution stock clerk position. If he could not, Armstrong could apply for other Hospital jobs. Moylett contends that Armstrong never applied for other positions, and that Armstrong also declined an option to switch to the night shift.*fn7 Moylett further claims that he had Armstrong demonstrate the duties he performed to determine the particular problems he had delivering linen, and concluded that the only problem appeared to be that Armstrong did not want to do this work.*fn8
Armstrong says that he asked for his "old job" back because he could perform all of those duties without injury, but his request was refused. When Armstrong produced an additional doctor's note stating that he could not do excessive bending, lifting, pulling, or pushing, Moylett determined that Armstrong could not perform any essential function of a distribution stock clerk, even though Armstrong claimed the only task he could not perform was linen distribution, as the distribution stock clerk position required heavier lifting and more strenuous activity than the functions performed by a linen clerk.
On February 2, 1999, Moylett sent Armstrong a letter acknowledging that he had received the doctor's note, and that because Armstrong could not "perform the basic job functions of your Distribution Clerk position," Armstrong could: "1. Transfer to a mutually agreed upon position in the hospital that you will be able to satisfactorily perform, taking into account your physical limitations. This option was offered to you in May 1998 then again in January 1999. 2. Apply for temporary disability insurance or 3. Resign from the [H]ospital." Armstrong was given until February 8, 1999 to make a decision, after which he would be removed from the payroll based upon his "inability to perform the job functions of your position."
According to Armstrong, because no other jobs were available and since he could not have his "old job" back, he had no choice but to go out on disability. Moylett says that he met with Armstrong several times during the year that he was out on disability to discuss possible job options with him. But when Armstrong did not return to work within a year capable of performing the distribution stock clerk duties (including the linen clerk functions), he was formally terminated.
Armstrong filed suit against the Defendants in July 2000 for uncompensated overtime under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., and employment discrimination under the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. § 10:5-1, et seq. In April 2002, he won a $50,000 verdict for emotional distress and loss of enjoyment of life based upon the LAD hostile work environment claim against the Hospital and Kraus.*fn9 They filed a motion for a new trial. The Court granted the motion in August 2002 without restrictions or limitations on the scope of the new trial.*fn10
At the second trial, Armstrong filed written objections to the proposed charge and jury interrogatories. After they were denied, the jury found in favor of the Defendants on all claims. Armstrong now appeals.*fn11
Generally, we review jury instructions for abuse of discretion. United States v. McLaughlin, 386 F.3d 547, 551-52 (3d Cir. 2004). However, our review is plenary when the issue is whether the instructions misstated the law. Id. at 552. We must consider "whether the charge, 'taken as a whole, properly apprise[d] the jury of the issues and the applicable law.'" Smith v. Borough of Wilkinsburg, 147 F.3d 272, 275 (3d Cir. 1998) (quoting Limbach Co. v. Sheet Metal Workers Int'l Ass'n, 949 F.2d 1241, 1259 n.15 (3d Cir. 1991)). Harmless errors in parts of a jury charge that do not prejudice the complaining party are not sufficient grounds on which to vacate a judgment and order a new trial. Watson v. S.E. Penn. Transp. Auth., 207 F.3d 207, 221-22 (3d Cir. 2000).
We review a Court's formulation of jury interrogatories for abuse of discretion. Armstrong v. Dwyer, 155 F.3d 211, 214 (3d Cir. 1998). "The only limitation [on this discretion] is that the questions asked of the jury be adequate to determine the factual issues essential to the judgment." Id. at 216 (citations omitted). We also review for abuse of discretion a Court's determination of issues and claims to be re-tried following the grant of a new trial. Vizzini v. Ford Motor Co., 569 F.2d 754, 760 (3d Cir. 1977).
In order to prevail on his failure to accommodate claim under the LAD, Armstrong had to establish four elements: (1) he was disabled and his employer knew it; (2) he requested an accommodation or assistance; (3) his employer did not make a good faith effort to assist; and (4) he could have been reasonably accommodated. See Taylor v Phoenixville Sch. Dist., 184 F.3d 296, 317-320 (3d Cir. 1999); Tynan v. Vicinage 13, 798 A.2d 648, 657, 659 (N.J. Super. 2002).*fn12
Armstrong established the first element, as the jury explicitly decided in response to an interrogatory that he was disabled, and the Defendants acknowledge that Armstrong informed the Hospital of his condition. Armstrong also satisfied the second element, as it is undisputed that he expressed the need for accommodation. However, the jury never got to decide whether Armstrong satisfied the third and forth elements because it first found that he had not satisfied an additional element: that he requested a particular accommodation. Unfortunately, although the District Court required Armstrong to show this extra element, he was not required by law to do so. As Armstrong's failure to accommodate claim was denied because he was erroneously forced to demonstrate an element that New Jersey law does ...