Tracy Dunlap v. Liberty Natural Products

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRACY DUNLAP, Nos. 15-35395
Plaintiff-Appellee, 16-35113
v. D.C. No.
3:12-cv-01635-SI
LIBERTY NATURAL PRODUCTS, INC.,
Defendant-Appellant.
TRACY DUNLAP, No. 16-35271
Plaintiff-Appellant,
D.C. No.
v. 3:12-cv-01635-SI
LIBERTY NATURAL PRODUCTS, INC.,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted June 6, 2017
Portland, Oregon
Filed December 28, 2017
2 DUNLAP V. LIBERTY NATURAL PRODUCTS
Before: Ronald M. Gould and Johnnie B. Rawlinson,
Circuit Judges, and Larry A. Burns,* District Judge.
Opinion by Judge Rawlinson
SUMMARY**
Employment Discrimination
The panel affirmed (1) the district court’s decision
denying the defendant’s renewed motion for judgment as a
matter of law on a claim of disability discrimination under the
Americans with Disabilities Act and Oregon state law, and
(2) the district court’s order granting in part the plaintiff’s
motion for an award of attorney’s fees.
The panel held that the district court committed
instructional error by conflating the elements of the plaintiff’s
disparate-treatment and failure-to-accommodate claims.
Nevertheless, the instructional error was harmless because the
defendant was on notice of the need to accommodate, and it
was more probable than not that the jury’s verdict was not
affected.
The panel held that, construed in the light most favorable
to the plaintiff, the evidence supported the jury’s finding that
*
The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DUNLAP V. LIBERTY NATURAL PRODUCTS 3
a reasonable accommodation existed that would have enabled
her to perform the essential functions of her shipping clerk
position.
The panel also held that the district court did not abuse its
discretion in reducing the plaintiff’s fee award by 50 percent
based on the degree of success she achieved in the overall
litigation.
COUNSEL
Matthew Kalmanson (argued), Ruth C. Rocker, and Janet M.
Schroer, Hart Wagner LLP, Portland, Oregon, for Defendant-
Appellant/Defendant-Appellee.
Banafsheh Violet Nazari (argued), Nazari Law, Portland,
Oregon; Aruna A. Masih (argued) and Michael J. Morris,
Bennett Hartman Morris & Kaplan, Portland, Oregon, for
Plaintiff-Appellee/Plaintiff-Appellant.
4 DUNLAP V. LIBERTY NATURAL PRODUCTS
OPINION
RAWLINSON, Circuit Judge:
Appellant Liberty Natural Products, Inc. (Liberty)
challenges the district court’s decision denying Liberty’s
renewed motion for judgment as a matter of law (JMOL).
Appellee Tracy Dunlap (Dunlap) brought suit against Liberty
under the Americans with Disabilities Act (ADA) and Oregon
state law, alleging that Liberty failed to accommodate her
disability and subjected her to disparate treatment due to her
disability. Dunlap challenges the district court’s order
granting in part Dunlap’s motion for an award of attorney’s
fees.
We have jurisdiction under 28 U.S.C. § 1291 and affirm
both decisions.
I.
Liberty is a small business that imports and distributes
wholesale botanical products. From September, 2006 to
April, 2012, Liberty employed Dunlap as a shipping clerk.
In June, 2010, Dunlap began experiencing pain in her
right elbow. She filed a workers’ compensation claim and a
physician later diagnosed Dunlap with bilateral lateral
epicondylitis in both elbows. For two years, Dunlap worked
full-time for Liberty, with restrictions. Her workers’
compensation claim was eventually accepted and later closed.
The Notice of Closure, which was sent to both Dunlap and
Liberty, classified Dunlap’s claim as disabling.
DUNLAP V. LIBERTY NATURAL PRODUCTS 5
One month after Dunlap’s claim was closed, Liberty
terminated Dunlap’s employment. Dunlap immediately
requested reinstatement to her former position or another
suitable position. Liberty declined Dunlap’s request for
reinstatement.
Dunlap then filed an action against Liberty, alleging
employment discrimination based on disability under the
ADA and under Or. Rev. Stat. §§ 659A.112, 659A.040,
659A.043, 659A.046, and 659A.199. The district court
granted summary judgment in favor of Liberty on all but
three claims—disability discrimination, “regarded as”
disability discrimination, and failure to reinstate or reemploy.
The jury returned a verdict in Dunlap’s favor on her claim for
disability discrimination under the ADA and related Oregon
statutes. The jury returned a verdict in favor of Liberty on
Dunlap’s “regarded as” disability claim and on her failure to
reinstate or reemploy claim. The jury awarded Dunlap
$70,000 in non-economic damages, and the district court
awarded Dunlap $13,200 in backpay damages.
After the district court denied Liberty’s renewed motion
for JMOL, Liberty filed a timely appeal challenging the jury
instructions and the district court’s denial of its renewed
motion for JMOL. Dunlap subsequently moved for $235,038
in attorney’s fees, and the district court granted the motion in
part, reducing the requested fees by fifty percent. Dunlap
timely appealed the fee award.
II.
Where a litigant asserts that a challenged jury instruction
“is an incorrect statement of law, our review is de novo.”
Chess v. Dovey, 790 F.3d 961, 970 (9th Cir. 2015) (citation
6 DUNLAP V. LIBERTY NATURAL PRODUCTS
omitted). [“W]hen a litigant in a civil trial fails to object to
a jury instruction, we may review the challenged jury
instruction for plain error.” Id.“We review de novo the district court’s denial of a Rule
50(b) renewed motion for judgment as a matter of law. The
test is whether the evidence, construed in the light most
favorable to the nonmoving party, permits only one
reasonable conclusion, and that conclusion is contrary to that
of the jury. . . .” Estate of Diaz v. City of Anaheim, 840 F.3d
592, 604 (9th Cir. 2016), as amended (citation and internal
quotation marks omitted). “A jury’s verdict must be upheld
if it is supported by substantial evidence that is adequate to
support the jury’s findings, even if contrary findings are also
possible.” Escriba v. Foster Poultry Farms, Inc., 743 F.3d
1236, 1242 (9th Cir. 2014) (citation omitted).
“[W]e review the calculation of fees for abuse of
discretion. . . .” Chaudhry v. Los Angeles, 751 F.3d 1096,
1110 (9th Cir. 2014) (citation omitted).
III.
A. Instructional Error
Liberty contends that the district court committed
instructional error by conflating the elements of the disparate-
treatment and failure-to-accommodate claims.1 According to
1
The district court instructed:
To establish or trigger the defendant’s . . . duty to
provide a reasonable accommodation, the plaintiff . . .
must prove by a preponderance of the evidence both of
DUNLAP V. LIBERTY NATURAL PRODUCTS 7
Liberty, this error “denied the jury the opportunity to decide
the foundational issue of whether [Dunlap] triggered a duty
to accommodate.”
Dunlap counters that Liberty failed to properly preserve
its objections to the jury instructions. Dunlap contends in the
alternative that any instructional error was harmless. Because
the district court proceeded on the basis that Liberty
adequately objected to the failure-to-accommodate instruction
as a misstatement of the law, we review this issue de novo.
See Chess, 790 F.3d at 970. We also note that Liberty
submitted proposed instructions, objected to Dunlap’s
proposed instructions, and penned a letter to the court
regarding the asserted instructional error. See Hunter v. Cty.
of Sacramento, 652 F.3d 1225, 1230 (9th Cir. 2011)
(explaining that the proffer of an alternate instruction
sufficiently preserves the objection).
Ideally, the district court would have separated the
elements of Dunlap’s disparate treatment and failure-to-
accommodate claims in the jury instructions. We have
recognized that a failure-to-accommodate claim “is
analytically distinct from a claim of disparate treatment or
impact under the ADA.” Johnson v. Bd. of Trustees of
Boundary Cty. Sch. Dist., 666 F.3d 561, 567 (9th Cir. 2011).
Accordingly, the district court’s conflation of the elements of
Dunlap’s disparate treatment and failure-to-accommodate
the following elements: 1 comes in two alternatives. 1A
deals with a request for awareness. 1A, plaintiff
requested of defendant an accommodation due to a
disability. Or 1B, defendant became aware that plaintiff
needed an accommodation. Either one of those is
element No. 1.
8 DUNLAP V. LIBERTY NATURAL PRODUCTS
claims constituted instructional error as a misstatement of the
law. See id. Nevertheless, the instructional error was not
cause for reversal. See Clem v. Lomeli, 566 F.3d 1177, 1182
(9th Cir. 2009) (“An error in instructing the jury in a civil
case requires reversal unless the error is more probably than
not harmless. . . .”) (citation omitted). Where “it is more
probable than not that the jury would have reached the same
verdict had it been properly instructed,” the erroneous
instruction is harmless. Id. (citation omitted).
The record is undisputed that Liberty was on notice of
Dunlap’s physical limitations. Dunlap provided Liberty with
medical notes and releases describing her restrictions.
Liberty was also aware of Dunlap’s request to use carts and
other modifications to her workspace to accommodate her
restrictions. Due to this ample notice of Dunlap’s physical
limitations, Liberty was aware of or had reason to be aware
of Dunlap’s desire for a reasonable accommodation. See
Humphrey v. Mem’l Hosp. Ass’n, 239 F.3d 1128, 1137 (9th
Cir. 2001). Such awareness triggered Liberty’s duty to
engage in the interactive process. See id. As a result, we do
not accept Liberty’s contention that the jury was deprived of
the “opportunity to decide the foundational issue of whether
[Dunlap] triggered a duty to accommodate.” Because “it is
more probable than not” that the jury’s verdict was not
affected, the district court’s instructional error was harmless.
Clem, 566 F.3d at 1182 (citation omitted).
B. Renewed Motion for JMOL
Liberty contends that the district court erred in denying its
motion for renewed JMOL because Dunlap failed to meet her
burden to prove that a reasonable accommodation existed that
DUNLAP V. LIBERTY NATURAL PRODUCTS 9
would have enabled her to perform the essential functions of
her shipping clerk position.
We are not persuaded by Liberty’s contention. To prevail
on her ADA claim, Dunlap was required to establish (1) that
she was disabled under the ADA; (2) that she was a qualified
individual with a disability; and (3) that she was
discriminated against by her employer because of that
disability. See Smith v. Clark Cty. Sch. Dist., 727 F.3d 950,
955 (9th Cir. 2013). “A qualified individual with a disability
is defined as an individual with a disability who, with or
without reasonable accommodation, can perform the essential
functions of the employment position that such individual
holds or desires. . . .” Id. (citation and internal quotation
marks omitted). The ADA “defines discrimination to include
an employer’s failure to make [a] reasonable
accommodation.” Mendoza v. The Roman Catholic
Archbishop of Los Angeles, 824 F.3d 1148, 1150 (9th Cir.
2016) (citation, alteration, and internal quotation marks
omitted).
The term “‘reasonable accommodation’ may include . . .
acquisition or modification of equipment or devices . . . and
other similar accommodations for individuals with
disabilities.” 42 U.S.C. § 12111(9). Whether an
accommodation is reasonable “depends on the individual
circumstances of each case, and requires a fact-specific,
individualized analysis of the disabled individual’s
circumstances and the [potential] accommodations.” Mark H.
v. Hamamoto, 620 F.3d 1090, 1098 (9th Cir. 2010) (citation
omitted). “Once an employer becomes aware of the need for
accommodation, that employer has a mandatory obligation
under the ADA to engage in an interactive process with the
employee to identify and implement appropriate reasonable
10 DUNLAP V. LIBERTY NATURAL PRODUCTS
accommodations” that will enable the employee to perform
her job duties. Humphrey, 239 F.3d at 1137.
Construed in the light most favorable to Dunlap, the
evidence supports the jury’s verdict. See Estate of Diaz,
840 F.3d at 604. The record reflects that Dunlap satisfied her
burden to prove the existence of reasonable accommodations
that would enable her to perform the essential job functions
of her position. Dunlap specifically adduced evidence that
onsite carts and other affordable assistive devices, such as a
scissor lift table, were readily available to Liberty and could
have enabled her to perform the essential job function of
moving objects from one point to another. Dunlap also
established that she placed Liberty on notice of her
limitations by providing Liberty her medical restrictions and
releases. The record reflects that Liberty discouraged use of
the onsite carts, failed to discuss or provide assistive devices,
and terminated Dunlap’s employment due to her perceived
inability to perform the essential job functions of her position.
Because the evidence reflected that Liberty had prior notice
of Dunlap’s limitations, refused to consider or implement her
proposed accommodations, and failed to articulate any undue
hardship, the district court correctly denied Liberty’s renewed
motion for JMOL. See Escriba, 743 F.3d at 1242 (explaining
that JMOL is properly granted only if the evidence “permits
only one reasonable conclusion . . . contrary to the jury’s
verdict”) (citation omitted); see also Humphrey, 239 F.3d at
1139 (clarifying that an employer is not required to provide
an accommodation that would impose undue hardship on the
employer).
DUNLAP V. LIBERTY NATURAL PRODUCTS 11
C. Attorney’s Fees
Dunlap contends that the district court abused its
discretion in reducing her fee award by 50 percent. We do
not agree.
We have held that it is within the district court’s
discretion to determine “what fees are reasonable.”
Chaudhry, 751 F.3d at 1110 (citation and internal quotation
marks omitted). In addition, the district court is required to
“provide a concise but clear explanation of its reasons for the
fee award.” Id. (citation omitted). The district court may
consider “the degree of success achieved by the prevailing
party.” Id. (citation omitted).
After reviewing the relief Dunlap obtained relative to the
overall litigation, the district court explained that “[a]
50 percent reduction based on limited success is reasonable
in this case, especially where Plaintiff essentially succeeded
on only one of her five claims.”2 Because the district court
2
The district court reasoned that:
Although Plaintiff prevailed on her claim of disability
discrimination, she did not prevail on her unrelated
claims of workers’ compensation discrimination,
workers’ compensation failure to reinstate, workers’
compensation failure to reemploy, or whistleblowing.
In an equitable sense, it is not unfair to conclude that
Plaintiff prevailed on between one-third and one-half of
her claims (depending on how they are grouped). This
is also generally consistent with the fact that Plaintiff
asked the jury to award between $100,000 and
$150,000 in emotional distress damages, and the jury
awarded $70,000. The Court then added $13,200 in
economic damages, for a total award of $83,200. This
12 DUNLAP V. LIBERTY NATURAL PRODUCTS
provided a “concise but clear explanation of its reasons” for
the fee reduction and because we view “the degree of success
achieved by the prevailing party” as an appropriate
consideration, we defer to the exercise of the district court’s
discretion and uphold the fee award. Chaudhry, 751 F.3d at
1110.3
IV.
Although the district court should not have conflated the
instructions for the disparate treatment and failure-to-
accommodate claims under the ADA, the error was harmless
because the employer was on notice of the need to
accommodate. We affirm the attorney fee award as
adequately explained and calculated within the district court’s
sound discretion.
AFFIRMED.
reflects approximately one-half of what Plaintiff was
seeking. One-half of Plaintiff’s requested attorney’s
fees of $235,038 is $117,519.
3
Contrary to Dunlap’s assertions, Hensley v. Eckhart does not
prohibit reduction of the fee award for Dunlap’s unsuccessful claims. See
461 U.S. 424, 434 (1983) (conferring upon the district court discretion to
reduce a fee award without regard to whether the unsuccessful claims
were related to the underlying claim).