Free Motion to Stay - District Court of Colorado - Colorado

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EXHIBIT 1 TO

DEFENDANT'S MOTION FOR STAY AND FILING OF SUPERSEDEAS BOND

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No. 05-1216

IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Case No. 05-1216 RAYLEVELLE, Plaintiff-Appellee,
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PENSKE LOGISTICS, a subsidiary of PENSKE TRUCK LEASING, Defendant-Appellant On Appeal from the United States District Court For the District of Colorado The Honorable Phillip S. Figa, Presiding Civil Action No. 02-F-2220 (PAC)

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DEFENDANT-APPELLANT'S MOTION TO STAY JUDGMENT

Franklin A. Nachman LITTLER MENDELSON, P.C. 1200 17th Street, Suite 1300 Denver, CO 80202.5835 Telephone: 303.629.6200

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Defendant-Appellant Penske Logistics, by and through its attorneys, Littler Mendelson, P.C., by Franklin A. Nachman, moves this Honorable Court, pursuant to Rule 8 (a) of the Federal Rules of Appellate Procedure, for entry of an Order staying the judgment entered on the jury's verdict and judgment for attorneys' fees and costs entered by the Court after the jury's verdict. In support of this Motion, Defendant-Appellant states as follows: 1. On January 24, 2005, the jury in the trial of this case returned a

verdict for actual and punitive damages for a total amount of $88,500.00 in favor of Plaintiff. The district court entered judgment on the verdict on its docket on January 26, 2005. 2. Plaintiff filed a Bill of Costs on February 4, 2005. On February 9,

2005, the clerk of the district court awarded Plaintiff $2,494.54 in costs. 3. On February 4, 2005, Defendant filed a timely post-trial motion under

Rules 50 and 59 of the Federal Rules of Civil Procedure, seeking judgment as a matter of law, or in the alternative, a new trial or to alter and amend the judgment On February 16, 2005, Defendant filed a Petition to Review Taxation of Costs. 4. On February 9, 2005, Plaintiff filed a filed a Motion for Attorneys'

Fees and Costs. Plaintiff sought attorneys fees and costs not previously awarded by the clerk of the district court. 5. On April 14, 2005, the District Court held a hearing on the parties'

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post-trial motions, including Plaintiffs Motion for Attorneys' Fees and Costs. The Court denied Defendant's post-trial motion and entered an Order granting Plaintiff $111,949.50 in attorneys' fees and $2,553.74 in costs. The Order denying posttrial motions and the judgment for attorneys fees and costs were entered on the Court's docket on April 20, 2005. 6. On April 14, 2005, Defendant filed a Motion to Stay the Judgment (See attached

pursuant to Rule 62 of the Federal Rules of Civil Procedure.

Motion). The Court denied the Motion without explanation on April 18, 2005. The Court's Order was entered on the docket on April 20, 2005. (See attached Order of Court). 7. Defendant filed a Notice of Appeal on May 3, 2005. Defendant now

renews its Motion. 8. A party seeking a stay of a District Court Order pending appeal is

required to show the District Court: 1) Its strong position on merits of the appeal; 2) irreparable injury if the stay is denied; 3) the stay would not substantially harm other parties to the litigation; 4) and the public interests favor the stay. Securities Investor Protection Corp. v. Blinder, Robinson and Co., Inc., 962 F.2d 960(10th Cir. 1992). 9. In addition, Tenth Circuit Rule 8.1 requires the applicant to address all

of the following:

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(a) (b) (c) (d) 10.

The likelihood of success on appeal; The threat of irreparable harm if the stay or injunction is not granted; The absence of harm to opposing parties if the stay or injunction is granted: and Any risk of harm to the public interests.

Notwithstanding the District Court's denial of Defendant's post-trial

motion, Defendant believes that it has a very high likelihood of success on the merits of this appeal. In this case, the jury awarded Plaintiff actual and punitive damages for alleged violation of the Americans with Disabilities Act (ADA) when the Defendant employer would not allow Plaintiff to work at the heavy duty job of delivering and installing household appliances after it received and reviewed two reports from medical specialists (one of whom Plaintiff ordered to prove a higher level of permanent partial disability) that Plaintiff had reached maximum medical improvement and that he would be restricted to light duty work. (A copy of Defendant's post-trial motion setting forth the facts and law in this case is attached to this Motion). 11. The District Court, although it recognized that the Defendant had

reviewed these two medical reports prepared only two months and five months respectively before Plaintiff termination, concluded that Defendant should have undertaken some additional investigation of the suitability of Plaintiff s return to

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employment, notwithstanding these two doctors' reports showing that additional treatment would not alleviate Plaintiffs condition. In fact, the later report, which Plaintiff and his workers' compensation attorney ordered, showed Plaintiff had an even greater degree of disability than the first report; and the doctor concurred that further treatment would not improve Plaintiffs condition and the light duty restriction was appropriate. The decision in this case imposing liability on Penske for actual and punitive damages directly contradicts several of this Court's decisions construing the ADA, including Lusk v. Ryder Integrated Logistics, 238 F.3d 1237 (10th Cir. 2001) and Doebele v. Sprint/United Management Company, 342 F.3d 1117 (10th Cir. 2003). The verdict also contradicts cases in the Circuit such as Rakity v. Dillon Companies, 302 F.3d 1152 (10th Cir. 2002) on the issue of whether an employer can be liable in a "regarded as disabled " claim under the ADA when it only considered Plaintiff s ability to perform a single job. 12. Irreparable harm will result if this judgment is not stayed in the event

Plaintiff and his counsel attempt execute against the judgment. Plaintiffs counsel has previously refused to agree to this motion. Failure to stay the judgment will allow mem to obtain a potential benefit that would be not be supported by law. Defendant has no assurance that if the judgment were to be reversed, it could collect the amount of the judgments from Plaintiff and his counsel. This matter has

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been pending since 2002, and the additional time for appeal will not harm the Plaintiff, even if the judgment is affirmed. 13. Penske is a publicly traded company with more than sufficient assets

to cover the amount of this judgment of approximately $200,000, including postjudgment interest. Should the Court require Penske to post a supersedeas bond, it would be willing to do so. WHEREFORE, Defendant Penske Logistics moves this Honorable Court for an Order staying the judgments entered in this matter pending the ultimate resolution of this litigation.

Dated May 6, 2005

Respectfully submitted,

Franklin A. Nachman DC Box 15 LITTLER MENDELSON, P.C. 1200 17th Street, Suite 1300 Denver, CO 80202.5835 Telephone: 303.629.6200 ATTORNEYS FOR DEFENDANTAPPELLANT PENSKE LOGISTICS, A SUBSIDIARY OF PENSKE TRUCK LEASING

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CERTIFICATE OF SERVICE I hereby certify that on this 6th day of May, 2005, a true and correct copy of the foregoing DEFENDANT-APPELLANT'S MOTION TO STAY

JUDGMENT was forwarded, via U.S. mail, to the following: Patricia S. Bangert Teresa Zoltanski Patricia S. Bangert, L.L.C. 709 Clarkson 3773 Cherry Creek Drive North, Suite 575 Denver, CO 80218 Denver, CO 80209

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ATTACHMENT 1 TO DEFEND ANT-APPELLANT'S MOTION TO STAY JUDGMENT

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 02-F-2220 (PAC) RAYLEVELLE, " Plaintiff,
v.

PENSKE LOGISTICS, a subsidiary of PENSKE TRUCK LEASING, Defendant. MOTION FOR STAY OF JUDGMENT AND ORDER

Defendant Penske Logistics, by and through its attorneys, Littler Mendelson, P.C., by Franklin A. Nachman, pursuant to Rule 62 of the Federal Rules of Civil Procedures, moves this Honorable Court for entry of an Order staying the judgment entered against Defendant on January 26, 2005 on the jury's verdict, the Order on taxation of costs entered on February 9, 2005, and any Judgment or Order entered for attorneys' fees and costs, as a result of the April 14, 2005 hearing in this case. Defendant seeks this stay to consider filing a Notice of Appeal and requests that the stay remain in force until the appeal is decided by the United States Court of Appeals for the Tenth Circuit, or until such time that a notice of appeal is required to be filed and no notice is filed. In support of this motion, Defendant states as follows: 1. After the trial of this cause, this court entered a Judgment Order on the jury's

verdict on January 25, 2005. Defendant filed a timely post-trial motion under Rules 50 and 59 of the Federal Rules of Civil Procedure. Plaintiff opposed the motion.

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2.

Plaintiff filed a Bill of Costs on February 4, 2005 The clerk of the court taxed

costs in part on February 9. 3. Plaintiff filed a Petition for Attorneys Fees and Costs. Defendant opposed the

motion in part. The court set April 14,2005 for a hearing on post trial motions. 4. At the conclusion of the April 14, 2005 hearing, the court denied Defendant's

post-trial motion; and ruled on Plaintiffs fees and costs petition. Defendant is not aware of whether a Judgment Order for fees and costs has been entered. 5. Defendant is contemplating an appeal of the Judgment Orders in this case. It

moves this court pursuant to Rule 62 of the Federal Rules of Civil Procedure for entry of an Order staying proceedings until the matter has been decided by the United States Court of Appeals for the Tenth Circuit, or until the time for filing a notice of appeal has passed with no notice of appeal having been filed. 6. Defendant requests that it be excused from posting a supersedeas bond during the

pendency of the appeal. The approximate amount of the judgment is $200,000. Defendant Penske Logistics is a public company that is financially able to pay the amount of any eventual judgment in this case, including post-judgment interest. condition of stay if ordered by the court. 7. In accordance with Rule 7.1 of the local rules of this court, undersigned counsel Defendant will post a bond as a

personally conferred with Patricia Bangert, one of the attorneys for Plaintiff, on April 14, 2005. Plaintiffs counsel said she would oppose this motion. WHEREFORE, Defendant Penske Logistics moves this Honorable Court for entry of an Order staying the Judgment Order entered on January 25, 2005; the Order on taxation of costs on

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February 9, 2005; and any Judgment Order entered on the court's ruling on attorneys' fees and costs at the April 14, 2005 hearing until the disposition of any appeal by the United States Court of Appeals for the Tenth Circuit, or until the time required to file a notice of appeal, with no notice of appeal being filed. Dated this 14th day of April, 2005 Respectfully submitted,

Fnuddin A. Nachman DCBoxlS LITTLER MENDELSON, P.C. 1200 17th Street, Suite 1300 Denver, CO 80202.5835 Telephone: 303.629.6200

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ATTORNEYS FOR DEFENDANT PENSKE LOGISTICS, A SUBSIDIARY OF PENSKE TRUCK LEASING CERTIFICATE OF SERVICE I hereby certify that on this 14th day of April, 2005, a true and correct copy of the foregoing MOTION FOR STAY OF JUDGMENT was forwarded, via U.S. mail, to the following: Patricia S. Bangert Patricia S. Bangert, L.L.C. 3773 Cherry Creek Drive North, Suite 575 Denver, CO 80209 Teresa Zoltanski 709 Clarkson Denver, CO 80218

Denver.91176.1 025981.1020

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ATTACHMENT 2 TO DEFENDANT-APPELLANT'S MOTION TO STAY JUDGMENT

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IN THE UNITED STATES DISTRICT COUR j]\] APR 2 ° 2005 FOR THE DISTRICT OF COLORADO LITTLER MENOELSC Judae Phillip S. Figa DENVER. COLORAC Judge Phillin S. Fiaa
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Civil Action No. 02-F-2220 (PAC) RAYLEVELLE, Plaintiff,
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PENSKE LOGISTICS, a subsidiary of Penske Truck Leasing, Defendant.

ORDERS ON POST-TRIAL MOTIONS As stated in the oral rulings of the Court at the Post-Trial Motions Hearing held on April 14, 2005, plaintiff is granted an award of attorneys' fees in the amount of $111,949.50. Of that amount $97,984.50 is attributable to the work performed by Patricia Bangert, Esq. and $13,965 to Teresa Zoltanski, Esq. This determination is based in part on an offset between a reduction in fees for limited inefficiencies, some vague billing entries and the lack of success on two of plaintiffs claims balanced against a limited enhancement of allowable fees that is justified here. Implicit in the award is the reasonableness of the hourly rates sought by plaintiffs counsel. No supplemental request of attorneys' fees and costs will be considered. Plaintiff is granted an award of costs, not otherwise claimed in his Bill of Costs, in the additional amount of $2,553.74. Defendant's Petition to Review Taxation of Costs (Dkt. # 87) is DENIED.

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Plaintiffs Motion to Compel Records Related to Attorneys' Fees (Dkt. # 93) is DENIED. Plaintiffs Motion for Leave to File a Sur-Reply (Dkt. # 97) is DENIED. Defendant's Motion for Stay of Judgment and Order (Dkt. # 102), filed April 14, 2005, is DENIED. DATED: April fc . 2005 BY THE COURT:

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE Case No. 02-F-2220 (PAC) The undersigned certifies that a copy of the foregoing Orders on Post-Trial Motions was served on April \\ . 2005, by: (X) delivery to:

Magistrate Judge Patricia A. Coan Franklin A. Nachman J. Daniel Rodriguez Littler Mendelson, P.C. D.C. Box 15 () () (X) e-mail to: facsimile to: depositing the same in the U.S. Mail, postage prepaid/addressed to: Teresa Zoltanski 709 Clarkson Denver, CO 80218

Patricia S. Bangert 3773 Cherry Creek Dr. North, Suite 575 Denver, CO 80209

GREGORY C. LANGHAM, CLERK

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Urtm^. Deputy Clerk/Secretary

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ATTACHMENT 3 TO DEFEND ANT-APPELLANT'S MOTION TO STAY JUDGMENT

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CaseNo.02-F-2220(PAC) RAYLEVELLE, Plaintiff,
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IN THE UNITED STATES DISTRICT COURTZOS5 FEB - U PM k- ,3 7 FOR THE DISTRICT OF COLORADO GREGORY ^ AM 6 MAH
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PENSKE LOGISTICS, a subsidiary of PENSKE TRUCK LEASING, Defendant. DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW, OR IN THE ALTERNATIVE, FOR A NEW TRIAL, OR IN THE ALTERNATIVE, TO ALTER AND AMEND THE VERDICT

Defendant Penske Logistics, by and through its attorneys, Littler Mendelson, P.C. by Franklin A. Nachman, pursuant to Rules 50 and 59 of the Federal Rules of Civil Procedure, moves this Honorable Court for entry of an Order granting it judgment as a matter of law on Plaintiffs claim for violation of the Americans With Disabilities Act (ADA). In the alternative, Defendant moves for a new trial, or in the alternative, to alter and amend the verdict by reducing the total of compensatory and punitive damages pursuant to 42 U.S.C. §1981 and or by vacating the punitive damage award in its entirety.
I. INTRODUCTION

As this Court is well aware, this case was tried to verdict before a jury, which rendered its verdict on January 24, 2005. The jury found in Plaintiffs favor on his claim that Defendant
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violated the ADA by regarding him as disabled. The jury awarded $10,000 in compensatory damages, $28,500 in back pay damages and $50,000 in punitive damages, for a total damage award of $88,500. The Court entered judgment on the verdict on January 26, 2005, and the judgment was entered on the docket on that day. This motion is from that Judgment Order. Defendant moves for judgment as a matter of law, and in the alternative, for a new trial or to alter or amend the judgment. Even construing the evidence most favorably to the Plaintiff, there was insufficient evidence that Penske regarded Plaintiff as disabled when it did not permit him to perform the heavy duty job as a Driver/Installer of household appliances, after receiving notice that two doctors had recently restricted Plaintiff to light-duty employment because of physical restrictions covering lifting, and pushing and pulling. Alternatively, even if Penske mistakenly evaluated Plaintiffs physical condition, there was no evidence that it regarded him as disabled in the major life activity of working. The evidence was uncontroverted that Penske considered Plaintiffs suitability for employment solely for the Driver/Installer position at Penske. At most, it considered him limited in the narrow category of heavy duty jobs. Several cases in the Tenth Circuit and other Circuits have held that being foreclosed from heavy duty jobs because of physical restrictions does not make an employee substantially limited in the major life activity of working. Therefore, Penske could not have regarded Plaintiff .as disabled as a matter of law. If the evidence is not sufficient to grant judgment as a matter of law, it is sufficient under Rules 50 and 59 to grant Penske a new trial. Alternatively the total of compensatory and punitive damages, $60,000, exceeded the $50,000 damage cap set by 42 U.S.C. §1981a. Furthermore, there was insufficient evidence to support a claim for punitive damages.

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Defendant's conduct simply did not rise to the level sufficient to entitle Plaintiff to punitive damages as a matter of law.

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FACTUAL BACKGROUND This Court is well aware of the facts from the parties' Motions for Summary Judgment and the trial. The material issues were not disputed, and the court is not required to weigh the evidence or the credibility of witnesses to grant Defendant's motion. Plaintiff, a Driver/Installer employed by Penske Logistics, suffered a back injury in the course of his employment on March 16, 2000. (Ex. 9). Plaintiff filed for workers' compensation benefits, which he received. Plaintiff was off work for more than six months as a result of this injury. On September 13, 2000, as part of the workers' compensation process, Plaintiff underwent a Functional Capacity Evaluation (FCE) by Dr. Robert I. Kawasaki. The results of Dr. Kawasaki's evaluation were contained in Ex. 10. The evaluation included strength testing. Plaintiff was required to lift a 33-pound box as part of the strength testing examination. Dr. Kawasaki found that Plaintiff stopped the test after one minute three seconds in the floor-toknuckle exercise; stopped the test from the knuckle-to-shoulder exercise after 52 seconds; and stopped the lift and carry test after 55 seconds. Plaintiff declined lifting from shoulder to

overhead, even with an empty box. (See Ex. 10, pp. 3-4). Plaintiffs performance on the strength tests placed him in the bottom tenth percentile of subjects tested.

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Dr. Kawasaki's conclusions regarding Plaintiffs ability to return to work were that based on the evaluation. He stated in his report, "Mr. LeVelle has some significant limitations

regarding his work capabilities." He recommended work restrictions as follows: 1. For all lifting below shoulder level... a light duty category with 40 pounds maximum occasionally, 20 pounds frequently, and 10 pounds constantly. For lifting overhead, .'.. 20 pounds maximum occasionally, 10 pounds frequently, and 5 pounds constantly. For push and pull,... 80 pounds maximum occasionally, 40 pounds frequently, and 20 pounds constantly. Patient will need to alternate activities between sitting, standing, and walking as needed for comfort.

2. 3. 4.

Dr. Kawasaki concluded that Plaintiff was thought to be at maximum medical improvement as of September 11, 2000. (p. 5). The Physician's Report of Maximum Medical Improvement and Impairment (Ex. 18) defined "maximum medical improvement" by stating: The Colorado Court of Appeals has held that, in workers' compensation cases, maximum medical improvement exists when the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve the condition, (emphasis added) Dr. Kawasaki also performed an impairment assessment for Plaintiff as part of the workers compensation process. He performed his assessment on September 25, 2000, and that assessment appeared at Ex. 11. Regarding Plaintiffs physical condition, Dr. Kawasaki noted Plaintiffs activities were "[significantly restricted secondary to his performance on the FCE. Please see the FCE results". Dr. Kawasaki confirmed that Plaintiff was at maximum medical improvement as of September 11, 2000. His impairment assessment totaled eleven percent of the whole person. The evidence

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was uncontroverted that this rating enabled Plaintiff to receive a lump sum payment for permanent partial disability. Plaintiff had suffered previous on the job injuries, but had always been released to work without restrictions and had never made a claim for permanent partial disability benefits. . On Wednesday October 4, 2000, Plaintiff met with his supervisor, Brett Carl, Penske's Logistics Center Manager (LCM). Plaintiff knew that Mr. Carl had been terminated from his employment at Penske, and that Mr. Carl's last day of employment would be Friday, October 6. According to Plaintiff, he had a brief meeting with Mr. Carl in the warehouse. At that time, Plaintiff claimed he gave Mr. Carl documents concerning Functional Capacity Examination and the Impairment Assessment, and discussed returning to work. LeVelle described the brief conversation which led to his reinstatement. Plaintiff said he asked Mr. Carl if he still had a job. He responded by asking Plaintiff if he thought he could do the job, and Plaintiff said he thought he could. Mr. Carl then said, "You had better be able to do the job because I am taking your word for it." Plaintiff testified that he did not observe Mr. Carl conferring or communicating with anyone else from Penske while they were conversing. Plaintiff returned to work on October 9, 2000, and by then Mr. Carl was no longer employed at Penske. Plaintiffs return to work directly contradicted his doctors statements that he was "significantly restricted" in his work activities. The record showed that Plaintiff repeatedly violated his doctor's restrictions after he returned to work, both by himself while on retail deliveries, and on others with the aid of a helper. (See Ex. 2; Ex. 21). He routinely moved appliances weighing more than 200 pounds by

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himself, and up to 600 pounds with a helper. He admitted under cross-examination that the job of a driver/installer was not a light duty job. His helper, Mike Mitchell, agreed. After Plaintiffs return to Penske, he underwent an Independent Medical Evaluation (1MB) by Dr. David Reinhard on December 19, 2000, at the suggestion of his workers' compensation attorney. (Ex. 12) Plaintiff testified that he underwent the 1MB because he and his attorney "did not trust Dr. Kawasaki." By that statement he meant they were contesting Dr. Kawasaki's 11% impairment rating and they were seeking even more compensation for permanent partial disability. Dr. Reinhard's assessment and recommendations stated: I would agree with the date of MMI as designated by Dr. Kawasaki. He had placed Mr. LeVeUe at MMI as of 9/11/00. I_do not feel that further treatment beyond that point would have hastened any additional recovery. I also agree with Dr. Kawasaki's recommendation for work restrictions.... (emphasis added) He proceeded to compute Plaintiff's impairment rating at 17% of the whole person for purposes of permanent partial disability benefits. Plaintiff testified that he received $46,000 as a lump sum benefit for permanent partial disability. Jo Ward became Logistics Center Manager in Denver at the beginning of 2001. Shortly after that time, she became aware of an incident in which Plaintiff refused to move a very heavy (KSS) refrigerator, because of his physical restrictions. Ms, Ward had no previous knowledge of the existence or extent of Plaintiffs physical restrictions. Plaintiff did not inform Ms. Ward of the particulars of the restrictions at that time, so she allowed him to continue to work. She had to obtain his workers' compensation records from company headquarters in Reading, Pennsylvania and from the third-party administrator for workers' compensation claims.

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After receiving these documents in mid-February, Ms. Ward discovered the extent of Plaintiffs physical restrictions, and Dr. Kawasaki's and Dr. Reinhard's conclusions regarding maximum medical improvement and recommendations for light duty. She consulted company representatives in the Risk Management and Human Resources Departments, who informed her the lifting restrictions were incompatible with the heavy duty position of a Driver/Installer at Penske, even if Plaintiff had been performing the job without incident in the past. On February 14, 2001, Ms. Ward informed Plaintiff that because of his restrictions, he could not work as a Driver/Installer. She also testified that she considered whether there were any positions open in the office, but none were available. She stated that employees out on injury would sometimes fill in doing office or warehouse work where their leave was expected to be short in duration and where the employee was expected to return to his or her previous position. While trying to reach an eventual decision, Ms. Ward initially allowed Plaintiff to use vacation time, then tried to place him back on workers' compensation leave. After discovering Plaintiff could not be placed back on workers' compensation leave because he had reached maximum medical improvement and received benefits for permanent partial disability, Ms. Ward again consulted the Risk Management and Human Resources Departments regarding whether, given the physical restrictions imposed by the two physicians, it was appropriate for Plaintiff to return to his heavy duty position as a Driver/Installer. After this additional consultation, Penske terminated Plaintiff s employment on March 1, 2000. (Ex. 5, 6).

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LEGAL ARGUMENT A. 1. Principles Governing Post-Trial Relief

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Defendant Is Entitled To Judgment As A Matter Of Law

In deciding Motions For Judgments As A Matter of Law under Rule 59 of the Federal Rules of Civil Procedure, courts will not weigh the evidence, pass on the credibility of witnesses, or substitute its conclusions for that of a jury. However, a Court must enter judgment as a matter of law in favor of the moving party if there is no legally sufficient evidentiary basis with respect to a claim or defense under the controlling law. Harolds Stores, Inc. v. Dillard's Dept. Stores, 82 F.3d 1533, 1546 (10th Cir. 1996). In conducting a post-trial review, the Court will construe the evidence and inferences therefrom most favorably to the nonmoving party. Wolfgang v. MidAmerica Motorsports, Inc., 111 F.3d 1515, 1522 (1001 Cir. 1997). 2. Penske Did Not Regard Plaintiff As Disabled a. Penske Did Not Misperceive Plaintiff's Physical Impairment

Plaintiffs sole theory under the ADA was that he qualified for protection because Penske "regarded" him as disabled under 42 U.S.C. §12102(2)(C). The Supreme Court of the United States has explained there are two ways an individual may qualify for protection under this subsection: 1) A covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or A covered entity mistakenly believes that an actual nonlimiting impairment substantially limits one or more major life activities.

2)

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Sutton v. United Airlines, 527 U.S. 471, 489 (1999).

The perceptions often result from

stereotypic assumptions not truly indicative of individual ability. Id. Nevertheless, an employer "is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job." Id. at 490-91. In this case the evidence was uncontroverted that Penske acknowledged Plaintiffs physician imposed physical restrictions and treated him accordingly. Penske acted after

receiving the results of two medical examinations taken over the previous five months. Those examinations reached identical conclusions regarding the prospects for recovery and physical restrictions. There was no evidence that Penske misperceived the extent of Plaintiff s limitation. Its perception was not based on speculation, stereotype, or myth, but on two doctors' written evaluations. For these reasons, this case falls squarely within the principles in the Tenth Circuit case ofLusk v. Ryder Integrated Logistics, 238 F. 3d 1237 (10tt Cir. 2001). In that case the Court of Appeals affirmed summary judgment in the employer's favor when it acted in response to a physician's evaluation of plaintiff s condition, which included lifting restrictions. The Tenth Circuit's decision in Lush is legally sound and reasonable as a matter of policy and common sense. A contrary decision would allow employees, not doctors, to decide whether medical restrictions conflicted with essential job functions. In this case, by Plaintiffs own admission, the driver/installer position was not a light duty job, yet he was limited to light duty because of his lifting restrictions. Conversely, in the case of Doebele v. Sprint/United

Management Co., 342 F.3d 1117 (10th Cir. 2003), the Tenth Circuit held evidence existed that the defendant employer regarded plaintiff as disabled because it disregarded doctors' restrictions. The exact opposite is true in this case, as Penske relied on two doctors' reports, a Functional

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Capacity Evaluation in September 2000 and an Independent Medical Examination in December 2000. Both Dr. Kawasaki and Dr. Reinhard concluded that Plaintiff had reached maximum medical improvement and be limited to light duty work. They only differed over the degree of permanent partial disability. It was also clear from the testimony of every witness, including Penske employees and its expert witness, Patrick Renfro, that the job of a Driver Installer was a heavy or very heavy duty job. Plaintiff failed to present any evidence that Penske's decision was based on anything other than an accurate assessment of two physicians' reports, as opposed to some proscribed reason. For this reason, Defendant is entitled to judgment as a matter of law. b. Penske Did Not Regard Plaintiff As Having An Impairment Substantially Limiting His Ability To Perform A Broad Range of Jobs

It is not sufficient that Defendant acknowledged the existence of an impairment. To show that Plaintiff was substantially limited in the major life activity of working, he must show that he is unable to perform either a class of jobs or a wide range of jobs in various classes, and a plaintiff claiming to be regarded as disabled must therefore show that the employer regarded him as having an impairment substantially limiting his ability to perform a broad range of jobs, rather than a single position. 29 C.F.R., pt. 1630, App. § 16300')(3)(i); McKenzie v. Dovala, 242 F.3d 967 (10th Cir. 2001). Several cases in the Tenth Circuit and other circuits have found that plaintiffs have failed to show they qualify for protection under the ADA because plaintiffs failed to show that defendants regarded them as unable to perform a broad class of jobs An excellent example is Ratify v. Dillon Companies, 302 F.3d 1152 (10th Cir. 2002), the Tenth Circuit affirmed summary

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judgment in favor of the defendant on plaintiffs claim that it violated the ADA because it regarded him as disabled. In that case, plaintiff was an all-purpose grocery clerk at King Soopers. King Soopers required lifting from 11-25 pounds up to 60 percent of the time, 26-40 pounds up to 40 percent of the time, 41-50 pounds up to 60 percent of the time, and more than 51 pounds up to 20 percent of the time. Plaintiff suffered a series of injuries, some in the course of employment, and he received a monetary settlement through workers' compensation for some of those injuries. Like Mr. LeVelle, plaintiff in Rakity hurt his back and was placed on lifting restrictions by his doctor. Because of those restrictions and doctors' reports, King Soopers did not return plaintiff to his allpurpose clerk job. Plaintiff filed suit; the District Court granted summary judgment in King Soopers' favor; and the Tenth Circuit affirmed the dismissal as a matter of law. The Court first reviewed the question as to whether plaintiff had a "disability" as defined by the ADA. The Court reviewed plaintiffs medical history, and said that plaintiffs most restrictive lifting limitation permitted him to lift up 40 pounds occasionally and 10 to 15 pounds frequently. It then emphasized its decision in Lush v. Ryder Integrated Logistics, 238 F.3d 1237, 1240-1241 (10th Cir. 2001), which held medical records with a similar 40-pound lifting restriction did not establish a history of substantial limitation on the life activity of lifting. It also noted decisions in other circuits which also held that even more stringent lifting restrictions did not rise to a substantial limitation on the major life activity of lifting. See Pryor v. Trane Co., 138 F.3d 1024, 1025, n. 2 (5th Cir. 1998) (20-pound lifting restriction from back injury); McKay v. Toyota Motor Mfg., USA, Inc., 110 F.3d 369, 373 (6a Cir. 1997) (a 10-pound lifting

restriction); Wooten v. Farmland Foods, 58 F.3d 382, 384, 386 (8th Cir. 1995) (10 to 20-pound

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lifting restriction with minimal overhead reaching); and Thompson v. Holy Family Hasp., 121 F.3d 537, 541 (9th Cir. 1997) (25-pound repetitive lifting restriction from back and neck injury). The Court next considered plaintiffs claim that he was regarded as substantially limited in the major life activity of working. The Tenth Circuit stated that plaintiff could only survive summary judgment if he provided triable evidence indicating King Soopers regarded him as substantially limited in a major life activity. It concluded he did not. It emphasized undisputed evidence that King Soopers regarded plaintiff as impaired in his ability to lift, but only to the extent indicated in his medical and employment records. The concerns were on the doctors' restrictions, which the Court already determined did not show an impairment rising to a substantial limitation in the activity of lifting. The Court went on to state: There is simply no evidence that suggests Mr. Brink disregarded Dr. Premacs' medical evaluation and substituted his own judgment about how much Mr. Rakity could lift. On the contrary, King Soopers' perception of Mr. Rakity 'was not based on speculation, stereotype or myth, but on the doctors' written evaluations of [Mr. Rakity's] condition.' Lusk, 238 F.3d at 1242; 302 F.3d at 1163. Significantly, the Court held that reliance on doctors' recommendations for restrictions did not mean the employer regarded the employee as substantially limited in a major life activity. The Court also held that plaintiff failed to present evidence that plaintiff was impaired in his ability to work. It stated that King Soopers' belief that plaintiff could no longer perform his job that required lifting in excess of his capabilities did not mean that he was regarded as disabled. There was no evidence that defendant regarded plaintiff as unable to perform a broad class of grocery clerk jobs, as he did perform some with lesser restrictions.

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In this case, there was no evidence that Penske regarded Plaintiff as unable to perform duties other than those within his restrictions in the heavy duty classification. It did not have another job in which to place him, and its inability to do so was not based on the belief that he could not perform light-duty jobs, but only that no such jobs were available. The evidence is also undisputed that Penske had allowed him to perform light-duty jobs in the past when he had temporary injuries of short durations, which did not result in permanent impairment and restrictions. In the recent case ofKnutsonv. Ag Processing, Inc., 2005 U.S. App. LEXIS 469 (8th Cir. 2005) (copy attached), after shoulder and back surgeries, plaintiff had difficulty performing certain tasks required of his job as a boiler room operator. Plaintiff received a work status report stating that his lifting should be limited to 20 pounds, overhead lifting should be restricted to once per hour, and there should be no repetitive use of his left arm. Plaintiff alleged his termination violated the ADA in that he was "regarded as" disabled. The District Court denied defendant's motion for summary judgment, and the case proceeded to trial. The jury awarded plaintiff actual and punitive damages, and the District Court denied defendant's post-trial motion. The Eighth Circuit reversed and entered judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure. The Court noted that when a major life activity at issue is working, the statutory phrase "substantially limits" requires at a minimum that plaintiffs allege they are unable to work in a broad class of jobs. See Murphy v. United Parcel Serv., 527 U.S. 516, 523-524 (1999). Courts have been mindful of the danger that an inability to perform a specific job always can be recast as an inability to perform a class of jobs associated with that

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specific job. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 201. The Court reiterated the principle that a person's inability to perform one particular job is not a substantial limitation on the major life activity of work. Mazarka v. Mills Fleet Farm, Inc., 245 F.3d 675, 679 (8th Cir. 2001), and that "working does not mean working at a particular job of the person's choice." Miller v. City of Springfield, 146 F.3d 612, 615 (8th Cir. 1998). It also cited the case of Shipley v. City of Univ. City, 195 F. 3d 1020, 1022-23 (801 Cir. 1999), which found for the employer as a matter of law where the record showed that Plaintiff was able to perform a variety of jobs. That case applies well to this case, where Plaintiff performed several jobs and owned his own businesses before working for Penske. These jobs did not require heavy duty work. The law is the same in the Tenth Circuit. The Court in Knutson proceeded to hold that Plaintiff failed to present evidence demonstrating that the inability to perform his particular job represented a significant restriction on his ability to perform either a class of jobs or a broad range of jobs in various classes, or that Defendant perceived him as so restricted. See 29 C.F.R. §1630.2(j)(3)(i). The same conclusion applies in this case. Penske did not pass judgment on Plaintiffs ability to perform any other job than the heavy duty that he was performing at the time of his injury. Other similar cases reaching the same conclusion on the basis of similar evidence are Wicks v. Reilly County Board of County Commissioners, 125 F.Supp.2d 1282 (D. Kan. 2000); and Horth v. General Dynamics Land Systems, Inc., 960 F.Supp. 873 (N.D. Pa 1997). The fact that a former supervisor allowed Plaintiff to return to work after a cursory discussion of his medical restrictions does not make Penske's later decision unlawful. In Simms v. Oklahoma ex rel. Dep't of Mental Health and Substance Abuse Servs., 165 F. 3d 1321, 1326

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(10* Cir. 1999) the Tenth Circuit held that a temporary lapse in enforcing a medical release requirement did not taint the legitimacy of later enforcement and at most was a scintilla of evidence that did not create an issue of material fact. In this case, the jury's verdict essentially validated poor management, while punishing proper management. For these reasons, Defendant Penske is entitled to judgment as a matter of law on Plaintiff s ADA claim. B. Plaintiff's Damages For Compensatory And Punitive Damages Should Be Capped At S50.000 The jury awarded Plaintiff $10,000 in compensatory damages and $50,000 in punitive damages, for a total of $60,000. 42 U.S.C. §1981a, which applies to ADA cases, sets limitations on total damages for compensatory and punitive damages. It provides that in the case of a respondent who has more than 14 and fewer than 101 employees, the amount shall not exceed $50,000. (42 U.S.C. §1981a(b)(3)(A)). The number of all employees for this purpose should be calculated on those in Penske's Denver facility, and not the entire company, Parrish v. Solecito, 280 F.Supp.2d 145 (S.D. N.Y. 2003). Jo Ward testified that there were approximately 59 employees at the Denver Logistics Center. For this reason, Plaintiffs total damages for

compensatory and punitive damages must be capped at $50,000. C. Plaintiff Is Not Entitled To Punitive Damages The evidence at trial was that Penske based its decision not to allow Plaintiff to work as a heavy duty Driver/Installer on two recent medical reports, both of which showed him at maximum medical improvement and restricted him to light-duty employment because of physical restrictions. There was no evidence of animosity between Plaintiff and his Supervisor, Jo Ward, or that she had any ulterior motive in making her decision.
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Whether sufficient evidence exists to support punitive damages is a question of law to be reviewed de novo. Fitzgerald v. Mountain States Tel. and Tel. Co., 68 F.3d 1257,1262 (10th Cir. 1995). The Tenth Circuit has held that the standard for punitive damages in actions claiming a violation of federal civil rights requires that the discrimination must have been malicious, willful and in gross disregard of the rights of the Plaintiff. Hampton v. Dillard Dep't. Stores, Inc., 247 F.3d 1091, 1115 (10th Cir. 2001). The standard for punitive damages cannot be satisfied by a showing of intentional discrimination alone. Otherwise, any jury verdict would include an award of punitive damages. Instead, Plaintiff must prove that Defendant acted with malicious, willful and gross disregard of a Plaintiffs rights over and above intentional discrimination. The Guides, Limited v. The Yarmouth Group Property Management, Inc., 295 F.3d 1065, 1077 (10th Cir., 2002). Malice and reckless indifference in this context refer not to the egregiousness of the employer's conduct, but rather to the employer's knowledge that it may be acting in violation of federal law. See Kolstad v. American Dental Association, 527 U.S: 526 (1999). The standard for punitive damages is stricter than for compensatory damages. Information Services, Inc., 202 F.3d 1262,1270 (10th Cir. 2000). Defendant's conduct did not meet this higher standard It acted on the advice of two doctors' evaluations. The Center Manager did not act precipitously, but rather consulted the risk management and human resources departments on multiple occasion before acting. While Deters v. Equifax Credit

Penske's conduct was not only far from egregious, it was not undertaken with knowledge that it was violating Plaintiffs rights under the ADA. Therefore, the award of punitive damages must be vacated.

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IV. CONCLUSION
Defendant Penske must be granted judgment as a matter of law on Plaintiffs ADA claim. It did not violate the ADA when it followed two very recent doctors' conclusions and recommendations regarding Plaintiffs medical condition and his physical restrictions. It may have subjected itself to liability had it ignored these provisions, and should not be penalized for following them. Furthermore, Plaintiff failed to show that Penske regarded him as substantially limited in the major life activity of working, as the sole evidence pointed to the conclusion that Penske limited its consideration and decision only to his ability to perform the heavy duty job of a Driver/Installer. Alternatively, on the issues of damages, the compensatory and punitive damage awards must be capped at a total of $50,000, pursuant to 42 U.S.C. §198la The award of punitive damages must be vacated, as Defendant did not act recklessly and with malice, as required by Tenth Circuit law.. Dated this 4th day of February, 2005 Respectfully submitted,

Franklin A. Nachman DC Box 15 LITTLER MENDELSON, P.C. 1200 17th Street, Suite 1300 Denver, CO 80202.5835 Telephone: 303.629.6200 ATTORNEYS FOR DEFENDANT PENSKE LOGISTICS, A SUBSIDIARY OF PENSKE TRUCK LEASING

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CERTIFICATE OF SERVICE I hereby certify that on this 4th day of February, 2005, a true and correct copy of the foregoing DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW, OR IN THE ALTERNATIVE, FOR A NEW TRIAL, OR IN THE ALTERNATIVE, TO ALTER AND AMEND THE VERDICT was forwarded, via U.S. mail, to the following: Patricia S. Bangert Patricia S. Bangert, L.L.C. 3773 Cherry Creek Drive North, Suite 575 Denver, CO 80209 Teresa Zoltanski 709 Clarkson Denver, CO 80218

Denver81040.1 025981.1020

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