                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-2-2004

Verzeni v. Postmaster General
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1652




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                                                                  NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                            ______________________

                                     No.: 03-1652
                              _____________________

                               THOMAS J. VERZENI,

                                                    Appellant
                                           v.

                                *JOHN E. POTTER,
                                 Postmaster General
                               United States Post Office

                            *(Pursuant to Rule 43(c), F.R.A.P.)


                    Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 99-cv-01683)
                    District Judge: Honorable Richard P. Conaboy


                             Argued on February 9, 2004

          Before: SCIRICA, Chief Judge, ROTH and MCKEE Circuit Judges

                          (Opinion filed : September 2, 2004)

Jordan B. Yeager, Esquire (Argued)
Bockvar & Yeager
8 West Oakland Avenue
Doylestown, PA 18018

Anne P. Felker, Esquire
539 Center Street
P.O. Box 190
Bethlehem, PA 18016
       Counsel for Appellant

Thomas A. Marino
United States Attorney

J. Justin Blewitt, Jr. (Argued)
Assistant U.S. Attorney
Office of the United State Attorney
235 North Washington Avenue, Suite 311
Scranton, PA 18501

       Counsel for Appellee



                                         OPINION



ROTH, Circuit Judge:

       This case concerns the dismissal of a Postal Service employee whose reports to his

supervisor evidenced a severe mental illness, but whose work was otherwise satisfactory. The

employee, Thomas Verzeni, was dismissed by the Postal Service, and he brought suit under

the Rehabilitation Act of 1973, claiming that he was discriminated against because of his

disability. The Postal Service responded that Verzeni was not discriminated against because

of his disability and that they had a legitimate business reason for firing him – namely, to

ensure the safety of the workplace. A jury decided against Verzeni. The issue we face on

this appeal is whether the instructions given to the jury adequately enabled the jury to

consider the complexities of discrimination in a claim brought for a disability.

                    I. Factual Background and Procedural History

                                             2
       Thomas Verzeni began working as a letter carrier for the United States Postal Service

in January 1985. He transferred to the Allentown postal facility in February of 1994.

Verzeni performed his duties satisfactorily and had not received any complaints about his

work performance from customers, co-workers, or the Allentown Postmaster, William

Wescoe.

       Verzeni had a history of psychiatric problems. He had been hospitalized twice for

these problems in October 1992 and April 1993. Following his hospitalization in both cases,

the Postal Service ordered a fitness for duty exam and only allowed him to return to his

normal duties when he had been cleared by the doctor administering the exam.

       On June 9, 1994, Verzeni told his immediate supervisor, Robert Hawxhurst, that he

was being harrassed in his home at night.        Verzeni thought that his neighbors were

purposefully waking him up in the middle of the night in order to try to induce him to have

a heart attack. Verzeni told Hawxhurst that his neighbors deliberately yelled through his

vents and shined lights into his windows at hours that corresponded to calibers of handguns

such as at 4:44 or 2:38. In addition, Verzeni thought that someone was spiking the

community well with No-Doz so that he would not be able to sleep. This conversation

caused Hawxhurst to become concerned that Verzeni was not mentally well. Hawxhurst

spoke to Postmaster Wescoe about this. Wescoe placed Verzeni on administrative leave and

ordered him to undergo another fitness for duty exam.

       The psychiatrist who examined Verzeni, Dr. Paul Orr, concluded that Verzeni had



                                             3
chronic paranoid schizophrenia. Verzeni, an avid hunter, owned several guns, and Dr. Orr

recommended that Verzeni be urged to give them up. Additionally, it was Dr. Orr’s

recommendation that Verzeni not be allowed back on duty until his condition improved.

Verzeni sought a second opinion and was seen by Dr. Anthony Galdieri who also felt Verzeni

needed immediate psychiatric attention and should not return to duty. Both doctors were

concerned that Verzeni might react violently if he should feel threatened enough, even

though Verzeni had no history of violent behavior.

       On August 22, 1994, Postmaster Wescoe gave Verzeni three options: agree to be

treated by a psychiatrist, possibly with medication; apply for disability retirement; or resign

from the Postal Service. There is a factual dispute over whether or not Verzeni choose any

of the options, but on September 16, 1994, the Postal Service terminated Verzeni, stating that

he did not meet the requirements of his position because he was not fit for duty.

        Verzeni brought suit in the M iddle District of Pennsylvania alleging that Postmaster

Wescoe unlawfully discriminated against him because of his mental disability in violation

of the Rehabilitation Act of 1973. Postmaster Wescoe responded that, despite Verzeni’s

mental condition, he had a legitimate, nondiscriminatory reason for firing Verzeni. At the

end of the jury trial, the District Court ruled as a matter of law that Verzeni had established

that he had a disability and was “otherwise qualified” to do his job. The judge instructed the

jury that if it believed the evidence that the Postal Service put forth, then it should find that

the Postal Service had a nondiscriminatory reason for its actions against Verzeni. The judge



                                               4
also told the jury that the Postal Service could escape liability if the jury found the Postal

Service’s explanation to be reasonable. The jury was asked to answer two questions:

whether the Postmaster had discriminated against Verzeni; and, if so, what the damages

should be. The jury determined that Postmaster Wescoe had not discriminated against

Verzeni, and thus it did not assess damages.

       Verzeni appealed, alleging that the District Court improperly instructed the jury, and

that his motion seeking the District Court to rule as a matter of law that Postmaster Wescoe

discriminated against Verzeni should have been granted below.

                         II. Jurisdiction and Standards of Review

       We have jurisdiction under 28 U.S.C. §1291. We review de novo an order denying

a motion for judgment as a matter of law. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153,

1166 (3d Cir. 1993).      We also have plenary review over determining whether jury

instructions misstate a legal standard. Savarese v. Agriss, 883 F.2d 1194, 1202 (3d Cir.

1989). We look at the entire set of instructions to the jury and determine if they adequately

contain the law applicable to the case and properly apprise the jury of the issues in the case.

Douglas v. Owens, 50 F.3d 1226, 1233 (3d Cir. 1995).

                                        III. Discussion

A. The Test Under the Rehabilitation Act

       Under the Rehabilitation Act, Verzeni had the burden of proving four elements: 1)

that he had a disability, 2) that he was otherwise qualified to carry out the essential functions



                                               5
of his job, 3) that the defendant discriminated against him because of his disability, and 4)

that he suffered damages as a result of this discrimination. Donahue v. Consol. Rail Corp.,

224 F.3d 226, 229 (3d Cir. 2000). The District Court ruled as a matter of law that Verzeni

had a disability; there is no argument that Verzeni’s mental impairment fell under the Act as

it limited “one or more of the major life activities of such individual.” 29 C.F.R. § 1630.2(h)

(2004); 42 U.S.C. §12111(8) (2004). The District Court also ruled as a matter of law that

Verzeni was “otherwise qualified.” Although that determination is not directly on appeal,

because it can easily be confused with the discrimination prong, we discuss it briefly below.




       The focus of this appeal, however, is on the discrimination prong. M ore specifically,

we will discuss the business necessity defense to a charge of discrimination and how it relates

to the direct threat defense, first established by the Supreme Court in School Board of Nassau

County v. Arline, 480 U.S. 273 (1987), and later codified by Congress in 42 U.S.C.

§12113(b) (2004). As we make clear, the business necessity defense is separate from the

direct threat defense established by the Supreme Court in Arline. An employer does not

necessarily have to use the direct threat defense anytime it is imposing a qualification

standard that may have an adverse impact on an employee with a disability. However, many

of the same concerns, which led the Supreme Court to formulate its four-part test in Arline,

also arise in business necessity defense cases. A jury must take heed of these concerns, and

the jury’s instructions, as outlined more fully below, should ensure that its decision is based



                                              6
on an assessment of the objective medical facts about the disability.

       1. The Lower Court’s Holding That Verzeni Was Otherwise Qualified

       The District Court ruled as a matter of law that Verzeni was “otherwise qualified” to

perform the essential functions of his job. As noted by the Second Circuit in Teahan v.

Metro-North Commuter R.R. Co., 951 F.2d 511, 516 (2d Cir. 1991), “[i]f the consequences

of the handicap are such that the employee is not qualified for the position, then a firing

because of that handicap is not discriminatory . . ..” We agree with the many Circuit Courts

that have already recognized that the ability to “handle reasonably necessary stress” of the

job and “work reasonably well with others are essential functions for any position,” the

absence of which would mean than an employee is not “otherwise qualified.” Williams v.

Motorola Inc., 303 F.3d 1284, 1290-91 (11th Cir. 2002). See also Palmer v. Circuit Ct. of

Cook Cty., 117 F.3d 351 (7th Cir. 1997) (noting that handling the stress of a job is part of

being otherwise qualified); Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 674-75 (1st Cir.

1995) (arguing that merely being able to do the physical actions of a job does not necessarily

make a person otherwise qualified); Pesterfield v. Tenn. Valley Auth., 941 F.2d 437, 441-42

(6th Cir. 1991) (discussing the requirement in any job that the employee be able to interact

with others).   Considering the severity of Verzeni’s paranoia and delusions, and the

testimony of his two doctors that he might become violent in the workplace, we believe that

there was a strong basis upon which the District Court could have decided that Verzeni was

not otherwise qualified. W e note, however, that the term “otherwise qualified” takes into



                                              7
account any reasonable accommodations the employer could provide, see 42 U.S.C.

§12111(8) (2004), and we must assume that the District Court was looking at Verzeni in that

light.   Specifically, the District Judge must have been considering Verzeni otherwise

qualified only because his symptoms could have been controlled through the therapy and

medications offered by the Postal Service.1 The record clearly shows that, when Verzeni did

not have these delusional thoughts, he performed the duties of his job satisfactorily. We

make no determination whether the District Court’s decision on “otherwise qualified” is

correct, however, since this prong of the test is not on direct appeal and was not briefed by

either party. We note only that there was substantial evidence that Verzeni would not have

been able to perform the essential functions of his job if his delusional thoughts and paranoia

continued. In this context, the fact that the District Court ruled as a matter of law that

Verzeni was “otherwise qualified” does not settle the issue of whether he was discriminated

against as a matter of law.

         2. The Prima Facie Case for Discrimination

         Verzeni had to prove that he was fired because of his disability. There is really no

question here that Verzeni was fired because of the direct effects of his mental illness.


   1
    As an aside, we note that if Verzeni could only perform his job with medication and
he refused that medication, he would not be considered “otherwise qualified.” See 29
C.F.R. §1630.9(d) (2004) (stating that “if such individual rejects a reasonable
accommodation . . . that is necessary to enable the individual to perform the essential
functions of the position held . . . and cannot, as a result of that rejection, perform the
essential functions of the position, the individual will not be considered a qualified
individual with a disability”).

                                              8
Furthermore, the effects of his illness cannot be separated from the disability itself. See

Teahan v. Metro-North Commuter R. R. Co., 951 F.2d 511, 516 (2d Cir. 1991).

Verzeni had a severe psychotic emotional disorder. He failed the fitness for duty exam

because of this disorder. The only reason that a psychiatric examination was even ordered

was because Verzeni communicated the existence of his disorder to his supervisor. Verzeni

was not fired because of poor performance or other actions he had taken but because of what

his disability might cause him to do in the future. This potential for future misconduct is an

effect of his disability.

       We need first of all to distinguish this future effect from those cases in which courts

have made a distinction between the employee’s disability and his conduct. In these “past

conduct” cases, the employee’s conduct, by itself, was so egregious that a non-disabled

employee in that situation would have been fired. See Williams v. Widnall, 79 F.3d 1003,

1007 (10th Cir. 1996) (noting that such cases involve “egregious behavior” that if “exhibited

by a nondisabled employee, would require termination”); Maddox v. Univ. of Tenn., 62 F.3d

843 (6th Cir. 1995) (alcoholic employee operated a motor vehicle as part of his job while

drunk); Little v. FBI, 1 F.3d 255 (4th Cir. 1993) (alcoholic employee was fired when he was

found intoxicated while on duty multiple times); Boldini v. Postmaster General, 928 F. Supp.

125 (D.N.H. 1995) (employee with an emotional disorder had created a hostile and anti-

social working environment and failed to accept the authority of her supervisors).

       Verzeni had not violated any work rules except for the general requirement that he be



                                              9
mentally fit (i.e. not have a mental illness). It is clear that he wasn’t fired because of his

conduct, but rather because of the future actions that his mental illness might cause. If future

misconduct did occur, it might well be grounds for discharge, but the employer’s concern

was to protect the workplace by keeping the employee out of the workplace until he had been

treated so that future misconduct would not occur. The Postal Service asserts that Verzeni

was fired because he would not take steps necessary to render him fit and to prevent that

future misconduct from occurring.

       Our inquiry, however, does not end with this determination that the effects of his

disability did cause Verzeni to be fired. Under the Rehabilitation Act, Verzeni has not

proven that he was discriminated against unless he can show that he was fired due to his

disability and the employer does not have an applicable defense. Verzeni specifically

brought this claim challenging the general mental fitness requirement of the Postal Service

under 29 C.F.R. §1630.10, which makes it unlawful for an employer to use a qualification

standard that screens out individuals with disabilities unless the standard is “shown to be job-

related for the position in question and is consistent with business necessity.” Therefore,

once Verzeni successfully showed that he was fired because of his disability, the Postal

Service could still rebut the charge of discrimination by using the business necessity defense.

       3. The Business Necessity Defense

       The business necessity defense requires that a qualification be both job related and

consistent with business necessity. Verzeni argues that to satisfy the business necessity



                                              10
defense, when the business necessity concerns an employee posing a safety risk, the direct

threat defense must be met. The direct threat defense was first established by the United

States Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987). In

Arline, an elementary school teacher was fired because she had tuberculosis. The Court there

noted that the Rehabilitation Act “reflected Congress’ concern with protecting the

handicapped against discrimination stemming . . . from simple prejudice . . . [and] the fact

that the American people are simply unfamiliar with and insensitive to the difficulties

[confronting] individuals with handicaps.” Id. at 279 (citing S. Rep. No. 93-1297, at 50

(1974)). Thus, in order to address this concern, when an adverse action is taken against a

disabled employee due to safety concerns, the Court required that lower courts make findings

of facts based on sound medical judgments as to “the nature of the risk,” “the duration of the

risk,” “the severity of the risk,” and “the probabilities the disease will . . . cause varying

degrees of harm.” Id. at 2. Arline dealt specifically with a physical disability, but the same

applies for mental disabilities as well. See 42 U.S.C. §12102 (2004).

       After Arline, Congress amended the Rehabilitation Act and the Americans with

Disabilities Act to include such a defense. However, although the direct threat defense is

mentioned in the applicable amendments to the ADA, it is fairly clear that the statute does

not require that the direct threat defense be used across-the-board when considering a safety

qualification.   42 U.S.C. §12113 (2004) lays out the defenses available to safety

qualifications: “It may be a defense to a charge of discrimination under this chapter that an



                                             11
alleged application of qualification standards . . . has been shown to be job-related and

consistent with business necessity . . ..” The statute goes on to mention the direct threat

defense: “The term ‘qualification standard’ may include a requirement that an individual

shall not pose a direct threat to the health or safety of other individuals in the workplace.”

Id. (emphasis added). Clearly, by the use of the word “may,” Congress intended to include

the direct threat defense as a permissive factor to consider. That permissive inclusion does

not, however, require that it always be invoked when considering safety-related qualification

standards.

       Nevertheless, the EEOC would require that the direct threat defense be used when

considering safety-related qualification standards. The EEOC has issued an Interpretive

Guidance, which states that “an employer must demonstrate that the requirement, as applied

to the individual, satisfies the ‘direct threat’ standard . . . in order to show that the

requirement is job related and consistent with business necessity.”         29 C.F.R. App.

1630(b),(c) (2004). This requirement does not, however, comport with the plain language

of the statute. Indeed, we agree with the Fifth Circuit Court of Appeals that this requirement

should not be accorded Chevron deference since it is not part of the regulation itself. See

EEOC v. Exxon Corp., 203 F.3d 871, 873 (5th Cir. 2000). For that reason, we will give the

Interpretive Guidance due deference only “to the extent it is reasonable and harmonizes with

the plain language of the statute, its origin and purposes.” Id.

       Furthermore, although this specific issue has not been before the Supreme Court, the



                                             12
Court has expressed its skepticism of the EEOC’s interpretation, noting that “it might be

questioned whether the Government’s interpretation, which might employ a higher burden

on employers to justify safety-related qualification standards than other job requirements, is

a sound one . . ..” Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 569 n.15 (1999); see also

Chevron, 536 U.S. 73, 80 n.3 (refusing to decide “whether all safety-related qualification

standards must satisfy the ADA’s direct-threat standard”). The Ninth Circuit Court of

Appeals has rejected the EEOC’s interpretation, noting that “the EEOC’s interpretation

cannot be squared with the plain, limited language of the direct threat defense.” Morton v.

United Parcel Service, Inc., 272 F.3d 1249, 1258 n.10 (9th Cir. 2001). We agree with the

Ninth Circuit and hold that a defendant need not satisfy the direct threat defense every time

that a safety qualification has an adverse impact on a disabled employee. It may be sufficient

for the employer simply to rely on the business necessity defense as laid out in the statute.

Thus, the District Court did not err in failing to instruct the jury on the direct threat defense.

       Our conclusion that the direct threat defense established in Arline does not necessarily

have to be satisfied, does not mean, however, that the concerns that Arline addressed do not

also arise when qualification standards related to safety have an adverse impact on the

disabled.   In passing the Rehabilitation Act and the ADA , Congress wanted to stop

discrimination based on “archaic attitudes” and on the “fact that the American people are

simply unfamiliar with and insensitive to the difficulties [confronting] individuals with

handicaps.” Arline, 480 U.S. at 279 (quoting S. Rep. No. 93-1297, at 50 (1974)). In such



                                               13
cases, the business necessity defense cannot be based on unfounded fears or uninformed

attitudes about the disability. Although the petitioners do not technically have to satisfy the

direct threat defense, a factfinder must face the same concerns that the Supreme Court

addressed in Arline about the nature of the risk, the duration of the risk, the severity of the

risk, and the probabilities that the disability will cause harm. See Arline, 480 U.S. at 287.

For a safety qualification to meet the business necessity defense, it must be based on current

medical knowledge about the disability and on the real risks that the disability may present.

Any jury considering this defense should be instructed not to base its determination on

unfounded fears, but only on medically accurate facts. Even an employer’s good faith

actions will not save him if the employer is misinformed about the realities of the disability.

In such a case, the jury should “assess the objective reasonableness of the views of health

care professionals without deferring to their individual judgments.” Bragdon v. Abbott, 524

U.S. 624, 650 (1998). Not providing these warnings to the jury takes the risk that the jury’s

determination will be based on the same “archaic attitudes” Congress was trying to prevent.

       Whether the Postmaster satisfied the business necessity defense in this case was

properly left to the jury. There was ample medical testimony that Verzeni was not only

seriously ill but could become violent and be a danger to the workplace if he felt threatened

enough. Such a danger would certainly be job related, pertaining to an “essential function

of the job.” 42 U.S.C. §12111(8) (2004). Based on the experts’ testimony, and Verzeni’s

own account of his condition, a reasonable jury could clearly consider the risk of harm based



                                              14
on objective medical testimony and conclude that the Postmaster’s fit for duty qualification

standard was job related and consistent with business necessity.

B. The Jury Instructions

       The District Court in this case was simply trying to “put issues in straightforward

language so the jury can understand the issues, the law, and their obligation.” Memorandum

and Order, Verzeni v. Henderson, No. 3:99-CV-1683 (Jan. 31, 2003). The judge aptly noted

that the “density of law addressing employment disability claims is well-recognized,” and it

is a difficult task to convey this law to a jury. However, in this case, the District Court’s

instructions to the jury went too far in simplifying the issues.

       The jury was left with the improper impression that the Postal Service could escape

liability if the jury found their explanation of why they fired Verzeni to be reasonable.

Specifically, the jury was told: “If you find that the defendant acted responsibly and

reasonably under the law . . . you will have to find in favor of the defendant,” and that the

Rehabilitation Act “does not prohibit an adverse decision that is based on the proper and

reasonable individualized review of an employee’s condition and . . . the employer’s

business.”

       This simplification of the standard to “responsibly and reasonably” does not, without

more, satisfy the business necessity defense.         There is no good faith defense to

discrimination, and such discrimination does not have to be overt or hostile to be actionable.

This simplification can lead to the very discrimination Congress was trying to prevent with



                                              15
the ADA. The jury’s perception of what is reasonable may be misinformed by archaic

notions and its own misunderstanding of the disability. Great care must be taken when

instructing the jury in these cases that they understand that a defendant’s business necessity

defense must be based on objective medical facts and should take into account the same

concerns that the Court mentioned in Arline, including what real harm the disability might

cause and how severe the harm might be, based on an assessment of objective medical

testimony.2

       In short, in assessing the business necessity defense, the jury should have been

instructed that the Postal Service had the burden of showing that their rationale for firing

Verzeni was both job related and a business necessity. To be a business necessity, it must

be reasonable, which means that it is well informed in the light of current objective medical

knowledge considering the medically accurate nature of the risk, the duration of the risk, the

severity of the risk, and the probabilities that the disability will cause harm. The jury’s

determination must not be based on unfounded fears. Although they should not simply defer

their individual judgments to health professionals, they should consider the objective views

of the medical experts.

       The defendants do not have to meet the direct threat defense as laid out in Arline, but




   2
     The portion of the jury instruction quoted by the dissent in footnote 1 gives us equal
pause. The language there, stating “if the defendant, in your judgment, is right or if you
believe that, then he is not entitled to recover” (emphasis added), once again would
permit the jury to employ its own subjective perception in deciding the case.

                                             16
a judge’s instructions must make the jury aware of the same concerns that the Supreme Court

addressed in Arline so that the jury does not rely on archaic or uninformed notions of what

may be a business necessity.

                                         IV. Conclusion

          For the reasons stated above we will vacate the judgment of the District Court and

remand this matter for a new trial.




SCIRICA, Chief Judge, concurring in part and dissenting in part.




          I concur with much of the majority’s analysis, in particular with its holding that a

defendant need not satisfy the direct threat defense every time a safety qualification has

an adverse impact on a disabled employee and also with its formulated jury instruction

adapted from School Board of Nassau County v. Arline, 480 U.S. 273 (1987). I

respectfully dissent only because in my view, the District Court’s instructions provided

the jury with sufficient direction on how to correctly apply the law. Therefore, I would

affirm.3


   3
       Part of the jury instructions provided:
                  You must decide here whether the plaintiff proved that the defendant
          did not act in a reasonable or responsible way under the law when it
          reviewed the plaintiff’s condition and reviewed the doctors’ and other
          reports that it had and decided to fire the plaintiff because he was not fit for
          his duties as a postal employee. If you find that the defendant acted
          responsibly and reasonably under the law as I just explained it to you you

                                                17
       The majority holds “a judge’s instructions must make the jury aware of the same

concerns that the Supreme Court addressed in Arline so that the jury does not rely on

archaic or uninformed notions of what may be a business necessity.” Majority Opinion p.

17. I agree. Distilling Arline’s language, the majority states:

       To be a business necessity, it must be reasonable, which means that it is
       well informed in the light of current objective medical knowledge
       considering the medically accurate nature of the risk, the duration of the
       risk, the severity of the risk, and the probabilities that the disability will
       cause harm. The jury’s determination must not be based on unfounded
       fears. Although they should not simply defer their individual judgments to
       health professionals, they should consider the objective views of the
       medical experts.

Id. Believing such Arline–type instructions were lacking, the majority reverses.

Although I endorse the clarity of the majority’s formulated jury instruction, I believe the

Supreme Court’s directives in Arline were adequately covered here, even if the District

Court did not employ the specific Arline language.



       will have to find in favor of the defendant in this case.
               And that members of the jury, is true, because as I said to you in the
       very beginning, that this act does prohibit adverse employment decisions
       based on the disability, but it does not prohibit an adverse decision that is
       based on the proper and a reasonable and individualized review of an
       employee’s condition and the reasonable and proper necessities of the
       employer’s business.
               I restate to you that in capsulizing what the arguments are in this
       case, that the plaintiff says he was fired because of his disability. And if
       he’s right he’s entitled to recover. Then the defendant says no, the decision
       to fire the plaintiff was based on an individual assessment of the plaintiff’s
       condition and the reasonable requirements of the defendant’s business, and
       if the defendant, in your judgment, is right or if you believe that, then he is
       not entitled to recover.

                                             18
       I agree with the majority “[t]here is no good faith defense to discrimination . . . .”

Id. at 16. But the District Court did not provide a good faith defense instruction here. It

instructed: “If you find that the defendant acted responsibly and reasonably under the law

as I just explained it to you[,] you will have to find in favor of the defendant in this case.”

(emphasis added). The court, therefore, did not instruct it was sufficient the defendant

thought its actions were reasonable; the jury itself had to find those actions reasonable.

And the jury’s assessment of “reasonableness” here is not a subjective test; the

instructions stated “reasonably under the law,” which is an objective standard. “Under

the law” tethers the juror’s concept of reasonableness to the law as explained by the

District Court. In explaining the law, the court instructed:

       [T]he plaintiff says he was fired because of his disability. And if he’s right
       he’s entitled to recover. Then the defendant says no, the decision to fire the
       plaintiff was based on an individual assessment of the plaintiff’s condition,
       and the reasonable requirements of the defendant’s business, and if the
       defendant, in your judgment, is right or if you believe that, then he is not
       entitled to recover.

       Moreover, the instructions provided sufficient direction that the business necessity

be “well informed in the light of current objective medical knowledge.” M ajority

Opinion p. 17. As stated, the court instructed: “[T]he defendant says . . . the decision to

fire the plaintiff was based on an individual assessment of the plaintiff’s condition, and

the reasonable requirements of the defendant’s business.” The court also stated:

       [T]his act does prohibit adverse employment decisions based on the
       disability, but it does not prohibit an adverse decision that is based on the
       proper and a reasonable and individualized review of an employee’s

                                              19
       condition and the reasonable and proper necessities of the employer’s
       business.

(emphasis added). The Modern Federal Jury Instructions use the same term employed by

the District Court—“individual assessment.” 5-88 A M odern Federal Jury Instructions-

Civil P 88A.03, Form Instruction 88A-18 Direct Threat (“Whether plaintiff posed a direct

threat should be determined on the basis of an individual assessment of the plaintiff and

not on the basis of generalizations associated with the disability.”) (emphasis added).

       Furthermore, in assessing defendant’s contention it made the firing decision based

on the individual assessment and the reasonable requirements of defendant’s business, the

jury would necessarily consider factors such as “the duration of the risk, the severity of

the risk, and the probabilities that the disability will cause harm.” Majority Opinion p. 17.

As the majority notes, “[b]ased on the experts’ testimony, and Verzeni’s own account of

his condition, a reasonable jury could clearly consider the risk of harm based on objective

medical testimony and conclude that the Postmaster’s fit for duty qualification standard

was job related and consistent with business necessity.” Id. at 15.

       In addition to the specific business necessity defense instructions, the District

Court provided general direction on the obligation to set aside any possible discriminatory

attitudes. The court instructed: “When you serve on a jury it’s not your job to make a

decision based on prejudice or hatred or love or affection or bad feelings or ill will. None

of that is important in this case.” And the court reiterated: “[Y]our verdict should not be

made out of anger or distrust or bad feeling or good feeling towards or against anybody or

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any other matters that are involved that are not proper in this case . . . .” While this

instruction could have been more specific, by coupling these general admonitions with

specific business necessity defense instructions like “this act . . . prohibit[s] adverse

employment decisions based on the disability,” the District Court was sufficiently careful

to ensure the jury made its decision on the facts of the case and not on prejudice or bias.

       For the foregoing reasons, I would affirm.




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