Welcome to the new year everyone.

 

This week’s blog entry is an update on Granas v. Union Pacific Railroad Company, which we blogged on here. Subsequent to that blog entry, Union Pacific moved for judgment as a matter of law or a new trial. The court, here, was having none of it. Since we blogged on the case previously, we don’t need to explore the facts. So, the categories for this blog entry are: when can a jury verdict be overturned by a post-trial motion; when can a bench trial decision be overturned by a post-trial motion; the jury heard plenty of evidence showing that the plaintiff was a qualified individual under the ADA and Oregon law; Union Pacific’s business necessity and job-related defenses do not rise to the level where post-trial motions can be granted; substantial evidence exists for the punitive damages award; excessive punitive damages verdict argument does not fly; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

When Can a Jury Verdict Be Overturned by a Post-trial Motion

 

  1. A jury verdict can be overturned with a post-trial motion only if under the governing law, there is one reasonable conclusion to the verdict.
  2. In deciding to whether to overturn a jury verdict, a court has to view the evidence in the light most favorable to the nonmoving party and draw all reasonable evidentiary inferences in favor of the nonmoving party.
  3. The court has to uphold a jury’s verdict even if the record contains evidence that might support a contrary conclusion to the jury’s verdict.
  4. In the Ninth Circuit, a trial court may grant a new trial only if the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice.
  5. The jury verdict is generally upheld on appeal if there is some reasonable basis for the jury’s verdict.

 

II

When Can a Bench Trial Decision Be Overturned by a Post-trial Motion

 

  1. While compensatory damages were decided by the jury, punitive damages and equitable damages are decided by the court.
  2. Three grounds exist for granting new trials in court-tried actions and they are: 1) manifest error of the law; 2) manifest error of fact; and 3) newly discovered evidence.
  3. With respect to a motion for reconsideration, it doesn’t get granted absent highly unusual circumstances, unless the court is presented with newly discovered evidence, committed clear error, or in the event of an intervening change in the controlling law.

 

III

The Jury Heard Plenty of Evidence Showing That the Plaintiff was a Qualified Individual per the ADA and Oregon Law

 

  1. The elements of a disability discrimination claim under the ADA and the Oregon law applicable to disability discrimination are the same and they involve the employee proving that he was: 1) disabled under the Act; 2) a qualified individual with a disability; and 3) discriminated against because of the disability.
  2. As discussed in the previous blog entry, here, plenty of evidence existed to support a jury reasonably finding that the plaintiff was a qualified person with a disability when the evidence is viewed in the light most favorable to the non-moving party. Further, nothing exists to suggest that the trial was not fair to the defendant.

IV

Union Pacific’s Business Necessity and Job-Related Defenses Do Not Rise to the Level Where Post-trial Motions Can Be Granted

 

  1. Per 42 U.S.C. §12112(b)(6) (the opinion has a typo in it as it references 42 U.S.C. §1211(b)(6) when it should be 42 U.S.C. §12112(b)(6)), an employer can only use a standard, test, or selection criteria if it is shown to be job-related and consistent with business necessity.
  2. Business necessity standard is met if the employer is faced with significant evidence causing a reasonable person to inquire as to whether an employee is still capable of performing his job.
  3. The employer has the burden of proving that a screening standard satisfies the business necessity defense.
  4. The business necessity standard is a high one and not to be confused with mere expediency.
  5. In the Ninth Circuit, the business necessity defense is rarely demonstrated, and courts have had little occasion to apply the defense.
  6. Evidence at trial showed that Union Pacific’s decision to remove plaintiff permanently was not the result of careful evaluation, but instead was the result of an application of a strict policy that automatically disqualified employees with shoulder dislocation.
  7. To show that its policy was job-related, Union Pacific needed to prove at trial, that the blanket policy used to disqualify the plaintiff fairly and accurately measured the individual’s actual ability to perform the essential functions of the job.
  8. When every person excluded by the qualification standard is a member of the protected class (disabled in this case), an employer has to demonstrate a predictive or significant correlation between the qualification and performance of the job’s essential functions.
  9. An employer using a business necessity defense must validate the test or exam in question for job-relatedness to the specific skills and physical requirements of the position.
  10. From the testimony of the people treating the plaintiff as well as expert opinion, a reasonable jury could conclude that the blanket rule prohibiting the continued employment of any individual with an anterior shoulder dislocation was arbitrary. Accordingly, viewing the evidence in the light most favorable to the nonmoving party, the jury’s verdict that Union Pacific had a discriminatory policy gets upheld.

 

V

Substantial Evidence Exists for the Punitive Damages Award

 

  1. Substantial evidence existed (see the discussion in our original blog entry, here), to support a finding that Union Pacific had sufficient malice, or a reckless and outrageous indifference to a highly unreasonable risk of harm.
  2. The court did not make the punitive damages decision lightly as it took briefing on the issue after trial and made extensive findings in its opinion. Accordingly, no reason exists for the court to depart from it findings and legal conclusions it previously adopted so as to necessitate nullifying the loud and clear mandate from the jury’s advisory verdict.

 

VI

Excessive Punitive Damages Verdict Argument Doesn’t Fly

  1. In determining whether a verdict is excessive, a court looks to: 1) the degree of reprehensibility of the defendant’s misconduct; 2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and 3) the difference between the punitive damages and the civil penalties authorized or imposed incomparable cases.
  2. The court found that Union Pacific was reckless and outrageous in its indifference by ignoring plaintiff’s medical documentation, his own representation about his individual abilities and his physical capacity to perform the duties of his job, and his treater’s recommendations. Also, testimony at trial, established that Union Pacific would refuse to allow plaintiff to return to work no matter what, based on its policy of excluding anyone from safety-sensitive jobs who have sustained a shoulder dislocation (a view consistently maintained by Union Pacific in its briefings as well).
  3. The disparity between the actual harm and the award was not great considering that plaintiff lost out on his livelihood that was not easily replaceable in the small community he lived in.
  4. The court also determined that as far as punitive damages awards go, the award was not remarkable when considered against the number of cases plaintiff had compiled supporting large punitive damages awards.
  5. Union Pacific has not presented any newly discoverable evidence, a basis for showing that the court committed clear error, or that there was an intervening change in the controlling law.
  6. From the beginning of the lawsuit through each stage of litigation, plaintiff has met his burden to show that Union Pacific imposed a blanket requirement that employees in certain positions disclose specific health conditions. Further, once they did that, Union Pacific automatically restricted the employee from working, regardless of whether the employee is physically able to perform the essential functions of the job, as plaintiff showed that he could.

 

VII

Thoughts/Takeaways

 

  1. It is not easy to overturn a jury’s verdict or the decision of a judge by way of post-trial motions.
  2. The business necessity defense is an affirmative defense and is a high standard to meet if it is to be successfully utilized.
  3. A touchtone of the ADA is the performing of an individualized analysis. Things can go really wrong if that is not done.
  4. One of the hot areas in ADA litigation right now, is employers insisting on persons returning to their physical locations for work. Lawyers representing persons with disabilities would do well to zero in on the aspect of the court’s reasoning where it said that with respect to a qualification standard, it was up to the employer to demonstrate a predictive or significant correlation between the qualification and the performance of the job’s essential functions. In the rush to return people to their offices, I have seen lots of articles talking about culture, collaboration, etc. However, I have yet to see myself articles talking about the demonstrations a predictive or significant correlations between the return to office mandate and the performance of the job’s essential functions. While I have read many articles talking about how the ability to move up in an organization can depend upon physical presence at the office, that isn’t at all the same thing as being able to do the essential functions of the job remotely.
  5. It will not surprise anyone that Union Pacific filed a notice of appeal to the Ninth Circuit on December 29, 2025. Seems to me, that Union Pacific’s best argument on appeal is going to be whether the award is excessive. Plaintiff would seem, to my mind anyway, to have a very strong case with respect to the discriminatory policy.