In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 16-1344

BIAGIO STRAGAPEDE,

Plaintiff-Appellee,

v.

CITY OF EVANSTON, ILLINOIS,

Defendant-Appellant.

____________________

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 12 C 08879 — Edmond E. Chang, Judge.

____________________

ARGUED SEPTEMBER 12, 2016 — DECIDED JULY 31, 2017

____________________

Before WOOD, Chief Judge, and EASTERBROOK and SYKES,

Circuit Judges.

SYKES, 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. The City placed 

him on a temporary leave of absence during his recovery 

and rehabilitation. When he was medically cleared to return

to work, Stragapede resumed full-time employment with the 

City. After just a few weeks, however, the City again placed
2 No. 16-1344

him on administrative leave and later terminated his employment. Stragapede sued for violation of the Americans 

with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., 

claiming that the City discriminated against him based on

his disability.

After a weeklong trial, the jury found the 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 judgment. 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. Alternatively, the City argues

that even if Stragapede was qualified, he posed a direct 

threat to himself and to others, which is a statutory defense 

to liability. Finally, the 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 waterservices worker for the City of Evanston. The job entailed a 

variety of tasks, including finding leaks, testing water pressure, and replacing water meters.

In September 2009 Stragapede suffered a traumatic brain 

injury at home. The City placed him on a leave of absence
No. 16-1344 3

while he underwent rehabilitation. Before allowing 

Stragapede to return to work, the City required an evaluation by its occupational healthcare provider. The healthcare 

provider referred Stragapede to Dr. Zoran Grujic for a 

neurological assessment. Dr. Grujic examined Stragapede 

and advised the City that he was capable of returning to 

work. The doctor suggested, however, that the City prepare

a work trial to test Stragapede’s ability to perform the daily 

functions of his job in the field. From June 2 through June 4, 

the City gave Stragapede a three-day work trial, which he 

passed. On June 7 the City reinstated Stragapede to full-time 

employment.

In anticipation of Stragapede’s return to work, the City 

made two accommodations for him: He was permitted to be 

off-task to consult with his supervisors if he had any questions, and he could use a map, pen and paper, and a tape 

recorder as needed to perform his duties. From June 7 until 

June 22, Stragapede appeared to do his job without much

trouble.

Beginning on Wednesday, June 23, however, the City noticed some worrisome developments that continued over the 

following week. On that day Stragapede requested assistance to change out a water meter. The next day a city employee observed Stragapede driving through an intersection 

while looking down at his lap; the light was green, no pedestrians were present, and his momentary inattention did not 

result in an accident. On Friday Stragapede spent two hours 

at a job site installing 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—for a “JULIE locate,” which involves locating 
4 No. 16-1344

and marking obscured water mains and sewer lines. On 

Wednesday Stragapede had another directional mishap,

arriving at Colfax Place instead of Colfax Street for a water 

turn-on. Finally, on Thursday, July 1, Stragapede tripped on 

a set of steps and hurt his toes.

Based on these incidents, on July 2 the City again placed 

Stragapede on administrative leave and 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.

Stragapede sued the City alleging that he was fired because of his disability in violation of the ADA. A jury returned a verdict for Stragapede and awarded $225,000 in 

damages. The judge then turned to the issue of equitable 

remedies, concluding that Stragapede was entitled to backpay 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 trial 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. 16-1344 5

II. Analysis

The City challenges the denial of its motions for judgment as a matter of law and for remittitur 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, Inc., 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 nonmoving 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. (quotation marks omitted).

1. Essential Functions

The ADA prohibits discrimination against a qualified individual with a disability on the basis of that 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-services worker for the City of Evanston. Nor does the 

City point to any particular function that Stragapede was 

incapable of performing. Instead, 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. 16-1344

Dr. Grujic examined Stragapede only once, in the spring 

of 2010 in connection with his return to work. Based on this 

assessment, the doctor advised the City by letter dated 

April 6 that Stragapede should be able to resume work. After 

Stragapede returned to work, however, the City sought a 

reevaluation and sent information to Dr. Grujic related to 

Stragapede’s performance on the job. Based on the information he received from the City, Dr. Grujic wrote a second 

letter in July 2010 advising that the work difficulties identified by the City were related to Stragapede’s brain injury.

Finally, in a third letter in September 2010, Dr. Grujic said

that Stragapede was unable to perform the essential functions of his job. But he hedged his opinion, noting that it was 

based entirely on information provided by the City. 

It’s the jury’s job to weigh conflicting evidence, make 

credibility determinations, and evaluate the trial record

based on its collective common sense. See United States v. 

Bloch, 718 F.3d 638, 643 (7th Cir. 2013) (“[T]he law relies on 

the collective common sense and human experience of the 

jury.”). The jury may have given Dr. Grujic’s April opinion 

more weight than his later opinions; the latter two were 

based entirely on information supplied by the City, and the 

jurors may have questioned whether 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”). It was not irrational for the jury to discount

Dr. Grujic’s September opinion that Stragapede was unable 

to perform the essential functions of his job.
No. 16-1344 7

The City next points to testimony by Vicki Biner, one of 

Stragapede’s supervisors. Biner testified that Stragapede 

could not complete his meter-installation and other waterservices work. But Biner had never observed Stragapede in 

the field. In contrast, Stragapede’s direct supervisor, Tim 

Bartus, observed Stragapede in the field and testified that he

was capable of installing meters perfectly. In addition, Bartus 

performed three to four spot checks on Stragapede’s JULIE 

work and found it accurate each time. The jury was charged 

with sorting through these conflicting reports and deciding 

how much weight, if any, each deserved.

Finally, the City contends that Stragapede was so frequently absent from his job that he was unable to fulfill even 

its most basic function—regular attendance. To support this 

position, however, the 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,” id. at 949 (quoting Waggoner v. Olin 

Corp., 169 F.3d 481, 485 (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 individuals in the workplace.” 42 U.S.C. § 12113(b). A “direct 
8 No. 16-1344

threat” is “a significant risk to the health or safety of others 

that cannot be eliminated by a reasonable accommodation.” 

Id. § 12111(3). Four factors determine whether the risk is 

significant: “(1) the duration of the risk; (2) the nature and 

severity of the potential harm; (3) the likelihood that potential 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: “The ADA’s direct 

threat provision stems from the recognition ... of the importance of prohibiting discrimination against individuals 

with disabilities while protecting others from significant 

health and safety risks.” Bragdon v. Abbott, 524 U.S. 624, 649

(1998). Bragdon holds that an employer’s “belief that a significant risk existed, even if maintained in good faith, would 

not relieve him from liability.” Id. Rather, a “direct threat” 

defense is based solely on “medical or other objective evidence.” Id.

The medical and objective evidence here was mixed. To 

support the defense, the City relied on testimony from

Stragapede’s supervisor, the incident in which Stragapede 

took his eyes off the road while driving through an intersection, the incidents in which Stragapede mistakenly reported 

to the wrong location, and Dr. Grujic’s opinion. 

The jury was free to discount 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. 

Stragapede testified in general terms that he followed safety 
No. 16-1344 9

protocols. He also testified that the intersection incident 

occurred only because he was reaching to grab a clipboard 

that had bounced off the seat and fallen. He noted, moreover, that the light was green and no pedestrians were present. Reasonable jurors could accept this explanation and 

reject the City’s argument that the incident supports an 

inference that Stragapede was a safety threat. The jury also 

might reasonably have concluded that the two directional 

mishaps were not a safety issue at all. Lastly, as we’ve noted, 

the jury was free to discount Dr. Grujic’s July and September 

opinions, 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 Stragapede’s job. But the more focused inquiry is whether Stragapede could do it without 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 evidence that Stragapede was 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 Federal Rules of Evidence. That may have 

been a mistake; the judge failed to consider whether character was an element of a claim or defense. When that is the 

case, evidence of that character trait may be admissible.

MCCORMICK ON EVIDENCE § 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.

Even if the judge wrongly excluded this evidence, the error is harmless if “the record indicates the trial result would 
10 No. 16-1344

have been the same.” Lewis v. City of Chicago Police Dep’t, 

590 F.3d 427, 440 (7th Cir. 2009). The City’s direct-threat 

defense was predominantly based on Dr. Grujic’s opinions; 

the single episode of inattentive driving did not loom large. 

The evidentiary error, if there was one, was harmless.

3. Undue Hardship

The City makes a last-ditch argument that an accommodation 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 problem with this argument is that undue-hardship analysis is 

appropriate only when the court finds that an accommodation is necessary. See 42 U.S.C. § 12112(b)(5)(A) (stating that 

to “discriminate against a qualified individual on the basis of 

disability” includes “not making reasonable accommodations 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 business of such 

covered entity”). The jury’s determination that Stragapede 

was capable of performing the essential 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 argument is a challenge to the judge’s denial 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. Burritt v. Ditlefsen, 807 F.3d 239, 252 (7th 

Cir. 2015). Amendment of the judgment is proper only when 

“the movant presents newly discovered evidence that was 
No. 16-1344 11

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 Cir. 

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 marks omitted).

A plaintiff who wins a favorable verdict on an ADA claim 

is presumptively 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 the 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,” id. The City does not 

contest the initial sum Stragapede claimed. Instead, the City 

concentrates its argument on a claimed failure to mitigate 

damages.

To prove a failure to mitigate in this context, the employer 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) (emphases omitted). The City argues that we 

should abandon this two-part framework in favor of an

approach endorsed by the Second Circuit, which eliminates

the employer’s burden to prove 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 for two 

reasons.
12 No. 16-1344

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., 914 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 precedential vacuum, our two-part approach best comports with 

the concept of mitigation in this context. An employee can 

mitigate his damages only if it is within his power to reduce 

the harm he suffered. The plaintiff’s backpay award should 

not be reduced based on failure to mitigate if reasonably 

diligent effort would not have been likely to produce comparable employment. The judge faithfully applied circuit 

precedent in declining to reduce the backpay award for 

failure to mitigate. There was no manifest error.

AFFIRMED.