Fowler v. Westminster College of Salt Lake
Filing
255
MEMORANDUM DECISION AND ORDER denying 218 Motion for Judgment as a Matter of Law per Rule 50(b). Signed by Judge David Nuffer on 9/17/12 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
WILLIAM TRACY FOWLER,
MEMORANDUM DECISION AND
ORDER DENYING WESTMINSTER'S
MOTION FOR JUDGMENT AS A
MATTER OF LAW PURSUANT TO
F.R.C.P. 50(b)
Plaintiff,
vs.
WESTMINSTER COLLEGE OF SALT
LAKE,
Case No. 2:09-cv-591-DN
Defendant.
District Judge David Nuffer
On May 23, 2012, the jury in this matter returned a verdict in favor of Plaintiff William
Tracy Fowler on his claim for discrimination under the Americans With Disabilities Act (ADA)
against Defendant Westminster College of Salt Lake, awarding compensatory damages in the
amount of $500,000. 1 Westminster had filed a motion for judgment as a matter of law under
Fed. R. Civ. P. 50(a) at the close of Fowler's evidence. 2 The court took the Rule 50(a) motion
under advisement and submitted Fowler's discrimination claim to the jury.
On June 20, 2012, Westminster renewed its motion for judgment as a matter of law under
Fed. R. Civ. P. 50(b), arguing Fowler failed to present sufficient evidence at trial to support his
ADA discrimination claim. Specifically, Westminster argues Fowler did not establish that he
was disabled within the meaning of the ADA, he was qualified to perform the essential functions
of his job, and his termination resulted from discrimination against him by Westminster on the
basis of his disability. To prevail on his discrimination claim, Fowler was required to prove: "(1)
1
Verdict Form ("Verdict"), docket no. 194, dated May 23, 2012. The verdict has since been remitted to $300,000
pursuant to 42 U.S.C. § 1981a(b)(3)(D). Order Granting Motion for Remittitur Under 42 U.S.C. § 1981a(b)(3)(D),
docket no. 247, dated August 31, 2012.
1
he [was] a 'disabled' person under the ADA; (2) he [was] qualified to perform the essential
functions of the job in question; and (3) he was discriminated against because of his disability." 3
As outlined below, Fowler presented evidence sufficient to support the jury's verdict on
each of the elements of his ADA discrimination claim. Accordingly, Westminster's Motion for
Judgment as a Matter of Law Pursuant to F.R.C.P. 50(b) is DENIED.
STANDARD OF REVIEW
A party is entitled to judgment as a matter of law "only if the court concludes that all of
the evidence in the record . . . [reveals] no legally sufficient basis for a claim under controlling
law." 4 The court must draw all reasonable inferences in favor of the nonmoving party and may
not "weigh evidence, judge witness credibility, or challenge the factual conclusions of the jury." 5
DISCUSSION
I.
Whether Fowler was Disabled.
Under the ADA, "disability" is defined as "(A) a physical or mental impairment that
substantially limits one or more of the major life activities of [an] individual; (B) a record of
such impairment; or (C) being regarded as having such an impairment." 6 At trial, Fowler
asserted that his addiction to opiates constituted a disability under the ADA. The jury agreed. 7
Westminster argues that Fowler failed to demonstrate his addiction substantially limited
one or more of his major life activities, citing admissions by Fowler that as an addict he was still
2
Motion to Dismiss as a Matter of Law [Rule 50 FRCP], docket no. 180, dated May 17, 2012.
3
Mauerhan v. Wagner Corp., 649 F.3d 1180, 1185 (10th Cir. 2011).
4
Wagner v. Live Nation Motor Sports, Inc., 586 F.3d 1237, 1244 (10th Cir. 2009) (internal quotations omitted).
5
Id. (internal quotations omitted).
6
42 U.S.C. § 12102(2) (2005).
7
Verdict at Question No. 1.
2
able to care for himself, drive a car, perform his job, and function normally in society. 8
However, in Nielsen v. Moroni Feed Co., 9 the Tenth Circuit stated that "the mere status of being
an illegal drug user may invoke protection under the ADA." 10 The Nielsen court went on to
conclude that being "regarded as" an addict — in contrast to actually being an addict —
constitutes a disability only "if the employer perceives the disability to substantially limit a major
life activity." 11
Thus, under Nielsen, Fowler's actual addiction is presumed to have limited one or more
of his major life activities, eliminating the need for separate proof on that point. Subsequent
Tenth Circuit panels have stated differing views on Nielsen. The panel in Mauerhan v. Wagner 12
restated the Nielsen proposition that "the status of being an alcoholic or illegal drug user may
merit [ADA] protection." 13 However, in Burris v. Novartis Animal Health U.S., Inc. 14 the panel
interpreted Nielsen as having "implicitly held that drug addiction is not a per se disability" —
collapsing the two statements of Nielsen into one. 15 This court believes the distinction made by
the Nielsen court between actual addicts and individuals regarded as addicts should not be
discarded. Moreover, although it does not apply to this case, the ADA Amendments Act of 2008
modified the definition of "disability" to clarify that an ADA plaintiff who was regarded as
having an impairment need not prove the employer also perceived that the impairment interfered
with a major life activity, thereby legislatively overruling the Nielsen holding for cases arising
8
May 17, 2012 Trial Tr. 274:13-275:13.
9
Nielsen v. Moroni Feed Co., 162 F.3d 604 (10th Cir. 1998).
10
Id. at 609.
11
Id.
12
Mauerhan v. Wagner Corp., 649 F.3d 1180 (10th Cir. 2011).
13
Id. at 1185 (internal quotations omitted).
14
Burris v. Novartis Animal Health U.S., Inc., 309 Fed. Appx. 241, 250 (10th Cir. 2009) (unpublished).
15
Id. at 250.
3
after 2008. 16 In light of this later amendment, the court will not expand the Nielsen decision
beyond its stated scope with respect to pre-amendment ADA law. Moreover, Fowler did testify
that his addiction to opiates affected his ability to think and sleep, both of which have been
recognized as major life activities. 17
Accordingly, the court declines to override the jury's finding that Fowler was disabled.
II.
Whether Fowler was Qualified.
A "qualified individual with a disability" under the ADA must be able to perform the
essential functions of his job with or without reasonable accommodation. 18 Where the disability
in question is a drug addiction, an employee is not a "qualified individual with a disability" if he
is "currently engaging in the illegal use of drugs." 19 The jury was specifically asked and found
that Fowler was both disabled and qualified. 20
Westminster argues Fowler failed to establish that he was a qualified individual with a
disability because he was currently engaging in the illegal use of drugs when he was terminated.
Specifically, Westminster asserts that Fowler's admissions, and the drug test administered by
Westminster, prove that Fowler was using Carisoprodol (Soma) and Hydrocodone (LorTab) in
excess of his prescriptions and that he was using Valium without a prescription.
Even assuming that taking prescription drugs in excess of the amounts prescribed
constitutes the "illegal" use of drugs — a proposition for which Westminster has provided no
16
42 U.S.C. § 12102(3) (2012).
17
May 17, 2012 Trial Tr. 312:15-18; Aragon v. Life Quotes, Inc., No. 03CV02440, 2005 WL 1661737, at *10 (D.
Colo. Jul. 15, 2005) (thinking); Johnson v. Weld County, Colo., 594 F.3d 1202, 1218 n.10 (10th Cir. 2010)
(sleeping).
18
42 U.S.C. § 12111(8) (2005).
19
42 U.S.C. § 12114(a) (2005).
20
Verdict at Question Nos. 1 and 2.
4
authority and to which Westminster's experts could not testify21 — Fowler presented sufficient
evidence at trial to support a finding that he was not currently engaging in the illegal use of
drugs. Fowler testified that he had not taken more of anything than he was prescribed. 22 Dr.
Paul Teynor (the doctor hired by Westminster to review the results of Fowler's drug test and on
whose opinion Westminster claimed it relied to terminate Fowler) admitted that he cannot be
certain whether or not Fowler was taking more Hydrocodone than he was prescribed. 23 Dr.
Teynor did testify that Fowler had taken more Soma than he was prescribed based on the results
of Fowler's drug test. He admitted, however, that a urine test (like the one administered to
Fowler) cannot show how much of a drug was taken. 24 Fowler admitted that he at times took
three Soma in a day, which would have exceeded his two-a-day prescription. This was,
however, still within the manufacturer's recommended daily dose of three to four tablets per day,
and Dr. Teynor testified that Soma is often prescribed to be taken as needed. 25 Finally, evidence
was presented that Fowler had a prescription for Valium that was possibly filled at either Shopko
or Walgreens, but that records of these prescriptions were not available. 26 There was therefore
no evidence at trial that Fowler took more Valium than he was prescribed. 27 Drawing all
reasonable inferences in favor of Fowler, the jury reasonably concluded Fowler was not currently
engaging in the illegal use of drugs.
21
May 16, 2012 Trial Tr. 54:15-20, 63:8-10.
22
May 17, 2012 Trial Tr. 220:19-221:1, 228:5-7.
23
May 16, 2012 Trial Tr. 28:16-21. Fowler testified that he was able to take Hydrocodone without relapsing by
simultaneously taking Suboxone. May 17, 2012 Trial Tr. 195:19-24.
24
May 16, 2012 Trial Tr. 19:23-20:3.
25
May 14, 2012 Trial Tr. 17:5-9; May 16, 2012 Trial Tr. 30:1-13.
26
May 17, 2012 Trial Tr. 254:17-19; May 14, 2012 Trial Tr. 29:20-22; May 16, 2012 Trial Tr. 48:11-16.
27
See Plaintiff's Ex. No. 64.
5
Westminster also argues that Fowler did not prove he was able to perform the essential
functions of his job, citing statements made on Fowler's disability applications and Fowler's
testimony that he could not lift 50 lbs. as required by his job description. However, Fowler
testified at trial that he was able to do his job with the help of other Westminster employees, who
were able to lift boxes of paper and other heavy objects. 28 The statements in Fowler's social
security and long-term disability applications are consistent with this testimony, relating either to
Fowler's inability to lift 50 lbs. or to the physical maladies associated with two accidents that
occurred in August 2006, nearly a year after Fowler's termination. 29 The jury could have
reasonably concluded that Fowler's application for and receipt of disability benefits, which
involved substantively different disability determinations, was consistent with his claim that he
could, with reasonable accommodation, perform the essential functions of his job when he was
terminated on November 1, 2005. 30
The court will therefore not disturb the jury's finding that Fowler was a qualified
individual with a disability.
III.
Whether Fowler's Termination Was Discriminatory.
To prevail on his ADA discrimination claim, Fowler had to prove that Westminster
terminated him "because of [his] disability." 31 Westminster contends that Fowler failed to draw
a sufficient connection between his disability and his termination and that Westminster proved it
relied in good faith on the results of Fowler's drug test in terminating Fowler pursuant to its Drug
and Alcohol Use Policy. The jury disagreed, finding both that Fowler's disability was a
28
May 17, 2012 Trial Tr. 178:16-25.
29
Defendant's Ex. Nos. 42, 44, 45, 38, 39, 46, 70, 64, and 90.
30
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 807 (1999).
31
42 U.S.C. § 12112(a) (2005); Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1147 (10th Cir. 2011).
6
motivating factor in Westminster's decision to terminate him, and that Westminster did not
honestly believe and act in good faith on its stated reasons for terminating Fowler. 32
Viewed in the light most favorable to Fowler, Fowler presented evidence on which a
reasonable jury could conclude that Westminster fired him because of his opiate addiction, and
that the drug test was pretext for discrimination. 33 Fowler testified that during his rehabilitation
treatment in the summer of 2004 his supervisor and long-time friend, Richard Brockmyer,
informed him that when Fowler returned to work, their relationship would be "all business, no
friends." 34 After Fowler's return to work, Brockmyer started regularly visiting the print shop to
check on Fowler, resulting in complaints by Fowler to Steve Morgan, Brockmyer's supervisor, in
and around April 2005. 35 In June 2005, Brockmyer gave Fowler his first negative evaluation in
the 21 years Fowler had worked at Westminster, which lead to a later Performance Improvement
Plan (PIP) in September 2005. 36 Evidence was presented that Brockmyer inappropriately
changed the criteria by which Fowler was evaluated. 37 Additionally, the negative evaluation and
PIP came despite multiple glowing reviews of Fowler from other Westminster employees. 38
Then Fowler was terminated less than two months later for supposedly taking more Soma than
32
Verdict at Question Nos. 3 and 4.
33
Rivera v. City and County of Denver, 365 F.3d 912, 925 (10th Cir. 2004) (pretext can be shown by "weaknesses,
implausibilities, incoherencies, or contradictions in the employer's proffered reasons.").
34
March 17, 2012 Trial Tr. 195:25-196:18.
35
March 17, 2012 Trial Tr. 197:5-198:11; Plaintiff's Ex. No. 1. Westminster makes much of the six months
between Fowler's April 2005 written complaint and his November 1, 2005 termination. However, the temporal
proximity between protected activity and adverse employment action is tied to Fowler's retaliation claim, not his
discrimination claim. For purposes of the discrimination claim, the written complaint is one of a series of events
that the jury reasonably concluded led to Fowler's discriminatory termination.
36
Plaintiff's Ex. Nos. 8-25; Defendant's Ex. No. 2.
37
May 15, 2012 Trial Tr. 107:21-113:12, 133:20-140:13. May 16, 2012 Trial Tr. 179:15-17.
38
Plaintiff's Ex. No. 28.
7
he was prescribed based on conflicting reports, inadequate investigation, and the results from a
questionable drug test that were ultimately consistent with Fowler's lawful prescriptions. 39
This evidence formed a legally sufficient basis for the jury's finding that Fowler's
termination was discriminatory and that the drug test was a faulty pretext for discrimination.
Westminster has not met its burden for judgment as a matter of law under Fed. R. Civ. P. 50(b).
CONCLUSION AND ORDER
As the record contains evidence sufficient to support the jury's verdict in favor of Fowler
on his ADA discrimination claim,
IT IS HEREBY ORDERED that Westminster's Motion for Judgment as a Matter of Law
Pursuant to F.R.C.P. 50(b) (docket no. 218) is DENIED.
DATED this 17th day of September, 2012.
BY THE COURT:
____________________________
David Nuffer
United States District Judge
39
Memorandum Opposing Defendant's Motion for Judgment as a Matter of Law Pursuant to F.R.C.P. at 9-14, 2930, docket no. 252, filed on Sep. 6, 2012.
8
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