THELTON E. HENDERSON, District Judge.
This matter came before the Court on March 28, 2016 for a hearing on Plaintiff Robert Gardner's Motion for a New Trial. Dkt. No. 113. Defendant Federal Express Corporation ("FedEx") timely opposed the motion. Dkt. No. 118. After carefully considering the parties' written and oral arguments, the Court hereby DENIES Plaintiff's motion, for the reasons set forth below.
As the parties are by now familiar with the factual background of this case, the Court provides only a brief summary. Plaintiff Robert Gardner was a full-time Ramp Transport Driver at Defendant FedEx's Oakland yard facility when he suffered an injury in January 2013. As a result, FedEx placed Gardner on job-protected medical leave. In May 2013, Gardner was notified that this leave had exhausted and that he had been "displaced" pursuant to FedEx policy. Though Gardner remained a FedEx employee and continued on paid medical leave, displacement meant that his position in Oakland was no longer protected. In September 2013, Gardner was transitioned to an unpaid leave of absence, during which time he could look for another position within FedEx. Over a period of months, Gardner turned down several job opportunities within FedEx that he deemed too dissimilar from his former full-time work. In February 2014, FedEx terminated Gardner's employment because he had been unable to find another position within the company.
Trial in this matter began on October 13, 2015. Dkt. No. 93. Gardner pursued the following claims: (1) Disability Discrimination; (2) Failure to Engage in the Interactive Process; (3) Failure to Provide Reasonable Accommodation; (4) Retaliation; (5) Failure to Prevent Discrimination or Retaliation; and (6) Wrongful Discharge in Violation of Public Policy. Verdict Form (Dkt. No. 106). On October 22, 2015, the jury returned a unanimous verdict for FedEx on all six claims. Id. Gardner now moves for a new trial on the first and fourth claims, based on a perceived mistake in the jury's special verdicts on those claims. Pl.'s Mot. for a New Trial ("Mot.") at 2 (Dkt. No. 113).
On the first claim for Disability Discrimination, the verdict form
Verdict Form at 2-3. The jury was instructed to answer the questions in order, and that if it answered any question in the negative, to not answer any of the remaining questions for that claim. The jury answered the first three questions in the affirmative; the fourth question in the negative; and, as instructed, did not answer the final two questions. Id.
On the fourth claim for Retaliation, the verdict form included four questions:
Id. at 8. The jury answered the first question in the affirmative; the second question in the negative; and, as instructed, did not answer the final two questions. Id.
Federal Rule of Civil Procedure ("Rule") 59 provides that after a jury trial, "[t]he court may, on motion, grant a new trial . . . for any reason for which a new trial has heretofore been granted in an action at law in federal court . . ." Fed. R. Civ. Pro. 59(a). "Historically recognized grounds include, but are not limited to, claims `that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving." Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940).
When the movant claims that a verdict was against the clear weight of the evidence at trial, a new trial should be granted "[i]f, having given full respect to the jury's findings, the judge . . . is left with the definite and firm conviction that a mistake has been committed." Landes Const. Co., Inc. v. Royal Bank of Can., 833 F.2d 1365, 1371-72 (9th Cir. 1987) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure § 2806, at 48-49 (1973)). In the Ninth Circuit, denial of a new trial is "an error in law" if there is an "absolute absence of evidence to support the jury's verdict." Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quoting Urti v. Transp. Commercial Corp., 479 F.2d 766, 769 (5th Cir. 1973)).
Gardner seeks a new trial on the grounds that the jury's negative responses to the "adverse employment action" questions — the fourth question of the first claim and the second question of the fourth claim — were "directly contrary to the instructions given by this Court regarding undisputed facts." Mot. at 1.
FedEx first argues that neither Gardner's displacement nor his termination were adverse employment actions to which FedEx subjected Gardner, as required by the relevant instruction.
Tr. Def. Closing Appearances at 27-28 (attached hereto as Ex. A). By FedEx's own admission, it is therefore evident that the jury erred in finding, on the first and fourth claims, that FedEx had not subjected Gardner to an adverse employment action.
The thrust of this motion, then, is whether this mistake requires a new trial on either claim. If the jury had correctly answered the adverse employment action questions in the affirmative, then two questions remained to be answered on both the first and fourth claims. But because the jury incorrectly answered the adverse employment action questions in the negative on both claims, it did not reach the two remaining questions on either claim. The Court must therefore decide whether a new trial is warranted to determine how the jury would have answered the remaining questions on each claim.
FedEx argues that a new trial is not warranted because "[i]t is the duty of the courts to attempt to harmonize the [jury's findings] if it is possible under a fair reading of them." Opp'n at 6. FedEx argues that in this case, the Court can harmonize the jury's incorrect responses to the adverse employment action questions with the jury's across-the-board finding of "no unlawful conduct and no liability," because the Court need not guess at how the jury would have completed the verdict form on the first and fourth claims. Id. This is so, FedEx argues, because the question following the adverse employment action question on both claims is substantially similar to a question the jury did answer, in the negative, on the sixth claim. Id.
Gardner's sixth claim for Wrongful Discharge in Violation of Public Policy asked the jury four questions:
Verdict Form at 10. The jury answered the first two questions in the affirmative; the third question in the negative; and, as instructed, did not answer the final question. Id.
The third question on this sixth claim — "Was Mr. Gardner's disability or medical leave a substantial motivating reason for Mr. Gardner's discharge?" — is certainly substantially similar to the first unanswered question on both the first claim — "Was Robert Gardner's physical condition a substantial motivating reason for FedEx's decision to subject Mr. Gardner to an adverse employment action?" — and fourth claim — "Was Robert Gardner's medical leave a substantial motivating reason for FedEx's decision to subject Robert Gardner to an adverse employment action?" Id. at 3, 8, 10. Because the jury answered this "substantial motivating reason" question in the negative on the sixth claim, FedEx argues that "[v]iewed as a whole, it is clear that, even had the jury answered the `adverse employment action' questions in the affirmative for the first and fourth claims, the jury still would have found against Gardner by answering the next-following `substantial motivating reason' questions for those same claims in the negative, resulting in the same verdict in favor of FedEx." Opp'n at 2.
FedEx is correct that when "there is a view of the case that makes the jury's answers to special interrogatories consistent, they must be resolved that way," which means that courts "must attempt to reconcile the jury's findings, by exegesis if necessary . . . before [they] are free to disregard the jury's special verdict. . . ." Gallick v. Balt. & Ohio R.R. Co., 372 U.S. 108, 119 (1963) (citations omitted). The cases initially cited by FedEx, however, dealt with inconsistent findings, rather than incomplete verdicts, and therefore did not directly address the situation described above. As such, the Court ordered supplemental briefing from the parties on "whether it is appropriate for a court to reach questions that the jury never reached," including "the propriety of looking to [] the jury's answers to other, similar questions." Dkt. No. 132.
Having reviewed the parties' supplemental authorities, the Court is now convinced that a new trial is not warranted under these circumstances. It is certainly true that "where a special verdict resolves several issues in a case but fails to resolve a `distinct and separable' issue, the proper course of action is to order retrial of the unresolved issue." Waters v. Howard Sommers Towing, Inc., No. CV 10-5296 CAS (PJWx), 2013 WL 2237684, at *2 (C.D. Cal. May 21, 2013). But here, the questions whether Gardner's physical condition (on the first claim) or medical leave (on the fourth claim) were "a substantial motivating reason for FedEx's decision to subject [] Gardner to an adverse employment action" are neither distinct nor separable from the question whether "Gardner's disability or medical leave [was] a substantial motivating reason for [] Gardner's discharge" on the sixth claim. Verdict Form at 3, 8, 10. The former questions are not "logically independent from the [] factual and legal issues resolved by" the latter question. Waters, 2013 WL 2237684, at *2. Rather, these unanswered questions are nearly identical — factually, legally, and logically — to the question already answered by the jury on the sixth claim. This sixth claim encompassed both disability (i.e., the first claim) and medical leave (i.e., the fourth claim),
To conclude that the jury may have answered the "substantial motivating reason" questions differently on the first and fourth claims than it did on the sixth claim would be to create an inconsistency where none currently exists. See Skyway Aviation Corp. v. Minneapolis Northfield and S. Ry. Co., 326 F.2d 701, 704 (8th Cir. 1964) ("The failure to agree on the unanswered interrogatory did not vitiate the otherwise unanimous verdict effectively disposing of the issues submitted."); see also id. (finding that jury's failure to agree on whether plaintiff had been negligent did not vitiate otherwise unanimous special verdict for plaintiff, given jury's finding that plaintiff's negligence, if any, was not the proximate cause of an accident). Moreover, this finding is consistent with the law's respect for the jury's role as fact-finder. See, e.g., Gallick, 372 U.S. at 113 ("We think that the Court of Appeals improperly invaded the function and province of the jury. . . ."); Landes, 833 F.2d at 1371 ("[A] decent respect for the collective wisdom of the jury, and for the function entrusted to it in our system, certainly suggests that in most cases the judge should accept the findings of the jury, regardless of his own doubts in the matter.").
The cases cited by Gardner do not affect this conclusion. Those cases dealt with drastically different circumstances, such as where a jury deadlocks or otherwise fails to answer an interrogatory without explanation. See Union Pac. R.R. Co. v. Bridal Veil Lumber Co., 219 F.2d 825, 832 (9th Cir. 1955) ("To do other than send the case back for a new trial when decision on a vital issue by the jury is missing would deprive the parties of the jury trial to which they are entitled constitutionally."); California v. Altus Fin. S.A., 540 F.3d 992, 1005 (9th Cir. 2008) ("If the answered verdict forms do not dispose of all the issues submitted to the jury, the court must either resubmit the unanswered verdicts to the same jury or declare a mistrial with respect to the unresolved issues."). Though a new trial may be warranted in such cases, here, there was no deadlock, no unexplained empty interrogatories, and therefore no "missing decision on a vital issue." Rather, the special verdict form in this case did "dispose of all the issues submitted to the jury." The only reason the jury left questions unanswered on the first and fourth claims was because it had already reached a finding of no liability on those claims that, albeit reached incorrectly, is consistent with every other answer the jury provided that day.
For the foregoing reasons, Plaintiff's motion for a new trial is hereby DENIED.
I do have some prepared argument, but I wanted to address some of the things that counsel stated in his closing remarks.
In this case, Mr. Gardner wants to place the entire burden of the interactive process on the employer. The employer is not the one that is injured. The employer is not the one that goes to the doctor visits. The employer is not the one who receives the diagnoses. In fact, the employer is precluded from receiving the diagnoses.
The employer receives a Work Status Report, and there are laws that prevent the employer from inquiring into the specific diagnosis. So what they're entitled to is a Work Status Report, what is the status of this employee vis-à-vis returning to work.
There is no evidence, zero, that Mr. Gardner sent anyone at FedEx a Work Status Report from any doctor until August 30. The only other Work Status Report that is in evidence that was received by FedEx was the May 21st Work Status Report from U.S. HealthWorks that was received from Sedgwick, the company — you've heard the name during this trial — that manages the Workers' Compensation claims and the one that contained the no-commercial-driving restriction which Mr. Gardner agreed precludes one from being a ramp transport driver.
The jury instruction you will receive will state that it's an interactive process. It's not a one-way process. If you don't tell the employer hey, I think I can go back to work if only you would do this for me, there's really no way for the employer to learn that you believe you can return to work, particularly in the face of a no-commercial-driving restriction.
Now, as a source of comparison, I would invite you to take a look at the communication log with Dave Low. You met Dave Low. He came here and testified. We know from the evidence Mr. Low is the fifth ramp transport driver from OAKRO who was out on medical leave during mid 2013 and was not displaced because his job-protected leave hadn't yet run.
And what did he do? If we take a look at the communication log, which I believe is Exhibit 39, he called his HCMP advisor to say, It's July 29. I have a doctor's appointment. I expect to be released. My time runs on August 2. And the HCMP advisor, who was Kathy Cline, said, you know,
He called back and said, My doctor canceled that July 29 appointment and now it's not scheduled until — I don't have it off the top of my head. It's like August 5 or August 7. It's a week away. Kathy Cline said fine. No actions taken. The protected leave is extended.
Before that August 5 — I'll choose 5 — August 5 doctor's appointment, Mr. Low called again. My doctor canceled my appointment again because he's in surgery. It's now scheduled for the 13th. Kathy Cline said fine; makes a note in the log. Takes no action on displacement.
Comes the 13th. Mr. Low calls again. It happened again, My doctor canceled my appointment. I'm — I'm now scheduled for the 20th. Kathy Cline says fine. No actions taken on the displacement. It's continued for that extra week. Communication.
Mr. Low calls and tells her, I'm expecting the release. Here's the date I expect it to happen. As it turned out, Mr. Low told us there was an opening on the 15th. He went in, got evaluated, got his release.
What did his release say? You can return to work without restriction September 3, two weeks hence.
So his job protection was extended, and he returned to his position because his position was held open under the policy well more than 90 days because of communication, because of the interactive process, because he let people know what was going on, when FedEx could expect him to be released to return to work.
You don't find that in Mr. Gardner's communication log. Mr. Gardner agreed when he was on the stand he did not contact either Kathy Cline or whoever was sitting in for her or Mr. Barker on a weekly basis. The only information we have about his contact with HCMP is the call he — the call he had with Ramona McMaster around the 5th or so of May, because he knew his displacement date was coming up on the 7th, to say I have a doctor's appointment. It's on the 21st. Fine. The note is made. The job-protected leave is extended. Unfortunately, on the 21st, he did not get a release. You heard Dr. Rhee. On May 21 he had actually gotten worse, and there was no anticipated date of return to work. And that's why he was displaced.
You heard the argument that but for going out on medical leave, Mr. Gardner would not have lost his position. You know, anybody can make a but for test. But for working at FedEx, Mr. Gardner never would have been hurt. It's not a but for test. Whether or not Mr. Gardner was discriminated against is an intent test. You'll see in the jury instructions the issue is substantial motivating factor for decision-making. What motivated Kathy Cline or Ramona McMaster or Harry Saurer or Ron Fraser for their decision-making? Because people were out on leave? Or because, in Mr. Fraser's case, I have four vacant positions. I don't need them. He didn't say, I'm eliminating these jobs of four guys that are out on medical leave. He said, I'm not going to replace those positions. I'm not going to hire other employees to fill those positions because I don't need them. There's no work for four more ramp transport drivers. And the law does not require FedEx to employ people for jobs that don't exist. That's true of any employer.
Ramona McMaster have thousands of employees for whom they're responsible. Not thousands of injured employees on medical leave. Their area has that many employees in it. Only a small number of them are out on medical leave at any one time. Is it a big job? Sure. Does it take a lot of work? Sure. But it's not unmanageable.
The argument is made — and it's one of the things you'll hear — you have heard several times through the trial. You heard in opening statement. You will likely hear in the rebuttal argument. And that's confusing terms and confusing issues so that it sounds logical, but when you drill down, when you peel them back, it doesn't really exist.
One of those is confusing the issue of extending job-protected leave as an undue hardship. There's no undue hardship in extending leave. The undue hardship is being required to have in the workplace people for whom there is no work.
So it's not that FedEx has to show it was an undue hardship to extend Mr. Gardner's job-protected leave. FedEx extended his leave until he was able to come back to work. Having the person on leave was not a hardship, undue anyway. But when it's time to return to work and things have changed — Mr. Gardner was off for seven months. Things changed. Reorganization occurred. And positions were eliminated. Vacant positions. There's nothing unlawful about that.
In similar fashion, during the trial — and not so much in opening statement because Mr. Gardner finally admitted on the stand that he was confusing the issue of work assignment with open, available job position. Mr. Gardner, in his argument — and I use that generically. I realize Mr. Gardner was not the one up here talking. But that's in the royal sense. Mr. Gardner's advocate argues that and confuses the issue of adverse employment action in and of itself with the decision-making that led to that action being taken.
What was the substantial motivating factor for the decision to eliminate the jobs? To place or displace Mr. Gardner? To not return him to a job that didn't exist when he was released to return to work and ultimately when terminating his employment after 167 days of job search without taking any of the jobs that were offered?
What was the substantial motivating factor for that? That he had taken a medical leave a year earlier? No. Because at some point, someone has to act. Displacement after more than 90 days — there's no 90-day hard-and-fast rule because the company is entitled to do so. In this situation, at this time, the company had too many drivers. If the situation were reversed and they didn't have enough drivers, the company would not have to wait until a driver on medical leave, for who knows how long, returned to replace that position and get another driver in a truck so that shipping commitments are met. This just happens to be the reverse of that. We have too many instead of too few.
There is an instruction that will tell you, a jury instruction — and I'm going to put it up a little later — that will tell you that if there is competing reasons for a decision being made, for example, the alleged intent to discriminate against a person who was injured on the job and was disabled for a period of time and the intent to right-size the company so that you have the correct number of workers for the amount of work you have and you find that the person making that decision, whether it was Ramona McMaster in the displacement, Kathy Cline in putting Mr. Gardner on his personal leave, Ron Fraser in eliminating the vacant positions, or Mr. Saurer when he ultimately sent the termination letter, was because they were following a lawful policy and they would have made that decision. Even if you think there was some discriminatory motive, they still would have made that decision, then FedEx is not liable and Mr. Gardner does not recover.
When we began this jury trial process six days ago, at this point only counting the trial days, we did so by selecting each of you as members of the jury, and that process is called voir dire. Some say voir deer; dire dire. It's French. And it loosely translates into the truth. A search for the truth.
During my questions to you, I focused on three general areas. One, whether you had heard the phrase he can't get out of his own way, meaning Mr. Gardner causes more of his problems than he resolves; two, whether you knew anyone who, in the face of easily-explained events which adversely affect them, perceives the result as meaning someone is out to get them. Some might call that paranoia. I think that's a little too strong, but the idea being it must be someone doesn't want me because I'm not getting what I want. And as we developed, during our conversation with Mr. Gardner while he was on the stand, he wanted his same job, same route, same everything, and he wasn't going to take anything else. The company was supposed to stand still during the seven months that he was out recuperating from his injury.
And then the third issue was whether you all agreed you could follow the facts — you could hear the facts and follow the law, even if you didn't like the outcome. And everyone is on this jury because they all agreed that can be done.
I mentioned this a little bit in my little preamble, but Mr. Gardner would want you to believe that this is a very simple case. Mr. Gardner went on medical leave because he was physically disabled from a workplace injury. Mr. Gardner was displaced from his full-time ramp transport driver position because he could not return to work and was ultimately terminated from his employment; ergo, Mr. Gardner was discriminated against because of his disability.
But that simplistic view ignores the law on which you will be instructed by Judge Henderson and it ignores almost all of the facts that were presented here at trial.
That simplistic view ignores, among other things I'll speak about later, the fact that there is no evidence that any decision by any of the decision-makers who came here and spoke to you under oath — that any decision with respect to Mr. Gardner's employment was made because of his physical condition.
The circumstances of Mr. Gardner's injury and physical condition caused the provisions of FedEx's medical leave of absence policy, Policy 1-8, to be implemented, and there is no evidence, there is no finding that that policy is in any way unlawful.
The policy was put up on the board — it's one of the exhibits — and it says in it you are guaranteed 90 days of job-protected leave, but an employee can request an extension of that leave, but you have to do that. You have to ask that the leave be extended. And that will be considered initially by the Human Capital Management Program, HCMP, advisor. She has some authority to grant extensions. In Mr. Gardner's case, it was a two-week extension. In Mr. Low's case, it was one week, one week, one week, two weeks.
Then it has to go to a committee, a local committee, up to 45 days, and that request has to have some information in it. It has to tell this committee why is it appropriate to extend this job protection longer than it already is. And one of the things that the committee wants to know is when are you coming back? What is the estimated return date?
Mr. Gardner couldn't give that date on the 21st of May. He admitted that on the stand. Dr. Rhee agreed he had no estimate when he examined Mr. Gardner on the 21st of May.
The Work Status Report, which Mr. Gardner wants to point to, says, well, return to clinic in 15 days. You know, restrictions for 15 days.
Dr. Rhee came here and he explained that just means I'll be reevaluating him in 15 days. That is not an estimate of when he'll return to work. There's a place on the form for estimated return to full duty. That was left blank.
And Ramona McMaster, the person who was overseeing Mr. Gardner at the time because Kathy Cline was on a medical leave herself, told you I've seen thousands of work status reports. I know from my 20-plus years of experience that does not mean you're released to return to work in two weeks.
You know, anybody can point to something and say you should have done this; your investigation was incomplete because you didn't do that. There's always one more thing, one more person to contact. But at some point, a person has to know I have a job, I know what my job is, and I've done my job. And Ramona McMaster told you she knew that was not something that needed to be followed up on. If there was something down around the estimated return-to-work part, if need be, she could have followed up on that.
When Mr. Gardner faxed his return-to-work status report on August 20 — on August 30 to Ramona McMaster and it said released to return to work today, she knew what to do. She contacted Ron Fraser and Ken Barker at the OAKRO operation saying we got a release to return to work from Mr. Gardner. They told her we're looking at the operation to see what's available. We'll get back to him next week. Ramona McMaster contacted Mr. Gardner, said Ron Fraser and Ken Barker know about your release. They're looking at the operation, and they'll get back to you next week. That's the interactive process. I'm not saying that's the entire process with Mr. Gardner, but that's how it works. Communication. It's a two-way street.
Each of the actions taken with regard to Mr. Gardner, the substantial motivating reason was following the policy, not because he at one time had a disability, because even when he returned from that disability, there's only so much you can do. You can offer what's available, which was done. This is what we have available. You heard Mr. Fraser testify:
Why was he only offered part-time RTD positions?
Because that's what we had available.
The only evidence as to why Mr. Fraser eliminated the four vacant RTD positions is because he was overstaffed. There is no evidence that a substantial motivating reason, much less any motivating reason, was because he had four people out on medical leave. In fact, the evidence belies that because when Mr. Jordan came back and a position became open, they put him back to work. No one said, Oh, I'm sorry, Mr. Jordan. We're concerned that you might reinjure yourself, so we don't have anything available for you. That's not what happened. But he only got a position because Mr. Bowersmith was suspended and being terminated; a position was open and available.
Mr. Low was out on medical leave. We already discussed how his job protection never ended, but, nevertheless, he was injured, workplace injury. He came back and was given a position.
Mr. McCluskey, we heard about him. He was out on medical leave. When he came back, there was no position available. So what happened to him? He got put on the same 90-day personal leave to find another job as Mr. Gardner. And one became available. They both applied for it. Mr. McCluskey got it because he had more seniority.
I mentioned during the voir dire process about viewing this case and the actions taken — I'm sorry. It was actually during my opening statement. Forgive me. Viewing this case and the actions taken based upon the facts and circumstances known at the time, not with 20/20 hindsight.
It's easy to stand up here and say all FedEx had to do was extend the leave just three more months. But the decision has to be made in May, not in August. In May, you have to decide are the requirements for extending leave present here today when I'm make a decision that it's my job to make? And there wasn't. There was a Work Status Report reinstating a no-commercial-driving restriction. There was testimony from Dr. Rhee, Mr. Gardner had actually gotten worse. And there was no understanding of when that might all change and Mr. Gardner could return to work.
Yes, it's easy to say well, it turned out to be August 30. That's not when the decision is made. The decision for displacement is made at the time it's made, and you can't charge Ramona McMaster with clairvoyance. She made a decision based upon the information she had at the time.
I spoke to you about setting aside sympathy for Mr. Gardner. I didn't say not to feel sympathetic for his situation. Yes, he lost a job that he liked. He lost it because of essentially a reduction in force over which he had no control. And, quite frankly, FedEx does not control the marketplace. If business is down, business is down, and we've all been through what I guess is being referred to as the Great Recession. Business has been down for everyone.
But the only reason Mr. Gardner is no longer working as a ramp transport driver for FedEx is because he refused to accept any part-time ramp transport driver position, despite the fact that he was offered five different positions, two different locations, a selection of hours, starting times. Four of those were at the same Edes Avenue location in Oakland. They were all doing the same job, ramp transport driver. Nobody was offering him handler or some other different position. Ramp transport driver, doing exactly what he claims he loved to do and he wanted to do. Two or three were starting at about the same time in the late afternoon, same benefit package.
Now, you heard something about retirement plan being cut in half. Mr. Allman testified to there's two retirement plans. The 401K, which most of us know, is the one where you contribute something and the company contributes matching funds. That doesn't change for a part-time driver. There is no evidence of that. We did hear that Mr. Gardner was putting in the — the amount necessary to receive back the maximum contribution from FedEx. That would not have changed.
The second retirement plan that is based — where contributions are based on your earnings, yes, that would change somewhat. That's a percentage basis, and so obviously if you're earning less, the percentage is going to be somewhat less than what you were putting in before.
And we talked about those five different positions that he was offered, Mr. Gardner was offered, and ultimately, in my conversation with Dr. Allman, determined that the difference would be about $280 a week. And that's without working any additional hours.
And if you're still working there, the potential to promote back into full time. I asked Mr. Gardner if he was aware of whether any full-time positions became available at OAKRO. He said he was. He acknowledged that Mr. McCluskey retired not long after he took that position in January.
As I mentioned in my opening statement, and I believe I have done what I said, the evidence establishes that FedEx did not abandon Mr. Gardner. Mr. Gardner chose to walk away from FedEx. I believe it's unfortunate that he made that choice. But that's not unlawful, which is what this case is all about, unlawfulness, not unfortunate.
Another item that's crucial in your deliberations is what's known as the burden of proof. You've already heard a little bit about that. There's two burdens of proof with which you'll be concerned in this trial. The first one is on the general six claims that Mr. Gardner has brought, and that is it's his burden for each of those six claims to prove each element of each claim by a preponderance of the evidence. That's often described as being more likely true than not true.
So if you consider all of the evidence and at the end of your deliberations you say, You know what? It's really kind of even. On some things it's a he said/she said. I can't say one preponderates over the other — if that's where you find yourselves, then you must find in favor of FedEx because Mr. Gardner had the burden and he did not carry that burden.
In discussing the evidence, it seems to me that there are five important dates: January 30, 2013, when, due to a continuing injury, Mr. Gardner left work. May 22, the date he was displaced from his full-time ramp transport driver position. Wasn't terminated. His employment didn't end. He continued on his medical leave. But he was now moved under a different umbrella. Under FedEx policy, that allows management at OAKRO to fill that position if they need another driver, leave the position unfilled, or eliminate it altogether. August 30, the date Mr. Gardner was finally released after seven months to return to work without restrictions. September 3, the date Mr. Gardner was placed on his personal leave, 90-day personal leave, to find another job. And then February 17, the date Mr. Gardner's employment was ultimately terminated when he did not accept any job, he did not pursue any job, and, by his own testimony, he did not want any other job.
So what do we have? On January 30, Mr. Gardner went to see Dr. Carucci, his own personal doctor, the one he saw back in November for the same type of injury but which had worsened, and she did a film study, an MRI, gave him some medication, and put him off work for a week.
Before the end of that week, Mr. Gardner reported the injury to FedEx. And what did FedEx do? They sent him to their workplace injury doctor for evaluation, who evaluated him, placed him off work, and began a course of treatment that they hoped would resolve the issues.
Exactly why the no-commercial-driving restriction was placed on Mr. Gardner by U.S. HealthWorks, we don't know because FedEx isn't entitled to know. All they get is the Work Status Report. Was it because of medications he was taking? Was it because he couldn't turn his head to drive safely? We don't know. All we know is no commercial driving means no RTD work.
And Mr. Gardner remained on that medical leave of absence until August 30, when he was evaluated by Dr. Rovner's physician's assistant and received his release without restriction.
You heard from Kathy Cline, who sent Mr. Gardner a letter on February 5 advising him that FedEx policy is to hold his job for him for 90 days. You heard Kathy Cline testify that FedEx does not count the first seven days against the 90-day job protected leave, which effectively provides a minimum of 97 days. A minimum of 97 days, not a hard and fast rule, not something that can't be altered, exceptions made.
You heard about the 84 days that the Federal Family Medical Leave Act and the California Family Rights Act requires. And you heard about the policy exception that allows an employee to request an extension of their 90 days.
And you heard Ramona McMaster and Kathy Cline tell you that Mr. Gardner never made any such request of them.
You also heard Ramona McMaster testify that she spoke with Mr. Gardner that first week of May, and upon being informed of the doctor's appointment on May 21, extended the leave. No, Mr. Gardner didn't have to use any magic words. I need an accommodation for two more weeks because I have a doctor's appointment. No. He gave her the information she needed. She said fine, we'll wait until that doctor's appointment and then we'll make a decision.
Not that I suppose the numbers actually matter, but with that extension, Mr. Gardner actually got 105 days of job-protected leave because he wasn't displaced until May 22.
Mr. Gardner argues that a substantial motivating reason for Ramona McMaster deciding to send him the May 22 displacement letter was Mr. Gardner's physical condition. There is no evidence from Ms. McMaster or anyone else that that's what triggered her decision-making. What there is evidence of is that Ms. McMaster sent the displacement letter because under the parameters that she operates, that's what is required under Policy 1-8 in the face of no request for an extension of time, no information that allows her to make her own determination of an extension of time. By that I mean no estimated return-to-duty date. And so that's what you do; that as an HCMP advisor in the face of no other information, it's time to send the displacement letter and start that part of the process.
You heard argument that well, there's no evidence that Ms. McMaster contacted Ron Fraser or Ken Barker to see if it was an undue hardship to extend the job protection. Well, we already talked about that. It's not that extending the job protection is an undue hardship; it's whether we have the information because of the interactive process that allows us to determine whether it's appropriate, whether it's reasonable, because that's — all accommodations have to be is reasonable. It doesn't have to be the accommodation that the employee wants or needs. It has to be an accommodation that is reasonable. And in this case, the reasonable accommodation was extending the leave without termination, without any other adverse effect, other than we need to give management the right to decide what to do with an unfilled position, a vacant position, but you're just under a different umbrella. You're still our employee, you're still on medical leave, you're still recuperating and with everything that goes along with that.
But that's what was the motivating factor, indeed, the substantial motivating factor for Ramona McMaster to do the displacement letter. There is no evidence that, in her mind, she was thinking I'm going to dump this guy because he's on medical leave, because he's disabled. That's what the substantial motivating reason or factor needs to be in your consideration.
And then the next important date is August 30. We've kind of talked about this. Mr. Gardner is released to return to work without restriction. And there was no RTD position available, neither full-time nor part-time. There was no position available for Mr. Gardner at that time in the operation because with the reorganization, with the restructuring, and with the reassignment of work, there was just nothing for another ramp transport driver to do.
And so what does Kathy Cline do? She follows the lawful policy of FedEx and places Mr. Gardner on his 90-day personal leave to find another job. She sends him the letter advising him of that. Shortly thereafter, Ramona McMaster sends him the career opportunities bulletin, which he is sent every week.
Now, we've heard some testimony about two bulletins. Out of every weekly bulletin from September 3 through February of the following year, two. Mr. Gardner tells us he did not receive it. Actually, it's not that he did receive a bulletin. He received twice duplicative bulletins.
There's no evidence that anyone intentionally sent Mr. Gardner a duplicative bulletin, or looking at it the other way, intentionally did not send the current bulletin to Mr. Gardner. And, quite frankly, the evidence is that he did receive bulletins. He just claims they were duplicative. They weren't the right one.
In one case, the dispatcher position that we know about in October, which is not even a ramp transport driver position, but Mr. Gardner tells us in this lawsuit, Oh, that I would have taken. That I want. I don't want a part-time ramp transport driver job that gives me almost as many hours as I was working before, but I'll take that dispatcher job.
We know that, yes, he didn't get to put in his application for that because he didn't know about it, but we also know that had he put in his application, he would not have been the successful candidate because of Earl Buckner, who was also on a 90-day personal leave following a workplace injury to find a job. So this is not even limited to ramp transport drivers because Earl Buckner was a dispatcher. When he came back, there wasn't a dispatcher position available to him. He was on his 90 days. This position became open. They both applied for it. But Mr. Buckner had more seniority. That's a perfectly legitimate way to hand out the jobs.
And the other one we know about is the January 2014 position. I believe the testimony is it was in a bulletin in late December for the full-time RTD position at OAKRO that Mr. McCluskey applied for, who was also on a 90-day personal leave to find a job because when he was returned to work, there wasn't an RTD position available for him either.
Mr. Gardner contacted HCMP, spoke with Harry Saurer because Harry Saurer was sitting in for Kathy Cline because she was out on her intermittent medical leave, to which she's entitled as much as anybody, and Ramona McMaster, we heard, happy for her, was retired.
And Harry Saurer, as Mr. Gardner told us, said you might not get that position because there's another HCMP candidate with greater seniority. And as Mr. Gardner told us, Harry Saurer encouraged Mr. Gardner to take one of the part-time jobs, continue your employment, keep your benefits. Mr. Gardner would have none of it. He wanted one job. He wanted his route back. He wasn't going to take anything else.
So on February 17, after 167 days of personal leave to find a job, well beyond the 90 days, another accommodation that was provided, another part of the interactive process, Harry Saurer sent Mr. Gardner a letter terminating his FedEx employment, not because he took medical leave a year before, not because at some time in the past he was disabled, not because anyone was afraid that he might reinjure himself more likely than someone else; because the policy was exhausted, he refused any job that was offered, and he didn't apply for any other job. At some point, action has to be taken, decisions have to be made, and things have to come to an end.
Now, Mr. Gardner argues that this was an unlawful termination, but there is no evidence to support that argument. The only evidence is that Mr. Gardner's employment was terminated because he refused to accept any job.
There's a number of jury instructions that will be read to you, the law, as we stated, to be given to you by Judge Henderson, and there are — there are several I want to talk with you about because I think they're important and I think it helps focus on what I think is important in your deliberations in this case.
This is something we talked about in voir dire and a little bit in opening statement and that is you must follow the law as Judge Henderson gives it to you, whether you agree with it or not.
This is an instruction about credibility of witnesses: "In considering the testimony of any witness, you may take into account, among other things, the witness' memory."
I don't intend to belabor it, but we did have some testimony about Mr. Gardner's failure of recollection, clear recollection of the events that were occurring.
"And also whether other evidence contradicts what the witness testifies to."
And we had some circumstances of that during this trial, the most important, I think, of which is Mr. Gardner initially denied that he received that May 22 displacement letter from Ramona McMaster. And in August, when he had his texting with Ken Barker, he said, you know, I never received that displacement letter like you said I would, until it was pointed out in his texting with Bill Hipwell back on May 26 that he admitted yes, I received the displacement letter. I think he said from HR.
Expert witness testimony. The only one that this relates to is Dr. Allman, the economist. Yes, he's the only expert that testified with regard to the economics, the damages. But if you find that you just don't believe the foundation upon which he built the testimony he gave here, you do not have to accept it. You are the ones who decide whether or not to accept the expert's testimony.
Mr. Murphy discussed with you these same items, but through the verdict form, and I wanted to discuss it with you through the jury instructions, the law that will be read.
So this is the first claim, disability discrimination. "To establish this claim, Robert Gardner must prove all of the following," which includes, "Robert Gardner was able to perform the essential job duties of ramp transport driver with or without reasonable accommodation for his physical condition."
The problem with this jury instruction and because of the way this suit has been organized in terms of the several different claimed adverse employment actions is you really need to ask the question when. If we go to May 22, when there was the displacement, the answer has to be no. No commercial driving. There is no accommodation that was going to be able to place Mr. Gardner in a tractor-trailer driving down the highway. Certainly FedEx isn't going to do that, when his own doctor, at least the treating doctor, says you can't drive commercially. So that has to be no as to that date.
Then there's the not allowing him to bid for his route date. August 26 I think is the posting date. Again, it has to be no. At that point, Mr. Gardner is still under the no-commercial-driving restriction. Remember, he's not released for another four days and nobody knows what's going to happen on the 30th. He didn't even have the appointment by then. It was only after he heard from one of his co-workers, hey, you know, your route is posted, that he made the doctor's appointment, went and got his release. So at the time the route was posted, the answer has to be no.
September 3, when he was put on his personal leave of absence, at that point, the answer is yes. He was able to perform the essential job duties because he was released to work without restriction.
Next question, he has to prove that FedEx subjected Robert Gardner to an adverse employment action. All right. I believe there were five or six identified, and to understand those, we have to go to the definition of an adverse employment action, but I don't think we need to spend a lot of time on whether being eliminated — I'm sorry — displaced, put on a personal leave, and ultimately terminated — those are all adverse employment actions. I'm not going to argue against that.
Then we go to No. 6. He has to prove that Robert Gardner's history of a physical condition was a substantial motivating reason for the decision for the adverse employment action, and we just talked about that. The decision. What was the substantial motivating reason for the decision? And there's no evidence that it had anything to do with his history of having a disabling physical condition.
Sometimes these instructions can seem to flow in a way that you would rather have had one before the other, but you can try to shuffle them any way you want, and they just come up the way they do. There's not often any specific method.
But what is a substantial motivating reason? It's a reason that actually contributed to the adverse employment action and, again, you have to think about that. Actually contributed to the decision to implement that adverse employment action.
This is one I briefly spoke to you about. It's called a limitation on remedies. And it talks about if you find that there was more than one reason that some action was taken, in determining whether discrimination was a substantial motivating reason, determine what actually motivated FedEx. Again, why was the decision made? If you find that FedEx would have discharged Robert Gardner anyway for the nondiscriminatory reason because you're following a lawful policy without regard to thinking about whether he was disabled at some time, if you find that he would have been discharged for the nondiscriminatory reason, then Robert Gardner will not be entitled to reinstatement, which actually is not even being requested in this action: backpay, lost earnings, or damages.
All right. The second claim. The second claim is failure to engage in the interactive process. "Robert Gardner must prove" — that's that burden of proof we talked about — "all of the following, including No. 4, that Robert Gardner requested that FedEx make reasonable accommodation for his physical condition so that he would be able to perform the essential job requirements." We spoke about this. There is zero evidence that Mr. Gardner ever requested an accommodation from anyone at FedEx.
What is a reasonable accommodation? This was gone over with by Mr. Murphy, but it's a change in the workplace that allows an employee with a disability to perform the essential duties.
And there's quite a lot of discussion in that. It's a two-and-a-half page jury instruction, but what I wanted to point out, an employer is not required to provide an indefinite leave of absence. That doesn't even say job-protected leave of absence. An employer is not required to provide an indefinite leave of absence. And if there is more than one reasonable accommodation available, the employer makes a reasonable accommodation if it selects one of those in good faith.
FedEx provided Mr. Gardner with a medical leave of absence throughout his period of disability. I submit to you that's a reasonable accommodation. It may not be the one that Mr. Gardner is claiming he wanted to have today. There's no evidence he ever asked anyone for anything other than the medical leave of absence he was provided. And that's what was provided to him. And there certainly is no evidence of any bad faith in selecting that on the part of FedEx.
This is one we talked about a little bit, as did Mr. Murphy. The interactive process is the informal dialogue or exchange of information. So it doesn't need to be written down on paper or typed up on a form. It's an interactive process that is informal to determine if reasonable accommodations are necessary, and if so, what accommodations will be effective.
And then down here near the end of the instruction, "the interactive process is fluid and ongoing." And now the important part. "Which requires efforts by both the employer and the employee."
You know, I was going over in my head what were the interactions that were ongoing with Mr. Gardner? We know there was the February 5 letter Kathy Cline sent saying, you know, this is what your medical leave of absence will entail and require. And it explained at some length the rights and responsibilities which, by the way, included weekly contact from Mr. Gardner to either Kathy Cline or Ken Barker.
There was the April, I believe it was, letter from Ramona McMaster to Mr. Gardner about his short-term disability claim reminding him — I'm sorry. I think that was in March — reminding him you've only got 30 days to put this in. Don't miss that.
Then there was the April letter, again from Ramona McMaster to Mr. Gardner, saying Sorry to tell you, but the short-term disability claim was denied for lack of information. You know, you can appeal this.
Then there was the first week of May 5th or 7th telephone contact with Mr. Gardner discussing displacement and the doctor's appointment on the 21st. There was the receipt of the Work Status Report on the 22nd. And the communication with — telephone communication with Mr. Gardner following that in that same week, 22nd through the 26th, to discuss what displacement is all about and what might happen.
There is another contact, I believe it's July 29, where Kathy Cline contacts Sedgwick for a status update on Mr. Gardner. You know, it's a free flow of information. It doesn't only go between Mr. Gardner and Ms. Cline. It's the gathering of information to see if there are accommodations that can be made that might work to bring Mr. Gardner back to work.
So there is the communication with Sedgwick where they say he's still TTD, which we were told is temporarily totally disabled, but he may be better sooner than we think. Then there is the August e-mail from Mr. Gardner to Mr. Barker about my route being posted — I'm sorry. That's a text. Not a — not an e-mail. And that — that texting is in evidence.
Then there is the telephone call to Kathy Cline on the 29th saying I got the doctor's appointment. It's coming up tomorrow. Hope to be released. There's the communication that I already went through, Kathy Cline to Ron Fraser and Ken Barker. Then the doctor's appointment occurs. Mr. Gardner faxes the Work Status Report release to Ramona McMaster because he knows Kathy Cline is not at work that Friday. Ramona gets it. Again, communication with Ron Fraser and Ken Barker. They say we'll get back to him next week. She communicates with — that is to say, Ramona McMaster contacts by telephone Mr. Gardner to let him know what the status is.
All of this is the interactive process. It's not just one communication at the end of August, as they would have you believe. All of this back and forth. And this with someone, Mr. Gardner, who wasn't doing his part, who wasn't picking up the phone and making contact on a weekly basis like the February 5 letter requested him to do.
Now, we do have testimony from Mr. Gardner that, Oh, well, I picked up the phone and I called Kathy Cline. I left a message, and it never got returned. The evidence is Kathy Cline was on an in-and-out intermittent medical leave of absence and that Ramona McMaster was sitting in for her during that time.
In fact, another correspondence that I didn't mention in my litany there, the correspondence from Ramona McMaster to Mr. Gardner I believe was in April saying, you know, by the way, you'll be under me for a while. And you heard Mr. Gardner admit that whenever he contacted Ramona McMaster, she always responded to him.
Now, he did mention that one time the response was fine, you have to contact Kathy Cline. Okay. Fine. I know Kathy is back in. But if you're leaving messages and they're not being returned, why didn't you just contact Ramona McMaster? She's the one that sent you that letter, the one with the handwritten telephone number on it, you know, here's my number.
So closing that out, the interactive process was absolutely engaged in. Was it perfect? No. Did it get Mr. Gardner exactly what he wanted? Well, it did at the time because he didn't say this isn't what I want. He was more than happy to take his medical leave of absence and do whatever he was doing during that time.
The third claim, failure to provide reasonable accommodation. Robert Gardner must prove all of the following. And I'm not trying to hide the other elements for you. They will be read to you and you will have the jury instructions in the jury room. I'm just pointing out what I think is important.
No. 5, "that Robert Gardner was able to perform the essential job duties with reasonable accommodation for his physical condition." Again, you have to ask yourself the question when. And as we discussed with regard to the other jury instruction, the disability discrimination jury instruction, if you're talking about while he was on his medical leave, the answer is no. No commercial driving is no commercial driving. Any way you look at it, he wasn't going to be able to do that, with or without accommodation. And then when he was back at work or back released to return to work, then, yes, he didn't need an accommodation. He was no longer disabled.
Mr. Gardner will argue, Well, I was disabled because I used to be disabled and FedEx perceived me as disabled and they believed I would reinjure myself more easily than someone else and therefore I'm still disabled.
And No. 6, that FedEx failed to provide reasonable accommodation for Mr. Gardner's physical condition. And we just talked about that. He was given a leave for the entire period of his disability until he was released to return to work. And obviously once you're released to return to work without restrictions, you're not entitled to medical leave of absence. You're not disabled anymore.
"Considering all reasonable accommodations. The employer shall consider the preference of the employee to be accommodated but has the right to select and implement an accommodation that is effective for both the employee and the employer."
Number one, we don't have any evidence that Mr. Gardner ever identified his preferred accommodation, but we do have the evidence that FedEx provided a leave throughout his period of disability, which was perfectly effective in addressing his disability and need for accommodation at the time.
"Reliance on medical opinions. The employer is entitled to rely on medical opinions provided by the employee's doctor regarding the employee's medical condition, abilities, and limitations." FedEx was within its rights; it was entitled to rely on that May 21 Work Status Report that said no commercial driving. There wasn't anything else that needed to be investigated about that restriction. It wasn't one that FedEx made up. It came from the doctor treating Mr. Gardner and who had been treating Mr. Gardner, U.S. HealthWorks, since February, three and a half months.
The fourth claim, this is the retaliation claim. "In that is part of the evidence. You heard testimony from, it was either, Kathy Cline or Ramona McMaster that they are trained on these issues. And you heard testimony from the operations people, Robin Van Galder, Ron Fraser, that they also received training.
Now, they're not the ones charged with implementing the various policies against discrimination, against retaliation. But what more — and I ask that rhetorically — is a corporation supposed to do? You promulgate lawful policies, you engage in training, and if you learn that someone is not acting within the confines of your policy and your training, then you take action. But that wasn't present in this case.
But what we do have is what did FedEx do. They promulgated a written policy for all to read. If you look at that February 5 letter from Kathy Cline, it lists Policy 1-5, the medical leave of absence policy, as one of the items sent along with that letter.
The sixth claim, this is the wrongful discharge in violation of public policy claim. "Robert Gardner must prove all of the following, including that Robert Gardner's physical condition or medical leave was a substantial motivating reason to decide to terminate his employment."
I won't go over it again, but as I said, there simply is no evidence to support that Harry Saurer or anybody terminated or decided to terminate the employment of Mr. Gardner for any order to establish this claim, Mr. Gardner must prove all of the following. No. 3, that Robert Gardner's medical leave was a substantial motivating reason for FedEx's decision to subject Mr. Gardner to an adverse employment action."
We talked about this. What was the decision-making? The displacement in May. Why? Because the policy provides FedEx the right to decide whether to replace an employee, if that position is needed, to eliminate the position if that's what business needs are, but what was Ramona's decision-making? Not because Mr. Gardner was disabled and on medical leave. Because that's what the policy allows the company to do. You have no evidence — we've seen no evidence that Ramona McMaster was out to get Mr. Gardner. Indeed, I think you saw her, you heard from her. Her intent was entirely the opposite. Entirely innocent of wishing any harm to Mr. Gardner.
The fifth claim. This is the failure to prevent discrimination or harassment — I'm sorry. Discrimination. "Mr. Gardner must prove all of the following, including that Robert Gardner was subjected to discrimination or retaliation in the course of his employment." I won't belabor this. We've talked about it. There is no evidence that he was discriminated against or that he was retaliated against for taking medical leave.
"That FedEx failed to take reasonable steps to prevent the discrimination or the harassment." FedEx has a written policy reason, other than it had been 167 days, he refused five part-time jobs, all of which were doing the same job, ramp transport driver. He didn't apply for any other job. And it was time to do something.
You heard a little bit about this in Mr. Murphy's commentary, the employee's duty to mitigate damages. This, I agree, falls to FedEx to establish. That employment substantially similar to Robert Gardner's former job was available to him.
We had a lot of testimony about the part-time ramp transport driver jobs. It was the exact same job. It was for the exact same pay rate. It was for roughly the exact same starting times. It was at the exact same facility, location. Was it fewer hours? Right. But it doesn't have to be exact. I'll get to that. And the exact same benefit package.
"That Robert Gardner failed to make reasonable efforts to seek this employment." This goes beyond those part-time jobs. You heard Mr. Gardner testify he didn't look for any truck driving jobs. After his termination — actually, I believe before, he had already made the decision, I'm going to pursue this freelance artistry thing and I'm not looking for employment anywhere. That violates number two. You have to make some effort. You can't just say I'm going to start a new career and FedEx should pay me for it. There has to be some effort to mitigate the damages.
The amount that Robert Gardner could have earned from this employment, we went through the numbers. Mr. Gardner agreed with them. The jobs ranged from, I think, a low of 22 hours to a high of 27 hours. The one in San Francisco had a higher pay rate because of the market-level adjustment, but basically they were from thirty five to thirty-six-and-a-half thousand dollars a year. You heard Mr. Allman, he told you that Mr. Gardner was making about $51,000 a year. The differential is around 14,000 and change. Divide by 52. That's about $280 a week.
All right. So in deciding whether the employment was substantially similar, not exact, not the exact same job, substantially similar, you should consider, among other factors, the nature of the work.
It was the exact same job. The salary, benefits, and hours of the job were similar to what he had. We know the hourly pay rate was the same. It wasn't a salaried job. It was an hourly job. And you heard Mr. Fraser testify that their part-time guys average 29 to 30 hours per week. He testified that if you sign up for extra hours, you get between four and eight additional hours per week, which if that 26 1/2 hour job at OAKRO starting in the mid to late afternoon had been taken, you're talking about 32 to 34 hours a week.
It was pointed out that the guarantee for part-time employment at FedEx is 17 1/2 hours. That's correct. The guarantee for full-time is 35 hours. So at 34 hours, you're Page pretty darn close.
The job was in the same locality. It was in the same building.
"In determining whether Robert Gardner failed to make reasonable efforts to retain comparable employment, you can — should consider whether Robert Gardner quit or was discharged from that employment for a reason within his control." All he had to do was take one of those jobs.
Punitive damages. "Robert Gardner must prove one of the following by clear and convincing evidence." You will hear that this is a higher standard than more likely than not.
"That the conduct constituting malice, oppression, or fraud was committed by one or more officers, directors, or managing agents of FedEx, the corporation, who acted on behalf of FedEx, the corporation."
And that's true for all of these. That it has to be someone in that capacity. "An employee is a managing agent if he or she exercises substantial independent authority and judgment in his or her corporate decision-making such that his or her decisions ultimately determine corporate policy."
I submit to you that no witness that testified in this trial meets that definition. The closest you came, which was not very close, was Robin Van Galder, because his title is managing director. And he testified he is managing director of a little geographic area in one division of FedEx, an international corporation, and that he follows policy. He doesn't make policy.
So I submit that Mr. Gardner has not carried the burden of establishing that an officer, director, or managing agent of the corporation has acted such that punitive damages could be awarded.
I want to talk briefly about the damages situation. Each of the letters offering employment to Mr. Gardner are in evidence. You can take a look at them. You will see that there are no limitations on them. It gives an hourly rate, a start date. Some have the hours, some don't. Each of them invite Mr. Gardner to call the operations manager if you have any questions about the job, and of course we heard Mr. Gardner didn't make any of those calls because he wasn't going to take them.
The November 26th, 2013 letter from Kathy Cline, Exhibit 145, without working any additional hours, would pay $36,760 a year. With the healthcare, vision care, dental care, two retirement plans. Yes, only two weeks of paid vacation.
Exhibit 156, the position at OAKRT, as Mr. Gardner said, yeah, it's just the other side of the building on Edes Avenue. That was for 27 hours a week, which would pencil out to approximately $36,419 per year, plus everything else I just mentioned.
Exhibit 157, the February 7, 2014 letter from Harry Saurer, offering an RTD position at OAKRO, the very same operation. Twenty-six-and-a-half hours per week, start time of 5:00 p.m. The shift he used to work was 3:00 p.m. to 11:30 p.m. 5:00 p.m., except Monday when he would begin at 3:15 p.m. No additional hours. $35,745 per year.
Instead, Mr. Gardner decided I'm going to be a freelance artist. I'm going to design pop art. I'm not disparaging it. Just a little different from truck driving. I understand that. Some pictures or some evidence that are pictures of Mr. Gardner's art, and whether you like it or not is irrelevant. This is not about whether Mr. Gardner is any good at his chosen new career. The issue is, is that reasonable mitigation, to go into something with no income stream, no benefits, and no history, except that you used to do it while you were driving for FedEx before, which of course led to my question, Mr. Gardner, why can't you work on your art in the morning and drive a truck in the late afternoon? Continue the employment, and if something comes up that you like, full-time RTD or something else, then go for that. Or at least do this until your art business takes off.
He said he was too busy with the artwork.
As I mentioned, Mr. Gardner hasn't looked for any work since his termination, not truck driver, not anything. He testified I don't want to work for an employer. I don't want to work for anybody else.
So he made that decision. And now he's suing FedEx for income he could have made, but chose not to make, driving a truck for FedEx. And why does he make that decision? How could he make that decision? Because his wife has a really good job, because she can provide for the family, provide healthcare benefits. I asked, Do you and your wife have any concerns with regard to generating sufficient income to pay all the bills and expenses, and his answer was Yes, now we do.
All right. The emotional distress damages. What is the evidence we have on that? We have Mr. Gardner talking about his emotional distress. It hurts when he sees a FedEx vehicle. It hurt when he lost his job because FedEx treated him so poorly. FedEx offered him the exact same job, just working fewer hours.
We know, because you heard as Mr. Reafsnyder asked questions of the two psychologists who came here, Dr. Gorla and Dr. Pascarzi — you know two things: Number one, their entire evaluation is based on what Mr. Gardner told them. They don't test the veracity of anything. It's probably not necessary for the job they're going to do, which is treat how the — I say patient, I think they said client — but presents themselves. But we also know that on important facts, Mr. Gardner was not truthful with those treaters. He was telling Dr. Gorla he was terminated long before he was ever terminated. He told Dr. Pascarzi two days after his termination that his employment was freelance artist, not truck driver, because he had already made this decision. He already knew what he was going to do.
And then after the lawsuit was already filed in December of 2014, Mr. Gardner made an appointment with Dr. Pascarzi on December 2 and Dr. Gorla on December 3. Why are you making an appointment with two psychologists for the same thing: One, Dr. Pascarzi, nine months after the last time you saw her, and Dr. Gorla more than a year after the last time you saw her. What did they talk about? Stress from the lawsuit. Just building his emotional damages case to be put on.
You have Exhibit 60 and Exhibit 63. Exhibit 60 is Dr. Gorla's notes. These are lengthy notes. I'm going to help, I hope, a little bit.
At the visits of January 15, 2014, February 5, 2014, and December 3, 2014, Mr. Gardner told Dr. Gorla about his emotional distress from this litigation. Exhibit 63 is Dr. Pascarzi. February 19, 2014, December 2 — that's the day before the meeting with Dr. Gorla — 2014, January 6, 2015, and March 2, 2015, he told Dr. Gorla — I'm sorry — Dr. Pascarzi about his emotional distress from this litigation.
I have one more jury instruction to show you. No recovery for emotional distress caused by litigation stress. Mr. Gardner cannot recover noneconomic damages for emotional distress that was caused by the stress of the litigation process.
The one thing that defense lawyers really hate to do is talk about damages, economic damages, noneconomic damages, but if you get to that place, I'd like to talk to you about Dr. Allman's report. The past loss wage he placed at $99,000 and change. He had some interest on there. And then he had his 5-, 10- and 15-year mitigation. If you remember, when I spoke with him, at the end of the 5-year mitigation, there was about a $4,000 differential between being the truck — RTD truck driver — not even RTD, just truck driver, and being the freelance artist. $4,000 annual difference. I suggest to you that that's a fully-mitigated damage.
So if you take the 5-year mitigation amount and you add it to the past loss, you get this number down here, $240,517. However, as we've already discussed, the healthcare package is covered by Mrs. Gardner's employment. But Dr. Allman put in a little over ten grand a year anyway going forward, even though it's not needed, even though there is no reason to believe it will be needed, but just to pump up the numbers.
So over here on the side, I took that 214,517, I reduced it by the 49,536 that he has in there for the healthcare package, and I came up with $190,981.
I'm not suggesting that any amount should be awarded, but I think that would be more than enough and I think the emotional distress damages are just an invention.
All right. Mr. Gardner made a choice to walk away and not return to FedEx. I think that's clear. He did not make that choice over 13 hours a week of less work. And he didn't make that choice over two weeks less per year of paid vacation. Mr. and Mrs. Gardner made that choice because they could. Mr. Gardner wants to pursue his freelance artistry. And Mrs. Gardner's job can provide for the family while he does.
I get that. That's a good thing. But that's a decision you make and that's a decision you live with.
None of us know what will happen in the future. You make decisions, you move forward, hoping for the best. But you have to live with the decisions you make. You don't sue your former employer to finance your going out to chase your dream. You don't sue to see if you can collect for work that you were offered but you refuse to do. But that is what Mr. Gardner is doing.
Ladies and gentlemen, thank you so much for your time. I know it's a big inconvenience to have to sit here through a jury trial, listen to everything intently, but we appreciate that you did. And we thank you for that.
I ask that you consider all of the evidence, and after you have, return a verdict in favor of FedEx. Thank you very much. Thank you, Your Honor.
I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter.
