Gruttemeyer v. Transit Auth.

• Decision Date: 14 April 2022
• Docket Number: 20-2333, No. 20-3576
• Citation: 31 F.4th 638
• Parties: John GRUTTEMEYER, Plaintiff - Appellee v. TRANSIT AUTHORITY, of the City of Omaha, a Nebraska corporation, doing business as Metro Area Transit, Defendant - Appellant Transportation Workers Union of America, Local 223, Defendant John Gruttemeyer, Plaintiff - Appellee v. Transit Authority, of the City of Omaha, a Nebraska corporation, doing business as Metro Area Transit, Defendant - Appellant Transportation Workers Union of America, Local 223, Defendant
• Court: U.S. Court of Appeals — Eighth Circuit

31 F.4th 638

John GRUTTEMEYER, Plaintiff - Appellee

v.TRANSIT AUTHORITY, of the City of Omaha, a Nebraska corporation, doing business as Metro Area Transit, Defendant - Appellant

Transportation Workers Union of America, Local 223, Defendant

John Gruttemeyer, Plaintiff - Appellee

v.Transit Authority, of the City of Omaha, a Nebraska corporation, doing business as Metro Area Transit, Defendant - Appellant

Transportation Workers Union of America, Local 223, Defendant

No. 20-2333

No. 20-3576

United States Court of Appeals, Eighth Circuit.

Submitted: November 16, 2021

Filed: April 14, 2022

Alexis S. Mullaney, Attorney, Sodoro & Mooney, Omaha, NE, Terry A. White, Carlson & Burnett, Omaha, NE, for Plaintiff-Appellee.

Chloe L. Kuehner, Ryan M. Kunhart, Gretchen L. McGill, Dvorak Law Group, Omaha, NE, for Defendant-Appellant.

Before BENTON, KELLY, and ERICKSON, Circuit Judges.

KELLY, Circuit Judge.

John Gruttemeyer claimed his former employer, the Transit Authority of the City of Omaha (Metro), discriminated against him based on disability and retaliated against him for protected activity when it terminated him in 2016. A jury found in Gruttemeyer's favor under the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA) and awarded damages. After trial, the district court¹ denied Metro's motion for judgment as a matter of law or a new trial and granted Gruttemeyer's motion for attorney's fees. Metro appeals and, having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I.

John Gruttemeyer began working for Metro in 2011 as a full-time bus operator and transferred to a position as a bus fueler and washer in May 2015. Gruttemeyer was a member of the Transportation Workers Union of America, AFL-CIO, Local 223 (the Union) for the duration of his employment with Metro. He was elected vice president of the Union in November 2015 and served in that role until March 1, 2016. Gruttemeyer had previously worked for the Omaha Fire Department for 23 years. He took a one-year medical leave because of stress and depression and then retired from the fire department with a disability pension in July 2010.

In a letter dated July 6, 2016, Metro fired Gruttemeyer. Gruttemeyer filed suit in federal district court alleging that Metro terminated his employment because of his disability—bipolar disorder, anxiety disorder, and depression—and in retaliation for Gruttemeyer helping a co-worker who claimed age discrimination by Metro.² Gruttemeyer brought a federal disability discrimination claim under the ADA, 42 U.S.C. § 12112, and a retaliation claim under the ADEA, 29 U.S.C. § 623(d). He also brought state law claims for retaliation and disability discrimination under the Nebraska Fair Employment Practices Act, Neb. Reb. Stat. § 48-1104, that were coextensive with the corresponding federal claims. The district court denied Metro's motion for summary judgment, and the case proceeded to trial.³

The jury returned a verdict in Gruttemeyer's favor on his disability discrimination claim and his retaliation claim. The jury awarded damages of $114,540.94 in lost wages and benefits and $25,000 in other damages on the ADA claim and did not award any additional damages for the ADEA claim. Metro appeals.

II.

First, Metro appeals two evidentiary rulings. We review the district court's decision to admit or exclude evidence for abuse of discretion, Bady v. Murphy-Kjos, 628 F.3d 1000, 1002–03 (8th Cir. 2011), including decisions concerning the admission of expert testimony, Bradshaw v. FFE Transp. Servs. Inc., 715 F.3d 1104, 1107 (8th Cir. 2013). "A district court enjoys wide discretion in ruling on the admissibility of proffered evidence, and evidentiary rulings should only be overturned if there was a clear and prejudicial abuse of discretion." Quigley v. Winter, 598 F.3d 938, 946 (8th Cir. 2010) (quoting U.S. Salt, Inc. v. Broken Arrow, Inc., 563 F.3d 687, 689–90 (8th Cir. 2009) ).

A.

The first evidentiary ruling at issue involves the testimony of Francene Buda Dardon. On July 25, 2019, Gruttemeyer disclosed "Francene Buda Dardon, LMHP," as a potential witness, identifying her as his "Counselor/Therapist" and indicating she would "testify regarding treatment, observation and diagnosis of Mr. Gruttemeyer's disability." Gruttemeyer had also identified Buda Dardon in response to Metro's interrogatories, and during his deposition Gruttemeyer identified Buda Dardon as his therapist who diagnosed him.

On February 6, 2020, Metro sought to exclude or limit Buda Dardon's testimony. Metro argued Buda Dardon's position as a Licensed Mental Health Practitioner (LMHP) did not allow her to diagnose major mental illness because, under Nebraska law, only a Licensed Independent Mental Health Professional (LIMHP) is qualified to independently diagnose major mental illness, while an LMHP is not. See Neb. Stat. §§ 38-2113(2), 38-2116. When Metro took Buda Dardon's trial deposition on February 20, however, it discovered that she was in fact an LIMHP and therefore qualified to testify about Gruttemeyer's diagnoses. The district court denied Metro's motion to exclude Buda Dardon's testimony.

At trial, Metro again objected to Gruttemeyer presenting Buda Dardon's testimony. First, Metro argued that her testimony was expert testimony, yet Gruttemeyer had not disclosed her as an expert. Second, Metro argued it was a prejudicial unfair surprise that it only learned Buda Dardon was an LIMHP at her trial deposition. Metro asserted prejudice because it was prepared to depose Buda-Dardon as an LMHP, expecting an admission that she could not diagnose Gruttemeyer. The district court overruled the objection, finding Buda Dardon was not testifying as an expert witness and that Metro had not shown prejudice justifying exclusion of her testimony.

Under Rule 26, non-retained experts, including treating healthcare providers such as Buda Dardon, are subject to less stringent disclosure requirements than a retained expert. Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698, 702 (8th Cir. 2018). "[P]arties must disclose the identity of non-retained experts who may testify at trial and disclose ‘the subject matter on which the witness is expected to present’ expert opinion testimony and ‘a summary of the facts and opinions to which the witness is expected to testify.’ " Id. (quoting Fed. R. Civ. P. 26(a)(2)(C) ). If a treating physician will testify about matters outside the realm of treatment such as causation of a condition, however, disclosure requirements are triggered. See id. at 706 (citing Brooks v. Union Pac. R.R. Co., 620 F.3d 896, 899 (8th Cir. 2010) ).

When Gruttemeyer identified Buda Dardon as a potential witness, he indicated she would testify "regarding treatment, observation and diagnosis of Mr. Gruttemeyer's disability." Gruttemeyer never suggested that she would testify about causation of his disability or otherwise reach topics outside his treatment, and Metro acknowledged as much at trial. The district court did not abuse its discretion in admitting Buda Dardon's testimony without expert disclosure because she testified as a treating practitioner only.

As to Metro's second objection, it is undisputed that Gruttemeyer incorrectly disclosed Buda Dardon's professional qualifications and that Metro therefore did not learn that she was an LIMHP until the trial deposition. A district court "has wide discretion to fashion a remedy or sanction as appropriate for the particular circumstances of the case" when a party fails to provide information or identify a witness in compliance with Rule 26(a). Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008). A court should consider, among other things, "the reason for noncompliance, the surprise and prejudice to the opposing party, the extent to which allowing the information or testimony would disrupt the order and efficiency of the trial, and the importance of the information or testimony." Id.

Here, the contents of Buda Dardon's testimony—treatment, observation, and diagnosis of Gruttemeyer's mental illnesses—were disclosed at the beginning of the case and remained unchanged. Gruttemeyer provided what he thought was accurate information at the time of initial disclosures but failed to recognize that under Nebraska law, Buda Dardon would not have been able to diagnose mental illness. Metro made no effort to verify its defense theory before taking her trial deposition, despite indicating that it would obtain Buda Dardon's records and despite Gruttemeyer providing contact information and signing a release. Further, Metro could have requested a continuance upon learning of Buda Dardon's true qualifications but instead chose to take the risk of proceeding with the trial deposition and to trial. The district court weighed these particular circumstances as required, see id., and decided to admit the testimony. Given that exclusion of evidence "is a harsh penalty and should be used sparingly," id. (quoting ELCA Enters. v. Sisco Equip. Rental & Sales, 53 F.3d 186, 190 (8th Cir. 1995) ), we find no abuse of discretion in the district court's decision.

B.

Metro also sought to exclude evidence of Gruttemeyer's diagnosis of major depressive disorder

because he did not explicitly include that condition as a separate disability in his complaint; the complaint identified only bipolar disorder. The district court denied Metro's request because Metro was on notice through discovery and depositions that Gruttemeyer's claim involved several interrelated diagnoses. Metro maintains the district court abused its discretion by improperly allowing Gruttemeyer to change the factual premise of his claim and argues that we should reverse in reliance on EEOC v. Lee's Log Cabin, Inc., 546 F.3d 438 (7th Cir. 2008).

In Lee's Log Cabin, the Seventh Circuit affirmed a district court's decision to prevent the EEOC from substituting AIDS for HIV as the factual basis of an ADA claim. 546 F.3d 438, 440 (7th Cir. 2008). The district court...