                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
               IN THE UNITED STATES COURT OF APPEALS             April 10, 2007
                       FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                        ))))))))))))))))))))))))))                  Clerk

                             No. 06-30300
                           Summary Calendar
                        ))))))))))))))))))))))))))

DANIEL C. LINER

                  Plaintiff–Appellee-Cross-Appellant

     v.

HOSPITAL SERVICE DISTRICT NO 1 OF JEFFERSON PARISH, doing
business as West Jefferson Medical Center

                  Defendant–Appellant-Cross-Appellee


          Appeals from the United States District Court
              for the Eastern District of Louisiana
                        No. 2:03-CV-03311



Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Before the court are cross-appeals brought after a jury

trial that resulted in a verdict for the plaintiff in a case of

disability discrimination.     The defendant argues that the jury’s

verdict must be set aside because the plaintiff refused to

participate in the interactive process required to develop a

reasonable accommodation for his disability.         The plaintiff,



     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
meanwhile, appeals the district court’s order dismissing the

jury’s award of punitive damages.     For the reasons that follow,

we AFFIRM.

                        I. FACTUAL BACKGROUND

     In March 2001, Plaintiff Daniel C. Liner (“Liner”) was hired

as an accountant for Defendant Hospital Service District No. 1 of

Jefferson Parish d/b/a West Jefferson Medical Center (“WJMC”).

As an accountant for WJMC, Liner was frequently required to work

more than forty hours per week to meet certain deadlines, as were

all WJMC accountants.   In August 2002, Liner was diagnosed with

malignant hypertension and cardiovascular disease.    Pursuant to

his physician’s instructions, Liner was no longer allowed to work

more than forty hours per week.   Liner informed his supervisor

Ron Bailey of this restriction on August 28, 2002, and requested

a reasonable accommodation of working only forty hours a week.

Liner then took leave under the Family Medical Leave Act (“FMLA”)

from August 30, 2002, to September 23, 2002, and from September

25, 2002, to November 25, 2002.

     According to WJMC, after Liner requested an accommodation,

WJMC repeatedly sought more information from Liner regarding his

medical condition and the limitations imposed by it, but Liner

was not responsive.   WJMC did learn from Liner’s physician in

January 2003 that Liner had to leave work by 5:00 p.m. each day

to attend a martial arts class for medical reasons.    Further,



                                  2
Liner was unable to work on weekends, even if he had not worked

forty hours that week.   WJMC determined that these restrictions

made it impossible for Liner to perform the essential functions

of his accounting position, as WJMC’s accountants were regularly

required to work more than forty hours a week in order to meet

various deadlines.

     On January 22, 2003, Liner secretly tape recorded a meeting

he had with Mark McGinnis (“McGinnis,” a financial official with

WJMC) and Francine Miguel (“Miguel,” WJMC’s Human Resources

Director).   At the meeting, McGinnis and Miguel informed Liner

that, due to his medical restrictions, he could no longer work as

an accountant for WJMC and that he was being terminated.

McGinnis and Miguel did encourage Liner to look online at other

job listings within WJMC and submit applications for any

positions in which he was interested.   According to WJMC, it was

aware of several positions that were open at that time and met

Liner’s medical restrictions; however, the jobs were clerical in

nature and WJMC claims it did not want to embarrass Liner by

offering him those lower positions.   Liner did not review the

positions online, but instead filed a charge of disability

discrimination with the Equal Employment Opportunity Commission

(“EEOC”).

                      II. PROCEDURAL HISTORY

     Following receipt of his right-to-sue letter from the EEOC,



                                 3
Liner brought suit against WJMC for disability discrimination and

retaliation in violation of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12101-12213 (2000), disability

discrimination and retaliation under Louisiana law, LA. REV. STAT.

ANN. §§ 51:2256 & 23:967, and FMLA violations, 29 U.S.C. § 2615.1

The district court dismissed Liner’s disability harassment and

state law claims on summary judgment.      The case then proceeded to

trial in front of a jury.   Following four days of testimony, the

district court granted Liner’s motion for directed verdict on the

issue of whether WJMC regarded Liner as disabled.     The remainder

of the case was submitted to the jury, which rejected all of

Liner’s retaliation claims under the ADA and FMLA, but found that

WJMC had discriminated against Liner because it regarded him as

disabled.   As a result, the jury awarded Liner $45,000 for lost

pay, $0 for emotional distress, and $250,000 in punitive damages.

The district court also awarded Liner $87,460 in attorneys’ fees,

but denied Liner’s motion for front pay.

     Two months after the verdict, but before the district court

entered a final judgment, WJMC filed a motion to vacate the

punitive damages award on the ground that punitive damages are

not available under the ADA against a political subdivision such

as WJMC.    See 42 U.S.C. § 1981a(b)(1).    The district court

     1
        Liner’s initial complaint also included a claim that WJMC
violated ERISA, 29 U.S.C. § 1140. Although it is unclear what
happened to that claim, Liner did not pursue it at trial or on
appeal.

                                  4
dismissed the motion as premature.     The district court entered

final judgment, at which time WJMC renewed its motion for

judgment as a matter of law and alternatively asked the district

court to alter or amend the final judgment.     The district court

granted WJMC’s motion with respect to the punitive damages award,

dismissed the $250,000 in punitive damages, and issued an amended

judgment to that effect.   Both parties appealed.    We have

jurisdiction pursuant to 28 U.S.C. § 1291 and now turn to the

merits of our decision.

                           III. DISCUSSION

     On appeal, WJMC challenges whether there was sufficient

evidence to support the jury’s determination that WJMC failed to

reasonably accommodate Liner’s perceived disability and argues

that Liner refused to work with WJMC in fashioning an appropriate

accommodation.   Liner appeals the district court’s decision to

strike the punitive damages award, claiming that WJMC waived its

argument on that point by not raising it before the end of trial.

We address each argument in turn.

A.   Sufficiency of the Evidence

     WJMC contends on appeal that it cannot be liable for failing

to accommodate Liner’s disability because Liner terminated the

interactive process that is required by the ADA to come up with a

reasonable accommodation for his disability.     Specifically, WJMC

asserts that it met its obligations under the ADA by telling



                                   5
Liner to look for jobs with WJMC on the internet after WJMC

terminated Liner’s employment and that it cannot be held liable

for Liner’s failure to do so.    The jury specifically found that

WJMC did not make a good faith effort to reasonably accommodate

Liner’s disability.

     We grant great deference to a jury’s verdict.     Dresser-Rand

Co. v. Virtual Automation, Inc., 361 F.3d 831, 838 (5th Cir.

2004).    “We will overturn a jury verdict ‘only if we conclude

that, after viewing the trial record in the light most favorable

to the verdict, there is no legally sufficient evidentiary basis

for a reasonable jury to have found for the prevailing party.’”

Johnson v. Louisiana, 369 F.3d 826, 830 (5th Cir. 2004) (quoting

Mato v. Baldauf, 267 F.3d 444, 450-51 (5th Cir. 2001)).

     Once an employee requests an accommodation for a disability,

ADA regulations state that “it may be necessary for the

[employer] to initiate an informal, interactive process” designed

to craft a reasonable accommodation.     29 C.F.R. § 1630.2(o)(3).

This court has held that “when an employer’s unwillingness to

engage in a good faith interactive process leads to a failure to

reasonably accommodate an employee, the employer violates the

ADA.”    Loulseged v. Akzo Nobel, Inc., 178 F.3d 731, 736 (5th Cir.

1999) (citing Taylor v. Phoenixville Sch. Dist., 174 F.3d 142,

165 (3d Cir. 1999); Bultemeyer v. Fort Wayne Cmty. Schs., 100

F.3d 1281, 1285 (7th Cir. 1996)).     However, because the

responsibility for fashioning a reasonable accommodation is

                                  6
shared between the employer and the employee, the employer is not

liable under the ADA if the breakdown in the interactive process

is traceable to the employee.   Id.   Consequently, the process

must be viewed on a case-by-case basis.    Id.

     Here, the evidence shows that WJMC terminated Liner after it

determined he could no longer perform the essential functions of

his accounting job.   WJMC then told Liner that he should look on

the internet for other positions with WJMC and apply for the ones

in which he was interested, but that he would be treated like any

other applicant and may or may not get another job with WJMC.

WJMC admitted that it was aware of several clerical positions

within WJMC that Liner may have been able to perform but did not

offer him those positions because it did not want to embarrass

Liner.2   In sum, instead of working with Liner to identify a

vacant position within WJMC that he might be able to transfer to,

WJMC terminated Liner and told him it was his responsibility to

find another job within WJMC.   See 29 C.F.R. § 1630.2(o)(2)(ii)

(stating that a reasonable accommodation may include reassignment

to a vacant position).

     Based on this evidence, the jury was entitled to find that

WJMC did not make a good faith effort to reasonably accommodate


     2
        WJMC claims that it subsequently determined that Liner
was not qualified for any of those positions. However, because
this determination was not made until some time after Liner was
terminated, it is irrelevant to WJMC and Liner’s “interaction” at
the time of Liner’s termination.

                                 7
Liner and that Liner was not responsible for the breakdown in the

interactive process.   See Cutrera v. Bd. of Supervisors of La.

State Univ., 429 F.3d 108, 113, (5th Cir. 2005) (“An employer may

not stymie the interactive process of identifying a reasonable

accommodation for an employee’s disability by preemptively

terminating the employee before an accommodation can be

considered or recommended.”).   In upholding the jury’s verdict,

we are not saying that WJMC was required to give Liner another

position in order to reasonably accommodate his disability.

Rather, we hold only that WJMC’s conduct is sufficient to support

the jury’s determination that WJMC did not attempt to reasonably

accommodate Liner’s disability in good faith.     Again, each set of

facts must be judged on a case-by-case basis.

     WJMC relies heavily on our decision in Loulseged for its

claim that its actions were sufficient to avoid liability;

however, this case is significantly different from Loulseged.         In

Loulseged, the employer provided the plaintiff with several

accommodations for her back injury, including permitting the

plaintiff to use contract workers whenever she needed to

transport something heavy.   178 F.3d at 733.    When the employer

decided the contract workers could no longer be used for this

purpose, the plaintiff abruptly quit.   Id.     The evidence showed

that the employer was looking into new accommodations for the

plaintiff, but that she never commented on the accommodations and

quit before any could be implemented.   Id.     In that case, we held

                                 8
that the breakdown in the interactive process was attributable to

the plaintiff and that the employer was not liable as a result.

Id. at 737-40.

     Here, in contrast, Liner did not quit, but was fired and

immediately escorted out of the building, effectively ending the

interactive process.    As a result, we cannot say that the jury

was unreasonable in determining that the breakdown in the

interactive process was not due to Liner’s conduct.     Therefore,

we affirm the district court’s judgment regarding WJMC’s

liability.

B.   Punitive Damages

     Liner cross-appeals the district court’s decision to deny

him punitive damages following WJMC’s motion to alter or amend

judgment.    Liner does not contend that political subdivisions

such as WJMC are, in fact, liable for punitive damages; rather,

he argues that WJMC waived this argument by not presenting it

until after the jury returned its verdict.     WJMC asserts that,

under the plain error doctrine, the district court and this court

are permitted to address the punitive damages error and correct

the initial judgment.    We agree with WJMC.

     It is uncontested that, as a political subdivision, WJMC is

not liable for punitive damages under the ADA.     See 42 U.S.C.

§ 1981a(b)(1) (authorizing punitive damages in discrimination

cases unless defendant is a government, government agency, or

political subdivision).    It is also uncontested that WJMC did not

                                  9
raise this issue until two months after the jury returned its

verdict, but before the district court entered its final

judgment.3

     This court considered a similar situation in Oden v.

Oktibbeha County, 246 F.3d 458 (5th Cir. 2001).     There, the

defendant, a sheriff who was sued in his official capacity,

failed to object in the district court to the imposition of

punitive damages on the ground that they were precluded by

§ 1981a(b)(1).     Id. at 465-66.   On appeal, this court held that

the defendant had failed to preserve his error on the issue of

punitive damages.     Id. at 466.   However, we went on to consider

the defendant’s argument under the plain error standard of

review.   Id.    We determined that the imposition of punitive

damages in violation of § 1981a(b)(1) was plain error and

reversed that portion of the district court’s judgment.      Id.

     Under the plain error standard of review, which is used when

error is not preserved at trial, the appellant must demonstrate

that “(1) an error occurred; (2) the error was plain, which means

clear or obvious; (3) the plain error affects substantial rights;

and (4) failing to correct the error would seriously impact the

fairness, integrity or public reputation of judicial


     3
        Although the pretrial order listed “[w]hether punitive
liability can be established herein” as a contested issue of law,
WJMC admitted in its filings before the district court that it
did not become aware of the legal impediment to punitive damages
imposed by § 1981a(b)(1) until after trial was completed.

                                    10
proceedings.”   Fiber Sys. Int’l, Inc. v. Roehrs, 470 F.3d 1150,

1158 (5th Cir. 2006) (citing Septimus v. Univ. of Houston, 399

F.3d 601, 607 (5th Cir. 2005)).    Here, as in Oden, the punitive

damages award was plainly erroneous, as it is uncontested that

WJMC is not liable for punitive damages under § 1981a(b)(1).       Had

the district court not corrected the error, Oden would have

compelled us to do so.   Consequently, the district court did not

err when it dismissed the punitive damages award against WJMC.

     Liner argues that the Supreme Court’s decision in Arbaugh v.

Y & H Corp., 546 U.S. 500, 126 S. Ct. 1235 (2006), abrogates or

modifies the plain error doctrine.      Liner misunderstands the

effect of Arbaugh.   In Arbaugh, the Supreme Court held that Title

VII’s requirement that an employer have at least fifteen

employees was not jurisdictional, but rather an element of the

plaintiff’s claim for relief.   126 S. Ct. at 1245.     Liner cites

Arbaugh for the proposition that a motion for failure to state a

claim cannot be brought post-trial and argues that WJMC was

required to raise the punitive damages issue by way of such a

motion before trial was complete.      Liner’s reasoning here is

flawed.   While the Supreme Court did state that a motion for

failure to state a claim cannot be brought post-trial, id. at

1240, it did not purport to eliminate all other post-trial

avenues for relief, such as the plain error doctrine.      Indeed,

had the Supreme Court intended to do away with the plain error

doctrine, it would have been more explicit, as many of the

                                  11
circuit courts use the plain error standard of review for

arguments not preserved at trial.    See, e.g., Fonten Corp. v.

Ocean Spray Cranberries, Inc., 469 F.3d 18, 21-22 (1st Cir.

2006); Johnson Controls, Inc. v. Jay Indus., Inc., 459 F.3d 717,

728 (6th Cir. 2006); Muth v. United States, 1 F.3d 246, 250 (4th

Cir. 1993).   The Court in Arbaugh, however, did not address,

apply, or even mention the plain error doctrine.4

     As a result, our plain error doctrine remains intact.      See

Fiber Sys., 470 F.3d at 1158 (applying plain error doctrine post-

Arbaugh).   Consequently, pursuant to the discussion above

concerning Oden, the district court did not err in dismissing the

award of punitive damages against WJMC.




     4
       This is likely because the error in Arbaugh was not
“plain.” Instead, determining error required post-trial
discovery and development of the record to ascertain which
individuals should be counted as “employees” for Title VII
purposes. Here, in contrast, no discovery was needed to decide
that error occurred as it is clear that WJMC is a political
subdivision not subject to punitive damages.

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                         IV. CONCLUSION

     For the foregoing reasons, we AFFIRM the judgment of the

district court.

     AFFIRMED.




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