Mullins v. Mayor and City Council Of Baltimore
MEMORANDUM OPINION. Signed by Magistrate Judge Timothy J. Sullivan on 8/8/2017. (bc, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MAYOR AND CITY COUNCIL OF
Case No. TJS-14-2698
Jimmy Mullins (“Mullins”) filed this lawsuit against the Mayor and City Council of
Baltimore (“the City”) for alleged violations of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq. Mullins claimed that the City wrongfully excluded him from overtime
work because of his disability. He also claimed that the City failed to provide a reasonable
accommodation for his disability. At the conclusion of a three-day jury trial, the jury returned a
verdict in favor of the City. Now pending before the Court is Mullins’ Motion for New Trial
(“Motion”) (ECF No. 105). Having considered the submissions of the parties, I find that no
hearing is necessary. See Loc. R. 105.6. For the reasons stated below, Mullins’ motion will be
On January 24, 2017, the parties jointly filed a proposed pretrial order (ECF No. 65). As
required by Local Rule 106.2, the parties each submitted a “brief statement of facts that each
[party] proposed to prove in support of that [party’s claims or defenses], together with a listing of
the separate legal theories relied upon in support of each claim [or affirmative defense].” Loc. R.
106.2. Pertinent to the Motion, Mullins’ brief statement of facts contained the following
statement: “Defendant failed to allow the Plaintiff to use mechanical lifts which were available in
the work area for the infrequent times that the Plaintiff needed to access the roof of a truck that
was being repaired.” (ECF No. 65 at 2.) In parallel, the City’s brief statement of facts contained
the following statement:
Plaintiff claimed that an electrical lift would vitiate the need for him to climb
and/or bend and thus would enable him to perform the essential functions of his
position. An electrical lift however would not have assisted Plaintiff in getting
into and out of large vehicles, nor would such a lift have enabled Plaintiff to
perform the often-required task of bending, kneeling and crawling once on top of
the hood or roof of a vehicle.
(Id. at 4.) In addition, the City also listed the following legal theories in the proposed pretrial
2. Requiring the City to purchase a mechanical lift would have imposed an undue
financial burden on the City.
3. Plaintiff’s requested accommodation, a lift, would not have assisted him in
performing his essential job functions because once he used the lift to escalate
alongside of or in front of the vehicle, he would not be able to perform the work
needed on the hood or roof of the vehicle.
(Id. at 5.) Each party listed photos of mechanical lifts to be offered into evidence at trial. (ECF
No. 65 at 10, 12.) On March 6, 2017, after conducting a pretrial conference, the Court entered a
Pretrial Order, which provided that “the parties’ proposed pretrial order (ECF No. 65) is
approved as the Court’s Pretrial Order. . . .” (ECF No. 88.)
A three-day jury trial concluded on March 9, 2017. The Verdict Form provided to the
jury (see ECF No. 96) contained the following questions:
Do you find that Plaintiff has proven by a preponderance of the evidence:
4. That Plaintiff requested an accommodation?
5. That Plaintiff’s requested accommodation was reasonable?
6. That Defendant denied Plaintiff’s request for accommodation?
During the course of the jury’s deliberations, the jury submitted a note to the Court
asking to clarify whether the “accommodation” referenced in questions 4, 5, and 6 of the Verdict
Form referred to “1) the lift only, 2) the lift, ability to hold the ladder for coworkers, step ladder,
and the milk crate (all four), [or] 3) Any of the four types of accommodation.” (ECF No. 95.)
The Court heard arguments from the parties regarding the appropriate response to the jury’s note
(see ECF No. 104) and ultimately responded to the jury that the “accommodation” referenced in
questions 4, 5, and 6 referred to “#1 the lift only.” (Id.)
The jury ultimately determined that although Mullins requested an accommodation from
his employer, his requested accommodation was not reasonable, and that even if the City had
granted his requested accommodation, he could not have performed all the essential functions of
his position. (ECF No. 96 at 1-2.) Accordingly, the Court entered judgment in favor of the City
on March 10, 2017. (ECF No. 103.)
Rule 59(a) allows the Court to grant a new trial “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).
“Because every litigant is entitled to one fair trial, not two, the decision of whether to grant or
deny a motion for a new trial lies within the discretion of the district court.” Wallace v. Poulos,
861 F. Supp. 2d 587, 599 (D. Md. 2012) (internal citations and quotation marks omitted); see
also King v. McMillan, 594 F.3d 301, 314 (4th Cir. 2010). The court must exercise its discretion
to grant a new trial only if the verdict “(1) is against the clear weight of the evidence, (2) is based
upon evidence which is false, or (3) will result in a miscarriage of justice, even though there may
be substantial evidence which would prevent the direction of a verdict.” Wallace, 861 F. Supp.
2d at 599 (citing Knussman v. Maryland, 272 F.3d 625, 639 (4th Cir. 2001)). Such a motion
should be granted only when it “is reasonably clear that prejudicial error has crept into the record
or that substantial justice has not been done.” Pathways Psychosocial v. Town of Leonardtown,
Md., 223 F. Supp. 2d 699, 706 (D. Md. 2002). “When considering a motion for a new trial, the
trial judge may take into account his evaluation of the weight of the evidence produced by the
respective parties.” Bingman v. Baltimore Cty., Maryland, No. MJG-13-2678, 2017 WL 367555,
at *2 (D. Md. Jan. 25, 2017) (citing Wyatt v. Interstate Ocean and Transport Co., 623. F.2d 888
(4th Cir. 1980)). “[E]videntiary errors are harmless if the Court can ‘say with fair assurance, after
pondering all that happened without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the errors.’” Callahan v. Toys "R" US-Delaware, Inc.,
No. JMC-15-2815, 2017 WL 2191578, at *1 (D. Md. May 18, 2017) (quoting Taylor v. Virginia
Union Univ., 193 F.3d 219, 235 (4th Cir. 1999)).
In his Motion, Mullins argues that he is entitled to a new trial for three reasons. (ECF No.
105-1.) First, he argues that the Court’s response to the jury note was improper. Second, he
contends that the Court should not have instructed the jury regarding the City’s affirmative
defense of undue hardship. Third, he argues that the jury’s verdict is against the weight of the
evidence. I will address each of these arguments below.
The Jury Note
Mullins first argues that the Court’s response to the jury note was improper. Mullins
contends that during trial he elicited evidence of having requested accommodations besides the
use of a mechanical lift, including a waiver of the climbing restriction and the ability to hold a
ladder for other employees. (ECF No. 105-1 at 2-9.) By instructing the jury that the only
accommodation requested was the use of a mechanical lift, he argues, the Court improperly made
a finding of fact reserved for the jury. (Id.)
Mullins’ argument fails because the only accommodation that was ever at issue in this
case, from the time that the parties’ proposed pretrial order was filed until the jury returned its
verdict, was the use of a mechanical lift. As discussed above, the Court’s Pretrial Order, which
adopted the parties’ proposed pretrial order, limited Mullins to his theory that the City denied his
request to use a mechanical lift as an accommodation.
“Pretrial orders are designed to expedite litigation and eliminate surprise by framing the
issues remaining for trial.” Perfection-Cobey Co., Div. of Harsco Corp. v. City Tank Corp., 597
F.2d 419, 420 (4th Cir. 1979). A party’s “[f]ailure to identify a legal issue worthy of trial in the
pretrial conference or pretrial order waives the party’s right to have that issue tried.” McLean
Contracting Co. v. Waterman Steamship Corp., 277 F.3d 477, 480 (4th Cir. 2002) (citing to Fed.
R. Civ. P. 16, advisory notes which state, in part, “[C]ounsel bear a substantial responsibility for
assisting the court in identifying the factual issues worthy of trial. If counsel fail to identify an
issue to the court, the right to have the issue tried is waived.”). A pretrial order “controls the
subsequent course of the action” and courts may restrict parties’ “proof at trial to the issues set
forth in the pretrial order.” 6 Wright & Miller, Federal Practice & Procedure, §§ 1526, 1527 (3d
In this case, the parties’ proposed pretrial order stated the accommodation that Mullins
requested: the use of a mechanical lift. This came as no surprise to the Court because throughout
this case, Mullins’ ability to use a mechanical lift and the reasonableness of this accommodation
was the central issue in dispute. Mullins’ failure to include any other requested accommodation
besides use of a mechanical lift in the proposed pretrial order prevented him from changing his
legal theory during the course of the trial (or at the conclusion of the trial, while the jury was
deliberating). See McLean, 277 F.3d at 480. Where, as here, the parties make representations
regarding the facts that they will attempt to prove and the legal theories upon which they will
rely, the parties may not “complain when the trial court takes them at their word.” Genereux v.
Raytheon Co., 754 F.3d 51, 59 (1st Cir. 2014). Mullins was limited to proving his claims based
on his theory that his requested accommodation of using a mechanical lift was reasonable. His
attempts to enlarge his theory now and during the jury’s deliberations are improper. See
Genereux, 754 F.3d at 59 (“That theory having failed, they cannot now disavow their earlier
decision and attempt to change horses midstream in hopes of finding a swifter steed.”)
The Court appropriately responded to the jury’s question because the only
accommodation that Mullins requested that was at issue in the trial was the use of a mechanical
lift.1 “It is the responsibility of the trial judge to provide the jury with sufficient instruction to
enable it to assess the evidence within the proper legal framework and to reach a rational
verdict.” United States v. Parker, 903 F.2d 91, 101 (2d Cir. 1990). And in providing sufficient
instruction, trial judges have “considerable discretion in determining how to respond to
communications indicating that the jury is experiencing confusion.” Id.; see also Horne v.
Owens-Corning Fiberglas Corp., 4 F.3d 276, 284 (4th Cir. 1993).
The Court’s response to the jury’s question was appropriate. The response did not
prejudice Mullins in any way. Instead, the Court’s response clarified for the jury which issue was
in dispute so that it could reach a rational verdict. To the extent that Mullins was prejudiced by
the answer to the jury’s question, this prejudice is the direct result of his submission of a
Notably, the Court’s jury instruction regarding undue hardship directly addressed this
point. That instruction stated, in pertinent part, that “[t]he defendant has presented evidence that
granting the use of a lift as an accommodation would have constituted an undue hardship.”
proposed pretrial order that limited his case to proving that the use of a mechanical lift was the
requested accommodation at issue.2
Undue Hardship Jury Instruction
Mullins argues that the Court erred in giving Jury Instruction No. 28, which concerned
the City’s affirmative defense that Mullins’ requested accommodation would impose an undue
hardship. (ECF No. 105-1 at 9.) Jury Instruction No. 28 stated as follows:
The defendant has presented evidence that granting the use of a lift as an
accommodation would have constituted an undue hardship. An employer is not
required to provide an accommodation that will impose an undue hardship on the
operation of that employer’s business. An “undue hardship” is any accommodation
that would be unduly costly, extensive, substantial, or disruptive, or that would
fundamentally alter the nature or operation of the business. The defendant has the
burden of proving by a preponderance of the evidence that an accommodation would
constitute an undue hardship. In making this determination, you may consider the
following factors: a. the nature and cost of the accommodation; b. the size and nature
of the defendant’s business, and the financial resources available to it; and c. the
impact of the accommodation on the operation of the defendant’s business.
Mullins argues that this instruction was inappropriate because, although the City
presented evidence that the only mechanical lift available “was reserved for use by another
department,” the City “failed to muster any material evidence” that allowing Mullins to use the
lift when needed would amount to an undue hardship. (ECF No. 105-1 at 9.)
Alternatively, even if Mullins was not limited to the legal theory contained in the
Pretrial Order, his testimony centered on his request for an accommodation in the form of a
mechanical lift. (See ECF No. 104 at 4-5 (“I thought that the pertinent testimony was that . . .
Mr. Mullins knew that there were at least two other lifts in the general vicinity, the one-man lift
and the three-person lift; and that in discussions with the City, he was told to go price lifts, and
the lift price that he came up with was like $6,500, or whatever that was. And that was the
accommodation that was being discussed between Mr. Mullins and the -- at least the human
resources people for Baltimore City.”)) Mullins’ argument that he made an “implied request” for
another accommodation (see id. at 5) was not supported by sufficient evidence to warrant any
instruction to the jury on this request. For this alternative reason, as well as those other reasons
set forth in the City’s response (ECF No. 106), Mullins’ argument regarding the jury note is
District courts have “broad discretion in framing jury instructions.” Dawson v. Page, 286
F. Supp. 2d 617, 622 (M.D.N.C. 2003) (citing Teague v. Bakker, 35 F.3d 978, 985 (4th Cir.
1994)). As long as jury instructions “correctly state the law and adequately cover the issues in
the case, they are proper.” Id. (citing Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156,
1164 (4th Cir. 1986)).
The parties presented evidence at trial sufficient to allow the jury to find that allowing
Mullins to use a mechanical lift would have been an undue hardship on the City. Mullins
testified that he investigated the cost of purchasing a mechanical lift and learned that the
purchase price would be approximately $6,500.00. This evidence, combined with evidence that
the only mechanical lifts owned by the City were not available for Mullins’ use because they
were in other locations, was sufficient to warrant an instruction on undue hardship. Alternatively,
as the City notes in its response, the jury did not reach the question of whether Mullins’
requested accommodation constituted an undue hardship because it found that the
accommodation was not reasonable in the first place. (See ECF No. 106 at 7.) For these reasons,
Mullins’ argument regarding Jury Instruction No. 28 is without merit.
Weight of the Evidence
Mullins’ third argument is that “the overwhelming weight of the evidence shows that
Defendant failed to accommodate his disability.” (ECF No. 105-1 at 10.) I disagree. There was
sufficient evidence for the jury to return a verdict in favor of the City, as it did. Specifically,
there was evidence sufficient to support the jury’s findings that Mullins’ requested
accommodation of the use of a mechanical lift was not reasonable and that Mullins would not
have been able to perform the essential functions of his position even with the use of a
mechanical lift. The jury found against Mullins on both of these issues. Because the jury’s
verdict was not against the clear weight of the evidence, Mullins’ argument on this point is also
without merit. See Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485, 489 (4th Cir. 2005).
For the reasons set forth above, Mullins is not entitled to a new trial under Rule 59(a).
Accordingly, his Motion is DENIED. A separate Order follows.
August 8, 2016
Timothy J. Sullivan
United States Magistrate Judge
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