Free Response - District Court of Colorado - Colorado

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

RESPONSE TO DEFENDANTS' BRIEF IN SUPPORT OF JUDGMENT AS A MATTER OF LAW UNDER RULE 50(a)

The plaintiffs, Michael E. Clawson, and Jared L. Dillon, through their undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit their Response To Defendants' Brief In Support Of Judgment As A Matter Of Law Under Rule 50(a), and in support thereof, state as follows: I. THE COURT SHOULD TREAT DEFENDANTS' MOTION AS BEING FILED UNDER RULE 50(b), OR SHOULD DISREGARD IT AS BEING UNTIMELY As spelled out in plaintiffs' motion for clarification and the reply, defendants are incorrect in asserting that their Fed. R. Civ. P. 50(a) motion, made at the end of plaintiffs' case, is still outstanding and needs to be decided. Defendants are also incorrect in their implied assertion that only the evidence presented in plaintiffs' case in chief may be considered. The proper motion, once the jury has reached its verdict, is one under rule 50(b), and all of the evidence must be considered.

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Technically a party waives his right to a directed verdict, if motion is made at the close of his opponent's case, and thereafter he introduces evidence in his own behalf. However he may renew the motion at the close of all the evidence . . . The renewed motion will be judged in the light of the case as it stands at that time. Even though the court may have erred in denying the initial motion, this error is cured if subsequent testimony on behalf of the moving party repairs the defects of his opponent's case. Peterson v. Hager, 724 F.2d 851, 854 (10th Cir. 1984) (emphasis in original) followed by Robinson v. Food Serv. of Belton, Inc., 415 F.Supp. 2d 1232, 1236 (D. Kan. 2005) accord Trustees of the Univ. of Pa. v. Lexington Ins. Co., 815 F.2d 890, 902-03 (3rd Cir. 1987). By presenting their own evidence, defendants waived the motion for judgment as a matter of law made at the end of plaintiffs' case, subject to renewal. Defendants did renew their motion at the end of the presentation of evidence. If such a motion is renewed at the close of the evidence, the court is to consider all of the evidence presented, whether in plaintiffs' case or defendants' case. Peterson, 724 F.2d at 854. Of course, under Fed. R. Civ. P. 50(b), when a 50(a) motion is not granted at the close of the evidence, it may be renewed as a rule 50(b) motion after the verdict and not later than ten days after judgment. Defendants misconstrue the significance of the courts' "reserving" its ruling. The United States Supreme Court explained that before rule 50, under the Seventh Amendment, the court had to expressly reserve ruling on a motion for "directed verdict" before the verdict was returned in order to grant a "JNOV" motion after the verdict.1 Johnson v. New York, New Haven & Hartford R.R. Co., 344 U.S. 48, 51-52 (1952). According to the Supreme Court there was some confusion as to the exact procedure to be used, and rule 50 was designed to cure the confusion. Id. at 52-53. Rule 50 kept the requirement of a motion for directed verdict at the close of the evidence. Id. However, Rule 50 eliminated the need for an express reservation of the ruling by
Rule 50 latter abandoned the terms directed verdict and judgment notwithstanding the verdict as archaic and confusing. Advisory Committee Notes to the 1991 Amendments.
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the court, by making the reservation an automatic part of the rule, as described in subpart (b). Id. Therefore, whether the court reserves ruling on a motion for judgment as a matter of law, or denies the motion, under rule 50 the motion is subject to renewal after the verdict by operation of rule 50(b). The court could decline to consider defendants' brief as untimely, because it is addressed to rule 50(a). However, it would appear to be in the interest of judicial economy to treat defendants' brief as a motion under rule 50(b), rather than striking it and requiring a new filing. See American and Foreign Ins. Co. v. Bolt, 106 F.3d 155, 157, 159-160 & fn 5 (6th Cir. 1997) (treating a motion as a rule 50(b) motion when it was filed after the verdict, even though it was labeled as a renewal of a rule 50(a) motion). The standard for judgment as a matter of law is the same under either 50(a) or (b). Defendants claim to be briefing their prior motion made under rule 50(a) and would be limited to briefing what they already argued, so they are strictly limited to previous arguments under either rule. A rule 50(b) motion can be filed before entry of judgment. Advisory Committee Notes to the 1995 Amendments. Plaintiffs therefore request the court treat defendants' brief as a motion under rule 50(b), or dismiss it as untimely. II. LEGAL TESTS APPLICABLE TO A MOTION UNDER RULE 50(b) "Because judgment as a matter of law intrudes upon the rightful province of the jury, it is highly disfavored." Falco v. Stew Leonard's, 187 F.R.D. 442, 444 (D. Conn. 1999). "Because a court does not lightly presume the decision of a reasonable juror, judgment `may be granted only if the evidence points but one way and is susceptible to no reasonable inference which may support the opposing party's position . . . Thus, when a defendant seeks judgment as a matter of law, the controlling question is whether plaintiff has arguably proven a legally sufficient claim." Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1241 (10th Cir. 2001). 3

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"In making that determination, `we do not weigh the evidence, pass on the credibility of witnesses, or substitute our conclusions for that of the jury.'" Turnbull, 255 F.3d at 1241. "All such evidence and inferences evaluated in this regard must be construed in the light most favorable to the party against whom the motion is directed." Symons v. Mueller Co., 493 F.2d 972, 976 ((10th Cir. 1974). The court should assume that all credibility determinations and all reasonable inferences were made in favor of the nonmoving party. Peters v. Baldwin Union Free Sch. Dist., 320 F.3d 164, 167-68 (2nd Cir. 2003); Graves v. Coeur D'Alene, 339 F.3d 828, 833-34 (9th Cir. 2003); Ziegler v. Fischer-Price, Inc., 302 F.Supp. 2d 999, 1005-1006 (N.D. Iowa 2004). "Weakness of evidence does not justify judgment as a matter of law. . . ." This Is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2nd Cir. 1998). The court "must review all of the evidence in the record," but must draw all reasonable inferences in favor of the non-moving party, and must not weigh the evidence or assess credibility. Ziegler, 302 F.Supp. at 1006. In assessing the evidence and reasonable inferences, it should be remembered that plaintiffs do not have to present direct evidence that defendants regarded them as disabled. "As with any claim of discrimination, [Plaintiff] is permitted under the ADA to prove his case by direct or indirect evidence . . . ." Cline v. Wal-Mart Stores, 144 F.3d 294, 303 (4th Cir. 1998). "As in any lawsuit, the plaintiff may prove his case by direct or circumstantial evidence." United States Postal Serv. Bd. of Govs. v. Aikens, 460 U.S. 711, 714 fn 3 (1983). The element of "regarded as disabled" goes to the state of mind of the defendants, because it involves the perceptions or misperceptions of the defendants. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). It is difficult, if not impossible, to prove another person's state of mind by direct evidence, so circumstantial evidence may be used. Despain v. Uphill, 264 F.3d 965, 975 (10th Cir. 2001). Such issues rarely lend themselves to judgment as a matter of law. "As we pointed 4

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out, `cases involving constitutional or civil rights frequently are unsuitable for summary judgment because a necessary element of the claims for relief presents an inquiry into the state of mind of one or more parties.'" Norton v. Marietta, 432 F.3d 1145, 1152 (10th Cir. 2005) see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986) (standard for summary judgment and standard for judgment as a matter of law under rule 50 mirror each other). III. DEFENDANTS' ARGUMENTS REGARDING CLASS OR RANGE OF JOBS FAIL BECAUSE THEY WERE NOT RAISED BEFORE THE VERDICT, AND THERE IS EVIDENCE IN THE RECORD A. Defendants Did Not Claim A Lack Of Evidence That Mining Was A Class Of Jobs Or An Absence Of Evidence As To The Local Job Market

"Motions under Rule 50 must `specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment . . . A Party may not circumvent Rule 50(a) by raising for the first time in a post verdict motion issues not raised in an earlier motion for directed verdict." United Int'l Holdings, Inc. v. Warf (Holdings) Ltd., 210 F.3d 1207, 1228 (10th Cir. 2000). This requirement is in part to preserve the Seventh Amendment and to ensure the court is not impermissibly reexamining the evidence. Lightening Lube v. Witco Corp., 4 F.3d 1153, 1172 (3rd Cir. 1993); McKinnon v. Berwyn, 750 F.2d 1383, 1388 (7th Cir. 1984). The other reason is to put the opposing party on notice of potential deficiencies in the evidence so that the party has the opportunity to cure these deficiencies "by asking to reopen his case in chief, or by reshaping his cross-examination of the defendant's witnesses, or by putting in evidence in rebuttal to the defendant's case." KcKinnon, 750 F.2d at 1388-89; accord Mayo v. Schooner Capital Corp., 825 F.2d 566, 571-72 (1st Cir. 1987). While Rule 50 `does not require technical precision in stating the grounds of the motion[,] [it] does require that they be stated with sufficient certainty to apprise the court and opposing counsel of the movant's position with respect to the

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motion.' `The statement of one ground precludes a party from claiming later that the motion should have been granted on a different ground.' United Int'l, 210 F.3d at 1229 (internal citations omitted). Thus, a party cannot argue under 50(b) that there was an absence of foreseeable loss regarding the contract damages, when the only issue raised under 50(a) was lack of proximate cause. Lightening Lube, 4 F.3d at 1172-73. Although plaintiffs' counsel clearly stated that the evidence showed plaintiffs' were regarded by defendants' as unable to work in the class of jobs of mining, defense counsel never argued that there was an absence of evidence that mining was a class of jobs. Plaintiffs also argued that an inability to do any job in mining would translate into an inability to do a broad range of jobs. Defendants never argued that there was an absence of evidence in this regard. Defendants never argued there was an absence of evidence regarding the number and type of jobs in the geographic area. Defendants waived these arguments by not making them. Defendants sole argument was that the evidence only showed defendants were aware of plaintiffs' restrictions, and believed that they could not do certain jobs that were inconsistent with those restrictions. This argument does not put plaintiffs on notice of a need to present evidence regarding the local job market, or to present evidence that mining was a class of jobs. Defendants' rule 50(a) motion did not address these issues, therefore the court may not consider them under rule 50(b), and may not grant defendants' motion on these grounds. B. Plaintiffs Presented Sufficient Evidence To Show That Defendants Regarded Them As Being Unable To Work In A Class Or Broad Range Of Jobs

First, defendants have misstated the rule in the Tenth Circuit regarding the necessity of evidence regarding the geographic area and the number and types of jobs in that area. The D.C. Circuit has held that a plaintiff "must" present evidence regarding the number and types of jobs in the local economy. Duncan v. Wash. Metro. Area Transit Auth., 240 F.3d 1110, 1116 (D.C. 6

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Cir. 2001). The Tenth Circuit has only stated that a court "may" consider the geographic area and the number and type of jobs available. Bolton v. Scrivner, Inc., 36 F.3d 939, 943 (10th Cir. 1994). The Supreme Court used the term "should" in this regard. Sutton v. United Air Lines, Inc., 527 U.S. 471, 491-92 (1999). As the Eleventh Circuit pointed out on this very subject, neither "may" nor "should" means "shall" or "must." Mullins v. Cromwell, 228 F.3d 1305, fn 18 (11th Cir. 2000). Therefore, this evidence is not strictly required in the Tenth Circuit. 1. Class of Jobs

As the following discussion will show, defendants' cases are distinguishable because they either involve a belief about a single particular job, or an absence of evidence connecting the plaintiff's impairment to the job market. Thus, they stand for the unremarkable proposition that evidence of an impairment is not enough itself to prove a substantial limitation in working. Section IV below discusses in detail defendants' misperceptions about plaintiffs. The evidence taken in the light most favorable to the plaintiffs shows that Mountain Coal (MCC) has a variety of jobs, and believed that plaintiffs' limitations prevented them from doing any of those jobs. This shows that MCC incorrectly believed that plaintiffs were unable to do a class of jobs. The discussion of Judge Tatel in Duncan helps in the analysis of the class of jobs issue. A class of jobs is a group of jobs utilizing the plaintiff's skills. Duncan, 240 F.3d at 1119 (Tatel Concur). To show an inability to do a class of jobs, the plaintiff need only show he cannot do jobs utilizing his skills, he does not need to show an inability to do jobs in other classes. Id. at 1119-1120. Thus a surgeon would not be disabled if only limited from performing surgery, but would be if limited from the practice of medicine entirely. Id. at 1120. The Tenth Circuit performed a similar analysis of the class of jobs of law enforcement in McKenzie v. Dovala, 242 F.3d 967, 971-72 & fn 6 (10th Cir. 2001). The evidence shows that each plaintiff's skills, by 7

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training and experience, were in the area of mining. The evidence also shows that defendants believed plaintiffs could do no job in the field of mining because of their injuries. Therefore, the evidence shows that defendants regarded plaintiffs as disabled. Several cases have held that a belief that a plaintiff was unable to do any job in the company, as opposed to a specific job, is evidence of regarding the plaintiff as disabled. Thus the Eight Circuit case of Ollie v. Titan Tire Corp. distinguished the earlier Eight Circuit case of Conant v. Hibbins cited by defendants. In Ollie there was evidence that the defendant believed the plaintiff could not do any job its warehouse and plant, and thus regarded him as unable to work in the class of jobs of warehousing and manufacturing. Ollie v. Titan Tire Corp., 336 F.3d 680, 685-86 (8th Cir. 2003). In Conant there was only evidence of belief about one job. Conant v. Hibbings, 271 F.3d 782, 785-786 (8th Cir. 2001). Likewise, Pryor v. Trane Co., 1138 F.3d 1024, 1028 (5th Cir. 1998) involved only a belief about a specific job, as shown by plaintiffs later rehiring. This case was distinguished by EEOC v. E.I. du Pont deNemours, 347 F.Supp. 2d 284, 294-95 (E.D. La. 2004), where the defendant restricted the plaintiff from walking anywhere in the plant, showing it regarded her as significantly limited in the major life activity of walking. The Fourth Circuit held that comments indicating a belief that an employee could not handle supervisory work indicated a belief the plaintiff could not perform a class of supervisory jobs, because the employee had been a supervisor. Cline v. Wal-Mart Stores, 144 F.3d 294, 20204 (4th Cir. 1998). The Eighth Circuit held that a company's reassignment of a nurse to a temporary position and telling her she needed to start looking for another job was evidence it regarded her MS as making her unfit for any job at the company, raising an inference it regarded her as disabled. Brown v. Cox, 286 F,3d 1040, 1045 (8th Cir. 2002). The First Circuit held that defendants' belief that a plaintiff's morbid obesity prevented her from working in the health 8

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industry was sufficient to show she was regarded as disabled. Cook v. Rhode Island, 10 F.3d 17, 25 (1st Cir. 1993).2 The Third Circuit held that evidence a store chain erroneously believed there was no job within the chain that the plaintiff could perform was evidence that the store chain regarded him as disabled. Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 187-88, 192 (3rd Cir. 1999). The Federal District Court for Minnesota held that the defendant's belief that the plaintiff could not engage in any form of commercial truck driving was evidence it regarded him as disabled. Skomsky v. Speedway SuperAmerica, LLC, 267 F.Supp. 2d 995, 1002-03 (D. Minn. 2003). These cases are analogous to plaintiffs' case because defendants regarded them as unable to do any job at MCC. This allows the inference defendants believed they could do no job in the class of jobs at mining. The Tenth Circuit case of McKenzie is clearly contrary to the Second Circuit case of Giordano, and it is the Tenth Circuit that is binding. Defendants' other cases are distinguishable from this one. The three Tenth Circuit cases cited by defendants, MacDonald, Sutton, and Nielsen, are distinguishable because they involve belief about one job or aspect of a job. This case is analogous to the Tenth Circuit case McKenzie, which involved belief as to a class of jobs. In Bolton, an actual disability case, the plaintiff could only connect his impairment to a particular job, and not to a class or range of jobs. Bolton, 36 F.3d at 942-44. In this case, the evidence points to defendants' belief that plaintiffs are limited in a class of jobs. The connection is created by defendants' belief as opposed any "real" connection between plaintiffs' work limits and the ability to do a job. The plaintiff in Bristol faced the same problem as the one in Bolton because there was a failure to connect the plaintiff's limitation with an inability to work, either in a class or a range of jobs. Bristol v. Board of County Comm'rs, 281 F.3d 1148, 1161-1163 (10th Cir.
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Rehabilitation act cases are persuasive authority in interpreting the ADA. Bolton, 36 F.3d at 942-43.

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2002). The same is true in Duncan. 240 F.3d at 1115-1116. The problem in Gasser was that the evidence showed the defendant believed Gasser could not perform jobs where he would be exposed to trauma. Gasser v. District of Columbia, 442 F.3d 758, 764-65 (D.C. Cir. 2006). However, the only evidence presented was on jobs from which he would be excluded if defendants believed he could not engage in heavy physical labor, "a different question." Id. In Gasser the only issue was the defendant's belief about an impairment, and how, if that belief were true, it would effect the plaintiff in working. This case is different, because it does not involve defendants' belief that a non-existing impairment exists; instead it involves defendants' misperception of how plaintiffs' limitations affected their ability to work. The misperception is as to the effects of a limitation, not the existence of a limitation. Because plaintiffs produced evidence that defendants regarded them as being unable to do any job in mining, they have shown that defendants regarded them as being unable to perform a class of jobs, and thus regarded them as substantially limited in the major life activity of working.3 3. Evidence Regarding the Local Job Market

No case holds that expert testimony is required on the issue of the number and types of jobs available to the plaintiff in the geographic area. Even Duncan holds expert testimony is unnecessary. 249 F.3d at 1116. "[A] plaintiff could testify from his or her own extensive job search whether other jobs that he or she could perform were available in the geographic area." Mullins, 228 F.3d at fn 18. A plaintiff may testify about his own skills, training, experience and abilities to prove he is substantially limited in working. Wellington v. The Lyon County Sch. Dist., 187 F.3d 1150, 1155 (9th Cir. 1999). If the evidence establishes that he can no longer do any of those jobs, and lacks the education to do others, he has raised a question of fact. Id. Of
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Defendants have never challenged working as a major life activity. Their refusal to concede the point after trial is meaningless.

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course, the number and types of jobs must be assessed in regard to the individual, as disability is an individual inquiry. Sutton, 527 U.S. at 481-83. The evidence in the light most favorable to the plaintiffs shows the following. There were three coalmines in the area where plaintiffs' resided. Based on the testimony of the plaintiffs as to their post-termination jobs at each mine, the work at all the mines were similar. Arch Western itself owned a number of coalmines in the western United States, including in Utah and Wyoming. There was evidence as to the number of individuals employed at MCC. The evidence showed that MCC had a variety of jobs which had used different skills and had different exertional requirements. Among these were: fuel hauler; lube man; materials handler; section mechanic; longwall mechanic; belt mechanic; belt fire boss; permissibility; roof bolter; longwall sheerer operator; ram car operator; water hauler; electrician; surface operator; surface environmental tech; and warehouse tech. There was evidence as to what these jobs entailed, including a video with narration presented by defendants. The jobs at MCC encompass almost every form of work available to men trained to do blue collar jobs with a high school education or less. The evidence shows defendants believed plaintiffs could do none of these jobs. Both plaintiffs testified as to their work history before MCC and their education. Both plaintiffs testified to training they had received. Both plaintiffs resided in the area for a substantial time. Both plaintiffs testified as to the jobs they held before working at MCC. Both testified as to the types of jobs that were available to people of their skills. Both testified as to their job searches after leaving MCC. There was no dispute that each plaintiff mitigated his damages by looking for and accepting reasonably comparable work. Both plaintiffs testified as to the type of jobs they sought and accepted after leaving MCC. While some of the jobs required travel, all of the jobs were headquartered in the area. All of the jobs had requirements similar to 11

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some job at MCC. The jobs available to individuals such as Clawson and Dillon are construction, maintenance, mechanic, and similar jobs. Clawson and Dillon provided descriptions of the work they did, which would allow the jury to make comparisons with the work at MCC. Further, with three mines in the immediate area, constituting the most sought after jobs, and taking a large part of the work force, mining is clearly a class of jobs in this case for these plaintiffs. Further, the inability to do any job in a coalmine would translate into an inability to do a broad range of jobs. This is because, as testified to by plaintiff, the jobs outside of mining available to these plaintiffs require the performance of similar tasks and use of similar equipment, but in different ways and for the accomplishment of different objectives. IV. THE EVIDENCE IN THE LIGHT MOST FAVORABLE TO THE PLAINTIFFS SHOWS DEFENDANTS REGARDED PLAINTIFFS AS DISABLED In this section of defendants' brief, they view the evidence in the light most favorable to themselves, and spend substantial time arguing about the weight of the evidence and the credibility of the witnesses. Defendants appear to be making essentially two arguments. First, that there is insufficient evidence of a no release or 100% healed policy and that there is no other evidence that plaintiffs' were regarded as disabled. Second, that even if there was such evidence, there are only two jobs at Mountain Coal, and they both require strenuous work, and based on a footnote in Henderson, this evidence is insufficient even with a 100% healed rule.4 Both assertions are incorrect. A. Evidence Presented At Trial

Plaintiffs' presented several exhibits evidencing the no restrictions, or 100% healed, or full release policy. These exhibits include 104, 105, 107, 109, and 402. "The weight and

Defendants also make the "straw man" argument that their elimination of light duty is not evidence of regarding plaintiffs as disabled. Plaintiffs never asserted that it did they only used it to show a possible motive.

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credibility due an exhibit are for the jury to decide." Markham v. Nat'l States Ins. Co., 122 Fed. Appx. 392, 398 (10th Cir. 2004) (exhibit 1). The defendants suggest that because they presented testimony from MCC management which contradicts the exhibits, the jury cannot believe the exhibits mean what they say. This is incorrect, and controlling authority would give the documents more weight. "Where such testimony is in conflict with contemporaneous documents we can give it little weight . . ." United States v. Gypsum Co., 333 U.S. 364, 396 (1948) (overturning trial court's findings relying on testimony over documents). It was for the jury to interpret the exhibits and assess their weight against the credibility of the defendants' witnesses. Further, if the jury believed that MCC managers were lying, it would be additional evidence that MCC regarded plaintiffs as disabled and was seeking to cover it up. Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1228-29 (9th Cir. 2001) citing Reeves v. Sanderson Plumb. Prods., Inc., 120 S. Ct. 2097, 2108 (2000). Neither exhibit 104, 106, nor 402 is limited to hourly employees by its own terms, or by testimony. Both Clawson and Dillon testified that they were told by MCC managers that they were not allowed to return to work with restrictions. Dillon testified on rebuttal that when he said he had been allowed to before, he was told, "well that was then." Defendants suggest that there were inconsistency in their statements, or that Clawson wrote some inconsistent statements in notes entered into evidence. However, "It is for the jury, not us ` to . . . reconcile inconsistent or contradictory statements of a witness, and say where the truth lies." Madrid v. Mine Safety Appliance Co., 486 F.2d 856, 858 (10th Cir. 1973). If inconsistent statements are made, it is for the jury to decide which was correct. Further, Clawson's notes indicate that Langrend changed his story, stating that every time Clawson found a mistake they made, they changed their story.

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Additionally, DiClaudio testified that the attorney representing MCC in CCRD/EEOC proceedings represented that Mountain Coal has a full release policy. Langrend, through introduction of his inconsistent deposition testimony, stated that the reason Clawson could no longer do the fuel truck job was because there were going to a no restricted duty policy. Prior inconsistent statements given under oath are admissible as substantive evidence. United States v. Wittgenstein, 163 F.3d 1164, 1172 (10th Cir. 1998); United States v. Knox, 124 F.3d 1360, 136364, fn 1 (10th Cir. 1997). This is additional evidence of the existence of such a policy. There was also evidence that both plaintiffs were terminated pursuant to the policy along with the short-term disability (STD) policy. DiClaudio testified that Clawson was terminated according to the policy. Langrend testified that the summary benefits plan determined that Clawson should be terminated. The policy, exhibit 565, itself states that an individual will be terminated after 26 weeks of STD benefits. Langrend testified that as written, the policy called for automatic termination after 26 weeks of STD benefits. Exhibit 312 states that Dillon was being terminated pursuant to the plan. Exhibit 299 states Dillon was fired after 26 weeks of STD benefits pursuant to the plan. Langrend testified that he believed everyone who had received 26 weeks of STD benefits had been fired. DiClaudio testified that he was not aware of anyone with a restriction who could work at the mine. Defendants mischaracterize the evidence regarding Rolf and Hernandez to attempt to minimize the evidence regarding the existence of the policy. Hernandez testified that he did not have permanent restrictions, that his restrictions had been lifted, and that this occurred before the policy went into effect in January of 1999. Rolf testified that he received his permanent restrictions in 1997. The original policy had a grandfathering clause that may have applied to him. The evidence, in the light most favorable to the plaintiffs, is that defendants simply forgot 14

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about Rolf and his restrictions. DiClaudio testified that he might not know if a particular employee had restrictions. He also testified that he believed no one had restrictions when the policy was emphasized, and the grandfathering removed, on May 27, 1999. Neither Rolf nor Hernandez contradict the existence of a 100% healed policy. There was evidence that the policy came from Arch Western Resources (AWR). The evidence from Shanks, DiClaudio, and exhibit 565 was that the summary benefits plan, with automatic termination after 26 weeks, was an AWR plan. Richards testified that DiClaudio told him that DiClaudio was attempting to get the plan changed. The only person above DiClaudio was Shanks, who worked for AWR. Thus, the evidence suggests that defendants believed that plaintiffs could not work at any AWR mine. Clawson testified that Olsen told him he probably would not be returning to mining. This indicates a belief that Clawson could not work in the class of jobs of mining. The circumstances surrounding the conversation only go to weight, and are for the jury to consider. The conversation reflects not just on Clawson, but also on Dillon, because it shows MCC's management's attitudes toward injured employees. Olsen was involved in the termination process to the extent of providing limitations and medical information. Thus, his beliefs about an employee's physical abilities would affect the termination process. The evidence establishes that Clawson was placed on STD when he reached MMI and received restrictions. There were no copies of the essential job functions at the meeting where he was placed on STD. There was no consideration of offering him an accommodation at that time. Clawson was eventually allowed a courtesy interview, for the warehouse job, a job defendants believed he was not qualified for and could not physically perform. There is no evidence of any serious attempt to accommodate Clawson. Clawson repeatedly sought work with MCC. MCC 15

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eventually told him his lawyer would have to ask about openings, and then told his lawyer that they would not provided any information on openings. There was no attempt at all to accommodate Dillon. Langrend did not even discuss accommodation with Dillon but simply told him he could not return to work. Dillon told Langrend he might need help like he had before, and Langrend told him that was then. Langrend stated at trial that Dillon was not even close to being able to do a job at MCC. The evidence showed that there were multiple jobs at MCC, as described in the section above. These jobs, while manual labor, were not all or mostly strenuous. Lube man could be done with a fifteen-pound work restriction. According to Olsen, all of the jobs could be done with a fifty pound lifting restriction. Rolf testified to doing a number of jobs with a fifty pound lifting restriction. The warehouse physical demands analysis, exhibit 95, showed it only required lifting fifty pounds occasionally. It is undisputed that both Clawson and Dillon were hourly employees, and not supervisory or salaried employees. B. Legal Analysis Of The Evidence

Defendants do not seriously challenge the conclusion that a 100% healed policy is evidence that an employer regards employees with limitations as disabled. Henderson v. Ardco, Inc., 247 F.3d 645, 650-651 (6th Cir. 2001); Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1226-1229(9th Cir. 2001); Warmsley v. MTA NYCTA, 308 F.Supp. 2d 114, 121(E.D. N.Y. 2003). It is logical to infer that an employer who believes an employee is unfit for any job at the company also believes the employee is unfit for any job in the industry. Thus it is permissible for the jury to draw that inference. Sunward Corp. v. Dun & Bradstreet Inc., 811 F.2d 511, 521 (10th Cir. 1987); Smith v. Maschner, 899 F.2d 940, 948-50 (10th Cir. 1990).

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Defendants do attempt to fit this case into an exception contained in a footnote in Henderson. The footnote suggests that if the employer only had a narrow set of jobs, or only physically demanding jobs, the inference would not apply. Henderson, 247 F.3d at 653 fn 6. Presumably this is because the company would not be representative of the industry. Defendants then rely on their own evidence to suggest there were only two mining jobs, both with significant physical demands. However, the evidence in the light most favorable to the plaintiffs is that MCC had many jobs, above ground and below. At least one job only required lifting 15 pounds, and all jobs could be done without lifting more than 50 pounds alone. That is not particularly demanding work. The evidence does not fit footnote 6 of Henderson. Defendants also suggest that the 100% healed rule inference should not apply because they allege their rule only applied to hourly employees. However, there is some evidence it applied to all employees. Further, plaintiffs were hourly employees, and all of the jobs they sought as accommodations were hourly. Supervisory positions and non-supervisory positions are generally considered to be separate classes of jobs because they involve different skills. Cline, 144 F.3d at 303-04. Even if the policy only applied to hourly employees, it would not affect the analysis of this case or the outcome. Defendants also attempt to argue, based on a Federal District Court case from the District of Minnesota, that there is inadequate evidence of a 100% healed policy. This argument is unavailing. The judge in that case interpreted the policy himself. Beveridge v. Northwest Airlines, Inc., 259 F.Supp. 2d 838, 848-89 & fn 4 (D. Minn. 2003). A written policy is not a contract, and its interpretation should be left to the jury. Even if policies can be interpreted as a matter of law, it is no help to the defendants. The wording of the policies is very different. MCC's policy is more definitive, stating, "no hourly employee will be able to return to work 17

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in any capacity until WEM receives a Return-To-Work slip stating that he/she may return to duty with `no restirctions.'" Trial Exhibit 105 (emphasis in original).5 As the MCC policy was written at different times and in different ways, it is ambiguous, and it is for the jury to interpret it and decide its meaning. See Stewart v. Adolph Coors Co., 217 F.3d 1285, 1287 (10th Cir. 2000). Also unlike Beveridge, there is no evidence of any employees with restrictions returning to work after enactment of the policy at MCC. 259 F.Supp. 2d at 850 fn 5. As described above, Hernandez had his restrictions lifted before the policy and Rolf received his restrictions before the policy, and was forgotten about by the time the policy was enacted. Another distinction from Beveridge is that plaintiffs in this case testified that they were told they could not return to work if they had restrictions. 259 F.Supp. 2d at 850. Defendants also point to the non-discrimination policies in Beveridge and their own such policies. However, the non-discrimination policies in Beveridge were indisputably enforced. 259 F.Supp. 2d at 850. In this case there was evidence that the non-discrimination policies merely existed on paper and were not enforced. The mere existence of a policy without enforcement does not rebut an inference of discrimination. See Cadena v. Pacesetter Corp., 224 F.3d 1203, 1210 (10th Cir. 2000) and Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1209 (10th Cir. 2002). Defendants also attempt to distinguish Johnson and Henderson. These attempts are also unavailing and largely go to the weight of the evidence, a question for the jury. Like Johnson, Clawson attempted numerous times to return to work, but was not reemployed. Eventually he was told his lawyer would have to call about jobs, and his lawyer was told no job offer would be coming. After requesting accommodation, Dillon was simply told there was no job for him. Of

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The policy in Beveridge stated: "Effective immediately, anyone who is out on an extended sick/medical leave will be required to provide medical documentation stating you are fully released and able to perform job duties with no restrictions." 259 F.Supp 2d at 843. The "in any capacity" in the MCC policy is a significant difference.

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course Dillon does not have to engage in the futile act of continuing to seek a job he knows he will not get. Davoll v. Webb, 194 F.3d 1116, 1132-33 (10th Cir. 1999). While there was only oral evidence of the policy in Johnson, in this case there was also written evidence. Langrend's comment at trial that Dillon was not even close to being able to work in the mine is much like the manager's comment in Henderson. 247 F.3d at 651. Olsen's comment to Clawson about being unable to continue in mining is likewise similar. There was also the evidence in regard to both plaintiffs that the policy was responsible for their terminations. Defendants argue that unlike Johnson, plaintiffs here did not offer the testimony of other employees regarding a 100% healed policy. The hypocrisy of this argument is amazing. Plaintiffs offered the testimony of two people, Bartlett and Richards, that each was told they could not return to work with restrictions. Defendants successfully objected that such evidence was irrelevant. Defendants cannot now be heard to claim that such evidence is essential. Additionally, there was evidence that defendants did not consider offering Dillon a job consistent with his limitations. There is evidence that the "courtesy interview" of Clawson was a mere sham. This is also evidence that defendants regarded plaintiffs as disabled. Evidence that an employer did not consider offering a plaintiff a job consistent with her restrictions was evidence it regarded her as disabled. Doebele v. Sprint/United Mngmt. Co., 342 F.3d 1117, 1134 (10th Cir. 2003). It is defendants' belief about how plaintiffs' impairments substantially limited them that is important in this case. Defendants argue there was no showing of how plaintiffs' impairments actually affected them in the major life activity of working. That is irrelevant; it is what defendants believed that is relevant. The evidence, taken as a whole, and viewed in the light most favorable to the plaintiffs, is sufficient to show that defendants regarded the plaintiffs as 19

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disabled. The defendants believed that neither plaintiff was capable of doing the class of jobs of mining. The defendants also believed that plaintiffs were unable to do a broad range of jobs that did not involve mining, but involved similar equipment, work, and working environments. The evidence viewed in the light most favorable to the plaintiffs supports the jury's verdict, and defendants' rule 50 motion should be denied. REQUEST TO ACCEPT OVERSIZE RESPONSE It is not clear whether the fifteen-page limit in MSK Civ. Practice Standard V. A. applies, because a rule 50 motion is a dispositive one. However, rule 50 motions are not specifically addressed in the practice standards. If the fifteen-page limit applies, plaintiffs request the court accept this oversize response. Defendants sixteen page brief exceeded the limit. This response would be twenty pages, without this request. It was necessary for plaintiffs to address the rules regarding 50(a) and 50(b) motions, and their differences. It was also necessary to address the rule about no new arguments being made under rule 50(b). Further, plaintiffs do not believe it is helpful to speak in terms of broad generalities regarding the evidence. Plaintiffs attempted to give examples rather than simply claiming there was or was not evidence on a subject. All of this increased the size of the response. Plaintiffs therefore request the court accept this response although it exceeds fifteen pages.

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RESPECTFULLY SUBMITTED this 5th day of June, 2006.

s/J. Keith Killian J. Keith Killian Damon Davis Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 FAX: (970) 242-8375 E-mail: [email protected] Attorney for Plaintiffs Michael E. Clawson and Jared L. Dillon

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UNITED STATES DISTRICT COURT FOR THE DISTRIT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on June 5, 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 email addresses: [email protected] [email protected] and, I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Mr. Michael Clawson 38506 Back River Road Paonia, CO 81428 Mr. Jared Dillon 35404 Back River Road Hotchkiss, CO 81419 Mail

Mail

s/J. Keith Killian J. Keith Killian Attorney for Plaintiffs Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 Fax: (970) 242-8375 [email protected]

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