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Equal Employment Opportunity Commission v. Dolgencorp, LLC

United States District Court, E.D. Tennessee

September 28, 2017

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
DOLGENCORP, LLC, Defendant. and LINDA K. ATKINS, Intervening Plaintiff,

          MEMORANDUM OPINION AND ORDER

          THOMAS A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE

         This civil action is before the Court on the following motions: (1) defendant's Motion to Amend Judgment and Motion for Judgment as a Matter of Law or, Alternatively, for New Trial [Doc. 159]; (2) plaintiff Equal Employment Opportunity Commission's (the “EEOC”) Motion for Permanent Injunction [Doc. 161]; and (3) defendant's Motion to Disregard Issues Raised for the First Time in EEOC's Reply, or in the Alternative, for Leave to File a Sur-Reply [Doc. 200]. The parties filed several responses and replies to these pending motions [Docs. 179, 182, 188, 193, 194, 199].

         Also before the Court is the Report and Recommendation (the “R&R”) issued by the Honorable H. Bruce Guyton, United States Magistrate Judge [Doc. 214]. In the R&R, Judge Guyton recommends granting in part and denying in part intervening plaintiff Linda Atkins's Motions for Award of Attorneys' Fees and Costs [Docs. 163, 202, 211]. Defendant filed objections to the R&R [Doc. 217], and Atkins responded to those objections [Doc. 218].

         For the reasons discussed herein, the Court will: (1) deny defendant's Motion to Amend Judgment and Motion for Judgment as a Matter of Law or, Alternatively, for New Trial [Doc. 159]; (2) grant in part and deny in part the EEOC's Motion for Permanent Injunction [Doc. 161]; (3) grant defendant's Motion to Disregard Issues Raised for the First Time in EEOC's Reply, or in the Alternative, for Leave to File a Sur-Reply [Doc. 200]; (4) overrule defendant's objections to the R&R [Doc. 217]; (5) accept the R&R in whole [Doc. 214]; and (6) grant in part and deny in part Atkins's Motions for Award of Attorneys' Fees and Costs [Docs. 163, 202, 211].

I. Procedural Background[1]

         This action arises from defendant's alleged discriminatory actions against Linda Atkins in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”). The EEOC filed its complaint against defendant on September 23, 2014 [Doc. 1], and Atkins filed her intervenor complaint on December 18, 2014 [Doc. 12].[2] Plaintiffs' ADA claims based on defendant's failure to accommodate Atkins's disability and discharge of Atkins because of her disability proceeded to a jury trial, which took place September 12-16, 2016 [Docs. 151-56]. At trial, the jury found in favor of plaintiffs on both claims and awarded Atkins $27, 565.44 in back pay and $250, 000 in compensatory damages [Doc. 148]. The jury determined, however, that plaintiffs had not met their burden of showing that defendant acted with malice or reckless indifference to Atkins's rights under the ADA and, consequently, the jury declined to award punitive damages against defendant [Id.]. Consistent with the jury verdict, the Court entered judgment in this case on September 23, 2016 [Doc. 149].

         All parties subsequently filed post-trial motions.[3] The Court will address the following motions in turn: (1) defendant's motion to amend judgment; (2) defendant's motion for judgment as a matter of law; (3) defendant's motion for a new trial; (4) defendant's motion to reduce the jury award; (5) defendant's motion to disregard portions of the EEOC's reply or for leave to file a sur-reply; and (6) the EEOC's motion for injunctive relief. Lastly, the Court will address Judge Guyton's R&R [Doc. 214], which includes a recommended disposition of Atkins's motions for attorney's fees and costs [Docs. 163, 202, 211].

         II. Motion to Amend Judgment

         Defendant moves the Court to alter or amend the judgment in this case pursuant to Federal Rule of Civil Procedure 59(e). Specifically, defendant asks the Court to reconsider its previous analysis of 42 U.S.C. § 2000e-5(e)(1) regarding the applicable administrative filing deadline, enforce a 180-day deadline, and accordingly amend the judgment to dismiss plaintiffs' claims as untimely.

         “A district court may grant a Rule 59(e) motion to alter or amend judgment only if there is: ‘(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice.'” Henderson v. Walled Lake Consol. Schs., 469 F.3d 479, 496 (6th Cir. 2006) (quoting Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005)). Rule 59 motions “are not intended as a vehicle to relitigate previously considered issues . . . and are not the proper vehicle to attempt to obtain a reversal of a judgment by offering the same arguments previously presented.” Kenneth Henes Special Projects Procurement v. Cont'l Biomass Indus., Inc., 86 F.Supp.2d 721, 726 (E.D. Mich. 2000) (emphasis and citation omitted); see also Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998) (noting that a Rule 59(e) motion “is not an opportunity to re-argue a case” nor an avenue to raise arguments that “could have, but [were] not” raised before); Beltowski v. Bradshaw, No. 1:08-cv-2651, 2009 WL 5205368, at *4 (N.D. Ohio Dec. 23, 2009) (“The motion for reconsideration should not provide the parties with an opportunity for a second bite at the apple.”).

         “The grant or denial of a Rule 59(e) motion is within the informed discretion of the district court.” Constr. Helicopters, Inc. v. Heli-Dyne Sys., Inc., Nos. 88-1166, 88-1192, 1989 WL 54111, at *4 (6th Cir. May 23, 1989) (citations omitted)). The narrow aims of Rule 59(e) focus on empowering district courts to rectify their own mistakes immediately following the entry of judgment. See United States v. Willyard, No. 3:07-cr-44, 2008 WL 471683, at *2 (E.D. Tenn. Feb. 19, 2008) (citations omitted). The moving party must “set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” McDaniel v. Am. Gen. Fin. Servs., No. 04-2667 B, 2007 WL 2084277, at *2 (W.D. Tenn. July 17, 2007).

         Defendant argues the Court should amend the judgment because the Court committed a clear error of law and there is a need to prevent manifest injustice. In particular, defendant asserts that a 180-day administrative filing deadline is applicable to plaintiffs' claims. Defendant has repeated this argument in multiple filings before the Court [Docs. 28, 29, 39, 49, 96, 97, 104, 127, 133], and the Court has rejected it in two separate opinions [Doc. 66 pp. 24-27; Doc. 139 pp. 5-10].

         The Court previously interpreted the phrase “unlawful employment practice, ” set forth in 42 U.S.C. § 2000e-5(e)(1), as encompassing the practice of disability discrimination generally [Doc. 139 pp. 5-10]. Defendant contends that this finding constitutes clear error as, according to defendant, the phrase unlawful employment practice “has consistently and unambiguously referred in federal law-and the EEOC's own guidance-to specific employment practices as discriminatory hiring, promotion, discipline, or failure to accommodate, not ‘disability discrimination generally'” [Doc. 172 pp. 5-6].

         The Court detailed, in two different opinions, the rationale behind its interpretation of the phrase “unlawful employment practice, ” and the Court notes that Rule 59 motions “are not intended as a vehicle to relitigate previously considered issues.” Kenneth Henes Special Projects Procurement, 86 F.Supp.2d at 726. Entertaining defendant's previously litigated argument would provide defendant not only with an improper “second bite at the apple, ” but a third. See Beltowski, 2009 WL 5205368, at *4. As such, the Court finds that defendant's argument concerning the proper interpretation of § 2000e-5(e)(1) is inappropriate for purposes of a motion for reconsideration. Furthermore, the Court finds that defendant has not “set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” McDaniel, 2007 WL 2084277, at *2.

         Accordingly, the Court will deny defendant's motion for reconsideration for the same reasons set forth in its previous opinions [Doc. 66 pp. 24-27; Doc. 139 pp. 5-10]. The Court incorporates by reference its previous analyses in these opinions on the issue of the timeliness of plaintiffs' claims.

         III. Motion for Judgment as a Matter of Law

         Defendant also moves for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50. Rule 50 permits a party to renew a motion for judgment as a matter of law within twenty-eight days of the entry of judgment. Fed.R.Civ.P. 50(b). “In ruling on the renewed motion, the court may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law.” Id.

         To succeed on a motion for judgment as a matter of law, the movant must show that a “reasonable jury would not have a legally sufficient evidentiary basis” to find for the non-moving party. Fed.R.Civ.P. 50(a)(1). In considering this question, the Court may not weigh the evidence or question the credibility of the witnesses. Schwartz v. Sun Co. (R&M), 276 F.3d 900, 903 (6th Cir. 2002). Ultimately, the Court may not substitute the jury's judgment for its own. Id. Rather, the Court “must view the evidence in the light most favorable to the party against whom the motion is made, drawing from that evidence all reasonable inferences in his favor.” Id. (citation and internal quotation marks omitted).

         Defendant asserts that it is entitled to judgment as a matter of law as to plaintiffs' failure to accommodate and discriminatory discharge claims. The Court will first address the failure to accommodate claim and will then turn to the discriminatory discharge claim.

         A. Failure to Reasonably Accommodate Claim

         Defendant submits that it is entitled to judgment as a matter of law on plaintiffs' failure to reasonably accommodate claim because: (1) plaintiffs did not present proof that Atkins actually needed an accommodation; and (2) defendant did not have an obligation to engage in the interactive process. The Court will address these arguments in turn.

         1. Necessary Accommodation

         In order to prevail on a reasonable accommodation claim, a plaintiff must show that the employer failed to provide a necessary accommodation. Johnson v. Cleveland City Sch. Dist., 443 F. App'x 974, 982-83 (6th Cir. 2011). Defendant asserts that no reasonable juror could have concluded that Atkins actually needed an accommodation because Atkins already had “numerous viable options” available to prevent a hypoglycemic episode, “none of which required a variation from [defendant's] policy” [Doc. 172 p. 11].

         Defendant points out that Atkins's primary care provider, Linda Thayer, testified that a diabetic patient experiencing low blood sugar should “ingest glucose in some form, approximately 100 calories” [Doc. 151 p. 104]. Thayer further provided that a patient can fit multiple forms of glucose in her pockets, including: glucose tablets, gels, liquids, candy, and foods with sugar in them, such as a pack of peanut butter crackers [Id. at 117-19, 21]. In addition, Thayer explained that, irrespective of a patient's preference, all of those options are equally viable [Id. at 119]. She also stated that she regularly discusses such treatment options with her patients [Id. at 122].

         During the trial, Atkins admitted that: (1) she has carried candy to address low blood sugar in the past; (2) she previously purchased glucose tablets, which she kept in her car; (3) a package of peanut butter crackers would prevent a hypoglycemic episode; and (4) she used honey for low blood sugar episodes [Doc. 151 pp. 156-57, 161, 163; Doc. 154 p. 68]. Atkins stated that “lots of things work, ” but that she preferred orange juice to other alternatives [Doc. 4 p. 68');">154 p. 68]. Based on this evidence, defendant asserts that “[n]o reasonable juror could conclude that Atkins did not have viable options available to her to address her low blood sugar, options of which she was aware and which were medically effective” [Doc. 172 p. 12].

         The Court finds, however, that even if this evidence established, as a matter of law, that these other options were medically effective, and that Atkins knew they were medically effective, a reasonable juror could have concluded that Atkins did not know that exercising such options would not violate defendant's policies. Defendant's “Personal Appearance” policy states, “Employees should not chew gum or eat/drink, except during breaks (which should not be taken on the sales floor, at registers, etc.)” [Doc. 28-1 p. 101]. Viewing this evidence in the light most favorable to plaintiffs, a reasonable jury could conclude that a policy prohibiting an employee from chewing gum and eating food would also prohibit an employee from consuming items such as glucose tablets, cough drops, candy, and honey packets.

         Defendant points out that plaintiffs did not present any proof that defendant has ever prohibited its employees from taking medication. However, plaintiffs presented evidence that Atkins's manager, Wanda Shown, indicated it would be against company policy for Atkins to drink orange juice at the register, even though it was for a medical purpose [Doc. 154 pp. 16-17]. Although Jeri West, defendant's Employee Relations Manager, testified that defendant would not prohibit Atkins from having glucose tablets, cough drops, candy, or honey packets at the register [Doc. 155 pp. 157-58], a reasonable jury could determine that this testimony is contrary to the information Wanda Shown gave Atkins regarding consuming juice at the register. While defendant contends that ingesting glucose tablets, cough drops, candy, or honey packets would not be in violation of the Personal Appearance policy, a reasonable jury could conclude that these items are analogous to food or gum, and that the policy prohibits eating food or chewing gum at the register. The Court also notes that the Personal Appearance policy does not contain an exception for taking medication [See Doc. 28-1 p. 101].

         Because a reasonable jury could conclude that Atkins did not know whether having glucose tablets, cough drops, candy, or honey packets at the register violated defendant's policies, and because Wanda Shown did not inform her that she was allowed to have these items for a medical purpose, a reasonable jury could conclude that Atkins needed an accommodation. If, as defendant argues, having glucose tablets, cough drops, candy, or honey packets at the register would not violate the Personal Appearance policy, then defendant should have engaged in the interactive process and discussed those options with Atkins after she requested an accommodation. The Court will further address this issue below.

         2. The Interactive Process

         Defendant argues that it is entitled to judgment as a matter of law because it was not obligated to engage in the interactive process. Once an employee requests an accommodation, “the employer has a duty to engage in an ‘interactive process' to ‘identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.'” Melange v. City of Center Line, 482 F. App'x 81, 84 (6th Cir. 2012) (citing Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 871 (6th Cir. 2007)). This “interactive process is mandatory, and both parties have a duty to participate in good faith.” Kleiber, 485 F.3d at 871.

         “Employers who fail to engage in this interactive process in good faith face liability under the ADA if reasonable accommodations would have been possible.” Burress v. City of Franklin, 809 F.Supp.2d 795, 813 (M.D. Tenn. 2011) (quoting Lafata v. Church of Christ Home for the Aged, 325 F. App'x 416, 422 (6th Cir. 2009)). A claim for a failure to engage in an interactive process requires that the employee demonstrate that she “could have been reasonably accommodated but for the employer's lack of good faith.” Breitfelder v. Leis, 151 F. App'x 379, 386 (6th Cir. 2005). However, where the reasonable accommodation is obvious, it may not be necessary for the parties to engage in the interactive process. See 29 C.F.R. § 1630.9, App. (“In many instances, the appropriate reasonable accommodation may be so obvious to either or both the employer and the individual with a disability that it may not be necessary to proceed in this step-by-step fashion.”).

         Here, defendant does not dispute that Atkins requested an accommodation and that defendant did not engage in the interactive process. Rather, defendant argues that it did not need to engage in the interactive process because doing so would have turned defendant into a de facto healthcare provider and because the other options available to Atkins were obvious.

         As to defendant's first point, it argues that engaging in the interactive process would require it to opine on whether ingesting glucose tablets, cough drops, candy, or honey packets are equally effective at preventing hypoglycemic attacks as drinking orange juice. The Court finds, however, that defendant misconstrues the purpose of the interactive process in this case. The purpose of the interactive process here would be for Atkins to suggest medically effective solutions and for defendant to inform Atkins either that those solutions did not violate defendant's policies, or that defendant could provide exceptions to such policies as a reasonable accommodation.

         After Atkins asked Shown if she could carry orange juice at the register, instead of telling her to be careful of the cameras, Shown could have asked Atkins whether there was something smaller she could carry that would prevent a hypoglycemic episode. At which point, Atkins could have either suggested items like glucose tablets, cough drops, candy, or honey packets, or she could have consulted with her medical provider. Shown also could have referred Atkins to Jeri West, who could have then informed Atkins that carrying and eating glucose tablets, cough drops, candy, or honey packets at the register would not violate defendant's policies. Had Shown referred Atkins to another manager, the jury heard evidence that another manager would have provided plaintiff with her requested accommodation. Matthew Irwin, defendant's Regional Loss Prevention Manager, testified that defendant would have allowed Atkins to keep juice at the register for medical reasons and that doing so would not have been an undue hardship on defendant [Doc. 153 p. 114].

         Because defendant failed to engage in this process, however, a reasonable jury could conclude that defendant failed in its obligation to “make a reasonable effort to determine the appropriate accommodation.” Gantt v. Wilson Sporting Goods, Co., 143 F.3d 1042, 1046 (6th Cir. 1998). Consequently, the Court finds that defendant's argument that engaging in the interactive process would turn defendant into a de facto healthcare provider is without merit.

         Defendant also argues that it had no obligation to engage in the interactive process because Atkins's other options were obvious. As the Court has already discussed, however, a reasonable jury could determine that eating glucose tablets, cough drops, candy, or honey packets at the register, even if the employee did so for a medical purpose, would not comply with defendant's Personal Appearance policy. As such, the Court finds that a reasonably jury could conclude that Atkins did not have any obvious viable options available to her.

         Based on the evidence presented at trial, a reasonable jury could have concluded that defendant had an obligation to participate in the interactive process, and failed to do so. In sum, upon review of the evidence, the Court finds that defendant is not entitled to judgment as a matter of law as to plaintiffs' failure to accommodate claim because the evidence at trial presented a legally sufficient evidentiary basis for the jury to find defendant liable as to that claim.

         B. Discriminatory Discharge Claim

         Defendant contends that it is entitled to judgment as a matter of law as to plaintiffs' discriminatory discharge claim because: (1) no reasonable juror could have concluded Atkins was replaced, the job remained open, or similarly situated non-protected employees were treated more favorably; and (2) there is no cause of action for termination flowing from a failure to accommodate. The Court will address these arguments in turn.

         1. Whether Atkins Was Replaced, the Job Remained Open, or Similarly Situated Non-Protected Employees Were Treated More Favorably

         For plaintiffs to prevail on their claim for discriminatory discharge, plaintiffs must have submitted proof that Atkins was replaced, the job remained open, or similarly situated non-protected employees were treated more favorably. Hopkins v. Elec. Data Sys. Corp., 196 F.3d 655, 660 (6th Cir. 1999). Defendant contends that plaintiffs did not make this showing because defendant presented evidence at trial that two non-disabled workers, Mark Beaver and Sandra Viefeld, were terminated on the same day as Atkins, by the same supervisors, and for the same reason Atkins was terminated.

         A plaintiff cannot show dissimilar treatment if the evidence establishes that she “was treated the same as a similarly situated individual outside [the] protected class[].” See Key v. Cincinnati Hamilton Cty. Cmty. Action Agency, No. 1:09-CV-139, 2011 WL 4548922, at *10 (S.D. Ohio 2011) (applying this principle to race and age discrimination). In determining whether employees are similarly situated, it is necessary to consider “whether the individuals have dealt with the same supervisor, have been subject to the same standard[, ] and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or their employer's treatment of them for it.” Wright v. Murray Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2007) (citations and internal quotation marks omitted).

         In the Court's previous Memorandum Opinion and Order denying summary judgment, the Court determined that Viefeld and Beaver were not similarly situated to Atkins because they, unlike Atkins, did not violate the anti-grazing policy due to a medical emergency [Doc. 66 p. 45]. The Court found that this distinction constituted a differentiating or mitigating circumstance and, therefore, that Viefeld and Beaver's termination could not negate plaintiffs' showing of dissimilar treatment [Id.].

         During trial, the Court instructed the jury that in considering whether defendant treated other employees the same as Atkins, it should consider whether the employees were “the same in all relevant aspects, ” and gave examples of factors to consider in making the determination of whether the employees were “similarly situated” [Doc. 156 pp. 192-93]. Upon review of the evidence, a reasonable jury could conclude, as the Court previously did, that Viefeld and Beaver were not similarly situated to Atkins, and thus, were not comparable under the circumstances.

         Although a reasonable jury could have determined that Viefeld and Beaver were not comparable under the circumstances, plaintiffs still must have otherwise shown that Atkins was replaced, the job remained open, or similarly situated non-protected employees were treated more favorably than Atkins. Atkins argues that it would have been reasonable for the jury to conclude that defendant treated similarly situated, non-protected employees more favorably when it did not discipline, let alone discharge, Wanda Shown or Tracy Choate for allowing grazing in their store.

         Employees do not have to engage in identical conduct to be “similarly situated.” Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 778 n.4 (6th Cir. 2016). Rather, in determining whether employees are similarly situated, the focus should be “on the severity of the differently treated employees' actions, ” including “the actual and potential consequences of the employee's actions.” Id. at 780.

         Here, the jury heard evidence that Choate saw Atkins buy Little Debbie cakes that she had already consumed [Doc. 154 pp. 250-51]. The jury also heard evidence that Matt Irwin was aware that Choate had witnessed employees grazing [Doc. 155 p. 92]. Despite defendant's policy that store managers can be disciplined for allowing employees to violate the grazing policy, Choate was not disciplined for her actions [Id.; Doc. 4 p. 253');">154 p. 253]. In addition, the jury heard evidence that Matt Irwin and Scott Strange were aware that Shown had previously excused Atkins's grazing [Doc. 154 pp. 170-71]. However, Irwin and Strange did not discuss this violation with Shown and did not discipline her for excusing Atkins's grazing. [Doc. 153 p. 112; Doc. 154 pp. 170-71].

         As defendant considered grazing a terminable offense, a reasonable jury could conclude that defendant's decision not to terminate, or even discipline, Choate and Shown for excusing grazing resulted in defendant treating similarly situated non-protected employees more favorably than Atkins. Consequently, it was reasonable for the jury to conclude that defendant treated similarly situated, non-protected employees more favorably than Atkins.

         2. Discriminatory Discharge Resulting From a Failure to Accommodate

         Defendant asserts that it is entitled to judgment as a matter of law on plaintiffs' discriminatory discharge claim because there is no separate cause of action for a termination resulting from a failure to accommodate. Defendant contends that Atkins's termination would, at most, represent a measure of her damages, not a stand-alone claim.

         One case defendant cites to support this position is Bartee v. Michelin N. Am., Inc., 374 F.3d 906 (10th Cir. 2004). In that case, a jury returned a verdict in favor of the employee on the failure to accommodate claim and in favor of the employer on the wrongful termination claim. Id. at 910, 911 n.1 (indicating that the jury received a verdict form with two separate claims). The court in Bartee found that because the elements of the two claims differ, “they appear to present separate and distinct causes of action, ” and, consequently, that the jury verdict was consistent despite its finding that the employer was liable for the failure to accommodate claim and that the employer was not liable for the discriminatory discharge. Id. at 911. Although the employee asserted that the failure to accommodate led to his discharge, the jury disagreed. Bartee v. Michelin N. Am., Inc., 160 F. App'x 810, 812-13 (10th Cir. 2006) (“Bartee II”).

         Here, as in Bartee, the jury could have determined that plaintiffs satisfied the elements of their failure to accommodate claim, but that the discharge was not discriminatory. For example, the jury could have credited the testimony that the termination resulted from plaintiff's violation of the anti-grazing policy by eating Little Debbie cakes. Consequently, the Court finds that Bartee and Bartee II support the proposition that a plaintiff can allege separate causes of action for a failure to accommodate and a discriminatory discharge based on that failure to accommodate. See, e.g., Gandall v. Flightsafety Int'l, Inc., No. 12-CV-82, 2012 WL 3000257, at *1 (N.D. Okla. July 23, 2012) (citing Bartee for the proposition that a plaintiff can plead failure to accommodate and discriminatory discharge as separate claims).

         Accordingly, the Court finds that a reasonable jury could find that plaintiffs proved their discriminatory discharge claim based on a failure to accommodate. As the Court has determined that all of defendant's arguments in favor of its motion for judgment as a matter of law are without merit, the Court will deny that motion.

         IV. Motion for a New Trial

         Defendant also moves for a new trial under Federal Rule of Civil Procedure 59(a). A new trial is warranted under Rule 59(a) “when a jury has reached a ‘seriously erroneous result' as evidenced by: (1) the verdict being against the weight of the evidence; (2) the damages being excessive; or (3) the trial being unfair to the moving party in some fashion, i.e., the proceedings being influenced by prejudice or bias.” Holmes v. City of Massillion, 78 F.3d 1041, 1045-46 (6th Cir. 1996). In addition, a party may move for a new trial based on a trial court's erroneous admission of evidence or improper jury instructions amounting to “more than harmless error.” Kendel v. Local 17-A UFCW, 512 F. App'x 472, 479 (6th Cir. 2013). Harmless error results when the Court has “fair assurance” that the outcome of the trial was not affected by the error. Id.

         Defendant argues that it is entitled to a new trial because: (1) the verdict was against the weight of the evidence; (2) the Court provided improper jury instructions; (3) the Court erroneously excluded evidence; and (4) the damages were excessive. The Court will address each of these arguments in turn.

         A. Weight of the Evidence

         In deciding a Rule 59(a) motion based on the weight of the evidence, the Court “must compare the opposing proofs, weigh the evidence, and set aside the verdict if it is of the opinion that the verdict is against the clear weight of the evidence.” Strickland v. Owens Corning, 142 F.3d 353, 357 (6th Cir. 1998). The Court may grant a motion for a new trial based on the weight of the evidence upon on a lower showing than that required for granting a motion for judgment as a matter of law. Denhof v. City of Grand Rapids, 494 F.3d 534, 543 (6th Cir. 2007). However, the Court “should deny the motion if the verdict is one which could reasonably have been reached, and the verdict should not be considered unreasonable simply because different inferences and conclusions could have been drawn or because other results are more reasonable.” Strickland, 142 F.3d at 357.

         In support of its argument for a new trial based on the verdict being against the weight of the evidence, defendant refers to its arguments in favor of its motion for judgment as a matter of law. Specifically, defendant argues that the verdict was clearly against the weight of the evidence because Atkins had viable and obvious options to address any low blood sugar episode, and these options would not have required defendant to excuse her from its policies. In addition, defendant asserts that because Atkins was treated the same as non-disabled comparable employees, plaintiffs did not establish that defendant treated similarly situated, non-protected employees more favorably.

         The Court incorporates its previous discussion of these issues and finds that even in light of the lower standard applicable to a motion for a new trial, and after weighing the evidence, the jury verdict was reasonable based on the evidence the parties presented at trial. In particular, the Court notes that the Personal Appearance policy does not contain an exception for taking medication [see Doc. 28-1 p. 101], and because defendant did not engage in the interactive process, the Court finds that the weight of the evidence supports finding that Atkins did not know about the other allegedly viable options. The Court has also detailed the differentiating circumstances between Atkins and those of Viefeld and Beaver, and the Court finds that such circumstances justify the jury's determination that Atkins was not similarly situated to Viefeld and Beaver. Accordingly, the Court finds that the weight of the evidence does not support finding that defendant is entitled to new trial in this matter.

         B. Improper Jury Instructions

         Defendant also asserts that it is entitled to a new trial based on the Court's allegedly improper jury instructions. Jury instructions are proper if, as a whole, they “fairly and adequately submitted the issues and applicable law to the jury.” Arban v. W. Publ'g Corp., 345 F.3d 390, 404 (6th Cir. 2003). A post-trial “inquiry into jury instructions is limited to whether, taken as a whole, the instructions adequately inform the jury of the relevant considerations and provide the jury with a sound basis in law with which to reach a conclusion.” Pivnick v. White, Getgey & Meyer Co., 552 F.3d 479, 488 (6th Cir. 2009). Erroneous jury instructions do not warrant granting the defendant a new trial if the instructions constitute harmless error. Kendel, 512 F. App'x at 479.

         When a court refuses to give a proposed jury instruction, that refusal warrants reversal if: “(1) the omitted instruction is a correct statement of the law, (2) the instruction is not substantially covered by other delivered charges, and (3) the failure to give the instruction impairs the requesting party's theory of the case.” Decker v. GE Healthcare Inc., 770 F.3d 378, 396 (6th Cir. 2014).

         Defendant contends that the Court erroneously instructed the jury by: (1) charging the jury with a termination for disability related conduct claim; (2) failing to provide a business judgment rule instruction; and (3) failing to provide an ...


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