Tracy Dunlap v. Liberty Natural Products

878 F.3d 794
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 28, 2017
Docket15-35395, 16-35113 16-35271
StatusPublished
Cited by75 cases

This text of 878 F.3d 794 (Tracy Dunlap v. Liberty Natural Products) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tracy Dunlap v. Liberty Natural Products, 878 F.3d 794 (9th Cir. 2017).

Opinion

OPINION

RAWLINSON, Circuit Judge:

Appellant Liberty Natural Products, Inc. (Liberty) challenges the district court’s decision denying Liberty’s renewed motion for judgment as a matter of law (JMOL). Appellee Tracy Dunlap .(Dunlap) brought suit against Liberty under the Americans with Disabilities Act (ADA) and Oregon state law, alleging that Liberty failed to accommodate her disability and subjected her to disparate treatment due to her disability. Dunlap challenges the district court’s order granting in part Dunlap’s motion for an award of attorney’s fees.

We have jurisdiction under 28 U.S.C. § 1291 and affirm both decisions.

I.

Liberty is a small business that imports and distributes wholesale botanical products. From September, 2006, to April, 2012, Liberty employed Dunlap as a shipping clerk.

In June, 2010, Dunlap began experiencing pain in her right elbow. She filed a workers’ compensation claim and a physician later diagnosed Dunlap with bilateral lateral epicondylitis in both elbows. For two years, Dunlap worked full-time for Liberty, with restrictions. Her workers’ compensation claim was eventually accepted and later closed. The Notice of Closure, which was sent to both Dunlap and Liberty, classified Dunlap’s condition as disabling.

One month after Dunlap’s claim was closed, Liberty terminated Dunlap’s employment. Dunlap immediately requested reinstatement to her former position or another suitable position. Liberty declined Dunlap’s request for reinstatement.

Dunlap then filed an action against Liberty, alleging employment discrimination based on disability under the ADA and under Or. Rev. Stat. §§ 659A.112, 659A.040, 659A.043, 659A.046, and 659A.199. The district court granted summary judgment in favor of Liberty on all but three claims—disability discrimination, “regarded as” disability discrimination, and failure to reinstate or reemploy. The jury returned a verdict in Dunlap’s favor on her claim for disability discrimination under the ADA and related Oregon statutes. The jury returned a verdict in favor of Liberty on Dunlap’s “regarded as” disability claim and on her failure to reinstate or reemploy claim. The jury awarded Dunlap $70,000 in non-economic damages, and the district court awarded Dunlap $13,200 in backpay damages.

After the district court denied Liberty’s renewed motion for JMOL, Liberty filed a timely appeal challenging the jury instructions and the district court’s denial of its renewed motion for JMOL. Dunlap subsequently moved for $235,038 in attorney’s fees, and the district court granted the motion in part, reducing the requested fees by fifty percent. Dunlap timely appealed the fee award.

To establish or trigger the defendant’s ... duty to provide a reasonable accommodation, the plaintiff ... must prove by a preponderance of the evidence both of the following elements: 1 comes in two alternatives. 1A deals with a request for awareness. 1A, plaintiff requested of defendant an accommodation due to a disability. Or IB, defendant became aware that plaintiff needed an accommodation. Either one of those is element No. 1.

II.

Where a litigant asserts that a challenged jury instruction “is an incorrect statement of law, our review is de novo” Chess v. Dovey, 790 F.3d 961, 970 (9th Cir. 2015) (citation omitted). [“W]hen a litigant in a civil trial fails to object to a jury instruction, we may review the challenged jury instruction for plain error.” Id.

“We review de novo the district court’s denial of a Rule 50(b) renewed motion for judgment as a matter of law. The test is whether the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to that of the jury. ...” Estate of Diaz v. City of Anaheim, 840 F.3d 592, 604 (9th Cir. 2016), as amended (citation and internal quotation marks omitted). “A jury’s verdict must be upheld if it is supported by substantial evidence that is adequate to support the jury’s findings, even if contrary findings are also possible.” Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1242 (9th Cir. 2014) (citation omitted).

“[W]e review the calculation of fees for abuse of discretion. ...” Chaudhry v. Los Angeles, 751 F.3d 1096, 1110 (9th Cir. 2014) (citation omitted).

III.

A. Instructional Error

Liberty contends .that the district court committed instructional error by conflating the elements of the disparate-treatment and failure-to-accommodate claims. 1 According to Liberty, this error “denied the jury the opportunity to decide the foundational issue of whether [Dunlap] triggered a duty to accommodate.”

Dunlap counters that Liberty fáiled to properly preserve its objections to the jury instructions. Dunlap contends in the alternative that any instructional error was harmless. Because the district court proceeded on the basis that Liberty adequately objected to the failurerto-accommodate instruction as a misstatement of the law, we review this issue de novo. See Chess, 790 F.3d at 970. We also note that Liberty submitted proposed instructions, objected to Dunlap’s proposed instructions, and penned a letter to the court regarding the asserted instructional error. See Hunter v. Cty. of Sacramento, 652 F.3d 1225, 1230 (9th Cir. 2011)' (explaining that the proffer of an alternate instruction sufficiently preserves the objection).

Ideally, the district court would have separated the elements of Dunlap’s disparate treatment and failure-to-accommodate claims in the jury instructions. Wé have recognized that a failure-to-accommodate claim “is analytically distinct' from a claim of disparate treatment or impact under the ADA.” Johnson v. Bd. of Trustees of Boundary Cty. Sch. Dist., 666 F.3d 561, 567 (9th Cir. 2011). Accordingly, the district court’s conflation of the elements of Dunlap’s disparate treatment and failur'e-to-accommodate claims constituted instructional error as a misstatement of the law. See id. Nevertheless, the instructional error was not cause for reversal. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) (“An error in instructing the jury in a civil case requires reversal unless the error is more, probably than not harmless.- ...”) (citation omitted).

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878 F.3d 794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tracy-dunlap-v-liberty-natural-products-ca9-2017.