A jury reasonably found that assistive devices which an employer had failed to consider might have enabled a shipping clerk with an elbow condition to perform the essential functions of her position, the Ninth Circuit held, affirming the trial court’s refusal to grant the employer’s motion for judgment as a matter of law. And, while the jury instructions at trial had improperly conflated the elements of a disability discrimination claim with those of a failure-to-accommodate claim, the appeals court concluded the error was harmless. It also upheld the district court’s decision to cut the employee’s attorney fee award in half based on the relative success obtained by the employee at trial (Dunlap v. Liberty Natural Products, Inc., December 28, 2017, Rawlinson, J.).
Elbow condition. The employee worked as a shipping clerk for a business that grew and distributed botanical ingredients and natural products. She began to experience soreness in her right elbow. She filed a workers’ compensation claim and a medical doctor diagnosed her with bilateral lateral epicondylitis in both elbows. Her employer provided her with full-time work within her restrictions, and she worked with those restrictions in place for two years. However, a few weeks after the workers’ comp carrier classified her injury as disabling and closed her case, the employer terminated her, without considering whether she could perform her duties with a reasonable accommodation. The employee later asked to be reinstated to her former job or another suitable position, but the employer refused.
Lawsuit. The employee filed suit under the ADA and Oregon law. A jury returned a verdict in her favor on her disability discrimination claims (but found for the employer on her “regarded as” and failure-to-reinstate claims) and awarded her noneconomic damages of $70,000. In a 2015 decision, the district court affirmed a jury verdict in her favor, finding there was sufficient evidence that assistive devices discussed at trial might have alleviated her performance issues but were not considered by the employer. Therefore, the court denied the employer’s renewed motion for judgment as a matter of law as well as its motion for a new trial.
On appeal, the employer challenged the trial court’s jury instructions as erroneous, along with its denial of the employer’s motion for judgment as a matter of law. The employee, for her part, appealed the court’s decision to reduce her fee award (she had asked for $235,000) by 50 percent.
Jury instructions. On appeal, the employer argued the jury instructions improperly conflated the elements of the employee’s disparate-treatment claims with those of her failure-to-accommodate claims—thus denying the jurors “the opportunity to decide the foundational issue” of whether a duty to accommodate had been triggered, it contended. The appeals court agreed, noting the two claims were analytically distinct. “Ideally,” the elements of these two causes of action would have been separated in the jury instructions, the appeals court said, finding a misstatement of the law.
However, the instructional error was harmless, the appeals court held, because the employer already had “ample notice” of the employee’s limitations, thus triggering its duty to engage in the interactive process. She had provided medical documentation describing her restrictions; she had asked to use onsite carts and other workspace modifications. As such, the employer was aware of (or had reason to be aware of) her desire for a reasonable accommodation. Consequently, it was “more probable than not” that the erroneous instruction had no impact on the jury’s verdict, and so was harmless.
JMOL motion. According to the employer, the employee had not met her burden at trial of proving that a reasonable accommodation existed that would have enabled her to perform the essential job functions; and therefore, its renewed motion for judgment as a matter of law was wrongly denied. But the appeals court was not persuaded, concluding there was sufficient evidence to support the verdict. The employee presented evidence that carts and other affordable assistive devices, such as a scissor lift table, were readily available to the employer and could have enabled her to move objects from one point to another—the key functions of her shipping clerk role. She also established that she put the employer on notice of her limitations (offering documentation of her medical restrictions and releases). Moreover, the record evidence indicated that the employer discouraged use of onsite carts, did not discuss or provide other assistive devices, failed to articulate any undue hardship on its part, and discharged her due to her perceived inability to perform the essential job functions. Therefore, the district court properly denied the employer’s motion.
Fee reduction. Finally, the appeals court rejected the employee’s contention that the lower court abused its discretion when it reduced her attorneys’ fee request by 50 percent. The district court reviewed the limited relief obtained relative to the overall litigation and gave “concise but clear” reasons for deeming a 50-percent reduction appropriate—in the end, she won on only one of her five claims. Therefore, the Ninth Circuit deferred to the trial court’s discretion and upheld the reduced award.
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