Norris v. Sysco Corp.

• Decision Date: 12 July 1999
• Docket Number: 97-16716,ALLIED-SYSCO,Nos. 97-15404,97-15447,s. 97-15404
• Citation: 191 F.3d 1043
• Parties: (9th Cir. 1999) BRENDA NORRIS, Plaintiff-Appellee, v. SYSCO CORPORATION, a Texas corporation,and Allied-Sysco Food Services, Inc., a California corporation, Defendant-Appellant. BRENDA NORRIS, Plaintiff-Appellant, v. SYSCO CORPORATION, a Texas corporation, Defendant andFOOD SERVICES, INC., a California corporation, Defendant-Appellant. BRENDA NORRIS, Plaintiff-Appellee, v. SYSCO CORPORATION, a Texas corporation, Defendant andFOOD SERVICES, INC., a California corporation, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1043

191 F.3d 1043 (9th Cir. 1999)

BRENDA NORRIS, Plaintiff-Appellee, v. SYSCO CORPORATION, a Texas corporation,and Allied-Sysco Food Services, Inc., a California corporation, Defendant-Appellant.

BRENDA NORRIS, Plaintiff-Appellant, v. SYSCO CORPORATION, a Texas corporation, Defendant and ALLIED-SYSCO FOOD SERVICES, INC., a California corporation, Defendant-Appellant.

BRENDA NORRIS, Plaintiff-Appellee, v. SYSCO CORPORATION, a Texas corporation, Defendant and ALLIED-SYSCO FOOD SERVICES, INC., a California corporation, Defendant-Appellant.

Nos. 97-15404, 97-15447, 97-16716

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted July 12, 1999--San Francisco, California

Filed September 14, 1999

[Copyrighted Material Omitted]

Richard E. Levine, Levine & Skigen, San Francisco, California, for the defendant-appellant-cross-appellee.

Daniel R. Bacon, Law Offices of Daniel Ray Bacon, San Francisco, California, for the plaintiff-appellee-cross appellant.

Appeals from the United States District Court for the Northern District of California. Wayne D. Brazil, Magistrate Judge, Presiding, D.C. No. CV-94-00433-WDB

Before: Charles Wiggins, Ferdinand F. Fernandez, and Sidney R. Thomas, Circuit Judges.

FERNANDEZ, Circuit Judge:

Brenda Norris brought this action against Allied-Sysco Food Services, Inc. She alleged that, among other things, she had been subjected to discrimination in violation of Title VII, 42 U.S.C. SS 2000e-2000e-15, and the Americans with Disabilities Act, 42 U.S.C. SS 12101-12213. After the jury rendered a verdict with special interrogatories, the district court entered judgment against Allied. Allied now appeals on grounds that the district court erred in failing to grant it judgment as a matter of law or a new trial,¹ and also erroneously granted attorney's fees against it. For her part, Norris appeals the district court's decision to exclude certain evidence. We affirm.

BACKGROUND

Norris was employed by Allied as a non-foods specialist. That was a traveling sales position in which she was required to assist Allied's marketing associates in selling food related supplies and equipment, a job that necessitated driving long distances and occasionally lifting and moving heavy objects.

Working for Allied was never a picnic because the company did engage in practices that unlawfully discriminated against women, or at least the Department of Labor's Office of Federal Contract Compliance Programs was led to believeso. Allied settled that matter by, among other things, offering Norris a promotion to a higher position. At any rate, the jury determined that Allied had, nevertheless, discriminated against her by failing to promote her because she was a woman. That determination is not questioned on appeal. Unfortunately for Norris, the jury also determined that Allied would have failed to promote her even if it had no discriminatory motive. In short, it accepted Allied's mixed motive defense.² But that was not the full extent of her problems with Allied which, it seems, did not fully understand its ADA obligations either.

In September of 1994 Norris injured her back on the job, and the very next month she broke her knee in a fall that was not related to her job. She underwent surgery on her knee in November of 1994, and ultimately underwent back surgery in April of 1996. Norris left work on a disability leave in September of 1994. She periodically submitted notes to Allied from her physician which stated that she would not be able to return to work for some time into the future; the period varied from several weeks to two months. However, while on leave she did contact Allied for the purpose of discovering what options or programs it afforded to aid disabled employees, and she also asked about returning to work with accommodations of some kind. She believed that she could return to work, if her driving and other duties were limited in some way. Allied did not really respond to those overtures or take any steps to offer any possible accommodations. In fact, it had a policy which indicated that a person could only return to work if an unrestricted work release from Allied's designated industrial specialists was obtained. Although the policy was not quite as rigid as it looked on paper, it did exist.³ The jury was satisfied that Allied had not offered Norris a reasonable accommodation, even though she had requested it.

Intertwined with all of the other events were Norris' applications for and receipt of disability benefits under California's State Disability Insurance at first, and then under Allied's private long-term disability plan, which was insured by Principal Mutual Life Insurance. The application for benefits forms submitted to the insurers indicated that Norris was disabled from doing her own job and any other job, but she, and her physician, have explained that they took all of that to mean that she could not engage in her regular occupation at that time. Their position was that Norris could have returned to work had some reasonable accommodation been offered to her. Again, the jury agreed that none was and found that Allied was at fault.

On the basis of the jury's ADA determination, judgment in the amount of $300,000 was entered against Allied, and the district court further undertook to award attorney's fees to Norris on both the Title VII claim and the ADA claim. In ill prepared requests, Norris asked that those fees be set at $658,075.

The district court was quite dissatisfied with the form of the requests, which it dubbed as inadequate and, in various ways, excessive, duplicative, based on improperly maintained records, not always based on contemporaneously maintained records, and patently unreasonable. Nevertheless, it was apparent to the court that a good deal of valid work had gone into this hard fought case, and by devoting a great deal of its own time to the determination of fees, while drawing on its own extensive experience and the information that was properly before it, the court determined that fees should be awarded in the amount of $247,840. The court, incidently, also reduced Norris' costs and expense request from $58,795.82 to $24,107.63.

These appeals by both Allied and Norris followed.

JURISDICTION AND STANDARDS OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. SS 1331 and 1343. We have jurisdiction pursuant to 28 U.S.C. S 1291.

We review a district court's determination regarding a claim that the jury's verdict is internally inconsistent de novo. See Wilks v. Reyes, 5 F.3d 412, 415 (9th Cir. 1993). That is to say, we must decide for ourselves whether the jury's responses to special interrogatories can be harmonized or whether they are so inconsistent that the verdict should be disregarded and the case remanded for a new trial. See Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 119, 83 S. Ct. 659, 666, 9 L. Ed. 2d 618 (1963).

We generally review orders awarding attorney's fees for abuse of discretion. See Hensley v. Eckerhart , 461 U.S. 424, 437, 103 S. Ct 1933, 1941, 76 L. Ed. 2d 40 (1983); Hall v. Bolger, 768 F.2d 1148, 1150 (9th Cir. 1985)."However, we review de novo any elements of legal analysis which figure in the district court's decision." Corder v. Gates, 104 F.3d 247, 249 (9th Cir. 1996); Hall, 768 F.2d at 1150. We review the district court's evidentiary determinations, including those under Federal Evidence Rule 403, for abuse of discretion. See Masson v. New Yorker Magazine, Inc., 85 F.3d 1394, 1399 (9th Cir. 1996); Coursen v. A.H. Robins Co., Inc., 764 F.2d 1329, 1333 (9th Cir. 1985).

DISCUSSION

In the principal appeal in this case, Allied strikes out at the judgment against it on two major grounds. It did manage to avoid most of Norris' allonges, but its parries were insufficient to ward off her ADA thrust. It seeks to eliminate the touch of that thrust by asserting that it was actually a foul (the jury's answers were inconsistent) and that she should not have been able to make the thrust in the first place (judicial estoppel or other preclusion). In a separate appeal, it also attacks the attorney's fees which followed that touch and the graze it suffered from the deflected touch of her gender discrimination claim. We consider each of Allied's assertions in turn.

A. The Jury's Inconsistent Positions

Allied earnestly claims that pursuant to Federal Rule of Civil Procedure 50 it should have been granted judgment as a matter of law, or at least a new trial, because there was a fatal inconsistency in the jury's answers to special interrogatories presented to it.⁴ We disagree.

It is certainly true that "[i]f a jury answers special interrogatories and the answers cannot be reconciled, a new trial must be granted." Tanno v. S.S. President Madison Ves, 830 F.2d 991, 992 (9th Cir. 1987). But it is also true that we do not find inconsistency lightly. Rather:

We are bound to find the special verdicts consistent if we can do so under a fair reading of them. When faced with a claim that verdicts are inconsistent, the court must search for a reasonable way to read the verdicts as expressing a coherent view of the case, and must exhaust this effort before it is free to disregard the jury's verdict and remand the case for a new trial.

Toner v. Lederle Labs., 828 F.2d 510, 512 (9th Cir. 1987) (citations omitted).

In this case, the district court took that injunction seriously, as do we. When the jury's responses are vetted in that way, we, like the district court, are satisfied that the jury could reasonably have decided that in light of the demonstrated policies of Allied, a company which had a rather poor grasp on its ADA obligations, there was no precise refusal to reinstate Norris.⁵ At the same time, it could reasonably have decided that there was no offer of a reasonable accommodation to her, even though she requested accommodation.⁶ This was a careful, even meticulous, jury which deliberated for seven...