               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                                          _______________

                                            No. 98-30989
                                          Summary Calendar
                                          _______________

                                      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,                      in front of his home.
  Circuit Judges.
                                                         Jordan used substantial amounts of
JERRY E. SMITH, Circuit Judge:*                       medication in an attempt to control the
                                                      asthma. Over time, he began to succeed. By
   The City of Baton Rouge appeals a final            1992, he had lost weight, was able to walk and
judgment entered against it on Frank Jordan's         run, and took karate classes. Because he felt
Americans with Disabilities Act (“ADA”)               he had his asthma under control, he decided to
claim. Finding no reversible error, we affirm.        seek reinstatement.      He underwent five
                                                      separate medical exams, with each examiner
                       I.                             concluding that he was fit to return to work
    Jordan served as a Baton Rouge police             and that his asthma no longer was a disabling
officer from February 1978 to May 1987. His           condition.
tour of duty ended when he took disability
retirement on account of stress-related asthma           In August 1992, Jordan applied for
that began to develop in 1985. Despite efforts        reinstatement.      He first unsuccessfully
to keep it under control, he suffered from            attempted to meet with Chief Phares, then
severe asthma problems. He was forced to be           applied to the Civil Service Board, submitting
inactive, which resulted in a substantial weight      documentation from his medical examinations
gain. He could not even walk to the mailbox           to support reinstatement. Soon thereafter, the
                                                      Civil Service Board's secretary informed
                                                      Jordan that he needed to obtain clearance from
   *
      Pursuant to 5TH CIR. R. 47.5, the court has     the Retirement Board before the Civil Service
determined that this opinion should not be            Board could consider his application. He did
published and is not precedent except under the       not.
limited circumstances set forth in 5TH CIR. R.
47.5.4.                                                  In October     1992,   Jordan    voluntary
submitted to a sixth medical examination,                resolved.”
administered by Dr. Marla Albanes, who                      Johnson acknowledged requesting that the
provides services to the city, including fitness-        chief have Jordan medically evaluated. Only
for-duty examinations for police officers.               when pressed on cross-examination did he add
Albanes also cleared him for work. When the              that the board's position was that Jordan first
Civil Service Board met later that month, it             had to go to the Reti rement Board. Johnson
determined that Jordan had to seek review                recalled one other officer who had taken a
from the Retirement Board before it could                medical retirement and sought to return;
hear his application; Jordan did not do so.              Johnson believed that he too was reinstated by
                                                         a court after the board would not authorize his
   In November 1992, Jordan appealed the                 return. The parties stipulated that Phares
Civil Service Board's decision to a state court,         believed Jordan had to apply to the Retirement
which reversed the Board and ordered it to               Board.
decide whether he should be allowed to return
to work. In May 1993, the Civil Service                      The City moved for judgment as a matter of
Board directed Phares immediately to arrange             law, contending that Jordan had not proven he
for Jordan's evaluation by a physician and               had, or that the city regarded him as having, a
psychiatrist to determine whether he was able            disability. It also argued that Jordan had sued
to return to work. Two days later, Jordan                the wrong entity; any complaints were
began working again.                                     attributable to the Board, and any actions and
                                                         perceptions were its responsibility.             It
     The city has given Jordan full back pay, and        characterized the situation as a dispute over
he continues to serve as an officer. In this suit,       procedure, which did not constitute an adverse
he seeks general damages (emotional distress,            employment action. It also argued that any
mental pain and suffering) and attorney's fees.          perception of disability Jordan had proved
He testified that, while awaiting the city's             demonstrated only a limited perception and
decision, he had to perform menial jobs to               that he was not perceived as being
support himself. This was an emotionally                 substantially limited in the major life activity of
difficult time and led to his divorce. He spent          working. Finally, the city contends Jordan had
$2,000 to renew his commercial truck-driving             a duty to mitigate his damages by appearing
license and spent time hauling heavy                     before the Retirement Board.
equipment. He also worked for a hardware
store and a forklift business, where he earned              Jordan responded that the city did perceive
little more than the minimum wage.                       him as disabled and that the requirement that
                                                         he go before the Retirement Board
   When reinstated, Jordan believed he could             discriminated against him on account of that
do as much as any other officer. He had no               perception. He also averred that the city
problem performing his job. He testified that            waived any argument that it is not responsible
no other officers who applied for reinstatement          for the Civil Service Board by failing to raise
had to go through the Retirement Board as he             it in its answer, or even in subsequent
was instructed to do.                                    pleadings. Finally, because the city is his
                                                         employer, it was responsible for the board's
   Lieutenant Vernet Johnson of the Police               actions.
Department was the chairman of the Civil
Service Board when Jordan applied. Johnson                  The court, through a magistrate judge,
said the board had no involvement in hiring              agreed and entered judgment for Jordan. The
and firing; it merely heard appeals of personnel         City appeals, raising essentially the same
decisions. Most of the board's members were              arguments: (1) It is not responsible for the
against reinstating Jordan. He opposed                   board; (2) no evidence was adduced that the
reinstatement because he “didn't have proof              “employer” perceived him as disabled; and
that the medical problems he had [were]                  (3) Jordan did not suffer an adverse

                                                     2
employment action at the city's hands.                   making. As the district court aptly observed,
                                                         accepting the city's argument would place a
                        II.                              victim of the board's discrimination in the
    In reviewing judgments on the merits from            untenable position of being unable to recover
civil bench trials, we review conclusions of law         from either the city (not the proper defendant)
de novo and conclusions of fact for clear error.         or the board (not the employer).
See Read v. United States Dep't of Treasury,
169 F.3d 243, 247 (5th Cir. 1999); North
Alamo Water Supply Corp. 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 its
entirety, we may not reverse even if we are
convinced that, had we been sitting as the trier
of fact, we would have weighed the evidence
differently.” Id. at 915. 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 argues 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 party must be raised as an affirmative
defense; if not, it is waived unless the court
grants leave to amend the pleadings. See
Bokunewicz v. Purolator Prods., Inc.,
907 F.2d 1396, 1402 (3d Cir. 1990). The city
never sought to amend, but only raised the
defense at trial.

   Even if it had amended its pleadings, we
would not be convinced. Louisiana law
provides, “A municipal fire and police civil
service board is created in the municipal
government.” LA. REV. STAT. § 33:2476.1
The board acts as an agent of the city, and the
city may be held responsible for its
discriminatory actsSSeven if the Board
maintains a certain amount of independence
from the rest of city government in its decision

   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.

                                                     3
                        B.                                applied the law in finding that this constitutes
   The city contends that the court erred in              a record of impairment.4
finding Jordan disabled. A plaintiff can prove
disability by establishing that he (1) has a                 In addition, the City regarded Jordan as
physical or ment al “impairment” that                     disabled. A person is perceived as disabled if
“substantially limits” one or more of the                 (1) the employer treated him as though he had
“major life activities;” (2) has a record of such         an impairment that limited major life activities,
an impairment; or (3) is regarded as having               even if the impairment he has did not; (2) he
such an impairment.            See 42 U.S.C.              has an impairment that limits major life
§ 12102(2). Jordan claims to be healthy now,              activities only because of the attitudes of
making the first alternative inapposite. The              others toward the impairment; or (3) he has no
court found both alternatives two and three               impairment, but the employer treated him as
applicable. We agree.                                     though he has a substantially limiting
                                                          impairment.5
   First, Jordan has a “record” of impairment
if he has a history of having a physical                     When he reapplied to the force, Jordan had
impairment that substantially limits one or               his asthma under control. He no longer
more of his life activities. See 29 C.F.R.                suffered from an impairment that substantially
§ 1630.2(k). He does; he suffered from severe             limited his major life activities; nonetheless, he
asthma; this constitutes an impairment, i.e., a           was treated as if he did. Johnson testified that
condition or disorder that affects his                    most of the Civil Service Board opposed
respiratory system. 2 The uncontroverted                  reinstatement and that, although he could not
evidence establishes that he had been classified          speak for the other members, he opposed it
as suffering from severe asthma. See Sherrod              because he did not have proof that the medical
v. American Airlines, Inc., 132 F.3d 1112,                problems were resolved.
1120-21 (5th Cir. 1998) (explaining record of
impairment established by history of                         Johnson thus acted under the presumption
classification of impairment).                            that Jordan still suffered from the same
                                                          impairment substantially affecting major life
   Further, Jordan's history of asthma                    activities as before. The court did not clearly
substantially affected a major life activity. He          err in refusing to credit Johnson's testimony
had severe trouble breathing, which itself is a           that the board did not reinstate Jordan because
major life activity. See Bridges v. City of               they thought he first needed to go to the
Bossier, 92 F.3d 329, 332 (5th Cir. 1996),                Retirement Board; Johnson did not testify to
cert. denied, 519 U.S. 1093 (1997) (citing                that effect until pressed on cross-examination.
29 C.F.R. § 1630.2(i)). For a time, he also
could not perform the most basic of daily
manual, ambulatory tasks, such as walking to
his mailbox.3 The court did not clearly err in              4
finding a history of severe asthma that                         The City argues that Jordan was healthy when
restricted Jordan's activity, and it correctly            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
   2
    See 29 C.F.R. § 1630.2(h); see also Deas v.           little evidence suggests he was disabled in the
River West, L.P., 152 F.3d 471, 476 n.8 (5th Cir.         major life activity of working. That is but one area
1998) (citing 29 C.F.R. § 1630.2(h)).                     that a disability can affect; here, his severe asthma
                                                          affected his breathing and such simple daily tasks
  3                                                       as retrieving his mail.
    See Sherrod, 132 F.3d at 1120 (“To determine
whether an individual is substantially limited in a
                                                             5
major life activity other than working, the court              See Zenor v. El Paso Healthcare Sys., Ltd.,
looks to whether that person can perform the              176 F.3d 847, 859 (5th Cir. 1999); Bridges,
normal activities of daily living.”).                     92 F.3d at 331; see also 29 C.F.R. § 1630.2(l).

                                                      4
                         C.
    The City argues that Jordan suffered no
adverse employment action at the city's hands.
For the 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
adverse 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 apply to the Retirement Board for
reinstatement SSsomet 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 of rules for applicants with a
disability history and a separate set of rules for
those who have no such history.”

   The city has not offered a business reason
for doing this. Instead, it appears that the city
simply placed additional hurdles in Jordan's
way, making it more difficult for him to be
reinstated simply because he has a history of
disability. By delaying reinstatement through
these dilatory tactics, the city took adverse
employment action against Jordan.

   AFFIRMED.




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