### I n the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 16

- 1344

B IAGIO S TRAGAPEDE , Plaintiff

- Appellee
,

v.

C ITY OF E VANSTON , I LLINOIS , Defendant

- Appell ant

.

____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division

. No. 12 C 08879

— Edmond E. Chang
, Judge

.

____________________
A RGUED S EPTEMBER 12, 2016

— D ECIDED J ULY 31, 2017

____________________

Before W OOD , Chief Judge
, and E ASTERBROOK and S YKES , Circuit Judges

. S YKES , Circuit Judge

. Biagio Stragapede worked in water services for the City of Evanston for 14 years . In 2009 he suffered a traumatic brain injury at home. T he City placed him on a temporary leave of absence during his recovery and rehabilitation . When h e was medically cleared to return
to work
, Stragapede resumed full

- time employment with the City . A fter just a few weeks
, however, the City again placed2 No. 1 6

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him on administrative leave a nd later terminated his e mployment. Stragapede sued for violation of the Americans with Disabilities Act (“ADA”)
, 42 U.S.C. § § 12101 et seq. , cla iming that the City discriminated against him based on his disability.

After a week long trial, the jury found t he City liable and awarded $225,000 in damages . The judge then held an evidentiary hearing on the issue of equitable remedies and concluded that Stragapede was entitled to backpay plus interest from the date he was fired until the time of jud gment. The City moved for judgment as a matter of law, a new trial, and remittitur. All three motions were denied , and final judgment was entered for Stragapede

. The City attacks the judgment in several respects. First, the City challenges the denial of its motion for judgment as a matter of law , arguing that Stragapede was not a qualified person under the ADA because he was unable to perform the essential functions of his job

. A lternative ly , t he City argue s that even if Stragapede w as qualified
, he posed a direct threat to himself and to others , which is a statutory defense to liability

. Finally, t he City argues that the judge incorrectly calculated the backpay award

. We reject these arguments and affirm

. I. Background

From 1996 to 2010
, Stragapede was employed as a water

service s worker for the City of Evanston . The job entailed a variety of tasks , including finding leaks, testing water pre ssure, and replacing water meters. In September 2009 Stragapede suffered a traumatic brain injury at home . T he City placed him on a leave of absenceNo. 1 6

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while he underwent rehabilitation

. Before allowing Stragapede to return to work, t he City required an e valu ation by its occupational healthcare provider . The healthcare provider referred Stragapede to Dr. Zoran Grujic for a neurological assessment. Dr. Grujic e xamin ed Stragapede and advised t he City t hat he was cap able of return ing to work

. The doctor suggest ed , however, that the City prepare a work trial to test Stragapede’s ability to perform the daily functions of hi s job in the field

. From June 2 through June 4,
t he City gave Stragapede a three

- day work trial
, which he passed. O n June 7 the City reinstated Stragapede to full

- time employment. In anticipation of Stragapede’s return to work
, t he City made two accommodations for him : H e was permitted to be off

- task to consult with his supervisors if he had any que stions, and he could use a map, pen and paper, and a tape recorder as ne eded to perform his duties

. From June 7 until June 22, Stragapede appeared to do his job without much trouble.

B eginning on Wednesday, June 23
, however, the City n oticed some worrisome developments that continued over the following week

. On that day Stragapede requested assi stance to change out a water meter. The next day a c ity e mployee observed Stragapede driving through an intersection while looking down at his lap ; t he light was green
, no pede strians were present , and his momentary inattention did not result in an accident

. On Friday Stragapede s pent two hours at a job site inst all ing a meter but was unable to complete the task

. The following Monday Stragapede mistakenly went to the wrong location

— Green Bay Road rather than Gross Point Road

— f or a “ JULIE locate ,” which involves locating4 No. 1 6

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and marking obscured water mains and sewer l ines

. On Wednesday Stragapede had another directional mishap, arriving at Colfax Place instead of Colfax Street for a water
turn

- on

. F inally
, o n Thursday , July 1, Stragapede tripped on a set of steps and hurt his toe s

. B ased on these incidents
, on July 2 t he City again placed Stragapede on administrative leave a nd relayed its concerns to Dr. Grujic . He responded with two letters

— one in July and one in September

. In the July letter, Dr. Grujic concluded that these incidents were related to Stragapede’s brain injury. In the September letter, Dr. Grujic wrote more pointedly that the incidents identified by the City rendered Stragapede unable to perform the essential functions of his job. On September 24 the City terminated Stragapede’s employment. Stragap ede sued the City alleging that he was fired b ecause of his disability in violation of the ADA. A jury r eturned a verdict for Stragapede and awarded $225,000 in damages. The judge then turned to the issue of equitable remedies, concluding that Straga pede w as entitled to bac kpay plus interest from the date he was fired until the time of judgment. The judge did not award front pay. The jury’s damages award and the judge’s backpay calculation brought the total award to $354,070.72

. The City moved for a new tri al under Rule 59, judgment

as a matter of law under Rule 50(b), and remittitur and amendment of the judgment under Rule 59(e). The judge denied all three motions and entered judgment for Stragapede

.No. 1 6

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II. Analysis The City challenges the deni al of its motion s for jud gment as a matter of law and for remitt itur and amendment of the judgment.

A. Judgment as a Matter of Law

We review de novo the district court’s denial of the City’s motion for judgment as a matter of law. EEOC v. Mgmt. Hosp

. of Racine, In c. , 666 F.3d 422, 431 (7th Cir. 2012). The scope of review is limited to whether the evidence presented at trial is sufficient to support the verdict when viewed in the light most favorable to the non moving party. Id

. We will reverse only if “on the basis of the admissible evidence, no rational jury could have found for the prevailing party.” Id

. (quot ation marks omitted)

. 1. Essential Functions The ADA prohibits discrimination against a qualified i ndividual with a disability on the basis of th at disability. Basith v. Cook County , 241 F.3d 919, 926

– 27 (7th Cir. 2001). A qualified individual is one “who, with or without reasonable accommodation, could perform the essential functions of the employment position. ” Id. at 927.

The parties do not dispute the essential functions of a water

- service s worker for the City of Evanston

. Nor does the City point to any particular function that Stragapede wa s incapa ble of performing . I nstead , the City argues that Stragapede was unable to do the job in general and isolates three categories of evidence to support this claim : Dr. Grujic’s testimony
, the testimony of Stragapede’s coworkers
, and Stragapede’s attendance record.6 No. 1 6

- 1 3 4 4

Dr. Grujic e xamined Stragapede only once
, in the spring of 2010 in conn ection with his return to work

. Based on this
assessment , the doctor advised the City by letter dated April 6 t hat Stragapede should be able to re sume work. A fter Stragapede returned to work, however, the City sought a reevaluation and sent information to Dr. Gruj ic related to Stragapede’s performance on the job. Based on the info rmation he received from the City
, Dr. Grujic wrote a second letter in July 2010 advising t hat the work difficulties ident ified by the City were related to Stragapede’s brain injury

. Finally, in a third letter in September 2010
, Dr. Grujic s aid that Stragapede was unable to perform the essential fun ctions of his job. But he hedged his opinion, noting that it was based entirely on information provided by the City

. It’ s t he jury ’s job to weigh conflicting evidence , make credibility determinations, an d evaluate the trial record based on its collective common sense

. See U nited States v. Bloch , 718 F.3d 638, 643 (7th Cir. 2013) (“[T]he law relies on the collective common sens e and human experience of the jury.”). The jury may have given Dr. Grujic’s April opinion

more weight than his later opinions ; t he latter two were based entirely on information supplied by the City , a nd the jurors may have questioned whethe r the information was accurate or complete. See Cooper v. Carl A. Nelson & Co.
, 211 F.3d 1008, 1021 (7th Cir. 2000) (pointing out that the jury might disbelieve a doctor’s testimony when an opposing party “elicited testimony that [the doctor] had really done no investigation”). I t was not ir rational for the jury to d iscount Dr. Grujic’s September opinion that Stragaped e was un able
to perform the esse ntial functions of his job

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The City next points to testimony by Vicki Biner, one of Stragapede’s s upervisor s . Biner testified that Stragapede could not complete his meter

- installation and other water

services work

. But Biner had never observed Stragapede in the field. In contrast, Stragapede’s direct s upervisor
, Tim Bartus, observe d Stragapede in the field a nd testified that he was capable of install ing meters perfectly

. In a ddition , Bartus performed three to four spot checks on Stragapede’s JULIE work and found it accurate each time

. T he jury wa s charged with sort ing through these conflicting reports and deciding how much weight, if any, each deserved

. Finally, the City c ontends that Stragapede was so fr equently absent from his job t hat he was unable to fu lfill even its most basic function

— regular attendance. To support this position
, however, t he City counts as absences from work Stragapede’s returns to the office to ask questions . It’ s true that the ADA does not protect persons who have erratic or unexplained absences from work
, EEOC v. Yellow Freight Sys

. , Inc. , 253 F.3d 943, 948 (7th Cir. 2001), but we have “not establish[ed] a hard

- and

- fast rule that no absences from work need be tolerated
, ” i d. at 949 (quoting Waggoner v. Olin Corp. , 169 F.3d 48 1, 48 5 (7th Cir. 1999) )

. The evidence shows that Stragapede had to return to the office three or four times to seek assistance with his computer login and password

. The jury could reasonably conclude that these infrequent and temporary office trips should not count as absences from work

. 2. Direct Threat The ADA provides a defense if the employee ’s disability poses “a direct threat to the health or safety of other ind ividuals in the workplace.” 42 U.S.C. § 12113( b ). A “direct8 No. 1 6

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threat” i s “a significant risk to the health or safety of others that cannot be eliminated by a reasonable accommodation.” Id. § 12111(3). F our factors determine whether the risk is significant: “ (1) the duration of the risk; (2) the nature and severity of the pote ntial harm; (3) the likelihood that pote ntial harm will occur; and (4) the imminence of potential harm. ” Emerson v. N. States Power Co. , 256 F.3d 506, 514 (7th Cir. 2001).

The City’s primary argument is that it does not matter whether Stragapede actually posed a direct threat to health or safety ; it’s enough that the City thought he was a direct threat. The Supreme Court disagrees : “ T he ADA’s direct threat provision stems from the recognition

... of the i mportance of prohibiting discrimination against indivi duals with disabilities while protecting others from significant health and safety risks.” Bragdon v. Abbott , 524 U.S. 624, 6 49 (1998). Bragdon holds that an employer ’s “belief that a signi ficant risk existed, even if maintained in good faith, would
not re lieve him from liability.” Id. Rather, a “direct threat” defense is based solely on “medical or other objective ev idence.” Id. The medical and objective evidence here wa s mixed. T o support the defense
, t he City relie d on testimony from Stragapede’s supervisor, the incident in which Stragapede took his eyes off the road while dr iving through an interse ction, the incident s in which Stragapede mistakenly reported
to the wrong location , and Dr. Grujic’s opinion

. T he jury was free to disco unt this evidence or to treat it as insufficient to support an inference that Stragapede posed an actual threat to his own safety or the safety of others

. St ragapede testified in general terms that he followed safetyNo. 1 6

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protocols

. He also testified that the i ntersection incident occurred only because he was reaching to grab a clipboard that had bounced off the seat and fallen

. He noted, more over, that the light was green and no pedestrians were pr esent. Reasonable jurors could accept this explanation and reject the City’s argument that the incident supports an inference that Stragapede was a safety threat. T he jury also might reasonably have concluded that the two directional mishap s w ere not a safety iss ue at all . Lastly, as we’ve noted, the jury was free to discount Dr. Grujic ’s July and September opinion s , which relied entirely on the City’s characterization of Stragapede’s performance.

We take the City at its word that “not just anyone” can do Stragape de’s job . But the more focused i nquiry is whet her Stragapede could do it with out significant risk to health or safety. It was reasonable for the jury to conclude that he could. The City also argues that the judge wrongly excluded e vidence that Strag a pede w as involved in an auto accident before his head injury . The judge ruled that the earlier accident was impermissible character evidence under Rule 404(b) of the Fed eral R ule s of Evid ence

. T h at may have been a mistake; th e judge faile d to consider whether chara cter was an element of a claim or defense. When that is the

case , evidence of that character trait may be admissible

. M C C ORMICK ON E VIDENCE § 187 ( Kenneth S. Broun ed. , 7th ed. 2016 ) . The City offered the preinjury accident as evidence that Stragapede ’s driving posed a safety risk
, an aspect of its direct

- threat defense

. E ven if the judge wrongly exclu ded this evidence, the e rror is harmless if “ the record indicates the trial result would10 No. 1 6

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have been the same. ” Lewis v. City of Chi cago Police Dep ’ t , 590 F.3d 427, 440 (7th Cir. 2009). The City ’s direct

- threat defense was predominantly based on Dr. Grujic’s opinion s ; the single episode of inattentive driving did not loom large. The evidentiary erro r, if there was one, was harmless.

3. Undue Hardship

The Cit y makes a last

- ditch argument that an accomm odation suggested by Dr. Grujic

— that a coworker should observe Stragapede’s work

— would have been an undue hardship to its water

- services operation . The glaring pro blem with this argument is that undue

- hardship an alysis is appropriate only when the court finds that an accommod ation is necessary. See 42 U.S.C. § 12112(b)(5)(A) ( stat ing that
to “discriminate against a qualified individual on the basis of disability” include s “not making reasonable accommod ations to the known physical or mental limitations of an otherwise qualified individual

... unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the busin ess of such covered entity”). The jury’s determination that Stragapede was capable of performing the e ssential functions of his job did not depend on the presence of a ride

- along companion. The question of undue hardship is beside the point

. B. Remittitur of the Backpay Award The City’s final arg ument is a challenge to the judge’s d enial of its motion to amend the backpay award under Rule 59(e). We review the denial of a Rule 59(e) motion for abuse of discretion. Bu r ritt v. Ditlefsen , 807 F.3d 239, 252 (7th Cir. 2015). A mend ment of the judgment is proper only when “the movant presents newly discovered evidence that wasNo. 1 6

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not available at the time of trial or if the movant points to evidence in the record that clearly establishes a manifest error of law or fact.” In re Prince , 85 F.3d 314, 324 (7th Ci r. 1996). A manifest error occurs “when the district court commits a wholesale disregard, misapplication, or failure to recognize controlling precedent.” Burritt , 807 F.3d at 253 (internal quotation mark s omitted). A plaintiff who wins a favorable verdict on an ADA claim is presumpti vely entitled to backpay

. David v. Caterpillar, Inc.
, 324 F.3d 851, 865 (7th Cir. 2003). The plaintiff must submit evidence to support his calculation of backpay
, Hutchison v. Amateur Elec. Supply, Inc. , 42 F.3d 1037, 1044 (7th Cir. 1994)
, and t he burden then “shifts to the defendant to show that the [employee ] failed to mitigate damages or that damages were in fact less than [ he ] asserts , ” i d. The City does not contest the initial sum Stragapede claimed . Instead, the City

con cen trates its argument on a claimed failure to mitigate damages.

T

o prove a failure to mitigate in this context
, the emplo yer must show that “ (1) the [employee] failed to exercise reasonable diligence to mitigate his damages, and [that] (2) there was a reasonable likelihood that the [employee] might have found comparable work by exercising reasonable diligence .” Fleming v. County of Kane, 898 F.2d 553, 560 (7th Cir. 1990) (emphase s omitted)

. The City argues that we should abandon this two

- par t framework in favor of an approach endorsed by the Second Circuit , which eliminate s the employer’s burden t o prov e the availability of other comparable employment

. See Greenway v. Buffalo Hilton Hotel
, 143 F.3d 47, 54 (2d Cir. 1998). We decline to do so f or two

reasons.12 No. 1 6

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First, our framework for evaluating mitigation questions is longstanding and has been repeatedly reaffirmed

. See Brown v. Smith , 827 F.3d 609
, 616 (7th Cir. 2016) ; EEOC v. Ilona of Hungary, Inc. , 108 F.3d 1569, 1581 (7th Cir. 1996) ; Hutchison , 42 F.3d at 1044 ; EEOC v. Gurnee Inn Corp. , 91 4 F.2d 815, 818 (7th Cir. 1990); United States v. City of Chicago
, 853 F.2d 572, 578 (7th Cir. 1988); Wheeler v. Snyder Buick , Inc.
, 794 F.2d 1228, 1234 (7th Cir. 1986)

. Second, even in a prec edential vacuum, our two

- part approach best comports with the concept of mitigation in this context. An employee can mitigate his damages only if it i s within his power to reduce the harm he suffered. The plaintiff’s backpay award should not be reduced based on fa ilure to mitigate if reasonably diligen t effort would not have been likely to produce comp arable employment. T he judge faithfully applied circuit
prec edent in declining to reduce the backpay award for failure to mitigate. There was no manifest error.

A FFIR MED

.