Gargano v. Plus One Holdings, Inc.

• Court: District Court, S.D. California
• Decided: April 24, 2024
• Docket: 3:22-cv-00735
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 22-cv-00735-DMS-MMP 11 AMBER GARGANO,

12 Plaintiff, ORDER DENYING PLAINTIFF’S v. MOTION FOR NEW TRIAL 13 PLUS ONE HOLDINGS, INC., 14 Defendant. 15

16 17 Pending before the Court is Plaintiff’s motion for new trial. (ECF No. 101.) A 18 jury trial on Plaintiff’s claims for disability discrimination resulted in a verdict in favor of 19 Defendant, Plus One Holdings, Inc. (“Defendant” or “Plus One”) on all counts. Plaintiff 20 Amber Gargano (“Plaintiff” or “Gargano”) now moves for a new trial arguing that the 21 verdict runs against the clear weight of the evidence and that Defendant’s misconduct at 22 trial impacted the jury’s ability to reach a fair verdict. Defendant filed an opposition 23 (ECF No. 107) to which Plaintiff replied (ECF No. 108). For the reasons set forth below, 24 the Court denies Plaintiff’s motion. 25 I. BACKGROUND 26 A. Factual Background 27 The following is a summary of the full factual background as laid out in the 28 Court’s previous order. See Gargano v. Plus One Holdings, Inc., No. 22-CV-00735- 1 DMS-MMP, 2023 WL 4768182, at *1–3 (S.D. Cal. July 26, 2023) (order denying 2 defendant’s motion for summary judgment). On April 18, 2022, Plaintiff filed a 3 complaint raising six claims: (1) disability discrimination in violation of California 4 Government Code § 12940(a); (2) failure to accommodate disability in violation of 5 California Government Code § 12940(m); (3) failure to engage in interactive process in 6 violation of California Government Code § 12940(n); (4) retaliation in violation of 7 California Government Code § 12940(h); (5) failure to prevent discrimination and 8 retaliation in violation of California Government Code § 12940(k); and (6) wrongful 9 termination in violation of public policy. (See generally Compl., ECF No. 1-3.) From 10 2014 to 2020, Plus One employed Plaintiff as a fitness instructor, exercise specialist, and 11 personal trainer in San Diego. In October 2020, Plaintiff suffered severe abdominal pain 12 and was diagnosed with diverticulitis, which required her to undergo surgery and take an 13 unpaid leave of absence from work. Plaintiff completed the required paperwork and Plus 14 One approved her unpaid leave of absence through December 14, 2020. On December 9, 15 2020, Plaintiff updated her direct supervisor that she likely could not return to work until 16 mid-January 2021. On December 23, 2020, she provided another update to her 17 supervisor that she likely could not return until February 2021 or later. Plaintiff offered 18 no further updates to her employer on her health condition and expected return date until 19 April 15, 2021—after she was terminated. 20 Plus One claimed it emailed Plaintiff on February 10, 2021, to seek additional 21 information from Plaintiff and her plans to return to Plus One. Plaintiff asserted she 22 never received the email because it was sent to her work email address to which she 23 lacked access. On March 18, 2021, Plus One mailed a physical letter to Plaintiff 24 requesting additional medical documentation to extend Plaintiff’s leave. Plaintiff 25 asserted she never received the letter and a copy of the letter produced in discovery 26 revealed it lacked Plaintiff’s apartment number. On March 30, 2021, Plus One mailed a 27 second letter to Plaintiff informing her that her employment had been terminated, which 28 Plaintiff again claimed she never received. A copy of this second letter produced in 1 discovery also shows it lacked Plaintiff’s apartment number. 2 Then, on April 15, 2021, Plaintiff sent a text message to her former direct 3 supervisor to check in. The supervisor informed Plaintiff that Plus One had repeatedly 4 tried to contact Plaintiff by email and mail. Later that day, a member of Plus One’s 5 Human Resources (“HR”) department called Plaintiff and Plaintiff explained again to her 6 that she had not received any email or mail communication from Plus One. On July 15, 7 2021, Plaintiff informed Plus One’s HR personnel that she could return to work in 8 August. On August 6, 2021, and again on August 27, 2021, Plus One informed Plaintiff 9 that the company was reviewing Plaintiff’s request to return to work. Thereafter, 10 Plaintiff and Plus One had no further communications. 11 B. Procedural History and Trial 12 On May 20, 2022, Plus One removed this action from state court to federal court 13 based on diversity jurisdiction. (ECF No. 1.) Discovery concluded in February 2023, 14 (see Am. Scheduling Order ¶ 1, ECF No. 16), and Plus One filed its motion for summary 15 judgment on March 13, 2023, (ECF No. 19). On July 26, 2023, the Court denied Plus 16 One’s motion for summary judgment in full, (ECF No. 39), and the case proceeded to 17 jury trial on all claims. Before trial, the Court granted the Parties’ joint motion to exclude 18 evidence, which included the following provision: 19 Defendant is precluded from entering evidence on, eliciting testimony regarding, or referencing collateral source benefits obtained by Plaintiff 20 from the California Employment Development Department, including 21 unemployment benefits and disability benefits. 22 (Order dated Aug. 3, 2023, at 1, ECF No. 49.) 23 The Court held a five-day jury trial on August 21–28, 2023. Evidence presented at 24 trial established the following sequence of events: 25 • September 8, 2020: Plaintiff enrolled in IT classes as a “backup plan” before the 26 onset of her disability due to her expressed concern about the future of the fitness 27 industry amid the COVID-19 pandemic. She admitted she had applied for IT positions to 28 supplement her income due to her reduced hours and earnings in the fitness industry. 1 • October 6, 2020: Plaintiff began to feel sick and experience gastrointestinal issues. 2 • October 27, 2020: Plaintiff commenced her leave of absence due to diverticulitis. 3 Patrick Hargrave, her direct supervisor, requested that Plaintiff keep Plus One updated. 4 • November 12, 2020: Plaintiff requested that her medical providers extend her off- 5 work period through mid-January. 6 • November 17, 2020: Plaintiff submitted her medical leave forms to Plus One from 7 her Plus One email address. In the forms, Plaintiff attested that she was totally disabled 8 and specified an expected return to work date of December 14, 2020. Plus One granted 9 her request for unpaid leave through December 14, 2020. 10 • December 8, 2020: Hargrave asked Plaintiff if she could teach classes in January 11 2021 because he was putting together a class schedule for that month. 12 • December 9, 2020: Plaintiff responded, “2nd or 3rd week of January.” 13 • December 10, 2020: Plaintiff began physical therapy and requested that her 14 medical providers extend her “disability return to work date to mid January/February 15 preferably February.” 16 • December 12, 2020: Plaintiff again requested that her medical providers extend 17 her leave, asking “Can you please extend my return to work date to mid January . . . I’ve 18 already talked to my boss and he will [not] consider putting me back on the schedule until 19 mid January.” 20 • December 17, 2020: Dr. Lance Fuchs, Plaintiff’s primary doctor, extended 21 Plaintiff’s period of disability leave to January 17, 2021. Plaintiff did not inform Plus 22 One of this new date. 23 • December 23, 2020: Plaintiff informed Hargrave that she did not think she could 24 teach in January 2021. This was Plaintiff’s last communication with anyone at Plus One 25 before her termination. 26 • January 21, 2021: Plaintiffs medical provider extended her disability leave to 27 February 5, 2021. Plaintiff did not inform Plus One of this new date. 28 • January 28, 2021: Charina Delacruz, a member of Plus One’s Human Resources 1 department, responded to an inquiry from Hargrave and informed him that Plaintiff 2 remained on an approved leave of absence. 3 • February 1, 2021: Plaintiff enrolled in three IT classes. 4 • February 10, 2021: Delacruz emailed Plaintiff at her Plus One email address to 5 ask about her status. Plaintiff denied receiving this email and explained that she was not 6 checking her Plus One email. 7 • February 23, 2021: Plaintiff asked Dr. Fuchs how long she could remain off work 8 and on disability leave. 9 • February 24, 2021: Dr. Fuchs extended Plaintiff’s disability leave to March 21, 10 2021. Plaintiff did not inform Plus One of this new date. 11 • March 18, 2021: Delacruz mailed a letter to Plaintiff to inform her that she needed 12 to provide a status update Plus One. The letter explained that Plaintiff had been on leave 13 as a medical accommodation which was approved based on an anticipated return date of 14 December 14, 2020. The letter stated that “in order to approve any additional leave,” 15 Plus One “will need an updated fitness for duty form to review and determine if we can 16 reasonably accommodate.” Plaintiff denied receiving the letter. Although the letter itself 17 did not include Plaintiff’s apartment number, Delacruz testified that she wrote Plaintiff’s 18 correct address with apartment number on the envelope that was mailed. A copy of the 19 envelope was not produced. 20 • March 19, 2021: Gargano requested her medical provider extend her disability 21 leave. Dr. Fuchs extended her disability leave through April 25, 2021. Plaintiff did not 22 inform Plus One of this new date. 23 • March 29, 2021: Hargrave communicated to Delacruz his need to plan for staffing 24 and fill Plaintiff’s position. Delacruz informed Hargrave that he could terminate 25 Plaintiff’s employment. Hargrave did so. 26 • March 30, 2021: Delacruz mailed Plaintiff her termination letter, which stated: 27 “Although we have accommodated your leave through March 29, 2021, we cannot 28 commit to continue holding this position for you indefinitely … .” Plaintiff testified she 1 never received the letter. Plaintiff’s address as typed in the letter lacked her apartment 2 number. However, Delacruz testified that she wrote the correct address with apartment 3 number on the envelope. A copy of the envelope was not produced. 4 • April 15, 2021: Plaintiff reached out to Hargrave who connected her with 5 Delacruz. Delacruz told Plaintiff to reach out when she was cleared to return to work and 6 Delacruz would check with Hargrave to see if her position remained open at that time. 7 • April 23, 2021: In an email to Delacruz, Plaintiff stated she was on disability leave 8 through April 25, 2021, and that her disability leave would be “extended again every few 9 weeks” until she recovered. 10 • May 12, 2021: Plaintiff sent her medical work status reports to Plus One. 11 • August 9, 2021: Plaintiff was medically cleared to return to work, but Plus One 12 informed her that her old position was no longer available. Plus One informed Plaintiff 13 that she could apply for other positions, but Plaintiff did not do so. 14 There was conflicting evidence presented at trial as to whether Plaintiff’s previous 15 position remained available as of August 9, 2021. Hargrave testified that Plus One had 16 not hired anyone to replace Plaintiff after she went on leave. (Trial Tr. Day 1, at 171–72, 17 ECF No. 72.) However, Plus One maintained that Plaintiff’s position was no longer 18 available because in reallocating Plaintiff’s hours to two other employees, those two 19 employees may have begun to work more than 30 hours per week, thereby exceeding the 20 threshold to become benefits-eligible (Trial Tr. Day 2, at 334–35, ECF No. 73), and 21 increasing Plus One’s costs. 22 During trial, Defendant violated the Court’s Order (ECF No. 49) by repeatedly 23 referencing the disability benefits Plaintiff received while she was on disability leave. To 24 remedy the prejudicial effect that such references may have had, the Court issued a 25 curative instruction, which provided: 26 It is uncontested that Plaintiff had a physical disability between October 28, 2020, when she first requested to take a medical leave of 27 absence from her job at Defendant Plus One, and August 9, 2021, when her 28 doctor cleared her to return to work. It is also uncontested that between 1 October 28, 2020, and March 30, 2021, Plaintiff was on unpaid leave from her job at Plus One and earned no income from Plus One. 2 You may not draw an adverse inference from the fact that Plaintiff 3 applied for state benefit programs and received state benefits for which she 4 was eligible between October 28, 2020, and August 9, 2021. 5 (Jury Instr. No. 11, ECF No. 81, at 13.) 6 It was also established at trial that Hargrave had Plaintiff’s phone number and had 7 demonstrated an ability to communicate with Plaintiff by telephone and text message. 8 On August 25, 2023, day four of trial, the parties stipulated to dismissal of two 9 claims: (5) failure to prevent discrimination and retaliation in violation of California 10 Government Code § 12940(k), and (6) wrongful termination in violation of public 11 policy—in exchange for a waiver of fees and costs as to those specific claims. (Trial Tr., 12 Day 4, at 582, ECF No. 94.) The jury returned a unanimous defense verdict on the 13 remaining four claims. (ECF No. 86.) The Court entered judgment in favor of Defendant 14 on September 7, 2023. (ECF No. 96.) Plaintiff filed the instant motion for new trial on 15 October 5, 2023. (Pl.’s Mot., ECF No. 101.) Plus One filed its opposition on October 16 20, 2023, (ECF No. 104), and on October 27, 2023, Plaintiff filed her reply, (ECF No. 17 107). On October 30, 2023, the Court took the motion under submission without oral 18 argument. See S.D. Cal. Civ. L.R. 7.1(d)(1). 19 II. LEGAL STANDARD 20 Federal Rule of Civil Procedure 59 authorizes a federal district court to “grant a 21 new trial on all or some of the issues . . . after a jury trial, for any reason for which a new 22 trial has heretofore been granted in an action at law in federal court . . . .” Fed. R. Civ. P. 23 59(a)(1). “Because Rule 59 does not instruct on the grounds upon which a motion for a 24 new trial may be granted,” courts “look to the grounds historically recognized . . . 25 including, but not limited to, claims ‘that the verdict is against the weight of the evidence, 26 that the damages are excessive, or that, for other reasons, the trial was not fair to the party 27 moving.’” Hooper v. County of San Diego, No. 07-cv-1647-JAH, 2024 WL 1318847, at 28 *3 (S.D. Cal. Mar. 27, 2024) (quoting Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th 1 Cir. 2007)). “The grant of a new trial is ‘confided almost entirely to the exercise of 2 discretion on the part of the trial court.’” Murphy v. City of Long Beach, 914 F.2d 183, 3 186 (9th Cir. 1990) (quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980)). 4 A court may grant a new trial “if the verdict is against the clear weight of the 5 evidence,” but “not . . . simply because the court would have arrived at a different 6 verdict.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002). A court should grant a new 7 trial on weight-of-evidence grounds only if the court “is left with the definite and firm 8 conviction that a mistake has been committed” by the jury. Landes Const. Co. v. Royal 9 Bank of Canada, 833 F.2d 1365, 1371-72 (9th Cir. 1987). A court’s “[d]oubts about the 10 correctness of the verdict are not sufficient grounds for a new trial ….” Id. at 1372. 11 A court may grant a new civil trial due to attorney misconduct only if “the moving 12 party . . . demonstrate[s] [that] adverse counsel’s misconduct . . . ‘substantially interfered’ 13 with the moving party’s interest.” Cal. Sansome Co. v. U.S. Gypsum, 55 F.3d 1402, 1405 14 (9th Cir. 1995). “[T]he ‘flavor of misconduct must sufficiently permeate an entire 15 proceeding to provide conviction that the jury was influenced by passion and prejudice in 16 reaching its verdict.’” Kehr v. Smith Barney, Harris Hupham & Co., 736 F.2d 1283, 17 1286 (9th Cir. 1984) (quoting Standard Oil Co. of Cal. v. Perkins, 347 F.2d 379, 388 (9th 18 Cir. 1965)) (emphasis added). 19 III. DISCUSSION 20 Plaintiff advances two main arguments in support of her motion for new trial. 21 First, Plaintiff argues that the verdict in favor of Defendant is against the clear weight of 22 the evidence. (Pl.’s Mot. at 7–13.) Second, Plaintiff argues that Defendant’s misconduct 23 at trial impacted the jury’s ability to arrive at a fair verdict. (Id. at 13–14.) For the 24 reasons explained below, the Court rejects both arguments. 25 A. Weight and Sufficiency of Evidence 26 The jury’s verdict in favor of Defendant does not run against the clear weight of 27 the evidence. The evidence adduced at trial did not weigh overwhelmingly in favor of 28 either party and the jury would have been justified to find for either party. For the 1 reasons explained below, the Court finds that jury’s verdicts on all counts were rational 2 and consistent with the weight of evidence presented at trial. 3 1. Disability Discrimination 4 To prevail on her theory of disability discrimination, the Parties agree that Plaintiff 5 was required to prove that (1) Defendant was an employer; (2) Plaintiff was an employee 6 of Defendant; (3) Defendant knew that Plaintiff had a physical disability; (4) Plaintiff 7 was able to perform the essential job duties of her current position, either with or without 8 reasonable accommodation for her physical disability; (5) Defendant discharged Plaintiff; 9 (6) Plaintiff’s physical disability was a substantial motivating reason for Defendant’s 10 decision to discharge Plaintiff; (7) Plaintiff was harmed; and (8) Defendant’s conduct was 11 a substantial factor in causing Plaintiff’s harm. (Jury Instr. No. 12, ECF No. 81.) See 12 Judicial Council of California Civil Jury Instruction (“CACI”) 2540. A jury should 13 return a verdict for Defendant if it finds that Plaintiff failed to prove any element of the 14 claim. The jury here could have rationally determined that Plaintiff failed to prove, 15 among others, element four (that Plus One could have provided a reasonable 16 accommodation) or element six (that Plaintiff’s physical disability was a “substantial 17 motivating reason” for Plus One’s termination decision). 18 a. Reasonable Accommodation 19 The jury could have rationally concluded that Plus One was unable to provide 20 Plaintiff with a reasonable accommodation because the leave of absence Plaintiff 21 requested amounted to an unreasonable indefinite leave. It was undisputed that Plaintiff 22 was totally disabled and unable to perform the essential functions of her position until she 23 was cleared to return on August 9, 2021, (see Jury Instr. 11, ECF No. 81), and the only 24 accommodation Plaintiff sought was a leave of absence. The jury was instructed: 25 When the employee cannot presently perform the essential functions of the job, or otherwise needs time away from the job for treatment and recovery, 26 holding a job open for an employee on a leave of absence may be a 27 reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or 28 1 without further reasonable accommodation, and does not create an undue hardship for the employer. An employer, however, is not required to 2 provide an indefinite leave of absence as a reasonable accommodation. 3 4 (Jury Instr. No. 17, ECF No. 81, emphasis added.) See Cal. Code Regs. tit. 2, § 11068(c). 5 This Court previously explained in its order denying Plus One’s motion for 6 summary judgment that “[w]hether Plaintiff’s requested accommodation amounted to a 7 request for indefinite leave is a genuine issue of material fact,” (Order denying Summ. J. 8 at 11, ECF No. 39), and left the issue for the jury to decide. This Court explained: 9 Summary judgment in the employer’s favor can be appropriate where the identified accommodation can only be construed as a request for indefinite 10 leave. See, e.g., Dep’t of Fair Emp. & Hous. v. Lucent Techs., Inc., 642 F.3d 11 728, 744 (9th Cir. 2011) (employer not required to further extend disability period when it has afforded a period sufficient for rehabilitation). “An 12 unreasonable indefinite leave may be present, for example, where the 13 accommodation at issue would involve ‘repeated leaves of absence for an employee who has a poor prognosis of recovery.’” Furlow [v. TWC Admin., 14 LLC, No. 18-CV-01734-JAK, 2019 WL 9834332, at *8 (C.D. Cal. Aug. 23, 15 2019)] (quoting Nadaf-Rahrov [v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 988 (2008)]). 16 17 (Order denying Summ. J. at 10.) The jury could have found that Plus One reasonably 18 accommodated Plaintiff with a leave of absence at first when there was a set end date of 19 December 14, 2020. The jury could have rationally concluded that Plaintiff’s multiple 20 extensions of her disability status, which she did not communicate to Plus One, left Plus 21 One with the understanding that Plaintiff sought an unreasonable indefinite leave of 22 absence. Plus One’s letter to Plaintiff dated March 30, 2021, further shows that Plus One 23 believed Plaintiff’s leave of absence was indefinite in duration: “Although we have 24 accommodated your leave through March 29, 2021, we cannot commit to continue 25 holding this position for your indefinitely … .” It is undisputed that Plaintiff eventually 26 did recover and was cleared to return to work on August 9, 2021. But at the time Plus 27 One terminated Plaintiff’s employment, Plaintiff’s prognosis for recovery was unclear. 28 “Reasonable accommodation does not require the employer to wait indefinitely for an 1 employee’s medical condition to be corrected.” Hanson v. Lucky Stores, Inc., 74 Cal. 2 App. 4th 215, 226–27 (1999) (quoting Gantt v. Wilson Sporting Goods Co., 143 F.3d 3 1042, 1047 (6th Cir. 1998)). Accordingly, the jury could have rationally concluded that 4 Plaintiff sought an unreasonable indefinite leave of absence and that Plaintiff could not 5 “perform the essential job duties of her current position … with reasonable 6 accommodation.” (Jury Instr. No. 12, ECF No. 81.)1 7 b. Substantial Motivating Reason 8 Likewise, there was ample evidence presented at trial to allow the jury to rationally 9 find that Plus One terminated Plaintiff’s employment not because of her physical 10 disability, but because she had abandoned her position. The uncontested evidence 11 showed that Plaintiff had no communication with her employer between December 23, 12 2020, and April 15, 2021—after she was terminated. When Plaintiff first took a leave of 13 absence for her disability, she indicated that she expected to return to work on December 14 14, 2020. Plaintiff’s medical providers extended her disability status several times 15 beyond this date, but Plaintiff never communicated those extensions to her employer. 16 It is true that Plus One had means to contact Plaintiff—telephone and text 17 message—which it did not use. And there was some evidence presented that Plus One 18 sent letters to Plaintiff which Plaintiff did not receive because Plus One omitted 19 Plaintiff’s apartment number from her mailing address. A jury could have credited the 20 evidence and found that Plaintiff’s disability was a “substantial motivating reason” for 21 Plus One’s decision to terminate Plaintiff’s employment. But as explained above, the 22 evidence also could have led a rational jury to find that Plus One terminated Plaintiff’s 23 employment not because of her disability, but because she had abandoned her position. 24 The fact that there was conflicting evidence regarding causation “is not grounds for 25

26 1 Because the Court concludes the jury could have rationally found that Plaintiff failed to establish the prima facie elements of the claim, the Court need not consider whether there was evidence in the record 27 to support Defendant’s “undue hardship” defense. 28 1 granting a new trial.” Dawson v. Wal-Mart Stores, Inc., 978 F.2d 205, 208 (5th Cir. 2 1992). “Where the jury could have reached a number of different conclusions, all of 3 which would have sufficient support based on the evidence, the jury’s findings will be 4 upheld.” Id.; see 11 Wright & Miller, Fed. Prac. & Proc. Civ. § 2806 (3d ed. 2023) 5 (“[T]he more sharply the evidence conflicts, the more reluctant the judge should be to 6 substitute his judgment for that of the jury.”). 7 The Ninth Circuit prohibits a trial court from granting a new trial on weight-of- 8 evidence grounds if there was a “reasonable basis” for the jury’s verdict. Molski v. M.J. 9 Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007). The jury’s verdict in favor of Plus One on 10 the disability discrimination claim was rational and did not run “contrary to the clear 11 weight of the evidence” presented at trial. Hilborn v. Metro. Grp. Prop. & Cas. Ins. Co., 12 306 F.R.D. 651, 655 (D. Idaho 2015). Accordingly, the Court declines to disturb the 13 jury’s verdict. 14 2. Failure to Accommodate 15 To prevail on her failure to accommodate claim, the Parties agree that Plaintiff was 16 required to prove that: (1) Defendant was an employer; (2) Plaintiff was an employee of 17 Defendant; (3) Plaintiff had a physical disability; (4) Defendant knew of Plaintiff’s 18 physical disability; (5) Plaintiff was able to perform the essential duties of her current 19 position or a vacant alternative position to which she could have been reassigned with 20 reasonable accommodation for her physical disability; (6) Defendant failed to provide 21 reasonable accommodation for Plaintiff’s physical disability; (7) Plaintiff was harmed; 22 and (8) Defendant’s failure to provide reasonable accommodation was a substantial factor 23 in causing Plaintiff’s harm. (Jury Instr. No. 14, ECF No. 81.) See CACI 2541; Cal. 24 Gov’t Code § 12940(m). The elements of this claim overlap with the elements of her 25 disability discrimination. 26 The jury could have concluded that Plaintiff failed to prove element five. It was 27 undisputed that Plaintiff was totally disabled and could not perform the essential 28 functions of her position until August 9, 2021. The jury could have rationally found that 1 the accommodation Plaintiff sought was an unreasonable indefinite leave of absence 2 which Plus One was not required to provide. Thus, the jury could have rationally found 3 that Plaintiff could not “perform the essential duties of her current position … with 4 reasonable accommodation.” (Jury Instr. No. 14, ECF No. 81.) The Court therefore 5 declines to disturb the jury’s verdict. See Lyophile-Cryochem Corp. v. Cutter Lab’ys, 78 6 F. Supp. 903, 904 (N.D. Cal. 1948), aff’d in part, rev’d in part, 179 F.2d 80 (9th Cir. 7 1949) (district court “should not substitute [its] judgment on the facts for that of the jury” 8 “except in extreme cases” where jury verdict is irrational). 9 3. Failure to Engage in Interactive Process 10 To prevail on her claim for failure to engage in the interactive process, the Parties 11 agree that Plaintiff was required to prove that (1) Defendant was an employer; (2) 12 Plaintiff was an employee of Defendant; (3) Plaintiff had a physical disability that was 13 known to Defendant; (4) Plaintiff requested that Defendant make reasonable 14 accommodation for her physical disability so that she would be able to perform the 15 essential job requirements; (5) Plaintiff was willing to participate in an interactive process 16 to determine whether reasonable accommodation could be made so that she would be 17 able to perform the essential job requirements; (6) Defendant failed to participate in a 18 timely good-faith interactive process with Plaintiff to determine whether reasonable 19 accommodation could be made; (7) Plaintiff was harmed; and (8) Defendant’s failure to 20 engage in a good-faith interactive process was a substantial factor in causing Plaintiff’s 21 harm. (Jury Instr. No. 19, ECF No. 81.) See CACI 2546; Cal. Gov’t Code § 12940(n). 22 The elements of this claim overlap with the elements of the claims discussed above. 23 The jury could have concluded that Plaintiff failed to prove element five. As 24 explained, the uncontested evidence produced at trial showed that Plaintiff had no 25 communication with her employer between December 23, 2020 and April 15, 2021— 26 after she was terminated. Plaintiff’s medical providers extended her disability status 27 several times beyond the return date she initially provided to Plus One, December 14, 28 2020, but Plaintiff never communicated those extensions to her employer. Although 1 conflicting evidence was presented at trial, the jury could have rationally found that 2 Plaintiff was not “willing to participate in an interactive process to determine whether 3 reasonable accommodation could be made.” (Jury Instr. No. 19, ECF No. 81.) 4 Accordingly, the jury’s verdict in favor of Plus One on the failure to engage in the 5 interactive process claim did not run “contrary to the clear weight of the evidence” 6 presented at trial. Hilborn, 306 F.R.D. at 655. The Court therefore declines to disturb the 7 jury’s verdict. See Moist Cold Refrigerator Co. v. Lou Johnson Co., 249 F.2d 246, 251 8 (9th Cir. 1957) (jury verdict should be set aside “[i]f the judge is of opinion that the 9 verdict of the jury was against the weight of the evidence or based on evidence that was 10 false”). 11 4. Retaliation 12 To prevail on her retaliation claim, the Parties agree that Plaintiff was required to 13 prove that: (1) Plaintiff requested a reasonable accommodation; (2) Defendant discharged 14 Plaintiff; (3) That Plaintiff’s requesting a reasonable accommodation was a substantial 15 motivating reason for Defendant’s decision to discharge Plaintiff; (4) Plaintiff was 16 harmed; and (5) Defendant’s decision to discharge Plaintiff was a substantial factor in 17 causing her harm. (Jury Instr. No. 20, ECF No. 81.) See CACI 2505; Cal. Gov’t Code § 18 12940(h). 19 The jury could have found that Plaintiff failed to prove element three—causation. 20 As explained above, Plaintiff had no communication with her employer between 21 December 23, 2020, and April 15, 2021. When Plaintiff first took a leave of absence for 22 her disability, she indicated that she expected to return to work on December 14, 2020. 23 Plaintiff’s medical providers extended her disability status several times beyond that date, 24 but Plaintiff never communicated those extensions to Plus One. There was ample 25 evidence presented at trial to permit a rational jury to find that Plus One terminated 26 Plaintiff’s employment not because she had requested an accommodation but because she 27 had abandoned her position. Accordingly, the jury’s verdict in favor of Plus One on the 28 retaliation claim did not run “contrary to the clear weight of the evidence.” Hilborn, 306 1 F.R.D. at 655. The Court therefore declines to disturb the jury’s verdict. 2 B. Defense Counsel’s Misconduct 3 Plaintiff’s second argument in support of her motion for new trial is that 4 Defendant’s misconduct at trial impacted the jury’s ability to arrive at a fair verdict. (Id. 5 at 13–14.) The Court agrees that counsel for Plus One violated the Court’s order which 6 was based on the parties’ stipulation. Plus One willingly agreed to refrain from 7 referencing the disability benefits Plaintiff received while she was on disability leave. 8 (Order, ECF No. 49.) However, after consideration of this issue the Court declines to 9 grant a new trial. Any possible prejudicial effect caused by Defendant was minimal and 10 cured by the Court’s remedial instruction. 11 Defendant argues that the intent behind the stipulated evidentiary order (ECF No. 12 49) was to exclude reference to collateral source benefits. Defendant argues it did not 13 violate the order because the collateral source doctrine was not at issue after Plaintiff 14 waived her claim to economic damages. (Def.’s Opp’n at 23 n.6.) This is not so. The 15 parties’ stipulation had already contemplated Plaintiff’s waiver of economic damages and 16 lost wages. The language of the stipulated order, to which both parties consented, 17 simultaneously prohibited Defendant from “eliciting testimony regarding, or referencing 18 collateral source benefits obtained by Plaintiff from the California Employment 19 Development Department, including unemployment benefits and disability benefits” and 20 prohibited Plaintiff “from entering evidence on, eliciting testimony regarding, or 21 referencing economic damages, including lost wages.” (Order, ECF No. 49 ¶¶ 2–3.) 22 Defendant’s interpretation of the stipulated order would render Paragraph 2 redundant: 23 Plaintiff’s waiver of economic damages was known from the time Defendant consented 24 to the stipulated order and memorialized in Paragraph 3 of the order. Defendant 25 remained bound by its agreement not to reference Plaintiff’s receipt of unemployment or 26 disability benefits. Thus, Defendant’s argument to evade its obligation to refrain from 27 presenting evidence on or referencing Plaintiff’s disability benefits at trial is 28 unpersuasive. 1 Plaintiff argues that Defendant’s references to Plaintiff’s disability benefits at trial 2 could have prejudiced Plaintiff by creating the impression that Plaintiff was gaming the 3 system by collecting benefits while enrolled in IT classes with an intent to transition to a 4 career in IT and not to return to her fitness position at Plus One. However, the Court 5 ameliorated any such prejudice by giving a remedial instruction, with the Parties’ 6 consent, which conclusively established (1) that Plaintiff had a physical disability 7 between October 28, 2020, and August 9, 2021, and (2) that Plaintiff earned no income 8 from Plus One after October 28, 2020, when she was placed on unpaid leave. (Jury Instr. 9 No. 11, ECF No. 81.) The Court further instructed that the jury “may not draw an 10 adverse inference from the fact that Plaintiff applied for state benefit programs and 11 received state benefits for which she was eligible between October 28, 2020, and August 12 9, 2021.” (Id.) The remedial instruction addressed any possible prejudice resulting from 13 Defendant’s improper references to Plaintiff’s disability benefits. See Innovation 14 Ventures, LLC v. N2G Distrib., Inc., 763 F.3d 524, 543 (6th Cir. 2014) (district court did 15 not abuse its discretion in denying motion for new trial where seller solicited testimony in 16 violation of the court’s pretrial evidentiary rulings because the improper questions took 17 place “in the space of a few minutes during a multi-day trial” and any resulting prejudice 18 was insignificant); Venson v. Altamirano, 749 F.3d 641, 657 (7th Cir. 2014) (in Section 19 1983 action, defense counsel’s single reference to an “open-air drug market” in violation 20 of district court’s in limine ruling barring reference to the area where an arrest occurred 21 as “a high crime or drug area” was not prejudicial and did not warrant a new trial). 22 Plaintiff’s other allegations of misconduct do not warrant a new trial. Plaintiff 23 alleges that Plus One’s reference to its Family and Medical Leave Act (FMLA) policy 24 “created the illusion of a policy applicable to Plaintiff” and put the FMLA policy “in 25 front of Plaintiff at her deposition and attempted to convince Plaintiff it applied to her 26 leave and that she was bound by it.” (Pl.’s Mot. at 14.) Plaintiff then alleges that counsel 27 for Defendant “elicited false testimony” from Plus One employees about “non-existent 28 policy language purportedly obligating Plaintiff to communicate,” (id., citing Trial Tr. at 1 362-63), and then relied on this false testimony in its closing argument to 2 ||misleadingly suggest that Plaintiff had failed to abide by the policy, which was 3 ||inapplicable. (/d.) It is true that Plus One’s FMLA policy was inapplicable to the extent 4 conflicted with the requirements of California law. However, the Court rejects these 5 |}arguments. It is unclear to the Court how any alleged misconduct during Plaintiffs 6 || pretrial deposition could have unfairly prejudiced Plaintiff at trial. In addition, Plaintiff 7 not explain how the alleged misconduct at trial unfairly prejudiced □□□□□ See 8 || Christmas v. City of Chicago, 682 F.3d 632 (7th Cir. 2012) (counsel’s conduct did not 9 || prejudice jury and warrant new trial where district court properly instructed jury on the 10 ||law including that statements of counsel are not evidence). Accordingly, the Court 11 |}concludes that counsel’s conduct did not amount to a miscarriage of justice warranting a 12 || new trial. 13 IV. CONCLUSION AND ORDER 14 For the reasons explained, the Court DENIES Plaintiff's motion for new trial. 15 IT IS SO ORDERED. 16 || Dated: April 24, 2024 \ J J 17 : Hon. Dana M. Sabraw, Chief Judge 18 United States District Court 19 20 21 22 23 24 |} ———___ 25 For the same reason, the Court finds that Plaintiff's remaining misconduct arguments do not warrant a new trial: (1) that Defendant stated it provided “Plaintiff with a leave that State Law did not provide,” 26 (2) that Defendant argued “undue hardship” is defined as Plaintiff's lack of communication; (3) 07 Defendant’s misrepresentation of “indefinite” leave; (4) Defendant’s argument that Plaintiff made an admission she did not make. (PI.’s Mot. at 14.) 28