## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-30989

Summary Calendar

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### FRANK C. JORDAN,

Plaintiff-Appellee,

VERSUS



### CITY OF BATON ROUGE,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Middle District of Louisiana

_________________________

August 3, 1999

Before JOLLY, SMITH, and WIENER,

Circuit Judges.

JERRY E. SMITH, Circuit Judge: *

The City of B a ton Rouge appeals a final

judgment entered against it on Frank Jordan's

Americans with Disabilit ies Act (“A DA”)

claim. Finding no reversible error, we affirm.

I.

Jordan served as a B a ton Rouge police

officer from February 1978 to May 1987. His

tour of duty ended when he took disability

retirement on account of stress-related asthma

that began to develop in 1985. Despite efforts

to keep it und e r control, he suffered from

severe asthma problems. He was forced to be

inactive, which resulted in a substantial weight

gain. He could not even walk to the mailbox in front of his home.

Jordan u sed substantial amounts of

medication in an attempt to control the

asthma. Over time, he began to succeed. By

1992, he had lost weight, was able to walk and

run, and took karate classes. Because he felt

he had his asthma under control, he decided to

seek reinstateme nt . He underwent five

separate medical exams, with each examiner

concluding that he was fit to return to work

and that his asthma no longer was a disabling

condition.

In August 1992, Jordan applied for

rei n statement. He first unsuccessfully

attempted to meet with

Chief Phares, then

applied to the Civil Service Board, submitting

documentation from his medical examinations

to support reinstatement. Soon thereafter, the

Civil Service Board's secretary info r med

Jordan that he needed to obtain clearance from

the Retirement Board before the Civil Service

Board could consider his application. He did

not.

In October 19 92, Jordan voluntary * Pursuant to 5 T H C IR

. R. 47.5, the court has

determined that this opinion should not be

p ublished and is not precedent except under th e

limited circumstances set forth in 5 T H C IR

. R.

47.5.4.

### 2

submitted to a sixth

medical examination,

ad m inistered by Dr. Marla Albanes, who

provides services to the city, including fitnessfor-duty examinations for police officers.

Albanes also cleared him for work. When the

Civil Service Board met later that month, it

determined that Jordan had to seek review

fr o m the Retirement Board before it could

hear his application; Jordan did not do so.

In November 1992, Jordan a ppeal ed the

Civil Service Board's decision to a state court,

which reversed the Board and ordered i t to

decide whether he should be allowed to return

to work. In May 1993, the Civil Service

Board directed Phares immediately to arrange

for Jord an's evaluation by a physician and

psychiatrist to determine whether he was able

to return to work. Two days l ater, Jordan

began working again.

The city has given Jordan full back pay, and

he continues to serve as an officer. In this suit,

he seeks general damages (emotional distress,

mental pain and suffering) and attorney's fees.

He testified that, while awaiting the city's

deci sio n, he had to perform menial jobs to

support himself. This was an emotionally

difficult time and led to his divorce. He spent

$2,000 to renew his commercial truck-driving

license and spent time hauling heavy

equipment. He also worked for a hardware

store and a forklift business, where he earned

little more than the minimum wage.

When reinstated, Jordan believed he could

do as much as any other offi cer. He had no

problem performing his job. He testified that

no other officers who applied for reinstatement

had to go through the Retirement Board as he

was instructed to do.

Lieute nant Vernet Johnson of the Police

Department was the chairma n of the Civil

Service Board when Jordan applied. Johnson

said t he board had no involvement in hiring

and firing; it merely heard appeals of personnel

decisions. Most of the board's members were

against reinstating Jordan. He opposed

reinstatement because he “didn't have proof

that the medical problems he had [were] resolved.”

Johnson acknowledged requesting that the

chief have Jordan medically evaluated. Only

when pressed on cross-examination did he add

that t h e board's position was that Jordan first

h ad to go to the Reti rem

ent Board. Johnson

recalled one other officer who had taken a

medical retirement and sought to ret u rn;

Johnson believed that he too was reinstated by

a court after the board would not authorize his

return. The parties stipulated that Phares

believed Jordan had to apply to the Retirement

Board.

The City moved for judgment as a matter of

law, contending that Jordan had not proven he

had, or that the city regarded him as having, a

disabilit y. It also argued that Jordan had sued

the wrong entity; any complaints were

attributable to the Board, and any actions and

percep t ions were its responsibility. It

characterized the situation as a dis pute over procedure, which did not constitute an adverse

employment action. It also argued that any

perception of disabilit

y Jordan had proved

demonstrated only a limit ed perception and

that he was not perceived as being

substantially limit

ed in the major life activity of

working. Finally, the city contends Jordan had

a duty to mitigate his damages by appear ing

before the Retirement Board.

Jordan responded that the city did perceive

him as disabled and that the requirement that

he go before the Retirement Board

disc riminated against him on account of that

perception. He also averred that the city

waived any argument that it is not responsible

for the Civil

Service Board by failing to raise

it in its answer, or even in subsequent

pleadings. Finally, because the cit y is his

employer, it was responsible for the boa rd's

actions.

The court, t hrough a magistrate judge,

agreed and entered judgment for Jordan. The

City appeals, raising essentially the same

arguments: (1) It is not responsible for the

b oard; (2) no evidence was adduced that the

“employer” perceived him as disabled ; and

(3) Jordan did not suffer an adverse

### 3

employment action at the city's hands.

II.

In reviewing judgments on the merits from

civil bench trials, we review conclusions of law

de novo and conclusions of fact for clear error.

See Read v. United States Dep't of Treasury

, 169 F.3d 243, 247 (5th Cir . 1999); North

Alamo Water Supply Cor p. v. City of San

Juan

, 90 F.3d 910, 914-15 (5th Cir. 1996).

“If the district court's account of the evidence

is plausible in light of the record viewed in it s entirety, we may not reverse eve n if we are

convinced that, had we been sitting as the trier

of fact, we would have weighed the evidence

differently.” I

d

. at 9 15. Where, as here, the

facts are essentially uncontested, however,

“our review of the judgment is plenary.”

Read , 169 F.3d at 247.

III.

A.

The city argue s that under state law, the

board is an independent entity for which it

cannot be held responsible; Jordan should have

sued the board instead of the city. We do not

consider this argument. As the court noted,

and the city does not dispute, failure to sue the

proper part y must be raised as an affirmative

defense; if not, it is waived unless the court

gran t s leave to amend the pleadings. S ee

Bok unew icz v. Purolator Prods., Inc.

, 907 F.2d 1396, 1402 (3d Cir. 1990). The city

never sought to am

end, but only raised the

defense at trial.

Even if it had amended its pleadings , we

would not be con vinced. Louisiana law

provides, “A municipal fire and police civil

ser vice board is created in the municipal

go vernment.” L

A

. R EV

. S TAT

. § 33:24 76. 1

The board acts as an agent of the city, and the

cit y may be held responsible for its

discriminato ry acts 

### S

S even if the Board

maintains a certain am

o unt of independence

from the rest of city government in its decision making. As the district court aptly observed,

accepting the ci

t y's argument would place a

victim of the board's d iscrimination in the

untenable position of being unable to recover

from either the city (not the proper defendant)

or the board (not the employer).

1 Article XIV, § 15.1(6) of Louisiana's former

constitution, retained as a statute when the state adopted a new constitution, also provides for the

creation of a board in the municipal government.

### 4 B.

The city contends that the court erred in

finding Jordan disabled. A plaintiff can prove

disabilit y by establishing that he (1) has a

physical or ment al “impairment” that

“substantially limit s” on e or more of the

“major life activities;” (2) has a record of such

an impairment; or (3) is regarded as having

such an impairme nt. S ee 42 U.S.C.

§ 12102(2). Jordan claims to be healthy now,

making the first alternative inapposite. The

court found both alternat ives two and three

applicable. We agree.

First, Jordan has a “record” of impairment

if he has a history of hav ing a physical

impairment that substantially limit s one or

more of his life activit ies. S ee 29 C.F.R.

§ 1630.2(k). He does; he suffered from severe

asthma; this constitutes an impairm e nt, i.e.

, a

co ndition or disorder that affects his

respir a tory system. 2 The uncontroverted

evidence establishes that he had been classified

as suffering from severe asthma. S ee Sherrod

v. American Airlines, Inc.

, 132 F.3d 1112,

1120-21 (5th Cir. 1998) (explaining record of

impairment established by hi story of

classification of impairment).

Further, Jordan's history of asthma

substantially affected a major life activity. He

had severe trouble breathing, which itself is a major life activity. S ee Bridges v. City of

Bossier

, 92 F.3d 3 29, 332 (5th Cir. 1996),

cert. denied

, 519 U.S. 1093 (1997) (citing

29 C.F.R. § 1630.2(i)). For a time, he also

could not perform

t he most basic of daily

manual, ambulatory tasks, such as walking to

his mailbox. 3 The court did not clearly err in

finding a hi s tory of severe asthma that

restricted Jor dan's activity, and it correctly applied the law in finding that this constitutes

a record of impairment. 4

In addition, the City regarded Jordan as

disabled. A person is perceived as disabled if

(1) the employer treated him as though he had

an impairment that limit

ed major life activities,

even if the impairment he has did not; (2) he

has an impairment that limits major life

activities only because of th e atti tudes of

others toward the impairment; or (3) he has no

i mpairment, but the employer treated him as though he has a substantially limit ing

impairment. 5

When he reapplied to the force, Jordan had

his asthma under control. He no longer

suffered from an impairment that substantially

limit ed his major life activities; nonetheless, he

was treated as if he did. Johnson testified that

most of the Civil Service Board op posed

reinstatement and that, although he could not

speak for the o t her members, he opposed it

because he did not have proof that the medical

problems were resolved.

Johnson thus acted under the presumption

that Jordan still suffered from the same impairment substantially a ffecting major life

activities as before. The court did not clearly

err in refusing to credit Johnson's testim ony

that the board did not reinstate Jordan because

they t hought he fi

rst needed to go to the

Retirement Board; Johnson did not te st ify to

that effect until pressed on cross-examination.

2 See 29 C.F.R. § 1630.2(h); see also Deas v.

River West, L.P. , 152 F.3d 471, 476 n.8 (5th Cir.

1998) (citing 29 C.F.R. § 1630.2(h)).

3 See Sherrod

, 132 F.3d at 1120 (“To determine

whether an individual is substan tia lly limited in a

major life activity other than working, the court

looks to whether that person can perform the

normal activities of daily living.”). 4 The City argues that Jordan was healthy when

he returned to work and thus did not suffer from an impairment. But the definition here relies on a

record of such an impairment, and Jordan has a

record of severe asthma. Nor is it significant that

lit t le evidence suggests he was disabled in the

major life activity of working. That is but one area

that a disability can affect; here, his severe asthma

affected his breathing and such simple daily tasks

as retrieving his mail.

5 See Zenor v. El Paso Healthcar e Sys., Ltd.

, 176 F.3d 847 , 859 (5th Cir. 1999); Bridges

, 92 F.3d at 331; see also 29 C.F.R. § 1630.2(l).

### 5 C.

The City argues that Jo rdan suffered no

adverse employment action at the city's hands.

For th e most part, this argument simply

reiterates the city's first contention, which we

already have rejected, that the city cannot be

held liable for the board's wrongful actions.

The city also appears to aver that it took no

adve rse action other than asserting a legal

position that did not prevail; this, it contends,

cannot constitute adverse employment action.

Jordan complains, however, that the city

attempted to require him, as a disabled person,

to a pply to the Retirement Board for

reinstatement 

### SS somet hing non-disabled

persons were not required to do. As the

district court concluded, absent a business

necessity, “the ADA does not allow the City to

create one set o f rules for applicants with a

disabilit y history and a separate set of rules for

those who have no such history.”

The city has not offer ed a business reason

for doing this. Instead, it appears that the city

simply placed additional hurdles in Jo rdan's

w a y, making it more difficult for him to be

reinst a ted simply because he has a history of

disability. By delaying reinstatement through

these dilatory t act ics, the city took adverse

employment action against Jordan.

AFFIRMED.