Jones v. United Parcel Service, Inc., 102411 FED10, 09-3275

Docket Nº:09-3275
Opinion Judge:Mary Beck Briscoe Chief Judge
Party Name:KEITH JONES, Plaintiff-Appellee, v. UNITED PARCEL SERVICE, INC., Defendant-Appellant.
Attorney:Thomas B. Weaver of Armstrong Teasdale LLP, St. Louis, Missouri (Laurence R. Tucker and Melody L. Nashan of Armstrong Teasdale LLP, Kansas City, Missouri, with him on the briefs), for Defendant-Appellant. George A. Barton, Law Offices of George A. Barton, P.C., Kansas City, Missouri (Frederick D....
Judge Panel:Before BRISCOE, Chief Judge, MCKAY, and HARTZ, Circuit Judges. HARTZ, Circuit Judge, dissenting:
Case Date:October 24, 2011
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

KEITH JONES, Plaintiff-Appellee,

v.

UNITED PARCEL SERVICE, INC., Defendant-Appellant.

No. 09-3275

United States Court of Appeals, Tenth Circuit

October 24, 2011

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. No. 2:06-CV-02143-JPO)

Thomas B. Weaver of Armstrong Teasdale LLP, St. Louis, Missouri (Laurence R. Tucker and Melody L. Nashan of Armstrong Teasdale LLP, Kansas City, Missouri, with him on the briefs), for Defendant-Appellant.

George A. Barton, Law Offices of George A. Barton, P.C., Kansas City, Missouri (Frederick D. Deay, II, Law Offices of Frederick D. Deay, II, Overland Park, Kansas, with him on the brief), for Plaintiff-Appellee.

Before BRISCOE, Chief Judge, MCKAY, and HARTZ, Circuit Judges.

Mary Beck Briscoe Chief Judge

In this diversity action, Defendant United Parcel Service, Inc. ("UPS") appeals following a jury verdict awarding Plaintiff Keith Jones ("Jones") over $2.5 million in actual and punitive damages based on UPS's retaliatory discharge in violation of Kansas common law. See Gonzalez-Centeno v. N. Cent. Kan. Reg'l Juvenile Det. Facility, 101 P.3d 1170, 1173 (Kan. 2004) (describing common law cause of action for retaliatory discharge). Jones alleged, and the jury found, that UPS terminated Jones in retaliation for filing a workers' compensation claim. UPS alleges on appeal that (1) it is entitled to judgment as a matter of law on Jones's retaliation claim; (2) the district court erred in giving two improper jury instructions; (3) it is entitled to judgment as a matter of law on Jones's claim for punitive damages; (4) the district court erred in allowing the jury to decide the amount of punitive damages; and (5) the jury's award of $2 million in punitive damages violated its federal due process rights.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm in part, reverse in part, and remand. The evidence presented supports a reasonable inference in support of Jones's retaliation claim. Therefore, we affirm the district court's conclusion that UPS is not entitled to judgment as a matter of law on Jones's retaliation claim. We also conclude that the jury instructions in this case, although not a model of clarity, were not improper and that UPS, based on the evidence presented, is not entitled to judgment as a matter of law on Jones's claim for punitive damages. We ultimately conclude the district court did not err in instructing the jury to determine the proper amount of punitive damages in this case, relying on Federal Rule of Civil Procedure 38 and its incorporation of the Seventh Amendment right to trial by jury in federal cases. This reasoning obviates the need for any Erie analysis. Finally, we conclude that the jury's $2 million punitive damage award is excessive and violates UPS's federal due process rights. We reverse and remand on this limited issue to permit Jones to choose between a new trial solely to determine punitive damages or acceptance of a remittitur to be determined by the district court.

I

Factual Background

Jones began working at the UPS Kansas City warehouse in 1985. Initially, Jones worked loading UPS delivery trucks, but in 1989 he was promoted to the position of package car driver. A package car driver delivers packages to UPS customers along a prescribed route, and as part of the job, must be able to lift packages weighing up to 70 pounds. While working as a driver, Jones suffered a series of work-related injuries. In 1991, he injured his left shoulder and underwent surgery to repair the damage. In 1993, he twisted his knee, although this injury did not require surgery. In 1996 and again in 1999, he injured his right shoulder and underwent surgery and extensive rehabilitation in order to fully recover. Jones filed workers' compensation claims for each of these injuries.

On October 6, 2003, Jones suffered his most recent work-related injury, this time to his left shoulder. Within six weeks, Jones filed a workers' compensation claim, and he began receiving workers' compensation benefits by mid-November 2003. Dr. Gary Legler, UPS's company doctor, examined Jones and concluded that he could return to work if he did not lift packages weighing more than 20 pounds and if he did not lift anything above shoulder level. Dr. Legler also referred Jones to an orthopedic specialist, Dr. Daniel Stechshulte, for further evaluation.

Dr. Stechshulte examined Jones four times during October and November of 2003. During one of his visits, Jones took a functional capacity exam ("FCE"), which tests the ability of an employee to perform a desired job. A physical therapist interpreted the results of the test and concluded that Jones could not lift 70 pounds from his waist to his shoulder or over his head. Jones took another FCE on December 4 with the same results. Based largely on these test results, Dr. Stechshulte concluded that Jones could return to work, but with the following permanent lifting restrictions: no overhead lifting over 20 pounds and no chest-to-shoulder lifting over 45 pounds.

Jones alleges that Don Lewick, UPS's labor manager, reviewed Dr. Stechshulte's work release and told Jones that he could no longer work as a package car driver because of his permanent lifting restrictions. According to Jones, Lewick also told him that he could not work in any job at UPS with his restrictions. Jones subsequently contacted his union representative, who suggested he see another doctor. On February 4, 2004, Dr. Michael Poppa examined Jones and concluded that, as of the date of his examination, Jones could return to work as a package car driver without restrictions. Dr. Poppa's medical opinion, however, did not enable Jones to return to work. Pursuant to the collective bargaining agreement ("CBA") between UPS and the union, once Jones was cleared to work by his own doctor, he had to be re-examined by Dr. Legler.

Jones returned to Dr. Legler for a second examination on February 9, 2004. During this visit, Jones provided Dr. Legler with a copy of his work release from Dr. Poppa, but he did not disclose the results of his previous FCEs or the fact that Dr. Stechshulte had imposed permanent lifting restrictions. As a part of his examination by Dr. Legler, Jones successfully performed a lift test which required him to demonstrate that he could lift 70 pounds. Following the examination, Dr. Legler released Jones to work without restrictions.

Dr. Legler sent a copy of Jones's work release to Monica Sloan, an occupational health manager in the human resources department at UPS. Her job was to "coordinate care for injured workers and to manage the disabilities of [UPS] employees." App. Vol. 8, at 1679. In that capacity, she received reports from physicians on "virtually a daily basis." Id. at 1698.

Sloan contacted Dr. Legler the same day she received Jones's work release and asked him if he was aware that Dr. Stechshulte had imposed a permanent 20-pound overhead lifting restriction on Jones in December 2003. Dr. Legler testified at trial that when he told Sloan he was unaware of Dr. Stechshulte's report, Sloan asked him "if he would . . . mind changing [his] return to work evaluation to reflect the 20 pound lift limit that Dr. Stechschulte had given [Jones]." Id. Vol. 4, at 851. Sloan testified, however, that she did not ask Dr. Legler to change his diagnosis; she simply asked him if he would review Dr. Stechschulte's work status report and the FCE evaluations and if he would "be willing to rethink the full duty release." Id. Vol. 8, at 1686-87. Following his conversation with Sloan, Dr. Legler changed Jones's work restriction to match Dr. Stechshulte's, at which point UPS again refused to permit Jones to return to work.

The following day, Jones filed a grievance with the union, alleging that UPS would not permit him to return to work despite being released by both Dr. Poppa and Dr. Legler. Add., at 209. The grievance panel directed UPS and Jones to follow the CBA's third-doctor procedure. Under the CBA, if the UPS doctor and the employee's doctor disagree, the parties must select a third doctor, "whose decision shall be final and binding." Id. at 35. The CBA further states that "[n]either the [e]mployer nor the Union [may] attempt to circumvent the decision" of the third doctor. Id. Shortly after the grievance panel issued its ruling, the parties selected Dr. Frederick Buck to examine Jones.

In May 2004, Dr. Buck examined Jones, watched him successfully complete basic lifting and strength tests, and concluded that another FCE would help him better evaluate Jones's abilities and limitations. Dr. Buck called Sloan and asked permission to perform another FCE, but Sloan stated that UPS would not pay for an FCE because Jones had received one the previous December.1Sloan also informed Dr. Buck that his evaluation of Jones was supposed to be based on Jones's prior medical records, rather than his current physical examination of Jones. Dr. Buck testified that he thought Sloan's request was unusual because he had never been asked to provide a medical opinion for an employer based solely on an employee's past medical records. Nonetheless, Dr. Buck followed Sloan's instructions and, using only "the medical records provided, " concluded that Jones could not perform the essential functions of a package car driver. Id. at 211.

In June 2004, Jones filed a second grievance with the union, this time alleging that his visit to Dr. Buck had been "unfair" because UPS would not pay for another FCE and because UPS "didn't want Dr. Buck's opinion" regarding Jones's current physical state. Id. at 214. After holding a hearing on the matter, the grievance panel instructed Jones to see Dr. Buck again in order to "comply with [its previous] decision to implement the third party procedure." Id. at 217.

Jones returned to Dr. Buck in August 2004. However, when Dr. Buck met with Jones again, Dr. Buck was still under the...

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