# Hamlin v. Charter Township of Flint

> Court of Appeals for the Sixth Circuit · January 8, 1999 · 165 F.3d 426

URL: https://www.frixlaw.com/law-library/cases/6980812

## Case

- **Full name:** Robert W. HAMLIN Jeanne E. Hamlin v. CHARTER TOWNSHIP OF FLINT Charter Township of Flint Fire Department Sally Shaheen Joseph Greg Wright, (97—1026) Robert W. Hamlin, (97-2105)/Cross-Appellee, Jeanne E. Hamlin v. Charter Township Of Flint Charter Township Of Flint Fire Department Sally Shaheen Joseph Greg Wright, Defendants-Appellees/Cross-Appellants (97-2129)
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 8, 1999
- **Citations:** 165 F.3d 426
- **Precedential status:** Published
- **Opinion:** Concurrence by Nelson
- **Judges:** Clay, Gilman, Nelson
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6980812

## How later opinions describe it (automated extraction)

- applying rule in ADA case

## Opinion text

DAVID A. NELSON, Circuit Judge,
concurring in the judgment only.
I concur in the court’s judgment, believing myself constrained to do so by prior published caselaw of this circuit. Were we writing on a clean slate, however, I would favor remanding the case for a new trial. If free to do so, I would, among other things, direct the district court to follow what I take to be conventional norms in charging the jury on the burden of proof. I would also accord the district court discretion to offset prospective collateral benefits against the plaintiffs prospective wage loss.
I
Turning first to the burden of proof question, I start with the proposition that the ADA prohibits disability-based discrimination against “a qualified individual with a disability.” 42 U.S.C. § 12112 . The quoted phrase is a term of art. It is defined in 42 U.S.C. § 12111 (8) as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” (Emphasis supplied.)
If one were simply to read what the statute says, one might suppose that a person claiming to have been discriminated against in violation of the ADA would have the burden of proving his ability to perform the “essential functions” of the position in question. One might further suppose that in the event of a disagreement as to whether a given job function is or is not “essential,” the plaintiff would have the burden of proving it is not. In this circuit, however, one would be wrong.
Monette v. Electronic Data Systems Corp., 90 F.3d 1173 (6th Cir.1996) — a decision that binds this panel, of course, just as it bound the district court — holds that “if a disabled individual is challenging a particular job requirement as unessential, the employer will bear the burden of proving that the challenged criterion is necessary.” Id. at 1184 . Monette thus treats the matter of “essential functions” not as an element of the plaintiffs case, but as an affirmative defense — at least where the plaintiff wants it that way.
In taking this tack, the Monette opinion (see 90 F.3d at 1183-84 ) blurs the distinction between “undue hardship” — a showing of which, under 42 U.S.C. § 12112 (b)(5)(A), is an affirmative defense to a claim that the employer has not made the requisite accommodations to the claimant’s limitations — and “essential functions,” an ability to perform which would seem to have been made an element of the plaintiffs case under §§ 12112(a) and 12111(8). Similarly, Mon-ette (see 90 F.3d at 1184 ) blurs the distinction between essential functions and “business necessity” — a showing of which, under 42 U.S.C. § 12112 (b)(6), can be an affirmative defense to the prohibited use of “qualification standards, employment tests, or other selection criteria” that tend to screen out people with disabilities.
As the district court pointed out at an early stage of the proceedings in the case at bar, the Monette panel’s analysis “equates a statutory prohibition (ie., no unlawful or pre-textual screening mechanisms) with the creation of a legal burden.” Hamlin v. Charter Township of Flint, 942 F.Supp. 1129, 1137 (E.D.Mich.1996). Such an equation, as the district court went on to explain, is highly problematic:
“The mere fact that an act is prohibited does not place the burden of proving that it was not done upon the one accused of doing it. Here, Plaintiffs [sic] simply challenging a job function as unessential (and, presumably, pretextual) should not be equated with requiring the employer to prove it is essential. To do so effectively turns on its head the burden of proof in an ADA case because rather than the plaintiff being required to show that he or she is capable of performing all of the essential functions of a job, all he or she need do is challenge the essentiality of one of the job functions and, thereby, shift the burden of proof on one of the critical factors for showing that he or she is qualified for the job. Such a shift is clearly unwarranted because it allows a plaintiff to avoid mak *440 ing his or her prima facie ease.” Id. (footnote omitted).
In practice, as the Monette panel suggested in a footnote, it may not be easy to distinguish between a dispute over the essen-tiality of a particular job requirement and a dispute over a particular screening mechanism or a particular proposed accommodation. See Monette, 90 F.3d 1173 , 1182 n. 8. Congress having drawn these distinctions, however, it seems to me that the courts ought to honor them. It is unwarranted, in my view, to let the plaintiff escape the burden of proving the statutory elements of his case because of a possible overlap with statutory defenses which the defendant may not even choose to assert.
Under traditional burden of proof concepts, as the Tenth Circuit has said, it would be up to the plaintiff to establish
“(1) that he is a disabled person within the meaning of the ADA; (2) that he is qualified, that is ... he is able to perform the essential functions of the job; and (3) that the employer terminated him because of his disability.” White v. York Int’l Corp., 45 F.3d 357, 360-61 (10th Cir.1995) (footnote omitted) (emphasis supplied).
In the ease at bar there was conflicting evidence as to whether the physical ability to fight fires was one of the essential functions of the assistant fire chiefs position. The traditional approach, as exemplified in White , would have been to instruct the jury that the plaintiff had the burden of proof — i. a, that the plaintiff bore the risk of non-persuasion — on this issue. What the district court actually told the jury, however, was just the opposite: “The defendants have the burden of proving by a preponderance of the evidence that the ability to perform all of the duties of a firefighter is an essential function of the assistant fire chiefs position.”
This instruction was completely faithful to Monette, 1 so it cannot constitute reversible error. Like the district court, however, I believe that the instruction was simply wrong.
To say that the “overall” burden of persuasion remains with the plaintiff does not solve the problem, in my opinion. If a misguided jury instruction leads the jury to decide the “essential function” issue incorrectly, the plaintiff may well be enabled to carry an “overall” burden which he would not otherwise have been able to sustain.
II
As to the collateral benefit issue, “[t]he weight of authority unquestionably favors the view that decisions about whether to consider the plaintiffs receipt of collateral benefits in gauging the appropriateness and amount of front pay, and if so, how to calibrate the scales, lie within the equitable discretion of the trial court.” Lussier v. Runyon, 50 F.3d 1103, 1108 (1st Cir.1995). Citing, however, Rasimas v. Michigan Dep’t of Mental Health, 714 F.2d 614 (6th Cir.1983) — a decision that did not address front pay, but that discerned “a national backpay policy” prohibiting the deduction of unemployment compensation benefits from backpay awards in employment discrimination cases — my colleagues on the panel find the majority view, as adopted by the First Circuit, unpersuasive. I myself do not find it unpersuasive.
There is no “national policy,” as far as I know, that mandates an award of front pay whenever there has been a violation of the ADA. The decision whether to award or withhold front pay, according to Lussier ( 50 F.3d at 1108 ), is “within the equitable discretion of the trial court.” Such a decision is heavily dependent upon the trial court’s analysis of the particular facts of the case before it. If the facts suggest that it would be equitable to allow the plaintiff to recover front pay in the absence of collateral benefits, but inequitable to allow a double recovery, it seems to me that the trial court, functioning as a court of chancery, ought to be able to block the double recovery.
*441 It is arguable, of course, that the payment of collateral benefits necessarily entails a potential windfall for someone, and that as between the victim and the tortfeasor it is always preferable to favor the victim. Some tortfeasors are more at fault than others, however — a small fire department that refused to hire African-Americans, for example, would be far more blameworthy, in my view, than a small fire department that honestly considered it essential for each of its firefighters to be physically capable of fighting fires — and it seems to me that a court of equity should be able to take the degree of fault into account, along with the interests of the taxpayers and other potentially relevant considerations.
Whatever the equities may be in the case at bar, however, it is impossible to tell how mueh (if any) of the future damages awarded by the jury in this case represented front pay. 2 If the case were to be retried, it would be a simple matter to have any award of front pay stated separately. Given the current state of the record, however, I am inclined to think that it was an abuse of discretion to set off collateral benefits against any part of the future damages — and I am more confident that it was an abuse of discretion to set off collateral benefits against the past damages.
. The defendants argue that wher the Monette panel said that "the employer will bear the burden of proving that the challenged criterion is necessary," 90 F.3d at 1184 , it meant only that the employer will bear the burden of producing evidence of essentiality, not the burden of persuading the jury that a preponderance of the evidence supports a finding of essentiality. I disagree. In context, it seems clear to me that the Monette panel was speaking of a burden of persuasion, not a burden of production.
. The jury awarded $86,650 in past damages and $413,350 in future damages.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6980812. Public record. Not legal advice.