Marshall v. The Rawlings Company LLC et al

Filing 238

MEMORANDUM OPINION & ORDER signed by Senior Judge Thomas B. Russell on 8/7/2018. Denying 211 Motion ; denying [] Motion for Judgment as a Matter of Law. The jury's award of front pay to Marshall on her claim of ADA discrimination relating to her termination SHALL be reduced to $39,360. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:14-CV-00359-TBR
GLORIA MARSHALL,

PLAINTIFF

v.
THE RAWLINGS CO., LLC,

DEFENDANT
Memorandum Opinion & Order

This matter comes before the Court upon Motion by Defendant The Rawlings Company,
LLC, (“Rawlings”), for judgment as a matter of law and, in the alternative, for a new trial and, in
the alternative, for remittitur of the jury verdict. [DN 211.] Plaintiff Gloria Marshall,
(“Marshall”), has responded, [DN 227], and Rawlings has replied. [236.] This matter is ripe for
adjudication and the merits of Rawlings’s motion are discussed below.
A. Factual & Procedural Background
This case arises out of events which transpired during Marshall’s term of employment at
Rawlings from 2006 to 2013, where she worked as a workers compensation analyst, a Team
Lead, and again as an analyst. Marshall suffers from depression, anxiety, and post-traumatic
stress disorder, (“PTSD”), for which she took various periods of leave under the Family and
Medical Leave Act, (“FMLA”), while working at Rawlings. Around the time Marshall was
taking intermittent FMLA leave, she alleged that she suffered discriminatory and retaliatory
treatment from certain individuals at the company, the culmination of which was her September
2012 demotion from Team Lead back to analyst, a lower position in the company’s hierarchy,
and her eventual termination from the company on October 1, 2013. More specifically, Marshall
identified Laura Plumley, (“Plumley”), the President of the Workers Compensation department,

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who made the decision to demote her; Vice President Jeff Bradshaw, (“Bradshaw”), who
Marshall contended harassed her and held discriminatory and retaliatory biases against her;
Division Director of the Workers Compensation department, Mike Elsner, (“Elsner”), who
Marshall claimed also held discriminatory and retaliatory biases against her; and George
Rawlings, (“Mr. Rawlings”), the President of the company, who made the decision to terminate
Marshall and who Marshall claims did so unlawfully.
After

Mr.

Rawlings

terminated

her,

Marshall

filed

suit,

alleging

FMLA

interference/discrimination, FMLA retaliation, discrimination under the Americans with
Disabilities Act, (“ADA”), and intentional infliction of emotional distress, (“IIED”). Initially,
this Court granted summary judgment in Rawlings’ favor on all of Marshall’s claims. Upon
review, the Sixth Circuit Court of Appeals affirmed this Court’s judgment with respect to
Marshall’s claims for FMLA interference/discrimination and IIED, and reversed this Court with
respect to her claims for FMLA retaliation and ADA discrimination. See Marshall v. The
Rawlings Co., LLC, 854 F.3d 368 (6th Cir. 2017). A jury trial was held in this matter in March
2018 on Marshall’s two remaining claims, at which time Rawlings prevailed on Marshall’s
claims of FMLA retaliation relating to her demotion and her termination; Marshall prevailed on
her claims of ADA discrimination relating to her demotion and her termination. As a result, the
jury awarded Marshall $456,000. This sum represented $81,000 (back pay), $75,000 (pain and
suffering), and $75,000 (punitive damages) relating to her demotion; and $75,000 (front pay),
$75,000 (pain and suffering), and $75,000 (punitive damages) relating to her termination.
On June 18, 2018, this Court granted Marshall’s Motion for attorneys’ fees and costs in
the amounts of $226,015 and $5,080.25, respectively, after striking a few hours as being clerical
work. Now, Rawlings has filed a Motion with the Court seeking three alternative forms of relief.

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First, Rawlings seeks judgment as a matter of law in its favor under Rule 50(b) of the Federal
Rules of Civil Procedure. Second, and in the alternative, Rawlings seeks a new trial under Rule
59(a). Third, and in the alternative, Rawlings seeks a remittitur of the $456,000 jury verdict.
Marshall opposes all three forms of relief. The merits of Rawlings’ requests are discussed below.
B. Motion for Judgment as a Matter of Law
The first request for relief this Court will analyze is Rawlings’ request for judgment as a
matter of law pursuant to Rule 50(b).
1. Legal Standard
Rule 50(b) of the Federal Rules of Civil Procedure instructs that judgment as a matter of
law may be granted when “a party has been fully heard on an issue and there is no legally
sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” Imwalle v.
Reliance Med. Prods., Inc., 515 F.3d 531, 543 (6th Cir. 2008) (citations omitted). In considering
such a motion, the district court must view “the evidence in a light most favorable to the nonmoving party, giving that party the benefit of all reasonable inferences….” Balsley v. LFP, Inc.,
691 F.3d 747, 757 (6th Cir. 2012) (quotation marks and citations omitted). More specifically, the
district court should not itself weigh the evidence, nor question the credibility of any witnesses,
and the court should not substitute its judgment for that of the jury. Szekeres v. CSX Transp.,
Inc., 731 F.3d 592, 597 (6th Cir. 2013). Then, the question must be asked if “there is no genuine
issue of material fact for the jury, and reasonable minds could come to but one conclusion in
favor of the moving party.” Balsley, 691 F.3d at 757. If so, the court should grant the motion.
2. Discussion
Rawlings presents three broad arguments regarding why, in its view, this Court should
grant it judgment as a matter of law. The Court will deal with these arguments separately.

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a. The Elements of Marshall’s Claim & the Issue of Pretext
First, Rawlings argues that Marshall failed to raise an issue of material fact on the
elements of her ADA discrimination claim, and that she further failed to establish or otherwise
adduce any evidence of pretext on the part of Rawlings. Thus, in Rawlings’ view, the available
evidence is insufficient to support the findings made by the jury. Pursuant to the instruction this
Court gave at trial, Marshall’s ADA discrimination claim had five elements, all of which
Marshall was required to prove by a preponderance of the evidence. Those elements are:
(1) that she “had a disability, as that term is defined under the ADA, or was ‘regarded’ by
[Rawlings] as having a disability;”
(2) that Marshall “was otherwise ‘qualified’ to perform the ‘essential functions’ of her
job with or without accommodation;”
(3) that Rawlings demoted and/or terminated Marshall;
(4) Rawlings “knew or had reason to know of [Marshall’s] disability;” and
(5) Rawlings demoted and/or terminated Marshall “because of her disability.” [See DN
189, at 13 (Jury Instructions).] See also Demyanovich v. Cadon Plating & Coatings, LLC, 747
F.3d 419, 433 (6th Cir. 2014) (citation omitted). Rawlings first contends that Marshall “provided
no proof at trial that she was ‘disabled,’ as defined by the ADA, or that Rawlings regarded her as
disabled; therefore, both the demotion and the termination claims fail as a matter of law since the
evidence was insufficient to support a jury finding.” [DN 221-1, at 5.]
Pursuant to 42 U.S.C. § 12102, the term “disability” is defined as “a physical or mental
impairment that substantially limits one or more major life activities of such individual.”
Relatedly, the statute provides a non-exhaustive list of “major life activities,” which includes
“caring for oneself, performing manual tasks, seeing, hearing, eating,” and things such as

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“concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A). “Major
bodily functions” also qualify as “major life activities,” which include things such as immune
system functionality and neurological and brain functions. 42 U.S.C. § 12102(2)(B). The statute
also explains that an individual may qualify under this provision if they are regarded as having
such an impairment. 42 U.S.C. § 12102(1)(C). “An individual meet[s] th[is] requirement…if the
individual establishes that…she has been subjected to an action prohibited under this chapter
because of an actual or perceived physical or mental impairment whether or not the impairment
limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A).
Rawlings contends that no proof was put on at trial which tended to show that Marshall’s
depression, anxiety, or PTSD “substantially limit[ed] one or more major life activities,” pointing
principally to an alleged lack of impact these ailments had on her work. [DN 211-1, at 5-6.]
However, the “substantial limitation” term in 42 U.S.C. § 12102 is not as narrow as Rawlings’
argument tends to suggest. This Court’s sister court in the Western District of Tennessee
explained the issue succinctly:
[t]he determination of whether a plaintiff’s impairment ‘substantially limits’ a
major life activity requires an individualized assessment that compares the
person’s ability to perform the activity as compared to most people in the general
population. EEOC regulations seek to make this process more ‘predictable,
consistent, and workable’ by listing specific impairments and the life activities
that they commonly impact. These impairments will ‘virtually always be found to
impose a substantial limitation on a major life activity.’ Regarding Plaintiff’s
impairments, ‘it should easily be concluded that…major depressive
disorder…substantially limit[s] brain function.
Williams v. AT & T Mobility Servs., LLC, 186 F. Supp. 3d 816, 825 (W.D. Tenn. 2016). Also of
importance is the fact that, “[u]nder the amended statute, both the definition of ‘disability’ and
the term ‘substantially limit’ are to be construed in favor of broad coverage. Id. at 824 (citing 42
U.S.C. § 12102(4)(A)). Marshall specifically testified about her depression, anxiety, and PTSD,

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the problems that it caused her in her everyday life, and the inpatient and outpatient care she
required as a result of it. The Court finds that the jury had a “legally sufficient evidentiary basis”
to find that Marshall qualified as a disabled individual under the meaning of the statute. See
Imwalle, 515 F.3d at 543. Because the Court has determined that the evidence was sufficient for
a reasonable jury to have concluded that Marshall was a person with a “disability” for purposes
of the ADA, it need not reach the issue of whether Rawlings regarded her as being a person with
a disability, mistakenly or otherwise.
Rawlings next argues that “[t]he undisputed proof at trial established that [Marshall] was
not qualified to perform her job as Team Lead in 2012, therefore the demotion claim fails as a
matter of law.” [DN 211-1, at 8.] Marshall was working as an analyst in the workers
compensation division at Rawlings before being promoted to Team Lead, a position in which she
oversaw a team of workers compensation analysts; in September 2012, she was demoted back to
analyst, before ultimately being terminated in October 2013. A Team Lead oversees a group of
analysts, providing them with work-related guidance, and also has a reduced quota of workers
compensation files they are required to work through for the company. Rawlings points out that,
“[a]t the time of her demotion, more than six months after returning from FMLA leave,
[Marshall] carried” far fewer files than normal and was still having difficulty keeping up, and
that Marshall was simply incapable “of meeting the leadership requirements of the Team Lead
position.” [Id. at 10-11.]
Of course, as the Sixth Circuit has explained, “[a]t the prima facie stage, a court should
focus on a plaintiff’s objective qualifications to determine whether he or she is qualified for the
relevant job.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 575 (6th Cir. 2003) (citation
omitted). And here, the Court finds that sufficient evidence was adduced at trial from which a

6

reasonable jury could have found for Marshall on this prong of her ADA discrimination claim.
See Imwalle, 515 F.3d at 543. Namely, while Rawlings points in large part to the notion that, “in
Rawlings’ opinion, [Marshall] was not capable” of meeting expectations in her leadership
position, the inquiry is an objective one, and so Rawlings’ opinion here is not dispositive.
Moreover, to the extent that Rawlings has utilized objective data showing that Marshall was
apparently incapable of keeping up with her caseload, even when it was reduced, this remains
insufficient for the Court to determine as a matter of law that, drawing all reasonable inferences
in favor of Marshall, that she was unqualified for the position of Team Lead. See Balsley, 691
F.3d at 757. Rawlings cites to small sample sizes concerning her backlog of cases, repeatedly
makes statements such as, “in Rawlings’ business judgment,” and largely ignores the second
facet of the position of Team Lead: helping other analysts. [See DN 211-1, at 10-11.] To be sure,
the evidence adduced by Rawlings shows that, at the time Marshall was demoted, her backlog
had reached 43%, and that Rawlings’ set limit was 15%, but the Court finds that it is far from
certain that these figures, while unfavorable, demand the unequivocal conclusion that Marshall
was unqualified for her job as a Team Lead. It raises some questions, but the Court cannot say
that the jury reached an unreasonable result and, at any rate, this Court is prohibited from
weighing the evidence presented by both sides. Reasonable minds could have reached a
conclusion in favor of Marshall, and so this argument must fail.
Next, Rawlings argues that Marshall failed to show intentional discrimination by
Rawlings because, in Rawlings view, it “treated [Marshall] the same as its other employees….”
[Id. at 13.] More specifically, Rawlings argues that Marshall never showed any disparate
treatment because she failed to identify valid “comparators,” i.e., similarly situated but nondisabled Rawlings employees who received more favorable treatment than her. [Id. citing

7

Stanciel v. Donahoe, 570 F. App’x 578, 581 (6th Cir. 2014).] However, as Marshall points out,
the jury did hear the testimony of Elizabeth Davidson Estrada, (“Estrada”). [DN 195 (Transcript
of Estrada’s Testimony).] Estrada discussed a request she made to her boss, Leah Sarley,
(“Sarley”), while acting as a Team Lead to be taken off file rotation in order to catch up, a
request which Sarley granted. [Id. at 9.] She also clarified that she was not taking any FMLA
leave around that time. [Id.] At trial, Marshall juxtaposed this treatment with a perceived failure
by Sarley to provide similar treatment for Marshall around the time Marshall was taking FMLA
leave. Rawlings may disagree with the weight that a jury should have attached to such
comparator evidence, but the Court will not herein weigh the evidence a second time. See
Szekeres, 731 F.3d at 597. Reasonable minds could have found in Marshall’s favor.
b. Cats Paw Theory of Liability
Rawlings’ next broad-brush argument concerns the so-called Cats Paw theory of liability,
upon which Marshall’s case was premised at trial. In affirming this Court in part and reversing it
in part, the Sixth Circuit explained that “[t]he term ‘cat’s paw’ refers to one used by another to
accomplish his purposes. In the employment discrimination context, ‘cat’s paw’ refers to a
situation in which a biased subordinate, who lacks decisionmaking power, uses the formal
decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.”
Marshall, 854 F.3d at 377 (quoting EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, 450
F.3d 476, 484 (10th Cir. 2006)). In other words, the theory “rests on the premise that
organizational employers do not operate in a vacuum, and that a decisionmaker might rely on the
recommendation of a biased lower-level supervisor.” Id. at 380. In the situation where a nondecisionmaker intentionally manipulates the decisionmaker, thereby invoking the Cats Paw

8

theory, “the honesty or sincerity of the decisionmaker’s belief is irrelevant. What is relevant is
that the belief is rooted in a biased recommendation.” Id. (citation omitted).
Here, Rawlings claims that Marshall failed to put on evidence concerning the elements of
“bias” and “intentional manipulation” relating to both her demotion and termination, and that her
claims must therefore fail as a matter of law. More specifically, Rawlings contends that (1) no
evidence was adduced that Bradshaw knew about Marshall’s ailments at the time her demotion,
and so he could not have intentionally manipulated the decisionmaker, Plumley, into deciding to
demote Marshall; and that (2) no evidence was adduced that Elsner, Bradshaw, or Plumley
intentionally manipulated Mr. Rawlings into terminating Marshall because of her ailments. [See
DN 211-1, at 17-22.]
Plumley testified at trial that her decision to demote Marshall from Team Lead back to
analyst was made, at least in part, based upon a recommendation from Bradshaw; she testified
that Bradshaw told her that “Marshall was having difficulty with her individual performance and
balancing it with the role of a team lead.” It is Rawlings’ contention, though, that Bradshaw’s
recommendation was made solely upon his sincerely held belief that Marshall was not
performing her job duties adequately, and not out of some animus. Relatedly, Bradshaw testified
that he was unaware of Marshall’s specific ailments when he recommended her demotion.
However, the jury heard evidence that Elsner forwarded emails to Bradshaw during the relevant
time period in which Marshall informed Elsner that she was taking FMLA leave and was
admitted to the hospital. The jury also heard evidence that Marshall told Elsner all about her
ailments during the relevant time period, and that Elsner sent an email to Bradshaw expressing
his concerns about Marshall. There was no direct evidence adduced that Elsner told Bradshaw
about the specifics of Marshall’s ailments, i.e., that she was suffering from depression, anxiety

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and PTSD, but the Record contains enough circumstantial evidence concerning the events which
transpired immediately before Marshall’s demotion that the Court finds that it must reject
Rawlings’ argument. The Court cannot “question the credibility of any witnesses,” as that is a
job with which the jury was charged, and which it did. Szekeres, 731 F.3d at 597. Nor should a
court “substitute its judgment for that of the jury,” id., and the Court cannot say that “reasonable
minds could come to but one conclusion in favor of [Rawlings,]” and so this argument must fail.
See Balsley, 691 F.3d at 757.
Next, Rawlings argues that no evidence was adduced that Elsner, Bradshaw, or Plumley
intentionally manipulated Mr. Rawlings into terminating Marshall because of her ailments. Here,
too, the Court must reject Rawlings’ arguments. Rawlings contends that Marshall was terminated
because she had a “bad attitude,” and “not ‘because of’ her mental health conditions.” [DN 2111, at 22.] Of course, the basic premise of the Cats Paw theory of liability means that Mr.
Rawlings’ beliefs, feelings, and reasons for actually terminating Marshall were not dispositive,
as the Cats Paw theory looks to the biases held by the non-decisionmakers and their intentional
manipulation of the ultimate decisionmaker. See Marshall, 854 F.3d at 380. Rather, Rawlings
argues that the Record is bare of any evidence that Elsner, Bradshaw, and/or Plumley held biases
against Marshall, which would have guided them to manipulate Mr. Rawlings into terminating
Marshall.
In making this argument, Rawlings discounts the aforementioned emails containing
information about Marshall’s health that Elsner forwarded along to Bradshaw, coupled with his
email to Bradshaw expressing his doubts about Marshall’s ability to continue as a Team Lead.
Rawlings also largely side-steps the evidence Marshall put on concerning Bradshaw’s behavior
towards Marshall at the May 2013 luncheon and the comments he made to her around the time of

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her demotion, which Marshall conveyed to the jury as evidence of his bias against her. Rawlings
does discuss at length Marshall’s allegations of harassment against Bradshaw. It explains the
conflicting views of his behavior towards Marshall, namely, that Marshall felt Bradshaw was
harassing her in 2013 and that this served as a catalyst for her ultimate termination, and that
Plumley felt the allegations were not serious enough to constitute harassment and Mr. Rawlings
did not truly believe everything that Marshall was saying in their October 1, 2013 meeting
immediately before he terminated her. However, this only serves to highlight the factual disputes
put into evidence throughout the course of the trial. It is not for this Court to weigh the evidence
and decide which side was more believable. Szekeres, 731 F.3d at 597. That is a function the jury
already carried out, and the Court cannot say the only reasonable conclusion for the jury to have
reached was one in favor of Rawlings. Accordingly, the Court must reject this argument.
c. Rawlings’ Legitimate, Non-Discriminatory Reason for the Demotion and Termination
Next, Rawlings argues that, consistent with the McDonnell Douglas burden-shifting
framework, it provided the jury with evidence of a legitimate, non-discriminatory reason for
demoting and terminating Marshall, and that Marshall failed to rebut this reason with any
evidence of pretext. Under McDonnell Douglas, the burden rests with the plaintiff to establish a
prima facie case of discrimination; if done, the burden shifts to the defendant employer “to
articulate some legitimate, nondiscriminatory reason” for taking the adverse employment
action(s); if done, the burden shifts back to the plaintiff to show that the employer’s reason is
actually pretext for some unlawful discrimination. Johnson v. Kroger Co., 319 F.3d 858, 864-65
(6th Cir. 2003) (citation omitted); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). Rawlings correctly points out that “[a] plaintiff can demonstrate pretext by showing
that the employer’s proffered reason for the adverse action (1) has no basis in fact, (2) did not

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actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the
challenged conduct.” Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 779 (6th Cir.
2016) (citations omitted).
First, with respect to Marshall’s demotion, Rawlings argues that “the evidence showed
that [Marshall] was demoted for her poor performance as a Team Lead….” [DN 211-1, at 32.]
The Court already discussed the evidentiary dispute between the parties concerning her workrelated performance in Section (B)(2)(a) of this Memorandum Opinion, at which time Rawlings
argued that the evidence showed Marshall was not qualified for her position as Team Lead. The
Court’s analysis in that section serves to dispense with Rawlings’ argument here. Rawlings
adduced evidence that Marshall was having difficulties with her caseload and was falling behind,
characteristics of an individual who may or may not be qualified for a position depending upon
how lengthy that period of time is, but it is not for the Court to weigh the significance of such a
specific factual issue, because Marshall adduced evidence that Elsner knew of her ailments and
forwarded emails to Bradshaw which indicated that Marshall was on FMLA leave. In other
words, Marshall adduced evidence of pretext utilizing prongs two and three of the above-listed
methods from Jackson, 814 F.3d at 779.
Second, Rawlings argues that ‘the evidence showed that [Marshall] was…terminated by
Mr. Rawlings for her bad attitude.” [DN 211-1, at 32.] Again though, this is just Rawlings’ take
on what was very much a contested issue at trial. To be sure, Rawlings’ proffered reason for
Marshall’s termination, her “performance and false allegations of harassment,” constituted a
legitimate, non-discriminatory reason for Mr. Rawlings’ decision to fire her. However,
Rawlings’ next argument that Marshall “did not supply evidence of pretext at trial” is not a
conclusion necessarily borne out of the Record. [See id.] Much of the evidence Marshall adduced

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throughout the course of the week-long trial went directly to the question of her competence as
an analyst and a Team Lead, her caseload, the amount of money she produced for the company,
as well as her allegations of harassment against Bradshaw. Stated differently, Marshall produced
testimony concerning her abilities as an employee while Rawlings did the same regarding her
shortcomings; Marshall adduced evidence concerning the perceived harassment she received at
the hands of Bradshaw and the indelicate handling of information concerning her mental health
and potential biases from Elsner, Bradshaw and Plumley, while Rawlings adduced evidence that
her ailments were not the rationale for her demotion and termination. In short, Marshall produced
some evidence that her supposed “bad attitude” and/or her allegedly false allegations of
harassment “did not actually motivate” Mr. Rawlings’ decision to terminate her, and/or that these
incidents were “insufficient to warrant” her termination. See Jackson, 814 F.3d at 779. Finally, it
bears repeating that it would be inappropriate for the Court here to substitute its own judgment
for that of the jury concerning which party produced more compelling evidence and, viewing the
evidence in the light most favorable to Marshall as this Court is required to do, the Court must
reject Rawlings’ argument. See Braun v. Ultimate Jetcharters, LLC, 828 F.3d 501, 509-10 (6th
Cir. 2016).
C. Motion for New Trial
The first form of alternative relief Rawlings seeks in the instant Motion is a new trial
under Rule 59(a) of the Federal Rules of Civil Procedure.
1. Legal Standard
Pursuant to Rule 59(a), a new trial may be granted in an action involving a trial by jury
“for any reason for which a new trial has heretofore been granted in an action at law in federal
court.” Fed. R. Civ. P. 59(a)(1)(A). A new trial is warranted only “when the jury reaches a

13

‘seriously erroneous result as evidenced by (1) the verdict being against the [clear] weight of the
evidence; (2) the damages being excessive; or (3) the trial being unfair to the moving party in
some fashion, i.e., the proceedings being influenced by prejudice of bias.’” Cummins v. BIC
USA, Inc., 727 F.3d 506, 509 (6th Cir. 2013) (quoting Static Control Components, Inc. v.
Lexmark Int’l, Inc., 697 F.3d 387, 414 (6th Cir. 2012), aff’d, 572 U.S. 118 (2014)). Importantly,
the district court may not set aside a verdict “simply because it believes that another outcome is
more justified;” rather, the court must “accept the jury’s verdict ‘if it is one which reasonably
could have been reached.’” Denhof v. City of Grand Rapids, 494 F.3d 534, 543 (6th Cir. 2007)
(quoting Duncan v. Duncan, 377 F.2d 49, 52 (6th Cir. 1967)).
2. Discussion
In support of its alternative request for a new trial under Rule 59(a), Rawlings has
presented three broad-brush arguments, which the Court will deal with in succession, below.
a. The Weight of the Evidence at Trial
Rawlings first argues that the verdict was against the clear weight of the evidence, and
cites to five specific reasons why a new trial is warranted: first, according to Rawlings, Marshall
failed to establish that she was disabled or that Rawlings regarded her as disabled under the
ADA; second, Rawlings contends that Marshall presented no evidence that she was qualified for
her position as a Team Lead; third, Rawlings contends that Marshall “presented no proof of a
similarly situated comparator or that Rawlings treated her differently than other employees in
general;” fourth, Rawlings argues that the verdict the jury reached on the Cats Paw theory was
unsupported by any evidence of intentional manipulation of Plumley or Mr. Rawlings by either
Bradshaw or Elsner; and fifth, Rawlings argues that Marshall did nothing to rebut its legitimate,
non-discriminatory reasons for demoting and terminating her. [See DN 211-1, at 35.] Rawlings’

14

argument here largely tracks its earlier arguments in the preceding section wherein it contended
that it was entitled to judgment as a matter of law pursuant to Rule 50(b).
First, the Court has given adequate consideration to the issues of whether Marshall was a
person with a “disability” under the meaning of the ADA, as well as whether she was qualified to
perform her job as a Team Lead in Section (B)(2)(a), supra. Contrary to Rawlings’ assertion,
Marshall did present evidence at trial that she was a person with a “disability,” as testimony was
elicited during the trial that she suffers from depression, anxiety and PTSD, ailments for which
she was forced to take intermittent FMLA leave from work, and for which she was also
hospitalized. Rawlings focuses most heavily on whether and how much work Marshall was
forced to miss as a result of her ailments, but the Court is satisfied that sufficient evidence was
adduced by Marshall that her ailments substantially limited a major bodily function such that the
jury’s verdict “is one which reasonably could have been reached.” Denhof, 494 F.3d at 543
(internal quotation marks omitted). Additionally, the conclusion that Marshall was “qualified”
for her position as Team Lead was one the jury could have reasonably reached, Denhof, 494 F.3d
at 543, as the jury heard evidence of Marshall’s track record as an employee, both with respect to
interpersonal skills as well as the amount of money she produced for Rawlings.
Next, this Court already gave sufficient consideration to the issues of similarly situated
comparator employees at Rawlings, as well as the issue of the Cats Paw theory of liability,
discussing these issues at length in Sections (B)(2)(a)-(b), supra. The Court examined Estrada’s
testimony as compared to Marshall’s own testimony. Further, it looked at the issues of evidence
concerning “bias” and “intentional manipulation,” and Rawlings’ legitimate, non-discriminatory
reasons for demoting and terminating Marshall and her rebuttal thereof. The Court hereby
incorporates that analysis by reference. The Court cannot say that the verdict reached by the jury

15

was a “seriously erroneous result as evidenced by…the verdict being against the [clear] weight
of the evidence…. Cummins, 727 F.3d at 509. Accordingly, Rawlings’ arguments must be
denied.
b. Coloring the Jury on the Basis of Passion and not the Law
The second argument Rawlings has presented in support of its contention that it is
entitled to a new trial is that counsel for Marshall made “improper arguments” that “colored the
jury to decide the case on the basis of passion, not the law.” [DN 211-1, at 35.] Rawlings points
to numerous statements Marshall’s counsel made during trial, characterized by Rawlings as
comments about how Rawlings treats its employees unfairly, how their business
practices purposefully disadvantage their employees/clients and – because of the
evils of the corporation itself – how the jury is the voice of the community and
can send a message to ‘fix’ the company, in addition to making things right for
other Kentucky workers.
[Id. at 36-37.] Essentially, Rawlings has compiled numerous excerpts from trial and argues that
these constituted attempts by Marshall’s counsel to skirt the legal requirements of an ADA
discrimination claim and have the jury focus more on any wrong done to Marshall, and to
remedy any unfairness she may have experienced irrespective of what the law said. [See id. at
38.]1
The Sixth Circuit has long held that “the determination of the extent of permissible
comment and argument by counsel rests primarily in the judicial discretion of the lower court,”
and that “[t]he trial court is…clothed with a great deal of discretion in determining whether an
objectionable question is so prejudicial as to require a retrial…[because] [it] is in a far better
position to measure the effect of an improper question on the jury than an appellate court….”
1
Rawlings argues, “[t]hus, the Plaintiff’s clear request to the jury – as evidenced by those comments and others
throughout trial – was that if you do not like how Rawlings treated Plaintiff, regardless of whether or not it was
‘because of’ her mental health conditions, you can fix that ‘wrong’ by sending a message. These comments had no
bearing on whether or not Rawlings would have demoted and/or terminated Plaintiff ‘but for’ her medical condition.
Instead, Plaintiff blatantly asked the jury to right any unfairness or wrong done to her – irrespective of the reason.”

16

City of Cleveland v. Peter Kiewit Sons’ Co., 624 F.2d 749, 756 (6th Cir. 1980) (internal
quotation marks and citations omitted). In conducting such an examination, the trial court must
ask “whether there is a reasonable probability that the verdict of a jury has been influenced by
improper conduct,” and then “examine, on a case-by-case basis, the totality of the circumstances,
including the nature of the comments, their frequency, their possible relevancy to the real issues
before the jury, the manner in which the parties and the court treated the comments, the strength
of the case…, and the verdict itself.” Id.
At the outset of the Court’s analysis of Rawlings’ argument, it is necessary to note that
Rawlings seems to have made no contemporaneous objections to the twelve principal excerpts it
has included in its Motion (three excerpts from Marshall’s opening statement, one piece of
dialogue from the direct examination of Marshall, and eight excerpts from Marshall’s closing
argument). [See DN 211-1, at 37-38.] The only contemporaneous objection made by Rawlings
with respect to these excerpts is one during Marshall’s closing argument, but the objection did
not go to the issue of inflaming the jury’s passion: counsel for Marshall was discussing the issue
of punitive damages, and counsel for Rawlings objected and asked to approach the bench. At that
time, Rawlings’ counsel stated, “[j]ust for the record, we do object to the request for punitive
damages…I think the case law says that when she’s doing her closing, we have to object.” [DN
198, at 18.] During this bench conference, nothing was said about improperly appealing to the
jury’s passions, and Rawlings’ counsel did not specifically make reference to any of the excerpts
contained in Rawlings’ instant Motion.
Therefore, setting aside the substance of these twelve excerpts, the Court must first look
to the consequences of Rawlings’ failure to contemporaneously object. In Balsley v. LFP, Inc.,
the Sixth Circuit dealt with, inter alia, a Rule 59 motion for a new trial, wherein the defendant

17

argued “that comments made by Plaintiffs’ counsel in its opening statement and closing
argument were improper and prejudicial,” as Rawlings as done here. See Balsley, 691 F.3d at
761. In upholding the district court’s decision to deny the defendant’s motion, the Balsley Court
explained that “[t]he failure to object to the allegedly prejudicial comments at trial ‘raise[s] the
degree of prejudice which must be demonstrated in order to get a new trial on appeal.’” Id. at
761-62 (quoting Strickland v. Owens Corning, 142 F.3d 353, 358 (6th Cir. 1998)). Thus, because
Rawlings “failed to object to…the[se] statements,” Rawlings “is subject to a heightened showing
of prejudice…” with respect to these twelve excerpts. Id. at 762.
Turning attention to the specific excerpts to which Rawlings now objects, some of them
include some variation of the word “fair.” [See DN 211-1, at 37.] For example: “ask yourself, is
that fair,” or “ask yourself whether that’s fair,” or “it’s…fundamentally a fairness issue.” Other
excerpts refer to “send[ing] a message.” Still others refer to the power of the jury: “you are a
voice that they have to listen to,” and “the other message you can send them is that there’s
nothing wrong with what they do,” and “the hope that you give to this company and its
employees and companies just like it all across…Kentucky,” and “I’m asking you to use that
power to send that message and I am asking you as a person who represents workers in
Kentucky, do not send them the message that what they did and what they continue to do is okay.
It’s not, but that depends on you.” In examining these twelve excerpts, the Court finds that
Rawlings cannot meet the heightened standard of prejudice required for this Court to grant a new
trial.
With respect to the comments concerning fairness made by Marshall’s counsel during her
opening statement, the Court has reviewed the transcript and finds that the comments were made
largely in the context of Marshall’s experience with the company, the treatment she alleged she

18

received during and after taking FMLA leave, how Mr. Rawlings treated her when she levied a
harassment complaint against Bradshaw, and Mr. Rawlings’ decision to terminate Marshall
without conducting any substantive investigation into the aforementioned allegations. In short,
the Court cannot say that these comments, even using the term “fair,” were intentionally directed
towards inflaming the jury’s passion, nor has Rawlings shown that they had such an effect.
Next, with respect to the complained-of exchange between Marshall’s counsel and
Marshall on direct examination, the Court must reject Rawlings’ argument. That exchange, in its
entirety, is as follows:
Q:

Do you think this jury should send a message?

A:

Absolutely, That’s – that’s the reason why I have gone through all of this

litigation effort is to try to show that maybe everyone has to play by the rules, not just
people that don’t have millions and millions of dollars to spare.
Q:

So that last figure there, what is that?

A:

300,000.

Q:

Is that what you’d like to see the jury award in order to send a message?

A:

Yes.

[DN 176, at 96-97.] The Court finds that no prejudice resulted to Rawlings as a result of this
exchange. Marshall was discussing the damages (compensatory and punitive) that she was
requesting at trial, as well as her belief that (a) Rawlings discriminated and/or retaliated against
her, and (b) that they should be subject to the laws like everyone else, and the phrase “send a
message” appears to have been directed towards her request for punitive damages which, as the
term suggests, are punitive in nature and are awarded in order to punish a badly behaving actor.

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Regarding emotional dialogue and what Rawlings refers to as “us versus them” lines of
argument provided by Marshall’s counsel during her closing argument, the Court finds that a
new trial is not warranted. Marshall’s counsel at one point referred to a piece of testimony that
“got [her] emotions up,” which the Court finds to be ultimately irrelevant to Rawlings’ argument
here. And with respect to Marshall’s counsel’s comments to the jury that it was “a voice that they
[Rawlings] have to listen to,” that the jury could send a message that Rawlings needs to fix its
bad practices, or send a message that there’s nothing wrong with what it did, that Rawlings has
approximately 1,400 employees who might be at risk of discrimination and/or retaliation like
Marshall and that the jury could help them, and the other comments to which Rawlings objects,
the Court finds no heightened prejudice warranting a new trial.
A key part of Marshall’s counsel’s trial strategy was the pursuit of punitive damages
under the ADA, and the Court sees many of these comments as directed towards the jury in order
to instruct them that they had the power to punish Rawlings for bad behavior. It is certainly “true
that an ‘us-against-them’ plea can have no appeal other than to prejudice by pitting the
community against a nonresident corporation and is an improper distraction from the jury’s
sworn duty to reach a fair, honest and just verdict.” Strickland, 142 F.3d at 359 (internal
quotation marks and citations omitted). However, even where there is “an ‘us-against-thepowerful-corporation’ flavor to [a] Plaintiff’s closing remarks,” it does not automatically follow
that such an incident is “so prejudicial as to mandate a new trial, especially where no objection
was raised at the first trial.” Id. Thus, even to the extent that Marshall’s counsel’s comments
juxtaposing employers and employees could be construed as minimally “us-against-them” in its
“flavor,” the Court is satisfied that the comments, reviewed anew, do not rise to a level sufficient

20

to warrant the granting of a new trial, especially considering that Rawlings did not specifically
object to these comments at trial. See id.
Next, Rawlings cites to four additional excerpts, calling them “irrelevant topic areas
[that] were obviously meant to trap a witness into an unfavorable answer, thereby inflaming the
jury….” [DN 211-1, at 39.] Upon reviewing the transcripts relating to these instances, the Court
does not see how these pieces of dialogue would have inflamed the jury’s passions, or how they
were at all unfairly prejudicial to Rawlings. Even if potentially irrelevant, none of the excerpts at
issue are of a character which would warrant consideration of a new trial.
Rawlings also objects to Marshall’s counsel’s repeated references to Elsner’s forwarding
to Bradshaw of three emails Marshall had sent to him. [Id.] There were arguments at trial
regarding whether the information contained in these emails was confidential health information,
but the emails themselves did refer to Marshall and her being on FMLA leave, and so whether or
not Marshall’s counsel “fixated on…[the] three emails,” for a unnecessary amount of time, as
Rawlings insists, does not ultimately bear upon the prejudice question. Of course, Rawlings has
objected to Marshall’s counsel’s allegedly excessive use of the emails as the latter’s attempt to
unfairly characterize Elsner’s actions as violating regulations or internal company policy, but the
Court has reviewed the transcript and finds that in-trial objections and this Court’s directing of
Marshall’s counsel served to cure any potential prejudice to Rawlings.
Finally, Rawlings cites to this Court’s statement on the Record during Rawlings’ motion
for directed verdict at the close of Marshall’s proof. [DN 201.] Therein, this Court stated on the
Record that, with respect to the ADA discrimination claim, it believed Rawlings had a stronger
argument than Marshall. [Id. at 17.] However, the Court went on to say, “but the proof [the Court
has] heard is very similar, if not stronger, than what went up to the Court of Appeals,” before

21

denying Rawlings’ motion. Of course, this motion was heard while the jury was not present in
the courtroom and, at any rate, the jury is the ultimate fact finder. Thus, Rawlings’ attempt to
connect this comment with its ultimate conclusion that the jury found in favor of Marshall only
on her claim for ADA discrimination because it provided for a larger recovery than her claim for
FMLA retaliation could offer, is without merit.
c. The Jury Instructions
Rawlings also contends that a new trial is warranted on the basis of what it views as
errors concerning the jury instructions given at trial. Specifically, Rawlings argues that this Court
should grant it a new trial because (1) the Court failed to include specific language directed to
the McDonnell Douglas burden-shifting analysis, and (2) the Court did not provide an instruction
concerning the business judgment rule. [DN 211-1, at 41; see also DN 197, at 14-17.]
During trial, Rawlings objected to this Court’s decision not to include specific language
discussing the burden-shifting approach of McDonnell Douglas in the jury instructions, and the
Court explained that the instructions, as written, incorporated the rule and spirit of McDonnell
Douglas “in a way that [wa]s less confusing to the jury,” because “when you say they’ve
[plaintiff] carried their burden and then you rebut – I think that becomes – that’s legalese for
summary judgment motions but not necessarily for jur[ies]….” [DN 197, at 17.] Of course, the
Sixth Circuit “has discussed [that] ‘it is normally inappropriate to instruct the jury on the
McDonnell Douglas analysis.’” Beard v. AAA of Michigan, 593 F. App’x 447, 453-54 (6th Cir.
2014) (quoting Brown v. Packaging Corp. of Am., 338 F.3d 586, 593 (6th Cir. 2003) (emphasis
added)). Trial courts are afforded broad discretion concerning which instructions to provide to a
jury, United States v. Tasis, 696 F.3d 623, 627 (6th Cir. 2012), and such “[i]nstructions are not
erroneous if ‘they adequately inform the jury of the relevant considerations and provide a basis

22

in law for aiding the jury in reaching its determination.’” EEOC v. EMC Corp. of Massachusetts,
205 F.3d 1339 (Table), at *10 (6th Cir. 2000) (quoting Kitchen v. Chippewa Valley Sch., 825
F.2d 1004, 1012 (6th Cir. 1987)).
In the present case, the Court is satisfied that the instructions were adequate. While the
Court did not lay out the instructions at issue in precisely the same fashion as Rawlings would
have wished, upon reexamination the Court finds that their meaning, both explicitly and
implicitly, reach the issues in a manner sufficient to preclude a new trial. In Instruction Nos. 6
and 7, wherein this Court laid out the five required elements of an ADA discrimination claim
relating to Marshall’s demotion and termination, respectively, it specifically stated that Marshall
must have been demoted/terminated “because of her disability.” [DN 189, at 13 (bold in
original).] The Court then provided over a page of explanations for both her demotion claim and
her termination claim. Therein, this Court explained direct discrimination and discrimination
under the Cats Paw theory, targeting the key issues inherent in Marshall’s claims. For example,
in charging the jury on direct discrimination concerning her demotion, the Court explained that
the decision to demote Marshall must have been “the ‘but for case’ of Laura Plumley’s decision
to demote her. In other words, the sole reason why Laura Plumley decided to demote the Plaintiff
was her disability or Laura Plumley’s having regarded her as having a disability.” [Id. at 13-14.]
The Court went on to specifically charge the jury concerning intentional manipulation
under the Cats Paw theory and explained the motivations certain individuals must have had in
order for the jury to find in favor of Marshall on these claims. For example, when charging the
jury on the Cats Paw theory, the Court specifically guided the jury by instructing as follows:
“[u]nder Theory Two (‘Cat’s Paw’), you the jury must ask this question: whether the Plaintiff
has proven by a preponderance of the evidence that Jeff Bradshaw and/or Mike Elsner, because

23

of the Plaintiff’s disability or their having regarded her as having a disability, intentionally
manipulated the decision maker, Laura Plumley, in her decision to demote the Plaintiff.” [DN
189, at 14 (emphasis added).] In other words, the jury was asked, in its position as fact finder, to
determine what guided the decisions that were made, i.e., whether they were guided by
intentionally manipulative biases borne out of knowledge of Marshall’s disability, or whether the
decisions stemmed from Marshall’s perceived or actual shortcomings in her role as Team Lead
and/or her attitude and her allegedly false harassment claims. After explaining the actual
motivations that certain Rawlings employees must have had in order for Marshall to succeed
under both theories, and on one or both of her claims, the Court properly instructed the jury that,
should they find in favor of Marshall on all five elements, then Marshall must prevail. The Court
finds these instructions to be adequate, and that additional instructions concerning pretext would
have been largely redundant and therefore unnecessary, as the Court’s explanation of what
mindsets were required in order for the jury to find for Marshall were sufficient.
Rawlings also argues that a business judgment instruction should have been given by the
Court. This Court’s sister court in the Eastern District of Tennessee explained this issue clearly:
Defendant also contends that the Court committed error in omitting an instruction
on the business-judgment rule in the jury charge. The Sixth Circuit has provided,
however, that it ‘has never adopted a ‘business-judgment rule’ which requires [it]
to defer to the employer’s ‘reasonable business judgment’ in discrimination cases.
See White v. Baxter Healthcare Corp., 533 F.3d 381, 395 n.6 (6th Cir. 2008)
(stating in the context of a Title VII claim). Indeed, the issue in most
discrimination cases is ‘whether the employer’s adverse employment action
resulted from an objectively unreasonable business judgment.’ Id. As such, it is
inappropriate to ‘unquestionably accept the employer’s own self-serving claim
that the decision resulted from an exercise of reasonable business judgment.’ Id.
Instead, the jury should determine whether a plaintiff has presented enough
evidence ‘that the employer made an unlawful business decision.
EEOC v. Dolgencorp, LLC, 277 F. Supp. 3d 932, 950 (E.D. Tenn. 2017) (quoting White, 533
F.3d at 395 n.6).
24

Throughout the life of this case, and through the evidence adduced at trial, the central
questions with respect to Marshall’s ADA discrimination claims have been (1) whether she was
demoted because of some discriminatory animus concerning her disability or because she was
seen by the company to be unqualified for a leadership role, and (2) whether she was terminated
from the company because of that discriminatory animus or because she had a bad attitude
and/or made allegedly false claims of harassment against Bradshaw. Upon reexamination of the
instructions given to the jury, the Court has determined that the instructions sufficiently covered
these two issues; they carefully laid out the legal standards and what the jury was required to find
in order to find in favor of Marshall. Consequently, the Court’s decision to omit a specific
instruction on the business judgment rule was not in error, and is therefore not a basis upon
which the Court would order a new trial.
D. Motion for Remittitur
The final form of alternative relief Rawlings seeks in its instant Motion is a remittitur of
the jury award.
1. Legal Standard
“A remittitur is defined as ‘[t]he procedural process by which an excessive verdict of the
jury is reduced.’” Hill v. Marshall, 962 F.2d 1209, 1216 (6th Cir. 1992) (quoting Black’s Law
Dictionary, 1295 (6th ed. 1990)). The Sixth Circuit “has determined a jury verdict should not be
remitted by a court ‘unless it is beyond the maximum damages that the jury reasonably could
find to be compensatory for a party’s loss.’” Gregory v. Shelby Cnty., Tennessee, 220 F.3d 433,
443 (6th Cir. 2000) (quoting Jackson v. City of Cookeville, 31 F.3d 1354, 1358 (6th Cir. 1994)).
The Sixth Circuit has also held that “an award must stand unless it is (1) beyond the range
supportable by proof; or (2) so excessive as to shock the conscience; or (3) the result of a

25

mistake.” Id. (citing Bickel v. Korean Air Lines Co., Ltd., 96 F.3d 151, 156 (6th Cir. 1996)). “A
trial court is within its discretion in remitting a jury verdict only when, after reviewing all
evidence in the light most favorable to the awardee, it is convinced that the verdict is clearly
excessive, resulted from passion, bias or prejudice; or is so excessive or inadequate as to shock
the judicial conscience of the court.” Id. (citing Farber v. Massillon Bd. of Educ., 917 F.2d 1391,
1391 (6th Cir. 1990)).
2. Discussion
Finally, Rawlings has asked that, in the alternative, this Court should remit the jury’s
verdict of $456,000 as unreasonably excessive. [DN 22-1, at 43.] Rawlings first argues that
“[t]he back pay award on the demotion claim is not supported by the proof,” and that, barring the
grant of a new trial, the Court should reduce the $81,000 award to $23,400. [Id. at 44.] As this
Court instructed the jury, back pay refers to the compensation an employee would have earned if
the employer had not taken unlawful adverse action against the employee. [DN 189, at 24.] Any
award of back pay should be reduced by wages gained from other employment in the interim
period, as well as expenses the plaintiff would have incurred through maintaining their
employment with the defendant company. [Id.] As the Sixth Circuit has explained, “[t]he
purpose of back pay ‘is to make whole the victim of an unlawful employment practice by
restoring the employee to the position he or she would have been in absent the discrimination.’”
Szeinbach v. Ohio State Univ., 820 F.3d 814, 821 (6th Cir. 2016) (quoting Howe v. City of
Akron, 801 F.3d 718, 744 (6th Cir. 2015)). The Sixth Circuit will reverse a trial court’s
“grant…of back pay upon a showing that the district court abused its discretion in fulfilling the
purposes of Title VII.” EEOC v. Wilson Metal Casket Co., 24 F.3d 836, 840 (6th Cir. 1994)
(citing Albemarle v. Moody, 422 U.S. 405, 424 (1975)).

26

The Sixth Circuit has made clear that “[v]ictorious Title VII plaintiffs are presumptively
entitled to back pay until the date judgment has been entered in the case.” Shore v. Federal
Express Corp., 777 F.2d 1155, 1159 (6th Cir. 1985). In its instant motion, Rawlings contends
that the calculation should only run from September 2012, when Marshall was wrongfully
demoted, until September 2013 when she was wrongfully terminated (Marshall was actually
terminated on October 1, 2013). However, the jury was specifically charged that back pay runs
from the date of the adverse action (here, her demotion) until the rendering of the verdict, which
is consistent with Sixth Circuit precedent. [DN 189, at 24.] Accordingly, the Court cannot say
that the jury’s assessment of a back pay award in the amount of $81,000 was “clearly excessive.”
See Gregory, 220 F.3d at 443. Marshall was wrongfully demoted roughly five-and-a-half years
prior to the verdict, and the jury could reasonably have concluded that $81,000 represented what
Marshall would have earned if not for the adverse action she suffered. By Marshall’s own
testimony at trial, her average salary as a Team Lead in the time leading up to her demotion was
$6,260 per month, or $75,120 per year. [DN 176, at 91.] Marshall further testified that, as a result
of her demotion back to analyst, her monthly salary was reduced to around $4,310 per month, or
$51,720 per year, and that this number later increased to around $60,000. By comparing this
reduction in salary against the time period between her demotion and the jury verdict, the Court
finds that the back pay award was not “beyond the range supportable by proof,” or “clearly
excessive.” See Gregory, 220 F.3d at 443. Therefore, the Court must reject Rawlings’s reduction
argument with respect to back pay.
Second, Rawlings argues that the front pay awarded by the jury with respect to
Marshall’s termination claim is inconsistent and warrants a new trial and, alternatively, the
$75,000 figure awarded should be reduced to $0 because “[it] is inconsistent and unsupported by

27

the proof.” [DN 211-1, at 45.] Rawlings contends that, due to the fact that the jury did not award
any back pay on Marshall’s termination claim, “the award of front pay is inconsistent and a new
trial…must be granted.” [Id.] Contrary to Rawlings’s contention, though, the mere fact that the
jury failed to award Marshall any back pay damages with respect to her termination claim does
not mean that the award of front pay for the same is necessarily inconsistent; in other words, that
the jury determined Marshall was not entitled to an award of back pay regarding her termination
does not mean that she was not entitled to an award of front pay either.
However, Rawlings’s alternative argument, that the award should be reduced, holds more
weight. Rawlings points to the fact that, at the time of her termination, Marshall was making
around $60,000 per year and, at the time of the verdict in this case, she was making around
$62,000 per year. [DN 176, at 112, 90.] In Rawlings’s view, this means that Marshall’s front pay
award should be $0, as she stands to make $6,000 more over the next three years (the Court
ordered that front pay could extend for three years from the date of the verdict) at her new job
than she would have at Rawlings. [DN 211-1, at 46.] Importantly though, Rawlings’s argument
fails to take into account the fact that the jury found that Marshall had been unlawfully demoted
from Team Lead to analyst prior to being unlawfully terminated. Thus, the fact that her annual
pay as an analyst at the time of her termination was $60,000 does not ultimately bear upon the
analysis. Marshall was making around $75,120 when she was unlawfully demoted from Team
Lead to analyst, a figure which represents $13,120 more per year than her current $62,000-peryear salary. Accordingly, while the Court finds the jury’s award of front pay in the amount of
$75,000 to be “clearly excessive,” see Gregory, 220 F.3d at 443, Rawlings’s proffered amount of
$0 is also clearly inadequate. Rather, the logical amount of front pay Marshall should have been
awarded in the three allowable years beginning from the date of the verdict is $39,360, which

28

represents the difference in her average pay as a Team Lead at Rawlings and her current salary,
multiplied by three years in accordance with this Court’s allowance of front pay.
Third, Rawlings contends that, absent the grant of a new trial, the Court should strike the
punitive damages award, arguing that Marshall “did not request punitives in her pleadings and
she did not present sufficient proof at trial….” [DN 211-1, at 47.] In support, Rawlings states the
following: Marshall “changed the entire theory of her damages on Thursday, March 29th – the
evening before the case was submitted to the jury. Neither the Complaint nor the First Amended
Complaint requested punitive damages,” “[p]unitive damages were not discussed when the
parties mediated the case in November 2017,” and Marshall’s proposed jury instructions omitted
any reference to punitive damages. [Id.]
However, this Court already ruled, in limine, that Marshall would be allowed to present
evidence of punitive damages. [See DN 146.] At that time, the Court specifically noted that in a
pre-settlement conference email in September 2017, Marshall listed as her categories of damages
the following: wages (front pay and back pay), emotional distress, and punitive damages. [See
DN 109-1, at 3 n.1.] The Court also explained that, regardless of her failure to specifically denote
the precise amount of punitive damages she sought, pretrial, the Court would permit her to
proceed to trial with punitive damages as an option. [See DN 146, at 38-39 (explaining that the
failure to disclose a precise numerical value “was substantially justified or harmless given the
difficulty that comes with trying to calculate these amorphous categories of damages before
trial” (compiling cases).] Thus, having already dispensed with Marshall’s failure to include the
category of punitive damages in her original or amended complaint, the Court sees no reason
now to change course and rejects Rawlings’ argument on this front.

29

Rawlings also argues that “the Court should reduce the punitive damages award to $0
since the proof at trial does not support that Rawlings acted ‘with malice or reckless indifference
to [Marshall’s] federally protected rights under the ADA.’” [DN 211-1, at 48 (quoting DN 189,
Instruction No. 10.] Essentially, Rawlings contends that Marshall failed to adduce evidence at
trial that any of her supervisors or Mr. Rawlings explicitly recognized their duties under the
ADA, and then acted contrary to those duties anyway. [Id.] Conversely, Marshall argues that the
testimony of Kathy Barrens, currently Rawlings’ Chief Financial Officer, laid out the fact that all
Rawlings employees, including Mr. Rawlings, understand their obligations under federal law,
and that Debra Ford, a Human Resources Generalist, testified to company policy concerning
harassment, and that the evidence at trial showed a reckless indifference to those policies. [DN
227, at 42-44.] Specifically, Marshall points to Mr. Rawlings’ failure to conduct an investigation
into Marshall’s allegations of harassment and Rawlings’ failure to adjust performance metrics for
Marshall during her periods of intermittent FMLA leave. [Id. at 44.] Rawlings frames the
evidence which was adduced at trial and to which Marshall cites in her response as going more
towards retaliatory motives and potential FMLA violations rather than disability discrimination
under the ADA. [DN 236, at 25.]
Of course, the presentation of evidence in employment cases such as this one often times
involves a considerable amount of overlap, and this case has been no exception. And it should
not be forgotten that Marshall proceeded on, and prevailed on, the Cats Paw theory. After
reviewing the relevant portions of the Record, the Court is satisfied that ample evidence was
adduced at trial from which the jury could have concluded that punitive damages were warranted
under the circumstances, especially when viewing all evidence in the light most favorable to
Marshall, as this Court is required to do. See Gregory, 220 F.3d at 443. Under this standard, the

30

Court cannot say that the award of punitive damages was “clearly excessive, resulted from
passion, bias or prejudice,” or that it was “so excessive…as to shock the judicial conscience of
the Court.” Id. Accordingly, the award must stand.
E. Conclusion
For the reasons stated in this Memorandum Opinion, and the Court being otherwise
sufficiently advised; IT IS HEREBY ORDERED that Rawlings’ Motion, [DN 211], is
DENIED.
IT IS FURTHER ORDERED that the jury’s award of front pay to Marshall on her
claim of ADA discrimination relating to her termination SHALL be reduced to $39,360.
IT IS SO ORDERED.

August 7, 2018

cc:

Counsel of Record

31