Dilley v. Supervalu, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 15 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

DONALD E. DILLEY,

Plaintiff-Appellee and Cross-
Appellant,

v.
Nos. 00-1200, 00-1201, and 00-1217
SUPERVALU, INC.,

Defendant-Appellant and Cross-
Appellee.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 95-WM-1882)

Steven J. Merker (Jessica L. Harshbarger and Fatina N. Purdie with him on the
briefs), Dorsey & Whitney, LLP, Denver, Colorado, for Defendant-Appellant and
Cross-Appellee.

Jeffrey Menter, Littleton, Colorado, for Plaintiff-Appellee and Cross-Appellant.

Before TACHA, Chief Judge, EBEL and GARTH, * Circuit Judges.

EBEL, Circuit Judge.

*
Honorable Leonard I. Garth, Senior Circuit Judge, Third Circuit Court of
Appeals, sitting by designation.
 This is a case brought under the Americans with Disabilities Act (“ADA”),

42 U.S.C. § 12101, et seq., in which each party has raised several challenges to

the proceedings below. Plaintiff-Appellee and Cross-Appellant Donald Dilley

brought suit against Defendant-Appellant and Cross-Appellee SuperValu, Inc.,

alleging that SuperValu wrongfully terminated him from his job as a truck driver

because of a lifting restriction imposed by doctors after Dilley injured his back.

The district court rejected SuperValu’s request for judgment as a matter of law

and allowed the case to go to the jury, which found that SuperValu had

unlawfully discriminated against Dilley. SuperValu argues that Dilley’s ADA

claim fails as a matter of law because he is not a qualified individual under the

statute, his requested accommodation was unreasonable, and he refused

SuperValu’s offered accommodation. SuperValu also challenges the adequacy of

the district court’s jury instructions. In his cross-appeal, Dilley challenges the

district court’s reduction of the jury’s back pay award, and argues that the district

court’s dismissal of Dilley’s punitive damages claim and denial of his motion for

reinstatement were erroneous. We AFFIRM the district court’s order in all

regards, except for its denial of Dilley’s motion for reinstatement. Because the

district court based its denial order on an incorrect characterization of the law, we

VACATE and REMAND on that issue alone.

-2-
 BACKGROUND

Dilley worked as a truck driver for SuperValu for approximately eighteen

years. During the course of his employment, he developed back problems and

eventually became subject to a sixty-pound lifting restriction imposed by his

physician. SuperValu contends that, in light of this restriction, Dilley was unable

to perform the essential functions of his truck-driving position, but that he is not

disabled under the ADA because he is not substantially limited in any major life

activity. Dilley argues that he could have been reasonably accommodated by

being assigned to routes where heavy lifting was not required. SuperValu also

contends that it offered Dilley two alternative positions within his lifting

restriction, but he refused both. Dilley responds that he was merely invited to

apply for one of the positions, and the other position was not even vacant.

According to Dilley, neither position was remotely comparable to his job as a

truck driver.

The jury found that Dilley was disabled under the ADA, that SuperValu

intentionally discriminated against him by terminating him, and that SuperValu

failed to accommodate him. The jury did not specify whether Dilley was actually

disabled or was simply “regarded as” disabled by SuperValu. The jury awarded

Dilley $115,268 in back pay and $25,001.43 in other compensatory damages. The

district court considered the jury’s award of back pay damages to be an advisory

-3-
verdict, and substituted its own award of $43,968 for back pay because of a

failure to mitigate. After various post-judgment motions, this appeal followed.

DISCUSSION

I. Sufficiency of the Evidence

Dilley contends that SuperValu cannot contest the sufficiency of the

evidence on appeal because, while SuperValu moved for judgment as a matter of

law (“JMOL”) at the close of Dilley’s case, SuperValu failed to renew its motion

at the close of all the evidence. Failure to renew the motion precludes SuperValu

from challenging the sufficiency of the evidence on appeal. Davoll v. Webb, 194

F.3d 1116, 1136 (10th Cir. 1999). Under such circumstances, we will review only

for “plain error constituting a miscarriage of justice.” First Sec. Bank v. Taylor,

964 F.2d 1053, 1057 (10th Cir. 1992) (applying plain error review where party

raised issue in motion for judgment notwithstanding the verdict, but not in earlier

motion for directed verdict); see also Fredrick v. District of Columbia, 254 F.3d

156, 160-62 (D.C. Cir. 2001) (reviewing sufficiency of evidence under “manifest

miscarriage of justice” standard where party failed to renew JMOL motion);

Williams v. City of Kansas City, 223 F.3d 749, 753 (8th Cir. 2000) (reviewing

sufficiency of evidence for plain error where party failed to renew JMOL motion);

Patel v. Penman, 103 F.3d 868, 878 (9th Cir. 1996) (reviewing sufficiency of

-4-
evidence for plain error where party failed to raise issue in directed verdict

motion); Price v. City of Charlotte, 93 F.3d 1241, 1249 (4th Cir. 1996) (same);

Hammond v. T.J. Litle & Co., 82 F.3d 1166, 1171-72 (1st Cir. 1996) (same);

MacArthur v. Univ. of Tex. Health Ctr., 45 F.3d 890, 897 n.8 (5th Cir. 1995)

(reviewing sufficiency of evidence for plain error where party failed to renew

JMOL motion).

SuperValu acknowledges this general rule, but cites Aguinaga v. United

Food & Commercial Workers Int’l Union, 993 F.2d 1463, 1470 (10th Cir. 1993),

for the notion that “technical precision” with the rule is not required “as long as

the trial court [was] aware of the movant’s position.” SuperValu contends that it

put the district court on notice of its position during the charging conference,

when SuperValu objected to the inclusion of “lifting” in the instructions on major

life activities. SuperValu cites to the charging conference transcript, but failed to

include the transcript in the record, so we are unable to verify its characterization.

Even assuming that SuperValu objected to the “lifting” instruction, whether

the jury received such an instruction is of limited relevance to the resolution of

SuperValu’s sufficiency of the evidence arguments. The record reveals that this

case turns on “working” as a major life activity, not “lifting.” SuperValu does not

claim to have made any objection to the inclusion of “working” in the jury

instructions, or to have otherwise challenged the sufficiency of the evidence

-5-
related to “working” after its initial JMOL motion. Even if SuperValu put the

district court on notice that it viewed the evidence as insufficient to support an

instruction on lifting, that did not put the district court on notice of the broader

challenges now raised by SuperValu pertaining to “working.” Because SuperValu

failed to renew its JMOL motion, we review only for plain error.

In reviewing a JMOL ruling, we construe the record in the light most

favorable to Dilley, the nonmoving party, keeping in mind that judgment as a

matter of law is appropriate “only if the evidence points but one way and is

susceptible to no reasonable inferences which may support the opposing party’s

position.” Davis v. United States Postal Serv., 142 F.3d 1334, 1339 (10th Cir.

1998) (internal quotation marks omitted). This stringent standard of review is

further heightened under plain error review, which “has been limited to errors

which seriously affect the fairness, integrity or public reputation of judicial

proceedings.” Glenn v. Cessna Aircraft Co., 32 F.3d 1462, 1464 (10th Cir. 1994)

(internal quotation marks omitted). After reviewing the record and the briefs in

this case, we conclude that the district court did not commit plain error by

allowing Dilley’s ADA claim to go to the jury. 2

2
Additionally, SuperValu’s failure to submit the entire trial transcript
provides a separate basis for rejecting its sufficiency of the evidence argument.
See Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1104 (10th Cir. 1998)
(rejecting sufficiency of the evidence claim where only portion of trial transcript
(continued...)

-6-
II. Whether Dilley’s requested accommodation was reasonable.

SuperValu argues that Dilley’s requested accommodation – returning to a

truck driver position – “was unreasonable as a matter of law because it would

have required SuperValu to violate the terms of its collective bargaining

agreement with the union representing its warehouse employees.” Because the

driving positions are subject to a seniority system, SuperValu contends that Dilley

could have been “bumped” from any of the driving positions for which he might

have been qualified, and that keeping him in the position would have violated the

collective bargaining agreement. Dilley insists that his seniority made such

displacement unlikely.

The ADA requires an employer to make reasonable accommodation to the

known physical or mental limitations of a qualified individual with a disability.

42 U.S.C. § 12112(b)(5)(A). SuperValu is correct that this provision does not

require an employer to provide an accommodation that would violate a bona fide

seniority system under the terms of a collective bargaining agreement. But it is

the direct violation of a seniority system that has been held unreasonable under

the governing case law. See, e.g., US Airways, Inc. v. Barnett, 122 S. Ct. 1516,

1519 (2002) (“[T]o show that a requested accommodation conflicts with the rules

2
(...continued)
was provided).

-7-
of a seniority system is ordinarily to show that the accommodation is not

‘reasonable.’”); Aldrich v. Boeing Co., 146 F.3d 1265, 1272 n.5 (10th Cir. 1998)

(“[H]ad Boeing transferred Aldrich to any of the last three disputed jobs . . . it

would have violated the seniority provisions of the collective bargaining

agreement.”); Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995)

(“[P]laintiffs’ collective bargaining agreement prohibits their transfer to any other

job because plaintiffs lack the requisite seniority.”).

Here, by contrast, there was only a potential violation of the seniority

system. SuperValu does not contend that Dilley lacked the seniority required to

be placed in a non-lifting driver position. Rather, SuperValu contends that the

seniority system would be violated if a more senior employee later requested to be

placed in Dilley’s new position, and SuperValu nevertheless decided to leave

Dilley in that position. SuperValu’s own witness testified that Dilley ranked fifth

out of forty-two drivers in seniority. Thus, the jury could have concluded that the

prospect of Dilley’s displacement by a more senior driver was remote. Even if a

more senior driver did request Dilley’s new position, there is no reason why

SuperValu would have to violate the seniority system by refusing to remove

Dilley from the bumped job until other routes or positions would become

available.

-8-
 “Once the plaintiff produces evidence sufficient to make a facial showing

that accommodation is possible, the burden of production shifts to the employer to

present evidence of its inability to accommodate.” White v. York Int’l Corp., 45

F.3d 357, 361 (10th Cir. 1995) (citation omitted). Dilley produced evidence from

which the jury could have concluded that he could have been accommodated

through assignment to certain positions that were, as a matter of fact, within his

lifting restriction. The only justification offered by SuperValu for its inability to

grant this requested accommodation is its concern regarding potential violations

of the seniority system. This concern is speculative, and did not preclude the jury

from finding Dilley’s requested accommodation to be reasonable. The district

court properly instructed the jury that “reasonable accommodation may include . .

. allowing plaintiff to bid into a position for which he is qualified and has the

requisite seniority.” Apparently, the jury concluded that Dilley was qualified and

had the requisite seniority for certain truck driving positions within his sixty-

pound lifting restriction. That conclusion was supported by the evidence

introduced at trial, and thus the district court did not commit plain error by

allowing the ADA claim to go to the jury.

-9-
III. Whether SuperValu’s offered accommodation was reasonable.

SuperValu argues that this case should have been dismissed because

“SuperValu attempted to reasonably accommodate Dilley by placing him in a

nonunion dispatch or merchandising position.” What SuperValu fails to mention,

however, is that the dispatch position entailed a substantial cut in pay, and the

merchandising job was a position “that might open up in the future.” There is no

evidence regarding the pay, duties, or any other aspects of the merchandising

position. Neither position actually was offered to Dilley.

In reasonably accommodating an employee under the ADA, “[t]he employer

should first consider lateral moves to positions that are regarded as equivalent,”

and “may only consider lesser jobs that constitute a demotion if there are no such

equivalent positions available.” Smith v. Midland Brake, Inc., 180 F.3d 1154,

1177 (10th Cir. 1999) (en banc); see also 29 C.F.R. app. § 1630.2(o) (“An

employer may reassign an individual to a lower grade and paid position if there

are no accommodations that would enable the employee to remain in the current

position and there are no vacant equivalent positions for which the individual is

qualified with or without reasonable accommodation.”). As discussed above, the

jury could have concluded that SuperValu improperly disqualified Dilley from

certain truck-driving positions within his lifting restriction. Those positions were

equivalent to his former position, and should have been considered before a

- 10 -
demotion. Under these circumstances, SuperValu cannot show that its offered

accommodation was reasonable as a matter of law.

IV. Jury instructions.

Although it failed to object to the jury instructions below, SuperValu now

challenges the instructions given in this case on the ground that the district

court’s failure to provide a “precise identification of the major life activity

involved” constitutes plain error. In closing argument, Dilley’s counsel identified

working and lifting as major life activities, but did not unequivocally state that

those were the only activities at issue. In its instruction to the jury, the district

court identified several examples of “major life activities,” including “caring for

oneself, performing manual tasks, lifting, seeing, hearing, speaking, breathing,

learning or working.” According to SuperValu, “these references create a high

degree of speculation as to whether the jury thought they were deciding that

Dilley was substantially limited when it came to work, lifting, both, or neither.”

It is true that steps must be taken to ensure that the jury only considers the

major life activities at issue. A plaintiff “must specifically plead or prove at trial

the impairments and the major life activities he or she asserts are at issue.”

Poindexter v. Atchison, Topeka & Santa Fe Ry. Co., 168 F.3d 1228, 1230 (10th

Cir. 1999). And the trial court, “in making determinations of law and formulating

- 11 -
jury instructions, is to analyze only the major life activity asserted by the

plaintiff.” Id. at 1231.

Here, Dilley’s evidence at trial focused on SuperValu’s disqualification of

Dilley from working in various positions as a result of his lifting restriction.

Further, SuperValu’s counsel emphasized the claimed working disability in his

closing argument by stating that the company did not regard Dilley as being

unable to work. And although the district court did not expressly instruct the jury

to consider only the activity of working, the court gave extensive instructions on

the factors to be considered in determining whether an individual is substantially

limited in working, and did not give specific instructions for any other major life

activity. By contrast, the Poindexter court found the instructions in that case

inadequate because the jury was given “no guidance as to which endeavors it

could properly consider as major life activities in reaching its decision.” 168 F.3d

at 1231. In this case, the jury’s attention was focused properly on how Dilley’s

lifting restriction substantially limited him in the major life activity of working.

The district court’s instructions did not amount to plain error.

V. Post-trial reduction of damages.

The jury awarded Dilley $115,268 in damages for “backpay plus benefits,”

no money for “future earnings and benefits,” and $25,001.43 for “other

- 12 -
compensatory damages.” In a rather confusing argument, Dilley contends that the

district court should not have relied on Dilley’s failure to mitigate as justification

for reducing the jury’s back pay award. Dilley does not challenge the substance

of the district court’s mitigation ruling, or the court’s treatment of back pay as an

equitable issue subject to judicial determination. Rather, Dilley asserts, without

legal support, that we “must assume that the jury verdict already includes

consideration of the mitigation issues raised by the trial court in reducing the back

pay,” and that he was thus penalized twice for failing to mitigate.

Dilley disregards the district court’s reasoning on this issue. The court did

not reduce the jury’s back pay award, but rather treated the award as an advisory

verdict pursuant to Federal Rule of Civil Procedure 39(c). This was based on the

court’s ruling that back pay was an equitable issue to be determined by the court,

not the jury. The court acknowledged that it was unclear whether the jury’s

award of $25,000 for compensatory damages included a reduction for failure to

mitigate. The court left this award intact, however, and addressed only the proper

amount of back pay, ruling that “whether or not any possible backpay award

should be reduced by the plaintiff’s failure to mitigate is intrinsically tied to the

court’s equitable determination of backpay – an issue distinct from the jury’s

determination of compensatory damages.” Once the court decided to treat the

jury’s verdict as advisory, it was obligated to make its own findings. Marvel v.

- 13 -
United States, 719 F.2d 1507, 1515 n.12 (10th Cir. 1983). The court ultimately

concluded that Dilley was entitled to back pay only for a portion of the time

following his termination, for at a certain point he should have been able to

secure alternative employment.

It is unclear what the $25,000 in compensatory damages represents, but

Dilley’s counsel gave some clues in closing argument, telling the jury it could

“award damages for back pay, future pay, compensatory damages for emotional

pain and suffering.” He later describes the damages options as “back pay and

perhaps future pay and perhaps emotional distress,” and also raises the possibility

of awarding “noneconomic damages, including emotional pain and suffering,

inconvenience, mental anguish.” Whether or not the jury followed the request of

Dilley’s counsel, there is no reason to believe that the $25,000 award was

impacted by the mitigation inquiry. Thus, there is no evidence that Dilley was

penalized twice for failing to mitigate.

Mitigation is logically encompassed by the back pay determination. Any

back pay award must be reduced by alternative sources of income that would

reasonably have been available to Dilley. In closing arguments, SuperValu’s

counsel urged the jury to consider Dilley’s failure to mitigate when determining

his entitlement to back pay. However, there is nothing to suggest that mitigation

was urged or instructed on the issue of compensatory damages, and even if it had

- 14 -
been so urged or instructed, we fail to see how that would cast doubt on the

correctness of the district court’s consideration of Dilley’s failure to mitigate in

awarding back pay. Dilley’s unsupported assertion that the district court’s back

pay award amounts to a windfall for SuperValu is unconvincing.

VI. Punitive damages.

Dilley asserts that he was entitled to a jury determination of his punitive

damages claim. In dismissing the claim pursuant to SuperValu’s Rule 50 motion,

the court ruled:

Other than the fact that the defendant insisted upon acting in accordance
with its expert’s conclusion concerning the disability of the plaintiff . . .
I see nothing in the record that suggests that the defendant was acting
with malice or reckless indifference toward the rights of the plaintiff as
a disabled individual. If anything, they seemed to be trying to follow
the law. And there is no evidence from which a reasonable juror could
infer that the defendant acted with reckless disregard or malice of the
plaintiff’s rights under the Americans With Disabilities Act.

“Whether sufficient evidence exists to support punitive damages is a

question of law reviewed de novo.” EEOC v. Wal-Mart Stores, Inc., 187 F.3d

1241, 1244 (10th Cir. 1999) (quoting Fitzgerald v. Mountain States Tel. & Tel.

Co., 68 F.3d 1257, 1262 (10th Cir. 1995)). “[A] court may award punitive

damages to an ADA plaintiff upon proof that the defendant engaged in ‘a

discriminatory practice or discriminatory practices with malice or reckless

indifference to the federally protected rights of an aggrieved individual.’” Id.

- 15 -
(quoting 42 U.S.C. § 1981a(b)(1)). To satisfy this standard, “an employer must at

least discriminate in the face of a perceived risk that its actions will violate

federal law.” Id. at 1245 (quoting Kolstad v. Am. Dental Ass’n, 527 U.S. 526,

536 (1999)).

Dilley recites several facts in an attempt to show that “SuperValu was

aware of the requirement to accommodate Dilley, but ignored it.” None are

convincing. As discussed above, SuperValu declined to assign Dilley to non-

lifting driving routes on the ground that he would subsequently be bumped based

on the seniority system set forth in the collective bargaining agreement.

SuperValu’s concern may have been misplaced, but it cannot be viewed as in

deliberate disregard for Dilley’s ADA rights. The other facts relied on by Dilley

– e.g., SuperValu’s inability to find a new truck seat acceptable to Dilley, having

Dilley removed from the premises after an altercation with a member of

SuperValu’s management – also fail to establish such a disregard. The district

court’s dismissal of Dilley’s punitive damages claim was entirely proper.

VII. Reinstatement.

Dilley objects to the district court’s ruling that Dilley’s failure to mitigate

precluded his reinstatement. The district court denied reinstatement based on the

following reasoning:

- 16 -
 Frontpay and reinstatement are alternative remedies to make the victim
of discrimination whole. Spulak v. K-Mar[t] Corp., 894 F.2d at 1157.
Entitlement to either remedy depends upon whether the plaintiff has
mitigated his damages and whether he is made whole by other relief.
See [Albemarle Paper Co. v. Moody, 422 U.S. 405, 419-21 (1975)];
Starrett v. Wadley, 876 F.2d 808, 824 (10th Cir. 1989). If either of
these issues is decided adversely to the plaintiff, then relief is not
proper. Spulak, 894 F.2d at 1158. Such is the case here as I have
determined that plaintiff has not reasonably mitigated damages since
July, 1995. To the extent plaintiff’s claim for frontpay remains an issue
before me, the failure to mitigate also precludes that claim in addition
to any entitlement to reinstatement.

It is true that a district court has “broad discretion in fashioning relief to

achieve the broad purpose of eliminating the eff[ects] of discriminatory practices

and restoring the plaintiff to the position that she would have likely enjoyed had it

not been for the discrimination.” Fitzgerald v. Sirloin Stockade, Inc., 624 F.2d

945, 957 (10th Cir. 1980). Under these circumstances, however, the district court

abused its discretion in denying reinstatement – at least for the reasons proffered.

The failure to mitigate relied on by the district court was Dilley’s failure to

pursue available truck driving jobs with other employers. Such failure does not

bear on Dilley’s entitlement to reinstatement. Mitigation is relevant to

determining a plaintiff’s entitlement to back pay, see supra part V, and front pay,

see, e.g., Gotthardt v. Nat’l R.R. Passenger Corp., 191 F.3d 1148, 1157 (9th Cir.

1999); Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1562 (11th Cir. 1988), but

there is no logical link between a plaintiff’s pursuit of alternative employment

and whether he should be reinstated to the position from which he was wrongfully

- 17 -
discharged. 3 A plaintiff’s ability to replace some of the income lost by virtue of

the wrongful discharge certainly affects how much lost income he is due, but it

does not bear on whether the plaintiff is entitled to the job itself. This is reflected

in the reality that courts routinely find that a plaintiff’s failure to mitigate negates

or reduces his claim for back pay or front pay, but nevertheless analyze his claim

for reinstatement without even referencing the mitigation finding. See Hazel v.

United States Postmaster Gen., 7 F.3d 1, 5 (1st Cir. 1993); Reneau v. Wayne

Griffin & Sons, Inc., 945 F.2d 869, 870 (5th Cir. 1991); Hansard v. Pepsi-Cola

Metro. Bottling Co., 865 F.2d 1461, 1470 (5th Cir. 1989) (“[I]f the district court

finds on remand that [the plaintiff] cannot be reinstated, the court must consider

his failure to mitigate his damages in determining the extent to which, if at all,

front pay is appropriate.”). The district court’s reasoning also runs counter to

those cases where courts have reduced damages based on a failure to mitigate

even where reinstatement has been ordered. See, e.g., Brady v. Thurston Motor

Lines, Inc., 753 F.2d 1269, 1271, 1280 (4th Cir. 1985); Alicea Rosado v. Garcia

Santiago, 562 F.2d 114, 117, 120 (1st Cir. 1977).

3
This is not to say that all types of mitigation are irrelevant to the
reinstatement inquiry. See, e.g., Nelson v. Univ. of Me. Sys., 944 F. Supp. 44,
50-51 (D. Me. 1996) (denying professor’s request for reinstatement and tenure
where he declined invitation to reapply for tenure, thereby not allowing “the
University the opportunity to rectify its error”).

- 18 -
 The three cases cited by the district court do not, under any reasonable

interpretation, support its conclusion. The cited cases say nothing that would

even suggest a connection between mitigation and reinstatement. Spulak comes

the closest, holding that the defendant was not entitled to a reduction in damages

where the plaintiff presented evidence of mitigation, although it appears likely, in

context, that the court was discussing back pay. 894 F.2d at 1158. The Spulak

court denied reinstatement based not on the failure to mitigate, but on the

plaintiff’s request not to order reinstatement given his fear of being retaliated

against by his former coworkers. See id. at 1157.

It may be that there are other grounds for denying Dilley reinstatement in

this case. But the reasoning set forth in the district court’s order does not warrant

such a denial, especially given that “reinstatement is the preferred remedy under

the ADA.” Davoll, 194 F.3d at 1144 n.19. The district court’s ruling is vacated

and remanded on this point alone.

CONCLUSION

For the foregoing reasons, we VACATE and REMAND the district court’s

denial of Dilley’s motion for reinstatement, and AFFIRM the judgment in all

other respects. Dilley’s request for his appellate attorney’s fees is GRANTED.

- 19 -