Hathaway v. Idaho-Pacific Corporation

Filing 118

MEMORANDUM DECISION AND ORDER. THE COURT HEREBY ORDERS: Ross Hathaway's Motion for Entry of Partial Judgment and to Set Re-Trial of the ADA Claims (Dkt. 109 ) is DENIED. Idaho Pacific Corporation's Motion for Judgment as a Matter of Law on All Claims, or in the Alternative, Motion for a New Trial on Claim for Termination in Violation of Public Policy (Dkt. 107 ) is DENIED. The Court declares a mistrial and orders a new trial on all claims. Signed by Judge David C. Nye. (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ROSS HATHAWAY,

Case No. 4:15-cv-00086-DCN

Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
IDAHO PACIFIC CORPORATION,
Defendant.
I. INTRODUCTION
This matter comes before the Court on post-trial Motions filed by both parties.
Plaintiff Ross Hathaway has filed a Motion for Entry of Partial Judgment and to Set ReTrial of the ADA Claims. Dkt. 109. Defendant Idaho Pacific Corporation (“Idaho
Pacific”) has filed a Motion for Judgment as a Matter of Law on All Claims, or in the
Alternative, Motion for a New Trial on Plaintiff’s Claim for Termination in Violation of
Public Policy. Dkt. 107. Having reviewed the record, the Court finds that the facts and
legal arguments are adequately presented in the briefs. Accordingly, in the interest of
avoiding further delay, and because the Court finds that the decisional process would not
be significantly aided by oral argument, the Court decides the Motion on the record
without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(2)(ii). For the reasons set forth
below, the Court finds good cause to DENY the Motions and order a new trial on all
claims.

MEMORANUDM DECISION AND ORDER –1

II. BACKGROUND
A five-day jury trial was held in this employment discrimination case in midDecember 2017. The Court submitted three claims to the jury via a special verdict form:
(1) discrimination under the Americans with Disabilities Act (“ADA”); (2) retaliation
under the ADA; and (3) wrongful discharge under Idaho state law. During deliberations,
the Jury sent a note to the Court indicating that its members had “reached a point of
aggressive disagreement.” In response, the Court gave the Jury an Allen instruction.1 The
Jury then returned to its deliberations.
A few hours later, the Jury sent another note to the Court stating that it had
reached a “unanimous decision on only one claim” and that it was unable to agree on the
other two claims. The Jury asked if it had to reach a decision on all three claims and if the
Court could rule on the other two claims. The Court questioned the Jury as to whether
they were willing to continue deliberating. After indicating that further deliberation
would not be helpful, the Court permitted the Jury to return a verdict on the sole claim on
which it was able to reach a unanimous decision. The Jury found in favor of Hathaway on
the Idaho wrongful discharge claim and awarded him $34,302 in lost wages. The Jury did
not answer any of the questions on the verdict form regarding the ADA retaliation claims.
As to the ADA discrimination claim, the Jury determined that Hathaway had a disability

1

An Allen instruction or Allen charge is a supplemental jury instruction a court gives to
encourage a jury to reach a verdict after the jury has been unable to agree for some period of
deliberation. Such an instruction has long been sanctioned. See Allen v. United States, 164 U.S.
492, 501–02 (1896).
MEMORANUDM DECISION AND ORDER –2

and that he was a qualified individual under the ADA. However, the Jury failed to answer
any other questions regarding the ADA discrimination claims.
The Court reserved ruling on the impact of the partial verdict until after
considering any post-trial motions. Those motions have now been filed and fully briefed.
III. ANALYSIS
A. Idaho Pacific’s Motion for Judgment as a Matter of Law
Judgment as a matter of law, under Federal Rule of Civil Procedure 50(b), is
appropriate when “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) (citation omitted). Thus, “[a] motion for a judgment as a
matter of law is properly granted only if no reasonable juror could find in the non-moving
party’s favor.” Torres v. City of Los Angeles, 548 F.3d 1197, 1205 (9th Cir. 2008)
(citation omitted). The Court must view the evidence “in the light most favorable to the
nonmoving party, with all reasonable inferences drawn in favor of that party.” Id. at
1205–06.
Importantly, “[a] Rule 50(b) motion for judgment as a matter of law is not a
freestanding motion. Rather, it is a renewed Rule 50(a) motion.” Go Daddy Software,
Inc., 581 F.3d at 961. The Ninth Circuit has explained the Rule 50 scheme as follows:
Under Rule 50, a party must make a Rule 50(a) motion for judgment as a
matter of law before a case is submitted to the jury. If the judge denies or
defers ruling on the motion, and if the jury then returns a verdict against the
moving party, the party may renew its motion under Rule 50(b). Because it
is a renewed motion, a proper post-verdict Rule 50(b) motion is limited to
the grounds asserted in the pre-deliberation Rule 50(a) motion. Thus, a party
cannot properly raise arguments in its post-trial motion for judgment as a
MEMORANUDM DECISION AND ORDER –3

matter of law under Rule 50(b) that it did not raise in its preverdict Rule 50(a)
motion.
Id. (internal quotation marks and citation omitted).
Idaho Pacific did not make a Rule 50(a) motion for judgment as a matter of law
before the Court submitted the case to the jury. Idaho Pacific argues that, despite this
failure, it is not barred from seeking judgment as a matter of law under a special
exception. The Ninth Circuit has held that an exception to this Rule 50(b) requirement
applies when judgment was entered in accordance with a special verdict form and the
motion for judgment as a matter of law challenges “the consistency of the answers” in the
special verdict, and “not to the sufficiency of evidence supporting a general verdict.”
Pierce v. S. Pac. Transp. Co., 823 F.2d 1366, 1369 (9th Cir. 1987).
Idaho Pacific’s motion for judgment as a matter of law does not challenge the
consistency of the Jury’s answers on the special verdict form. Indeed, the Jury’s answers
were not “irreconcilably inconsistent.” See id. Nevertheless, Idaho Pacific argues that this
exception “is clearly applicable where a jury simply fails to respond to questions on a
special verdict form.” Dkt. 107-1, at 3. Idaho Pacific has failed to cite any legal authority
reciting such an exception or any cases whose circumstances mirror those currently
before the Court. Idaho Pacific does cite Forro Precision, Inc. v. International Business
Machines Corporation, 673 F.2d 1045, 1058 (9th Cir. 1982). In that case, “[a]fter the jury
had deadlocked on [the plaintiff’s] antitrust claims, [the defendant] moved for entry of
judgment under Fed. R. Civ. P. 50(b).” Id. The district court then granted the defendant
judgment as a matter of law on those claims and the Ninth Circuit affirmed. Id. at 1061.

MEMORANUDM DECISION AND ORDER –4

While Forro is somewhat similar to this case, it gives no indication of whether the
defendant filed a Rule 50(a) motion before the district court submitted the case to the
jury. Idaho Pacific also cites to Geo. M. Martin Company v. Alliance Machine Systems
International LLC, 634 F. Supp. 2d 1024, 1027 (N.D. Cal. 2008). This case also fails to
explain whether the defendant first moved for judgment as a matter of law before the trial
court submitted the case to the jury and then renewed that motion after the jury
deadlocked. Accordingly, the Court has before it no definitive legal authority directing it
to consider a Rule 50(b) motion under these circumstances.
A closer look at the exact language of Rule 50 is appropriate at this point. Rule
50(b) provides:
If the court does not grant a motion for judgment as a matter of law made
under Rule 50(a), the court is considered to have submitted the action to the
jury subject to the court’s later deciding the legal questions raised by the
motion. No later than 28 days after the entry of judgment—or if the motion
addresses a jury issue not decided by a verdict, no later than 28 days after the
jury was discharged—the movant may file a renewed motion for judgment
as a matter of law and may include an alternative or joint request for a new
trial under Rule 59.
Thus, Rule 50(b) specifically explains the procedure a party must follow when a Rule
50(b) motion “addresses a jury issue not decided by a verdict”—“the movant may file a
renewed motion for judgment as a matter of law.” (emphasis added). A “renewed
motion” presupposes an initial motion. Moreover, the Ninth Circuit has directed district
courts to “strictly construe the procedural requirement of [Rule 50.]” Tortu v. Las Vegas
Metro. Police Dep’t, 556 F.3d 1075, 1082 (9th Cir. 2009) (emphasis added). The Ninth
Circuit has explained that “it is a litigant’s responsibility to preserve the legal issue for

MEMORANUDM DECISION AND ORDER –5

determination after the jury resolves the factual conflict.” Id. at 1083. Specifically, the
Ninth Circuit stated, “[we] hold that the district court should not have entertained Engle’s
Rule 50(b) motion because he failed to file a Rule 50(a) motion, which must be filed
before a court can consider a Rule 50(b) motion.” Id. at 1078. Here, Idaho Pacific did not
preserve the legal issues and the Court is powerless to consider the issues under Rule
50(b) absent this act of preservation. Therefore, Idaho Pacific’s Motion for Judgment as a
Matter of Law is DENIED.
B. Idaho Pacific’s Motion for a New Trial
Idaho Pacific alternatively asks the Court to grant a new trial on the Idaho
wrongful discharge claim specifically because the Jury’s verdict on this claim was against
the weight of the evidence. The Court finds no merit to this argument.
Rule 59(a) provides that “[a] new trial may be granted . . . in an action in which
there has been a trial by jury, for any of the reasons for which new trials have heretofore
been granted in actions at law in the courts of the United States.” Fed. R. Civ. P. 59(a)(1).
In other words, “Rule 59 does not specify the grounds on which a motion for a new trial
may be granted.” Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003).
Rather, district courts are “bound by those grounds that have been historically
recognized.” Id. Historically recognized grounds include, but are not limited to, claims
“that the verdict is against the weight of the evidence, that the damages are excessive, or
that, for other reasons, the trial was not fair to the party moving.” Montgomery Ward &
Co. v. Duncan, 311 U.S. 243, 251 (1940); see also Passantino v. Johnson & Johnson
Consumer Prods., 212 F.3d 493, 510 n.15 (9th Cir. 2000) (“The trial court may grant a
MEMORANUDM DECISION AND ORDER –6

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.”). Idaho Pacific asserts
that the Jury’s verdict with regard to the Idaho wrongful discharge claim was against the
weight of the evidence and that, accordingly, the Court must grant a new trial on this
claim. If proven to be true, this is a valid reason for the Court to grant a new trial.
The Idaho Supreme Court has explained the law regarding wrongful discharge in
violation of public policy as follows:
Generally, an employer may discharge an at-will employee at any time for
any reason without incurring liability. However, the right to discharge an atwill employee is limited by considerations of public policy, such as when the
motivation for the firing contravenes public policy. The determination of
what constitutes public policy sufficient to protect an at-will employee from
termination is a question of law. The public policy exception to the
employment at-will doctrine has been held to protect employees who refuse
to commit unlawful acts, who perform important public obligations, or who
exercise certain legal rights and privileges. An employer may not discharge
an at-will employee without cause when the discharge would violate public
policy. Once the court defines the public policy, the question of whether the
public policy was violated is one for the jury.
Van v. Portneuf Med. Ctr., 212 P.3d 982, 991 (2009) (internal citations omitted).
In this case, Hathaway claimed “his workers’ compensation claim was the
motivation for [Idaho Pacific’s] decision to discharge him.” Dkt. 100, at 32. Specifically,
Hathaway presented evidence that he injured his thumb and shoulder while at work and
that he immediately reported his injury. An Idaho Pacific employee, Dwain Gotch, filled
out an initial incident report by hand and included both injuries. Later, Idaho Pacific’s
Director of Human Resources, Lori Steele, completed an incident report for Hathaway’s
workers’ compensation claim and omitted the shoulder injury. As a consequence,

MEMORANUDM DECISION AND ORDER –7

Hathaway was unable to get treatment for his shoulder injury. Shortly thereafter,
Hathaway was informed that the initial incident report did not include his shoulder injury.
When Hathaway asked Gotch for the initial incident report, Gotch gave him a typed—not
handwritten—report that did not include the shoulder injury. Hathaway complained to the
Human Resources Department and said he needed his shoulder injury to be included in
the report. Two days later, Idaho Pacific terminated Hathaway. The Court defined in the
jury instructions that “[t]he public policy of the state of Idaho prohibits an employer from
discharging an employee because of or in retaliation for seeking worker’s compensation.”
Id. The Jury ultimately found that Hathaway proved by a preponderance of evidence that
Idaho Pacific was motivated by his attempt to exercise his rights and privileges in
reporting and pursing workers’ compensation for his injury.
Idaho Pacific now argues that Hathaway’s claim fails as a matter of law because
“there was no evidence or argument in this case that Idaho Pacific terminated Hathaway
because he filed a workers’ compensation claim. On the contrary, the undisputed
evidence presented to the jury was that Idaho Pacific actually filed the workers’
compensation claim for Hathaway.” Dkt. 107-1, at 12 (emphasis added). Idaho Pacific
also argues that this claim cannot be predicated on complaints Hathaway made about an
internal company document because that document was not required in order to file or
pursue a workers’ compensation claim.
The Court rejects these arguments for multiple reasons. First, these are new
arguments as to the legal sufficiency of Hathaway’s claim that are not appropriately
raised for the first time at this stage. Second, these arguments are legally inaccurate.
MEMORANUDM DECISION AND ORDER –8

Idaho Pacific has failed to cite legal authority that holds that an employee must file a
workers’ compensation claim himself or herself to succeed on this type of claim. Such a
position is inconsistent with Idaho’s case law on wrongful discharge claims and workers’
compensation issues. The Idaho Supreme Court has held that “workers’ compensation
law is to be construed liberally in favor of the worker, with a view toward effecting its
twin objects of relieving injured wage earners and their families and of promoting
justice.” Ross v. Fiest, 666 P.2d 646, 650 (Idaho 1983). To require the worker to
physically file the workers’ compensation claim as a prerequisite to pursuing this type of
claim would fly in the face of this policy and create a procedural loophole employers’
could easily exploit. In addition, Hathaway can predicate his claim on an internal
company document—an initial injury report—where the employer uses that document as
the basis for drafting a workers’ compensation claim. Idaho Pacific cannot rely on
procedural technicalities to escape liability.
Idaho Pacific also argues that Hathaway presented insufficient evidence for the
Jury to find Idaho Pacific terminated him for complaining about the injury report. The
Court disagrees. Not only did Hathaway show close temporal proximity between his
complaints and his discharge, he cast doubt on the reason Idaho Pacific gave for
terminating him and showed Idaho Pacific’s ongoing animosity toward Hathaway’s
workplace injury and medical needs. In the face of this evidence, the Court cannot
conclude the jury’s verdict was against the weight of evidence and will not grant a new
trial on this claim on this ground.

MEMORANUDM DECISION AND ORDER –9

C. Hathaway’s Motion for Entry of Partial Judgment and a New Trial
Hathaway asks the Court to enter a partial judgment in his favor on the Idaho
wrongful discharge claim and on the two elements of the ADA discrimination claim on
which the Jury reached a unanimous decision. Hathaway also asks for a new trial on the
ADA retaliation claim and the remaining element of the ADA discrimination claim on
which the Jury did not reach a unanimous decision. Idaho Pacific argues that if the Court
holds a new trial, it should re-hear all of the claims because they are so closely related.
It is well established that, “[w]here a special verdict does not contain one or more
answers requested, it may, unless wholly defective, be accepted for those issues that are
resolved.” Quaker City Gear Works, Inc. v. Skil Corp., 747 F.2d 1446, 1453 (Fed. Cir.
1984). “A party may request reconsideration by the jury of unresolved factual issues in
such case, or may be entitled to a retrial of those issues.” Id.; California v. Altus Fin. S.A.,
540 F.3d 992, 1005 (9th Cir. 2008) (“If the answered verdict forms do not dispose of all
the issues submitted to the jury, the court must either resubmit the unanswered verdicts to
the same jury or declare a mistrial with respect to the unresolved issues.”); Union Pac.
R.R. Co. v. Bridal Veil Lumber Co., 219 F.2d 825, 832 (9th Cir.1955) (“To do other than
send the case back for a new trial when decision on a vital issue by the jury is missing
would deprive the parties of the jury trial to which they are entitled constitutionally.”);
see also Simms v. Village of Albion, N.Y., 115 F.3d 1098, 1105 (2d. Cir. 1997) (“If a jury
fails to answer all the questions submitted in a special verdict, the verdict may be
accepted for those issues that are resolved.”); Bristol Steel & Iron Works v. Bethlehem
Steel Corp., 41 F.3d 182, 190 (4th Cir. 1994) (“The courts have recognized that partially
MEMORANUDM DECISION AND ORDER –10

completed special verdict forms are sufficient, provided that the answered questions
support the verdict and the unanswered questions, if answered in favor of the
nonprevailing party, would not render the judgment erroneous.); Proceedings of the
Annual Judicial Conference Tenth Judicial Circuit of the United States, 44 F.R.D. 245,
348 (1967) (“[A] Trial Judge [may] grant a limited retrial on a limited issue while
keeping alive all of the ‘good’ part of the first trial to afford a single review of a single
judgment based upon two trials.”); Waters v. Howard Sommers Towing, Inc., No. CV 105296 CAS PJWX, 2013 WL 2237684, at *2 (C.D. Cal. May 21, 2013).
As the same time, both the Ninth Circuit and the Supreme Court have cautioned
that “although partial new trials are permitted, the device ‘may not properly be resorted to
unless it clearly appears that the issue to be retried is so distinct and separable from the
others that a trial of it alone may be had without injustice.’” Lies v. Farrell Lines, Inc.,
641 F.2d 765, 774 (9th Cir. 1981) (quoting Gasoline Products Co. v. Champlin Refining
Co., 283 U.S. 494, 499 (1931)). “If the issues are interwoven, then a new trial as to all of
the issues should be ordered. On the other hand if the error below did not extend to the
whole judgment but only to a particular issue(s) and this is sufficiently separate so that a
fair trial may be had as to it alone, the . . . court may grant a partial new trial limited to
such separate issue, whether the issue is one of damages or some other issue.” Id. (citing
6A Moore’s P 59.06, at 59-89-91).
For example, in Pena v. Meeker, the Ninth Circuit, albeit in an unpublished
memorandum, found the plaintiffs “various retaliation claims relative to the exercise of
his First Amendment rights were extremely closely related,” such that “the district court’s
MEMORANUDM DECISION AND ORDER –11

erroneous grant of summary judgment [on one retaliation] claim requires vacation of the
jury verdict on those [other] retaliation claims that went to trial, so that the related claims
can be heard jointly and the evidence evaluated in its totality.” 435 F. App’x 602, 604
(9th Cir. 2011). In contrast, in Lies v. Farrell Lines, Inc., the Ninth Circuit found the
plaintiff’s “Jones Act claim and unseaworthiness claim for injuries suffered” while
aboard one of the defendant’s ships were “distinct and separable.” 641 F.2d at 774. The
Lies court explained that “[t]he unseaworthiness claim depends on a theory of strict
liability and employs traditional proximate cause analysis” while “[t]he Jones Act
requires proof of employer negligence and borrows the law of causation developed under
the FELA.” Id. Because the theories of liability were distinct, the court found the claims
were distinct. In a more recent case, the Central District of California framed the issues
slightly differently. It concluded that a partial retrial was inappropriate where, in
considering only some of the issues, the “second jury would [nevertheless] be compelled
to reexamine [the] first jury’s factual finding.” United States v. J-M Mfg. Co., Inc., No.
EDCV 06-55-GW(PJWX), 2018 WL 705532, at *10 (C.D. Cal. Jan. 31, 2018).
In this case, as a threshold matter, the answered questions with regard to the Idaho
wrongful discharge claim support the Jury’s verdict on that claim and the unanswered
questions do not render that verdict erroneous. There is nothing irrational or contradictory
about the Jury’s finding on that claim and, as explained above, it is not against the clear
weight of the evidence. Thus, if the Idaho wrongful discharge claim is separate and
distinct from the other two claims, the proper course of action is to enter judgment on that
claim in Hathaway’s favor.
MEMORANUDM DECISION AND ORDER –12

It is also clear that the Court must conduct some sort of retrial. The Jury did not
answer the sole question on the special verdict form with regard to the ADA retaliation
claim. Thus, that claim must be included in the retrial. The ADA discrimination claim
also must be included in the retrial as the Jury did not reach a final verdict on that claim,
but the Court must determine whether the ADA discrimination claim should be retried in
whole or in part.
After considering the evidence and the circumstances as a whole, the Court
concludes that a retrial on all claims is necessary. Of the cases described above, this case
is closest to Pena v. Meeker, 435 F. App’x 602, where the Ninth Circuit found the
plaintiff’s various retaliation claims were extremely closely related. Hathaway claims
Idaho Pacific terminated him for multiple unlawful reasons. Although each theory of
liability is distinct, the factual basis for each claim does overlap. When presented with all
of the relevant evidence, a second jury will be forced to consider whether Idaho Pacific
terminated Hathaway (1) because he complained about the incident report that formed the
basis of his workers’ compensation claim; (2) because he had a disability; (3) because he
sought disability privileges; (4) some combination of all of these factors; or (5) some
other valid reason. Thus, a second jury will be forced to reconsider the factual basis for
Hathaway’s wrongful discharge claim and could potentially disagree with the first jury on
that issue. The multiple potential reasons for Hathaway’s termination are so interwoven,
that justice requires the claims to be heard jointly so that the jury can evaluate the

MEMORANUDM DECISION AND ORDER –13

evidence in its totality. See id. at 604. Accordingly, the Court must order a new trial as to
all of the issues.2
IV. ORDER
THE COURT HEREBY ORDERS:
1. Ross Hathaway’S Motion for Entry of Partial Judgment and to Set Re-Trial of the
ADA Claims (Dkt. 109) is DENIED.
2. Idaho Pacific Corporation’s Motion for Judgment as a Matter of Law on All
Claims, or in the Alternative, Motion for a New Trial on Claim for Termination in
Violation of Public Policy (Dkt. 107) is DENIED.
3. The Court declares a mistrial and orders a new trial on all claims.

DATED: June 11, 2018
_________________________
David C. Nye
U.S. District Court Judge

2

Hathaway also argues that granting a retrial on all issues would violated his Seventh
Amendment rights. “The Seventh Amendment provides that ‘no fact tried by a jury shall be
otherwise re-examined in any Court of the United States, than according to the rules of the
common law.’” Acosta v. City of Costa Mesa, 718 F.3d 800, 828-29 (9th Cir. 2013) (quoting
U.S. Const. amend. VII). Ordering the questions the Jury answered at trial to be re-tried does not
violate the Seventh Amendment as, in the circumstances present here, retrial on all issues is
permitted (and required) under common law.

MEMORANUDM DECISION AND ORDER –14