United States District Court, D. Oregon
Kerry M. L. Smith, SMITH & FJELSTAD, 722 N. Main Ave., Gresham, OR 97030; Banafsheh Violet Nazari, NAZARI LAW, 1526 N.E. Alberta St. No. 310, Portland, OR 97211. Of Attorneys for Plaintiff.
Janet M. Schroer and Ruth C. Rocker, HART WAGNER LLP, 1000 S.W. Broadway, 20th Floor, Portland, OR 97205. Of Attorneys for Defendant.
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
A jury found in favor of Tracy Dunlap ("Plaintiff") against Liberty Natural Products, Inc. ("Defendant") for disability discrimination under Title I of the Americans with Disabilities Act ("ADA") and related Oregon law. Defendant moves for judgment as a matter of law under Federal Rule of Civil Procedure 50(b) or, in the alternative, for a new trial under Federal Rule of Civil Procedure 59. For the reasons discussed below, Defendant's motions are DENIED.
A. Judgment as a Matter of Law
Judgment as a matter of law is proper if "the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict." E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009) (quotation marks omitted); see also Weaving v. City of Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014) (explaining that judgment as a matter of law must be granted if it is clear that "the evidence and its inferences cannot reasonably support a judgment in favor of the opposing party"). Because Rule 50(b) represents a renewed motion, a party cannot "raise arguments in its post-trial motion for judgment as a matter of law that it did not first raise in its Rule 50(a) pre-verdict motion." Go Daddy Software, 581 F.3d at 961 (quotation marks omitted).
In evaluating a motion for judgment as a matter of law, the Court must view all the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Experience Hendrix, L.L.C., v. Hendrixlicensing.com, Ltd., 762 F.3d 829, 842 (9th Cir. 2014). The Court may not, however, make credibility determinations, weigh the evidence, or "substitute its view of the evidence for that of the jury." Krechman v. City of Riverside, 723 F.3d 1104, 1110 (9th Cir. 2013) (quotation marks omitted). A jury's verdict must be upheld if it is supported by substantial evidence. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1242 (9th Cir. 2014); Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001). Substantial evidence is "such relevant evidence as reasonable minds might accept as adequate to support a conclusion[, ] even if it is possible to draw two inconsistent conclusions from the evidence." Weaving, 763 F.3d at 1111 (quotation marks omitted).
B. New Trial
The Court "may grant a new trial only if the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice." Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quotation marks omitted); see also Shimko v. Guenther, 505 F.3d 987, 993 (9th Cir. 2007). Unlike a Rule 50 determination, the Court is not required to view the evidence in the light most favorable to the non-moving party. Experience Hendrix, 762 F.3d at 842. Rather, the Court "can weigh the evidence and assess the credibility of the witnesses." Id. (citing Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010) (per curiam)). A judge should not award a new trial unless the judge is "left with the definite and firm conviction that a mistake has been committed." France Telecom S.A. v. Marvell Semiconductor Inc., 2015 WL 925892, at *1 (N.D. Cal. Mar. 2, 2015) (quoting Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371-72 (9th Cir. 1987)).
Defendant is a small business that grows, imports, and distributes wholesale botanical ingredients and natural products. Defendant employed Plaintiff in the position of shipping clerk from September 12, 2006 until April 27, 2012, when Defendant terminated Plaintiff's employment. On or about June 7, 2010, Plaintiff began to experience soreness in her right elbow, which was the basis of her on-the-job injury. On October 20, 2010, she filed a workers' compensation claim. A medical doctor diagnosed Plaintiff with an injury or condition known as "bilateral lateral epicondylitis" in both of her elbows. After October 20, 2010, and until her employment was terminated on April 27, 2012, Defendant provided full-time work for Plaintiff within her restrictions, mostly in Defendant's shipping department. Plaintiff's workers' compensation claim was accepted on December 10, 2010, and the claim was closed on March 8, 2012.
On March 8, 2012, Defendant's workers' compensation insurance carrier issued a Notice of Closure, which both Plaintiff and Defendant received a few days later. In the Notice of Closure, Plaintiff's claim was classified as disabling under Oregon workers' compensation. On April 27, 2012, Defendant terminated Plaintiff's employment. On May 4, 2012, Plaintiff asked to be reinstated either to her former shipping clerk position or another suitable position when such a position became available. Defendant chose not to reinstate Plaintiff.
Plaintiff brought suit against Defendant, alleging employment discrimination based on disability under the ADA and Or. Rev. Stat. ("ORS") § 659A.112, discrimination for using the Oregon workers' compensation system under ORS § 659A.040, failure to reinstate or reemploy under ORS §§ 659A.043 and 659A.046, and discrimination for filing claims with the Oregon Bureau of Labor and Industries and the Equal Employment Opportunity Commission under ORS § 659A.199. After the Court granted partial summary judgment, three of Plaintiff's claims- disability discrimination, "regarded as" disability discrimination, and failure to reinstate or reemploy-remained for trial. The jury returned a verdict for Plaintiff on her claim for disability discrimination under the ADA and related Oregon law. The jury returned a verdict against Plaintiff's "regarded as" disability claim and failure to reinstate or reemploy claim. The jury awarded Plaintiff non-economic damages of $70, 000, and the Court awarded Plaintiff back pay damages of $13, 200.
A. Defendant's Renewed Motion for Judgment as a Matter of Law
Defendant moves for judgment as a matter of law, arguing that the ADA requires a plaintiff to prove, by a preponderance of the evidence, that a reasonable accommodation existed and that Plaintiff did not meet this burden. Specifically, Defendant argues that although Plaintiff identified certain accommodations, Plaintiff did not present evidence that any of the proposed accommodations would have been reasonable or would have allowed Plaintiff to perform the essential functions of the shipping clerk position. Plaintiff asserts that the standard at trial is the same as the standard at summary judgment and that the ADA does not require that the accommodation proposed be certain to succeed or even likely to succeed but even if the ADA did require that, Plaintiff met this burden at trial as well.
1. Burden at Trial
To prevail in a discrimination action under Title I of the ADA, a plaintiff must establish that the plaintiff: (1) is a person with a disability; (2) is capable of performing the essential functions of the job, with or without reasonable accommodation; and (3) was unlawfully discriminated against because of the plaintiff's disability. Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001). An employer discriminates against an employee if the employer does not provide reasonable accommodation, unless the employer can demonstrate that the accommodation would cause the employer "undue hardship." 42 U.S.C. § 12112(b)(5)(A).
Burden shifting under Title I of the ADA historically has varied slightly circuit to circuit. In U.S. Airways, Inc. v. Barnett , however, the Supreme Court clarified that an employee can avoid summary judgment by showing that "an accommodation' seems reasonable on its face, i.e., ordinarily or in the run of cases." 535 U.S. 391, 401 (2002). Thus, after a plaintiff makes a facial showing that a reasonable accommodation is possible, the burden of production shifts to the employer to show that the accommodation is not reasonable or that it would cause an "undue hardship" to the employer. Id. at 401-02. Courts use this framework to decide whether to grant a motion for summary judgment in ADA employment discrimination actions. See Barnett, 535 U.S. at 401; Dark v. Curry Cnty., 451 F.3d 1078, 1088 (9th Cir. 2006); Humphrey v. Mem'l Hospitals Ass'n, 239 F.3d 1128, 1136 (9th Cir. 2001); Tu v. Kaiser Found. Health Plan of Nw., 2008 WL 3871742, at *18 (D. Or. Aug. 19, 2008). The purpose of shifting the burden of production is to represent the ADA's requirement that both the employee and the employer share the task of finding a reasonable accommodation. Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1113 (9th Cir. 2000) (judgment vacated on other grounds by U.S. Airways v. Barnett, 535 U.S. 391, 401 (2002)).
At trial, however, the plaintiff bears the burden of persuasion to show that a "reasonable accommodation existed that would have enabled [the plaintiff] to perform the essential functions of an available job." Tu, 2008 WL 3871742, at *18; see also Dark, 451 F.3d at 1088 ([A plaintiff] has the burden of showing the existence of a reasonable accommodation that would have enabled [the plaintiff] to perform the essential functions of an available job."); Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) (explaining that a plaintiff "retains the burden of proof in making [his or] her prima facie case"); Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1046 (9th Cir. 1999) ("In Barnett, we made clear that the plaintiff bears the ultimate burden of persuasion with regard to whether he is qualified."). Similarly, the burden of persuasion falls on the defendant to demonstrate that a proposed accommodation would cause undue hardship, if the defendant chooses to raise undue hardship as an affirmative defense. See Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1098 (9th Cir. 2007). Therefore, Plaintiff has the burden of persuasion to demonstrate that a reasonable accommodation existed that would have enabled her to perform the essential functions of the shipping clerk position. The jury was appropriately instructed on Plaintiff's burden to do so.
2. The Jury's Finding
Viewing all of the evidence in the light most favorable to Plaintiff and drawing all reasonable inferences in her favor, the jury's conclusion that Plaintiff could perform the essential functions of the shipping clerk position is supported by substantial evidence in the record.
First, a reasonable jury could conclude that the essential job function of the shipping clerk position was to move items from point A to point B. A reasonable jury could also conclude that lifting and carrying objects was not an essential job function of the shipping clerk position. The Court instructed the jury to consider a multitude of factors to determine whether a particular job function is essential. The relevant portion of Jury Instruction No. 14, relating to "Essential Job Functions, " reads:
An "essential job function" of an employment position means the fundamental job duties of the employment position that Plaintiff holds or desires. It does not include marginal functions that may occur through the course of a job.
Factors for you to consider that may bear upon whether a particular job function is essential include, but are not limited to:
(1) the employer's judgment as to what functions of the job are essential;
(2) any written job description prepared before advertising the job opening or interviewing applicants for the job;
(3) whether the reason the position exists is to perform that function;
(4) whether there are a limited number of employees available among whom the performance of that ...