Melone v. Paul Evert's RV Country, Inc., No. 2:2008cv00868 - Document 90 (D. Nev. 2010)
Court Description: ORDER Granting 74 Motion for Judgment. Case terminated. Signed by Magistrate Judge George Foley, Jr on 11/4/2010. (Copies have been distributed pursuant to the NEF - DXS)
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Melone v. Paul Evert&#039;s RV Country, Inc. Doc. 90 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 9 10 11 12 CARMEN MELONE, ) ) Plaintiff, ) ) vs. ) ) PAUL EVERT’S RV COUNTRY, INC., ) ) ) Defendant. ) __________________________________________) Case No. 2:08-cv-00868-GWF ORDER Defendant’s Motion for Judgment as a Matter of Law (#74) 13 This matter is before the Court on Defendant’s Motion for Judgment as a Matter of Law 14 (#74), filed on August 19, 2010; Plaintiff’s Opposition to Defendant’s Motion for Judgment as a 15 Matter of Law (#80), filed on September 5, 2010; and Defendant’s Reply to Plaintiff’s Opposition 16 to Defendant’s Motion for Judgment as a Matter of Law (#83), filed on September 17, 2010. The 17 Court conducted a hearing in this matter on October 7, 2010. 18 19 BACKGROUND Plaintiff Carmen Melone brought this action against his former employer Paul Evert’s RV 20 Country, Inc. (“Paul Evert’s”) pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. 21 § 12101, et seq. Plaintiff alleged that Defendant fired him from his job in violation of the Act 22 because of his disability resulting from prostate cancer. 23 Following the completion of discovery, Defendant moved for summary judgment on the 24 grounds that Plaintiff could not establish a disability within the meaning of the ADA as a matter of 25 law. In opposition to the motion, Plaintiff argued that his impairments substantially limited him in 26 performing the major life activities of manual tasks, sleeping, standing, walking and working. The 27 Court held that Plaintiff failed to present sufficient evidence to show that he was substantially 28 limited in performing the major life activities of working, manual tasks or sleeping. The Court Dockets.Justia.com 1 held, however, that Plaintiff had made a sufficient evidentiary showing that his physical 2 impairments substantially limited him in the major life activities of walking and standing. See 3 Order (36). The Court’s holding was based in significant part on Plaintiff’s declaration and 4 deposition testimony that he was “unable to walk or stand for extended periods of time (greater 5 than 30 minutes),” (Pl. Decl. ¶ 8, Dkt. #30-3 at 2), and that after walking or standing for 30 6 minutes, he needed to sit and rest until the fatigue receded and he regained his strength. (Id. at 40- 7 41). Order (#36), p. 15. As discussed herein, at trial, Plaintiff did not testify to these specific time 8 limits on his ability to walk and stand. 9 The action was tried to a jury from July 19 to 22, 2010. Defendant orally moved for 10 judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure at the 11 conclusion of Plaintiff’s case-in-chief and again before the case was submitted to the jury. The 12 Court denied Defendant’s oral motions. The jury thereafter returned a verdict in Plaintiff’s favor 13 and awarded him emotional distress damages in the amount of $40,000.01. Special Verdict (#64).1 14 Defendant filed a renewed motion for judgment as a matter of law on August 19, 2010 on the 15 ground that Plaintiff failed to show, as a matter of law, that he has a disability within the meaning 16 of the ADA. Alternatively, Defendant argues that the evidence did not support an award of 17 emotional distress damages or that the damages awarded by the jury are excessive. The following 18 summary of the evidence focuses on these two issues. 19 Plaintiff was employed as a commission salesman by Defendant at its sales facility in 20 Laughlin, Nevada from 2003 until March 16, 2007. The busy season for Defendant’s business in 21 Laughlin was from October to April. During this season the sales personnel were generally 22 required to work seven days a week. Mr. Melone was diagnosed with prostate cancer in 23 September, 2006. He underwent prostate removal surgery at the UCLA Medical Center on 24 December 12, 2006 and was out of work until January 15, 2007. When Mr. Melone returned to 25 work in January 2007, the salesmen were on a seven day work schedule. The schedule was 26 27 28 1 Plaintiff’s claims for recovery of back pay and related compensation benefits was tried to the Court on September 1, 2010. The Court has reserved judgment on that portion of Plaintiff’s ADA claim pending its decision on Defendant’s motion for judgment as a matter of law. 2 1 2 changed to six days a week in the first week of February, 2007. As part of his job, Mr. Melone was required to patrol the RV sales lot and go in and out of 3 motor homes (“RVs”) to look for potential customers and attempt to sell them motor homes. Mr. 4 Melone testified that upon returning to work in January 2007, he had difficulty walking and 5 standing. He explained that he had undergone a radical prostatectomy which involved an incision 6 from his navel to his pelvis. He was not completely healed when he returned to work and he 7 realized he should not be climbing steps into motor homes as much as he had been doing. Tr.-I 8 68:19-25.2 He testified as follows: 9 . . . I had problems standing because of the pain. I had problems walking. I had problems climbing into motor homes. And it -- it started out gradually, and then I also had general urinary problems. That was a whole separate issue and -- which required a separate surgery later. But I had problems urinating. Tr.-I 69:2-7. 10 11 12 13 Mr. Melone testified that he had the feeling of having to urinate and a burning feeling which became increasingly worse. Tr.-I 69:5-19. Mr. Melone also experienced fatigue. He testified: 14 I mean, I tired easily. I would say in the morning I did really well, and by the afternoon I was -- I was really tired. And I -- and I knew that I would not be able to go six days a week let alone seven days a week. Even on a six-day week schedule -- and I probably should have been working five days. I probably should have been working a little less than that. But I figured I would ask for five days. Tr.-I 70:1-7. 15 16 17 18 Mr. Melone testified on cross-examination that following the surgery, his doctor had 19 advised him to take it easy and stay off work for six weeks. Tr.-II 49:14-15. His doctor 20 specifically told him not to do anything too strenuous. Tr.-II 62:21-23. Mr. Melone decided, 21 however, to return to work a month after his surgery. Tr.-II 49:16-17. He acknowledged that his 22 doctor did not place any restriction on him once he returned to work. Tr.-II 49:18-25. 23 Mr. Melone testified that like other salesmen, he used the company’s computer, which was 24 located in the showroom or office lobby, for both business and personal reasons. He testified that 25 personal use was allowed. For business purposes, he used the computer to send photographs of 26 27 28 2 The transcriber separately numbered the transcript pages for each trial day, beginning with page one. The Court therefore refers to the transcripts with the designations “Tr.-I” and “Tr.-II” to reflect the transcript for the first and second day of trial. 3 1 motor homes to customers and to obtain information from the manufacturer(s). The company’s 2 business telephone was located next to the computer and he would answer the phone while using 3 the computer. Mr. Melone testified that this allowed him to develop additional sales leads from 4 potential customers who called in. Tr.-I 93:25-95:13. Mr. Melone testified that because “I didn’t 5 feel that well for walking around for long periods of time, I would spend my time in the computer.” 6 Tr.-I 95:16-17. 7 Mr. Melone testified that he told the sales manager, Tom Schmid, that he had trouble 8 standing and walking. Tr.-II 54:25-55:7. He also told employees Gary Lee and Ron Henderson 9 that he had problems standing and walking. Tr.-II 64:12-14. He told his doctor that he was having 10 problems with fatigue and problems with pain and urination. Tr.-II 55:8-10. He also told the 11 doctor that he had pain standing. Tr.-II 55:13. He indicated that the pain got better when the scar 12 tissue healed. Tr.-II 55:18-20. 13 Mr. Melone testified that during the first week of February he asked Mr. Schmid for 14 permission to work five days a week instead of six. Mr. Schmid responded that Plaintiff was not 15 special and that everybody had to work six days. Tr.-I 73:19-24. Mr. Melone thereupon requested 16 a letter from his doctor stating that he should only work five days a week. Tr.-I 74:1. In a 17 February 6, 2007 email to the doctor’s assistant, Mr. Melone stated: 18 19 My employer is currently requesting all sales agents to work 7 days per week thru February. I struggled with this in January. Could you please e-mail me a Doctor’s note to only work 5 days per week thru February or until I finish my tests in March. I’m exhausted. 20 21 22 23 24 Plaintiff’s Exhibit “15.” Mr. Melone also stated in the email that he was “urinating very frequently (every 2 hours & 3+ times at night and have a weak stream.” He inquired whether this was normal. Id. Dr. Reiter signed a letter dated February 12, 2007 which stated: “This is to certify that Mr. 25 Melone is under my professional care for prostate surgery. I have advised him not to exceed a 5 26 day work week until his next follow-up appointment in March.” Plaintiff’s Exhibit “16.” This 27 letter was faxed to Paul Evert’s RV on February 15, 2007. Mr. Melone retrieved the letter from the 28 finance manager in whose office the fax machine was located. He told Mr. Schmid that he had the 4 1 letter and Mr. Schmid instructed him to put the letter on Mr. Schmid’s desk, which Mr. Melone 2 did. Tr.-I 76:8-20. Mr. Melone testified that nothing further happened after he put the letter on 3 Mr. Schmid’s desk. Tr.-I 80:1-6. Apparently, Mr. Schmid did not discuss the letter with him and 4 Mr. Melone did not follow-up with Mr. Schmid to ask whether he could reduce his work schedule 5 to five days. 6 Mr. Melone testified that in the early part of February, his urinary problems were not as 7 severe as they later became. At the beginning of February, he needed to urinate every two hours. 8 Later on, he needed to urinate more frequently. Tr.-II 52:2-18. Mr. Melone testified that his 9 urinary problems continued to get worse after February 15, 2007. His urinary tract was closing and 10 he went to UCLA Medical Center for a follow-up examination on March 14, 2007. During that 11 visit, his doctor scheduled him for further surgery on April 24, 2007. Tr.-I 80:20-23. His pain 12 and fatigue, and resulting limitations on his ability to stand and walk, however, remained the same. 13 Tr.-I 80:12-17. 14 Mr. Melone returned to work on March 15th . Tr.-I 80:25-81:1. He informed Mr. Schmid 15 about the scheduled surgery in April. Mr. Schmid did not say anything at that time. Tr.-I 82:11- 16 83:17. When Mr. Melone came to work the next day, however, Mr. Schmid called him into his 17 office, told him that he was no longer needed and terminated his employment. Tr.-I 84:2-6. 18 19 20 Mr. Melone was asked about the nature of his physical limitations after he was fired on March 16, 2007. He testified as follows: I, you know, obviously after my scar, after my scar tissue started to heal, I started to feel better. I didn’t have, you know, that pain. 21 22 It was a large scar. I had adhesions, and that is -- I have pain from that. I have, do you want me to say currently or in -- . . .” Tr.-I 89:12-14. 23 24 25 Plaintiff’s counsel thereupon went to a different topic and did not ask Mr. Melone to explain what his current condition was with regard to pain from the surgical adhesions. 26 At the time of his termination, Mr. Melone was still under the care of Dr. Reiter at UCLA. 27 He subsequently changed doctors. At the time of trial, he was under the care of Dr. Yu of Seattle 28 Cancer Care. Tr.-I 90:8-91:2. Mr. Melone was not on any cancer related medication at the time he 5 1 was fired. Tr.-I 91:5-8. He began taking Lupron, a hormone therapy medication, in November 2 2007. Tr.-I 91:13-23. 3 Mr. Melone was asked on cross-examination to state the physical requirements of his job as 4 an RV salesman. He stated that they were walking and standing, primarily. Tr.-II 45:23-46:4. Mr. 5 Melone denied that he stayed in the lobby “so often” after the surgery or that he was in the lobby 6 more than the other salesmen. Tr.-II 46:16-47:6. Following the surgery, Mr. Melone was not able 7 to use his bicycle to ride around the RV sales lot. Instead, he used a golf cart when it was available. 8 Mr. Melone testified that he would have to get off the golf cart to greet a customer and to climb 9 into motor homes to see if customers were there. Tr.-II 47:12-20. 10 Mr. Melone testified that RV sales were “off,” i.e. low, in January to March 2007. Tr.-II 11 66:17-23. Mr. Schmid told all the salesmen that they needed to sell more. Tr.-II 67:5-8. Mr. 12 Melone also testified that Mr. Schmid told him: “You’re a way better salesman than what you’re 13 doing.” He told Mr. Melone: “Your sales should be better than what they are.” Tr.-II 69:15-18. 14 Mr. Melone agreed with these statements, but testified that he had limitations. He further 15 explained: 16 17 I couldn’t walk. I was in pain going up steps. I know what my limitations are. The doctor said, “If you have any problems, just take it easy.” Tr.-II 69:24-70:1. 18 Plaintiff called Ron Henderson as a witness. Mr. Henderson was also a salesman at Paul 19 Evert’s RV. He testified that during the last year or year and a half of Mr. Melone’s employment, 20 they worked together as a sales team. Tr.-II 78:12-16. Mr. Henderson testified that Mr. Melone 21 was sore from his surgery after he returned to work. He stated that Mr. Melone bought another 22 salesman’s golf cart to use on the RV lot. Tr.-II 85:10-17. Mr. Henderson described the duties of 23 a salesman at the RV lot as “an on-your-feet job.” The salesmen were required to cover the few 24 acres of the sales lot and go from coach to coach. The job required quite a bit of walking and 25 standing. Tr.-II 86:1-5. Mr. Henderson testified that following Mr. Melone’s surgery, he did 26 much of the leg work for he and Mr. Melone in greeting customers and showing them in and out of 27 coaches. Tr.-II 87:24-88:1. He did this because Mr. Melone “was a little bit sore from his 28 operation and he wasn’t quite as physically able to go up and down coaches . . . for a period of 6 1 time there.” Tr.-II 87:3-5. 2 The parties stipulated in the joint Pretrial Order (#39) to the admission of a number of 3 Plaintiff’s exhibits that would not generally be admissible over objection. Some of these exhibits 4 provide additional information regarding the nature of Plaintiff’s physical problems and limitations 5 following his return to work after the surgery and also after he was fired on March 16, 2007. In a 6 June 12, 2009 letter or memorandum, Mr. Melone stated that when he returned to work at Paul 7 Evert’s: 8 I was a different person. I was fighting a life threatening disease that stole my manhood. I was physically and emotionally damaged. While at work, I tried to stay focused and for the most part I did. And the records will show that I did above average but I could have done better if I hadn’t been going through physical and emotional trauma. It was something that only time would help. 9 10 11 12 Plaintiff’s Exhibit “25.” 13 According to a chronology that Mr. Melone prepared, he accepted a job offer with an RV 14 sales company in Portland, Oregon on November 4, 2007. He also indicated that he worked RV 15 sales shows on 19 days in January, 2008 and on 8 days in February 2008. Plaintiff’s Exhibit “28.” 16 The chronology also states that his PSA (prostate-specific antigen) blood test level continued to rise 17 after his surgery and after he was fired. According to a 2/26/08 entry in Mr. Melone’s chronology: 18 Dr. Daneshmand at OHSU ordered a CAT scan and bone scan and placed me on a 90-day course of Lupron hormone therapy. The doctor explained to me that I have terminal advanced prostate cancer and has now spread throughout my body and has to be treated systemically. It is no longer localized. 19 20 21 Plaintiff’s Exhibit “28.” 22 In a postscript to this entry, Mr. Melone further stated: 23 The Lupron has made me excessively fatigued and produced intense hot flashes also I am beginning to feel the effects of latent depression as a result of this disease and being fired from my job. 24 25 26 Id. The chronology also stated that Mr. Melone worked a 3-day RV show in mid-March 2008. 27 He stated in a postscript to this entry, however, that he was “[t]oo fatigued to work any more RV 28 shows.” Id. He also stated in a 5/30/08 entry that he received another 90 day course of Lupron 7 1 medication which made him extremely tired. He reported being in bed all day, every other day, and 2 was experiencing intense hot flashes. He also stated that “[t]his entire affair has caused me to be 3 latently depressed. Id. 4 5 In regard to the emotional distress or anxiety that Mr. Melone experienced as a result of being fired, he testified at trial as follows: 6 Like I said, when I got fired it was a big shock to me, because of the other problems I was going through and then being fired, I had a lot of emotional distress. I hid it really well. I don’t, you know, because I didn’t want to get my wife upset, but I did have a lot of anxiety, had a lot of sleepless nights. And it bothered me. 7 8 9 10 Tr.-I 106:6-11. Mr. Melone also testified that his wife stated that he was getting real moody. Tr.-I 106:18- 11 19. Mr. Melone could not, however, identify any activities he was no longer able to participate in 12 because of his emotional distress. Tr.-I 106:24-107:9. 13 DISCUSSION 14 1. 15 The standard for granting a motion for judgment as a matter of law under Rule 50(b) of the Applicable Standard On Motion for Judgment as a Matter of Law. 16 Federal Rules of Civil Procedure is set forth in Costa v. Desert Palace, Inc., 299 F.3d 838, 859 (9th 17 Cir. 2002).3 The court can overturn the jury's verdict and grant such a motion only if “there is no 18 legally sufficient basis for a reasonable jury to find for that party on that issue.” Id., citing Reeves 19 v. Sanderson Plumbing Products, Inc., 530 U.S. 133,149, 120 S.Ct. 2097, 2109-10 (2000). The 20 court may not substitute its view of the evidence for that of the jury. Costa v. Desert Palace, Inc., 21 299 F.3d at 859, citing Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 9th Cir. 22 2001). Nor may the court make credibility determinations or weigh the evidence. The court, 23 instead, must draw all inferences in favor of the nonmoving party. Id., citing Reeves, 530 U.S. at 24 150, 120 S.Ct. 2097 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 25 26 27 28 3 Because the Court reserved the equitable issue of back-pay and other compensation for decision by the court, final judgment was not entered upon the jury verdict. Defendant filed its motion 28 days after the jury returned its verdict and was discharged by the Court. Accordingly, Defendant’s motion was timely filed under Fed.R.Civ.Pro. 50(b). 8 1 L.Ed.2d 202 (1986)). The court should also disregard all evidence favorable to the moving party 2 that the jury is not required to believe. Costa, 299 F.3d at 859. The Supreme Court has also stated 3 that “the standard for granting summary judgment ‘mirrors’ the standard for judgment as a matter 4 of law, such that ‘the inquiry under each is the same.’” Reeves, 530 U.S. at 150, 120 S.Ct. 2097, 5 citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-251, 106 S.Ct. 2505 (1986). 6 2. Whether There Was Sufficient Evidence that Plaintiff Had a Disability Within the Meaning of the ADA. 7 8 9 The ADA requires private employers to provide reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability, unless the 10 employer can demonstrate that the accommodation would impose an undue hardship. Toyota 11 Motor Manufacturing Kentucky, Inc. v. Williams, 534 U.S. 184, 193, 122 S.Ct. 681, 689 (2002), 12 citing 42 U.S.C. §12112(b)(5)(A). The Act defines a “qualified individual with a disability” as an 13 “individual with a disability who, with or without reasonable accommodation, can perform the 14 essential functions of the employment position that such individual holds or desires.” Id., citing 15 §12111(8). 16 “Disability” is defined as (A) a physical or mental impairment that substantially limits one 17 or more major life activities of such individual; (B) a record of such an impairment; or (C) being 18 regarded as having such an impairment.” 42 U.S.C. § 12102(2). Whether a plaintiff’s physical or 19 mental condition constitutes a disability under the ADA involves three inquiries: (1) whether the 20 condition is a physical impairment, (2) whether the life activities from which the plaintiff is 21 impaired amount to major life activities, and (3) whether the plaintiff’s impairment substantially 22 limits him from performing the identified major life activities. Gribben v. United Parcel Service, 23 Inc., 528 F.3d 1166, 1169 (9th Cir. 2008), citing Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 24 2196 (1998). 25 The HEW Rehabilitation Act regulations define “physical impairment” as “any 26 physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or 27 more of the following body systems: neurological; musculoskeletal; special sense organs; 28 respiratory, including speech organs; cardiovascular; reproductive; digestive, genito-urinary; hemic 9 1 and lymphatic; skin; and endocrine.” 45 CFR §84.3(j)(2)(i) (2001). The Supreme Court has noted 2 that the commentary accompanying the HEW regulations indicates that diseases or disorders such 3 as cancer may constitute physical impairments. Bragdon, 524 U.S. at 633, 118 S.Ct. at 2202. 4 Merely having an impairment, however, does not make one disabled for purposes of the ADA. 5 The claimant must also demonstrate that the impairment substantially limits a major life activity. 6 Toyota, 534 U.S. at 194, 122 S.Ct. at 690 citing 42 U.S.C. § 12102 (2)(A). In Gordon v. E.L. 7 Hamm & Associates, 100 F.3d 907, 912 (11th Cir. 1996), for example, the court stated that the side 8 effects that the plaintiff suffered as a consequence of his chemotherapy treatments for cancer may 9 have qualified as physical impairments, but they did not substantially limit plaintiff’s ability to care 10 11 12 for himself or to work. The EEOC, by regulation, defines “substantially limited” as: i) Unable to perform a major life activity that the average person in the general population can perform; or ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 13 14 15 16 17 29 C.F.R. § 1630.2(j) (2001). 18 The regulations further provide that whether someone is substantially limited in a major life 19 activity is to be examined using such factors as: 20 i) The nature and severity of the impairment; 21 ii) The duration or expected duration of the impairment; and 22 iii) The permanent or long-term impact, or the expected or longterm impact of or resulting from the impairment. 23 24 29 C.F.R. § 1630.2(j)(i)-(iii). 25 While the Supreme Court does not accord the EEOC regulations the same level of 26 deference that it accords to the Rehabilitation Act regulations, it considered the EEOC regulations 27 in Toyota in determining the meaning of “substantially limited” under the ADA. Toyota, 534 U.S. 28 at 197, 122 S.Ct. at 691. The Ninth Circuit also follows these regulations in construing the 10 1 meaning of “substantially limited.” See Gribben v. United Parcel Service, Inc., 528 F.3d 1166, 2 1170 (9th Cir. 2008). 3 The HEW Rehabilitation Act regulations define “Major life activities” as “functions such 4 as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, 5 learning and working.” 45 C.F.R. § 84.3(j)(2)(ii). Toyota states that the word “major,” as used in 6 the phrase “major life activities,” means important. Id., 534 U.S. at 197, 122 S.Ct. at 691. In 7 Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1061 (9th Cir. 2005), the court stated that “[w]e 8 have recognized that the illustrative list of major life activities requires the activity only to be of 9 comparative importance and central to the life process itself, and it need not have a public, 10 economic, or daily character. To be a major life activity, the activity need not be essential to 11 survival, but rather of central importance to most people’s daily lives.” (internal quotation marks 12 omitted). 13 The issue in Toyota was whether plaintiff’s carpal tunnel syndrome and bilateral tendinitis 14 substantially limited her in the performance of manual tasks. The Court stated that in order for 15 manual tasks to fit within the category of major life activities, the impairment must prevent or 16 severely restrict the individual from doing activities that are of central importance to most people’s 17 daily lives. The impairment must also be permanent or long term. Id., 534 U.S. at 197-8, 122 18 S.Ct. at 691. The Court further stated that when addressing the major life activity of performing 19 manual tasks the central inquiry must be whether the claimant is unable to perform the variety of 20 tasks central to most people’s daily lives, not whether the claimant is unable to perform the tasks 21 associated with her specific job. In reversing the Sixth Circuit Court’s decision granting partial 22 summary judgment to the plaintiff, the Supreme Court held that the court erred by disregarding the 23 very type of evidence it should have focused on--plaintiff’s ability or inability to tend to her 24 personal hygiene and to carry out personal and household chores. The Court stated that these are 25 the types of activities that are of central importance to most people’s daily lives and should have 26 been part of the court’s assessment in determining whether the plaintiff was substantially limited in 27 performing manual tasks. Id., 534 U.S. at 201-2, 122 S.Ct. at 693. The evidence showed that even 28 after plaintiff’s medical condition worsened, she could still brush her teeth, wash her face, bathe, 11 1 tend to her flower garden, fix breakfast, do laundry, and pick-up around the house. Her medical 2 conditions, however, caused her to avoid sweeping, to quit dancing, to occasionally seek help 3 dressing, and to reduce how often she played with her children, gardened, and drove long 4 distances. The Court held that these changes in plaintiff’s life did not amount to such severe 5 restrictions in the activities that are of central importance to most people’s daily lives that they 6 established a manual task disability as a matter of law.4 7 The Ninth Circuit holds that a plaintiff is not required to present comparative evidence or 8 medical evidence to establish a genuine issue of material fact regarding the impairment of a major 9 life activity at the summary judgment stage. Gribben v. United Parcel Service, Inc., 528 F.3d at 10 1170, citing Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1058 (9th Cir. 2005). In Gribben, the 11 plaintiff was diagnosed with dilated cardiomyopathy and paraxysmal arterial fibrillation. The 12 plaintiff testified that as a result of this condition, he became light headed, had difficulty 13 concentrating and breathing, had chest pain when undertaking activities in extreme heat for 14 extended periods of time, and had similar symptoms when lifting weight over 50 pounds. He was 15 told by his cardiologist not to engage in certain activities more than 20 minutes at a time in 16 temperatures above 90 degrees. Id., 528 F.3d at 1168. The district court granted the employer’s 17 motion for summary judgment because the plaintiff failed to submit any evidence as to the abilities 18 of an average person in the general population to participate in outdoor activities in the “Phoenix 19 summer.” In reversing, the Ninth Circuit stated that plaintiff’s testimony regarding the 20 significance of his impairment was sufficient to create a genuine issue of material fact at the 21 summary judgment stage. In so holding, the court distinguished cases such as Wong v. Regents of 22 the University of California, 410 F.3d 1052 (9th Cir. 2005), in which the nature of the impairment 23 claimed by the plaintiff was implausible and therefore necessitated a higher evidentiary burden. 24 Gribben further stated: 25 ... 26 27 28 4 The Court declined to consider whether the district court’s order granting summary judgment to the defendant employer should be reinstated because the defendant did not request that relief in its petition for certiorari. Toyota, 534 U.S. at 202-3, 122 S.Ct. at 694. 12 1 To determine whether the grant of summary judgment was appropriate, we must review the evidence of Gribben’s alleged impairment. Id. at 1059. Gribben’s cardiologist testified at his deposition that Gribben had nonischemic cardiomyopathy, and that when Gribben worked in the extremes of heat, he experienced shortness of breath, weakness and chest pain. The cardiologist also testified that Gribben could not do any heavy lifting or exertion for prolonged periods of time. Gribben asserted that as a result of this disability, he experienced “labored breathing,” that he could not “be in heat for extended periods of time,” and that he experienced dizziness, fatigue and difficulty concentrating. He testified at his deposition that he experienced labored breathing when he was anxious and when he exerted himself too much and in the heat. Gribben testified that he had labored breathing “on and off all the time” and that the labored breathing stopped him from doing work that required too much exertion such as jobs that require “loading or unloading trailers or sorting” or extended physical activity such as lifting. He also testified that his heart condition substantially limits his ability to walk, run, climb, pull, push, squat, bend, lift and breathe. 2 3 4 5 6 7 8 9 10 11 12 The court held that this testimony was sufficient to establish a genuine issue of material 13 fact as to whether plaintiff’s impairment was substantial and limited his ability to perform regular 14 daily activities including breathing, thinking and physical activities in temperatures of 90 degrees 15 or more. 16 In Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1058-59 (9th Cir. 2005), the court stated 17 that while the plaintiff is not required to present comparative or medical evidence to establish that 18 he is substantially limited by the impairment in performing a major life activity, he must present 19 evidence in sufficient detail to convey the existence of an impairment. The court held that the 20 plaintiff met that requirement. In so holding, the court distinguished Fraser v. Goodale, 342 F.3d 21 1032 (9th Cir. 2003). The plaintiff in Fraser established through medical testimony that she had 22 severe and life threatening diabetes. The court had no difficulty in concluding that diabetes 23 qualifies as a physical impairment under the ADA. The court noted that under Sutton v. United 24 Airlines, 527 U.S. 471, 491 119 S.Ct. 2139, 2151 (1999), the trier of fact is also required to 25 consider whether the plaintiff’s efforts to mitigate the disease constitute substantial limitations. 26 Id., 342 F.3d at 1038-39. (See also Rohr v. Salt River Project Ag. Impr. and Power Dist., 555 F.3d 27 850, 859 (9th Cir. 2009) (“if a person is taking measures to correct for, or mitigate, a physical or 28 mental impairment, the effects of those measures-both positive and negative-must be taken into 13 1 account when judging whether that person is substantially limited in a major life activity and thus 2 ‘disabled’ under the Act.”)) The court found that plaintiff had presented sufficient evidence that 3 she was substantially limited in the performance of the major life activity of eating. The plaintiff 4 failed, however, to present sufficient evidence that she was substantially limited in the major life 5 activity of caring for one’s self. The plaintiff argued that when she was unsuccessful in obtaining a 6 proper blood sugar level, she could not properly care for herself. She described past difficulties in 7 bathing, walking, getting ready for work, driving and other such activities. The court stated, 8 however: 9 10 11 12 13 14 15 16 17 18 19 The problem is that Fraser does not show that these effects occurred often enough to constitute a substantial limitation. While there is evidence that Fraser is substantially limited in eating because of her severe and demanding restrictions, there is no evidence that she is so unsuccessful in monitoring her blood sugar levels that she is substantially limited in caring for herself. Accord Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 724 (8th Cir.2002). In her brief, she argues that she presented evidence that in mid-November 1998, in February of 1999, and twice in March of 1999, she suffered insulin reactions that severely limited her ability to care for herself. But being unable to care for oneself four times during a five month period is not a substantial limitation. She is not “significantly” restricted in caring for herself as compared to the average person in the general population. 29 C.F.R. § 1630.2(j)(1)(ii). EEOC v. Sara Lee Corp., 237 F.3d 349, 353 (4th Cir.2001) (holding that one or two nocturnal seizures a week and occasional daytime seizures do not substantially limit plaintiff's ability to care for herself). Fraser, 342 F.3d at 1043-44. In Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 724 (8th Cir. 2002), cited in Fraser, the 20 plaintiff also claimed that he was disabled within the meaning of the ADA because of his diabetes. 21 In support of his claim, the plaintiff stated that his diabetes substantially affected his ability to see, 22 speak, type, read, and walk. He also argued that “‘it would not be unreasonable to expect that [his] 23 diabetic condition will significantly disrupt his lifestyle.’” The plaintiff also contended that if he 24 failed to properly monitor and treat his condition, “he . . . ‘could experience’ adverse symptoms 25 which ‘would substantially limit [his] major life activity of working.’” Id. In affirming summary 26 judgment for the employer, the court stated that “[t]he Supreme Court in Sutton expressly ruled 27 that [a] disability exists only where an impairment substantially limits a major life activity, not 28 where it might, could, or would be substantially limiting if mitigating measures are not taken. 14 1 Sutton, 527 U.S. at 482, 119 S.Ct. 2139.” (internal quotation marks omitted.) The court stated 2 that it was required to examine plaintiff’s present condition with reference to the mitigating 3 measures taken and the actual consequences which followed. The court held that plaintiff failed to 4 present evidence explaining how his diabetes substantially affected his major life activities or the 5 duration and frequency of any limitations. 6 In this case, Plaintiff Carmen Melone was diagnosed with prostate cancer in September 7 2006. No evidence was presented at trial that Plaintiff experienced any physical symptoms from 8 the cancer, or was physically impaired by such symptoms, before undergoing prostate removal 9 surgery in December, 2006. Following his surgery and return to work, however, Mr. Melone 10 experience physical pain, urinary problems and fatigue as consequences of the surgery and, as he 11 acknowledged, from probably returning to work too soon after the surgery. These consequences of 12 medical treatment for a disorder or disease can also constitute physical impairments. 13 Mr. Melone testified that because of the pain from the surgical incision, he had difficulty 14 walking, standing and climbing steps or stairs. He also had urinary problems which included a 15 burning sensation and the need to urinate frequently. The urinary problem grew worse after Mr. 16 Melone returned to work and ultimately led him back to see his doctor on March 14, 2007, at 17 which time the doctor scheduled him for urinary surgery in late April to correct these problems. 18 Mr. Melone also experienced fatigue. He testified that he did really well in the mornings, but 19 became really tired in the afternoon. It is reasonable to infer from Mr. Melone’s testimony that he 20 experienced these symptoms every day from the time he returned to work on January 15, 2007 21 until he was fired on March 16, 2007. 22 Notwithstanding his symptoms and limitations, Mr. Melone testified that he was able to 23 perform his job as a salesman by taking certain measures, including using a golf cart to traverse the 24 RV lot, having Mr. Henderson assist him in dealing with customers and spending more time using 25 the computer and answering customer telephone calls in the office. The one accommodation that 26 Mr. Melone sought from the Defendant, and which was denied, was that he be permitted to work a 27 five day week which would give him more time to rest. Mr. Melone’s trial testimony was vague, 28 however, regarding the extent to which pain or fatigue limited his ability to walk and stand during 15 1 the period from January 15 to March 16, 2007. He did not testify as to what distance he could 2 walk without having to stop. Likewise, he presented no testimony as to how long he was able to 3 stand before he needed to sit or lie down. Nor did he describe to what extent he was able or unable 4 to climb in and out of motor homes as part of his job duties. 5 Although Mr. Melone stated in his pre-trial declaration and deposition that he was unable 6 to walk or stand for extended periods of time greater than 30 minutes, and that he would then need 7 to sit and rest until the fatigue receded and he regained his strength, he gave no such testimony at 8 trial. Even if Mr. Melone had so testified, it is debatable whether such testimony would have been 9 sufficient to establish that he was substantially limited in the major life activity of walking or 10 standing. See Williams v. Excel Foundry & Machine, Inc., 489 F.3d 309, 311-312 (7th Cir. 2007) 11 (plaintiff’s testimony that he could not stand for more than 30 to 40 minutes at a time without 12 briefly sitting or lying down to alleviate discomfort, and inability to balance on one leg did not 13 constitute significant restrictions on activity of standing) and Taylor v. Pathmark Stores, Inc., 177 14 F.3d 180, 186 (3rd Cir. 1999) (plaintiff’s ability to walk with a slight limp and stand for 50 minutes 15 before being required to take a ten minute break did not constitute substantial limitation). 16 Mr. Melone’s trial testimony was focused on how his impairment limited his ability to 17 walk and stand in the performance of his job as an RV salesman. He provided no testimony as to 18 how his limitations affected his ability to perform other activities of daily living, such as caring for 19 himself, or performing household chores, yard work, grocery shopping, or engaging in social or 20 recreational activities that involve walking and standing. Toyota stated that evidence regarding the 21 plaintiff’s ability to perform these types of activities, which are of central importance to most 22 people’s daily lives, should have been considered in assessing whether the plaintiff was 23 substantially limited in the major life activity of performing manual tasks. Toyota, 534 U.S. at 24 201-202, 122 S.Ct. at 693-94. 25 It is not always necessary, however, that a plaintiff present such testimony. In Gribben, for 26 example, the plaintiff’s description of his physical limitations related to his inability to perform 27 physical work tasks. The court found that plaintiff’s description of the nature and severity of his 28 physical limitations was sufficient to create a genuine issue of material fact. Stated otherwise, 16 1 where the plaintiff shows that his impairment significantly restricts him in performing work- 2 related physical activities, such as walking, it may be reasonable to infer that plaintiff is also 3 significantly restricted in performing other activities of central importance to most people’s lives. 4 Mr. Melone’s general and vague testimony, however, established only that he had some limitations 5 in walking and standing while performing his work duties as an RV salesman. He failed to 6 provide sufficient detail about his limitations, however, to support a reasonable inference that he 7 was substantially limited in the ability to walk and stand as compared to the average person in the 8 general population. Because he also failed to provide any information regarding limitations on his 9 ability to engage in other activities, there was no alternative basis upon which the jury could have 10 found that he was substantially limited in the ability to walk or stand. 11 The fact finder is also required to consider the duration or expected duration of the 12 impairment, and its permanency or long-term impact. 29 C.F.R. § 1630.2(j)(i)-(iii). Toyota, 534 13 U.S. at 198, 122 S.Ct. at 691. Mr. Melone testified that the pain he experienced from January 15 14 to March 16, 2007 was caused by his surgical scar which had not yet healed. Tr.-1 68:19-25. He 15 testified, however, that “after my scar tissue started to heal, I started to feel better. I didn’t have, 16 you know, that pain.” Tr.-I 89:12-14. Mr. Melone did not provide any specifics as to when the 17 scar tissue healed or what, if any, walking or standing limitations remained after the pain subsided 18 and he started to feel better. While Mr. Melone appeared to testify that he still has some pain 19 from “adhesions,” he never described the extent of that pain. 20 Mr. Melone underwent the urinary tract surgery on April 25, 2007. According to his 21 chronology, there was a two week recovery period after that surgery. Plaintiff’s Exhibit “28.” 22 Plaintiff did not present evidence, however, as to whether his urinary problems remained or 23 resolved after that surgery. It should also be noted that Mr. Melone did not testify that his urinary 24 symptoms contributed to his problems with walking, standing or with fatigue. According to 25 Plaintiff’s chronology, he was advised on or about February 26, 2008 that his prostate cancer had 26 now spread through his body and had to be treated systematically. He was thereafter placed on 27 Lupron hormone therapy medication which made him excessively fatigued and caused intense hot 28 flashes. While the evidence shows that Plaintiff’s prostate cancer further progressed after March 17 1 16, 2007, he failed to present evidence that he was substantially limited in his ability to walk or 2 stand between that date and late 2007 or early 2008 when he began a regimen of hormone therapy 3 treatment.5 The jury was again left to speculate about Plaintiff’s physical condition and 4 limitations, if any, during that period. 5 The Court therefore finds that Plaintiff failed to present sufficient evidence at trial that he 6 was substantially limited in performing major life activities prior to the termination of his 7 employment on March 16, 2007. Plaintiff also failed to present evidence that his physical 8 impairments were permanent or of long-term duration, and not simply temporary impairments that 9 he experienced while recovering from his prostate surgery. Nothing stated herein is intended to 10 justify the Defendant’s conduct in firing Mr. Melone. In order for liability to be imposed under the 11 ADA, however, the claimant must prove that he is a “qualified individual with a disability.” In 12 this case, Plaintiff failed, as a matter of law, to show that he was disabled within the meaning of 13 the Act.6 14 3. Whether There Was Sufficient Evidence to Support the Jury’s Award of Emotional Distress Damages. 15 The foregoing decision on liability disposes of Defendant’s alternative argument, first 16 raised in its Reply Brief (#83), that the evidence was insufficient to support an award of damages 17 for emotional distress or that the amount awarded by the jury was excessive. Generally, issues 18 raised for the first time in a reply brief are considered waived. Merrick v. Paul Revere Life Ins. 19 Co., 500 F.3d 1007, 1013 (9th Cir. 2007), citing Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th 20 Cir. 1990). Plaintiff was not afforded the opportunity to oppose, in writing, Defendant’s 21 arguments on the damages award. The Court finds, however, that even if the damages issue is 22 reached, the jury’s damage award is supported by sufficient evidence and is not excessive. 23 24 25 26 27 28 5 Although Mr. Melone’s chronology indicates that he began taking Lupron in or about February 2008, he testified at trial that he began taking Lupron in November 2007. 6 Plaintiff did not allege in his complaint and presented no evidence at trial that he was regarded as disabled by Defendant. Nor did he raise this as a basis for affirming the jury verdict in his opposition to Defendant’s motion for judgment as a matter of law. 18 1 Emotional distress damages are recoverable in a civil action for violation of the ADA. 2 EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1285 (7th Cir. 1995).7 There is no 3 requirement in the Ninth Circuit that an award of damages for emotional distress be supported by 4 objective evidence. Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020, 1040 (9th Cir. 2003). 5 The plaintiff’s testimony alone may be enough to substantiate the jury’s award of emotional 6 distress damages. Id. The amount of damages should be reversed only if it is grossly excessive or 7 monstrous. Zhang, 339 F.3d at 1040, citing Lambert v. Ackerley, 180 F.3d 997, 1011 (9th Cir. 8 1999) (en banc), cert. denied, 528 U.S. 1116, 120 S.Ct. 936 (2000). See also Smith v. City of 9 Oakland, 538 F.Supp.2d 1217, 1240 (N.D.Cal. 2008). In Zhang, the jury found that plaintiff was retaliated against and ultimately fired because of 10 11 his Chinese ethnicity and nationality. The amount of emotional distress damages awarded to 12 plaintiff was calculated as either $223,155 or $123,155. In upholding the award under either 13 amount, the Ninth Circuit relied on plaintiff’s testimony that his job at defendant’s company was 14 his “dream, working in this country,” that when he was terminated, he was “troubled,” and 15 “couldn’t believe” it. The plaintiff also testified that letters that the defendant sent to his suppliers 16 about his termination made it seem like he was either a criminal or something bad, and hurt his 17 dignity and reputation. The court stated that “the jury obviously could have gleaned that he was 18 greatly hurt and humiliated by his termination and the manner in which it was carried out.” Zhang, 19 339 F.3d at 1040-41. In EEOC v. AIC Security Investigations, Ltd., which was decided in 1995, the Seventh 20 21 Circuit upheld an award of $50,000 in emotional distress damages to a plaintiff who was fired 22 because of his terminal brain cancer. The court noted that “[t]he district court found that there was 23 a rational connection between the evidence and the damage award.” The plaintiff claimed 24 25 7 26 27 Mr. Melone sought damages and other relief solely under the provisions of the ADA. He did not allege state law causes of action for intentional or negligent infliction of emotional distress. Defendant’s arguments regarding the evidence required to prove the elements of these causes of action are therefore beside the point. 28 19 1 emotional distress damages for depression, rage and fear resulting from his sudden firing. The 2 testimony showed that plaintiff’s work was a very large part of his life, he took almost no 3 vacations, and he sometimes put his company above his family. The evidence also showed the 4 plaintiff’s firing was emotionally wrenching, even though he underwent no formal psychological 5 treatment. He was cut off from one of the major defining aspects of his life and he was forced to 6 watch his family suffer emotionally and financially as well. In upholding the award, the Seventh 7 Circuit further stated that “the emotional burden on a person dying of cancer, perceiving himself as 8 unable to adequately provide for his family, is considerably greater than that suffered by the 9 ordinary victim of wrongful discharge.” EEOC v. AIC Security Investigations, Ltd., 55 F.3d at 10 1285-86. The Seventh Circuit further noted that it had previously upheld numerous similar 11 awards in cases in which plaintiffs were fired in violation of other civil rights laws. The court 12 specifically cited awards of $40,000 and $35,000. The court concluded by stating that 13 “[u]ltimately, it may be that [plaintiff] did not really deserve as much as $50,000, but that is not the 14 question. The question is whether the award was grossly excessive, and it was not.” Id, at 1286. 15 Mr. Melone’s testimony regarding the emotional distress he experienced was, like his 16 testimony regarding his physical limitations, sketchy. He did testify, however, that “when I got 17 fired it was a big shock to me, because of the other problems I was going through and then being 18 fired, I had a lot of emotional distress.” Tr.-I 106:6-11. He added that he had a “lot of anxiety and 19 sleepless nights.” Id. Elsewhere, Mr. Melone stated that when he returned to work following the 20 prostate surgery, “I was fighting a life threatening disease that stole my manhood. I was physically 21 and emotionally damaged.” Plaintiff’s Exhibit “25.” According to Mr. Melone, he had previously 22 been one of Defendant’s top producers. Even after he returned to work, he performed above 23 average, but could have done better, but for the physical and emotional trauma he was 24 experiencing. Id. Mr. Melone also stated in his chronology that several months after he was fired, 25 he was “beginning to feel the effects of latent depression as a result of this disease and being fired 26 from my job.” Plaintiff’s Exhibit “28.” 27 28 Although the evidence of emotional distress is not as compelling as that in EEOC v. AIC Security Investigations, Ltd., Mr. Melone was fired only two months after returning to work from 20 1 major prostate cancer surgery, and only one day after he told his sales manager that he would have 2 to have another operation. The evidence also indicates that he was unemployed for a substantial 3 period after he was terminated. The jury had sufficient evidence to conclude that Mr. Melone 4 experienced significant emotional distress as a result of Defendant’s conduct in firing him. The 5 award of $40,000.01 in emotional distress damages was not grossly excessive or monstrous. 6 Therefore, the Court would uphold this verdict if the Plaintiff had presented sufficient evidence to 7 show that he was disabled within the meaning of the Act. 8 CONCLUSION 9 Based on the foregoing, the Court concludes that there was no legally sufficient basis for a 10 reasonable jury to find that Plaintiff was disabled within the meaning of the Americans with 11 Disabilities Act prior to or at the time Defendant terminated his employment. Accordingly, 12 IT IS HEREBY ORDERED that Defendant’s Motion for Judgment as a Matter of Law 13 (#74) is granted. The jury’s verdict for Plaintiff is hereby set aside and final judgment shall be 14 entered in favor of Defendant Paul Evert’s RV Country, Inc. 15 DATED this 4th day of November, 2010. 16 17 18 ______________________________________ GEORGE FOLEY, JR. United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 21
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