* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

 

1 42 U.S.C. § 12101 et seq.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-30528

Summary Calendar

 

ROBERT P. THOMPSON,

Plaintiff-Appellant,

versus

CADDO PARISH COMMISSION; ET AL,

Defendants,

PARISH OF CADDO,

Defendant-Appellee.

___________________

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 97-CV-0467

___________________

December 17, 1998

Before JOLLY, SMITH, and Wiener, Circuit Judges.

PER CURIAM:*

In this employment discrimination case grounded in an alleged

violation of the Americans With Disabilities Act (“ADA”),1

Plaintiff-Appellant Robert P. Thompson asks us to reverse the

judgment of the district court, rendered on the basis of the

unanimous jury verdict against Thompson, in favor of Defendant-
2

Appellee the Parish of Caddo (“Caddo Parish”). In his appellate

brief, Thompson concedes that, of the three employment

discrimination claims he asserted in the district court, only one

—— failure of Caddo Parish to make a reasonable accommodation for

his disability —— has any viability on appeal. He further

acknowledges that even as to this one remaining claim, his burden

is a heavy one: He must obtain reversal of the adverse judgment by

convincing us either that (1) no reasonable jury could have reached

this verdict on the basis of the record evidence; or (2) the

district court abused its discretion in admitting certain evidence

and that so doing constituted reversible error. Our review of the

record on appeal, including the entire transcript, the briefs of

the parties, and the applicable law, satisfies us that Thompson

cannot bear his burden on either score, so we affirm.

I.

FACTS AND PROCEEDINGS

Thompson is a wheelchair-bound polio victim who worked for

Caddo Parish for approximately 17 years. Immediately prior to

assuming the post he was filling when his employment terminated,

Thompson was a dispatcher in the Caddo Parish Highway Department,

a position he had held and performed with distinction for years.

As a result of an extensive reorganization by Caddo Parish,

Thompson’s Highway Department dispatcher’s position and five other

similar positions were eliminated. Thompson was neither laid off

nor demoted, however; rather, he was reassigned to Caddo Parish’s
3

Animal and Mosquito Control Department —— as a dispatcher, and at

no reduction in or loss of pay or benefits.

The evidence is undisputed that, at his new job location,

Thompson was required to use a time clock located in the kennel

area of the facility; that animals —— at least dogs, including

Rottweilers —— were allowed to roam the kennel area unleashed;

that, after Thompson had worked in his new position for less than

three weeks, an incident is alleged to have occurred in which an

unleashed and unsupervised Rottweiler attempted to attack Thompson;

and that he was barely able to avoid actual contact by wheeling his

chair through a door to safety in the nick of time. Thompson

immediately called for and received a conference with his

supervisor and the Human Resources (“HR”) director of the Parish

the next day.

Viewing the evidence and its reasonable inferences in the

light most favorable to the jury verdict, as we must, the record

supports factual findings that Thompson requested an accommodation,

specifically, a return to his old job (which no longer existed);

that his supervisor and the HR director countered by proposing an

accommodation comprising use of a different time clock and location

of his workstation in an area of the building —— remote from the

kennel area —— where unleashed animals would not be present; that

Thompson rejected the proposed accommodations out of hand,

insisting on a transfer from the Animal and Mosquito Control

Department; and that he requested and was granted 10 days annual

leave, at the end of which he refused to return to work at the
 

2 Ham Marine, Inc. v. Dresser Ind., 72 F.3d 454, 459 (5th

Cir. 1995).

4

Animal and Mosquito Department under any circumstance, declined a

less favorable job elsewhere, and tendered his resignation.

Thompson filed a complaint with the Equal Opportunity

Employment Commission (“EEOC”), received a right-to-sue letter, and

thereafter filed the instant lawsuit. During the course of the

ensuing jury trial Thompson objected to, inter alia, admission of

testimony by his supervisor and the Caddo Parish HR director to the

effect that, if Thompson had not resigned precipitously but instead

had allowed Caddo Parish time to do so, it would have made an

adequate accommodation to his disability. The record contains

conflicting testimony regarding compliance by Caddo Parish with

various notification and posting requirements of the ADA. The jury

trial ended in an unanimous verdict against Thompson, from which he

timely appealed.

II.

ANALYSIS

A. Standard of Review

As acknowledged by Thompson, our standard of review of the

sufficiency of the evidence to support a jury verdict is quite

deferential: “Unless the evidence is of such quality and weight

that reasonable and impartial jurors could not arrive at such a

verdict, the findings of the jury must be upheld.”2 Again, we

review the evidence in the light most favorable to the jury verdict

and uphold that verdict unless “there is no legally sufficient
 

3 Hiltgen v. Sumrall, 47 F.3d 695, 700 (5th Cir. 1995)

(citing Fed. R. Civ. P. 50(a)(1)).

 

4 Smith v. A.C.& S, Inc., 843 F.2d 854, 857 (5th Cir. 1988).

 

5 42 U.S.C. § 12111(8).

5

evidentiary basis for a reasonable jury to find” as the jury did.3

“Appellate review of evidentiary rulings is confined to determining

whether the trial judge abused his discretion.”4

B. Sufficiency of the Evidence to Support the Jury Verdict.

The parties stipulated that Thompson is a “Qualified

Individual with a Disability” for purposes of the ADA,5 and that

Caddo Parish is a “covered entity” and “employer” under that act.

Although there is some quibbling in the appellate briefs as to

whether Thompson requested an accommodation, we assume for purposes

of this analysis that he did, albeit the accommodation he requested

appears to have been limited to reassignment to his old job or at

least to a dispatcher’s position or equivalent somewhere other than

in the Animal and Mosquito Control Department. There is no

evidence that Thompson was phobic or otherwise overly concerned

about animals prior to the Rottweiler incident; neither is the

disability he proffers a new “canine phobia.” Rather, Thompson

contends that his polio/wheelchair disability makes him more

vulnerable than nondisabled employees to animal attack.

The record contains testimony by Thompson’s supervisor and the

HR director of Caddo Parish that they met with Thompson the day

following the alleged dog attack, that they promised accommodations

would be made, including use of a time clock by Thompson at a
 

6 The record also reflects that, as an alternative to the

animal prevention accommodations proposed by Caddo Parish, Thompson

was offered a lesser job at lesser pay; however, that alternative

clearly would not have constituted an adequate accommodation for

ADA purposes had it been the only accommodation offered.

6

different “dog free” location coupled with assurance that dogs

would be required to be leashed at all times throughout the

building, and that Caddo Parish would promptly take any other steps

reasonably necessary to ensure Thompson’s safety on the job. There

is no record evidence that Thompson advanced any ADA-related

complaints about his new workplace prior to the alleged Rottweiler

incident or that his complaints at the meeting the day thereafter

implicated any other ADA deficiencies in the physical

characteristics of his new workplace; only that he doggedly

insisted on a transfer out of the Animal and Mosquito Control

Department. The record also confirms that Thompson rejected the

proffered accommodations out of hand and, after taking 10 days

annual leave, submitted his written resignation.6

Keeping in mind that, on appeal, conflicts in testimony (and

there are many in the instant record) must be resolved in favor of

the jury verdict, our review of the record as a whole convinces us

that, given the deference owed to the jury as fact-finder, coupled

with the reasonable inferences and the credibility calls that go

with the job, a reasonable jury could have reached the verdict that

this one reached on the basis of such evidence and inferences. This

applies to Caddo Parish’s proffering a reasonable accommodation for

Thompson’s disability as well as complying with various notice and
 

7 See Still v. Freeport-McMoRan, Inc., 120 F.3d 50 (5th Cir.

1997).

 

8 Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539,

555 (5th Cir. 1997).

 

9 See, e.g., Robinson v. Bump, 894 F.2d 758, 762-63, reh.

den., 899 F.2d 11 (5th Cir. 1990); Soden v. Freightliner Corp., 714

F.2d 498 (5th Cir. 1983).

7

posting requirements of the ADA —— another contested issue of fact

on which the jury could have gone either way.

Likewise, the state of the record is such that the jury could

reasonably have concluded that Caddo Parish took no adverse

employment action against Thompson —— actual or constructive ——

much less one based solely on his disability. Caddo Parish was not

required to assign him to a position that was already occupied;7

neither was it required to create a new position to accommodate

Thompson. The fact that Thompson did not like his new work

assignment does not make it an adverse employment decision.8 We

conclude that, when properly viewed for purposes of appeal, the

evidence as a whole is sufficient to support the jury verdict.

C. Evidentiary Rulings

The district court’s decision to admit, over Thompson’s

objection, the testimony of his supervisor and the HR director of

Caddo Parish to the effect that, had Thompson given them a chance,

they would have taken action constituting a reasonable

accommodation for purposes of the ADA, does not rise to the level

of abuse of discretion.9 Moreover, even if we were to conclude

that the district court abused its discretion in admitting this

testimony, doing so would not have constituted reversible error.
8

First, the testimony regarding the accommodations offered at the

meeting on the day following the dog attack is sufficient to

support a jury conclusion that Caddo Parish had in fact proposed a

reasonable accommodation, so that whatever else the Parish might

have done subsequently if given an opportunity is surplusage.

Second, the other record evidence obviously credited by the jury is

more than sufficient to support its findings, even absent the

complained-of testimony. We do not view that testimony as being so

prejudicial as to have rendered the jury trial unfair or the

verdict unreliable.

III.

CONCLUSION

The law does not require perfection in a jury trial; indeed,

few if any could ever earn that grade. Here, however, the record

confirms that the instant jury trial was conducted free of

reversible error and that the stipulated or undisputed evidence, in

combination with disputed evidence credited by the jury, is more

than sufficient to sustain its verdict. For the foregoing reasons,

the judgment of the district court, grounded in the unanimous

verdict of the jury, is, in all respects, 

AFFIRMED.