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Hayes v. Skywest Airlines, Inc.

No. 19-1294.  D.Colo. Judge Carson. Employment Discrimination—Americans with Disabilities Act—Family and Medical Leave Act—Motion for Mistrial—Motion for New Trial—Newly Discovered Evidence—Fed.R.Civ.P. 26(a)(1)—Front Pay.

September 6, 2021


Defendant is an aviation company that provides ground services to airlines at airports across the country. Plaintiff worked as a ramp agent for defendant at Denver International Airport (DIA) beginning in 2006. He received two promotions but resigned his management role in 2013 due to the progression of chronic kidney disease. In 2014, plaintiff exhausted his Family and Medical Leave Act (FMLA) benefits. He eventually returned to work and began the interactive accommodation process under the Americans with Disabilities Act (ADA). When discussions failed, plaintiff’s employment was terminated. Meanwhile, also in 2014, defendant learned that United Airlines (United) would not renew defendant’s contract at DIA for 2015. Therefore, defendant furloughed many of its Denver employees in December 2014. Simplicity USA took over United’s ground services contract at DIA.

Plaintiff filed suit, alleging that defendant violated the ADA, the Rehabilitation Act, and the FMLA. During trial, defendant requested a mistrial based on two instances of its own misconduct. The district court took action to remedy the misconduct and preserve the integrity of the proceedings but denied the mistrial request. A jury awarded plaintiff $2.3 million in back pay, compensatory damages, and punitive damages under the ADA. The jury also found that defendant retaliated against plaintiff in violation of the FMLA and awarded an additional $150,000. The district court reduced the monetary awards to reflect the single-recovery rule and statutory caps. Post-trial, plaintiff moved for a front pay award, and the district court awarded over $300,000, finding that defendant’s discrimination prevented plaintiff from obtaining employment with Simplicity USA. After final judgment, defendant moved for a new trial. The district court denied the motion.

On appeal, defendant argued that the district court erred in denying the motion for mistrial or motion for a new trial based on unfairly prejudicial trial proceedings resulting from defendant’s incidents of misconduct. First, during trial, a paralegal on defendant’s team gestured to defendant’s corporate representative while she was on the witness stand. The judge saw the gesture and instructed counsel to approach the bench. Following the jury’s departure, the paralegal admitted that she gestured to the witness that she should not answer a question posed by plaintiff’s counsel. The court informed her that she was to be excluded and banished from the courtroom and would be subject to contempt proceedings. The court then invited counsel to make a record. Following this exchange, the court advised the jury that the paralegal attempted to improperly communicate with the corporate representative, that it found the behavior highly inappropriate and contemptuous, and that it had dismissed the paralegal. When polled, no jurors stated that they saw the gesture. Here, the court’s advisement to the jury was factual, appropriate to the circumstances, and fulfilled the necessary purpose of identifying potential prejudice among the jurors.

Second, after proceedings ended on the day of the paralegal incident, defendant’s corporate representative had a conversation on the elevator with a juror that included discussion about the representative’s testimony. Following this incident, the corporate representative alerted defense counsel and produced a transcription from memory. Defense counsel served notice on the court and plaintiff’s counsel and on the following morning, defense counsel described the interaction to the court outside the presence of the jury. The court informed the corporate representative that it would initiate indirect contempt proceedings. Next, after the juror explained her recollection of the incident, the judge informed her that she would also be subject to contempt proceedings and excused her. The court also confirmed that no other jurors heard or learned about the conversation. The court invited counsel to make a record, and plaintiff’s counsel asked that judgment against defendant enter as a sanction. Defendant’s counsel requested a mistrial, which plaintiff opposed. The court ultimately dismissed the juror, excused the corporate representative from trial and ordered her to leave the courthouse, denied the request for mistrial, and advised the jury of the misconduct that occurred, along with the pending contempt proceedings. The court took plaintiff’s request for judgment by default under advisement but ultimately did not grant it. Here, the district court did not abuse its discretion in not declaring a mistrial because sufficient jurors and alternates remained; the court acted within its discretion in expelling the corporate representative from the courtroom; and the court’s advisement to the jury, which was rendered in a factual, non-prejudicial manner, served the permissible purpose of impressing on the jurors the seriousness of its repeated admonitions and emphasizing that it would consider any contact between jurors and parties a breach. Accordingly, the court properly denied the motions.

Defendant further argued that the district court abused its discretion when it denied the motion for a new trial based on newly discovered evidence. After trial, defendant learned that plaintiff had been placed on indefinite medical leave in 2017. Defendant maintained that plaintiff should have disclosed this information, or, alternatively, provided this information in response to written discovery. However, defendant was not diligent in discovering this evidence, so the district court did not abuse its discretion in denying the motion.

Lastly, defendant contended that the district court abused its discretion in awarding front pay as an equitable remedy because its contract with DIA ended in December 2014 and it would have laid plaintiff off at that time. However, the record supports the district court’s finding that defendant’s discrimination caused plaintiff’s inability to obtain employment with Simplicity USA. Further, the district court properly determined the front pay amount based on the position and wage that plaintiff would have held but for the discrimination.

The orders were affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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