Lusk v. Va. Panel Corp., Civil Action No. 5:13–cv–00079.

CourtUnited States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
Writing for the CourtMICHAEL F. URBANSKI, District Judge.
Citation96 F.Supp.3d 573
PartiesLeslie Faye LUSK, Plaintiff, v. VIRGINIA PANEL CORPORATION, Defendant.
Docket NumberCivil Action No. 5:13–cv–00079.
Decision Date06 March 2015

96 F.Supp.3d 573

Leslie Faye LUSK, Plaintiff

Civil Action No. 5:13–cv–00079.

United States District Court, W.D. Virginia, Harrisonburg Division.

Signed March 6, 2015.

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Timothy Earl Cupp, Shelley Cupp Schulte, P.C., Harrisonburg, VA, Lauren Elizabeth Fisher, Tim Schulte, Shelley Cupp & Schulte PC, Richmond, VA, for Plaintiff.

Andrew Baugher, Cathleen P. Welsh, Lenhart Pettit, Harrisonburg, VA, Thomas G. Bell, Jr., Timberlake Smith Thomas & Moses, PC, Staunton, VA, for Defendant.


MICHAEL F. URBANSKI, District Judge.

Before the court are two post-trial motions: plaintiff's motion for attorneys' fees, Dkt. No. 129, and defendant's motion for new trial, to alter or amend judgment, and to stay the execution of judgment, Dkt. No. 142. The court heard oral argument on the motions on November 20, 2014. For the reasons that follow, the court will deny defendant's motion for a new trial and to stay execution of judgment, but will amend the judgment pursuant to Federal Rule of Civil Procedure 60(b)(5) to reflect the unfortunate reality that the remedy of reinstatement is prospectively no longer equitable. Given the failure of this equitable remedy, the court will impose an additional six months of front pay. The court will grant plaintiff's motion for attorney's fees in the amount determined herein.


Plaintiff Leslie Lusk (“Lusk”) brought this action against Virginia Panel Corporation (“VPC”) alleging that it violated her rights under the Family Medical and Leave Act (“FMLA”) through both interference and retaliation, as well as the Americans with Disabilities Act (“ADA”). At trial, the court dismissed Lusk's ADA claims. See Jury Trial Minutes, Dkt. No. 95. As to the FMLA claims, the jury returned a verdict in favor of Lusk on the

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interference claim and in favor of VPC on the retaliation claim. Lusk sought $47,354 in back pay, but the jury awarded her only $25,258.14. See Verdict Form, Dkt. No. 99. The court ordered VPC to reinstate Lusk as well.

VPC previously filed a post-trial motion asking the court for judgment as a matter of law pursuant to Rule 50(b) because the jury's verdicts were inconsistent.See Dkt. No. 112. The court denied that motion on two grounds. First, the court found the jury verdicts as to the FMLA interference and retaliation claims were not inconsistent. The court noted that the interference claim and retaliation claim presented different burdens of proof for Lusk in that the interference claim did not have an intent requirement while the retaliation claim did require a showing of intent. Furthermore, the jury instructions explicitly told the jury that they could “disbelieve the reason [VPC] gave for terminating Lusk and still not find in her favor on the retaliation claim.” Mem. Op., Dkt. No. 125, at *4 (“ ‘If you disbelieve the reason [VPC] has given for its reason to terminate Ms. Lusk, you may infer, but are not required to infer, that [VPC] terminated Ms. Lusk because of her FMLA protected activity.’ ”) Second, the court ruled that even if the verdicts were inconsistent, it would be improper to grant VPC's Rule 50(b) motion because the proper remedy for an inconsistent jury verdict is a new trial, not judgment as a matter of law. Id. at *6–7.

Lusk subsequently moved for an award of attorneys' fees pursuant to the FMLA, 29 U.S.C. § 2617, and asks for $311,265.00 for fees and $9,602.04 for costs. VPC opposes and claims Lusk should receive $46,000.00 to cover fees and costs. VPC also moves for a new trial pursuant to Rule 59(a) ; to alter or amend the court's August 11, 2014 Order reinstating Lusk to her former position under Rule 59(e) ; and to stay enforcement of the court's August 11 Order pursuant to Rule 62 of the Federal Rules of Civil Procedure. The court will address VPC's motions first and then address the issue of attorneys' fees.


As to its Rule 59(a) motion, VPC raises the same arguments, verbatim, that it made in its prior motions for judgment as a matter of law on the FMLA interference claim. The court denied the motion for judgment as a matter of law as to the interference claim at trial, Dkt. No. 95, and denied the defendant's first post-trial motion for judgment as a matter of law as well, Dkt. No. 126. As additional grounds to support the present motion, VPC asserts that plaintiff's evidence as to her ADA claim presented at trial was irrelevant to the FMLA claim and may have affected the jury's determination of the FMLA issue. Thus, VPC requests a new trial limited to just the FMLA claim. As to its Rule 59(e) motion, VPC asks the court to reconsider its reinstatement decision because Lusk's former position was no longer available when the court ordered her reinstatement, and her presence at the workplace has resulted in “extreme hostility, animosity [and] lack of a productive and amicable working relationship....” Finally, VPC moves under Rule 62 to stay execution of the court's August 11 judgment pending the disposition of its motions.

Lusk, in opposition, argues VPC's motion for a new trial does not present grounds for the court to grant the motion because there is no allegation the verdict was against the clear weight of the evidence, that the verdict was based on false evidence, or that the verdict will result in a miscarriage of justice. Furthermore, VPC's contention that the jury was sympathetic to the plaintiff based on the evidence

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presented as to the ADA claims does not support granting a new trial. In response to VPC's motion to reconsider reinstatement, Lusk argues VPC's motion is based on inadmissible “new evidence” because VPC has not shown that the evidence was either unknown until after trial or newly discovered and it could not have been discovered and produced at trial. Because the evidence VPC wishes to use as the basis for the court's reconsideration of reinstatement came into existence after trial, it cannot be the basis of a Rule 59(e) motion. In addition, Lusk raises an estoppel argument because VPC is on record as describing Lusk as experienced and capable of performing her job and that her position was available as of August 26, 2014. Finally, according to Lusk, post-litigation employer-employee friction does not amount to a manifest injustice to warrant the court's reconsideration of reinstatement. As to VPC's motion to stay execution of the judgment, Lusk argues that VPC cannot prevail because it failed to address (1) its likelihood of success on the merits; (2) whether it would be irreparably harmed absent a stay; (3) whether a stay will substantially injure Lusk; and (4) where the public interest lies.


For the reasons stated on the record at the November 20 hearing and the court's prior Memorandum Opinion, Dkt. No. 125, the court will deny VPC's motion for a new trial under Rule 59(a). The jury heard the evidence, was properly instructed, and reached its verdict. Given the court's instructions, the court cannot conclude that the jury was somehow inappropriately influenced by evidence introduced on the ADA claim when it reached its verdict on the FMLA interference claim.


VPC founds its motion to reconsider Lusk's reinstatement on newly discovered evidence, i.e., events that took place following Lusk's reinstatement at VPC. VPC argues that these subsequent events demonstrate that reinstatement is not appropriate in this case.

On a party's motion brought under either Rule 59 or Rule 60, “the standard governing relief on the basis of newly discovered evidence is the same....” Boryan v. United States, 884 F.2d 767, 771 (4th Cir.1989). On such a motion, the movant must show:

(1) the evidence is newly discovered since the judgment was entered; (2) due diligence on the part of the movant to discover the new evidence has been exercised; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence is such that is likely to produce a new outcome if the case were retried, or is such that would require the judgment to be amended.

Id. The moving party may not rely on evidence available to it prior to entry of judgment and must show that the new evidence “ ‘was newly discovered or unknown to it until after the hearing, [and] also that it could not with reasonable diligence have discovered and produced such evidence at the hearing.’ ” Id. (quoting Frederick S. Wyle P.C. v. Texaco, Inc., 764 F.2d 604, 609 (9th Cir.1985) ).

While the Fourth Circuit has not explicitly distinguished between “new evidence” and “newly discovered evidence,” many other circuits have. Those circuits generally limit “newly discovered evidence” to evidence that existed at the time of trial and not evidence that comes into existence after entry of judgment. See Betterbox Comm'ns, Ltd. v. BB Techs., Inc., 300 F.3d 325, 331 (3d Cir.2002) ; Alicea v. Machete Music, 744 F.3d 773, 780 (1st Cir.2014) (citing Betterbox );

96 F.Supp.3d 579

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