1 42 U.S.C. §§ 12101-12213.

1 United States Court of Appeals,

Fifth Circuit.

No. 95-50350.

Richard R. BUCHANAN, Plaintiff-Appellee,

v.

CITY OF SAN ANTONIO, Defendant-Appellant.

June 13, 1996.

Appeals from the United States District Court for th e Western

District of Texas.

Before REAVLEY, GARWOOD and JOLLY, Circuit Judges.

REAVLEY, Circuit Judge:

Richard Buchanan sued the City of San Antonio under the

Americans with Disabilities Act (ADA), 1 after the city repeatedly

turned down his applications to become a city police officer. The

district court awarded him a judgment of $300,000 in compensatory

damages, together with back pay, attorney's fees and interest. We

reverse and remand for further proceedings.

BACKGROUND

Buchanan is a patr olman with the Bexar County sheriff's

department. He injured his back during a foot chase of a suspect

in 1986. He claimed that he fully recovered from this injury.

After being off work for a few months, he returned to duty with the

sheriff's department, and testi fied that he has had no recurring

problems with his back since that time.

Buchanan wanted to join the San Antonio police force, because2 See 42 U.S.C.A. § 12111 note.

3 Burfield v. Brown, Moore & Flint, Inc., 51 F.3d 583, 588

(5th Cir.1995).

2 the pay and benefits were better than those offered by the

sheriff's department. On numerous occasions he applied for a job

w ith the police department, but was always turned down. He last

applied for employment with the police department in April of 1992,

and was rejected in October of 1992. The dates of his last

application and rejection are relevant, since the ADA became

effective on July 26, 1992. 2 The ADA is not applied retroactively. 3

In August of 1993 he filed this suit under the ADA, alleging

in general terms violation of the Act due to discrimination on the

basis of disability. The case proceeded to trial. At the close of

plaintiff's evidence, plaintiff moved for judgment as a matter of

law. The motion was based on two specific violations of the ADA

which were not pleaded in the complaint. Plaintiff claimed that he

was entitled to judgment as a matter of law because the city had

(1) subjected him to a physical examination before making a offer

of employment, in violation of 42 U.S.C. § 12112(d), and (2) failed

to keep information regarding his medical condition confi dential

and in a separate file, also in violation of 42 U.S.C. § 12112(d).

The district court took the motion for judgment under

advisement at the close of the first day of trial. The next

morning, the court announced that it was granting the motion, would

allow each side a few mi nutes to look over the court's proposed

charge, and would then charge the jury. By these actions the court4 F ED .R.C IV .P. 50(a).

5 Texas Farm Bureau v. United States, 53 F.3d 120, 123 (5th

Cir.1995).

3 made clear that it would not allow the introduction of any

additional evidence. The court then instructed the jury that the

city had violated the ADA and submitted two special interrogatories

to the jury on damages. The jury answered "yes" to the first

question, inquiring whether Buchanan "has sustained damages from

Defendant City of San Antonio's violation of the [ADA]." It then

awarded $300,000 in compensatory damages for "future pe cuniary

losses, em otional pain and suffering, inconvenience, and mental

anguish." After the verdict, the district court entered judgment

for this amount, and also awarded back pay, attorney's fees and

post-judgment interest.

DISCUSSION

A. Judgment as a Matter of Law

Judgment as a matter of law against a party is proper on an

issue if "there is no legally sufficient evidentiary basis for a

reasonable jury to find for that party on that issue." 4 A judgment

as a matter of law is appropriate if the facts and inferences point

so strongly and overwhelmingly in favor of one party that

reasonable people could not arrive at a verdict to the contrary. 5

If anything, an even greater showing is required where, as

here, the plaintiff moves for and receives judgment as a matter of

law before the jury hears from the defendant. Rule 50 itself only

contemplates judgment as a matter of law against a party after that6 United States v. Vahlco Corp., 720 F.2d 885, 889 (5th

Cir.1983).

7 42 U.S.C. § 12112(a).

8 Id. § 12102(2).

4 party "has been fully heard on an issue." While courts have the

power to direct a verdict in plaintiff's favor at t he close of

plaintiff's case,

[t]his power must nonetheless be exercised with great

restraint in order to avoid the possibility that a party will

be precluded from presenting facts which make out a question

f or the jury. Where there is any doubt at all as to the

propriety of a directed verdict, district co urts should not

jump the gun but should wait until both sides have presented

their evidence before ruling on motions for directed verdict. 6

Buchanan did not esta blish as a matter of law a standard

claim of discrimination under the ADA, and does not argue

otherwise. The ADA provides that "[n]o covered entity shall

discriminate against a qualified individual wit h a disability

because of the disability of such individual in regard to job

application procedures, the hiring, advan cement, or discharge of

employees, em ployee compensation, job training, and other terms,

conditions, and privileges of employment." 7 A "disability"

includes "a physical or mental impairment that substantially limits

one or more of the major life activities of such individual," "a

record of such an impairment," and "being regarded as having such

an impairment." 8 A "qualified individual with a disability" means

"an individual with a disability who, with or without reasonable

accommodati on, can perform the essential functions of the9 Id. § 12111(8).

10 For example, a city internal memorandum introduced by

plaintiff requested that his application be rejected because of

his past employment history and failure to wait one year before

reapplying. Although the memo discusses his back injury, it

states, as reasons for rejecting the application:

During the investigation of applicant's May 12,

1989 application, Officer Burleson was advised by

Captain D. Gabehart, for the Bexar County Sheriff's

Department, that applicant "had a bad attitude, a

person that wants to do things his own way regardless

of procedures.["] He went on to say that applicant was

rigid in his decision making with no flexibility, and

that he would not be eligible for re-hiring.

Applicant was enrolled at the U.S. Border Patrol

Academy from Sept. '88 to Jan. '89 but was released

after failing the mandatory Spanish test. When the

Border Patrol Academy Director was contacted regarding

applicant's academic record, I was advised that

applicant was also failing several of the other

courses, and that he was asked to resign.

5 employment position that such individual holds or desires." 9

Buchanan did not establis h as a matter of law that he has a

"disability," that he was "a qualified individual with a

disability," or that the city discriminated against him because of

his disability. For example, evidence was introduced that Buchanan

was rejected not because of his prior back injury, but because he

had failed to wait one year from his prior rejection before

reapplying, as required by city policy, and because of his prior

work history. 10

B. Premature Physical and Confidentiality

The basis for Buchanan's motion for judgment as a matter of

law was two alleged specific violations of the ADA re garding

employer information about an appli cant's medical history. He6

relied on 42 U.S.C. § 12112(d), which prohibits an employer from

conducting a medical examination of a job applicant unless, among

other requirements, the employer has already made the applicant a

job offer conditioned on a medical examination. This provision of

the ADA also provides that a post-offer medical examination is only

allowed if (in addition to other requirements and exceptions not

relevant here) "information obtained regarding the medical

condition or history of the applicant is collected and maintained

on separate forms and in separate medical files and is treated as

a confidential medical record."

Buchanan established through the city's own records that

Buchanan was given a medical examination in August of 1992, after

the effective date of the ADA. We cannot agree with the city that

it conducted a medical examination only after it had made a

conditional offer of employment. While Buchanan did sign an

acknowledgement in May of 1992 that he was receiving a conditional

offer of employment, the document itself makes clear that the offer

was not conditioned solely on a medical examination, but was

instead condit ioned on successful completion of "the entire

screening process," which included "physical and psychological

examinations, a polygraph examination, a physical fitness test, an

assessment board, and an extensive background investigation."

Buchanan did not establish as a matter of law that the city

failed to keep medical information obtained after the effective

date of the ADA in a separate file and failed to treat such

information as confidential. While the evidence clearly showed11 See EEOC Notice No. 915.002 (May 19, 1994) (Example 3).

12 See 42 U.S.C. § 12117(a).

13 42 U.S.C. § 2000e-5(f).

14 Id. § 2000e-5(g)(2)(A).

7 that information regarding Buchanan's medical condition was

provided to the department officials in charge of hiring decisions

after the effective date of the ADA, and that medical information

was included in Buchanan's general personnel file, Buchanan did not

establish that this information was obtained after the effective

date of the Act. We agree with the EEOC that the ADA does not

require the segregation or confid ential treatment of medical

information obtained before the effective date of the ADA. 11

C. Proof of Damages

A further gap in support for this judgment is the absence of

proof of damage, even if the other predicates had been established,

caused by a premature medical examination. Our reading of the ADA

requires a causal link between the violation and the damages sought

by the plaintiff. The remedies provided under the ADA are the same

as those provided by Title VII, 42 U.S.C. §§ 2000 e-4 to 2000e-6,

2000e-8, 2000e-9. 12 Title VII allows a private suit by a plaintiff

"aggrieved by the alleged unlawful employment practice." 13

Generally, relief is not affo rded to the plaintiff if he was not

hired or otherwise subjected to adverse employment action "for any

reason other than discrimination...." 14 Title VII does recognize

as an unlawful employment pra ctice discrimination "which was a

motivating factor for any employment practice , even though other15 Id. § 2000e-2(m).

16 Id. § 2000e-5(g)(2)(B).

17 Id. § 2000e-5(g)(2)(B)(i).

18 42 U.S.C. § 1981a.

19 In this regard we agree with the Eighth Circuit's recent

analysis in Pedigo v. P.A.M. Transport, Inc., 60 F.3d 1300, 1301-

03 (8th Cir.1995).

8 factors also motivated the practice." 15 However, damages may not

be awarded for such a violation if the defendant "would have taken

the same action in the absence of the impermissible motivating

factor...." 16 In such circumstances relief is limited to certain

declaratory and injunctive relief, costs and attorney's fees. 17

While the Civil Rights Act of 1991 expanded the type of damages

which may be recovered under Title VII and the ADA to i ncluded

punitive and general compensatory damages, 18 compensatory damages,

like other damages, are not recoverable under Title V II (and

derivatively under the ADA) unles s the prohibited employment

practice was the cause of the applicant's rejection. 19

To be sure, the first interrogatory to the jury asked whether

Buchanan had sustained damages "from" the city's violation of the

ADA, and th e jury was also instructed that it could only award

damages that plaintiff proved were "caused" by the city's wrongful

conduct. However, the jury was not properly instructed that it

must find a causal link between the specific ADA violations that

were the basis of the directed verdict and the injuries sustained.

T he jury was never informed that the ADA violations found by the

court as a matter of law pertained to the medical examination and9

disclosure of medical information. Instead, it was instructed only

that the court "has determine d as matter of law that the City of

San Antonio has violated th e Americans with Disabilities Act."

There was no finding, by the court or the jury, that Buchanan was

not given a job offer because of the medical examination. Again,

there was considerable evidence to the contrary. In addition to

the evidence discussed above, the jury had before it evidence that

the city was aware of Buchanan's back injury before the effective

date of the ADA, and that it was able to offer jobs to only a small

percentage of applicants. Further, by granting the motion for

judgment and cutting off addition al evidence, the court deprived

the city of an opportunity to offer further evidence that Buchanan

would not have received a job off er even if the city had not

conducted a pre-offer medical examination.

For the foregoing reasons, we remand the case to the district

court for further proceedings consistent with this opinion.

REVERSED and REMANDED.