Labor & Employment Law Daily $300K compensatory damages award for Rehab Act violation vacated over jury instruction on expert testimony
Monday, March 11, 2019

$300K compensatory damages award for Rehab Act violation vacated over jury instruction on expert testimony

By Lorene D. Park, J.D.

By suggesting it was improper for an employer to provide its expert a copy of a prior summary judgment motion and suggesting to the jury that the expert’s opinion should be viewed with skepticism, a lower court committed prejudicial error warranting remand.

On appeal from a postal service employee’s successful claim that the service violated the Rehab Act by taking away a parking space that allowed him wheelchair access, the Seventh Circuit vacated a $300,000 award of compensatory damages and remanded for a new trial on that issue. Contrary to the district court’s conclusion, it was not a “flat-out violation” of Fed. R. Evid. 703 for the postal service to give a copy of its prior summary judgment motion to its expert, who testified she only used it to provide background information and it was not considered in forming her opinion. Moreover, it was prejudicial error for the lower court to provide jury instructions suggesting the jury should view with skepticism the expert’s testimony on the employee’s emotional distress, which was relevant to compensatory damages. On the other hand, the appeals court found no error in the jury instruction concerning the interactive process required by the Rehab Act (Sansone v. Brennan, March 6, 2019, Barrett, A.).

Space for wheelchair ramp. The long-time employee has multiple sclerosis and had not had use of his legs for 12 years. He used a wheelchair and a specially equipped van with a ramp, which required extra space on the passenger side. He was reserved a parking space between two loading dock doors, where there was room to deploy the van’s ramp. He could then could go up a loading ramp and through an automated doorway.

Parking space revoked. In 2011, the plant manager asked him to stop parking there. He was upset by what he viewed as an arbitrary decision but she said it was for safety reasons. The manager offered him two other options: to park in a handicapped spot in front of the building or to use the manager’s own reserved space in the back of the building. Neither met his needs because most of the handicapped spots didn’t provide enough room to deploy a passenger-side ramp, and those few that did were usually taken. In addition, the manager’s spot lacked the required space and a parking spot in the back would require the employee to travel in his wheelchair along a busy truck route in the dark.

Panic after threatened with towing. The employee emailed a maintenance manager and the chair of the reasonable accommodation committee, who said he would start the process for identifying an accommodation. A few days later, the manager saw the employee was parked near the loading docks and she told the maintenance manager to tell the employee to move it or risk having it towed. The employee panicked that he would be stranded there without his wheelchair. He experienced chest pain and left work. The next day, he saw his doctor, who said he was having panic attacks, recommended that he stay home until the situation was rectified, and prescribed medication for stress.

Litigation. The employee did not return; instead he was granted disability retirement. He also filed suit under the Rehab Act, alleging constructive discharge and failure to accommodate. The district court granted summary judgment against the constructive discharge claim but denied it on the other claim, which went to trial. The employee won $300,000 in compensatory damages. The court then awarded $828,774 in back and front pay, covering the period between his termination and the date he would have retired.

On appeal, the postal service argued that the district court erred regarding two jury instructions: one about the employee’s obligation to cooperate with his employer in identifying a reasonable accommodation and the other about how the jury should evaluate the service’s expert witness.

Interactive process jury instruction was correct. Before deciding the first issue, the appeals court provided some background on the required “interactive process,” explaining that it is not an end in itself, but is rather a means for identifying a reasonable accommodation. Thus, if there is no reasonable accommodation possible, or if the employer has already provided a reasonable accommodation, it will not be liable solely for refusing to take part in the interactive process. Rather, when a reasonable accommodation is possible and an employer did not offer it, that’s when the failure-to-accommodate claim can turn on the interactive process and responsibility will lie with the party that caused a breakdown in that process.

Here, the postal service argued that the court erroneously instructed the jury that it could find for the employee even if he was at fault for the breakdown in the interactive process. But the appeals court disagreed because the service was cherry-picking a few words out of the instruction and, when read in context, the jury instruction was plainly correct.

Expert considers SJ brief as context for case. The postal service’s next argument concerned its expert witness, who opined on the cause of the employee’s emotional distress, which was relevant to compensatory damages. On cross-examination, the employee’s lawyer asked the expert if she had read the service’s brief in support of its summary judgment motion in preparing her report. She said that she had, but only to help “understand the story” and not to get her facts about what the employee was claiming. She said she got her facts about the employee’s claimed emotional distress “by reviewing objective records.” Interrupting her testimony, the court admonished counsel for providing the summary judgment motion and said it was a “flat-out violation of Federal Rule of Evidence 703.”

Erroneous jury instruction. The court hammered that point home in its instructions, telling the jury to keep in mind that the expert was “provided by counsel for the Postal Service with a copy of the Postal Service’s argument that had been made earlier in the case in support of an unsuccessful motion to prevent the case from going to trial on the premise that there were no genuine issues of material fact that called for consideration by a jury. That is a document that presents the Postal Service’s version of the facts and of the legal arguments that they sought to support that motion. It was inappropriate for that information to be provided to the opinion witness. And that inappropriateness was amplified by the failure of the Postal Service’s counsel to provide her with the successful argument that had been made by Sansone’s lawyer in opposition to the motion and, more importantly, by the failure of Postal Service’s counsel to provide her with the Court’s opinion that rejected the motion….”

According to the postal service, this jury instruction essentially invited the jury to disregard the expert’s opinion. The appeals court agreed. Contrary to the lower court’s view, providing the summary judgment motion was not a flat-out violation of FRE 703, which does not govern the information experts can have, but only governs the information on which they can base their opinions. Experts can rely on inadmissible facts and data so long as “experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.”

Thus, even if the expert had relied on the summary judgment motion to form her opinion, which she said she did not do, the court would simply have needed to determine whether experts in her field would have reasonably done the same thing. The lower court therefore erred by telling the jury that the postal service acted improperly by giving the expert the motion and suggesting the court would have excluded her testimony had it learned about the issue earlier.

Prejudice merits new trial on damages. By indicating to the jury that it shouldn’t trust what the expert said, the district court “not only misled the jury but also invaded the jury’s function in assessing witness credibility,” said the appeals court. The prejudice was particularly acute here because, even before the jury instruction, the court had interrupted the expert’s testimony to admonish her, expressing incredulity that she read the summary judgment motion. Because the instruction was erroneous and prejudicial, the appeals court remanded for a new trial on the issue of compensatory damages.

Though the postal service also raised an argument that the lower court erred in awarding equitable relief in the form of back and front pay, the appeals court would not consider that because the postal service had forfeited that argument by not raising it below.

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