                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              April 24, 2006
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                        ____________________                     Clerk

                            No. 04-51224
                        ____________________


     CHRISTOPHER MEDRANO

                Plaintiff-Appellant

          v.

     CITY OF SAN ANTONIO, TEXAS

                Defendant-Appellee


_________________________________________________________________

           Appeal from the United States District Court
          for the Western District of Texas, San Antonio
                          No. 5:02-CV-1003
_________________________________________________________________

Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges.

KING, Circuit Judge:*

     Following a jury verdict in favor of plaintiff-appellant

Christopher Medrano on his failure-to-accommodate and retaliation

claims under the Americans with Disabilities Act of 1990, the

district court granted a motion for judgment as a matter of law

pursuant to Federal Rule of Civil Procedure 50(b) in favor of

defendant-appellee the City of San Antonio, and issued a take-

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

                                  -1-
nothing judgment in favor of the City, based on the Supreme

Court’s holding in US Airways, Inc. v. Barnett, 535 U.S. 391

(2002).    Medrano appeals.   For substantially the reasons

expressed by the district court in its Order Granting Defendant’s

Motion for Judgment as a Matter of Law, we AFFIRM.

                I.   FACTUAL AND PROCEDURAL BACKGROUND

     The relevant factual circumstances underlying this

litigation are largely undisputed.1     Medrano suffers from

cerebral palsy, a condition that constitutes a “disability”

within the meaning of the Americans with Disabilities Act of 1990

(“ADA”), 42 U.S.C. § 12102(2) (2000), and impairs his ability to

walk.2    As a result of his condition, Medrano relies upon the

VIAtrans Paratransit System (“VIAtrans”), an ADA-required

alternative mode of public transportation available to San

Antonio residents with qualifying disabilities, to travel to and

from work.    See 49 C.F.R. § 37.121(a) (providing that “each

public entity operating a fixed route system shall provide

paratransit or other special service to individuals with

disabilities that is comparable to the level of service provided


     1
        The parties submitted a detailed list of stipulated facts
as part of the record exhibits during the jury trial. Following
the lead of the well-reasoned district court order, we borrow
heavily from these stipulations in setting forth the relevant
facts in this case.
     2
        Although Medrano does not require a wheelchair, he does
use a cane and walks with a pronounced limp on account of his
condition.

                                  -2-
to individuals without disabilities who use the fixed route

system”).   Medrano worked for the City at the San Antonio

International Airport as a part-time parking attendant.3     The

City assigned shifts for the various personnel within the Parking

Division of the Aviation Department pursuant to its unilaterally-

adopted seniority policy.4   Even though he lacked the requisite

seniority, Medrano was afforded a preferential first-shift

assignment to accommodate his dependence on the VIAtrans schedule

for transportation to and from work during his tenure of

employment with the City as a part-time parking attendant.

     The City eliminated the position of part-time parking

attendant on February 4, 2000.   Shortly thereafter, Medrano

reapplied for a position as a full-time parking attendant.         As

part of his application, Medrano requested the same first-shift


     3
        More specifically, from November 1995 until June 22,
1996, Medrano worked as a temporary parking attendant, at which
time he was selected for a position as a part-time parking
attendant. Medrano was then terminated on January 5, 1997. He
subsequently filed a charge of disability discrimination with the
Equal Employment Opportunity Commission (“EEOC”), eventually
settling his suit with the City and resuming work as a part-time
parking attendant on November 23, 1998.
     4
        Because the airport parking services are available
twenty-four hours a day, the parking attendants generally worked
one of three shifts: (1) a first shift that started in the
morning; (2) a second shift that started in the afternoon; and
(3) a third (or graveyard) shift that was the overnight shift.
According to the policy, shifts were assigned at least every six
months according to the seniority bidding process. The parties
agree that the first shift was generally perceived as the most
desirable shift in the bidding process, while the third shift
usually fell to the employees with the least seniority.

                                 -3-
accommodation for his disability that he had received during his

previous period of employment as a part-time parking attendant.

Gregory Lawrence, who had recently become the Aviation Department

Parking Manager for the City on May 15, 2000, interviewed the

candidates for full-time parking attendant positions, including

Medrano.    During a follow-up call in July 2000 to check on the

status of his application, Medrano claims that Lawrence told him

that the application had been rejected and that Lawrence did not

want to hire “trouble makers.”    Lawrence denied making the

“trouble makers” comment and testified that he rejected the

application because the requested accommodation directly

conflicted with the City’s seniority policy.    Medrano stipulated

that he had not accumulated seniority for the full-time parking

attendant position based on his previous work as a part-time

parking attendant.    He further stipulated that, since July 2000,

the parking attendants working the first shift have had more

seniority than Medrano would have had if he had been hired in

July 2000.

     Medrano filed a disability discrimination complaint with the

EEOC on July 21, 2000, and received a right-to-sue letter on July

19, 2002.    He then filed a complaint in federal district court on

October 15, 2002,5 alleging disability discrimination in

     5
        Because he filed his civil suit within ninety days of
receiving the right-to-sue letter, we note that Medrano satisfied
his statutory exhaustion requirements for bringing this civil
action against the City. See 42 U.S.C. § 2000e-5(f)(1); see also

                                 -4-
violation of the ADA based on the City’s (1) failure to hire him

for a full-time airport parking attendant position and (2)

retaliation against him for filing the previous lawsuit against

the City that had been settled on February 11, 2000.   The

district court denied the City’s motion for summary judgment on

December 1, 2003 because it determined that a genuine issue of

material fact remained as to whether a reasonable accommodation

was available to Medrano.   A jury trial on the merits commenced

on February 17, 2004.   The City orally moved for judgment as a

matter of law pursuant to Federal Rule of Civil Procedure 50(a)

at the close of the plaintiff’s case-in-chief, but the district

court denied the motion at that time.6   After the jury returned a

verdict in favor of Medrano, the City renewed its motion for

judgment as a matter of law under Rule 50(b).   This time, the


Vielma v. Eureka Co., 218 F.3d 458, 463 (5th Cir. 2000) (noting
that “the federal complainant must file suit within ninety days
of receipt of the right to sue letter”).
     6
        The court expressed some misgivings about the viability
of Medrano’s claims following the Supreme Court’s decision in
Barnett at this time:
     THE COURT: If the jury does hold for Mr. Medrano, I’m
     going to have to seriously consider taking the case away
     from Mr. Medrano. But, I am going to let the jury handle
     the case and see what the jury has to say.
                              . . . .
     But I do believe U.S. Airways v Barnett did change the
     rules of the road somewhat and [this] case does straddle
     it. . . . I want both sides to know there would be a good
     chance I would take a verdict from Mr. Medrano away. I
     both have the right to give this matter to the Fifth
     Circuit and the Fifth Circuit could tell us what the
     state of the law is after Barnett.
5 R. at 327, 329-30.

                                -5-
district court granted the City’s motion and issued its final

order and judgment on September 27, 2004.      See Medrano v. City of

San Antonio, 2004 WL 2550592 (W.D. Tex. Sept. 27, 2004).        Medrano

timely filed his notice of appeal on October 26, 2004.

                            II.   DISCUSSION

A.   Standard of Review

     We review the district court’s grant of judgment as a matter

of law pursuant to Rule 50(b) de novo, applying the same legal

standard as the district court.      Flowers v. S. Reg’l Physician

Servs. Inc., 247 F.3d 229, 235 (5th Cir. 2001).     “A motion for

judgment as a matter of law . . . in an action tried by jury is a

challenge to the legal sufficiency of the evidence supporting the

jury’s verdict.”     Ford v. Cimarron Ins. Co., 230 F.3d 828, 830

(5th Cir. 2000) (internal quotations omitted) (alteration in

original).   Accordingly, judgment as a matter of law is

appropriate when “there is no legally sufficient evidentiary

basis for a reasonable jury to have found for that party with

respect to that issue.”     Id.   In light of our “especially

deferential” review of jury verdicts, we must “consider all of

the evidence, drawing all reasonable inferences and resolving all

credibility determinations in the light most favorable to the

non-moving party.”     Flowers, 247 F.3d at 235.   Nonetheless, “[i]f

the evidence at trial points so strongly and overwhelmingly in

the movant’s favor that reasonable jurors could not reach a


                                   -6-
contrary conclusion, this court will conclude that the motion

should have been granted.”   Omnitech Int’l, Inc. v. Clorox Co.,

11 F.3d 1316, 1323 (5th Cir. 1994).

B.   “Special Circumstances” Under Barnett

     The ADA broadly proscribes discriminatory employment

practices against persons with a disability, providing that “[n]o

covered entity shall discriminate against a qualified individual

with a disability because of the disability of such individual in

regard to job application procedures, the hiring, advancement, or

discharge of employees, employee compensation, job training, and

other terms, conditions, and privileges of employment.”       42

U.S.C. § 12112(a).   A “qualified individual with a disability” is

one “who, with or without reasonable accommodation, can perform

the essential functions of the employment position that such

individual holds or desires.”   Id. § 12111(8).   A “reasonable

accommodation” may include “part-time or modified work schedules,

reassignment to a vacant position, . . . and other similar

accommodations for individuals with disabilities.”      Id.

§ 12111(9)(B).   Finally, the ADA says that “discrimination”

includes an employer’s “not making reasonable accommodations to

the known physical or mental limitations of an otherwise

qualified . . . employee, unless [the employer] can demonstrate

that the accommodation would impose an undue hardship on the

operation of [its] business.”   Id. § 12112(b)(5)(A).



                                -7-
     Given the largely undisputed factual circumstances, our task

on this appeal is particularly narrow.    The parties stipulated

that (1) the City is an “employer” within the meaning of that

term under the ADA; (2) Medrano is “disabled” under the ADA; and

(3) Medrano could perform the essential functions of the parking

attendant job with a shift accommodation that would allow him to

use VIAtrans to commute to and from work.    But for the conflict

with the terms of the seniority policy, the parties agree that

Medrano’s request for a first-shift accommodation was reasonable.

Therefore, just as the district court did in its order granting

judgment as a matter of law, we shall focus our attention on

whether, despite the conflict with the seniority policy, a

reasonable jury could find that the City was required to hire

Medrano as a full-time parking attendant with the first-shift

accommodation.

     To answer this question, the district court examined the

Supreme Court’s decision in US Airways, Inc. v. Barnett, 535 U.S.

391 (2002).   In Barnett, the Court confronted a very similar

issue, albeit in the context of summary judgment, to the one

presented in this case: How does the ADA resolve a conflict

between the interests of a disabled worker seeking assignment to

a particular position as a “reasonable accommodation” and the

interests of other employees with superior bidding rights under

an employer’s seniority system?     Id. at 393.   In applying the

relevant statutory provisions outlined above, the Court first

                                  -8-
“reconciled the phrases ‘reasonable accommodation’ and ‘undue

hardship’ in a practical way.”    Id. at 401.   To defeat an

employer’s motion for summary judgment, the employee “need only

show that an ‘accommodation’ seems reasonable on its face, i.e.,

ordinarily or in the run of cases.”    Id.   Once the employee makes

this showing, the employer “then must show special (typically

case-specific) circumstances that demonstrate undue hardship in

the particular circumstances.”    Id. at 402.   The Court held that

an employer need not demonstrate on a case-by-case basis that its

seniority system should prevail over an otherwise reasonable

accommodation request.7   Id. at 403 (“[I]t would not be

reasonable in the run of cases that the assignment in question

trump the rules of a seniority system.   To the contrary, it will

ordinarily be unreasonable for the assignment to prevail.”).

     The Court, however, also adopted a fact-intensive exception

to this general rule that permits a court to find that “special

circumstances” trump a seniority policy in certain circumstances.

Id. at 405 (noting that an employee “remains free to show that

special circumstances warrant a finding that, despite the

presence of a seniority system (which the ADA may not trump in

the run of cases), the requested ‘accommodation’ is ‘reasonable’

     7
        Moreover, the Court expressly stated that the relevant
advantages of seniority systems “are not limited to collectively
bargained systems.” Barnett, 535 U.S. at 404. Therefore, the
Court declined to treat a seniority system that had been
unilaterally imposed by an employer any differently on this
basis. Id.

                                 -9-
on the particular facts”).   The opinion briefly discussed two

illustrative, though by no means exhaustive, examples of “special

circumstances” that might trump an otherwise valid seniority

policy:

      The plaintiff might show, for example, that the employer,
      having retained the right to change the seniority system
      unilaterally, exercises that right fairly frequently,
      reducing employee expectations that the system will be
      followed--to the point where one more departure, needed
      to accommodate an individual with a disability, will not
      likely make a difference. The plaintiff might show that
      the system already contains exceptions such that, in the
      circumstances, one further exception is unlikely to
      matter.

Id.

      On appeal, Medrano challenges only the district court’s

adverse ruling regarding his ADA failure-to-accommodate claim

because he contends there was sufficient evidence in the record

to establish “special circumstances” such that the shift

accommodation he sought from the City was a reasonable one.8

Before proceeding to a substantive discussion of the “special

circumstances” exception, the district court first addressed the


      8
        In his opening brief, Medrano also challenged the
district court’s judgment in favor of the City on his ADA claims
of unlawful preemployment inquiry. We need not consider this
issue, however, because Medrano expressly waived it in his reply
brief to this court. See Crutcher v. Aetna Life Ins. Co., 746
F.2d 1076, 1080 (5th Cir. 1984). We also decline to separately
address the district court’s grant of judgment as a matter of law
on Medrano’s retaliation claim because Medrano does not
separately argue that issue in this appeal. See Hall v. Thomas,
190 F.3d 693, 697 n.2 (5th Cir. 1999) (noting that appellant had
abandoned certain arguments by failing to discuss them in his
brief).

                                -10-
relevant time period in which to examine the City’s seniority

policy.

     The Court must determine the scope of the seniority
     system in order to assess whether “special circumstances”
     necessitated a reasonable accommodation under the ADA.
     Here, the seniority system might include the entire
     history of the program; or given management’s change in
     policy, the relevant seniority system might include the
     time of the policy change in 2000 to the date of trial.
     The Barnett Court stressed the importance of maintaining
     a seniority system that meets employees’ expectations of
     consistent, uniform treatment. Employees understandably
     rely on the policies in place at the time of their
     employment. Because Defendant’s employees were notified
     of the change in seniority policy as of Defendant’s
     January 21, 2000 memo, the Court will confine its
     analysis   to   the   employer’s   most  recent   policy.
     Therefore, Plaintiff’s claims will be considered only as
     to any exceptions made following February 4, 2000 when
     Plaintiff was terminated under the new policy.

Medrano, 2004 WL 2550592, at *3.

     Medrano argues that the district court erred in focusing

exclusively on the application of the seniority policy after the

City eliminated the part-time parking attendant positions and

thereby disregarding the shift accommodations made to him during

his tenure as a part-time parking attendant.   Medrano insists

that the elimination of the part-time parking attendant positions

on February 4, 2000 did not otherwise affect the seniority

policy.   From this premise, Medrano next contends that the

district court failed to properly account for the impact of

Medrano’s previous first-shift assignments on his fellow

employees.   He maintains that the “common theme” in both examples

of the “special circumstances” exception under Barnett is the


                               -11-
impact of the accommodation on co-workers’ expectations.      Citing

witness testimony in the record, Medrano asserts that his co-

workers neither objected to nor complained about his first-shift

accommodation during his tenure as a part-time parking attendant

for the City.    Finally, he argues that the district court

improperly applied a mathematical formula to determine whether

the accommodations granted to Medrano were reasonable as a matter

of law.    According to Medrano, the fact-intensive “special

circumstances” inquiry is uniquely suited for determination by a

jury.

     The City responds that the district court correctly applied

Barnett in ruling as a matter of law that the evidence was

legally insufficient to support the jury’s verdict.    First, the

City argues that a different seniority system was created when it

eliminated all part-time parking attendant positions, and the

district court correctly focused on this new system in granting

judgment as a matter of law for the City.    Moreover, the City

maintains that Medrano’s reliance on the absence of complaints in

the witness testimony misconstrues the focus on co-worker

expectations under the “special circumstances” exception of

Barnett.   In order to prove the existence of “special

circumstances” under the first example in Barnett, the City

contends that Medrano would have to demonstrate that “fairly

frequent” deviations from the seniority policy left employees

with no real expectation that the seniority policy would be

                                -12-
enforced.   Finally, the City argues that Medrano could not

demonstrate that one more exception was “unlikely to matter”

pursuant to the second example of the “special circumstances”

exception in Barnett because there was no evidence of any

deviations from the seniority policy.

     We agree with the district court that the proper focus of

its “special circumstances” was on the seniority policy as it

applied after the part-time positions were eliminated on February

4, 2000.    Medrano does correctly point out that the actual terms

of the seniority policy itself did not change when the part-time

positions were eliminated.   We fail to see how this distinction

undermines the district court’s analysis.     The simple fact

remains that, although Medrano consistently received a first-

shift assignment during his prior employment as a part-time

parking attendant, he never received such an accommodation as a

full-time parking attendant once the City eliminated the part-

time position on February 4, 2000.     In fact, he was never hired

as a full-time parking attendant.

     During oral argument, Medrano insisted that the separate job

classifications were immaterial to the Barnett analysis because

he performed the same duties and worked the same hours as his

full-time counterparts.   We find this argument unconvincing.   The

positions of “Parking Toll Attendant/Full Time” and “Parking Toll

Attendant/Part Time” constitute separate job classifications

under the City’s seniority policy.     The policy defines

                                -13-
“seniority” as the “length of service within an employee’s

current job classification and department.”    The policy plainly

states that “[t]he assignment to a shift will be by seniority

during the bid process.”    Moreover, Medrano stipulated that he

did not accumulate seniority for the position of “Parking Toll

Attendant/Full Time” based on his previous employment with the

City as a “Parking Toll Attendant/Part Time.”

     In light of the clear terms of the seniority policy and the

stipulated facts in this case, we conclude that job

classification is in fact a critical component of this seniority

system’s bidding process.    See, e.g., Dobbs v. City of Atlanta,

606 F.2d 557, 558 (5th Cir. 1979) (describing, in the context of

a similar seniority bidding procedure, how an employee who

transfers to a different position within a department “must

forfeit all the competitive seniority he has accumulated in his

previous bargaining unit and start at the bottom”).    Therefore,

we conclude that the district court correctly focused its

analysis on the seniority policy as it applied after the part-

time positions were eliminated on February 4, 2000.

     Having so concluded, our review of the district court’s

analysis is greatly simplified.    Both examples of “special

circumstances” under Barnett examine whether deviations from a

seniority policy--either when an employer exercises its right

unilaterally to change the system “fairly frequently” or when the

system itself “already contains exceptions”--reduce the

                                -14-
expectations of employees “that the system will be followed” such

that “one further exception is unlikely to matter.”     Barnett, 535

U.S. at 405.   The crucial and inescapable shortcoming of

Medrano’s attempt to establish “special circumstances” is that

the record is conspicuously devoid of a single instance in which

an exception was made for an employee in the full-time parking

attendant job classification in violation of the City’s seniority

policy.   See Medrano, 2004 WL 2550592, at **4-5 (“Because the

Court only looks to the most recent seniority policy,

insufficient evidence was presented as a matter of law for it to

find special circumstances existed . . . .”).9   The district

court’s conclusion on this point is entirely correct.

     Moreover, this court’s decision in Foreman v. Babcock &


     9
        Although we agree that co-worker impact is the touchstone
of the “special circumstances” analysis under Barnett, Medrano’s
citations to testimony from co-workers responding to his first-
shift accommodation while he was employed as a part-time parking
attendant are simply irrelevant to this inquiry. Because Medrano
did not identify a single relevant exception, we need not, and do
not, reach the issue of what precise evidentiary threshold might
demonstrate that an employer exercised its right to deviate from
the seniority policy “fairly frequently” under Barnett.
     We also agree with the district court that Medrano’s
reliance on the Federal Circuit’s decision in Office of the
Architect of the Capitol v. Office of Compliance, 361 F.3d 633
(Fed. Cir. 2004), was misplaced. In that case, the court located
substantial evidence in the record “of the numerous exceptions
to, and overall fluidity of, [the Office of the Architect]’s wage
grade classification system” to conclude that “one more
exception” was unlikely to matter. Id. Again, Medrano’s
inability to introduce any evidence of such flexibility in the
City’s seniority policy with respect to full-time parking
attendants ultimately doomed his effort to establish “special
circumstances” under Barnett.

                               -15-
Wilcox Co., 117 F.3d 800 (5th Cir. 1997), cert. denied, 522 U.S.

1115 (1998), presented a similar conflict between a reasonable

accommodation request under the ADA and the terms of a

collectively bargained seniority policy.       Initially, we note that

Foreman took place in exactly the same procedural posture as this

case--namely, an appeal from a judgment as a matter of law in

favor of the employer.    Id. at 802.     As in the instant matter,

the employee in Foreman conceded that the requested work

accommodation for his heart condition would violate the terms of

the seniority policy.    Id. at 809.     In affirming the district

court’s grant of judgment as a matter of law, this court

expressly rejected the argument that an employer’s duty to

accommodate an employee’s disability under the ADA trumped the

employer’s obligation to honor the collectively bargained

seniority policy.   Id. at 810.

     “Following other circuits which have considered this issue,

we hold that the ADA does not require an employer to take action

inconsistent with the contractual rights of other workers under a

collective bargaining agreement.”        Id. (citing Benson v.

Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8th Cir. 1995);

Eckles v. Consol. Rail Corp., 94 F.3d 1041, 1051 (7th Cir. 1996);

Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995)).

Based on our close review of this court’s decision in Foreman,




                                  -16-
the Supreme Court’s subsequent holding in Barnett,10 and the

record in this case, we conclude that a reasonable jury could not

find in favor of Medrano on his failure-to-accommodate claim.

                        III.   CONCLUSION

     Even viewing the evidence in the light most favorable to the

verdict, Medrano did not adduce evidence which would allow a

reasonable jury to find that “special circumstances” existed

under Barnett to require a first-shift accommodation in direct

violation of the City’s seniority policy.   Therefore, we AFFIRM

the district court’s grant of judgment as a matter of law.




     10
        In light of Barnett, we conclude that our holding in
Foreman applies with equal force in the context of a
unilaterally-imposed seniority policy like the one in this case.
See supra note 7.

                               -17-
