Dilley v. Supervalu, Inc.

• Citation: 296 F.3d 958
• Decision Date: 15 July 2002
• Docket Number: No. 00-1217.,No. 00-1201.,No. 00-1200.,00-1200.,00-1201.,00-1217.
• Parties: Donald E. DILLEY, Plaintiff-Appellee and Cross-Appellant, v. SUPERVALU, INC., Defendant-Appellant and Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

296 F.3d 958

Donald E. DILLEY, Plaintiff-Appellee and Cross-Appellant, v. SUPERVALU, INC., Defendant-Appellant and Cross-Appellee.

No. 00-1200.

No. 00-1201.

No. 00-1217.

United States Court of Appeals, Tenth Circuit.

July 15, 2002.

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Steven J. Merker (Jessica L. Harshbarger and Fatina N. Purdie with him on the briefs), Dorsey & Whitney, LLP, Denver, CO, for Defendant-Appellant and Cross-Appellee.

Jeffrey Menter, Littleton, CO, for Plaintiff-Appellee and Cross-Appellant.

Before TACHA, Chief Judge, EBEL and GARTH,^* Circuit Judges.

EBEL, Circuit Judge.

This is a case brought under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., in which each party has raised several challenges to the proceedings below. Plaintiff Appellee and Cross Appellant Donald Dilley brought suit against Defendant Appellant and Cross Appellee SuperValu, Inc., alleging that SuperValu wrongfully terminated him from his job as a truck driver because of a lifting restriction imposed by doctors after Dilley injured his back. The district court rejected SuperValu's request for judgment as a matter of law and allowed the case to go to the jury, which found that SuperValu had unlawfully discriminated against Dilley. SuperValu argues that Dilley's ADA claim fails as a matter of law because he is not a qualified individual under the statute, his requested accommodation was unreasonable, and he refused SuperValu's offered accommodation. SuperValu also challenges the adequacy of the district court's jury instructions. In his cross-appeal, Dilley challenges the district court's reduction of the jury's back pay award, and argues that the district court's dismissal of Dilley's punitive damages claim and denial of his motion for reinstatement were erroneous. We AFFIRM the district court's order in all regards, except for its denial of Dilley's motion for reinstatement. Because the district court based its denial order on an incorrect characterization of the law, we VACATE and REMAND on that issue alone.

BACKGROUND

Dilley worked as a truck driver for SuperValu for approximately eighteen years. During the course of his employment, he developed back problems and eventually became subject to a sixty-pound lifting restriction imposed by his physician. SuperValu contends that, in light of this restriction, Dilley was unable to perform the essential functions of his truck-driving position, but that he is not disabled under the ADA because he is not substantially limited in any major life activity. Dilley argues that he could have been reasonably accommodated by being assigned to routes where heavy lifting was not required. SuperValu also contends that it offered Dilley two alternative positions within his lifting restriction, but he refused both. Dilley responds that he was merely invited to apply for one of the positions, and the other position was not even vacant. According to Dilley, neither position was remotely comparable to his job as a truck driver.

The jury found that Dilley was disabled under the ADA, that SuperValu intentionally discriminated against him by terminating him, and that SuperValu failed to accommodate him. The jury did not specify whether Dilley was actually disabled or was simply "regarded as" disabled by SuperValu. The jury awarded Dilley $115,268 in back pay and $25,001.43 in other compensatory damages. The district court considered the jury's award of back pay damages to be an advisory verdict, and substituted its own award of $43,968 for back pay because of a failure to mitigate. After various post-judgment motions, this appeal followed.

DISCUSSION

I. Sufficiency of the Evidence

Dilley contends that SuperValu cannot contest the sufficiency of the evidence on appeal because, while SuperValu moved for judgment as a matter of law ("JMOL") at the close of Dilley's case, SuperValu failed to renew its motion at the close of all the evidence. Failure to renew the motion precludes SuperValu from challenging the sufficiency of the evidence on appeal. Davoll v. Webb, 194 F.3d 1116, 1136 (10th Cir.1999). Under such circumstances, we will review only for "plain error constituting a miscarriage of justice." First Sec. Bank v. Taylor, 964 F.2d 1053, 1057 (10th Cir.1992) (applying plain error review where party raised issue in motion for judgment notwithstanding the verdict, but not in earlier motion for directed verdict); see also Fredrick v. District of Columbia, 254 F.3d 156, 160-62 (D.C.Cir. 2001) (reviewing sufficiency of evidence under "manifest miscarriage of justice" standard where party failed to renew JMOL motion); Williams v. City of Kansas City, 223 F.3d 749, 753 (8th Cir.2000) (reviewing sufficiency of evidence for plain error where party failed to renew JMOL motion); Patel v. Penman, 103 F.3d 868, 878 (9th Cir.1996) (reviewing sufficiency of evidence for plain error where party failed to raise issue in directed verdict motion); Price v. City of Charlotte, 93 F.3d 1241, 1249 (4th Cir.1996) (same); Hammond v. T.J. Litle & Co., 82 F.3d 1166, 1171-72 (1st Cir.1996) (same); MacArthur v. Univ. of Tex. Health Ctr., 45 F.3d 890, 897 n. 8 (5th Cir.1995) (reviewing sufficiency of evidence for plain error where party failed to renew JMOL motion).

SuperValu acknowledges this general rule, but cites Aguinaga v. United Food & Commercial Workers Int'l Union, 993 F.2d 1463, 1470 (10th Cir.1993), for the notion that "technical precision" with the rule is not required "as long as the trial court [was] aware of the movant's position." SuperValu contends that it put the district court on notice of its position during the charging conference, when SuperValu objected to the inclusion of "lifting" in the instructions on major life activities. SuperValu cites to the charging conference transcript, but failed to include the transcript in the record, so we are unable to verify its characterization.

Even assuming that SuperValu objected to the "lifting" instruction, whether the jury received such an instruction is of limited relevance to the resolution of SuperValu's sufficiency of the evidence arguments. The record reveals that this case turns on "working" as a major life activity, not "lifting." SuperValu does not claim to have made any objection to the inclusion of "working" in the jury instructions, or to have otherwise challenged the sufficiency of the evidence related to "working" after its initial JMOL motion. Even if SuperValu put the district court on notice that it viewed the evidence as insufficient to support an instruction on lifting, that did not put the district court on notice of the broader challenges now raised by SuperValu pertaining to "working." Because SuperValu failed to renew its JMOL motion, we review only for plain error.

In reviewing a JMOL ruling, we construe the record in the light most favorable to Dilley, the nonmoving party, keeping in mind that judgment as a matter of law is appropriate "only if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party's position." Davis v. United States Postal Serv., 142 F.3d 1334, 1339 (10th Cir.1998) (internal quotation marks omitted). This stringent standard of review is further heightened under plain error review, which "has been limited to errors which seriously affect the fairness, integrity or public reputation of judicial proceedings." Glenn v. Cessna Aircraft Co., 32 F.3d 1462, 1464 (10th Cir.1994) (internal quotation marks omitted). After reviewing the record and the briefs in this case, we conclude that the district court did not commit plain error by allowing Dilley's ADA claim to go to the jury.²

II. Whether Dilley's requested accommodation was reasonable.

SuperValu argues that Dilley's requested accommodation — returning to a truck driver position — "was unreasonable as a matter of law because it would have required SuperValu to violate the terms of its collective bargaining agreement with the union representing its warehouse employees." Because the driving positions are subject to a seniority system, SuperValu contends that Dilley could have been "bumped" from any of the driving positions for which he might have been qualified, and that keeping him in the position would have violated the collective bargaining agreement. Dilley insists that his seniority made such displacement unlikely.

The ADA requires an employer to make reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability. 42 U.S.C. § 12112(b)(5)(A). SuperValu is correct that this provision does not require an employer to provide an accommodation that would violate a bona fide seniority system under the terms of a collective bargaining agreement. But it is the direct violation of a seniority system that has been held unreasonable under the governing case law. See, e.g., U.S. Airways, Inc. v. Barnett, ___ U.S. ___, ___, 122 S.Ct. 1516, 1519, 152 L.Ed.2d 589 (2002) ("[T]o show that a requested accommodation conflicts with the rules of a seniority system is ordinarily to show that the accommodation is not `reasonable.'"); Aldrich v. Boeing Co., 146 F.3d 1265, 1272 n. 5 (10th Cir. 1998) ("[H]ad Boeing transferred Aldrich to any of the last three disputed jobs ... it would have violated the seniority provisions of the collective bargaining agreement."); Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir.1995) ("[P]laintiffs' collective bargaining agreement prohibits their transfer to any other job because plaintiffs lack the requisite seniority.").

Here, by contrast, there was only a potential violation of the seniority system. SuperValu does not contend that Dilley lacked the seniority required to be placed in a non-lifting driver position. Rather, SuperValu contends that the seniority system would be violated if a more senior employee later requested to be placed in Dilley's new position, and SuperValu nevertheless...