Robert Gardner v. Federal Express Corp.

FILED
NOT FOR PUBLICATION
DEC 13 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT GARDNER, No. 16-15891
Plaintiff-Appellant, D.C. No. 3:14-cv-01082-TEH
v.
MEMORANDUM *
FEDERAL EXPRESS CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding
Submitted December 7, 2017**
San Francisco, California
Before: LUCERO,*** RAWLINSON, and OWENS, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Carlos F. Lucero, United States Circuit Judge for the
Tenth Circuit, sitting by designation.
Robert Gardner appeals the district court’s denial of his motion for a new
trial and motion to strike costs in his action against Federal Express Corporation
(“FedEx”). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
We review a district court’s decision to deny a motion for a new trial for
abuse of discretion. United States v. Hinkson, 585 F.3d 1247, 1261-63 (9th Cir.
2009) (en banc). Similarly, we review an award of costs for abuse of discretion
“and will overturn the award ‘if it is based on an erroneous determination of law.’”
Martin v. Cal. Dep’t of Veterans Affairs, 560 F.3d 1042, 1047 (9th Cir. 2009)
(quoting Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1065 (9th Cir. 2008)).
Gardner argues that the district court erred in giving the jury the “Limitation
on Remedies - Same Decision” instruction. “An error in instructing the jury in a
civil case requires reversal unless the error is more probably than not harmless.”
Gantt v. City of L.A., 717 F.3d 702, 707 (9th Cir. 2013) (quoting Clem v. Lomeli,
566 F.3d 1177, 1182 (9th Cir. 2009)). We do not address whether this instruction
was legally erroneous, as we conclude any error was harmless.
On Gardner’s sixth claim, wrongful discharge in violation of public policy,
the jury answered “no” to the question of whether Gardner’s disability or medical
leave was a substantial motivating reason for his discharge. We thus determine
that, had the jury not been given the “Limitation on Remedies - Same Decision”
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instruction, it nevertheless would have found in favor of defendant. See United
States v. Alexander, 695 F.2d 398, 401-02 (9th Cir. 1982) (“find[ing] it
unnecessary to decide” whether an instruction was erroneous because the jury’s
finding on a different issue demonstrated that even without the alleged error, the
jury would have reached the same result).
We also reject Gardner’s argument that the district court erred in refusing to
give the jury his proposed instruction regarding reasonable accommodation.
Gardner insists that evidence at trial established that he could have been reasonably
accommodated if FedEx had given him a three-month extension of job-protected
leave. But, as defendant notes, after Gardner’s ninety-day period of job-protected
leave ended, it was determined that there were no full-time ramp transport driver
positions available at the FedEx facility at which he was employed. Under
California’s Fair Employment and Housing Act (“FEHA”), FedEx was not
required to create a new position for Gardner in the absence of any vacant and
comparable positions. See Watkins v. Ameripride Servs., 375 F.3d 821, 828 (9th
Cir. 2004) (noting that under FEHA, an employer is “only obligated to reassign” a
disabled employee “to another position within the company if there were an
existing, vacant position for which [the employee] was qualified” (emphasis
omitted)).
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Additionally, Gardner argues that the district court erred in giving the jury
the “Reliance on Medical Opinions” instruction. In support, he observes that the
instruction did not additionally clarify that an employer cannot rely solely on
medical opinions to meet its obligations to craft a reasonable accommodation,
because the employer must also engage in the interactive process. But the
instruction did not state that FedEx was entitled to rely only on medical opinions
and, as Gardner’s counsel admitted at trial, the instruction correctly stated that
FedEx was entitled to consider medical opinions. We hold that there existed “a
sufficient evidentiary foundation to support giving th[is] instruction” and the
district court did not abuse its discretion in doing so. Yan Fang Du v. Allstate Ins.
Co., 697 F.3d 753, 757 (9th Cir. 2012) (citation omitted).
The district court did not abuse its discretion by denying Gardner’s motion
for a new trial. Although Gardner is correct that the jury erred in answering “no”
to the question of whether FedEx subjected Gardner to an adverse employment
action with respect to his disability-discrimination and retaliation claims, we agree
with the district court that these errors on the jury’s verdict form can be reconciled
with another finding. Because the jury answered “no” on the “substantial
motivating reason” question on the wrongful discharge claim, we conclude that the
jury would have likewise answered “no” on the disability-discrimination and
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retaliation claims, consistent with its finding of no liability. See Gallick v. Balt. &
Ohio R.R. Co., 372 U.S. 108, 119 (1963) (“Where there is a view of the case that
makes the jury’s answers to special interrogatories consistent, they must be
resolved that way.” (quoting Atl. & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd.,
369 U.S. 355, 364 (1962))).
Finally, Gardner argues that the district court erred in applying federal law,
rather than state law, in deciding to award costs to FedEx. But this argument is
foreclosed by Champion Produce, Inc. v. Ruby Robinson Co., in which we held
that “[a]n award of standard costs in federal district court is normally governed by
Federal Rule of Civil Procedure 54(d), even in diversity cases.” 342 F.3d 1016,
1022 (9th Cir. 2003) (citation omitted). As the district court held below, none of
the exceptions to this general rule apply in this case.
AFFIRMED.
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