United States District Court, D. Kansas
FREDERICK E. PARAHAM, Plaintiff,
ATRIUMS MANAGEMENT COMPANY, INC. and TUTERA SENIOR LIVING AND HEALTH CARE, LLC, Defendants.
MEMORANDUM & ORDER
Murguia United States District Judge.
matter comes before the court upon plaintiff Frederick E.
Paraham's Motion to Alter Judgment for Attorney's
Fees, Costs, and Prejudgment Interest (Doc. 96) and
defendants Atriums Management Company, Inc, and Tutera Senior
Living and Health Care, LLC's Motion for Judgment As a
Matter of Law Pursuant to Rule 50(b) (Doc. 99).
filed this suit on August 1, 2016, claiming that defendants
discriminated against him, failed to offer him a reasonable
accommodation, and ultimately retaliated against him by
terminating his employment, all based on his disability in
violation of the Americans with Disabilities Act
(“ADA”), as amended by the ADA Amendments Act of
2008 (“ADAAA”), 42 U.S.C. §§
12101-12213. The court denied defendants' motion for
summary judgment on February 2, 2018. (Doc. 49.) On March 30,
2018, after a week-long trial, a jury found that defendants
discriminated against plaintiff based on a disability or that
defendants denied plaintiff a reasonable accommodation, and
that defendants retaliated against plaintiff for engaging in
conduct protected by the ADA. The jury awarded plaintiff $63,
694 in compensatory damages and for emotional distress and
$9, 571 in compensatory damages for lost wages including
post-judgment interest at rate of 2.12% annually. Before the
jury returned its verdict, defendants moved for judgment as a
matter of law under Fed.R.Civ.P. 50(a) on each claim and on
plaintiff's claim for punitive damages. The court granted
the motion as to punitive damages but denied the motion in
all other respects.
Renewed Motions For Judgement As A Matter Of Law
Civ. P. 50(b) motions renewing a party's motion for
judgment as a matter of law pursuant to Rule 50(a) must be
brought within 28 days of the entry of judgment. Defendants
timely renewed their motion. Under Rule 50(b), the court may
“(1) allow judgment on the verdict, if the jury
returned a verdict; (2) order a new trial; or (3) direct the
entry of judgment as a matter of law.” Fed.R.Civ.P.
50(b). The court applies the same standard to a 50(b) motion
as it does to one for summary judgment under Rule 56(c).
Cox Enters., Inc. v. Cox Commc'ns, Inc., 871
F.3d 1093, 1096 (10th Cir. 2017). The court may only grant
judgment as a matter of law “when a party has been
fully heard on an issue during a jury trial and the court
finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that
issue.” Id. (quoting Fed.R.Civ.P. 50(a)(1)).
“In other words, judgment as a matter of law is
appropriate only if the evidence points but one way and is
susceptible to no reasonable inferences which may support the
nonmoving party's position.” Id. (quoting
Auraria Student Hous. at the Regency, LLC v. Campus Vill.
Apartments, 843 F.3d 1225, 1247 (10th Cir. 2016)).
Attorney Fees And Costs
With Local Rules
Rule 54.2 requires the party moving for attorney's fees
to provide a statement that the parties consulted and were
unable to agree on attorney's fees and costs. D. Kan.
Rule 54.2. The statement must include the date of
consultation, names of participants, and the result of
consulting. Plaintiff has complied with Local Rule 54.2.
Fee Awards Under The ADA
§ 12205 of the ADA, the court may allow a prevailing
party “a reasonable attorney's fee, including
litigation expenses, and costs. . . .” “The
proper procedure for determining a reasonable attorney's
fee is to arrive at a lodestar figure by multiplying the
hours plaintiff's counsel reasonably spent on the
litigation by a reasonable hourly rate.” Praseuth
v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir.
2005) (citing Case v. Unified Sch. Dist. No. 233, Johnson
Cnty., 157 F.3d 1243, 1249 (10th Cir. 1998)). Plaintiff
“bears the burden of establishing entitlement to an
award and documenting the appropriate hours expended and
hourly rates.” Case, 157 F.3d at 1249.
Defendants Fail to Show Their Entitlement To Judgment As A
Matter Of Law
ADAAA prohibits covered employers from subjecting their
employees to disability-based discrimination and retaliation.
42 U.S.C. §§ 12112, 12203. To establish his
discrimination claim, plaintiff needed to prove that when
defendants terminated his employment, (1) he was disabled as
defined by the ADAAA; (2) “he was qualified, with or
without reasonable accommodation, to perform the essential
functions of his job; and (3) he was fired because of his
disability.” Hawkins v. Schwan's Home Serv.,
Inc., 778 F.3d 877, 883 (10th Cir. 2015) (quoting
Carter v. Pathfinder Energy Servs., Inc., 662 F.3d
1134, 1142 (10th Cir. 2011)). To establish his failure to
accommodate claim, plaintiff needed to prove: (1) he is a
qualified individual with a disability; (2) he requested a
plausibly reasonable accommodation for his disability; (3)
defendants were aware of his disability at the time of the
accommodation request; and (4) defendants failed to
reasonably accommodate the disability. See McFarland v.
City and Cnty of Denver, 744 Fed.Appx. 583, 586 (10th
Cir. 2018); Nunez v. Lifetime Prods., Inc.,
725 Fed.Appx. 628, 631 (10th Cir. 2018); Allen v.
SouthCrest Hosp., 455 Fed.Appx. 827, 830 n.2 (10th Cir.
2011). To establish his retaliation claim, plaintiff needed
to prove: “‘(1) he engaged in protected
opposition to discrimination; (2) a reasonable employee would
have found h[is] employer's subsequent action to be
materially adverse; and (3) a causal connection exists
between h[is] protected activity and the employer's
action.'” Lincoln v. BNSF Railway Co., 900
F.3d 1166, 1209 (10th Cir. 2018) (quotation omitted).
contest the evidence plaintiff produced on these claims with
(1) there was insufficient evidence for the jury to find
plaintiff was disabled on January 8, 2015;
(2) There was insufficient evidence for the jury to find
defendants failed to provide reasonable accommodation on
January 8, 2015;
(3) There was insufficient evidence for the jury to find
plaintiff engaged in protected conduct on January 8, 2015 by
making an adequate, direct and specific request for
reasonable accommodation; and
(4) There was insufficient causation evidence for the jury to
find defendants terminated plaintiff because of a disability
or protected conduct.
(Doc. 99, at 1.)
defendants fail to show that no legally sufficient
evidentiary basis existed for a reasonable jury to find for
plaintiff on each of these points, defendants' renewed
motion is denied.
There Was Sufficient Evidence That Plaintiff Was
issue initially before the court is whether this case's
trial would have provided a reasonable jury legally adequate
evidence that plaintiff was disabled. “Under the
ADAAA's amended definition, ‘[t]he term
“disability” means, with respect to an
individual-(A) a physical or mental impairment that
substantially limits one or more major life activities of
such individual; (B) a record of such impairment; or (C)
being regarded as having such an impairment.'”
Adair v. City of Muskogee, 823 F.3d 1297, 1305 (10th
Cir. 2016) (quoting 42 U.S.C. § 12102(1)). Plaintiff
claims that he presented sufficient evidence under each
subsection. The court need not address all three
alternatives, however, because plaintiff presented legally
sufficient evidence of the first alternative. For the
following reasons, a reasonable jury could find that a
physical impairment substantially limited plaintiff in one or
more major life activities.
impairment is a disability . . . if it substantially limits
the ability of an individual to perform a major life activity
as compared to most people in the general population.”
29 C.F.R. § 1630.2(j)(1)(ii). “‘To satisfy
this definition, a plaintiff must (1) have a recognized
impairment, (2) identify one or more appropriate major life
activities, and (3) show the impairment substantially limits
one or more of those activities.'” Crowell v.
Denver Health and Hosp. Auth., 572 Fed.Appx. 650, 657
(10th Cir. 2014) (quotation omitted). The first two
requirements are questions of law for the court. Id.
The third requirement, however, “is ordinarily a
question of fact for the jury.” Id.
that plaintiff's chronic back condition limits his
abilities to lift and work satisfies the initial two
requirements. See 29 C.F.R. § 1630.2(h)(1)
(defining physical impairment to include “[a]ny
physiological disorder or condition . . . affecting one or
more body systems, such as . . . musculoskeletal”); 42
U.S.C. § 12102(2)(A) (defining “major life
activities” to include “lifting . . . and
working”). Defendants do not dispute these
instead dispute the third requirement-i.e., whether plaintiff
proved his back impairment substantially limits his lifting
and working abilities as compared to most people in the
general population. Defendants make three supporting
arguments. Each, however, is unpersuasive.
defendants argue that plaintiff's evidence proved little
more than the fact that a doctor diagnosed plaintiff as
having mild degenerative disc disease and arthritis of the
low back resulting in chronic back pain. Defendants are
correct that a medical diagnosis alone is insufficient to
establish that an impairment is substantial. (See
Doc. 100, at 4 (citing Taylor v. Kan. Dept. of
Corr., No. 16-2056, 2017 WL 1479375, *3 (D. Kan. Apr.
25, 2017) (quotation omitted) (“A medical diagnosis is
insufficient; rather, the ADA requires plaintiffs to offer
evidence that ‘the extent of the limitation caused by
their impairment in terms of their own experience is
substantial.'”)). But defendants take an
inappropriately broad view of what the law requires and an
inappropriately narrow view of plaintiff's evidence.
level of limitation on an individual's ability required
by the ADAAA is only substantial- not significant or
severe-as compared to most people in the general population.
See 29 C.F.R. § 1630.2(j)(1)(ii);
Significant or Severe Restriction Not Required;
Nonetheless, Not Every Impairment Is Substantially
Limiting, Appendix to Part 1630-Interpretive Guidance on
Title I of the Americans With Disabilities Act, 29 C.F.R.
§ 1630.2, App. (quoting legislative history showing that
Congress envisioned a “substantial” limitation to
be an “important” limitation but not one that
need rise to the level of severely restricting or
significantly restricting the ability to perform a major life
activity). Congress intended courts to construe
“substantially limits, ” not as “a
demanding standard” requiring “extensive
analysis, ” but “broadly in favor of expansive
coverage” so that it places the primary object of
attention in ADAAA cases on whether ...