Equal Employment Opportunity Commission v. Western Distributing Company

Filing 1090

ORDER DENYING PARTIES' CONSTRUED RULE 50(b) MOTIONS by Judge William J. Martinez on 2/14/2023. (trvo, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-1727-WJM-STV
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
WESTERN DISTRIBUTING COMPANY,
Defendant.
ORDER DENYING PARTIES’ CONSTRUED RULE 50(b) MOTIONS

The Court presided over a 14-day Phase One jury trial beginning on January 9,
2023. This Phase One jury trial on the issues of liability was held in accordance with
the trial model established for employment discrimination pattern or practice cases by
the U.S. Supreme Court in International Brotherhood of Teamsters v. United States, 431
U.S. 324 (1977).
On January 23, 2023, at the close of the Equal Employment Opportunity
Commission’s (“Plaintiff”) case-in-chief, Western Distributing Company (“Defendant”)
moved for judgment as a matter of law on all claims pursuant to Federal Rule of Civil
Procedure 50(a). Trial Tr., Day 9, 114:21–115:1. The Court took the motion under
advisement. Trial Tr., Day 9, 159:12–13. On January 26, 2023, after resting its own
case, Defendant renewed its Rule 50(a) motion as to all claims. Trial Tr., Day 12,
166:21–22, 170:4–9, 171:24–172:2. At this time, Plaintiff made its own Rule 50(a)
motion, seeking judgment as a matter of law on Defendant’s affirmative defenses of
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undue hardship and business necessity. Trial Tr., Day 12, 200:13–15. The Court took
both motions under advisement and submitted the action to the jury, subject to the
parties’ motions. Trial Tr., Day 12, 199:20–25, 205:9–13.
On January 30, 2023, the jury returned a verdict in favor of Defendant on
Plaintiff’s two Disparate Treatment Claims, and in favor of Plaintiff on its sole Disparate
Impact Claim.1 (ECF No. 1086.) Given this verdict, the Court construes the parties’
Rule 50(a) motions as renewed motions for judgment as a matter of law under Rule
50(b) (“Defendant’s Motion” and “Plaintiff’s Motion,” respectively).2 For the reasons
below, the construed motions are denied.
I. LEGAL STANDARD
Judgment as a matter of law is appropriate where “a party has been fully heard
on an issue during a jury trial and the court finds that a reasonable jury would not have
a legally sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P.
50(a)(1). Stated another way, “[a] directed verdict is justified only where the proof is all
one way or so overwhelmingly preponderant in favor of the movant so as to permit no
other rational conclusion.” Hinds v. Gen. Motors Corp., 988 F.2d 1039, 1045 (10th Cir.
1993). In reviewing a Rule 50 motion, the Court must draw all reasonable inferences in
favor of the nonmoving party. Wagner v. Live Nation Motor Sports, Inc., 586 F.3d 1237,
1244 (10th Cir. 2009).
Where a party properly moves for judgment as a matter of law prior to the case

1

The Court has previously defined these claims and uses them here consistently with its prior
practice and orders. The Court assumes the parties’ familiarity with these terms as used herein.
2

The Court does not intend to foreclose either party from filing a motion for a new trial under
Rule 59.

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being submitted to the jury, that party may renew the motion after the jury returns its
verdict. See Fed. R. Civ. P. 50(b); Atchley v. Nordam Grp., 180 F.3d 1143, 1147–48
(10th Cir. 1999). In resolving a Rule 50(b) motion, the Court “will not weigh evidence,
judge witness credibility, or challenge the factual conclusions of the jury.” Deters v.
Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1268 (10th Cir. 2000).
II. ANALYSIS
1.

Defendant’s Motion

Defendant moved for judgment as a matter of law with respect to the Disparate
Treatment Claims, punitive damages, and the Disparate Impact Claim. Trial Tr., Day 9,
114:21–115:1.
a.

Disparate Treatment Claims

The jury returned a verdict in favor of Defendant on the Disparate Treatment
Claims (Claims 1 and 2 as defined in the jury instructions and verdict form). (ECF No.
As such, Defendant’s Motion is denied as moot with respect to those

1086 at 1, 3.)
claims.
b.

Punitive Damages

The parties agree—and the Court instructed the jury—that punitive damages are
properly available only on the basis of the Disparate Treatment Claims. (ECF No. 1080
at 47–48.) The jury, having found that Plaintiff failed to carry its burden on the
Disparate Treatment Claims, did not impose any punitive damages on Defendant. (ECF
No. 1086 at 2, 4.) As such, Defendant’s Motion is denied as moot with respect to
punitive damages.

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c.

Disparate Impact Claim

The jury returned a verdict in favor of Plaintiff, finding that three of the thirteen
standards, criteria, or methods of administration3 Plaintiff identified had a disparate
impact on individuals with disabilities. (Id. at 4.)
Defendant argued Plaintiff had failed to meet its evidentiary burden with respect
to causation or disparate impact, primarily on the basis that Plaintiff had failed to offer
any statistical evidence comparing the impact of the standards, criteria, or methods of
administration on a group of employees without a disability with a group of employees
with a disability. Trial Tr., Day 9, 138:17–139:2. Defendant also argued that because
no aggrieved individual failed certain physical tests, any verdict based on those tests
would be advisory and outside the Court’s power under Article III of the United States
Constitution. See Trial Tr., Day 9, 142:3–143:7.
Plaintiff argued that it did not have to show statistical evidence to prevail on the
Disparate Impact Claim,4 and noted evidence of individuals with disabilities who failed
the physical tests administered by ErgoMed, including seven individuals with disabilities
who failed the two 130-pound static push/pull tests that underly the jury’s verdict. Trial
Tr., Day 9, 153:14–156:11.
To establish a disparate impact discrimination claim, Plaintiff must: (1) identify

3

The three standards, criteria, or methods of administration the jury found caused a disparate
impact on individuals with a disability are: (1) “[t]he alleged ‘full-duty’ policy”; (2) “[r]equiring that
OTR, Local drivers, and Yard Hostlers be able to static push and pull 130 pounds of weight”;
and (3) “[r]equiring that OTR, Local drivers, and Yard Hostlers be able to static push and pull
130 pounds of weight at 58 inches above the ground.” (ECF No. 1080 at 42.)
4

The Court previously ruled that Plaintiff was not required to offer statistical evidence, despite
such evidence being typical in disparate impact claims. (ECF No. 1028 at 22–23.)

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the challenged employment policy or practice and pinpoint Defendant’s use of it; (2)
demonstrate a disparate impact on a group that falls with the protected class; and (3)
demonstrate a causal relationship between the identified practice and the disparate
impact. Gonzales v. City of New Braunfels, 176 F.3d 834, 839 n.26 (5th Cir. 1999).
The Court finds Plaintiff introduced sufficient evidence of each element at trial for the
jury to reach its verdict on Plaintiff’s Disparate Impact Claim.
Plaintiff identified the full-duty policy and the two static 130-pound push/pull tests
and pinpointed Defendant’s use of them. The full-duty policy took center stage in the
trial, starting from the very first witness: Helbis Varangot. See Trial Tr., Day 2, 16:11–
22; see also Trial Tr., Day 3, 80:12–16; Trial Tr., Day 5, 139:1–14; Trial Tr., Day 7,
106:8–16. As a representative sampling of the evidence on this issue only, Plaintiff
introduced evidence of the two 130-pound static push/pull tests most prominently
through the deposition testimony of Ronald Perkins. See Trial Tr., Day 3, 36:14–38:17.
Perkins testified that after he informed his manager Wayne Long that he had failed
these tests, Long told him he was “done” and could not return to work. Trial Tr., Day 3,
37:19–38:2. Dino Guadagni testified that Allen Gilbert was disqualified from
employment because he could only pull 121 pounds. Trial Tr., Day 6, 125:13–18. Max
Haynes testified that a driver applicant named Mr. Prince received a “no-job match
recommendation” from ErgoMed because “he was unable to push and pull 130 pounds.”
Trial Tr., Day 7, 246:23–247:18. Haynes testified that Robert Jeeter and Laurie Deview
also received no-job match recommendations for failing the 130-pound push/pull tests.
Trial Tr., Day 8, 10:25–11:16, 28:4–29:5. The Court finds there was ample evidence
introduced at trial for the jury to find that Plaintiff identified the challenged standards,
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criteria, or methods of administration and pinpointed Defendant’s use of them.
In its Order Denying Defendant’s Corrected Amended Motion for Summary
Judgment, the Court explained:
As the Court understands it, Plaintiff’s theory is that
Defendant implemented the subject policies and tests to
intentionally exclude persons with medical restrictions, and
that these policies and tests in fact had the effect of
disproportionately excluding people with disabilities. It will
not require statistical evidence for the jury to conclude that
policies that operate to exclude someone with a medical
restriction from driving for Defendant may disproportionately
affect those who have a disability due to such medical
restrictions[.]
(ECF No.1028 at 23.) At trial, this was precisely Plaintiff's theory of the case. Trial Tr.,
Day 1, 170:16–24. The Court further explained in its prior Order that if Plaintiff is able to
prove the existence of the full-duty policy, “non-statistical evidence of persons actually
impact by Defendant’s allegedly discriminatory qualification standards may be sufficient
to establish disparate impact.” (ECF No. 1028 at 23.)
The only way to make sense of the jury’s verdict is to conclude that it found
Plaintiff had proved the existence of the full-duty policy—otherwise it could not have
found that the full-duty policy had a disparate impact on individuals with disabilities.
(ECF No. 1086 at 4.) In light of this fact, the Court finds the evidence of several specific
individuals with disabilities who failed the 130-pound static push/pull tests and were
denied employment was sufficient for the jury find disparate impact.
As Defendant apparently acknowledged, in this case, the third element of
causation goes hand in hand with disparate impact. Trial Tr., Day 9, 138:15–19. It also
treated these two elements together in its motion for summary judgment. (ECF No.
1028 at 23–24.) At trial, Haynes testified that ErgoMed would make no-job match
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recommendations because an applicant or returning employee had failed one of the
physical tests. Trial Tr., Day 7, 247:13–18. Considering this testimony in light Perkins’s
testimony that he could not return to work after failing the 130-pound static push/pull
test and Guadagni’s testimony that Gilbert was “disqualified” because he failed the test,
the Court is satisfied that the jury was presented with sufficient evidence on causation to
reach its verdict.
Therefore, viewing the totality of the trial evidence in the light most favorable to
the Plaintiff, the Court finds that a reasonable jury could have reached the verdict
reached by the jury in this case on the Disparate Impact Claim. As a consequence,
Defendant’s Motion is denied with respect to the Disparate Impact Claim.
2.

Plaintiff’s Motion

Plaintiff moved for judgment as a matter of law as to Defendant’s two affirmative
defenses. Trial Tr., Day 12, 200:13–15.
a.

Undue Hardship

As referenced earlier, the jury returned a verdict in favor of Defendant on both of
the Disparate Treatment Claims. (ECF No. 1086 at 1, 3.)
Plaintiff argued Defendant had not presented sufficient evidence of its financial
resources for a reasonable jury to find that four proposed accommodations—
AutoSocks, automatic decouplers, automatic hood openers, and additional leave—
would be an undue hardship to Defendant. Trial Tr., Day 12, 200:21–24, 202:4–13.
Defendant argued it had presented testimony from its expert Jimmy Sill on the
“impracticality” of these accommodations. Trial Tr., Day 12, 203:11–12. Defendant
argued AutoSocks do not work in all conditions and delayed deliveries could cost the
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company as much as $150,000. Trial Tr., Day 12, 203:18–25. It also argued that
additional leave would result in expensive health insurance costs. Trial Tr., Day 12,
203:25–204:3.
Whether an accommodation would present an undue hardship for an employer is
considered on a case-by-case basis. Smith v. Midland Brake, Inc., 180 F.3d 1154,
1178 (10th Cir. 1999) (en banc). An undue hardship is “an action requiring significant
difficulty or expense when considered in light of various factors,” including: “the nature
and cost of the accommodation; the number of persons employed by the company; the
financial resources of the company; and the impact of the accommodation of the
operation of the company.” Id.
As Defendant pointed out, there was substantial expert testimony on the nature
and cost of the subject accommodations. See, e.g., Trial Tr., Day 11, 43:9–45:12. The
jury heard testimony from Defendant’s corporate representative that it employs roughly
500 people. Trial Tr., Day 6, 85:10–12. And the jury heard extensive evidence on
Defendant’s operations, including the time-sensitive nature of its deliveries, the relative
danger of the mountain passes through which it hauls cargo, and the complexity of its
dispatch process. See, e.g., Trial Tr., Day 10, 97:25–99:10, 96:1–97:19; Trial Tr., Day
4, 274:21–275:25. Plaintiff’s argument that there is little evidence of Defendant's
financial condition is well taken; however, there was testimony from Defendant’s
corporate representative on its annual assets and operating revenue during the relevant
period. Trial Tr., Day 6, 59:3–60:4.
Given this evidence, viewing the totality of the trial evidence in the light most
favorable to the Defendant, the Court finds a reasonable jury could have found the
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proposed accommodations posed an undue burden on Defendant. As a consequence,
Plaintiff’s Motion is denied with respect to Defendant’s affirmative defense of undue
hardship.
b.

Business Necessity

Business necessity is an affirmative defense to the Disparate Impact Claim, upon
which the jury returned a verdict in favor of Plaintiff. (ECF No. 1080 at 44; ECF No.
1086 at 4.) As such, Plaintiff’s Motion with respect to the business necessity defense is
denied as moot.
III. CONCLUSION
For the reasons set forth above, the Court ORDERS:
1.

Defendant’s construed renewed motion for judgment as a matter of law is
DENIED IN PART and DENIED IN PART AS MOOT, as set forth above;
and

2.

Plaintiff’s construed renewed motion for judgment as a matter of law is
DENIED IN PART and DENIED IN PART AS MOOT, as set forth above.

Dated this 14th day of February, 2023.
BY THE COURT:

______________________
William J. Martínez
Senior United States District Judge

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