Cheeks v. General Dynamics et al

Filing 184

ORDER denying 179 Plaintiff's Rule 59 Motion for New Trial. See attached Order. Signed by Senior Judge James A Teilborg on 3/23/2015.(TLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Loretta H. Cheeks,

No. CV-12-01543-PHX-JAT
Plaintiff,

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v.

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ORDER

General Dynamics, et al.,

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Defendants.

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Before the Court is Plaintiff’s Rule 59 Motion for New Trial. (Doc. 179). The

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Court now rules on the motion.

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I.

Background

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A six-day trial for Plaintiff’s FMLA claim began on November 18, 2014, and

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concluded on November 25, 2014. The trial revolved around the leave Plaintiff took

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pursuant to the Family and Medical Leave Act (“FMLA”) and her subsequent termination

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of employment by Defendant. Plaintiff presented evidence that during weeks when she

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took eight hours of approved, FMLA-eligible leave, she was nonetheless required to

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complete a forty-hour workload. She further presented evidence that she was taken off of

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a project, called the MUOS program, which directly led to her termination as a part of a

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reduction in force. Defendant, on the other hand, offered evidence that the assignments

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Plaintiff was given would take no more than thirty hours a week to complete and that she

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was not taken off the MUOS program because she was unable to complete forty hours of

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work.

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Before trial, Plaintiff requested, and the Court rejected, the following jury
instructions:
11. Plaintiff’s Proposed Instruction—Performance Expectations

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I instruct you that, when evaluating the performance of an employee

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with intermittent or reduced schedule FMLA leave, the employer is

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required to adjust the employee’s performance expectations to account for

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the employee’s reduced working time.

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An employee with intermittent or reduced schedule FMLA leave is

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not required to complete the duties of a full-time position. An employer

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cannot penalize an employee that has intermittent or reduced schedule leave

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because that employee cannot satisfactorily complete the workload of a

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full-time position during their period of leave.

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15. Plaintiff’s Proposed Instruction—Exempt Employees:

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I instruct you that employees known as “exempt” employees are

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usually paid a salary and are required to work as many hours as is necessary

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to complete their job responsibilities. However, exempt employees with

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approved intermittent or reduced schedule FMLA leave may have their pay

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reduced and may not receive their normal full-time salary.

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Therefore, if an exempt employee with approved FMLA leave is not

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paid her normal fulltime salary, then the employee is not required to work

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the same hours, or complete the same workload, as a full-time employee

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without such leave.

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At trial, the jury returned a verdict in favor of Defendant. Plaintiff now moves for a new

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trial, arguing that the Court prejudicially erred by failing to give the above jury

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instructions.

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II.

Discussion

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Rule 59 states, “The court may, on motion, grant a new trial on all or some of the

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issues . . . for any reason for which a new trial has heretofore been granted in an action at

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law in federal court.” Fed. R. Civ. P. 59(a)(1)(a). Recognizing that the rule “does not

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specify the grounds on which a motion for a new trial may be granted,” Zhang v. Am.

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Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir.2003), the Ninth Circuit has laid out

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general guidance on how it is to be applied:

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[T]he court is “bound by those grounds that have been historically

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recognized.” Id. Historically recognized grounds include, but are not

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limited to, claims “that the verdict is against the weight of the evidence,

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that the damages are excessive, or that, for other reasons, the trial was not

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fair to the party moving.” Montgomery Ward & Co. v. Duncan, 311 U.S.

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243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940). We have held that “[t]he trial

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court may grant a new trial only if the verdict is contrary to the clear weight

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of the evidence, is based upon false or perjurious evidence, or to prevent a

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miscarriage of justice.” Passantino v. Johnson & Johnson Consumer

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Prods., 212 F.3d 493, 510 n.15 (9th Cir. 2000).

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Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007). “It is equally clear that

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erroneous jury instructions, as well as the failure to give adequate instructions, are also

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bases for a new trial.” Murphy v. City of Long Beach, 914 F.2d 183, 187 (9th Cir. 1990).

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Importantly, a new trial is “confided almost entirely to the exercise of discretion

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on the part of the trial court.” Murphy, 914 F.2d at 186 (quoting Allied Chem. Corp. v.

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Daiflon, Inc., 449 U.S. 33, 36 (1980)). It is well established that “[c]ourts do not grant

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new trials unless it is reasonably clear that prejudicial error has crept into the record or

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that substantial justice has not been done, and the burden of showing harmful error rests

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on the party seeking the new trial.” 11 Wright, Miller & Kane, Federal Practice and

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Procedure: Civil 2d § 2803 (1995) (internal citations omitted). When a judge grants a

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new trial, he “to some extent at least, substitute[s] his judgment of the facts and the

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credibility of the witnesses for that of the jury. . . . [T]he judge takes over, if he does not

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usurp, the prime function of the jury as the trier of facts.” Lind v. Schenley Industries,

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Inc., 279 F.2d 79, 90 (2d Cir. 1960); see also 11 Wright, Miller & Kane, Federal Practice

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and Procedure: Civil 2d § 2806 (1995) (“[A] decent respect for the collective wisdom of

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the jury, and for the function entrusted to it in our system, certainly suggests that in most

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cases the judge should accept the findings of the jury, regardless of his own doubts in the

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matter.”) (citation omitted). As such, Plaintiff’s burden of establishing ground for a new

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trial is very high.

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Plaintiff argues the rejected jury instructions were necessary because, as a matter

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of law, “[t]he FMLA requires the employer to adjust the employee’s work load and

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performance expectations to account for her FMLA time off.” (Doc. 179 at 2). Plaintiff

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directs the Court to no provision of the FMLA or its implementing regulations that

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support this theory. Instead, Plaintiff relies exclusively on the Seventh Circuit’s decision

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in Lewis v. School District #70, 523 F.3d 730 (7th Cir. 2008).

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Lewis involved a school district bookkeeper, Ms. Lewis, who needed time off to

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care for her ailing mother. At first, Ms. Lewis was given flexibility in her schedule, and

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she took much of her bookkeeping work home with her. This “flex-time” schedule,

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however, began to cause problems for the school district. Other employees were forced to

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alter their schedules to cover for Ms. Lewis, and Ms. Lewis was not available to answer

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questions from employees and vendors. During this timeframe, Ms. Lewis also failed to

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produce multiple reports, failed to pay some of the school district’s bills, and failed to

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timely pay the school district’s taxes. Ms. Lewis also exhausted her paid sick and

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vacation leave during this time frame. The school board, which had discussed terminating

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Ms. Lewis but feared a lawsuit, suggested that Ms. Lewis use intermittent FMLA leave to

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care for her mother, which Ms. Lewis did. The school district, however, still required Ms.

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Lewis to perform all the functions of a full-time bookkeeper during the time that she took

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intermittent FMLA leave. To meet these demands, Ms. Lewis again did much of her

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work at home, despite only being paid for the work she conducted in the office. Ms.

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Lewis’s absence from work continued to cause problems for the school district, but the

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school district never sought part-time help or other arrangements to assuage the impact of

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Ms. Lewis’s leave. The school district eventually terminated Ms. Lewis because “it was

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determined that [she] miss[ed] too much work to meet the essential functions of [her]

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present assignment.”

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The district court in Lewis granted the school district’s motion for summary

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judgment, concluding that Ms. Lewis had presented no evidence of FMLA interference.

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The Seventh Circuit reversed, holding that a reasonable jury could find for Ms. Lewis,

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given that the school district had expressed a desire to terminate Ms. Lewis and

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subsequently heaped “unrealistic expectations” on her. In short, the court found that a

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jury could infer “retaliatory intent” from the school district’s actions.

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Plaintiff urges the court to interpret Lewis to mean that under the FMLA,

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employees such as Ms. Lewis are “entitled to an adjustment of [their] performance

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expectations.” (Doc. 179 at 3). The Court disagrees. While Lewis held that “a reasonable

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jury could find that the FMLA leave granted to Ms. Lewis was illusory,” it did not hold

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that the school district’s practices were per se FMLA violations. Lewis, 523 F.3d at 743.

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The court explicitly left those questions of fact to the jury to decide. Id. Accordingly,

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Lewis does not support Plaintiff’s position that as a matter of law, failure to reduce work

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expectations when FMLA leave is taken violates the FMLA.

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The Court additionally notes that the only other courts to directly address whether

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requiring an employee to make up FMLA leave time constitutes FMLA interference have

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held, with little difficulty, that it does not. Di Giovanna v. Beth Israel Med.. Ctr., 651 F.

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Supp. 2d 193, 201 (S.D.N.Y. 2009); Weichman v. Chubb & Son, 552 F. Supp. 2d 271,

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289 n.8 (D. Conn. 2008).

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Essentially, Plaintiff asks the court to instruct the jury that if she proves a certain

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set of facts—that she was removed from the MUOS program and subsequently

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terminated because she failed to complete forty hours of work during weeks in which she

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took FMLA leave—the verdict should be for Plaintiff on liability. Such an instruction

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would inappropriately infringe on the jury’s role as fact finder by telling them the

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conclusion they must draw from a set of facts. Furthermore, the jury instructions the

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Court gave regarding the basic elements of FMLA interference, to which Plaintiff does

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not object, do not preclude the jury from viewing the evidence as Plaintiff urges. The

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Court sees no prejudice to Plaintiff that could result from instructing the jury as to the

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elements of the claim and declining to instruct it as to the ultimate conclusion it should

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reach if it accepts Plaintiff’s version of the facts. For these reasons, the Court concludes

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that Plaintiff was not entitled to her proposed jury instructions, and a new trial is not

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warranted.

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Accordingly,

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IT IS ORDERED that Plaintiff’s Rule 59 Motion for New Trial, (Doc. 179), is

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DENIED.
Dated this 23rd day of March, 2015.

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