Pegues v. Mississippi State Veterans Home et al

Filing 105

ORDER denying 99 Motion for Judgment as a Matter of Law and/or NewTrial. Signed by District Judge Michael P. Mills on 10/30/2017. (lpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
TAMISHA PEGUES
VS.

PLAINTIFF
CIVIL ACTION NO. 3:15CV121-MPM-JMV

MISSISSIPPI STATE VETERANS HOME

DEFENDANT

ORDER
This cause comes before the court on plaintiff Tamisha Pegues’ Motion for Judgment as a
Matter of Law or, Alternatively, for a New Trial. Following a trial held on September 11-12,
2017, the jury rendered a defense verdict in this case, finding that defendant Mississippi State
Veterans Home (“MSVH”) did not fail to reasonably accommodate plaintiff’s disability and that
it did not otherwise terminate her on the basis of that disability. In addressing plaintiff’s motion,
this court will concentrate primarily upon plaintiff’s argument that it failed to properly instruct
the jury, since it has already made clear its view that this case involved fact issues which were
appropriate for resolution by a jury. Indeed, this court made its view in this regard clear in
denying plaintiff’s motion for a judgment as a matter of law at trial, and there is nothing in
plaintiff’s post-trial motion which has caused it to alter its view in this regard. Moreover,
defendant has thoroughly briefed this issue in its response to the motion for new trial, and
plaintiff declined to file a reply to that response. This court therefore concludes that the jury’s
verdict was supported by the evidence in this case, for essentially the reasons stated in
defendant’s brief, and it now turns to the jury instruction issues raised by plaintiff.

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In instructing the jury in this case, this court relied upon the Fifth Circuit’s quite thorough
model jury instructions, which it incorporated largely verbatim. Pegues notes that, during the
jury instruction conference, she submitted an additional proposed jury instruction, P-10, which is
nowhere to be found in the lengthy model jury instructions prepared by the Fifth Circuit. Jury
instruction P-10 would have informed the jury as follows:
The Court instructs the jury that when an employer knows an employee has a
disability, law requires the employer to engage in a good faith discussion or
“interactive process” with employee before terminating the employee. The
purpose of this discussion is to determine if there is any accommodation that can
be made in order to keep from terminating the employee.
This Court refused this instruction, which was truly a “last minute” addition to plaintiff’s
proposed instructions.
This court notes that plaintiff failed to include P-10 in the proposed instructions which
she submitted during the week before trial, and it was not even submitted at the informal jury
instruction conference between the parties’ counsel and this court’s law clerk which was held
after the first day of trial. This court routinely utilizes such informal conferences as a means of
narrowing and clarifying the legal issues for its consideration, since the actual jury instruction
conference on the record provides a poor forum for the consideration of new legal authorities and
arguments. In order to benefit from this process, however, it is incumbent upon the parties to not
wait until the last minute to submit their proposed instructions. It also seems clear that
submitting eleventh-hour proposed jury instructions has a great potential to ambush opposing
counsel, who would have had no reason to suspect that new legal authorities or instructions
would be proposed at the formal conference.
In light of the foregoing, this court believes that, as a procedural matter, plaintiff was
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clearly derelict in submitting P-10. Moreover, the question arises as to why, if P-10 truly
represents a required part of the jury instructions in a Rehabilitation Act case, the Fifth Circuit
did not see fit to include it in its proposed instructions. In arguing that this instruction was
legally required, plaintiff writes that:
On September 12, 2017, District Judge Sharion Aycock wrote in Head v. City of
Columbus Light & Water Dep’t, 2017 WL 4015657 (N.D. Miss. 2017):
The Fifth Circuit has held that “ADA compliance requires an
employer to engage in an interactive process with an employee
who requests an accommodation for his disability to ascertain what
changes could allow him to continue working.” Dillard v. City of
Austin, Texas, 837 F.3d 557, 562 (5th Cir. 2016) (citing E.E.O.C.
v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014) (. “In other
words, employer and employee must work together in good faith,
back and forth, to find a reasonable accommodation.” Id. (citing
EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 621 (5th Cir.
2009). The Fifth Circuit has further characterized this process, as
“ongoing” and “reciprocal,” “not one that ends with the first
attempt at accommodation, but one that continues when the
employee asks for a different accommodation or where the
employer is aware that the initial accommodation is failing and
further accommodation is needed.” Id. at 562-63 (internal
quotations omitted).
Head, 2017 WL 4015657, at *9.
In the present case, Defendant gave Pegues no opportunity to discuss an
accommodation. Defendant immediately suspended Pegues upon her making the
complaint about being required to work outside of light duty, and abolished light
duty work altogether when it terminated her. Similar to Cummins v. Curo Health
Servs., LLC, 2017 WL 473896, *3 (N.D. Miss. 2017), “[b]ased on the record in
this case, it appears that [defendant] terminated any interactive process or flexible
dialogue with the Plaintiff when they fired her.”
[Plaintiff’s brief at 5-6]. Thus, there are five cases which are either cited or indirectly referenced
in plaintiff’s briefing on this issue, namely Head, Dillard, LHC, Chevron Phillips and Cummins.
One thing these five decisions have in common is that they all involved either summary
judgment rulings or the appeals of such rulings. None of the cited decisions were rendered in the

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jury instruction context, and none of them suggest that a court should instruct a jury regarding the
“interactive” nature of the accommodation process.
Crucially, defendant notes in its briefing that the Fifth Circuit has issued an opinion
which directly refutes plaintiff’s arguments on this issue. In Picard v. St. Tammany Par. Hosp.,
423 F. App’x 467, 470 (5th Cir. 2011), the Fifth Circuit affirmed a district court’s rejection of a
jury instruction that a violation of the ADA occurs when an employer fails to engage in an
“interactive process.” In so ruling, the Fifth Circuit wrote that:
We have observed that the “ADA’s regulations state that ‘it may be necessary for
the [employer] to initiate an informal, interactive process with the qualified
individual with a disability in need of the accommodation’ in order to craft a
reasonable accommodation.” Loulseged v. Akzo Nobel Inc., 178 F. 3d 731, 735
(5th Cir. 1999) (quoting 29 C.F.R. § 1630.2(o)(3)). Of course, that which “may
be” necessary is not universally required. In fact, [Plaintiff’s] proposed per se rule
is ill-suited to consideration of the interactive process. We have stated that “there
may be some situations in which the reasonable accommodation is so obvious that
a solution may be developed without either party consciously participating in an
interactive process.” Id. at 736. This is so because the “interactive process is not
an end i[n] itself—it is a means to the end of forging reasonable
accommodations.” Id. “The process must thus be viewed on a case-by-case
basis.” Id.
Picard, 423 F. App’x at 470. As noted previously, plaintiff declined to file a reply brief on her
motion for new trial, and this court believes that defendant’s citation to Picard certainly calls for
such a reply, if it is to somehow be considered distinguishable authority in this case.
Picard aside, this court granted a quite lengthy instruction on the issue of reasonable
accommodation, which was taken largely verbatim from the Fifth Circuit’s model instruction
11.10. Specifically, Jury Instruction 2 informed the jury as follows:
JURY INSTRUCTION NO. 2
Plaintiff Tamisha Pegues claims that the Mississippi Veterans Home failed
to reasonably accommodate her disability in violation of the Rehabilitation Act.
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The Veterans Home denies Pegues’ claims and contends Pegues was not a
“qualified individual” and that the Veterans Home could not reasonably
accommodate her disability.
The law requires an employer to make reasonable accommodations for an
employee’s disability. Once again, the parties have stipulated to the following:
1.
Pegues had a ruptured disc;
2.
Such a ruptured disc substantially limited Pegues’ ability to perform
physical tasks and thus constituted a disability;
3.
The Veterans Home knew of Pegues’ disability;
Therefore, to succeed in this case, Pegues must prove each of the following by a
preponderance of the evidence:
4.
Pegues could have performed the essential functions of the position of
Direct Care Worker when the Veterans Home terminated her employment
if she had been provided with strictly light duty assignments;

5.
6.
7.

Pegues requested an accommodation, namely strictly light duty
assignments.
Providing this accommodation would have been reasonable; and
The Veterans Home failed to provide such reasonable
accommodation.

[discussion of qualification issue deleted].
The term “accommodation” means making modifications to the work
place that allow a person with a disability to perform the essential functions of the
job, to attain the level of performance available to similarly situated employees
who are not disabled, or to enjoy equal benefits and privileges of employment as
are enjoyed by similarly situated employees who are not disabled.
A “reasonable” accommodation is one that could reasonably be made
under the circumstances. It may include, but is not limited to: (a) making existing
facilities used by employees readily accessible to and usable by individuals with
disabilities; or (b) job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification of equipment or
devices, appropriate adjustment or modifications of examinations, training
materials, or policies, the provision of qualified readers or interpreters and other
similar accommodations for individuals with disabilities. There may be other
reasonable accommodations.
The Veterans Home claims that Pegues’ requested accommodation would
have imposed an undue hardship on it. An employer need not provide a
reasonable accommodation to the known limitations of a qualified employee or
applicant if the employer proves that the accommodation would impose an undue
hardship on its business operations. The employer has the burden of proving by a
preponderance of the evidence that the accommodation would have imposed an
undue hardship.
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An “undue hardship” is an action requiring the employer to incur
significant difficulty or expense. Factors to be considered in determining whether
the assignment of strictly light duty work to Pegues would cause an undue
hardship include: (a) the nature and cost of the accommodation; (b) the overall
financial resources of Veterans Home involved in the accommodation, the number
of persons employed there, the effect on expenses and resources, or the impact
otherwise on the Veterans Home’s operation; (c) the overall financial resources
of the employer, the overall size of the business with respect to the number of
employees, and the number, type, and location of its facilities; and (d) the type of
operation of the employer, including the composition, structure, and functions of
the workforce, the impact of the assignment of strictly light duty work to Pegues
on the operation of the Veterans Home, including the impact on the ability of
other employees to perform their duties, and any other relevant factors supported
by the evidence.
Fifth Circuit Pattern Jury Instruction 11.10.
[Jury Instruction 2]. Thus, this court instructed the jury at great length regarding the reasonable
accommodation issue, using the language and factors that the Fifth Circuit considered to be
appropriate for jurors’ consideration in this context. The question arises as to why, if specifically
instructing the jury regarding an “interactive process” is required, the Fifth Circuit did not
include that language in its model instructions.
In the court’s view, the interactive nature of the reasonable accommodation process is
largely implied in the language of Model Instruction 11.10, since it includes a non-exhaustive
discussion of the options available to accommodate disabilities, and it also requires a
consideration of the hardships which such accommodations might work upon the employer’s
operations. In denying plaintiff’s proposed instruction P-10, this court did not necessarily
believe that the instruction misstated the law per se, but its long-settled practice is to rely upon
Fifth Circuit model instructions in cases where such instructions are available. Of course, it is
often necessary to supplement these model instructions in a particular case, but this court regards
P-10 as dealing with the essential nature of the reasonable accommodation process, which is
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already set forth in great detail in 11.10. In denying P-10, this court chose to simply defer to the
Fifth Circuit’s own language regarding the proper jury instructions in this context, and nothing in
plaintiff’s motion causes it to reconsider that decision.
That brings this court to an additional reason why it declined to grant P-10, namely
because it believed it to be unduly peremptory in nature. Indeed, it appeared to this court that,
focusing solely on the date in which plaintiff was terminated, P-10 could be read as suggesting
that, rather than firing her, defendant should have engaged in some vague and unspecified
“process” with her, regardless of what had already transpired in her employment. Counsel for
plaintiff essentially admitted the peremptory nature of the instruction in the jury instruction
conference, stating that:
MR . MAY : Your Honor , I believe that that's going to gild the lily a bit with
regard to the reasonable accommodation claim, the failure to accommodate claim.
THE COURT : It sounds like a directed verdict on that issue.
MR . WAIDE : In light of the evidence, it is, Your Honor.
[Jury Instruction Conference transcript at 9].
At the time of the jury instruction conference, this court had already denied plaintiff’s
motion for directed verdict, and it had no intention of indirectly granting such a motion via a jury
instruction which plaintiff’s counsel admitted was peremptory in nature. Rather, this court’s
intent was simply to allow the jury to decide the question of whether defendant reasonably
accommodated plaintiff’s disability, and the Fifth Circuit’s model instructions more than
adequately instructed the jurors regarding the law to apply in making this determination.
In addition to the foregoing, this court finds the jury’s verdict to have been supported by
one reasonable interpretation of the evidence presented at trial, namely that, prior to plaintiff’s

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termination, defendant had, in fact, tried to accommodate her disability. In particular, this court
concludes that the jury could have found such reasonable accommodation in defendant’s actions
in assigning plaintiff to light duty, before deciding that this experiment was not working out and
that it needed personal care assistants who were able to engage in tasks such as heavy lifting.
Indeed, as noted in defendant’s version of facts set forth in the pretrial order:
Pegues strained her back on December 4, 2013, while helping care for a resident
and returned to work per her physician's orders with no restrictions on December
11, 2013. She worked as a DCW with no restrictions until January 31, 2014,
when a friend or relative of Pegues brought a note from her physician stating
Pegues was not able to return to work as a result of treatment for injuries
sustained on December 4, 2013. Pegues then remained off work per her
physician's orders until he released her to return to work with light duty
restrictions on February 24, 2014. Defendant May, the Administrator of the
Oxford Veterans Nursing Home, identified some tasks that Pegues could perform
temporarily in order to accommodate her light duty restrictions. Once Pegues
returned to work, her supervisor, Faye Miller, made several verbal complaints to
May that Pegues was refusing to perform various tasks requested of her, even
though they were well within her light duty restrictions.
[Pretrial order at 4].
This court concludes that, based on the evidence presented at trial, the jury could have
reasonably determined that attempts at reasonable accommodation had already occurred at the
time plaintiff was fired, in the form of the failed experiment in granting her light duty. The
language of P-10, however, would have instructed the jury that defendant was required to
conduct a “good faith discussion or interactive process,” and this language can be read as
suggesting that an additional “sit down” meeting or mediation of some sort was required. This
court does not believe that this is necessarily the case, and it thus appears that P-10 might have
confused the jury by unduly focusing its attention upon the formalities of the accommodation
process in this case, rather than the substance of that process. As quoted previously, the Fifth
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Circuit wrote in Picard that the “proposed per se rule is ill-suited to consideration of the
interactive process” and that a jury should instead make a case-by-case determination of this
issue. Id. It thus seems clear that plaintiff’s motion for judgment as a matter of law and/or new
trial is not supported by Fifth Circuit law, and it will therefore be denied.
It is therefore ordered that plaintiff’s motion for judgment as a matter of law and/or new
trial is denied.
SO ORDERED, this the 30th day of October, 2017.

/s/ Michael P. Mills
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI

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