                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-30-2006

Armstrong v. Burdette Tomlin
Precedential or Non-Precedential: Precedential

Docket No. 03-3553




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                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 03-3553


              ARNIE ARMSTRONG,

                                    Appellant

                         v.

 BURDETTE TOMLIN MEMORIAL HOSPITAL;
     RICHARD KRAUS, Individually and in his
    capacity as employee of Defendant Burdette
Tomlin Memorial Hospital; EDWARD L. MOYLETT,
   Individually and in his capacity as employee of
   Defendant Burdette Tomlin Memorial Hospital


   On Appeal from the United States District Court
             for the District of New Jersey
        (D.C. Civil Action No. 00-cv-03441)
    District Judge: Honorable Stanley S. Brotman


            Argued September 15, 2004

Before: ALITO, AMBRO and FISHER, Circuit Judges
                   (Filed January 30, 2006)

William B. Hildebrand, Esquire (Argued)
Feldman & Hildebrand
1040 North Kings Highway
Suite 601
Cherry Hill, NJ 08034

       Attorney for Appellant

Timothy M, Crammer, Esquire (Argued)
Crammer & Bishop
508 New Jersey Avenue
Suit B-3
Absecon, NJ 08201

       Attorney for Appellees


                OPINION OF THE COURT


AMBRO, Circuit Judge

       Arnie Armstrong appeals from an order of the United
States District Court for the District of New Jersey denying his
motion for a new trial on his claims of failure to accommodate
his disability, as well as age discrimination and disability
discrimination. Armstrong contends that the District Court erred


                                2
in charging the jury regarding the elements of his claims and the
parties’ respective burdens of proof, and in approving jury
interrogatories. He also challenges the Court’s refusal to grant
a retrial on his claims brought under the Fair Labor Standards
Act. Although we are not persuaded by all of Armstrong’s
arguments, we reverse the District Court insofar as it denied his
motion for a new trial on his failure to accommodate and
disability discrimination claims, and remand for a new trial.

                    I. Factual Backgroud

        Armstrong began working at Burdette-Tomlin Memorial
Hospital (the “Hospital”)1 in 1980, following several years of
unemployment due to an earlier neck and back injury.2 Within
a year, Armstrong became a full-time shipping and receiving
clerk.3   Richard Kraus became Armstrong’s immediate


       1
         There are three appellees in this case: the Hospital,
Armstrong’s employer; Richard Kraus, Armstrong’s supervisor;
and Edward Moylett, the Hospital’s Human Resources Director.
Unless specifically named, the appellees hereafter will
collectively be referred to simply as the “Defendants.”
       2
        Armstrong’s injury stemmed from an on-the-job fall at
a previous employer.
       3
        His most recent job title was “distribution stock clerk.”
This position appears to be nearly identical or the same as
“shipping and receiving clerk.”

                               3
supervisor beginning in 1983 or 1984, and remained his
supervisor for the duration of Armstrong’s employment at the
Hospital.

        Armstrong alleges that he took the clerk position because
it did not involve heavy lifting that would exacerbate his back
and neck problems. The position required placing supplies on
carts, pushing the carts and putting the supplies away.
According to the Defendants, the position required clerks to be
able to lift items weighing up to 150 pounds.4 Armstrong
received satisfactory or better evaluations and regular raises
throughout his tenure at the Hospital. In 1998, his last full year
there, he received a perfect attendance award.

       A.     Missed Work

        Because of recurring back and neck pain, Armstrong
missed work for several extended periods during his
employment. He was out on disability for more than a month in
1993 (and his grievance challenging increased workloads
failed). He had allegedly told his union representative that he
could not physically perform the work. When he returned to
work a month later, a doctor’s note read that he could perform
only “light duty” functions. Because the stock clerk’s position
was not a “light duty” job, the Hospital said Armstrong would


       4
        It is unclear whether this lifting is actually required to
perform the job, or is just part of the official job description.

                                4
either have to bid on other jobs or return to his stock clerk
position with all the duties required of the position. Armstrong
chose to return to his stock clerk position and its full duties.

       Armstrong missed work again for several weeks after he
re-injured his back and neck during an unsuccessful attempt to
jump from a shelf onto a shaky stool in July 1996. Although
Armstrong claims the injury resulted from this fall, the
Defendants say that Armstrong continued to work without
complaint until October 17, 1996, three months after the fall,
and that Armstrong’s sworn application for disability benefits
revealed that he injured himself while working on his farm. Just
as he did following the 1993 injury, Armstrong again returned
to work with a doctor’s note stating that he could not perform
heavy lifting, pulling, or bending. But, when told by the
Hospital that a distribution stock clerk was not a “light duty”
position, and that he could therefore not return to his distribution
stock clerk job, Armstrong produced a new note saying that he
could work without restriction.

       B.      Alleged Harassment

       Armstrong alleges that he was harassed by Kraus and
other Hospital workers following his return to work. Kraus,
Armstrong contends, told him that he worked too slowly and
should consider retirement or find another, less demanding, job.
He allegedly told Armstrong, “[Y]ou’re getting old, we need to
have some young blood in the [H]ospital,” and he could not

                                 5
have a “cripple” working in his department. Armstrong further
claims that Kraus singled him out by increasing his workload
and assigning another employee to check and document his
work. Kraus denies these allegations and notes that Armstrong
never complained to Kraus’s supervisor of any harassment.5

       In addition to the claimed harassment by his immediate
supervisor, Armstrong asserts that Ed Moylett (to repeat, the
Hospital’s Human Resources Director) told Armstrong that he
(Moylett) would continually retaliate against Armstrong until he
could be fired. This threat allegedly occurred after Armstrong
refused to take early retirement. Moylett denies making these
comments.

       C.     Linen Distribution

       Beginning in 1997, the Hospital created a full-time
position for a linen distribution clerk after it ended a contract
with a private vendor. A linen distribution clerk injured his
back in November 1998, creating an opening in his department.
According to Armstrong, the linen job is considerably more
strenuous than his stock clerk job because it requires employees
repeatedly to bend down and pick up 20 to 30 pound bundles of


       5
          The Defendants also claim that Armstrong had
previously testified that the disparate treatment stemmed from
his refusal to “testify” about another employee’s poor work, and
not his age or disability.

                               6
linen from a five-foot-deep cart. The Defendants dispute
Armstrong’s claim that the linen job is more strenuous, noting
that the lifting required for that job—up to 50 pounds—is
considerably less than the 150 pounds required of distribution
clerks, and that the linen cart has a low-cut front, 30 inches from
the floor, so that short workers can easily reach the bundles.

        Kraus posted the linen job opening for several weeks, but
no one applied. Believing that he might be assigned to this job,
Armstrong sent several letters to Kraus in December 1998,
reminding Kraus about his chronic back problems and urging his
supervisor not to assign him to linen work. The Hospital
decided, however, that distribution stock clerks would share the
linen clerk’s functions when no linen clerk was on-duty, and
Armstrong’s union agreed, even after Armstrong filed a
grievance to prevent transfer of these duties. Armstrong was
told by Kraus that he would be required to perform the linen job
for at least six months.6



       6
         There is a technical factual dispute concerning the use
of the word “job.” Armstrong’s brief refers to his distribution
clerk position as his “old job” and the linen job as a separate
position. On the other hand, the Defendants do not consider the
linen work to be a different “job” from the distribution work, but
rather a function added to the distribution clerk’s job
responsibilities. How “job” is understood is important for a
jury’s consideration of what reasonable accommodations were
or were not available, since getting Armstrong’s “old job” back

                                7
       D.     Requested Accommodation

       Armstrong attempted to do the linen job, but after two
weeks he required emergency room treatment. Armstrong
brought a doctor’s note back to work, stating that he could not
perform excessive lifting, bending, pushing, or pulling because
it was “aggravating an old condition.” Armstrong claimed that
the main problem was that the linen cart had tall sides, and
reaching over the sides to lift the linen bundles re-aggravated his
condition. Although witnesses for the Defendants testified that
there is a low-cut front making it easier to remove linens,
Armstrong disputes this contention.

       According to Moylett, he advised Armstrong that he must
be capable of delivering linen in order to perform the essential
functions of the distribution stock clerk position. If he could
not, Armstrong could apply for other Hospital jobs. Moylett
contends that Armstrong never applied for other positions, and
that Armstrong also declined an option to switch to the night




would suggest a job transfer as an accommodation to
Armstrong’s disability, while if “job” is construed to mean
focusing on a position’s functions, it would suggest substituting,
replacing, or eliminating one of many position responsibilities
as an accommodation.

                                8
shift.7  Moylett further claims that he had Armstrong
demonstrate the duties he performed to determine the particular
problems he had delivering linen, and concluded that the only
problem appeared to be that Armstrong did not want to do this
work.8

       Armstrong says that he asked for his “old job” back
because he could perform all of those duties without injury, but
his request was refused. When Armstrong produced an
additional doctor’s note stating that he could not do excessive
bending, lifting, pulling, or pushing, Moylett determined that
Armstrong could not perform any essential function of a
distribution stock clerk, even though Armstrong claimed the
only task he could not perform was linen distribution, as the
distribution stock clerk position required heavier lifting and
more strenuous activity than the functions performed by a linen
clerk.




       7
        Presumably the linen functions do not need to be
performed during the night shift, but the Defendants did not say
this. Armstrong also did not mention this offer, and did not
acknowledge any open positions available for transfer.
       8
        At the heart of the dispute in this case is whether
Armstrong is genuinely unable to perform his work. The
Defendants appear to believe that Armstrong used the claim of
a handicap to avoid doing the jobs he did not wish to do.

                               9
       On February 2, 1999, Moylett sent Armstrong a letter
acknowledging that he had received the doctor’s note, and that
because Armstrong could not “perform the basic job functions
of your Distribution Clerk position,” Armstrong could: “1.
Transfer to a mutually agreed upon position in the hospital that
you will be able to satisfactorily perform, taking into account
your physical limitations. This option was offered to you in
May 1998 then again in January 1999. 2. Apply for temporary
disability insurance or 3. Resign from the [H]ospital.”
Armstrong was given until February 8, 1999 to make a decision,
after which he would be removed from the payroll based upon
his “inability to perform the job functions of your position.”

       According to Armstrong, because no other jobs were
available and since he could not have his “old job” back, he had
no choice but to go out on disability. Moylett says that he met
with Armstrong several times during the year that he was out on
disability to discuss possible job options with him. But when
Armstrong did not return to work within a year capable of
performing the distribution stock clerk duties (including the
linen clerk functions), he was formally terminated.

                   II. Procedural History

       Armstrong filed suit against the Defendants in July 2000
for uncompensated overtime under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201, et seq., and employment
discrimination under the New Jersey Law Against

                              10
Discrimination (“LAD”), N.J.S.A. § 10:5-1, et seq. In April
2002, he won a $50,000 verdict for emotional distress and loss
of enjoyment of life based upon the LAD hostile work
environment claim against the Hospital and Kraus.9 They filed
a motion for a new trial. The Court granted the motion in
August 2002 without restrictions or limitations on the scope of
the new trial.10

       At the second trial, Armstrong filed written objections to
the proposed charge and jury interrogatories. After they were
denied, the jury found in favor of the Defendants on all claims.
Armstrong now appeals.11

                     III. Standard of Review

       Generally, we review jury instructions for abuse of
discretion. United States v. McLaughlin, 386 F.3d 547, 551-52
(3d Cir. 2004). However, our review is plenary when the issue


       9
        The FLSA claim was dismissed on an unopposed
Federal Rule of Civil Procedure 50 motion at the close of
Armstrong’s case.
       10
         Prior to jury selection in the second trial, the Court
reaffirmed its dismissal of the FLSA claim because it had been
dismissed prior to jury submission at the first trial.
       11
            We have jurisdiction over this appeal under 28 U.S.C.
§ 1291.

                                11
is whether the instructions misstated the law. Id. at 552. We
must consider “whether the charge, ‘taken as a whole, properly
apprise[d] the jury of the issues and the applicable law.’” Smith
v. Borough of Wilkinsburg, 147 F.3d 272, 275 (3d Cir. 1998)
(quoting Limbach Co. v. Sheet Metal Workers Int’l Ass’n, 949
F.2d 1241, 1259 n.15 (3d Cir. 1991)). Harmless errors in parts
of a jury charge that do not prejudice the complaining party are
not sufficient grounds on which to vacate a judgment and order
a new trial. Watson v. S.E. Penn. Transp. Auth., 207 F.3d 207,
221-22 (3d Cir. 2000).

       We review a Court’s formulation of jury interrogatories
for abuse of discretion. Armstrong v. Dwyer, 155 F.3d 211, 214
(3d Cir. 1998). “The only limitation [on this discretion] is that
the questions asked of the jury be adequate to determine the
factual issues essential to the judgment.” Id. at 216 (citations
omitted). We also review for abuse of discretion a Court’s
determination of issues and claims to be re-tried following the
grant of a new trial. Vizzini v. Ford Motor Co., 569 F.2d 754,
760 (3d Cir. 1977).

                        IV. Discussion

       In order to prevail on his failure to accommodate claim
under the LAD, Armstrong had to establish four elements: (1)
he was disabled and his employer knew it; (2) he requested an
accommodation or assistance; (3) his employer did not make a
good faith effort to assist; and (4) he could have been

                               12
reasonably accommodated. See Taylor v Phoenixville Sch.
Dist., 184 F.3d 296, 317-320 (3d Cir. 1999); Tynan v. Vicinage
13, 798 A.2d 648, 657, 659 (N.J. Super. 2002).12

        Armstrong established the first element, as the jury
explicitly decided in response to an interrogatory that he was
disabled, and the Defendants acknowledge that Armstrong
informed the Hospital of his condition. Armstrong also
satisfied the second element, as it is undisputed that he
expressed the need for accommodation. However, the jury
never got to decide whether Armstrong satisfied the third and
forth elements because it first found that he had not satisfied an
additional element: that he requested a particular
accommodation. Unfortunately, although the District Court
required Armstrong to show this extra element, he was not
required by law to do so. As Armstrong’s failure to
accommodate claim was denied because he was erroneously
forced to demonstrate an element that New Jersey law does not
require, and because (as will be shown) but for this error a
reasonable jury could have found in favor of Armstrong, we
reverse and remand for a new trial on Armstrong’s failure to
accommodate claim.


       12
         The requirements for failure to accommodate claims
under New Jersey’s LAD have been interpreted in accordance
with the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101, et seq. Tynan, 798 A.2d 648, 657 (citing Taylor, 184
F.3d at 319-20).

                               13
       A.     Specific Reasonable           Accommodation
              Requirement

        In Taylor, we held that if an employer has adequate
notice of an employee’s disability, and the employee requests
accommodations for the disability, it becomes the responsibility
of the employer to “engage the employee in the interactive
process of finding accommodations.” 184 F.3d at 319. If an
“employee could have been reasonably accommodated but for
the employer’s lack of good faith,” the employee will win on his
failure to accommodate claim. Id. at 319-20.

        Taylor alleged that her employer failed to accommodate
reasonably her bipolar disorder after successfully performing
the duties of a school principal’s secretary for twenty years.
Upon her return to work, after being hospitalized for her mental
condition, Taylor’s employer increased the number of her job
responsibilities, changed her job description, and began
documenting Taylor’s errors. Id. at 302-05. Taylor’s request
for transfer was denied.

       The trial court concluded that, if Taylor’s disorder
qualified as a disability under the ADA, the “only
accommodation that she specifically requested, transfer to
another position, was not possible, and consequently, she was
not an otherwise qualified individual with a disability.” Id. at
302. On appeal, we determined that the trial court incorrectly
placed the entire burden to request a specific reasonable

                              14
accommodation on Taylor without placing any duty on the
employer to help her find a reasonable accommodation. Id. at
311. We explained that “[o]nce the employer knows of the
disability and the employee’s desire for an accommodation, it
makes sense to place the burden on the employer to request
additional information” to determine whether a reasonable
accommodation is available. Id. at 315. In that case, Taylor
presented evidence that her employer failed to make genuine
attempts to accommodate her disability, and had even hindered
attempts to find a reasonable accommodation. Id. at 320.

        Applying the four-part failure to accommodate claim
test, we reversed, as “a reasonable jury could conclude” that
Taylor (1) had a disability that the employer knew about, that
she had “(2) requested accommodations, (3) that the school
district made no effort to help Taylor find accommodations and
was responsible for the breakdown in the process, and (4) that
there were accommodations that the school district could have
provided that would have made Taylor able to perform the
essential functions of her job.” Id. Because there existed a
genuine factual dispute whether reasonable accommodations
existed, a jury had to determine if Taylor’s employer engaged
in a good faith effort to find a reasonable accommodation.

      In Tynan, the Superior Court of New Jersey rejected the
employer’s claim that it had no duty to provide an
accommodation because Tynan had never requested the specific
accommodation she sought. 798 A.2d at 656. Handicapped by

                             15
post-traumatic stress disorder and migraine headaches, Tynan
had specifically requested that she report to a different
supervisor and have her personnel records purged of warnings.
The Court determined that it was not important that her
requested accommodation may have been unreasonable, but
only that she had “requested assistance.” Id. at 657.

        Following our decision in Taylor, the Superior Court
held that Tynan had the burden only to “make clear that . . .
assistance . . . for . . . her disability” was desired. Id. at 657.
Once the request is made, “it is the employer who must make
the reasonable effort to determine the appropriate
accommodation.” Id. (citing Taylor, 184 F.3d at 311). “By
failing to initiate the interactive process, and forcing Tynan to
return without any accommodation” once she made her
handicap known and announced her desire for assistance, her
employer improperly “forced the termination.” Id. at 658. The
Court pointed out that certain reasonable accommodations were
likely available and remanded for a determination of whether
the employer acted in bad faith. Id. at 659.

       In Armstrong’s case, he lost on his failure to
accommodate claim because the jury answered “No.” to the
following interrogatory (C-3): “Do you find that the plaintiff
proved by a preponderance of the evidence that he requested
and was denied a reasonable accommodation by the
defendants?” (Emphases added.) Thus, the District Court
required that Armstrong show that he requested a reasonable

                                16
accommodation. Furthermore, the jury was instructed that
“[Armstrong] has the initial burden of proposing a reasonable
accommodation and the proposal must be reasonably specific
and compatible with the workplace. Accordingly, the plaintiff
must prove that some reasonable accommodation was available
and that he requested it.” (Emphases added.)

       In light of these instructions, there is a substantial
likelihood that the jury incorrectly thought Armstrong had the
burden of identifying and requesting from the Hospital a
specific reasonable accommodation when, in fact, he only had
to show he requested an accommodation in order to satisfy the
second prong of his failure to accommodate claim. As
Armstrong’s failure to accommodate claim was denied because
he was erroneously forced to demonstrate an element that he did
not need to prove, we must reverse and remand unless this error
was harmless. In other words, the Defendants could still prevail
if we conclude that Armstrong could not establish either the
third or fourth elements of his case — his employer did not
make a good faith effort to assist, or he could have been
reasonably accommodated.

        As for the third element, Armstrong contends that the
Defendants were never genuinely interested in accommodating
him, but simply wanted him to leave. He asserts that there were
no other job openings available, despite the Defendants’
suggestion that he apply for other jobs. Armstrong also points
to testimony by Moylett suggesting that the Defendants did not

                              17
attempt to accommodate him, but instead made a unilateral
decision that he either do the linen functions of the distribution
clerk’s job or he no longer would be employed. See Moylett’s
Testimony, quoted at pp. 27-29 of Appellant’s Brief (“Q. ‘[S]o
long as . . . Armstrong felt that he could not do the linen aspect
of the job he didn’t have a place, he didn’t have a job as a
distribution clerk at [the Hospital]?’ A. ‘[T]hat’s correct.’ Q.
‘[Y]ou either do it or you can’t do the job, period?’ A. ‘That’s
correct.’”). Thus a reasonable jury could find that Armstrong’s
employer did not make a good faith effort to assist.

       Turning to the fourth element (whether Armstrong could
have been reasonably accommodated), this may “include job
restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification
of equipment or devices, . . . and other similar accommodations
for individuals with disabilities.” Taylor, 184 F.3d at 319
(internal quotation marks omitted). Armstrong contends that he
could still perform all of the essential functions of his “old job,”
the distribution clerk position, but that he could not do the
bending required of the linen job. He complained specifically
about the effect of the linen cart on his handicap. If a jury
believed Armstrong, a new cart, better suited to his condition,
could potentially accommodate the handicap. Or, if more than
one clerk is on duty during the same shift, perhaps Armstrong
could take over some of the second clerk’s distribution




                                18
responsibilities in exchange for relief from his linen functions.13
Furthermore, the Defendants acknowledged that reasonable
accommodations may have existed.14 Finally, the jury’s finding
that Armstrong “was qualified to perform the essential functions
of the job with or without accommodation” is consistent with
the conclusion that Armstrong could have been reasonably
accommodated.

       In this context, we cannot conclude the erroneous
interrogatory and jury instruction were harmless.15

       13
         Moylett testified that there were five to six distribution
clerks in February 1999, all of whom were cross-trained to
perform linen clerk functions two days a week.
       14
          They argue, for example, that a “kitchen job” was
available to Armstrong if he wanted it.
       15
          In this case, we determine that a reasonable jury could
have concluded that the Defendants did not make a good faith
effort to engage in the interactive process. As a result, we need
not address at this stage of the proceedings Armstrong’s
participation in the interactive process. We note, however, our
statement in Taylor that, once an employer engages in the
interactive process, both parties have an obligation to take part
in the process in good faith.

              Participation [in the interactive
              process] is the obligation of both
              parties, . . . so an employer cannot

                                19
      B.     Age and Disability Discrimination Claims

       The discrimination inquiry under the LAD (applicable to
both Armstrong’s age and disability discrimination claims)
proceeds in three stages, and is borrowed from from McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Gerety v.
Atlantic City Hilton Casino Resort, 877 A.2d 1233, 1237 (N.J.
2005).

      To prove a prima facie case of discrimination
      [under the LAD], the plaintiff must demonstrate
      that he or she (1) belongs to a protected class; (2)
      . . . held a position for which he or she was
      objectively qualified; (3) . . . was terminated from
      that position; and (4) the employer sought to, or
      did[,] fill the position with a similarly-qualified
      person. The burden then shifts to the employer to



             be faulted if after conferring with
             the employee to find possible
             accommodations, the employee
             then fails to supply information that
             the employer needs or does not
             answer the employer’s request for
             more detailed proposals.

Taylor, 184 F.3d at 317 (emphasis added).


                              20
       prove a legitimate, non-discriminatory reason for
       the employment action. Plaintiff can respond by
       showing the employer’s proffered reason was
       merely pretext for the discrimination.

Id. (citations omitted).

              1.      Issues Common to Both the Age and the
                      Disability Discrimination Claims

                      a.    McDonnell Douglas Analysis

        We have noted that “[i]nstructions . . . explain[ing] the
subtleties of the McDonnell Douglas framework are generally
inappropriate when jurors are being asked to determine whether
intentional discrimination has occurred.”           Pivirotto v.
Innovative Sys., 191 F.3d 344, 347 n.1 (3d Cir. 1999).
Sometimes, elements of the framework may be given as part of
the instructions, but “judges should present them in a manner
that is free of legalistic jargon.” Id.

       The New Jersey courts agree, and have held, that the
McDonnell Douglas test should not generally be laid out
because the “prima facie case and the shifting burdens confuse
lawyers and judges, much less juries, who do not have the
benefit of extensive study of the law on the subject.” Mogull v.
Commercial Real Estate, 744 A.2d 1186, 1199 (N.J. 2000).
New Jersey’s Supreme Court recently approved Model Jury

                               21
Charges that “remove from the jury’s consideration the issues
of whether the plaintiff and the defendant have met the first and
second stages, respectively, of the McDonnell Douglas test,”
supporting instead their consideration by motion for judgment
at the end of the plaintiff’s case. New Jersey Model Jury
C h arg es, “In t r o d u c t o r y N o t e t o t h e C o u rt,”
http://www.judiciary.state.nj.us/charges/civil/221.htm.

       Even though a district court should not generally include
language on the burden shifting analysis or require a jury to
decide whether a prima facie case has been established, these,
by themselves, are insufficient to vacate a judgment. In Watson
v. Southeastern Pennsylvania Transportation Authority, we
concluded that harmless error in parts of a jury charge that do
not prejudice the complaining party are not grounds to order a
new trial. 207 F.3d 207, 221-22 (3d Cir. 2000). In
Armstrong’s case, the District Court did use legal jargon to
describe the McDonnell Douglas burden-shifting analysis,
required the jury to consider whether Armstrong established a
“prima facie” case of age or disability discrimination, and
instructed that the jury had to determine whether the Hospital’s
suggested reason for its actions was not a “pretext.”16
Nonetheless, we believe each instruction contained an
explanation that a reasonable juror could likely understand. As


       16
        The District Court’s relevant instructions on the
McDonnell Douglas burden-shifting framework are reprinted in
the Appendix that is attached to this opinion.

                               22
a result, though the District Court should not have instructed the
jury on the entire McDonnell Douglas burden-shifting analysis
and should have avoided sporadic use of “legalese,” these were
harmless errors.

                     b.      Absence of Rebuttable
                             Presumption Instruction

         Armstrong claims that the District Court erred by failing
to instruct the jury that establishing his prima facie case gives
rise to an inference or rebuttable presumption of discrimination.
An instruction should have appeared, he asserts, that stated that
the establishment of a prima facie case may give rise to an
inference of discrimination if the jury disbelieves the
employer’s explanation for its discharge decision. Smith v.
Wilkinsburg, 147 F.3d 272, 280 (3d Cir. 1998). However, the
exclusion of the instruction was harmless because the jurors
never reached the point where they would have been permitted
to infer discrimination for either of Armstrong’s discrimination
claims because: (1) as to Armstrong’s age discrimination claim,
the jury believed the Defendants’ explanation for the discharge
decision; and (2) as to Armstrong’s disability discrimination
claim, the jury found that Armstrong did not establish his prima
facie case.

                     c.      The Interrogatories

       Armstrong argues that the use of language in the

                               23
interrogatories such as “pretext,” and requiring the jurors to
answer interrogatories related to establishing a “prima facie”
case of discrimination and whether a legitimate reason for
discharge was proven, confused them. Although the word
“pretext” was used in two interrogatories,17 the corresponding
instructions, as noted, contained an explanation that a
reasonable juror could likely understand. Further, Armstrong’s
claim is incorrect that the jury should not have been asked to
decide whether the Defendants’ legitimate business reason was
pretext. There existed genuine factual disputes in this regard,
and the Judge appropriately presented this question for the jury.

        Armstrong also argues that the focus on his “discharge”
in the interrogatories, as the adverse employment action at issue,
was improper because his claims focused not on the “discharge”
occurring a year after he had gone out on disability, but on the
events that he alleges “forced” him to leave the Hospital’s
employ. However, Armstrong offers no evidence to suggest
that the jury was confused about the use of the term
“discharge.” The entire case revolved around the events
leading up to Armstrong’s leaving work, and there is no reason


       17
          Interrogatory A-4 asked whether the jury found, by a
preponderance of the evidence, that “the plaintiff proved that
defendant’s legitimate business reason [for dismissing
Armstrong] was a pretext for [age] discrimination?”
Interrogatory B-6 asked the same question with respect to
disability discrimination.

                               24
to believe that the jury considered the subsequent “discharge”
to be a separate event.

              2.     Issue Specific to Armstrong’s Age
                     Discrimination Claim — Incorrect
                     Instruction on Reason for Discharge

        Armstrong contends that the District Court’s instruction
on his age discrimination claim incorrectly stated the legitimate,
nondiscriminatory reason for firing him that the Defendants
gave at trial. The District Court instructed the jury that the
reason the Defendants gave for discharge was that Armstrong
was “unable to perform the essential functions of his job.”
Armstrong asserts that the reason the Defendants actually gave
for discharging him was that he was able but unwilling to
perform the essential functions of his job.

       The Defendants acknowledge this, but claim that the
Judge’s description of the reason was hardly incorrect, as
“[t]here was no confusion on anyone’s part during the trial what
the [D]efendants’ position was: If . . . [Armstrong] could, as he
always maintained, lift all of the items that a stock clerk must
lift except bundles of linen, then he was ‘unable’ to perform the
functions of the job because he refused to perform them and not
because he had any handicap or disability that prevented him
from doing so.”




                               25
       We need not determine which reason the jury thought the
Defendants gave, however, because the jury found in its
answers to interrogatories that (1) they articulated a legitimate
business reason for discharging Armstrong, and (2) the reason
they gave was not a pretext for age discrimination. Thus, the
jury found that Armstrong was discharged either because he
was unwilling or unable to do his job and that he was not
discharged because of age discrimination.

       As the jury found the Defendants’ legitimate business
reason was not a pretext for age discrimination, we may not
reverse the verdict against Armstrong on this claim on the basis
of the District Court’s erroneous description of the Defendants ’
proffered reason for discharge. Further, as we are not
persuaded by Armstrong’s other (previously addressed)
arguments related to his age discrimination claim, we affirm the
jury’s verdict against him on this claim.

              3.     Issues Specific to Armstrong’s
                     Disability Discrimination Claim

                     a.     Requirement that Armstrong
                            Show He was Discharged
                            Because of His Handicap

      The District Court instructed the jury that, to establish a
prima facie case on his disability discrimination claim,
Armstrong had to show that “he was discharged because of

                               26
[his] handicap.” (Emphasis added.) Armstrong only needed to
show he was discharged, however, and did not need to show it
was because of his handicap, to establish his prima facie case.
Nonetheless, because Armstrong did not raise this issue to the
District Court in his objections to the instructions and
interrogatories, and also did not raise the issue on appeal, it is
waived.

                     b.      Incorrect Instruction on Reason
                             for Discharge

       As previously discussed in the age discrimination context
(see Part IV.B.2 above), Armstrong argues that the District
Court’s instruction on his disability discrimination claim
incorrectly stated the asserted legitimate, nondiscriminatory
reason for firing Armstrong that the Defendants gave at trial.
We know from the jury’s answers to the disability
discrimination interrogatories and age discrimination
interrogatories (which show, inter alia, that the jury found that
Armstrong was discharged and that the Defendants sought
someone to perform the same work after he left) that: (1)
Armstrong established a prima facie case for disability
discrimination; (2) the Defendants articulated a legitimate
reason for discharging Armstrong; and (3) that reason was not
a pretext for discrimination. Thus, assuming the jury
understood the Judge’s instructions to mean what they plainly




                               27
and literally mean,18 the jury found that the Defendants
discharged Armstrong because he was unable to do the essential
functions of the job and not because of discrimination. The
problem is that was not enough for the Defendants to prevail.

        The jury instructions stated that the legitimate business
reason the Defendants gave for discharging Armstrong was the
belief that Armstrong could not physically perform the essential
functions of the job assigned to him because of his handicap.
In this context, the burden should have shifted to the
Defendants . See Jansen v. Food Circus Supermarkets, Inc., 541
A.2d 682 (N.J. 1988) (explaining that when “the employer
defends [after the establishment of a prima facie case] by
asserting . . . that the handicap prevented the employee from
working, the burden of proof . . . shifts to the employer to prove
that it reasonably concluded that the employee’s handicap

       18
           The Defendants assert that the District Court’s
description of the reason was not incorrect, and (as noted above)
that “[t]here was no confusion on anyone’s part during the trial
what the [D]efendants’ position was: If . . . [Armstrong] could,
as he always maintained, lift all of the items that a stock clerk
must lift except bundles of linen, then he was ‘unable’ to
perform the functions of the job because he refused to perform
them and not because he had any handicap or disability that
prevented him from doing so.” We are unwilling to assume,
however, that when the Court said “unable” the jury knew he
really meant something close to the opposite, i.e., “able but
unwilling.”

                               28
precluded performance of the job”); see also Ensslin v. Twp. of
N. Bergen, 646 A.2d 452, 457 (N.J. Super. App. Div. 1994)
(“Where, as here, an employer maintains that it has reasonably
concluded that the employee’s handicap precluded performance
of the job, and has terminated the employee for that reason, the
burden of proof is on the employer.”). Because the District
Court did not require the Defendants to satisfy this burden —
and therefore the jury was not properly instructed that the
Defendants ’ belief that Armstrong could not do the job because
of his physical limitations had to be reasonable and that the
burden of proving this was on the Defendants — we reverse and
remand for a new trial of Armstrong’s disability discrimination
claim.19

       C.     Denial of Retrial of Armstrong’s FLSA Claim

        We review for abuse of discretion determinations of
issues and claims to be retried following the grant of a new trial.
Vizzini, 569 F.2d at 760. Under Federal Rule of Civil
Procedure 59(a), a partial new trial is appropriate if the issue
being “retried is so distinct and separable from the others that
a trial of it alone may be had without injustice.” Gasoline


       19
         We note that, on remand, the burden should only shift
to the Defendants if they assert that they discharged Armstrong
because his handicap prevented him from working, but not if
they assert that they discharged him for a legitimate
nondiscriminatory reason.

                                29
Products Co. v. Caplin Refining Co., 283 U.S. 494, 500 (1931);
see also Stanton by Brooks v. Astra Pharm. Prods., 718 F.2d
553, 576 (3d Cir. 1983).

       Here, the FLSA was dismissed on an unopposed Federal
Rule of Civil Procedure 50 motion before the first case went to
the jury and after Armstrong had agreed that there was no
evidence to support the claim. As such, it is difficult to
understand how the FLSA claim could be so closely intertwined
with the LAD claims to require its retrial if both parties agreed
that no support existed for the FLSA claim, and yet sufficient
evidence existed to send the separate LAD claims to the jury.
Thus, the District Court did not abuse its discretion by ordering
a new trial on the LAD claims that were decided by the jury
while denying retrial on an issue previously dismissed for lack
of evidence.

                        V. Conclusion

       In this context we: (1) reverse and remand for a new trial
Armstrong’s failure to accommodate claim; (2) affirm the
verdict against Armstrong on his age discrimination claim; (3)
reverse and remand for a new trial Armstrong’s disability
discrimination claim; and (4) affirm the District Court’s
decision to deny retrial of Armstrong’s FLSA claim.




                               30
                          APPENDIX

     District Court’s Jury Instructions Regarding the
              McDonnell Douglas Framework

 [I.] INTENTIONAL AGE DISCRIMINATION CLAIM

        The plaintiff contends that the defendants took adverse
action against him because of his age in violation of the LAD.
Specifically, the plaintiff contends that the defendants with
discriminatory intent treated him differently from other
employees, transferred him to a position he could not perform,
and further forced him to take a leave of absence and,
ultimately, discharged him from his position as a distribution
stock clerk either because of or on account of his age. In order
to prevail on a disparate treatment age discrimination claim, the
plaintiff must show that the defendants acted with
discriminatory intent.

       Briefly summarized, your analysis will proceed in three
stages. First, you must evaluate whether the plaintiff establishes
a prima facie, or initial, case of discrimination. If the plaintiff
succeeds in establishing a prima facie case, the burden shifts to
the defendants “to articulate some legitimate, nondiscriminatory
reason for the adverse employment action.” Finally, should the
defendants carry this burden, the plaintiff must then have an
opportunity to prove by a preponderance of the evidence that the



                                31
legitimate reasons offered by the defendants were not the true
reasons, but were a pretext for discrimination.

         A. PLAINTIFF’S PRIMA FACIE CASE

       The plaintiff’s prima face case is established if he shows,
by the preponderance of the evidence, that:

       (1)     he is member of a class protected by the anti-
               discrimination law;

       (2)     he was performing his job at a level that met his
               employer’s legitimate expectations;

       (3)     he was discharged; and

       (4)     the employer sought someone to perform the same
               work after he left.

        I charge you that the plaintiff was 58 years old at the time
of the alleged adverse employment action and, as such, he was
a member of a protected class. Therefore, the first element of
the plaintiff’s prima facie case is satisfied. If you find that the
plaintiff has not proven the last three elements by a
preponderance of the evidence, however, you must decide in
favor of the defendants on the plaintiff’s claim for intentional
age discrimination in violation of the LAD.



                                32
              B. DEFENDANTS’ REBUTTAL

       If you find that the plaintiff has proven his initial case,
the defendants must articulate a legitimate, nondiscriminatory
reason for its [sic] decision. The defendants are not required to
prove the validity of its [sic] reason by a preponderance of the
evidence, but need only articulate facts or produce evidence
sufficient to raise a genuine question as to whether the plaintiff
was discriminated against because of his age. Here, the
defendants maintain that they discharged him because he was
unable to perform the essential functions of his job.
Nevertheless, the plaintiff may still prevail on his claim if he has
proven that the reason the defendants present is merely a pretext
for age discrimination.

                         C. PRETEXT

       To prove pretext, the plaintiff must show by a
preponderance of the evidence that the defendants’ reason is not
worthy of belief or that, more likely than not, it is not the true
reason or not the only true reason for its action.

        If you find that the plaintiff has not satisfied his burden
of proving that the defendants’ reason is pretext, then you must
return a verdict in favor of the defendants. If the plaintiff
demonstrates that more likely than not, age discrimination was
at least one reason for his discharge, then you must also decide



                                33
whether the consideration of age was a determinative factor in
the decision.

             D. DETERMINATIVE FACTOR

        To succeed on his intentional age discrimination claim,
the plaintiff must prove not only that his age was a factor in the
defendant’s decision, but that his age was a determinative factor
in the challenged treatment. The plaintiff need not prove that
his age was the defendant’s sole or exclusive consideration, but
that his age made a difference in the decision to discharge him.
If you find that the plaintiff’s age was not a determinative factor
in the defendants’ employment decision, you must find in favor
of the defendants. If you find that the plaintiff’s age was a
determinative factor in the defendant’s employment decision,
you must find in favor of the plaintiff.

        Remember that the plaintiff bears the ultimate burden of
proving that more likely than not, the defendants practiced
intentional age discrimination against him. Even if you
determine that the defendants’ stated reason was pretext or a
cover-up, you may or may not conclude that the plaintiff was,
more likely than not, a victim of intentional age discrimination.
Furthermore, you should note that you are to consider the
totality of the circumstances and all the relevant, credible
evidence presented during the trial in making your determination
as to whether the defendants more likely than not discriminated
against the plaintiff because of his age in violation of the LAD.

                                34
[II.] INTENTIONAL DISABILITY DISCRIMINATION
                    CLAIM

        The plaintiff contends that the defendants took adverse
action against him because of his disability in violation of the
LAD. Specifically, the plaintiff contends that the defendants
with discriminatory intent treated him differently from other
employees, transferred him to a position he could not perform,
and further forced him to take a leave of absence and,
ultimately, discharged him from his position as a distribution
stock clerk either because of or on account of his disability. In
order to prevail on a disparate treatment disability discrimination
claim, the plaintiff must show that the defendants acted with
discriminatory intent.

       Briefly summarized, your analysis will proceed in three
stages. First, you must evaluate whether the plaintiff establishes
a prima facie, or initial, case of discrimination. If the plaintiff
succeeds in establishing a prima facie case, the burden shifts to
the defendants “to articulate some legitimate, nondiscriminatory
reason for the adverse employment action.” Finally, should the
defendants carry this burden, the plaintiff must then have an
opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendants were not the true
reasons, but were a pretext for discrimination.




                                35
         A. PLAINTIFF’S PRIMA FACIE CASE

       The plaintiff’s prima facie case is established if he shows,
by the preponderance of the evidence, that:

       (1)    he was handicapped within the meaning of the
              statute;

       (2)    he was performing his job at a level that met his
              employer’s legitimate expectations;

       (3)    he was discharged because of the handicap; and

       (4)    the defendants sought someone to perform the
              same work after he left.

        To establish the first of these elements, plaintiff must
prove that he suffered from a handicap. “Handicapped” means
suffering from physical disability, infirmity, malformation or
disfigurement which is caused by bodily injury, birth defect or
illness including epilepsy, and which shall include, but not be
limited to, any degree of paralysis, amputation, lack of physical
coordination, blindness or visual impediment, deafness or
hearing impediment, muteness of speech impediment or physical
reliance on a service or guide dog, wheelchair, or other remedial
appliance or device, or from any mental, psychological or
developmental disability resulting from anatomical,
psychological, physiological or neurological conditions which

                                36
prevents the normal exercise of any bodily or mental functions
or is demonstrable, medically or psychologically, by accepted
clinical or laboratory diagnostic techniques. In addition,
“handicapped” also includes someone who is perceived to be
handicapped or has a record of such impairment. It makes no
difference whether the disability is work related or not.

       It is the plaintiff’s initial burden to prove these four
elements by a preponderance of the evidence. If you find that
the plaintiff has not proven these elements by a preponderance
of the evidence, you must decide in favor of the defendants on
the plaintiff’s claim for intentional disability discrimination in
violation of the LAD.

              B. DEFENDANTS’ REBUTTAL

       If you find that the plaintiff has proven his initial case,
the defendants must articulate a legitimate, nondiscriminatory
reason for its [sic] decision. The defendants are not required to
prove the validity of its [sic] reason by a preponderance of the
evidence, but need only articulate facts or produce evidence
sufficient to raise a genuine question as to whether the plaintiff
was discriminated against because of his disability. Here, the
defendants maintain that they discharged him because he was
unable to perform the essential functions of his job.
Nevertheless, the plaintiff may still prevail on his claim if he has
proven that the reason the defendants present is merely a pretext
for disability discrimination.

                                37
                        C. PRETEXT

       To prove pretext, the plaintiff must show by a
preponderance of the evidence that the defendants’ reason is not
worthy of belief or that, more likely than not, it is not the true
reason or not the only true reason for its action.

       If you find that the plaintiff has not satisfied his burden
of proving that the defendants’ reason is pretext, then you must
return a verdict in favor of the defendants. If the plaintiff
demonstrates that more likely than not, disability discrimination
was at least one reason for his discharge, then you must also
decide whether the consideration of disability was a
determinative factor in that decision.

             D. DETERMINATIVE FACTOR

        To succeed on his intentional disability discrimination
claim, the plaintiff must prove not only that his disability was a
factor in the defendant’s decision, but that his disability was a
determinative factor in the challenged treatment. The plaintiff
need not prove that his disability was the defendant’s sole or
exclusive consideration, but that his disability made a difference
in the decision to discharge him. If you find that the plaintiff’s
disability was not a determinative factor in the defendants’
employment decision, you must find in favor of the defendants.
If you find that the plaintiff’s disability was a determinative



                               38
factor in the defendants’ employment decision, you must find in
favor of the plaintiff.

       Remember that the plaintiff bears the ultimate burden of
proving that more likely than not, the defendants practiced
intentional disability discrimination against him. Even if you
determine that the defendants’ stated reason was pretext or a
cover-up, you may or may not conclude that the plaintiff was,
more likely than not, a victim of intentional disability
discrimination. Furthermore, you should note that you are to
consider the totality of the circumstances and all the relevant,
credible evidence presented during the trial in making your
determination as to whether the defendants more likely than not
discriminated against the plaintiff because of his disability in
violation of the LAD.




                              39
