### In the



# United States Court of Appeals

For the Seventh Circuit

____________________ No. 15

‐ 1114

J ACK B ROWN

, Plaintiff

‐ Appellee

,

v.

K EVIN S MITH

, Mayor of the City of Anderson, et al.

, Defendants

‐ Appellants

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 12 CV 1712

— Tanya Walton Pratt

, Judge.

____________________

A RGUED S EPTEMBER 11, 2015

— D ECIDED J UNE 28, 2016

____________________

Before B AUER

, W ILLIAMS

, and H AMILTON

, Circuit Judges

.

W ILLIAMS

, Circuit Judge. During his lengthy tenure at the

City of Anderson Transit System (CATS), Plaintiff Jack

Brown developed diabetes and became unable to maintain

his commercial driver’s license (CDL). For nearly a decade,

this development proved irrelevant—at least from an em

‐ ployment standpoint. However, several years after being2 No. 15

‐ 1114

promoted to a position that required a CDL, Brown was

fired. He sued the City of Anderson and others, alleging that

his termination amounted to disability discrimination since

possession of a CDL was not an essential function of his job.

After the City unsuccessfully moved for summary judgment,

a jury sided with Brown and awarded him damages.

The City raises several arguments on appeal. Principally,

it contends that the district court should have ruled as a mat

‐

ter of law that possession of a CDL was an essential job func

‐

tion. Alternatively, the City claims that the district court

erred in instructing the jury about the essential

‐ function in

‐ quiry, and in concluding that Brown adequately mitigated

his damages. We disagree. The essential

‐ function issue is a

factual question that was properly put before the jury, and

the district court’s jury instructions on this issue were con

‐

sistent with federal regulations and our precedent. We also

conclude that Brown reasonably attempted to mitigate his

damages by starting his own trailer

‐ hauling business, de

‐ spite the fact that the business ultimately failed. So we affirm

the district court’s judgment.

I. BACKGROUND

Brown held several different positions during his 28

‐ year

career at CATS, and his trajectory at the company appears to

have tracked the City’s shifting political winds. From 1984 to

1998, he worked as a bus driver—initially as an “extra

board” (i.e., part

‐ time) driver, then as a full

‐ time driver. Both

positions required him to possess a CDL, and he did so. He

was later elevated to a dispatcher position, which did not

involve driving responsibilities or require a CDL. This pro

‐

motion proved fortuitous when, after developing insulin

‐ dependent diabetes, Brown had to relinquish his CDL.No. 15

‐ 1114 3

Throughout this period, Brown was an active participant in

the City’s Democratic Party.

In 2004, Brown was demoted to the position of mechan

‐

ic’s helper—a demotion that coincided with the election of

Kevin Smith, a Republican, as Mayor. Although possession

of a CDL was listed in the job description, CATS granted

Brown an accommodation (i.e., an exemption) whereby he

could maintain the job without re

‐ obtaining a CDL. Several

years later, when Smith was defeated by a Democrat, Brown

was promoted to a street

‐ supervisor position. In this new

position, Brown helped ensure that drivers left the bus gar

‐

age with the requisite paperwork and with operational vehi

‐

cles. Like his previous mechanic’s helper possession, posses

‐

sion of a CDL was listed in the street

‐ supervisor job descrip

‐

tion. Although Brown did not obtain an explicit CDL

‐ related

accommodation for this new position, his supervisors were

aware of his inability to obtain a CDL when they promoted

him.

Brown worked as a street supervisor until he was fired in

2012—shortly after Smith regained his mayoral seat.

Brown’s termination notice listed his inability to “obtain

CDL as required in job description” as the reason for his fir

‐ ing. Brown did not apply for any jobs at CATS or elsewhere

in the ensuing months. Instead, he started his own business

hauling trailers across the country. But after about a year in,

the business failed to generate adequate revenue, and Brown

began collecting Social Security disability benefits.

Brown ultimately filed suit against the City, alleging that

it failed to accommodate his diabetes

‐ related disability in

violation of the Americans with Disabilities Act, and that it

retaliated against him in response to his support for Smith’s4 No. 15

‐ 1114

Democratic opponent in violation of the First Amendment.

The district court denied the City’s motion for summary

judgment, concluding that a genuine factual issue existed as

to whether driving a bus while possessing a CDL was an es

‐

sential function for street supervisors, and whether political

loyalty was a prerequisite for the supervisor position.

A jury trial ensued and at its conclusion, the jury found

for Brown on the ADA claim and for the City on the First

Amendment claim. Brown was awarded $25,200 by the jury

in compensatory damages, and $65,274.64 by the court in

lost wages, benefits, and interest. This appeal followed.

II. ANALYSIS

The Americans with Disabilities Act prohibits employers

from “discriminat[ing] against a qualified individual on the

basis of disability in regard to

... [the] discharge of employ

‐

ees.” 42 U.S.C. § 12112(a). Such discrimination can take the

form of “not making reasonable accommodations to the

known physical or mental limitations of an otherwise quali

‐

fied [employee] with a disability,” so long as such accom

‐

modation would not “impose an undue hardship on the op

‐

eration of the business.” Id. § 12112(b)(5)(A). An employee is

“qualified” if she “can perform the essential functions of the

employment position,” with or without “reasonable accom

‐

modation.” Id. § 12111(8).

The principal dispute here concerns the “essential func

‐

tion” question—specifically, whether the district court

should have resolved the issue (instead of the jury), and

whether time spent driving a bus while possessing a CDL is

a relevant factor. The parties also dispute whether BrownNo. 15

‐ 1114 5

had adequately mitigated his damages while operating his

trailer

‐ hauling business.

A. “Essential Function” Issue Was Factual Question

for Jury

The City contends that the district court should have en

‐

tered summary judgment in its favor on Brown’s ADA

claim. Specifically, it insists that the essential

‐ function in

‐ quiry was a question of law for the district court (and not the

jury), since the job description for Brown’s street

‐ supervisor

position “establishes—as a matter of law—that the City con

‐

siders the CDL requirement to be an essential job function.”

We disagree.

The essential

‐ function inquiry is a factual question, not a

question of law. As Brown notes, a “question of law” typical

‐ ly concerns “the meaning of a statutory or constitutional

provision, regulation, or common law doctrine rather than

... whether the party opposing summary judgment had

raised a genuine issue of material fact.” Ahrenholz v. Bd. of

Trustees of Univ. of Ill.

, 219 F.3d 674, 676–77 (7th Cir. 2000)

(involving interlocutory appeals); see also, e.g.

, Ortiz v. Jordan

,

562 U.S. 180, 190 (2011) (observing that pure questions of law

“typically involve contests not about what occurred, or why

an action was taken or omitted, but disputes about the sub

‐

stance and clarity of pre

‐ existing law”); Houskins v. Sheahan

,

549 F.3d 480, 489 (7th Cir. 2008) (“While we owe deference to

the jury’s resolution of the contested factual issues, the de

‐

termination of whether speech is constitutionally protected

is a question of law for the court.”). Our recent decision in

Shell v. Smith

, 789 F.3d 715 (7th Cir. 2015)—a case with near

‐ ly identical facts—illustrates this point.6 No. 15

‐ 1114

In Shell

, the plaintiff worked at CATS as a former me

‐

chanic’s helper, which, according to the job description, re

‐ quired him to have a CDL. Although his poor hearing and

vision prevented him from obtaining a CDL, he held the po

‐

sition for 12 years. When a new general manager was in

‐

stalled, the plaintiff’s employment was terminated due to his

inability to obtain a CDL. The district court granted the

City’s motion for summary judgment on the plaintiff’s ADA

claim but we reversed. In doing so, we recognized that the

essential

‐ function issue was a factual question, insofar as we

concluded that a genuine factual issue existed as to whether

a CDL was necessary to perform the essential functions of

the mechanic’s helper position. Id. at 717.

And because the essential

‐ function inquiry is a factual

question that goes to the sufficiency of the evidence, it can

‐

not be preserved for appellate review after trial solely with a

summary judgment motion; rather, the complaining party

must file a post

‐ verdict motion under Rule 50(b). Ortiz

, 562

U.S. at 189 (2011); Unitherm Food Sys., Inc. v. Swift

‐ Eckrich,

Inc.

, 546 U.S. 394, 401–02 (2006). Because the City failed to

file such a motion here, it has waived its bid to win judg

‐

ment as a matter of law on this ground. See id.

Even if the City had not waived its sufficiency

‐ of

‐ the

‐

evidence argument, there is ample evidence here to support

the jury’s conclusion—expressly noted on the verdict form—

that having a CDL was not an essential function. To be sure,

Brown’s job description lists possession of a CDL as a job re

‐ quirement, but the content of a job description is merely one

of several factors courts consider when determining whether

a function is essential. 29 C.F.R. § 1630.2(n)(3); Shell

, 789 F.3d

at 718. One such factor concerns the “employer’s judgmentNo. 15

‐ 1114 7

as to which functions are essential.” 29 C.F.R.

§ 1630.2(n)(3)(i). Here, Brown’s supervisor, Mark Baugher,

testified that he knew Brown did not have a CDL when

Brown became a street supervisor, and that driving buses

was not a key responsibility for supervisors because other

individuals with CDLs were typically available to drive bus

‐

es when necessary.

Two other relevant factors are the “amount of time spent

on the job performing the function,” and the “work experi

‐

ence of past incumbents in the job.” Id. §§ 1630.2(n)(3)(iii),

(vi). Here, Brown testified he performed the duties of his

street

‐ supervisor position for four years without ever need

‐ ing to drive a bus. Baugher testified that during his own 20

‐

year tenure as a street supervisor, only once did an emer

‐

gency arise in which he drove a bus. And Leo Williams, yet

another former street supervisor, testified that during his

four

‐ year tenure, he drove a bus only three or four times.

In addition, one may consider the “consequences of not

requiring the incumbent to perform the function.” Id.

§ 1630.2(n)(3)(iv). Both Brown and John Inholt, another street

supervisor, testified that replacement drivers could general

‐ ly be secured within 10 minutes, which allowed street su

‐ pervisors to focus on ensuring that other bus drivers were

operating adequately. So there was adequate evidence to

support the jury’s conclusion that having a CDL was not an

essential job function.

B. Jury Instruction Proper Regarding Time Spent on

Essential Functions

The City also contends that the district court erred by in

‐ structing the jury that, in determining whether possession of8 No. 15

‐ 1114

a CDL was an essential function, it could consider “the

amount of time spent on the job performing the function in

question.” We review a district court’s decisions on jury in

‐

structions for abuse of discretion. Aldridge v. Forest River,

Inc.

, 635 F.3d 870, 876 (7th Cir. 2011). Reversal is warranted

only if an instruction misstates the law in a way that mis

‐ guides the jury to the extent that the complaining party suf

‐

fered prejudice. Hasham v. Cal. State Bd. of Equalization

, 200

F.3d 1035, 1051 (7th Cir. 2000).

The City concedes, as it must, that federal regulations

unambiguously state that “[e]vidence of whether a particu

‐

lar function is essential includes, but is not limited to,” time

spent performing the function. 29 C.F.R. § 1630.2(n)(3); see

also Shell

, 789 F.3d at 718. The City offers several reasons for

ignoring these regulations, but none are persuasive.

The City argues that, while the time

‐ spent factor may be

relevant in other situations, it is not relevant here because

the emergencies that would force a street supervisor to drive

a bus would infrequently occur. But the relevance of a given

factor often waxes and wanes depending on the particular

circumstances presented. That doesn’t mean that the factor

should be jettisoned completely. It simply means that the ju

‐

ry can take this into consideration and that the parties can

tailor their closing arguments to accentuate or minimize the

factors as they see fit. See EEOC v. AutoZone, Inc.

, 809 F.3d

916, 923 (7th Cir. 2016) (holding that the district court “was

not obligated to promulgate

... an inference within the jury

instructions that the job function was not essential for a par

‐

ticular reason,” and that the court could “instead allow the

[plaintiff] to make its

... argument to the jury in its closing

arguments”). Doing otherwise would impermissibly transferNo. 15

‐ 1114 9

fact

‐ finding responsibilities from the jury to the judge by

narrowing the scope of the factual inquiry.

The City also points to our model jury instruction con

‐ cerning essential functions, which it claims is silent regard

‐ ing the amount of time spent performing job functions. See

Seventh Circuit Pattern Jury Instructions § 4.05. 1 But as

Brown correctly notes, the City ignores subsection d of the

Committee’s Comments, which not only cites § 1630.2(n) but

also notes that “evidence of whether a particular function is

essential can include

... how much time was spent on the job

performing the function.” Id. § 4.05 cmt. d.

1 Section 4.05 reads:

Under the ADA, Plaintiff was “qualified” if he had the skill,

experience, education, and other requirements for the job and

could do the job’s essential functions, either with or without [ de

‐

scribe requested accommodation ]. You should only consider Plain

‐

tiff’s abilities at the time when [ describe challenged employment de

‐

cision ].

Not all job functions are “essential.” Essential functions are a

job’s fundamental duties. In deciding whether a function is es

‐

sential, you may consider the reasons the job exists, the number

of employees Defendant has to do that kind of work, the degree

of specialization the job requires, Defendant’s judgment about

what is required, the consequences of not requiring an employee

to satisfy that function, and the work experience of others who

held position.

[In addition to specific job requirements, an employer may

have general requirements for all employees. For example, the

employer may expect employees to refrain from abusive or

threatening conduct toward others, or may require a regular lev

‐

el of attendance.]

Seventh Circuit Pattern Jury Instructions § 4.05 (alterations in original).10 No. 15

‐ 1114

Finally, the City claims that in Basith v. Cook County

, 241

F.3d 919 (7th Cir. 2001), we held that the time

‐ spent factor is

irrelevant when “an employer has a valid reason for treating

a job function as essential and that function goes to the core

of the business’s operation.” But we announced no such rule

in Basith

. Rather, we concluded—after considering time

spent and the other factors in the aggregate —that the job func

‐

tion at issue was essential. Id. at 928–30. Furthermore, just as

no single factor enumerated in § 1630.2(n) can comprise the

entire essential

‐ function analysis, see, e.g.

, id. ; Shell

, 789 F.3d

at 718, nor can a single factor be excluded before the analysis

has even begun. So the district court did not abuse its discre

‐

tion in instructing the jury to consider a street supervisor’s

time spent driving buses.

C. Brown Mitigated Damages

Finally, the City argues that the district court erred in

awarding Brown damages because he failed to take reasona

‐

ble steps to mitigate his losses. We review a district court’s

findings regarding mitigation of damages for clear error.

Payne v. Sec. Sav. & Loan Ass’n, F.A.

, 924 F.2d 109, 111 (7th

Cir. 1991).

A lost

‐ wages award “compensates an unlawfully dis

‐ charged employee for the loss of earnings that he sustains as

a result of the discharge.” Mattenson v. Baxter Healthcare

Corp.

, 438 F.3d 763, 771 (7th Cir. 2006); EEOC v. Ilona of Hun

‐

gary, Inc.

, 108 F.3d 1569, 1580 (7th Cir. 1997). Critically, a

plaintiff alleging employment discrimination generally is

required to mitigate damages by making diligent efforts to

obtain reasonably comparable employment. See Mattenson

,

438 F.3d at 771; Williams v. Pharmacia, Inc.

, 137 F.3d 944, 954

(7th Cir. 1998). The employer generally bears the burden ofNo. 15

‐ 1114 11

proving a failure to mitigate, which entails showing not only

a lack of “reasonable diligence” but also “a reasonable likeli

‐

hood that the plaintiff might have found comparable work

by exercising reasonable diligence.” Hutchison v. Amateur

Elec. Supply, Inc.

, 42 F.3d 1037, 1044 (7th Cir. 1994).

The City has failed to meet this burden. It faults Brown

for failing to “seek any employment at any local transit

companies”; however, it admitted at oral argument that

CATS was the only bus company in town when Brown was

fired. Nor has the City shown that any other transit compa

‐

ny was within a reasonable driving distance of Brown’s resi

‐

dence.

The City also faults Brown for starting his own company

but ignores the fact that “self

‐ employment, if reasonable,

counts as permissible mitigation.” Smith v. Great Am. Restau

‐

rants, Inc.

, 969 F.2d 430, 438 (7th Cir. 1992). And based on the

evidence from trial, there is little reason to doubt that

Brown’s business was a legitimate and reasonable attempt to

make money. For one, hauling trailers across the country is

certainly related to Brown’s various positions at CATS,

which involved driving, fixing, and supervising the opera

‐

tion of municipal buses. Moreover, during 2012, Brown

made 63 trips over 187 days as he worked to establish his

business. And he shut down operations not because he be

‐

came bored with the work, but because he was unable to

generate sufficient profits.

These efforts are readily distinguishable from the cases

on which the City relies. In Hansard v. Pepsi

‐ Cola Metropolitan

Bottling

, the court held that a former vending machine re

‐ pairman had failed to adequately mitigate damages by oper

‐ ating a booth at flea markets on the weekend. 865 F.2d 1461,12 No. 15

‐ 1114

1468 (5th Cir. 1989). In doing so, the court emphasized that

the plaintiff “did not approach the flea market as a busi

‐

ness,” that the work “was never more than a part

‐ time en

‐ terprise,” and that the plaintiff was “fully capable of con

‐ tinuing his job search during the week.” Id. ; cf. Smith

, 969

F.2d at 438 (distinguishing Hansard on identical grounds).

And while the plaintiff in Boyd v. SCM Allied Paper operated

his own barbeque and car wash business following his ter

‐

mination, there is no indication whether and to what extent

these endeavors were related to his previous position, nor

any discussion about how long the endeavors lasted or the

time and resources the plaintiff devoted to them. No. 84

‐ 241,

1986 WL 15558, at *14–15 (N.D. Ind. June 16, 1986). So the

district court did not clearly err in concluding that Brown

had mitigated his damages.

III. CONCLUSION

The judgment of the district court is A FFIRMED

.