A Postal Service employee needed, and was given, a parking spot that allowed him to load and unload his wheelchair from his van. Remarkably, the Postal Service took away that spot and failed to replace it with one that was suitable for a wheelchair.
The Rehabilitation Act is a federal law that protects federal employees from disability discrimination. Like the Americans with Disabilities Act, the law requires federal employers (and certain other employers that receive federal funds) to accommodate employees who have disabilities.
The postal employee, Tony Sansone, persuaded a jury that the Postal Service violated the Rehabilitation Act. An accessible parking spot is a reasonable accommodation for an employee in a wheelchair. The fact that Sansone had such a spot before it was taken from him was compelling evidence that the accommodation could have been provided without causing undue hardship to the Postal Service.
The jury found in favor of Sansone and awarded damages. The Postal Service appealed, arguing that jury instructions concerning the Postal Service’s expert witness were incorrect. The Court of Appeals for the Seventh Circuit agreed in an opinion that remanded the case for a new trial on compensatory damages.
Facts of the Case
Sansone developed multiple sclerosis during his employment by the Postal Service. He was given a parking spot near the loading dock that provided sufficient room for him to deploy his wheelchair ramp. That accommodation allowed him to perform his job duties. Making it possible for disabled employees to work is exactly the goal that Congress hoped to achieve by prohibiting disability discrimination.
Sansone continued to use the parking spot for the next twelve years. A new manager told Sansone to stop parking in that spot. She claimed it was unsafe to park there, a claim that was belied by Sansone’s long history of parking in the spot without a problem.
The manager told Sansone to park in a visitor’s disabled parking spot in front of the building. Most of those spots would not have allowed him to deploy his ramp and the few that might have worked were usually taken by members of the public, for whom they were intended.
The manager also told Sansone he could use her spot at the back of the building, but her spot did not provide sufficient room for the ramp. Even if he used it, he would need to travel in his wheelchair along a busy truck route in the dark. That option would have been considerably less safe than continuing to park in the spot that he had used uneventfully for years.
Dealing with the recalcitrant manager proved to be stressful. Sansone tried to work with a Postal Service disability coordinator, who only promised to try to identify a reasonable accommodation. Sansone eventually received a form letter asking him to identify the nature of his disability and to provide medical documentation.
Sansone was frustrated with the Postal Service’s bureaucratic response because the Postal Service was well aware that he suffered from MS and that he had been confined to a wheelchair for more than a decade. Whether the Postal Service needed “documentation” under those circumstances was a question that the jury answered in Sansone’s favor.
Sansone’s direct supervisor told him to keep parking in his original spot until the issue was resolved. The plant manager, however, noticed that Sansone’s van was parked near the loading dock and sent Sansone an email threatening to have his van towed. Sansone had a panic attack, fearing that he would be stranded at work without transportation. He took some time off. After his condition worsened, he eventually applied for an was granted a disability retirement.
A jury found that the Postal Service failed to accommodate Sansone’s disability. It awarded Sansone $300,000 in compensatory damages and more than $800,000 for lost pay from the date he took a disability retirement until the date he had planned to retire. The Postal Service appealed.
Expert Witness Testimony
Sansone’s compensatory damages were largely based on evidence that Sansone suffered from emotional distress caused by the failure to accommodate his disability. To challenge that evidence, the Postal Service relied on the expert testimony of Diana Goldstein.
Goldstein acknowledged on cross-examination that she read a brief filed by the Postal Service in support of a summary judgment motion that the court denied. She denied, however, that her view of the evidence was based on the statement of material facts that the Postal Service included in the brief. Rather, she testified that she gleaned the facts from a meeting with Sansone and a review of his medical records, although she reviewed the summary judgment brief to give “context” to those facts.
The court expressed surprise that Goldstein did not review the deposition of the plant manager (she testified that it wasn’t relevant to her assessment of Sansone’s emotional distress) but did review a lawyer’s argument filed in support of an unsuccessful motion. The court admonished the Postal Service’s lawyer for giving the brief to Goldstein for her review.
Expert Witness Jury Instruction
The court later instructed the jury that a summary judgment motion is based on the contention that all the relevant facts are undisputed. The court explained that it denied that motion because it determined that the facts were disputed and that the disputed facts should be decided by a jury.
The court also told the jury that it was inappropriate for the Postal Service to give its expert a statement of facts and legal argument that the court had rejected, and that its inappropriate conduct was compounded by its failure to give the expert the successful argument filed by Sansone’s lawyers. The court deemed it even more inappropriate to fail to give the expert a copy of the court’s decision that rejected the Postal Service’s view of the allegedly undisputed facts.
The court’s instruction also faulted Sansone’s counsel for not raising the issue prior to trial. The court told the jury it could consider its instruction in its evaluation of Goldstein’s testimony, and repeated the standard instruction that the jury was entitled to give her testimony whatever weight it deserved.
The Court of Appeals disagreed with the trial judge that the Postal Service lawyers violated Rule 703 of the Federal Rules of Evidence by giving Goldstein a copy of their summary judgment submission. That rule governs the information upon which experts may base opinions, not the information that may be given to them.
The summary judgment brief was not admissible evidence, and if experts do not generally rely on summary judgment briefs in forming opinions (the court assumed that they do not), it would have been error to admit expert testimony that was based on the brief. But Goldstein testified that she did not rely on the brief for her view of the facts. To the extent that reviewing the brief filed by one side but not the other is indicative of bias, cross-examination is the means to expose that bias.
Experts are generally allowed to testify even when they are biased, provided they base their opinions on a reliable methodology and adequate facts. While some overzealous judges view their “gatekeeping” role as a license to exclude expert testimony if they think the expert is biased, the Seventh Circuit has repeatedly explained that whether bias renders an expert opinion unworthy of belief is for the jury to determine.
Since the court all but instructed the jury that it should not believe Goldstein, the court’s instruction deprived the Postal Service of a fair trial on the issue of compensatory damages. That error did not affect the jury’s finding of liability or its determination of lost pay. The Court of Appeals therefore affirmed those parts of the jury verdict but remanded for a new trial on the issue of compensatory damages.