        Case: 12-51074    Document: 00512432680      Page: 1   Date Filed: 11/06/2013




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
                                      ____________
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                      No. 12-51074                      FILED
                                      ____________               November 6, 2013
                                                                   Lyle W. Cayce
                                                                        Clerk

    JEFFREY NEELY, also known as Jeffrey A. Neely,

                                               Plaintiff–Appellant,

    versus

    PSEG TEXAS, LIMITED PARTNERSHIP;
    PUBLIC SERVICE ENTERPRISE GROUP, INCORPORATED,

                                               Defendants–Appellees.


                                _________________________

                    Appeal from the United States District Court
                         for the Western District of Texas
                             _________________________



    Before SMITH, PRADO, and ELROD, Circuit Judges.
    JERRY E. SMITH, Circuit Judge:
1



          Jeffrey Neely appeals a judgment based on an adverse jury verdict. We
    find no error and affirm.
    Case: 12-51074    Document: 00512432680     Page: 2   Date Filed: 11/06/2013



                                 No. 12-51074

                                       I.
      Neely was a control-room operator for PSEG Texas, Limited Partner-
ship, who, after a series of verbal altercations with his supervisors, was sus-
pended and ultimately terminated, then diagnosed with major depressive dis-
order and generalized anxiety disorder severe without psychosis. He sued that
employer and Public Service Enterprise Group, Incorporated (jointly “PSEG”),
alleging violations of the Americans with Disabilities Act (“ADA”), Title VII,
and the Family and Medical Leave Act (“FMLA”). The district court dismissed
the FMLA claim, and Neely voluntarily dropped his Title VII retaliation claim
before trial. The case went to a jury on the remaining claims of discrimination,
retaliation, and failure to provide reasonable accommodations under the ADA.
      During trial, Neely objected to two jury interrogatories, both of which
were predicate questions to the termination and failure-to-accommodate
claims and asked whether Neely was “a qualified individual with a disability.”
The jury answered “No” to both predicate questions and to the question regard-
ing retaliation.


                                       II.
      We review for abuse of discretion the submission of special-verdict ques-
tions, “examin[ing] whether, when read as a whole and in conjunction with the
general charge, the interrogatories adequately presented the contested issues
to a jury.” LeBoeuf v. K-Mart Corp., 888 F.2d 330, 334 (5th Cir. 1989) (citation
and internal quotation marks omitted). If there is error, we apply a two-part
analysis to determine whether to reverse. See C.P. Interests, Inc. v. Cal. Pools,
Inc., 238 F.3d 690, 700–01 (5th Cir. 2001). First, “a verdict based judgment
will be reversed because of an erroneous instruction only when the charge as a
whole leaves us with substantial and ineradicable doubt whether the jury has

                                       2
    Case: 12-51074    Document: 00512432680     Page: 3   Date Filed: 11/06/2013



                                 No. 12-51074

been properly guided in its deliberations.” Hiltgen v. Sumrall, 47 F.3d 695,
703 (5th Cir. 1995) (quoting Mayo v. Borden, Inc., 784 F.2d 671, 672 (5th Cir.
1986)). Second, “even where a jury instruction was erroneous, we will not re-
verse if we determine, based on the entire record, that the challenged instruc-
tion could not have affected the outcome.” Navigant Consulting, Inc. v. Wil-
kinson, 508 F.3d 277, 293 (5th Cir. 2007) (citation and internal quotation
marks omitted)).


                                      III.
      Neely argues that the district court erred in submitting the first ques-
tion—“Was a Plaintiff a qualified individual with a disability?”—as a predicate
to a finding of discrimination regarding his termination claim under the ADA.
His main contention is that the inclusion of the words “with a disability” is
contrary to the ADA as amended by the ADA Amendments Act of 2008
(“ADAAA”). The intent of the ADAAA was to expand the coverage of the
ADA—so the argument goes—by simplifying the analysis of “disability” and
focusing the finder of fact on whether there was discrimination in the adverse-
employment action. Therefore, to require a finding of “disability” as a predi-
cate to the determination of whether Neely was terminated on the basis of this
actual or perceived impairment is in direct conflict with the purpose of the con-
gressional changes. To bolster this argument, Neely points to several altera-
tions of the ADA text by the ADAAA as direct evidence of this intent. An ex-
amination of the alterations to the ADAAA, however, shows that the court did
not abuse its discretion in submitting these jury instructions.


                                       A.
      In crafting the ADAAA, Congress intended “that the primary object of

                                       3
     Case: 12-51074        Document: 00512432680          Page: 4     Date Filed: 11/06/2013



                                        No. 12-51074

attention in cases brought under the ADA should be whether entities covered
under the ADA have complied with their obligations[ ] and . . . that the ques-
tion of whether an individual’s impairment is a disability under the ADA
should not demand extensive analysis.” 1 To that end, the ADAAA primarily
focuses on broadening the definition of “disability” by singling out and super-
seding Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), and Toyota Motor
Manufacturing Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). 2 Because those
two decisions interpreted congressional intent to narrow the scope of the words
“substantially limits” and “major” and the “regarded as” prong in the ADA’s
definition of disability, 3 Congress added 42 U.S.C. § 12102(2)–(4) to correct
that perceived misinterpretation.
       Although the text of the ADAAA expresses Congress’s intention to
broaden the definition and coverage of the term “disability,” 4 it in no way elim-
inated the term from the ADA or the need to prove a disability on a claim of
disability discrimination. Even under the ADA as amended by the ADAAA,
“[t]o prevail on a claim of disability discrimination under the ADA, [a party]
must prove that (1) he has a disability; (2) he is qualified for the job; and (3) [the




       1Pub. L. No. 110–325, § 2(b)(5), 122 Stat. 3553 (Sept. 25, 2008) (codified at 42 U.S.C.
§ 1201 (Note)).
       2See Pub. L. No. 110–325, § 2(a)(4)–(6), (2)(b)(2)–(5) (listing congressional findings
and purposes regarding the rejection of the rulings in these cases).
       3 See Toyota Motor, 534 U.S. at 193–99; Sutton, 527 U.S. at 481–94; see also 42 U.S.C.
§ 12102(1) (2012) (“The term “disability” means, with respect to an individual—(A) a physical
or mental impairment that substantially limits one or more major life activities of such indi-
vidual; (B) a record of such an impairment; or (C) being regarded as having such an impair-
ment (as described in paragraph (3)).”).
       4 See, e.g., 42 U.S.C. § 12102(4)(A) (2012) (“The definition of disability in this chapter
shall be construed in favor of broad coverage of individuals under this chapter, to the maxi-
mum extent permitted by the terms of this chapter.”).
                                               4
     Case: 12-51074          Document: 00512432680             Page: 5   Date Filed: 11/06/2013



                                           No. 12-51074

covered entity] made its adverse employment decision [ ] because of [the par-
ty’s] disability.” 5 In other words, though the ADAAA makes it easier to prove
a disability, it does not absolve a party from proving one.
       The ADAAA also—as Neely suggests—altered the text of the ADA in re-
gard to the use of the phrase “with a disability.” First, harmonizing the ADA
with Title VII, 6 the phrase “qualified individual with a disability because of the
disability of such individual” was replaced with “qualified individual on the
basis of disability” in describing the “general rule” under the ADA. 7 Second,
the ADAAA deleted the phrase “with a disability” from the term “Qualified
individual with a disability” and its definition, leaving it merely as the term
“Qualified individual.” 8 It did not, however, eliminate every usage of the
phrase “qualified individual with a disability” in the ADA: It still appears
twice during the discussion of accommodation. 9
       Despite Neely’s assertions to the contrary, these changes do not demon-
strate an intent to underscore the unimportance of “disability” under the ADA
or suggest that the use of the phrase “qualified individual with a disability” is
erroneous. These alterations of the definition section come under the heading
of “CONFORMING AMENDMENTS” in Section 5 of the ADAAA, and they im-
mediately follow the alteration of the general rule to conform to Title VII as


       5 Gober v. Frankel Family Trust, No. 13-50035, 2013 WL 3929971, at *2 (5th Cir.
July 31, 2013) (per curiam) (unpublished) (emphasis added, citation and internal quotation
marks omitted); see also Atkins v. Salazar, 677 F.3d 667, 675 (5th Cir. 2011).
       6   Compare 42 U.S.C. § 2000e-2(b) (2012) (“It shall be an unlawful employment practice
for an employment agency to fail or refuse to refer for employment . . . on the basis of his race,
color, religion, sex or national origin.” (emphasis added)), with 42 U.S.C. § 12112(a) (2012)
(“No covered entity shall discriminate against a qualified individual on the basis of disability
. . . .” (emphasis added)).
       7   Pub. L. No. 110–325, § 5(a)(1) (codified at 42 U.S.C. § 12112(a)).
       8   Id. § 5(c)(1) (codified at 42 U.S.C. § 12111(8)).
       9   See 42 U.S.C. § 12112(b)(5)(A)–(B) (2012).
                                                  5
     Case: 12-51074       Document: 00512432680          Page: 6     Date Filed: 11/06/2013



                                       No. 12-51074

discussed above. Thus, the changes appear to be an attempt to harmonize the
language and terminology of the statute, which used the term “qualified indi-
vidual” as a stand-alone term without definition even before passage of the
ADAAA. 10
       Because the stand-alone term was utilized without “with a disability”—
and the addition of “with a disability” in the term did not affect the definition
of “qualified individual” 11—it made sense for Congress to alter the definition
of terms accordingly. Ascribing any additional motivation to these alterations
requires leaps in logic that are not justified by the changes or the acts them-
selves. Therefore, the ADAAA’s alterations should not be construed as a repu-
diation of the use of the phrase “qualified individual with a disability” or a
signal that its use in jury interrogatories is error.
       Considering the extent of the changes and the codified purpose of the
ADAAA—and viewing the jury charge as a whole—the interrogatories appear
adequately to have presented the contested issues. Although the jury inter-
rogatories track those found in the Fifth Circuit pattern jury instructions, 12
which have not been revised to reflect the changes made by the ADAAA, the
court properly altered the definitions of “disability” and “qualified individual”
to mirror the new law—most importantly in regard to the “regarded as” prong


       10 See 42 U.S.C. § 12112(b)(4) (2012) (“[E]xcluding or otherwise denying equal jobs or
benefits to a qualified individual because of a known disability of an individual with whom
the qualified individual is known to have a relationship or association.”).
       11 This is evident in the fact that the only alteration to the definition of the term re-
quired after deleting “with a disability” was the deletion of that same three-word phrase it-
self. “Disability” was already defined as a separate term under the Act, and its inclusion did
not alter the meaning of “qualified individual.”
       12 Normally modeling of jury instructions on this circuit’s pattern instructions would
likely be treated as nonbinding, persuasive authority. See, e.g., United States v. Montford,
27 F.3d 137, 140 (5th Cir. 1994) (“[O]ne of our own pattern jury instructions certainly should
be treated as persuasive authority . . . .”). In this instance, however, because Neely’s claim
concerns changes in the law that have yet to be incorporated, this authority is less persuasive.
                                               6
    Case: 12-51074     Document: 00512432680       Page: 7   Date Filed: 11/06/2013



                                  No. 12-51074

of disability at issue. Thus, because the jury-instruction definitions of “disa-
bility” and “qualified individual” properly conform to the ADAAA (and because
the term “disability,” even in its broader sense, remains to be proven in claims
under the ADA), there is no abuse of discretion—or even error—in the use of
the terms in the first special verdict question.


                                        B.
      Neely maintains that the district court erred in submitting the third jury
question—“Was a Plaintiff a qualified individual with a disability?”—as a pred-
icate to finding a failure to accommodate under the ADA. Similar to his rea-
soning regarding the first jury question, this argument claims that this predi-
cate question is a misstatement of law that confused the jurors and terminated
their deliberation before reaching the central question of accommodation. That
argument is unpersuasive, however, because unlike the situation in EEOC v.
Manville Sales Corp., 27 F.3d 1089 (5th Cir. 1994)—which Neely cites as sup-
port—the question objected to does not misstate the law.
      After the passage of the ADAAA, a plaintiff in this circuit “must prove
the following statutory elements to prevail in a failure-to-accommodate claim:
(1) the plaintiff is a ‘qualified individual with a disability;’ (2) the disability
and its consequential limitations were ‘known’ by the covered employer; and
(3) the employer failed to make ‘reasonable accommodations’ for such known
limitations.” Feist v. La. Dep’t of Justice, Office of the Att’y Gen., No. 12-31065,
740 F.3d 450, ___, 2013 WL 5178846, at *1 (5th Cir. Sept. 16, 2013) (emphasis
added). Unlike the wording in termination claims under the ADA, the post-
ADAAA language of the ADA regarding accommodation claims continues to




                                         7
     Case: 12-51074       Document: 00512432680         Page: 8    Date Filed: 11/06/2013



                                      No. 12-51074

use the phrase “qualified individual with a disability.” 13 Additionally, consid-
ering the jury charge as a whole, the definition of disability for this context—
i.e., “actual” disability—is properly defined in the jury instructions to include
the abrogating language of the new ADAAA, broadening its definition.
       Because the district court did not abuse its discretion in either jury
interrogatory, there is no need to consider the two-part analysis to determine
whether the error requires reversal. No valid argument has been presented
that the interrogatories did not adequately present the contested issues to the
jury, so the judgment is AFFIRMED.




       13See 42 U.S.C. § 12112(b)(5)(A)–(B) (2012) (mentioning the phrase “qualified individ-
ual with a disability” twice in relation to failure-to-accommodate claims).
                                             8
