Free Reply - District Court of Colorado - Colorado

Case 1:01-cv-02199-MSK-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-02199-MSK-MEH MICHAEL E. CLAWSON and JARED L. DILLON, Plaintiffs, vs. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC. Defendants.

DEFENDANTS' REPLY BRIEF IN SUPPORT OF JUDGMENT AS A MATTER OF LAW UNDER RULE 50(a) Defendants, Mountain Coal Company, L.L.C. ("Mountain Coal"), Arch Western Resources, L.L.C., and Arch Coal, Inc., through their counsel, Holland & Hart LLP, submit this reply in support of their Rule 50(a) motion for judgment as a matter of law. I. THE COURT MAY GRANT JUDGMENT AS A MATTER OF LAW EVEN IN THE ABSENCE OF RULE 50(b) MOTION Plaintiffs contend that Defendants' brief in support of judgment as a matter of law must either be treated as a Rule 50(b) motion or disregarded as untimely. Plaintiffs' position is puzzling since it is Plaintiffs who asked for the opportunity to brief the issues raised in the Rule 50(a) hearing, if necessary, post-verdict. Defendants' brief simply sought to do so within the twenty-day time frame set out by the Court after receipt of the verdict.

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In any event, although the Tenth Circuit has not had an opportunity to rule on the issue, it has recognized that: several circuit courts have held that when a party makes a proper motion pursuant to Rule 50(a) before the case is sent to the jury and the trial court expressly reserves ruling on that motion, then the trial court can enter judgment for that party subsequent to a contrary jury verdict without the party specifically making another motion under Rule 50(b), so long as the trial court acts within the time permitted for the filing of a Rule 50(b) motion and the opposing party still has an opportunity to request a new trial rather than the entry of judgment. Burrows v. City of Tulsa, 1994 WL 232169 at *2 (10th Cir. June 1, 1994), attached as Exhibit A, citing, as examples, Mosser v. Fruehauf Corp., 940 F.2d 77, 84 n.2 (4th Cir. 1991); Nichols Constr. Corp. v. Cessna Aircraft Co., 808 F.2d 340, 354-56 (5th Cir. 1985); First Safe Deposit Nat'l Bank v. Western Union Tel. Co., 337 F.2d 743, 746 (1st Cir. 1964); Shaw v. Edward Hines Lumber Co., 249 F.2d 434, 436-39 (7th Cir. 1957). The cited circuit courts state that Johnson v. New York, H.H., & H.R. Co., 344 U.S. 48, 50 (1952), stands for the proposition that "an appellate court was without power to enter a judgment notwithstanding the verdict absent a timely motion by the losing party after trial." See, e.g., Mosser, 940 F.2d at 84, n.2. However, "the same constraints need not apply at the trial level because the district court could have asked the defendant to file an immediate Rule 50(b) motion, and have acted upon it. To say that it could not, instead, act on the reserved pre-verdict motion, would be to insist upon form over substance." Id. (citations omitted). Here, judgment has not yet been entered. Once it is, under the Federal Rules of Civil Procedure, the parties will have 10 days from the entry of judgment to file motions under Rule 50(b) and Rule 59. At this stage, however, the Court may enter judgment notwithstanding the

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verdict, based on the reserved pre-verdict motions, even in the absence of an actual Rule 50(b) motion filed by Defendants post-verdict. II. PLAINTIFFS' FAILURE TO PRESENT SUFFICIENT EVIDENCE AS TO A CLASS OF JOBS OR BROAD RANGE OF JOBS WAS CLEARLY RAISED AT THE RULE 50(a) HEARING Plaintiffs also contend that Defendants, in their Rule 50(a) motion, did not raise with sufficient specificity the deficiencies in Plaintiffs' evidence. Specifically, Plaintiffs argue that Defendants did not claim a lack of evidence that mining constitutes a class of jobs or a lack of evidence as to the local job market. Motion at 5-6. Rule 50 is to be construed liberally and technical precision is unnecessary. United Int'l Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1228 (10th Cir. 2000). The rule simply requires that the grounds be stated with enough certainty so that the court and the opposing party are made aware of the moving party's position and the opposing party may attempt to cure the alleged error. Id. at 1229. At the Rule 50(a) hearing, Defendants made clear that its primary challenge was the sufficiency of the evidence that Plaintiffs had presented with respect to proving that they were regarded as disabled, and there was lengthy discussion specifically as to what is needed to prove a substantial limitation in the major life activity of working. 1 Defendants specifically raised the issue that Plaintiffs had failed to present sufficient evidence that they were regarded as substantially limited in their ability to perform either a class of jobs or a broad range of jobs,

Despite Plaintiffs' contention to the contrary, Plaintiffs' Response at 10, n.3, Defendants have consistently raised the issue that the Supreme Court has not recognized working as a major life activity, including at the Rule 50(a) hearing.

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citing to tendered instruction no. 12, which sets out the various factors to consider in making such assessment, including how a class and a broad range of jobs are each defined. That such issues were raised with sufficient precision under Rule 50(a) is made clear by Plaintiffs' own arguments at the hearing and the Court's statements when it ruled on various aspects of the Rule 50(a) motion and reserved ruling on the issue of whether Plaintiffs had presented sufficient evidence that they were regarded as disabled. First, at the Rule 50(a) hearing, Plaintiffs argued that they had presented sufficient evidence that they were regarded as disabled in the "broad class of jobs" included in mining. Then, when the Court reserved its ruling, the Court again specifically noted the need for Plaintiffs to set forth sufficient evidence to show that each was regarded as substantially limited in a class of jobs or broad range of jobs. Moreover, the Court expressed its "serious concern" that Plaintiffs had failed to establish a sufficient record in this regard. 2 As a result, Plaintiffs cannot seriously contend that they were not on notice as to the grounds upon which Defendants moved under Rule 50(a). III. PLAINTIFFS FAILED TO PRESENT SUFFICIENT EVIDENCE AS TO A PERCEIVED DISABILITY IN THE MAJOR LIFE ACTIVITY OF WORKING In their Response, Plaintiffs contend that the Tenth Circuit has not held that a plaintiff "must" present evidence regarding jobs in the employment market in the relevant geographic area. Response at 6-7. In fact, in two post-Scrivner (unpublished) decisions, the Tenth Circuit has stated that it is, in fact, necessary for a plaintiff to present such evidence. See Lucas v. Miami Cty., Kansas, 9 Fed. Appx. 809, 812-813 (10th Cir. May 10, 2001) (plaintiff "must present some evidence of the number and types of jobs within the geographical area to which he
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Defendants have not argued that the Court should rule at this stage based only on the evidence presented by Plaintiffs. A review of the record from the entire trial does not change the fact that Plaintiffs ultimately failed to present sufficient evidence on this element of their claims.

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has reasonable access"), attached as Exhibit B; Lewis v. Indp't. Sch. Dist. No. I-89, 1999 WL 1188818 (10th Cir. Dec. 10, 1999) (noting that evidence of plaintiff's vocational training, the geographical area to which he has access, or the number and type of jobs demanding similar training from which plaintiff would also be disqualified is necessary to prove substantial limitation in the major life activity of working), attached as Exhibit C. See also Menzies v. La Veta Sch. Dist. RE-2, 2006 WL 1517723 at * 5 (D. Colo. May 26, 2006) (Krieger, J.), attached as Exhibit D. In the Menzies case, this Court held that, in order to prevail on a claim that he was substantially limited in the major life activity of working, a plaintiff "must typically come forward with evidence of the knowledge, training, skills, and abilities necessary to perform [his] position, as well as evidence about the prevalence of jobs demanding similar knowledge, training, skills, and abilities in the employment market in the geographic area surrounding [his] workplace." Id. at *5, citing Bolton v. Scrivner, Inc., 36 F.3d 939, 944 (10th Cir. 1994). In a "regarded as" case, "the employee must show that the employer subjectively believed that the employee's impairment limited the employee's ability to perform a class of jobs in the geographic area." Id. A "class of jobs" is defined as "[t]he job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment." 29 C.F.R. § 1630.2(j)(3)(ii)(B). "If jobs utilizing an individual's skills...are available, one is not precluded from a substantial class of jobs." Sutton, 527 U.S. at 492.

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Plaintiffs argue that "mining" is a class of jobs and that they presented sufficient evidence that Plaintiffs were regarded as substantially limited in performing work in such class. Specifically, Plaintiffs contend that the evidence showed that "Mountain Coal has a variety of jobs, and believe that plaintiffs' limitations prevented them from doing any of those jobs." Response at 7. At trial, Plaintiffs presented evidence of a limited number of jobs at Mountain Coal from which Plaintiffs were excluded, contrary to their statement that Mountain Coal "regarded them as unable to do any job at MCC." Response at 9 (emphasis added). However, evidence of a certain set of jobs with a particular employer is not sufficient to establish a perceived disability in performing a class of jobs. See Carlile v. Conoco, Inc., 23 Fed. Appx. 963 (10th Cir. Dec. 12, 2001) (perceived inability to perform any of nine welding jobs at gas plant insufficient to show regarded as substantially limited in either a class of jobs or a broad range of jobs in various classes), attached as Exhibit E. See also Conrad v. Bd. of Johnson Cty. Cmmssrs, 237 F.Supp.2d 1204 (D. Kan. 2002) (employer's belief that plaintiff could not "perform any job at the Health Department" not sufficient to show regarded as unable to perform a class of jobs, where plaintiff did not provide evidence relating to the number and types of jobs utilizing similar training, knowledge, skills or abilities, within the geographic area, from which plaintiff also disqualified due to impairment); Henry v. Modine Mfg., 2001 WL 487943 (D. Kan. Mar. 28, 2001) (employer's belief that plaintiff was disqualified from performing twelve jobs at manufacturing plant did not show regarded as unable to perform class of jobs where plaintiff failed to produce evidence of the number and types of jobs using similar training, knowledge or skills, her skills and abilities in order to compare them to average person,

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the geographical area to which she had reasonable access, and the number and type of jobs demanding similar training), attached as Exhibit F. While Plaintiffs may have shown that Mountain Coal perceived them as unable to perform certain available jobs at the West Elk mine, neither Plaintiff presented evidence as to the number and types of jobs utilizing similar training, knowledge, skills or abilities, within the relevant geographical area, from which he would also have been disqualified due to the misperception. At trial, Plaintiffs did not demonstrate that mining indeed comprises a "class of jobs." And, in fact, in their response, Plaintiffs argue that the jobs outside of mining available to them, which they each obtained after their terminations from Mountain Coal, such as construction, maintenance, mechanic, and similar jobs, require the performance of similar tasks and use of similar equipment. Response at 12. Thus, it would appear that the actual "class of jobs" relevant here, utilizing similar training, knowledge, skills or abilities, within the geographic area, is much broader than what Plaintiffs have called "mining." Plaintiffs presented no evidence as to Defendants' belief as to their ability to perform such jobs. As a result, Mr. Olsen's alleged statement that it looked liked Clawson would not be working in the "mining industry," at the same time as he informed him of an opening in the warehouse at the mine, without more, is not sufficient to show the perception of a substantial limitation in working, as that term is legally defined. 3 In their Response, Plaintiffs do not really address the definition of a broad range of jobs and do not argue that they presented sufficient evidence to establish that they were perceived as
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Even if such statement does provide support to Clawson's claim, contrary to Plaintiffs' contention, they have not shown any connection to Dillon's claim, particularly when each had different restrictions.

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substantially limited in their abilities to perform a broad range of jobs. Again, a "broad range of jobs" is defined as "[t]he job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment." 29 C.F.R. § 1630.2(j)(3)(ii)(C) (emphasis added). "[I]f a host of different types of jobs are available, one is not precluded from a broad range of jobs." Sutton, 527 U.S. at 492. Plaintiffs do not contend that they presented evidence as to the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within the relevant geographical area, from which they also would have been disqualified due to Defendants' alleged misperception. IV. Conclusion In sum, there is not sufficient evidence in the record to support either Plaintiff's claim that he was "regarded as" disabled. Therefore, the Court should grant Defendants' motion for judgment as a matter of law. Dated: June 23, 2006. Respectfully submitted,

s/Monique A. Tuttle Jeffrey T. Johnson Monique A. Tuttle HOLLAND & HART LLP D.C. Box 6 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 (303) 295-8000 ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE

I hereby certify that on June 23, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] I am not aware of any non CM/ECF participants in this matter requiring service by other means.

s/Monique A. Tuttle Jeffrey T. Johnson Monique A. Tuttle Attorneys for Defendants HOLLAND & HART LLP 555 Seventeenth Street, Ste. 3200 Post Office Box 8749 Denver, Colorado 80201 Telephone: (303) 295-8000 Facsimile: (303) 295-8261 E-mail: [email protected] [email protected]

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