Case 1:11-cv-02557-CMA-CBS Document 1 Filed 09/29/11 USDC Colorado Page 1 of 9
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. BEVERAGE DISTRIBUTORS COMPANY, LLC, and BEVERAGE DISTRIBUTORS HOLDING, INC.,
Defendants.
COMPLAINT AND JURY TRIAL DEMAND
NATURE OF THE ACTION This is a public enforcement action under Title I of the Americans with Disabilities Act of 1990, as amended (“ADA”), and Title I of the Civil Rights Act of 1991, to correct unlawful employment practices on the basis of disability and to provide appropriate relief to Mike Sungaila, a disabled individual as defined by the ADA. As alleged with greater particularity below, after eliminating Mr. Sungaila’s position as a Driver Helper, Defendant offered Mr. Sungaila a position as a Night Warehouse Loader, conditioned on the results of a medical exam. Defendant withdrew its offer of the Night Warehouse Loader position to Mr. Sungaila after obtaining the results of a medical exam because of

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his disability. Defendant refused to hire Mr. Sungaila because of his disability and terminated his employment.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to § 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference § 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5(f)(1) and (3). 2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the District of Colorado.
PARTIES 3. Plaintiff Equal Employment Opportunity Commission (“EEOC” or “the Commission”) is the agency of the United States of America charged with the administration, interpretation and enforcement of Title I of the ADA and is expressly authorized to bring this action by § 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference §§ 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. Defendant Beverage Distributors Company LLC (“Beverage Distributors”) is a Delaware Limited Liability Company registered to do business in the State of Colorado. 5. Defendant Beverage Distributors Holding, Inc. (“Beverage Distributors”) is a Delaware corporation registered to do business in the State of Colorado.
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6. At all relevant times, Beverage Distributors has continuously been doing business in the State of Colorado.
7. At all relevant times, Beverage Distributors has continuously been an employer engaged in an industry affecting commerce within the meaning of § 101(5) of the ADA, 42 U.S.C. § 12111(5), and § 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference §§ 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h).
8. At all relevant times, Beverage Distributors has been a covered entity under § 101(2) of the ADA, 42 U.S.C. § 12111(2).
STATEMENT OF CLAIMS General Allegations
9. More than thirty days prior to the institution of this lawsuit, Mr. Sungaila filed a charge with the Commission alleging violations of Title I of the ADA by Beverage Distributors.
10. All conditions precedent to the institution of this lawsuit have been fulfilled. 11. Mr. Sungaila is a qualified individual with a disability as defined under the ADA. He is legally blind due to a permanent birth defect called Achromatopsia. 12. Mr. Sungaila’s physical impairment substantially limit him in the major life activity of seeing. 13. Mr. Sungaila began working for Respondent in December 2003 as a Driver Helper. 14. Mr. Sungaila did a good job as a Driver Helper.
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15. In early 2008, Respondent informed Mr. Sungaila that it had made the decision to dissolve the Driver Helper position and use contract laborers to perform those duties.
16. On March 5, 2008, Mr. Sungaila applied for a Night Warehouse Loader position.
17. On March 24, 2008 Respondent extended a conditional offer of employment as a Night Warehouse Loader, contingent on Mr. Sungaila passing a medical evaluation.
18. On March 24, 2008, Mr. Sungaila underwent a medical examination by a third party occupational health care provider.
19. On or about March 28, 2008, Mr. Sungaila met with Transportation Manager Tom Rogers and with Safety Manager Bob Pieron, who informed him that he was not selected for the Night Warehouse Loader position because he could not drive a forklift.
20. Beverage Distributors withdrew the conditional offer of employment, refused to hire him and terminated his employment.
21. Driving a forklift is not a job function of the entry level Night Warehouse Loader position.
22. Even if driving a forklift were a job function of the Night Warehouse Loader position, Beverage Distributors could have accommodated Mr. Sungaila’s inability to drive a forklift.
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23. Respondent has contended that it withdrew the job offer because Mr. Sungaila would be a direct threat to himself or others in the Night Warehouse Loader position.
24. Mr. Sungaila would not have posed a threat to the safety of himself or others.
25. To the extent Mr. Sungaila would be direct threat by performing one or more job functions of the Night Warehouse Loader position, Beverage Distributors could have accommodated Mr. Sungaila so as to remove the threat.
26. The Beverage Distributors did not engage in the interactive process to determine whether it was possible to accommodate Mr. Sungaila.
27. On April 5, 2008, Beverage Distributors terminated Mr. Sungaila’s employment.
Claims For Relief 1. Violation of the Americans with Disabilities Act - 42 U.S.C. § 12112 28. Plaintiff EEOC hereby re-alleges, reasserts, and incorporates the preceding paragraphs with the same force and effect as if fully set forth herein. 29. Mr. Sungaila is disabled within the meaning of the ADA because he has a physical impairment that substantially limits one or more major life activities. 42 U.S.C. § 12102(1)(A). 30. Mr. Sungaila is disabled within the meaning of the ADA because Mr. Sungaila has a record of an impairment that substantially limited one or more major life activities. 42 U.S.C. § 12102(1)(B).
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31. Defendant refused to hire Mr. Sungaila because of an actual or perceived physical or mental impairment, or due to his record of disability. 42 U.S.C. § 12102(1)(C) and (3)(A).
32. Mr. Sungaila is qualified and able, with or without reasonable accommodation, to perform the essential functions of the position of Night Warehouse Loader position at Beverage Distributors.
33. Beverage Distributors was aware of Mr. Sungaila’s disability. 34. Beverage Distributors intentionally refused to hire Mr. Sungaila as a Night Warehouse Loader because of his disability or disabilities, because it regarded him as disabled, and/or because of his record of disability in violation of Section 102(a) of the ADA. 42 U.S.C. § 12112(a). 35. Beverage Distributors’ discriminatory treatment of Mr. Sungaila was done with malice or reckless indifference to Mr. Sungaila’s federally protected rights. 36. Beverage Distributors’ discriminatory treatment of Mr. Sungaila was intentional. 37. The effect of the practices complained of in the foregoing paragraphs has been to deprive Mr. Sungaila of equal employment opportunities and otherwise adversely affect his status as an employee because of his disability or disabilities. 2. Violation of the Americans with Disabilities Act - Section 102(d) 38. Beverage Distributors violated Section 102(d) of the ADA by utilizing the results of the pre-employment medical screening as a basis to deny him employment.
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39. Beverage Distributors’ discriminatory treatment of Mr. Sungaila was done with malice or reckless indifference to Mr. Sungaila’s federally protected rights.
40. Beverage Distributors’ discriminatory treatment of Mr. Sungaila was intentional.
41. The effect of the practices complained of in the foregoing paragraphs has been to deprive Mr. Sungaila of equal employment opportunities and otherwise adversely affect his status as an employee because of his disability or disabilities.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Beverage Distributors, its owners, officers, agents, servants, employees, attorneys, and all persons in active concert or participation with them, from engaging in any employment practices that discriminate on the basis of disability. B. Order Beverage Distributors to institute and carry out policies, practices, and programs which provide equal employment opportunities for disabled individuals and which eradicate the effects of its past and present unlawful employment practices. C. Order Beverage Distributors to make whole Mr. Sungaila by providing appropriate back-pay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including, but not limited to, instatement or an appropriate award of front pay.
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D. Order Beverage Distributors to make whole Mr. Sungaila by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described above, including job search expenses, in amounts to be determined at trial.
E. Order Beverage Distributors to make whole Mr. Sungaila by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
F. Order Beverage Distributors to pay Mr. Sungaila punitive damages for its malicious and reckless conduct described above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. Award the Commission its costs of this action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact. Dated: September 29, 2011.
Respectfully submitted, P. DAVID LOPEZ General Counsel U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION 131 M Street, N.E. Washington, D.C. 20507
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MARY JO O’NEILL Regional Attorney Phoenix District Office, EEOC 3300 N. Central Avenue, Room 690 Phoenix, AZ 85012-2504 RITA BYRNES KITTLE Supervisory Trial Attorney s/ Stephanie Struble_ STEPHANIE STRUBLE Senior Trial Attorney 303.866.1381 stephanie.struble@eeoc.gov U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION Denver Field Office 303 East 17th Avenue, Suite 410 Denver, CO 80203 FAX: 303.866.1375
PLEASE NOTE:
For purposes of service upon the EEOC, it is sufficient that pleadings, notices, and court documents be served upon the Trial Attorneys. Duplicate service is not required on the General Counsel in Washington, D.C.
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02557-CMA-CBS EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. BEVERAGE DISTRIBUTORS COMPANY, LLC,
Defendant.
SECOND AMENDED FINAL JUDGMENT
In accordance with the orders filed during the pendency of this case, and pursuant to Fed. R. Civ. P. 58(a), the following Final Judgment is hereby entered.
Commencing on April 8, 2013, this action was tried before a jury of ten duly sworn to try the issues herein with U.S. District Judge Christine M. Arguello presiding. On April 12, 2013, the jury rendered its verdict:
Plaintiff EEOC proved, by a preponderance of the evidence, the three elements of claims of disability discrimination.
Pursuant to the Order Granting Plaintiff’s Motion for Judgment as a Matter of Law and Motion for Injunctive Relief of Judge Christine M. Arguello entered on December 9, 2013, it is
ORDERED that: (1) The jury’s damages award of $29,543.25 for back pay is VACATED;
(2) The Clerk shall enter judgment in favor of Plaintiffs in the amount of

$132,347.00 for back pay, plus pre-judgment interest accruing at a rate of 8 percent per
annum compounded annually from March 31, 2008, the date of Mr. Sungalia’s
separation from Beverage Distributors;
(3) Mr. Sungaila shall be reinstated to the position of Night Warehouse Loader with the same seniority he would have had if he had not been terminated;
(4) Beverage Distributors shall engage an outside consultant to provide employee training and assistance in revisions to its policies, updates to its job
postings, notice posting, and reporting and compliance review. Beverage Distributors
shall report its compliance with this order to the Court within six months of this order.
Pursuant to the Joint Stipulation Regarding Pre-Judgment Interest and Tax Penalty Offset the Amended Judgment entered on 4/15/2013 is amended to incorporate the following terms:
(a) With respect to the calculation of eight percent ( 8%) pre-judgment interest on back pay award of $132,347.00 from March 31, 2008 through March 14, 2014, the parties stipulate that the amount of interest for that precise time period is $35,143.08. (b) The parties stipulate that the corresponding amount tax penalty offset is $18, 805.00. (c) Therefore, the total back pay award, including pre-judgment interest and tax penalty offset, is $186,295.08.

Accordingly, IT IS ORDERED that judgment is entered in favor of Plaintiff Equal Employment Opportunity Commission and against Defendant Beverage Distributors Company, LLC. Post-judgment interest shall accrue on the judgment amount awarded at the rate of 0.12 % from the date of entry of judgment, pursuant to 28 U.S.C. § 1961.
Dated at Denver, Colorado this 27th day of March, 2014
FOR THE COURT: JEFFREY P. COLWELL, CLERK

APPROVED BY THE COURT
________________________ Christine M. Arguello United States District Judge

s/Sandra Hartmann
Sandra Hartmann Deputy Clerk

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Christine M. Arguello
Civil Action No. 11-cv-02557-CMA-CBS EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff, v. BEVERAGE DISTRIBUTORS COMPANY, LLC,
Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant Beverage Distributors Company, LLC’s (“Defendant”) Motion for Summary Judgment, filed on August 17, 2012. (Doc. # 27.) Pursuant to its Complaint (Doc. # 1), Plaintiff Equal Employment Opportunity Commission (“Plaintiff”), on behalf of Mike Sungaila, brings two claims for relief. Plaintiff alleges that Defendant discriminated against Mr. Sungaila in violation of the Americans with Disabilities Act (“ADA”) by refusing to hire him as a Night Warehouse Associate because of his disability, its perception of him as disabled, or his record of disability. Additionally, Plaintiff alleges that Defendant violated Section 102(d) of the ADA by improperly requiring Mr. Sungaila to take a medical exam and utilizing the results of that exam to deny him employment. (Doc. # 49 at 2.) In the instant motion, Defendant requests that the Court grant summary judgment against Plaintiff on these two claims.

Plaintiff responded on September 17, 2012, and Defendant replied on October 10, 2012. (Doc. ## 36, 47.)
To establish a claim under the ADA, the plaintiff must show that he is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). Defendant does not dispute that Mr. Sungaila is disabled and, for purposes of this motion at least, does not appear to dispute that Mr. Sungaila could perform the essential functions of the Night Warehouse Associate position. Defendant contends, however, that Mr. Sungaila could not perform the essential functions of that position safely due to his disability. Specifically, Defendant invokes the “direct threat” defense codified at 42 U.S.C. § 12113(b).
Section 12113(b) provides that “qualification standards may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.” Id. (internal quotation marks omitted). An EEOC regulation, which is entitled to substantial deference,1 defines direct threat as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. § 1630.2(r). It further provides:
The determination that an individual poses a “direct threat” shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment shall be
1 See Jarvis v. Potter, 500 F.3d 1113, 1121 (10th Cir. 2007).
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based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:
(1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm.
Id. The employer bears the burden of proving the direct threat defense.2 See Jarvis
v. Potter, 500 F.3d 1113, 1122 (10th Cir. 2007).
To evaluate an employer’s direct threat defense, the fact-finder does not
independently assess whether it believes the employee posed a direct threat, nor does
it accept the defense simply because the employer acted in good faith in deciding the
employee posed such a threat. Id. Rather, “the fact-finder’s role is to determine
whether the employer’s decision was objectively reasonable.” Id. Although there does
not appear to be any dispute as to whether Defendant maintained a good faith belief
that Mr. Sungaila was a threat to himself, there are genuine issues of material fact as
to whether Defendant’s determination was objectively reasonable. For example, the
severity of Mr. Sungaila’s disability, the essential functions of the Night Warehouse
Associate position, and whether any reasonable accommodations could have been
2 The Tenth Circuit has recognized a narrow exception to this general rule: “[W]here the essential job duties necessarily implicate the safety of others, then the burden may be on the plaintiff to show that she can perform those functions without endangering others.” McKenzie v. Benton, 388 F.3d 1342, 1354 (10th Cir. 2004) (brackets omitted). Here, Defendant only argues that Plaintiff was a threat to himself, not to others. Moreover, the essential duties of a warehouse worker do not “necessarily implicate the safety of others.” Id. Thus, the burdenshifting exception does not apply in this case.
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made for Mr. Sungaila are all very much in dispute.3 As such, summary disposition is
inappropriate in this case.
Accordingly, it is ORDERED that Defendant’s Motion for Summary Judgment
(Doc. # 27) is DENIED.
DATED: December 07 , 2012
BY THE COURT:
_______________________________ CHRISTINE M. ARGUELLO United States District Judge
3 In its Reply, Defendant accuses Plaintiff of distorting the factual record in order to create sham disputes of fact. The Court has carefully sifted through the evidentiary record and disagrees with Defendant’s characterization of Plaintiff’s Response. Although there are instances where Plaintiff has taken some liberties with the factual record, the same critique can be leveled at Defendant. For example, in its Motion, Defendant discussed the need for warehouse employees to move from one function to another. Citing deposition testimony from Robert H. Pieron, Plaintiff responded that there is always at least one employee working each job function. In its Reply, Defendant asserts that Mr. Pieron’s deposition testimony “says no such thing.” (Doc. # 47 at 4.) In his deposition, Mr. Pieron was asked the question: “and throughout the night shift, is there always at least one employee working each of the job functions in the warehouse?” Mr. Pieron responded “no.” (Doc. # 36-16 at 81:8-11.) Standing alone, this certainly contradicts Plaintiff’s response. But the Court is not so naive to believe that Defendant’s omission of the remainder of Mr. Pieron’s testimony was mere accident. Immediately after saying “no,” Mr. Pieron clarified that he misunderstood the question, and testified that there is always someone loading the truck, always someone working in the mezzanine, always somebody working on the bottle line. (Id. at 81:12-22.) Thus, Mr. Pieron’s deposition testimony supports Plaintiff’s factual response, and it is Defendant that is guilty of playing fast and loose with the record evidence.
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Christine M. Arguello
Civil Action No. 11-cv-02557-CMA-CBS EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff, v. BEVERAGE DISTRIBUTORS COMPANY, LLC,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
This matter is before the Court on Plaintiff Equal Employment Opportunity Commission’s (“Plaintiff” or “the EEOC”) Motion for Partial Summary Judgment. (Doc. # 28.) In this motion, Plaintiff seeks summary judgment on Defendant Beverage Distributor Company, LLC’s Third, Fifth, Eighth, Twelfth, Thirteenth, Fourteenth, and Twenty-Second affirmative defenses. Defendant responded on September 10, 2012,1 and Plaintiff replied on September 27, 2012. (Doc. ## 34, 40.)
I. BACKGROUND2 Mike Sungaila was employed by Defendant as a Drivers’ Helper for more than four years. On or about March 4, 2008, Mr. Sungaila was informed that his position as
1 In its Response, Defendant concedes Plaintiff’s Motion with respect to its Third, Twelfth, Fourteenth, and Twenty-Second affirmative defenses. (Doc. # 34 at 1-2.) Thus, the Court grants Plaintiff’s Motion with respect to these affirmative defenses. 2 The following facts are undisputed, unless otherwise noted.

a Drivers’ Helper was being eliminated. The next day, Mr. Sungaila applied for a position as a Night Warehouse Loader in Defendant’s warehouse. After an interview, he was offered the position on the condition that he pass a medical examination. On March 24, 2008, Mr. Sungaila was examined by a physician at HealthOne who indicated on a form that Mr. Sungaila was legally blind and might be a direct threat unless reasonable accommodations were available. After receiving the letter, Defendant withdrew its offer of employment.3
Mr. Sungaila filed EEOC Charge of Discrimination No. 541-2088-01960 on May 19, 2008. (Doc. # 28-4.) EEOC issued its determination on Mr. Sungaila’s charge on July 21, 2011. (Doc. # 28-5.) On July 29, 2011, the EEOC sent a letter detailing its demand to settle the case. (Doc. # 28-6.) On August 31, 2011, the EEOC held an in-person conciliation meeting, which was attended by Defendant’s CFO, its HR Director, and its counsel. Ultimately, the parties were unable to resolve the case during the conciliation. EEOC issued notice of failure of conciliation on September 13, 2011, and this lawsuit was commenced on September 20, 2011. (Doc. ## 28-7; 1.) Defendant answered on January 10, 2012, asserting numerous affirmative defenses. (Doc. # 13.)
On January 10, 2012, Plaintiff served its first set of interrogatories on Defendant. Interrogatory No. 7 asks Defendant to state the factual basis for, inter alia, Defendant’s
3 Plaintiff contends that Defendant made the decision “to terminate” Mr. Sungaila’s employment, whereas Defendant contends that it withdrew its conditional offer of employment. This appears to be little more than a semantic disagreement, because the fact of the matter is that Mr. Sungaila’s offer of employment was withdrawn after Defendant received the results of his medical examination.
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Fifth (failure to conciliate) or Eighth (laches) affirmative defenses. To date, Defendant has not responded EOC’s Interrogatory No. 7.
II. STANDARD OF REVIEW Summary judgment is appropriate if the moving party demonstrates that there is Ano genuine dispute as to any material fact@ and that it is Aentitled to a judgment as a matter of law.@ Fed. R. Civ. P. 56(a). In applying this standard, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is Amaterial@ if, under the applicable substantive law, it is Aessential to the proper disposition of the claim.@ Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute of fact is Agenuine@ if Athere is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.@ Id. (citing Anderson, 477 U.S. at 248). The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant who does not bear the ultimate burden of persuasion at trial does not need to disprove the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
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Once the movant has met this initial burden, the burden shifts to the nonmoving party to Aset forth specific facts showing that there is a genuine issue for trial.@ Anderson, 477 U.S. at 256. The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Id. Rather, the nonmoving party must Aset forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.@ Adler, 144 F.3d at 671. ATo accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.@ Id.
III. ANALYSIS Defendant concedes that summary judgment should be granted on its Third, Twelfth, Fourteenth, and Twenty-Second affirmative defenses. Thus, the Court’s analysis focuses on whether summary judgment should be granted on Defendant’s Fifth, Eighth, and Thirteenth Affirmative Defenses, which assert, respectively, failure to conciliate, laches, and bifurcation of any claim for punitive damages. A. FIFTH AFFIRMATIVE DEFENSE – CONCILIATION Defendant’s fifth affirmative defense is that “Plaintiff failed to satisfy its legal obligation to make reasonable efforts to conciliate the present matter prior to bringing the instant action.” (Doc. # 13 at 7.) Before the EEOC may file suit after making a reasonable cause determination, the EEOC must first attempt to resolve the matter through conciliation. 42 U.S.C. § 2000e-5(b) (providing that the EEOC must engage in “informal methods of conference, conciliation, and persuasion.”).
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The EEOC satisfies the minimal jurisdictional requirements of § 2000e-5(b) when
it makes “a sufficient albeit limited effort to conciliate.” EEOC v. Prudential Fed. Sav. &
Loan Assoc., 763 F.2d 1166, 1169 (10th Cir. 1985). Courts have also found that the
EEOC is required to act in good faith, and must make “a sincere and reasonable effort
to negotiate by providing the defendant an adequate opportunity to respond to all
charges and negotiate possible settlements.” Id. However, the Tenth Circuit has also
instructed that district courts should not “examine the details of the offers and
counteroffers between the parties, nor impose its notions of what the agreement should
provide” when determining whether the EEOC has fulfilled its conciliation requirement.
EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir. 1978).
In this case, Defendant does not dispute that the EEOC attempted conciliation,
only that the EEOC’s attempt at conciliation “fell far short of what could reasonably be
expected of the agency.” (Doc. # 34 at 9.) (asserting also that the EEOC’s settlement
position was “inconsistent with good faith.”). Whatever the merits of this argument,4 it is
4 In its Response brief, Defendant appears to argue that EEOC’s conciliation attempts were not taken in good faith largely because of the allegedly dilatory investigation that preceded the conciliation. Defendant cites no authority, however, for the proposition that the EEOC’s investigation has any bearing on whether its conciliation efforts were taken in good faith. In fact, it is entirely unclear whether the adequacy of the EEOC’s investigation is even subject to judicial review, let alone that the preceding investigation can undermine the EEOC’s concili-ation efforts. See EEOC v. Caterpillar, Inc., 409 F.3d 831, 832 (7th Cir. 2005) (“No case actually holds that the scope of the EEOC’s investigation is a justiciable issue in a suit by the EEOC”); EEOC v. Cal. Psych. Transitions, Inc., 725 F. Supp. 2d 1100, 1112 (E.D. Cal. 2010) (citing several cases holding that the adequacy of the EEOC investigation may not be challenged in subsequent litigation); see also EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984) (holding that the district court erred by evaluating the sufficiency of the EEOC’s investigation).
Defendant also contends that the EEOC violated its confidentiality agreement by providing the Court with general information about the conciliation proceedings. The Court agrees with the EEOC that Defendant opened the door to the issue by asserting its affirmative defense. In any event, even if the EEOC breached its confidentiality agreement, the Court fails
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well-settled in the Tenth Circuit that the EEOC’s failure to conciliate in good faith is not a defense to liability. See Prudential, 763 F.2d at 1169 (“we have refused to dismiss cases where the EEOC failed to exhaust fully its duty to conciliate”); EEOC v. JBS USA, LLC, 794 F. Supp. 2d 1188, 1198 (D. Colo. 2011) (“In the Tenth Circuit, if there has been any attempt at conciliation, the action cannot be dismissed for failure to attempt conciliation”); EEOC v. Burlington N., No. CIV-07-734-D, 2008 WL 4845308, at *2 n.6 (W.D. Okla. June 23, 2008) (unpublished) (“a lack of reasonable conciliation is not an affirmative defense to liability but a condition precedent to prosecuting the action – the remedy for a violation is a stay of the case until conciliation efforts are completed, not dismissal of the case.”). Thus, even assuming that Defendant proved that the EEOC did not conciliate in good faith, the proper remedy would be to stay the case, rather than dismiss the action.
Because it is undisputed that the EEOC made an attempt at conciliation, and Defendant has not sought a stay in order to conduct further conciliation, summary judgment is appropriate on Defendant’s affirmative defense that the EEOC failed to conciliate in good faith. See JBS USA, 794 F. Supp. 2d at 1198 (denying defendant’s motion to dismiss for failure to conciliate where the court found that the EEOC made sufficient attempts to conciliate and the defendant did not seek a stay to conduct further conciliation); EEOC v. State of Kansas, Dep’t of Admin., No. 81-4114, 1982 WL 303,
to perceive how this would have any bearing on the question of whether the EEOC made a good faith attempt to conciliate.
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at *4 (D. Kan. Apr. 8, 1982) (“There being no request for a stay of proceedings before this court, the issue of good faith is not material.”). B. EIGHTH AFFIRMATIVE DEFENSE – LACHES
Defendant’s Eighth affirmative defense is that “Plaintiff’s claims fail to the extent they are barred, in whole or in part, by the doctrines of waiver, equitable estoppel, laches, and/or unclean hands.” (Doc. # 28 at 8.) Defendant offers no response to Plaintiff’s motion with respect to its defenses of waiver, equitable estoppel, and unclean hands, and for the reasons stated in Plaintiff’s motion, summary judgment is appropriate on these affirmative defenses. (See Doc. # 28 at 9-11.) Thus, the only issue is whether summary judgment should also be granted on Defendant’s affirmative defense of laches.
The defense of laches is an equitable defense “which bars a plaintiff from maintaining a suit if [it] unreasonably delays in filing a suit and as a result harms the defendant.” Nat’l R.R. Passenger Corp., v. Morgan, 536 U.S. 101, 121 (2002). The defense has two components: “(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.”5 Id. at 122; see also Jacobsen v. Deseret Book Co., 287 F.3d 936, 949 (10th Cir. 2002) (defendant must prove both unreasonable delay and that it was materially prejudiced by the delay).
5 Although Morgan observed that it was not entirely clear whether the laches defense may be asserted against the EEOC, Morgan also noted that “there seem[s] to be general agreement that courts can provide relief to defendants against inordinate delay by the EEOC.” 536 U.S. at 122 n.14; see also Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 373 (1977) (stating that federal courts have power to provide relief when a defendant is “significantly handicapped” due to “inordinate EEOC delay in filing the action after exhausting its conciliation efforts.”).
7

It is undisputed that Mr. Sungaila filed his charge of discrimination with the EEOC
on May 19, 2008, and that this lawsuit was commenced on September 20, 2011. Thus,
there was a three year and four month delay from the time the EEOC began its
investigation and the time that the EEOC initiated this lawsuit.6 Although neither party
has directed the Court to any on-point Tenth Circuit authority, courts in other jurisdic-
tions have declined to “say that any set length of delay is per se unreasonable.” EEOC
v. Liberty Loan Corp., 584 F.2d 853, 857 (8th Cir. 1978); EEOC v. Autozone, Inc., 258
F. Supp. 2d. 822, 826-27 (W.D. Tenn. 2003) (“[T]he reasonableness of the EEOC’s
delay does not depend on the total amount of time between filings, but on the EEOC’s
reasons for the delay.”). Here, the EEOC does not explain why there was such a delay
between the charge of discrimination and the commencement of this case. Thus, the
Court cannot say as a matter of law that the delay was reasonable.7
In its Reply, the EEOC points out that Defendant has provided no evidence that it
was prejudiced by the delay. This is true, but this is also not an issue that the EEOC
raised in its motion for partial summary judgment. (See Doc. # 28 at 10.) Although a
6 In its Motion, the EEOC notes that only two months passed between the EEOC’s determination that there was cause to believe that discrimination had occurred and when this lawsuit was filed. (Doc. # 28 at 10.) The EEOC does not explain why this would be a relevant consideration, and other courts have looked at the lapse in time between when a charge was filed and the initiation of the lawsuit as the relevant time frame for assessing a defense of laches. See, e.g., U.S.E.E.O.C. v. Global Horizons, Inc., --- F. Supp. 2d ---, 2012 WL 5489955, at *14 (D. Haw. Nov. 8, 2012) (“Five years lapsed between the date a charge was filed against [the employer] with the EEOC and the date the EEOC instituted this suit.”). 7 The Court notes, however, that Defendant has not cited a single case where a court found that a three-year and four-month delay from the date of the charge of discrimination through the commencement of a lawsuit was unreasonable, and the Court has been unable to find any such case upon independent investigation. (Doc. # 34 at 10). Thus, putting it mildly, Defendant will have an uphill battle in establishing that the EEOC’s delay was unreasonable.
8

movant who does not bear the ultimate burden at trial may move for summary judgment by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant’s claim, see Adler, 144 F.3d at 671, the EEOC only pointed out a lack of evidence regarding prejudice in its Reply. Thus, Defendant was not put on notice that the EEOC was challenging their evidence of prejudice. Because there is insufficient evidence on the record for the Court to assess whether the EEOC’s delay was reasonable, and this was the basis for summary judgment raised by the EEOC, the Court denies summary judgment on Defendant’s Eighth affirmative defense of laches. C. THIRTEENTH “AFFIRMATIVE DEFENSE” – BIFURCATION OF PUNITIVE
DAMAGES CLAIM Defendant’s Thirteenth “affirmative defense” is that Defendant’s due process rights will be violated without bifurcating the trial for separate consideration of the EEOC’s request for punitive damages. However, bifurcation has no bearing on whether Defendant should be held liable. Thus, this “affirmative defense,” although so termed by Defendant, is not actually an affirmative defense. See Black’s Law Dictionary (9th ed. 2009) (defining affirmative defense as: “A defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s or prosecution’s claim, even if all the allegations in the complaint are true.”). As such, the Court strikes Defendant’s Thirteenth “affirmative defense.” To the extent that Defendant asks the Court to bifurcate the EEOC’s punitive damages claim from the rest of trial, the Court is unable to do so at this juncture. In its Response, Defendant contends, without citing any relevant authority, that it has “a right
9

to bifurcation” if the EEOC seeks punitive damages. (Doc. # 34 at 13.) Defendant is mistaken. Under Fed. R. Civ. P. 42(b), district courts possess broad discretion in determining whether to bifurcate a trial. See, e.g., Precision Fitness Equip. v. Nautilus, Inc., No. 08-cv-01228, 2010 WL 4054086, at *2 (D. Colo. Oct. 14, 2010) (unpublished) (“a district court has broad discretion to order separate trials”); Dowdy v. Coleman Co., Inc., No. 11CV45, 2012 WL 5944232, at *9-10 (D. Utah Nov. 28, 2012) (unpublished) (denying motion to bifurcate the liability and compensatory damages phases of trial from any punitive damages phase of trial); Thorne v. Weld Inv., Inc., 197 F.3d 1206, 1213-14 (8th Cir. 1999) (“The decision of whether to isolate the punitive damages phase of the trial is within the sound discretion of the trial court.”). Thus, the Court rejects Defendant’s unsupported argument that it has some sort of inherent due process right to bifurcate the EEOC’s punitive damages claim.
The fact that bifurcation is not mandated by due process, however, does not necessarily mean that bifurcation would be inappropriate. As noted, the Court possesses broad discretion in determining whether to bifurcate a trial. But no motion for bifurcation is pending. The Court is unwilling and unable to pre-judge this issue because the Court has no way of discerning whether bifurcation would result in any measurable gains in convenience, efficiency, or a reduction in prejudice. See Fed. R. Civ. P. 42(b).
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IV. CONCLUSION Based on the foregoing, it is ORDERED that Plaintiff’s Motion for Partial Summary Judgment is GRANTED IN PART and DENIED IN PART. Specifically, the Court GRANTS summary judgment on Defendant’s Third, Fifth, Twelfth, Fourteenth, and Twenty-Second affirmative defenses. The Court DENIES summary judgment on Defendant’s Eighth affirmative defense. The Court STRIKES Defendant’s Thirteenth affirmative defense. DATED: December 14 , 2012
BY THE COURT: _______________________________ CHRISTINE M. ARGUELLO United States District Judge
11

 
 Case 1:11-cv-02557-CMA-CBS Document 97 Filed 04/15/13 USDC Colorado Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Christine M. Arguello
Civil Action No. 11-cv-02557-CMA-CBS EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. BEVERAGE DISTRIBUTORS COMPANY, LLC,
Defendant.
FINAL JUDGMENT
In accordance with the orders filed during the pendency of this case, and pursuant to Fed. R. Civ. P. 58(a), the following Final Judgment is hereby entered.
Commencing on April 8, 2013, this action was tried before a jury of ten duly sworn to try the issues herein with U.S. District Judge Christine M. Arguello presiding. On April 12, 2013, the jury rendered its verdict:
1. Plaintiff EEOC proved, by a preponderance of the evidence, the three elements of claims of disability discrimination;
2. Plaintiff EEOC is awarded economic damages (back pay) in the amount of $29,543.253.25.
Accordingly, IT IS ORDERED that judgment is entered in favor of Plaintiff Equal Employment Opportunity Commission and against Defendant Beverage Distributors Company, LLC. Post-judgment interest shall accrue on the judgment amount awarded at the rate of 0.12 % from the date of entry of judgment.

Case 1:11-cv-02557-CMA-CBS Document 97 Filed 04/15/13 USDC Colorado Page 2 of 2

IT IS FURTHER ORDERED that Plaintiff shall have its costs by the filing of a Bill of Costs with the Clerk of the Court within ten days of the entry of this Order.

DATED at Denver, Colorado this 15th day of April, 2013. FOR THE COURT: JEFFREY P. COLWELL, CLERK

APPROVED BY:

By: s/Sandra Hartmann Sandra Hartmann, Deputy Clerk

CHRISTINE M. ARGUELLO United States District Judge

2

 
 Case 1:11-cv-02557-CMA-CBS Document 98 Filed 04/15/13 USDC Colorado Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Christine M. Arguello
Civil Action No. 11-cv-02557-CMA-CBS EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. BEVERAGE DISTRIBUTORS COMPANY, LLC,
Defendant.
AMENDED FINAL JUDGMENT
In accordance with the orders filed during the pendency of this case, and pursuant to Fed. R. Civ. P. 58(a), the following Final Judgment is hereby entered.
Commencing on April 8, 2013, this action was tried before a jury of ten duly sworn to try the issues herein with U.S. District Judge Christine M. Arguello presiding. On April 12, 2013, the jury rendered its verdict:
1. Plaintiff EEOC proved, by a preponderance of the evidence, the three elements of claims of disability discrimination;
2. Plaintiff EEOC is awarded economic damages (back pay) in the amount of $29,543.25.
Accordingly, IT IS ORDERED that judgment is entered in favor of Plaintiff Equal Employment Opportunity Commission and against Defendant Beverage Distributors Company, LLC. Post-judgment interest shall accrue on the judgment amount awarded at the rate of 0.12 % from the date of entry of judgment.

Case 1:11-cv-02557-CMA-CBS Document 98 Filed 04/15/13 USDC Colorado Page 2 of 2

IT IS FURTHER ORDERED that Plaintiff shall have its costs by the filing of a Bill of Costs with the Clerk of the Court within ten days of the entry of this Order.

DATED at Denver, Colorado this 15th day of April, 2013. FOR THE COURT: JEFFREY P. COLWELL, CLERK

APPROVED BY:

By: s/Sandra Hartmann Sandra Hartmann, Deputy Clerk

CHRISTINE M. ARGUELLO United States District Judge

2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Christine M. Arguello
Civil Action No. 11-cv-02557-CMA-CBS EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff, v. BEVERAGE DISTRIBUTORS COMPANY, LLC,
Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR JUDGMENT AS A MATTER OF LAW AND MOTION FOR INJUNCTIVE RELIEF
This matter is before the Court on Plaintiff Equal Employment Opportunity Commission’s  (“EEOC”)  Motion for Judgment as a Matter of Law on Defendant’s Failure-to-Mitigate Defense (Doc. # 104) and Motion for Injunctive Relief (Doc. # 105). Both motions are ripe for the Court’s review.
I. BACKGROUND EEOC brought this enforcement action against Defendant Beverage Distributors Company,  LLC  (“Beverage  Distributors”)  on  behalf  of  Mike  Sungaila. EEOC alleged that Beverage Distributors discriminated against Mr. Sungaila in violation of the Americans with Disabilities  Act  (“ADA”)  when  it  withdrew  its  conditional  offer  of   employment as a Night Warehouse Loader upon being informed that he is legally blind. This case was tried to a jury in April of 2013. On April 12, 2013, the jury returned its verdict by completing a special verdict form. The jury determined that EEOC proved

by a preponderance of the evidence that Beverage Distributors withdrew its conditional offer of employment and/or denied employment to Mr. Sungaila because of his disability and awarded back pay in the amount of $132,347.00. However, the jury reduced that award by $102,803.75 because it determined that Beverage Distributors proved by a preponderance that Mr. Sungaila failed to make reasonable efforts to reduce his damages for loss of back pay. (Doc. # 96.) The Court entered judgment on the verdict on April 15, 2013, awarding $29,543.25 in damages. (Doc. # 98.)
EEOC now moves for judgment as a matter of law alleging that there was insufficient evidence for the jury to consider Beverage Distributor’s failure-to-mitigate defense and, therefore, the damage award should be reinstated to award the total back pay amount. In the alternative, EEOC asks this Court to consider the jury’s award of back pay as an advisory opinion and award back pay in its discretion. (Doc. # 104.) EEOC also moves for various forms of injunctive relief. (Doc. # 105.)
II. THE ADA At trial, the jury determined that EEOC proved that Beverage Distributors violated the ADA by withdrawing its offer of employment because of Mr. Sungaila’s disability. Remedies for such a violation are those remedies available under Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. §§ 2000e–4, 2000e–5, 2000e–6, 2000e–8, and 2000e–9); Olds v. Alamo Group (KS), Inc., 889 F. Supp.  447,  449  (D.  Kan.  1995).    Available  remedies  include,  but  are  “not  limited  to,   reinstatement . . . , with or without back pay . . . , or any other equitable relief as the court  deems  appropriate.”    42  U.S.C.  §  2000e–5(g)  (“Interim  earnings  or  amounts  
2

earnable with reasonable diligence by the person or persons discriminated against shall operate  to  reduce  the  back  pay  otherwise  allowable.”);;  E.E.O.C. v. Sandia Corp., 639 F.2d 600, 627 (10th Cir. 1980).
III. FAILURE-TO-MITIGATE DEFENSE A. STANDARD OF REVIEW
A party may make a renewed motion for judgment as a matter of law within twenty-eight days of the entry of judgment. See Fed. R. Civ. P. 50(b). A movant is entitled to judgment as a matter of law only if the evidence would not permit a reasonable jury to find in the non-movant’s favor. See Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1268 (10th Cir. 2000); see also Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1241 (10th Cir. 1999) (judgment  as  a  matter  of  law  “is  warranted   only if the evidence points but one way and is susceptible to no reasonable inferences supporting  the  party  opposing  the  motion”)  (internal  quotations  omitted).   Although the court must view the evidence in a light favorable to the non-movant, the court should not re-weigh the evidence, judge witness credibility, or challenge the factual conclusions of the jury. Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442, 1450 (10th Cir. 1997), overruled on other grounds by TW Telecom Holdings Inc., v. Carolina Internet Ltd., 661 F.3d 495 (10th Cir. 2011). B. DISCUSSION
EEOC first contends that the Court erred in allowing the jury to consider Beverage Distributor’s failure-to-mitigate defense because there was insufficient evidence to show that (1) there were jobs available, and (2) there were substantially
3

comparable jobs.1 Because the Court agrees, it does not reach EEOC’s alternative
argument.
“The  purpose  of  a  back  pay  award  is  to  make  the  employee  whole—i.e., restore
the economic status quo that would have obtained but for the wrongdoing on the part of
the  employer  .  .  .  .”    Aguinaga v. United Food & Commercial Workers Int’l Union, 993
F.2d 1463, 1473 (10th Cir. 1993) (citing Bowen v. United States Postal Serv., 459 U.S.
212, 222–23 (1983); NLRB v. J.H. Rutter–Rex Mfg. Co., 396 U.S. 258, 263 (1969)).
“The remedy of back pay does not constitute a windfall to plaintiff, nor does it award
damages based on some amorphous inherent value of her constitutional right to equal
protection.” Cunico v. Pueblo Sch. Dist. No. 60, 917 F.2d 431, 443-44 (10th Cir. 1990)
(internal citations omitted). Although no award can fully compensate a plaintiff for his
personal right to equal protection once denied, the award of back pay corresponds most
accurately to the injury suffered. Id. (internal citation omitted).
1 Beverage Distributors argues that EEOC did not preserve its Rule 50 motion with regard to whether there was sufficient evidence that the alternative jobs were substantially similar. “As a general rule, a defendant’s motion for directed verdict made at the close of the plaintiff’s evidence is deemed waived if not renewed at the close of all the evidence; failure to renew that motion bars consideration  of  a  later  motion  for  judgment  n.o.v.”    Karns v. Emerson Elec. Co., 817 F.2d 1452, 1455 (10th Cir. 1987) (citing cases); see also 9B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2536 (3d ed. 2013)  (“It  is  thoroughly  established that the sufficiency of the evidence is not reviewable on appeal unless a motion for judgment as a matter of law was made in the trial court. Indeed a motion at the close of plaintiff’s case will not do unless it is renewed at the close of all the  evidence.”).    At  the  close  of  evidence,  EEOC   moved  for  judgment  as  a  matter  of  law,  arguing  that  “there  has  been  absolutely  nothing  to  show   there  was  a  single  job  available  that  Mr.  Sungaila  was  qualified  for  and  could  have  applied  for.”     In ruling on this motion, the Court addressed both the availability of the positions and whether they were comparable. Therefore, EEOC preserved this issue for review. See Davoll v. Webb, 194 F.3d 1116, 1136 (10th Cir. 1999) (looking at counsel’s argument and district court’s ruling to determine if the court can infer a party adequately objected to and therefore preserved the issue).
4

Employees claiming entitlement to back pay and benefits are required to make reasonable efforts to mitigate damages. Sandia Corp., 639 F.2d at 627. Once back pay and benefits have been awarded, the burden is on the employer to show that the claimant did not exercise reasonable diligence in mitigating his or her damages. Id. To satisfy this burden, the employer must establish that: (1) there were suitable positions available which the claimant could have discovered and for which he or she was qualified, and (2) the claimant failed to use reasonable diligence in seeking such positions. Spulak v. K Mart Corp., 894 F.2d 1150, 1158 (10th Cir. 1990); Sandia Corp., 639 F.2d at 627 (citing United States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 937 (10th Cir. 1979)); see also Whatley v. Skaggs Companies, Inc., 707 F.2d 1129, 1138 (10th Cir. 1983), cert. denied, 464 U.S. 938, 104 S.Ct. 349, 78 L.Ed.2d 314 (1983); Eslinger v. U.S. Cent. Credit Union, 866 F. Supp. 491, 499 (D. Kan. 1994). Plaintiff must make only reasonable, good faith efforts to mitigate damages and is not held to the highest standards of diligence. Lee Way Motor Freight, 625 F.2d at 937.
Mr. Sungaila began working as a landscaper approximately one week after having his offer rescinded by Beverage Distributors. Beverage Distributors argued at trial that Mr. Sungaila failed to mitigate his damages by not pursuing another position with similar pay to the Night Warehouse Loader position with its company. EEOC contends, however, that Beverage Distributors did not present sufficient evidence to permit the jury to reduce back pay by $102,803.75. (Doc. # 104, at 3.) In response, Beverage Distributors points to evidence elicited from its expert, Dr. Robin Cook, and
5

in particular, her testimony regarding the  Bureau  of  Labor  Statistics  (“BLS”) statistics
that there are 10,000 warehouse positions. (Doc. # 110, at 6.)
Dr. Cook’s expert testimony focused on her opinion that Mr. Sungaila could not perform the essential job functions of the Night Warehouse Loader position.2
With regard to the mitigation of damages issue, Dr. Cook opined that:
Mr. Sungaila’s earning potential was not diminished;
in the Denver/Aurora area, people holding driver helper positions earned a mean wage of $12.53 per hour, which was similar to the compensation Mr. Sungaila earned as a Driver’s Helper3;
based on Mr. Sungaila’s job history and experience, it was reasonable to conclude he could have earned the mean wage;
according to BLS, approximately 34 percent of unskilled workers would find work within 5 weeks of job separation and 68 percent would be employed after 14 weeks;
the unemployment rate in the Denver/Parker area is lower than the national average and the average for the State of Colorado;
according to BLS there were approximately 10,000 storage-laborer and driverhelper jobs4 but most of those positions require the worker to drive a forklift, which Mr. Sungaila cannot do;
assuming he was capable of the work, Mr. Sungaila could have found another warehouse position 9 months after his separation from Beverage Distributors;
2 The jury found that Mr. Sungaila could perform the essential functions of this position. 3 Mr. Sungaila held a Driver’s Helper position before Beverage Distributors requested that he apply for the Night Warehouse Loader position. The Driver’s Helper position was eliminated. 4 Although the parties dispute whether these positions were located in the Denver/Aurora Metropolitan Area or throughout the state of Colorado, Dr. Cook’s testimony never defined the location of these positions.
6

assuming that Mr. Sungaila found replacement employment making compensation comparable to what he would have earned as a Night Warehouse Loader, his lost wages would have been approximately $10,000;
that she did not consider Mr. Sungaila’s vision loss in her analysis of his wage loss;
that she had not identified a single open position that Mr. Sungaila was qualified for.
The Court rejects Beverage Distributors’ assertion that Dr. Cook’s testimony
provided sufficient evidence that Mr. Sungaila did not mitigate his damages because all
that was required was evidence that  there  were  positions  in  “existence.”    (Doc.  #  110
at 6.) First, the only Tenth Circuit case that Beverage Distributors cites for this
proposition is a non-binding order and judgment. Goodman v. Fort Howard Corp., 1994
U.S. App. LEXIS 17507 (10th Cir. July 18, 1994) (order and judgment). Yet, in that
same case, and indeed in all other cases this Court has found on the issue, the Tenth
Circuit routinely requires that employers prove not a position’s existence, but its
availability.5 To give vitality to the principle of making an employee whole through
5 See id. (defendant not entitled to instruction stating that plaintiff’s failure to seek full-time employment could constitute unreasonable diligence because it failed to produce any evidence indicating that suitable positions were available which plaintiff could have discovered and for which he was qualified); see also McClure v. Indep. Sch. Dist. No. 16, 228 F.3d 1205, 1214 (10th Cir. 2000) (employer must show positions are available); Garcia v. Wal-Mart Stores, Inc., 209 F.3d 1170, 1175 (10th Cir. 2000) (court did not err in refusing to instruct the jury on mitigation where defendant offered no evidence that appropriate jobs were available to someone in plaintiff’s condition with her educational and skill level, but instead merely presented the evidence she could return to sedentary light-duty or self-paced jobs); Wilson v. Union Pac. R. Co., 56 F.3d 1226, 1232 (10th Cir. 1995) (plaintiff’s general failure to seek employment for eighteen months before trial does not alone suffice to justify a mitigation instruction; the defendant must also show that appropriate jobs were available); Aguinaga, 993 F.2d at 1474 (district court did not abuse its discretion in refusing to allow defendant to interview class members regarding their attempts to mitigate damages where defendant asserted no evidence that suitable positions were available); Spulak, 894 F.2d at 1158 (employer must show positions
7

back pay, yet requiring that employee to take responsibility for ameliorating his
damages, an employer should present some evidence that positions were available and
could have been obtained by the employee. Indeed, the Tenth Circuit and district courts
within this circuit have likewise concluded that availability of a position requires some evidence that a plaintiff could obtain that position.6 Dr. Cook specifically testified that
she had not identified a single open position that Mr. Sungaila was qualified for.
Therefore, there is no evidence showing that these positions were available—i.e., no
evidence that Mr. Sungaila could have obtained such a position so he could mitigate his
damages. Dr. Cook testified only that the BLS states that warehouse and driver-helper
positions existed, but offered no testimony regarding how many of those positions were
currently occupied by other workers and, therefore, unavailable to Mr. Sungaila.
Beverage Distributors points to no evidence that any of the positions Dr. Cook
testified to were accepting applications and instead asks the Court to conclude that it
was  “reasonable  for  the  jury  to  infer  that  some  of  those  jobs  had  openings  between  
March  2008  and  September  2009.”    (Doc.  #  110,  at  7.)    This  explanation  points  to  
another flaw in the evidence presented: there was no testimony as to the timeframe
are available); Sandia Corp., 639 F.2d at 627 (employer did not submit any evidence indicating that other comparable positions were available to claimants). 6 Compare McClure, 228 F.3d at 1214 (district court erred in determining that plaintiff failed to mitigate damages because defendant did not establish that positions were available to plaintiff where she applied for positions within driving distance but received no offers); Ross v. Unified Sch. Dist. No. 231, Johnson Cnty., Kan., CIV. A. 91-2302-GTV, 1993 WL 62442 (D. Kan. Feb. 16, 1993) (defendant failed to show any likelihood that plaintiff could have obtained any of the available positions and testimony that there were many applicants for those positions tended to show plaintiff would not have been successful had he applied); with Huffman, 883 F. Supp. at 1477 (defendant proved positions were available by offering newspaper want ads for various positions for which plaintiff was qualified).
8

in which the BLS stated that these positions existed. See Huffman v. Ace Elec. Co., Inc., 883 F. Supp. 1469, 1477 (D. Kan. 1995) (defendant did not prove plaintiff failed to mitigate damages prior to January 1993 because evidence of want ads during that timeframe consisted of positions unavailable to plaintiff). Moreover, given the lack of testimony regarding the availability of these positions coupled with the lack of evidence that Mr. Sungaila would qualify for such positions or that they were comparable to the Night Warehouse Loader position, discussed infra, the Court finds that inferring that the positions were open during the applicable timeframe is not reasonable. Instead, Beverage Distributors’ reliance on Dr. Cook’s vague testimony impermissibly requires the Court to employ cascading inferences in an attempt to support the jury verdict. See Brown v. Reardon, 770 F.2d 896, 904 (10th Cir.  1985)  (evidence  cannot  be  “comprised   of mere inference upon inference, such as would dictate a jury verdict based on pure speculation”). For these reasons, there was not sufficient evidence to allow the jury to consider Beverage Distributors’ failure-to-mitigate defense.
Similarly, the Court finds inadequate Beverage Distributors’ evidence that these warehouse jobs were suitable positions for which Mr. Sungaila was qualified. See Spulak, 894 F.2d at 1158. Despite Beverage Distributor’s assertion to the contrary, courts regularly consider the salary, benefits, promotional opportunities, and commuting distance of available positions to determine whether they are suitable or substantially comparable to the position the discriminatee lost.7
7 See, e.g., DerKevorkian v. Lionbridge Technologies, Inc., 316 F. App’x 727, 740 (10th Cir. 2008) (district court’s decision to preclude jury from considering whether plaintiff failed to mitigate by refusing a less desirable job was not error, except that plaintiff’s damage was the
9

The testimony at trial established that the Night Warehouse Loader position was
full-time, paid $13.68-22.568 per hour, included benefits such as insurance, paid leave,
and 401(k), and was within a reasonable commute from Mr. Sungaila’s home.
Dr. Cook testified that in 2011, the mean salary for a driver helper position was
$12.53 per hour in the Denver-Aurora Metropolitan area. While Beverage Distributors
contends that Dr. Cook testified that the 10,000 positions existed in the Denver/Aurora
Metropolitan Area, the only testimony regarding that area was concerning the mean
salary for warehouse positions, not the location of the 10,000 jobs. Beverage
Distributors never established the location of these positions at trial to show they were
in commuting distance from Mr. Sungaila.9 Defense counsel asked Dr. Cook to
assume that Mr. Sungaila’s replacement employment would have paid a salary
comparable to what he would have been paid by Beverage Distributors. However,
loss of her green card, which the alternative position would have enabled her to obtain); W. Trading Co., Inc., 291 F.R.D. at 620 (“Although  the  hourly  rate  was  higher  in  the  temporary   position . . . the irregularity of hours, lack of benefits, and instability of the work makes the overall  compensation  not  comparable.”);;  Eichenwald v. Krigel’s, Inc., 908 F. Supp. 1531, 1568 (D. Kan. 1995) (defendants did not present any evidence that there were jobs with equivalent duties and pay available); Ramirez v. Bravo’s Holding Co., LLC, CIV. A. 94-2396-GTV, 1995 WL 649952 (D. Kan. Oct. 5, 1995) (same); see also Sellers v. Delgado Comm. College, 839 F.2d 1132,  1138  (5th  Cir.1988)  (“Comparable  employment  .  .  .  affords  virtually  identical  promotional   opportunities, compensation, job responsibilities, working conditions, and status as the position from which the claimant has been discriminatorily  terminated.”).   8 Testimony at trial established that Mr. Sungaila would have to undergo a probationary period for three months, during which he would make $12 per hour. Thereafter, his wages would be determined by a collective bargaining agreement, which increases his wages as he gains seniority. Therefore, had Mr. Sungaila remained in his position, at the time of trial, he would be earning $22.56 per hour. 9 Dr. Cook’s Expert report states that these positions exist within the State of Colorado. (Doc. # 60-2.) However, because the report was not admitted at trial, the Court cannot rely on this fact to infer that these positions were located within Colorado rather than throughout the United States.
10

Beverage Distributors never submitted evidence of what the salary was for a replacement position other than the mean salary, which was well below that paid by Beverage Distributors. Nor did it present evidence that any of these positions offered benefits or were for full-time rather than part-time work. See Todaro v. Siegel Fenchel & Peddy, P.C., 2009 WL 3150408, *4 (E.D.N.Y. Sept. 25, 2009) (failure to accept parttime work in place of full-time did not cut off eligibility for back pay); Apple Supermarkets v. Local 338, 1999 WL 596273, *4 (S.D.N.Y. Aug. 9, 1999) (part-time work is not comparable to full-time even if the hourly rate of pay is the same). Accordingly, Beverage Distributors offered no evidence that a suitable position was available. See E.E.O.C. v. W. Trading Co., Inc., 291 F.R.D. 615, 620 (D. Colo. 2013) (granting a Rule 50 motion because defendant failed to prove that a comparable position existed); see also Baty, 172 F.3d at 1241 (non-movant entitled only to reasonable inferences).
Similarly, Defense counsel asked Dr. Cook to assume that Mr. Sungaila was capable of performing the Night Warehouse Loader position but offered no evidence of job duties and qualifications for those positions, other than that the majority of the positions required a worker to drive a fork lift, which Mr. Sungaila could not do due to his sight limitations. Therefore, Beverage Distributors did not establish that Mr. Sungaila was qualified for those positions. See Garcia v. Wal-Mart Stores, Inc., 209 F.3d 1170, 1175 (10th Cir. 2000) (defendant offered no evidence that appropriate jobs were available for someone in plaintiff’s condition or with her educational and skill level, but instead merely presented the evidence she could return to sedentary light-duty or selfpaced jobs); Volkman v. United Transp. Union, 826 F. Supp. 1253, 1258 (D. Kan. 1993)
11

(a worker is not required to take anything other than substantially equivalent employment determined by a worker’s skill, qualifications, age, and personal limitations); cf. Huffman, 883 F. Supp. at 1477 (defendant proved positions were available by offering newspaper want ads of various positions plaintiff was qualified, but limited the time frame in which plaintiff could not recover to after January 1993 because prior positions required skills plaintiff did not possess).
Accordingly, the Court concludes as a matter of law that Defendant failed to present evidence to support the jury’s reduction of the back pay damages award. Because the jury determined the amount of back pay available to Plaintiff in the absence of mitigation to be $132,347.00, the Court finds that there is no need for a new trial on back pay damages. See Fed. R. Civ. P. 50(c) (if Court grants a renewed motion for judgment as a matter of law under Rule 50(b), it must then determine whether a new trial is necessary); (Doc. # 96 at 2).
IV. INJUNCTIVE RELIEF EEOC also asks that this Court award (1) prejudgment interest on the back pay damages award, (2) reinstatement and/or front pay, (3) a tax penalty offset, and (4) injunctive relief. (Doc. # 105.) A. PRE-JUDGMENT INTEREST ON BACK PAY AWARD The award of pre-judgment  interest  “rests  firmly  within  the  sound  discretion  of   the trial  court.”   Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1287 (10th Cir. 2002); see also Zuchel v. City and County of Denver, 997 F.2d 730, 746 (10th Cir. 1993). “A  two-step  analysis  governs  the  determination  of  such  an  award.”    
12

Caldwell, 287  F.3d  at  1286.    In  exercising  its  discretion,  “[t]he  district  court  must  first   determine whether the award of pre-judgment interest will serve to compensate the injured party. Second, even if the award of pre-judgment interest is compensatory in nature, the district court must still determine whether the equities would preclude the award of pre-judgment  interest.”   Id.
The Court finds that awarding pre-judgment interest is compensatory rather than punitive. “The  rule  in  this  circuit  is  that  pre-judgment interest is generally available to compensate the wronged party for being deprived of the monetary value of his loss from the time of the loss to the payment of the judgment.” Id. (internal quotation omitted). An award of pre-judgment interest places Mr. Sungaila in the position he would have been in and compensates him for the time that he has been denied the income he would have earned but for his wrongful termination. See Reed v. Mineta, 438 F.3d 1063,  1066  (10th  Cir.  2006)  (“prejudgment  interest  helps  to  make  victims  of   discrimination whole and compensates them for the true cost of money damages they incurred”).
The Court rejects Beverage Distributors’ assertion that pre-judgment interest would  be  a  “windfall”  to  Mr.  Sungaila  because he received social security disability insurance  (“SSDI”)  benefits after his separation from Beverage Distributors. “The   collateral source rule allows a plaintiff to seek full recovery from a tortfeasor even though an independent source has compensated the plaintiff in full or in part for the loss.”   Green v. Denver & Rio Grande Western RR Co., 59 F.3d 1029, 1032 (10th Cir. 1995). Thus, the Court disagrees that it should deny pre-judgment interest on this
13

basis. That result would constitute a windfall to a defendant, who would benefit from the
availability of a plaintiff’s income from a collateral source.10
The  Tenth  Circuit  “has  adopted  a  preference,  if  not  a  presumption,  for  pre-
judgment  interest.”    United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219,
1236 (10th Cir. 2000); FDIC v. UMIC, Inc., 136 F.3d 1375, 1388 (10th Cir.),
(“prejudgment interest should normally be awarded  on  successful  federal  claims”), cert.
denied, 525 U.S. 962, 119 S. Ct. 404, 142 L. Ed. 2d 328 (1998). Following this
presumption, the Court finds that an award of pre-judgment interest is compensatory
and would not be inequitable.
Further, pursuant to the Tenth Circuit in Caldwell, the calculation of prejudgment
interest is within the court’s discretion. 287 F.3d at 1287–88; see also Guides, Ltd. v.
Yarmouth Group Prop. Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002); Kleier
Advertising, Inc. v. Premier Pontiac, Inc., 921 F.2d 1036, 1042 n. 4 (10th Cir. 1991)
(“Because  there  is  no  federal  statutory  interest  rate  on  pre-judgment interest, the rate
imposed will be left to the trial court’s  discretion.”)   Colorado law also provides for an
10 See Sandia Corp.,  639  F.2d  at  625  (finding  it  “unfair”  to  give  the  employer  the  benefit  of   another collateral source, unemployment compensation); see also Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160 (6th Cir. 1996) (unemployment benefits were collateral source benefits, and thus should not have been deducted from the jury’s award of back pay for discrimination); Jackson v. City of Cookeville, 31  F.3d  1354,  1359  (6th  Cir.  1994)  (“Because  the   victim rather than the perpetrator of discrimination should profit, courts that have considered this question have held that pension payments from a collateral source are not to be deducted from an Age Discrimination  in  Employment  Act  award.”);;  Doyne v. Union Elec. Co., 953 F.2d 447, 451-52 (8th Cir. 1992) (collateral source payments should not have been deducted from jury verdict in discrimination case); EEOC v. O’Grady, 857 F.2d 383, 389 (7th Cir. 1988) (affirming the district court’s refusal to offset pension benefits from an age discrimination award); Structural Metals, Inc. v. S & C Elec. Co., SA-09-CV-984-XR, 2013 WL 870084 (W.D. Tex. Mar. 7, 2013) (declining to take into account collateral source payments when calculating prejudgment interest).
14

award of prejudgment interest to the prevailing party. Where the action does not involve
personal injury, the interest calculation is governed by Colo. Rev. Stat. § 5–12–
102(1)(b), pursuant to which the interest rate is set at eight percent per annum
compounded  annually  “after  [the  moneys]  are  wrongfully  withheld  or  after  they  become  
due  to  the  date  of  payment  or  to  the  date  judgment  is  entered,  whichever  first  occurs.”
In its discretion, the Court will award interest consistent with Colorado’s pre-
judgment interest rate of 8%. See Allison v. Bank One-Denver, 289 F.3d 1223, 1244
(10th Cir. 2002) (affirming an 8% rate for pre-judgment interest); Caldwell, 287 F.3d at
1287-88 (same); Pavicich v. Aetna Life Ins. Co., No. 09-CV-00818-CMA-KMT, 2010 WL
3854733 (D. Colo. Sept. 27, 2010). While Beverage Distributors points out that interest
rates have been at historic lows during this timeframe, had Mr. Sungaila not been
released from his position, he could have invested and garnered a rate of return much
higher than the 0.49% rate Beverage Distributors advocates for. Accordingly, the Court
will set a pre-judgment interest rate of 8% per annum, compounded annually, to apply to the back pay award of $132,347. See Reed, 438 F.3d at 1067; (Doc. # 105-3).11
11 The Court rejects Beverage Distributors’ argument that pre-judgment interest should not accrue for more than six months prior to the lawsuit filing date because the EEOC took an “unreasonable  length  of  time  . . . to complete its investigation . . . .”    (Doc.  #  111 at 3.) “As  a   general rule, district courts should calculate interest on back pay and past damages based on the  date  of  the  adverse  employment  action.”    Reed, 438 F.3d at 1066 (citing Thomas v. Texas Dep’t of Crim. Justice, 297 F.3d 361, 372 (5th Cir. 2002)). Beverage Distributors cites to no authority stating that this Court should reduce an award where an agency’s investigation takes longer than the time specified in its regulations. Moreover, while 20 C.F.R. § 1614.108(e) states that EEOC should complete investigations within 180 days, that timeframe can be voluntarily extended. Limiting pre-judgment interest based on an assessment of the reasonableness of the timeliness of an agency investigation would inappropriately punish a claimant and undermine the purpose of pre-judgment interest as a means of making a claimant whole. See Reed, 438 F.3d at 1066.
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B. REINSTATEMENT AND/OR FRONT PAY The central purpose of the ADA is to make the plaintiff whole—to restore the
plaintiff to the economic position the employee would have occupied but for the wrongful discrimination of the employer. Davoll v. Webb, 194 F.3d 1116, 1143 (10th Cir. 1999); see also Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1338 (11th Cir. 1999). Reinstatement is the preferred remedy under the ADA, but front pay in lieu of reinstatement may be appropriate where discord and antagonism between the parties would render reinstatement ineffective as a make-whole remedy. Davoll, 194 F.3d at 1143 n.19. The district court may consider all evidence presented at trial in formulating the proper award. See id. at 1144 (citing EEOC v. General Lines, Inc., 865 F.2d 1555, 1562 (10th Cir. 1989)).
Beverage Distributors opposes reinstatement because it believes that Mr. Sungaila’s  current  position  places  him  “in  as  good  a  financial  position  as  he  would   be  in  a  Night  Warehouse  Loader  position”  and  allows  him  “better  work  hours  than  he   would  have  working  the  night  shift.”    (Doc.  #  111,  at  6.)    EEOC  refutes  these  statements by arguing that Mr. Sungaila’s income is not equivalent to the Night Warehouse Loader position and that working during the day further requires him to pay for daycare. (Doc. # 113, at 6) (also noting that Beverage Distributors’ argument takes into account collateral source income). Beverage Distributors offered no evidence at trial that Mr. Sungaila’s current position is financially comparable to the Night Warehouse position and in fact, as discussed supra, trial testimony demonstrated the opposite. The Court is also leery of accepting counsel’s arguments in lieu of evidence. More to
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the point, Beverage Distributors does not argue that its relationship with Mr. Sungaila would make reinstatement untenable. Cf. E.E.O.C. v. Prudential Fed. Sav. & Loan Ass’n,  763  F.2d  1166,  1172  (10th  Cir.  1985)  (“Reinstatement  may  not  be  appropriate,   however, when the employer has exhibited such extreme hostility that, as a practical matter,  a  productive  and  amicable  working  relationship  would  be  impossible.”)    Indeed, at trial Beverage Distributors representatives routinely testified that they held Mr. Sungaila in high regard. Thus, reinstatement is appropriate in this case and Beverage Distributors must reinstate Mr. Sungaila to the Night Warehouse Loader position with retroactive seniority. This disposition best facilitates the remedial purposes of the ADA and is in accord with the jury’s finding that Mr. Sungaila was able to perform the essential functions of the position with or without reasonable accommodations. Because the Court orders reinstatement, it denies EEOC’s request for front pay at this time. See Fitzgerald v. Sirloin Stockade, Inc., 624 F.2d 945, 957 (10th Cir 1980) (trial court has discretion to reinstate employee rather than award front pay); see further Dilley, 296 F.3d at 968 (court need not analyze whether a claimant mitigated his damages when it orders reinstatement). C. TAX PENALTY OFFSET
EEOC requests a tax penalty offset, arguing that the damages awarded will be paid during one tax year, subjecting Mr. Sungaila to a higher tax rate and, thus, a higher tax penalty. Beverage Distributors argues that such an offset is inappropriate because this is a typical single plaintiff discrimination case.
17

District  courts  “ha[ve]  wide  discretion  in  fashioning  remedies  to  make  victims  of   discrimination  whole.”    Sears v. Atchison, Topeka & Santa Fe Ry., Co., 749 F.2d 1451, 1456 (10th Cir. 1984). In Sears, the  Tenth  Circuit  stated  that  although  “[a]  tax   component may not be appropriate  in  a  typical  Title  VII  case,”  Sears presented special circumstances, including the case’s protracted nature and the tax regulations at the time. Id. Taken together, these circumstances would result in the class members being taxed at the highest rate. Id. Conversely, in Blim v. Western Electric Co., Inc., the Tenth Circuit held that awarding a tax offset was inappropriate because at the time, tax laws contained five-year averaging provisions that would eliminate almost the entire tax penalty that would result from a lump sum payment. 731 F.2d 1473, 1480 (10th Cir 1984).
The Court is not persuaded by Beverage Distributors’ argument that tax offsets are inappropriate in single plaintiff cases. But see E.E.O.C. v. RadioShack Corp., No. 10-CV-02365-LTB-BNB, 2012 WL 6090283 (D. Colo. Dec. 6, 2012) (awarding a tax offset in a single plaintiff case). Instead, Sears and Blim emphasize the plaintiff’s ability to reduce the tax penalty through income averaging provisions. Since those decisions, income averaging was eliminated from the tax code as of the Tax Reform Act of 1986, 26 U.S.C. § 1305 (repealed 1986). Therefore, Mr. Sungaila would be unable to allot his damages award over a multiple-year period for tax purposes. The result is that Mr. Sungaila will be placed into a higher tax bracket. A tax offset would simply restore Mr. Sungaila to the position he would have been but for his wrongful separation from
18

Beverage Distributors. To determine the tax consequences, however, a hearing is necessary. D. INJUNCTIVE RELIEF
Finally, EEOC asks for injunctive relief in the form of an order permanently enjoining Beverage Distributors from further discrimination, and requiring training for employees, revisions to its policies, updates to its job postings, notice posting, and reporting and compliance review.
As a threshold matter, the Court disagrees with Beverage Distributors’ assertion that EEOC waived its request for injunctive relief by failing to include it in the Final Pretrial  Order.    In  the  order,  EEOC  stated  that  it  “seeks  reinstatement  and  front  pay  and   other equitable relief due to Defendant’s  discriminatory  conduct.”    (Doc.  #  49 at 4) (emphasis added). Section 2000e-5 of Title VII, which has been incorporated into the ADA, discusses the equitable relief available to victims of discrimination, including an injunction. 42 U.S.C. § 2000e-5(g). Therefore, EEOC has not waived its right to request the injunctive relief at issue here.
“[T]he  purpose  of  injunctive  relief  is  to  prevent  future  violations.”   E.E.O.C. v. General Lines, Inc., 865 F.2d 1555, 1565 (10th Cir. 1989) (citing United States v. W.T. Grant Co., 345 U.S. 629 (1953)). “The  likelihood of future violations is inferred from the totality  of  the  circumstances,  including  the  commission  of  past  illegal  conduct.” Id. To  obtain  such  relief,  “the  moving  party  must  demonstrate  that  there  exists  some   cognizable danger of recurrent violations, something more than a mere possibility, which  serves  to  keep  the  case  alive.”   Id. (citing W.T. Grant Co., 345 U.S. 629).
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“A court has considerable discretion in fashioning an appropriate equitable remedy based upon the particular facts of a case, may rely on all the evidence adduced at trial and  draw  all  reasonable  inferences  from  that  evidence.”    E.E.O.C. v. Wal-Mart Stores, Inc., 11 F. Supp. 2d 1313, 1330 (D.N.M.) aff’d, 202 F.3d 281 (10th Cir. 1999) (internal citations and quotations omitted); see also Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1231 (10th Cir. 1997).
At trial, the testimony of Beverage Distributors managers and human resources professionals demonstrated a lack of sufficient knowledge about the ADA, its interactive process, and the requirement that reasonable accommodations be provided to employees. Moreover, Beverage Distributors’ Employee Handbook contains an inaccurate statement of the law: it states that Beverage Distributors will provide reasonable  accommodations,  “unless  doing  so  would  result  in  an  undue  hardship  .  .  .  or create the risk of harm to the health or safety of the applicant, associate, or others.”     (Doc. # 105-1, at 4); Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 569 (1999) (“direct   threat”  is defined as  “a  significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation”) (citing 42 U.S.C. § 12111(3) (emphasis added)). The handbook is also unclear on Beverage Distributor’s policies regarding how an employee should request accommodations under the ADA.
Beverage Distributors fails to address EEOC’s specific arguments regarding whether injunctive relief is appropriate and instead objects to the relief requested because EEOC offers no evidence of similar treatment of other employees. However, injunctive relief is not limited to cases in which there is a pattern or practice of
20

discrimination. See, e.g., EEOC v. Wal-Mart Stores, Inc., 202 F.3d 281 (10th Cir. 1999) (affirming district court’s grant of injunctive relief in a single plaintiff case). Instead, the apt inquiry is not whether EEOC proved that other employees have been discriminated against; it is whether the evidence presented at trial demonstrates a danger of recurrent violations. See id. Therefore, Beverage Distributors’ legal arguments do not satisfy the Court’s concern that without specific training on the ADA, a similar incident will be repeated.
The jury verdict and testimony exposing a lack of adequate ADA training establishes that Beverage Distributors intended to do the act which had the discriminatory effect and there is a cognizable danger of a recurrent violation. See Walmart, 11 F. Supp. 2d at 1330-31 (lack of adequate training creates a legitimate concern that a similar incident will happen again). Accordingly, the Court grants EEOC’s request for injunctive relief.12
V. CONCLUSION Based on the foregoing, it is ORDERED that: (1) Plaintiff EEOC’s Motion Pursuant to Fed. R. Civ. P. 50(b) for Judgment as a Matter of Law on Defendant’s Failure-to-Mitigate Defense (Doc. # 104) is GRANTED IN PART and DENIED IN PART; (2) Plaintiff EEOC’s Motion for Injunctive Relief (Doc. # 105) is GRANTED IN PART and DENIED IN PART; (3) The jury’s damages award of $29,543.25 for back pay is VACATED;
12 However, the Court does not see it necessary to permanently enjoin Beverage Distributors.
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(4) The Clerk shall enter judgment in favor of Plaintiffs in the amount of $132,347.00 for back pay, plus pre-judgment interest accruing at a rate of 8 percent per annum compounded annually from March 31, 2008, the date of Mr. Sungalia’s separation from Beverage Distributors;
(5) Mr. Sungaila shall be reinstated to the position of Night Warehouse Loader with the same seniority he would have had if he had not been terminated;
(6) The parties shall contact chambers to schedule a hearing on the determination of an appropriate tax penalty offset;
(7) Beverage Distributors shall engage an outside consultant to provide employee training and assistance in revisions to its policies, updates to its job postings, notice posting, and reporting and compliance review. Beverage Distributors shall report its compliance with this order to the Court within six months of this order. DATED: December 09 , 2013 BY THE COURT:
________________________________ CHRISTINE M. ARGUELLO United States District Judge
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 Case 1:11-cv-02557-CMA-CBS Document 142 Filed 11/01/14 USDC Colorado Page 1 of 7
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Christine M. Arguello
Civil Action No. 11-cv-02557-CMA-CBS EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff, v. BEVERAGE DISTRIBUTORS COMPANY, LLC,
Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR STAY PENDING APPEAL
This case was tried to a jury, which found that Defendant Beverage Distributors Company, LLC (“Beverage Distributors”) discriminated against Mike Sungaila when it withdrew an offer of employment upon learning that he was legally blind. Beverage Distributors now asks this Court to postpone until the Tenth Circuit rules on the appeal, the requirement that Beverage Distributors hire a consultant to provide training and other remedial services to its employees. (Doc. # 137.) Because Beverage Distributors has not met its burden, the Court declines to allow postponement of hiring a consultant.
I. BACKGROUND The U.S. Equal Employment Opportunity Commission (“EEOC”) brought this enforcement action against Beverage Distributors on behalf of Mr. Sungaila. This case was tried to a jury, and, on April 12, 2013, the jury returned a verdict finding that Beverage Distributors discriminated against Mr. Sungaila in violation of the Americans

Case 1:11-cv-02557-CMA-CBS Document 142 Filed 11/01/14 USDC Colorado Page 2 of 7
with Disabilities Act (“ADA”) when it withdrew its conditional offer of employment as a Night Warehouse Loader upon being informed that he is legally blind. The jury awarded back pay in the amount of $132,347.00, but reduced that award by $102,803.75, because it determined that Beverage Distributors proved by a preponderance that Mr. Sungaila failed to make reasonable efforts to reduce his damages for loss of back pay. (Doc. # 96.)
After considering post-trial motions, this Court reinstated the full jury award, finding that Beverage Distributors failed to present evidence to support the jury’s reduction of the back pay damages award. This Court also awarded various forms of injunctive relief, including, as relevant here, that Beverage Distributors reinstate Mr. Sungaila to the position of Night Warehouse Loader and hire an outside consultant to provide employee training and assistance in revisions to its policies, updates to its job postings, notice posting, and reporting and compliance review. (Doc. # 116.)
II. LAW AND ANALYSIS In the instant motion, Beverage Distributors requests, and the EEOC does not oppose, that this Court stay payment of the monetary judgment and reinstatement of Mr. Sungaila. Accordingly, this Court grants these requests and orders that Beverage Distributors post a supersedeas bond in the amount of $132,347.00. See Fed. R. Civ. P. 62(d); Miami Int’l Realty Co. v. Paynter, 807 F.2d 871, 873 (10th Cir. 1986) (typically, the amount of the bond will equal the amount of the judgment). Beverage Distributors also requests that this Court stay its order that Beverage Distributors hire an outside
2

Case 1:11-cv-02557-CMA-CBS Document 142 Filed 11/01/14 USDC Colorado Page 3 of 7
consultant to provide employee training. For the reasons set forth below, the Court denies this request. A. STANDARD OF REVIEW
Under Fed. R. Civ. P. 62(c), this Court may “suspend, modify, restore, or grant an injunction on terms . . . that secure the opposing party's rights” while an appeal is pending from a final judgment that grants an injunction.1 The purpose of a stay is to preserve the status quo pending appellate determination. McClendon v. City of Albuquerque, 79 F.3d 1014, 1020 (10th Cir.1996). “A stay is an intrusion into the ordinary processes of administration and judicial review, and accordingly is not a matter of right, even if irreparable injury might otherwise result to the appellant.” Nken v. Holder, 556 U.S. 418, 427 (2009) (internal citations and quotation marks omitted). It is in this Court’s discretion to grant a stay. Id. at 433. The party requesting the stay, here Beverage Distributors, “bears the burden of showing that the circumstances justify an exercise of that discretion.” Id. at 433-34.
When considering a stay pending appeal, this Court must address the following factors: (1) the likelihood of success on appeal, (2) the threat of irreparable harm absent a stay, (3) the absence of harm to opposing parties if the stay is granted, and (4) any risk of harm to the public interest. F.T.C. v. Mainstream Mktg. Servs., Inc., 345 F.3d 850, 852 (10th Cir. 2003); Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001). Where the moving party has established that the three “harm” factors tip decidedly in its favor, the “probability of success” requirement is somewhat relaxed, and
1 The parties agree that this Court’s order of injunctive relief is covered by this rule. 3

Case 1:11-cv-02557-CMA-CBS Document 142 Filed 11/01/14 USDC Colorado Page 4 of 7
is satisfied by showing questions going to the merits so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.2 Mainstream Mktg Serv., Inc., 345 F.3d at 852-53 (citations omitted). Thus, the Court will begin by addressing the three “harm” factors. B. DISCUSSION
1. Threat Of Irreparable Harm Absent A Stay Beverage Distributors argues that it will suffer irreparable harm in the absence of a stay because “even if successful on appeal, [it] will not be able to recoup the lost amount paid to a consultant, or the time and effort spent reporting its compliance to [this Court].” (Doc. # 137 at 9.) In applying the identical prong to determine whether to grant a preliminary injunction, the Tenth Circuit has warned, “To constitute irreparable harm, an injury must be certain, great, actual, and not theoretical. . . . It is also well settled that simple economic loss usually does not, in and of itself, constitute irreparable harm; such losses are compensable by monetary damages.” Schrier v. Univ. Of Co., 427 F.3d 1253, 1267 (10th Cir. 2005) (citing Heideman v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003)). Beverage Distributors fails to state, or even estimate, the costs it anticipates incurring. Nor does it address how that cost would impact the company
2 Beverage Distributors asserts the inverse of this principal is true, stating, “[W]here a moving party demonstrates a high likelihood of success on the merits, it need not present as strong of a case as to irreparable harm.” (Doc. # 137 at 9) (citing O Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 1002 (10th Cir. 2005) (hereinafter “O Centro”)). This is an example of the necessity of proper citations. First, Beverage Distributors fails to indicate that this statement of law is taken from the dissent, not the majority opinion. See O Centro, 389 F.3d at 1002 (Seymour, J., dissenting). Second, Beverage Distributors fails to indicate that the dissenter relies on a Seventh Circuit opinion, Ty, Inc. v. Jones Grp., Inc., 237 F.3d 891 (7th Cir. 2001), as support, rather than precedent that is binding on this Court.
4

Case 1:11-cv-02557-CMA-CBS Document 142 Filed 11/01/14 USDC Colorado Page 5 of 7
financially so as to establish that it would suffer a “certain, great” harm. Therefore, this element favors the EEOC.
2. Absence Of Harm To Opposing Parties If The Stay Is Granted Beverage Distributors asserts various arguments that Mr. Sungaila’s rights are protected because it intends to post a supersedeas bond and he is currently employed. However, these arguments are relevant to whether this Court should grant a stay of the monetary judgment and Mr. Sungaila’s reinstatement, which the EEOC does not oppose. Beverage Distributors puts forth no argument that the opposing parties would be harmed if this Court were to stay the requirement that Beverage Distributors hire a consultant. It is Beverage Distributors’ burden to demonstrate the stay is warranted, Nken, 556 U.S. at 433-34, and because it failed advance relevant argument, this element does not weigh in favor of a stay. 3. Risk Of Harm To The Public Interest Beverage Distributors argues that “whether a consultant is retained to review [its] internal policies—even if it affects a small number of [its] employees—will not affect the broader public. (Doc. # 137 at 10.) The Court agrees with the EEOC that the public would be served by eradicating discrimination and ensuring that applicants have a fair chance at employment. At trial, Beverage Distributors managers and human resource professionals demonstrated a lack of sufficient knowledge of the ADA, and could benefit greatly from training. Therefore, this factor weighs in favor of denying the stay.
5

Case 1:11-cv-02557-CMA-CBS Document 142 Filed 11/01/14 USDC Colorado Page 6 of 7
4. Likelihood Of Success On Appeal Based on the Court’s findings, the first three “harm” factors do not support a relaxed view of the “likelihood of success factor.” See Mainstream Mktg Serv., Inc., 345 F.3d at 852-53. Beverage Distributors make various arguments that this Court erred in awarding a tax penalty offset and determining that Beverage Distributors failed to produce evidence that Mr. Sungaila failed to mitigate his damages. However, even if Beverage Distributors’ appeal prevails on either of these issues, it would not affect this Court’s award of injunctive relief. To the extent Beverage Distributors also argues that it is likely to succeed on its claims that this Court erroneously instructed the jury, Beverage Distributors has not set forth any new evidence or argument that this Court has not previously considered. Accordingly, Beverage Distributors has not demonstrated that it is likely to succeed on appeal.
III. CONCLUSION Based on the foregoing, it is ORDERED that Defendant Beverage Distributors’ Motion for Stay Pending Appeal (Doc. # 137) is GRANTED IN PART and DENIED IN PART. It is FURTHER ORDERED that the Second Amended Judgment is STAYED to the extent it orders Beverage Distributors to reinstate Mr. Sungaila to the position of Night Warehouse Loader with the same seniority he would have had if he had not been terminated. It is FURTHER ORDERED that, upon the posting of a supersedeas bond in the amount of $132,347.00, the Second Amended Judgment is STAYED to the extent it
6

Case 1:11-cv-02557-CMA-CBS Document 142 Filed 11/01/14 USDC Colorado Page 7 of 7
orders Beverage Distributors to pay a monetary award. Beverage Distributors shall have 20 days from the date of this Order to obtain and post the bond, otherwise this portion of this Order shall become null and void and the EEOC can begin collection. It is
FURTHER ORDERED that Beverage Distributors shall report, within six months of this Order, its compliance with this Court’s December 9, 2013 Order (Doc. # 116) to engage an outside consultant to provide employee training and assistance in revisions to its policies, updates to its job postings, notice posting, and reporting and compliance review.
DATED: November 01 , 2014 BY THE COURT: ________________________________ CHRISTINE M. ARGUELLO United States District Judge
7

 
 Appellate Case: 14-1012

Document: 01019398555
PUBLISH

Date Filed: 03/16/2015 Page: 1
FILED United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS March 16, 2015

TENTH CIRCUIT

Elisabeth A. Shumaker Clerk of Court

Equal Employment Opportunity Commission,
Plaintiff-Appellee, v.
Beverage Distributors Company, LLC,
Defendant-Appellant.

No. 14-1012

Appeal from the United States District Court for the District of Colorado
(D.C. No. 1:11-cv-02557-CMA-CBS)
Scott Forman, Littler Mendelson, P.C., Miami, Florida (Joshua B. Kirkpatrick and Jennifer S. Harpole, Littler Mendelson, P.C., Denver, Colorado, with him on the brief), for Appellant.
James Tucker, Equal Employment Opportunity Commission, Washington, D.C. (P. David Lopez, General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel, and Jennifer S. Goldstein, Acting Assistant General Counsel, Equal Employment Opportunity Commission, Washington, D.C., with him on the brief), for Appellee.
Before TYMKOVICH, HOLMES, and BACHARACH, Circuit Judges.
BACHARACH, Circuit Judge.

Appellate Case: 14-1012 Document: 01019398555 Date Filed: 03/16/2015 Page: 2

This case involves a claim of employment discrimination. Mr.

Michael Sungaila, who is legally blind, worked for Beverage Distributors

Company. When his position was eliminated, Mr. Sungaila obtained a

higher-paying job in the company’s warehouse. But, Mr. Sungaila’s

employment was conditioned on passing a physical examination.

Mr. Sungaila passed the physical. But, the examining doctor stated

that Mr. Sungaila would require workplace accommodations to mitigate the

risks from his impaired vision. Beverage Distributors concluded that it

could not reasonably accommodate Mr. Sungaila’s condition and rescinded

the offer of a job in the warehouse. Shortly thereafter, Mr. Sungaila found

a lower-paying position with another company.

Mr. Sungaila filed a discrimination claim with the Equal Employment

Opportunity Commission, which then sued Beverage Distributors on Mr.

Sungaila’s behalf under the Americans with Disabilities Act.

At trial, Beverage Distributors asserted two defenses.

1. Direct Threat. Beverage Distributors stated that Mr. Sungaila’s impaired vision would create a significant risk of harm to himself and others and no reasonable accommodations could reduce or eliminate that risk.

2. Failure to Mitigate Damages. Beverage Distributors added that if Mr. Sungaila were to prevail, the fact-finder should reduce the award because of a failure to mitigate damages.

The

jury found that Beverage Distributors was liable for

discrimination and that Mr. Sungaila was not a direct threat. But, the jury

2

Appellate Case: 14-1012 Document: 01019398555 Date Filed: 03/16/2015 Page: 3
also found that Mr. Sungaila had failed to mitigate his damages. Based on these findings, the jury awarded Mr. Sungaila a reduced back pay award because of his failure to mitigate.
The EEOC filed two post-trial motions. In the first motion, the EEOC invoked Federal Rule of Civil Procedure 50(a) and argued that Beverage Distributors had not proven as a matter of law that Mr. Sungaila failed to mitigate his damages. The court agreed and reinstated the full damage award. In the second motion, the EEOC sought a tax-penalty offset to compensate Mr. Sungaila for the additional tax liability resulting from the lump-sum award of back pay. The court granted that motion and awarded the tax offset.
Beverage Distributors appeals, arguing in part: 1. The direct-threat instruction constitutes reversible error; and 2. the district court abused its discretion in awarding the tax
offset. We reverse because the direct-threat jury instruction constituted error. But, if the EEOC prevails upon retrial, Mr. Sungaila may be entitled to a tax offset. I. Direct-Threat Instruction
Beverage Distributors argues that the direct-threat instruction constituted reversible error. We agree, concluding that the instruction inaccurately conveyed the direct-threat standard.
3

Appellate Case: 14-1012 Document: 01019398555 Date Filed: 03/16/2015 Page: 4

A. Standard of Review

We first consider whether the direct-threat instruction is erroneous. In doing so, we review the entire instruction de novo1 to determine whether

it accurately states the governing law. Gardetto v. Mason, 100 F.3d 803,

816 (10th Cir. 1996).

B. D irect-Threat Defense

The direct-threat defense stems from the Americans with Disabilities

Act. Under the Act, an employer cannot discriminate on the basis of a

disability. See 42 U.S.C. § 12112(a). But, an employer may decide not to

hire disabled individuals if they pose a “direct threat to the health or

safety” of themselves or others. 29 C.F.R. § 1630.15(b)(2). A “direct

threat” involves “a significant risk of substantial harm to the health or

safety of the [person] or others that cannot be eliminated or reduced by

reasonable accommodation.” 29 C.F.R. § 1630.2(r).

The existence of a direct threat is an affirmative defense to a

statutory claim of discrimination. McKenzie v. Benton, 388 F.3d 1342,

1353-54 (10th Cir. 2004). For this defense, Beverage Distributors had to

1

The EEOC urges an abuse-of-discretion standard. We disagree. That

standard is appropriate only when we are reviewing a district court’s

decision to give (or not to give) a specific instruction. See Lederman v.

Frontier Fire Prot., Inc., 685 F.3d 1151, 1154 (10th Cir. 2012) (stating

that appellate courts “review a district court’s decision to give a particular

jury instruction for abuse of discretion”). Here, we are reviewing the legal

sufficiency of an instruction, which is a question we review de novo.

Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1237 (10th Cir.

2002); Sherouse v. Ratchner, 573 F.3d 1055, 1059 (10th Cir. 2009).

4

Appellate Case: 14-1012 Document: 01019398555 Date Filed: 03/16/2015 Page: 5

show that it reasonably determined that Mr. Sungaila had posed a direct

threat. See Jarvis v. Potter, 500 F.3d 1113, 1122 (10th Cir. 2007) (stating

that “the fact-finder does not independently assess whether it believes that

the employee posed a direct threat,” but “determine[s] [instead] whether

the employer’s decision was objectively reasonable”).

In sum, Beverage Distributors could avoid liability by showing that it

reasonably determined:

1. Mr. Sungaila posed a significant risk of substantial harm to the health or safety of himself or others, and

2. that risk could not be eliminated or reduced by reasonable accommodation.

C. The Direct-Threat Instruction

We consider these elements to determine whether the district court

correctly instructed the jury. Doing so, we conclude that the instruction did

not accurately convey the direct-threat standard.

The direct-threat instruction contained two parts. The first part

explained what Beverage Distributors had to “prove” to establish the

defense:

To esta blish t his defe nse, Be verage Distri butors m ust

prove both of the following

by a preponder ance of the

evidence:

1. Mr. Sungaila’s employment in a Night Warehouse position posed a significant ri sk of substa ntial harm to the he alth or sa fety of Mr. S ungaila a nd/or ot her employees; and

5

Appellate Case: 14-1012 Document: 01019398555 Date Filed: 03/16/2015 Page: 6
2. Such a risk could not have been eliminated or reduced by reasonable accommodation.
Appellant’s App. at 78. The second part of the instruction elaborated
on the standard:
The determination that a direct threat exists mu st have been based on a specific pers onal as sessment o f M r. Sung aila’s ability to safely perform the essential functions of the job. This assessment of Mr. Sungaila’s ab ility must have been based on either a reas onable medical j udgment t hat r elied on m edical knowledge [or best object ive evidence] available at the time of assessment . . . . An em ployer’s subjective belief that a direct threat exists, even if maintained in good faith, is not sufficient unless it is objectively reasonable.
. . . .
In de termining w hether Be verage Distr ibutors act ed objectively reasonably when it determined that Mr. Sungaila was a direct threat, you must consider the following factors: (a) the du ration o f the risk; (b ) th e nature and severity of the potential harm; (c) the likelihood that the potential harm would occur; and (d) the imminence of the potential harm.
Id. The instruction did not accurately convey the direct-threat standard.
The first part of the instruction required Beverage Distributors to
prove more than what was legally necessary. According to the first part,
Beverage Distributors had to prove that Mr. Sungaila posed a direct threat.
That was not accurate under our case law. Beverage Distributors should
have avoided liability if it had reasonably believed the job would entail a
direct threat; proof of an actual threat should have been unnecessary. See
Jarvis v. Potter, 500 F.3d 1113, 1122 (10th Cir. 2007) (“[T]he fact-finder
does not independently assess whether it believes that the employee posed
6

Appellate Case: 14-1012 Document: 01019398555 Date Filed: 03/16/2015 Page: 7
a direct threat.”). Thus, the instruction overstated Beverage Distributors’ burden. See Menne v. Celotex Corp., 861 F.2d 1453, 1470-71 (10th Cir. 1988) (concluding that jury instructions were erroneous because they confused the burden of proof).
The second part of the instruction did not cure the error. This part stated that the jury was to consider the reasonableness of Beverage Distributors’ belief regarding the existence of a direct threat. But, the jury was never told why it was to consider the reasonableness of what Beverage Distributors thought. Thus, the error was not cured by a reference in the instruction to the reasonableness of the company’s subjective belief.2
In sum, the instruction was erroneous. The first part of the instruction inaccurately stated that Beverage Distributors had to prove that Mr. Sungaila posed a direct threat. And the second part of the instruction did not cure the error by directing the jury, without explanation, to consider the reasonableness of Beverage Distributors’ belief.

2

The EEOC suggests that the instruction directed the jury to consider

Beverage Distributors’ subjective determination by referring to that

determination in the past tense. For instance, the instruction stated that

“[t]he determination that a direct threat exist[ed] must have been based on

a specific personal assessment of Mr. Sungaila’s ability to safely perform

the essential functions of the job.” Appellant’s App. at 78 (emphasis

added). We reject this argument. Even if the instruction had directed the

jury to consider Beverage Distributors’ determination, that determination

was about the “existence” of a direct threat, not the objective

reasonableness of the determination.

7

Appellate Case: 14-1012 Document: 01019398555 Date Filed: 03/16/2015 Page: 8
D. Nee d for Reversal We must reverse if the jury might have relied on an erroneous jury instruction. Level 3 Commc’n, LLC v. Liebert Corp., 535 F.3d 1146, 1158 (10th Cir. 2008). Thus, reversal is warranted even if it is “very unlikely” that the jury relied on the erroneous standard. Id. We conclude that the jury might have relied on the erroneous directthreat standard; thus, reversal is warranted. The inaccurate standard appeared prominently in the instruction, and the verdict form directed the jury to consider that erroneous standard. See Appellant’s App. at 91 (“Did Defendant Beverage Distributors prove . . . both elements of its affirmative defense that Mr. Sungaila’s employment in the Night Warehouse position posed a direct threat to himself or other employees . . . ?” (emphasis added)). Because the instruction and verdict form could have misled the jury on the standard, we must reverse. II. Mitigation of Damages Beverage Distributors also argues that the district court erroneously granted the EEOC’s Rule 50(a) motion, arguing that the evidence could have allowed the jury to find a failure to mitigate damages. We need not decide this issue. The sufficiency of the evidence entails a fact-intensive inquiry, and the mitigation evidence may be different on remand. Thus, we
8

Appellate Case: 14-1012 Document: 01019398555 Date Filed: 03/16/2015 Page: 9
decline to address the sufficiency of the mitigation evidence.3 See Doering ex rel. Barrett v. Copper Mountain, Inc., 259 F.3d 1202, 1216 (10th Cir. 2001) (declining to address the award of punitive damages when the Court reversed the judgment based on error in the jury instructions). III. Tax Offset
Beverage Distributors argues that the district court abused its discretion in awarding Mr. Sungaila a tax penalty offset.4 This issue is affected by our reversal of the EEOC’s award. On remand, this issue might or might not recur. But, unlike mitigation of damages, the tax offset issue is primarily legal rather than factual. Thus, we will address the issue. Doing so, we conclude that the district court did not err in awarding a tax offset.

3

The EEOC has suggested that we might lack jurisdiction over this

part of the appeal. Appellee’s Supp. Resp. Br. at 12 n.5 (Feb. 5, 2015).

Because we are declining to address the issue on other grounds, we need

not address the EEOC’s suggestion that we lack jurisdiction.

4

Beverage Distributors also asserts that the offset award constituted

unlawful additur in violation of the Seventh Amendment. But, the company

did not raise this argument in district court. See Appellee’s Supp. App. at

7-8. Thus, this argument has been forfeited. See Cummings v. Norton, 393

F.3d 1186, 1190 (10th Cir. 2005). Though we can consider forfeited

arguments under the plain-error standard, Beverage Distributors has not

argued plain error. See Bishop v. Smith, 760 F.3d 1070, 1095 (10th Cir.

2014) (stating that we will not consider the possibility of plain error on a

forfeited theory when the claimant fails to argue for plain error), cert.

denied, __ U.S. __, 135 S. Ct. 271 (2014).

9

Appellate Case: 14-1012 Document: 01019398555 Date Filed: 03/16/2015 Page: 10
A. Jurisdiction The EEOC argues that we lack jurisdiction because the notice of appeal preceded the district court’s entry of judgment and computation of the amount. See EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1250 (10th Cir. 1999) (discussing prematurity of an appeal involving a post-judgment award of attorneys’ fees). But, we conclude that we have jurisdiction on the tax offset issue. Even if the notice of appeal had been premature, Beverage Distributors filed a post-judgment motion for a stay pending appeal. This motion (1) specified that Beverage Distributors was taking the appeal, (2) stated that the company was appealing the “monetary components” of the district court’s amended order, which would necessarily include the tax offset award, and (3) stated that the appeal was to our court. Def.’s Mot. for Stay Pending Appeal at 1, EEOC v. Beverage Distributs. Co., LLC, No. 1:11-cv-02557-CBA-CBS (filed May 13, 2014), Doc. No. 137. Thus, the motion for a stay served as the “functional equivalent” of a notice of appeal under Federal Rule of Appellate Procedure 3. See Smith v. Barry, 502 U.S. 244, 248-49 (1992) (“If a document . . . gives the notice required by Rule 3, it is effective as a notice of appeal.”). In these circumstances, we have appellate jurisdiction.
10

Appellate Case: 14-1012 Document: 01019398555 Date Filed: 03/16/2015 Page: 11
B. Merits Courts have broad discretion in prescribing remedies for victims of discrimination. See Franks v. Bowman Transp. Co., 424 U.S. 747, 763 (1976). One such remedy is a tax penalty offset, which compensates victims for additional tax liabilities they would incur as a result of a lumpsum payment. See Sears v. Atchison Topeka & Santa Fe Ry., Co., 749 F.2d 1451, 1456 (10th Cir. 1984) (awarding a tax offset for victims of discrimination). The district court determined that Mr. Sungaila was entitled to a tax penalty offset. Mr. Sungaila obtained a lump-sum damage award, which would increase his tax liability.5 Given this result, the court concluded that an offset would compensate Mr. Sungaila for the added liability and “restore [him] to the position he would have been but for his wrongful separation from Beverage Distributors.” EEOC v. Beverage Distribs. Co., LLC, No. 11-cv-02557, 2013 WL 6458735, at *8 (D. Colo. Dec. 9, 2013). This award fell within the district court’s discretion. Mr. Sungaila obtained a lump-sum damage award that would increase his tax liability. And the court acted within its discretion in compensating Mr. Sungaila for the added burden.

5

The parties do not dispute that the lump-sum award would increase

Mr. Sungaila’s tax liability.

11

Appellate Case: 14-1012 Document: 01019398555 Date Filed: 03/16/2015 Page: 12

Beverage Distributors disagrees. In its view, Mr. Sungaila is not

entitled to the offset because his added tax burden would not be

“significant.” Appellant’s Opening Br. at 39. This argument is based on

Blim v. W. Elec. Co., 731 F.2d 1473 (10th Cir. 1984). We are not

persuaded.

In

Blim, we concluded that a tax offset award was improper because

the plaintiffs would “suffer no significant tax penalty.” 731 F.2d at 1480.

The penalty would not have been “significant” because the plaintiffs could

eliminate “nearly all” of their additional tax liability by using the tax

code’s averaging provisions. Id.

That reasoning is inapplicable here. Unlike the plaintiffs in Blim, Mr.

Sungaila cannot lighten his additional tax liability because Congress

repealed the averaging provisions in 1986. See Tax Reform Act of 1986,

Pub. L. No. 99-514, § 141(a), 100 Stat. 2117 (repealing 26 U.S.C. §§ 1302-

1305). Without other ways of reducing the added tax liability, Mr. Sungaila

would experience a tax disadvantage that the Blim plaintiffs were able to

avoid.

Beverage Distributors also contends that Mr. Sungaila is not entitled

to an offset because his case is “typical.” Appellant’s Opening Br. at 39.

This contention is based on our opinion in Sears v. Atchison, Topeka &

Santa Fe Ry., Co., where we affirmed an offset award while suggesting that

such an award “may not be appropriate in a typical [discrimination] case.”

12

Appellate Case: 14-1012 Document: 01019398555 Date Filed: 03/16/2015 Page: 13
749 F.2d 1451, 1456 (10th Cir. 1984). But, we did not hold that tax offsets were limited to atypical cases. In our view, the district court acted within its discretion even if Mr. Sungaila’s situation might be considered “typical.” See, e.g., EEOC v. N. Star Hospitality, Inc., __ F.3d __, No. 141660, 2015 WL 363997, at *5 (7th Cir. Jan. 29, 2015) (upholding an award of a tax offset in an EEOC claim on behalf of a single plaintiff in order to make the plaintiff “whole”).
Accordingly, we conclude that the district court did not err in awarding a tax offset. IV. Conclusion
We conclude that (1) the direct-threat jury instruction constituted reversible error, and (2) the district court did not err in awarding a tax offset.
13

Appellate Case: 14-1012 Document: 01019398557 Date Filed: 03/16/2015 Page: 1

Elisabeth A. Shumaker Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street
Denver, Colorado 80257 (303) 844-3157
March 16, 2015

Chris Wolpert Chief Deputy Clerk

Mr. Scott A. Forman Littler Mendelson 333 SE 2nd Avenue, Suite 2700 Miami, FL 33131
Ms. Jennifer Harpole Mr. Joshua Becker Kirkpatrick Mr. William E. Trachman Littler Mendelson 1900 Sixteenth Street, Suite 800 Denver, CO 80202
RE: 14-1012, EEOC v. Beverage Distributors Company Dist/Ag docket: 1:11-CV-02557-CMA-CBS
Dear Counsel:
Enclosed is a copy of the opinion of the court issued today in this matter. The court has entered judgment on the docket pursuant to Fed. R. App. P. Rule 36.
Pursuant to Fed. R. App. P. Rule 40, any petition for rehearing must be filed within 14 days after entry of judgment. Please note, however, that if the appeal is a civil case in which the United States or its officer or agency is a party, any petition for rehearing must be filed within 45 days after entry of judgment. Parties should consult both the Federal Rules and local rules of this court with regard to applicable standards and requirements. In particular, petitions for rehearing may not exceed 15 pages in length, and no answer is permitted unless the court enters an order requiring a response. If requesting rehearing en banc, the requesting party must file 12 paper copies with the clerk, in addition to satisfying all Electronic Case Filing requirements. See Fed. R. App. P. Rules 35 and 40, and 10th Cir. R. 35 and 40 for further information governing petitions for rehearing.

Appellate Case: 14-1012 Document: 01019398557 Date Filed: 03/16/2015 Page: 2 Please contact this office if you have questions.
Sincerely,

cc: James M. Tucker EAS/kf

Elisabeth A. Shumaker Clerk of the Court

2

 
 General Docket Tenth Circuit Court of Appeals

Court of Appeals Docket #: 14-1012

Docketed: 01/09/2014

Nature of Suit: 1445 American w/Disab.Act-Empl

Termed: 03/16/2015

EEOC v. Beverage Distributors Company

Appeal From: United States District Court for the District of Colorado

- Denver

Fee Status: Fee Paid

Case Type Information: 1) civil 2) USA as party 3) -

Originating Court Information:

District: 1082-1 : 1:11-CV-02557-CMA-CBS

Court Reporter: Darlene Martinez, -

Trial Judge: Christine M. Arguello, -, U.S. District Judge

Date Filed: 09/29/2011

Date NOA Filed:

Date Rec'd COA:

01/08/2014

01/09/2014

Prior Cases: None

Current Cases: None

Panel Assignment: Not available

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff - Appellee
v.

James M. Tucker Direct: 202-663-4870 Email: James.Tucker@EEOC.gov [NTC Government] Equal Employment Opportunity Commission Office of General Counsel / Appellate Services 5NW10P Firm: 202/663-4733 131 M Street, NE Washington, DC 20507

BEVERAGE DISTRIBUTORS COMPANY, LLC
Defendant - Appellant

Scott A. Forman Direct: 305-400-7500 Email: sforman@littler.com [COR NTC Retained] Littler Mendelson Firm: 305-400-7511 333 SE 2nd Avenue, Suite 2700 Miami, FL 33131

Jennifer Harpole Email: jharpole@littler.com [COR NTC Retained] Littler Mendelson Firm: 303/629-6200 1900 Sixteenth Street, Suite 800 Denver, CO 80202

Joshua Becker Kirkpatrick Email: jkirkpatrick@littler.com [COR NTC Retained] Littler Mendelson Firm: 303/629-6200 1900 Sixteenth Street, Suite 800 Denver, CO 80202

William Edward Trachman [NTC Retained] Littler Mendelson Firm: 303/629-6200 1900 Sixteenth Street, Suite 800 Denver, CO 80202

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellee,
v. BEVERAGE DISTRIBUTORS COMPANY, LLC,
Defendant - Appellant.

01/09/2014
73 pg, 3.59 MB

[10139619] Civil case docketed. Preliminary record filed. DATE RECEIVED: 01/09/2014. Docketing statement, transcript order form and notice of appearance due 01/23/2014 for Beverage Distributors Company, LLC. Notice of appearance due on

01/23/2014 for Equal Employment Opportunity Commission. [141012] [Entered: 01/09/2014 12:11 PM]

01/13/2014

[10140113] Notice of appearance submitted by James M. Tucker for Appellee EEOC for court review. Certificate of Interested Parties: Yes. Served on 01/13/2014. Manner of Service: email. -[Edited 01/13/2014 by SDS to remove pdf from entry as the pleading has been filed] [14-1012] JMT [Entered: 01/13/2014 08:11 AM]

01/13/2014
2 pg, 34.07 KB

[10140118] Notice of appearance filed by Mr. James M. Tucker for EEOC. CERT. OF INTERESTED PARTIES: y (parties previously disclosed). Served on 01/13/2014. Manner of Service: email. [14-1012] [Entered: 01/13/2014 08:26 AM]

01/23/2014

[10143582] Notice of appearance submitted by Joshua B. Kirkpatrick, Scott A. Forman, William E. Trachman, & Jennifer S. Harpole for Appellant Beverage Distributors Company, LLC for court review. Certificate of Interested Parties: Yes. Served on 01/23/2014. Manner of Service: US mail. [14-1012]--[Edited 01/23/2014 by JM PDF removed filed by the court on 1/23/14.] JBK [Entered: 01/23/2014 04:30 PM]

01/23/2014

[10143584] Docketing statement filed by Beverage Distributors

63 pg, 1.01 MB Company, LLC. Served on 01/23/2014. Manner of Service: US

mail. [14-1012] JBK [Entered: 01/23/2014 04:33 PM]

01/23/2014
2 pg, 107.71 KB

[10143590] Acknowledgment of transcript order filed by Mr. Joshua Becker Kirkpatrick for Beverage Distributors Company, LLC. Transcript ordered: Voir Dire: 4/1/13; Trial Proceedings: 4/8/13-4/12/13; Jury Instructions: 4/11/13; Opening Statements: 4/8/13; Instruction Cnf: 4/11/13; Closing Arguments: 4/11/13. Served on: 01/23/2014. Manner of Service: US mail. [14-1012] JBK [Entered: 01/23/2014 04:39 PM]

01/23/2014

[10143600] Minute order filed - Transcript order form due 02/06/2014 for Darlene Martinez. (Text Only - No Attachment) [14-1012] [Entered: 01/23/2014 04:57 PM]

01/23/2014
3 pg, 147.79 KB

[10143603] Notice of appearance filed by Mr. William E. Trachman, Mr. Scott A. Forman, Ms. Jennifer Harpole and Mr. Joshua Becker Kirkpatrick for Beverage Distributors Company, LLC. CERT. OF INTERESTED PARTIES: y. Served on 01/23/2014. Manner of Service: US mail. [14-1012] [Entered: 01/23/2014 05:03 PM]

01/24/2014

[10143627] Filed notice record is complete. Served on 01/24/2014. Appellant's brief and appendix due on 03/05/2014 for Beverage

Distributors Company, LLC. [14-1012] [Entered: 01/24/2014 08:19 AM]

01/24/2014
2 pg, 21.9 KB

[10143644] Admissions letter sent. Response date set to 02/24/2014 for Scott A. Forman. [14-1012] [Entered: 01/24/2014 08:48 AM]

01/24/2014
1 pg, 19.01 KB

[10143749] Notice of Mediation Conference filed by the Tenth Circuit Mediation Office. Case is referred for mediation conferencing; conference scheduled for 01/31/2014 at 10:00 am (MST). Please review the attached Notice for additional information. [14-1012] [Entered: 01/24/2014 12:03 PM]

01/24/2014
2 pg, 28.3 KB

[10143867] Order filed by Clerk of the Court abating case. Status report(s) due 03/25/2014 by Beverage Distributors Company, LLC and Equal Employment Opportunity Commission. See order for additional information. Served on 01/24/2014. [14-1012] [Entered: 01/24/2014 03:00 PM]

02/25/2014
2 pg, 22.07 KB

[10152130] Attorney admission letter, second notice sent. Attorney admission response date set to 03/07/2014 for Scott A. Forman. [14-1012] [Entered: 02/25/2014 11:20 AM]

02/26/2014

[10152922] Attorney Mr. Scott A. Forman for Beverage Distributors Company, LLC admitted to the bar of this court. [141012] [Entered: 02/27/2014 07:39 AM]

03/25/2014
5 pg, 55.01 KB

[10160116] Status report filed by EEOC. Served on 03/25/2014. Manner of Service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-1012] JMT [Entered: 03/25/2014 07:12 AM]

03/25/2014
4 pg, 62.12 KB

[10160474] Status report filed by Beverage Distributors Company, LLC. Served on 03/25/2014. Manner of Service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-1012] JBK [Entered: 03/25/2014 03:35 PM]

03/26/2014
2 pg, 24.47 KB

[10160918] Order filed by Clerk of the Court (CVC) this appeal remains abated. Parties' status reports due 04/25/2014 by Beverage Distributors Company, LLC and Equal Employment Opportunity Commission. See order for additional information. Served on 03/26/2014. [14-1012] [Entered: 03/26/2014 03:48 PM]

03/28/2014

[10161388] Supplemental preliminary record on appeal filed. [14-

23 pg, 328.28 KB 1012] [Entered: 03/28/2014 08:38 AM]

04/03/2014
5 pg, 53.89 KB

[10163218] Status report filed by EEOC. Served on 04/03/2014. Manner of Service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-1012] JMT [Entered: 04/03/2014 12:34 PM]

04/03/2014
3 pg, 44.43 KB

[10163406] Status report filed by Beverage Distributors Company, LLC. Served on 04/03/2014. Manner of Service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-1012] JBK [Entered: 04/03/2014 03:36 PM]

05/02/2014
1 pg, 22.79 KB

[10172589] Order filed by Clerk of the Court (CVC) lifting the abatement of this appeal. Appellant's brief and appendix due on 06/11/2014 for Beverage Distributors Company, LLC. Served on 05/02/2014. [14-1012] [Entered: 05/02/2014 02:33 PM]

06/11/2014
79 pg, 3.52 MB

[10183060] Appellant/Petitioner's brief filed by Beverage Distributors Company, LLC. 7 paper copies to be provided to the court. Served on 06/11/2014 by email. Oral argument requested? Yes. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-1012] JBK [Entered: 06/11/2014 05:04 PM]

06/11/2014

[10183382] Appendix filed by Appellant Beverage Distributors Company, LLC. Original and 1 copy. Appendix pages: 1076. Number of volumes: 3. Hardcopy only. Served on 06/11/2014. Manner of Service: US mail. [14-1012] [Entered: 06/12/2014 03:58 PM]

06/12/2014

[10183383] Minute order filed - Appellee's brief now due 07/14/2014 for Equal Employment Opportunity Commission. (Text Only - No Attachment) [14-1012] [Entered: 06/12/2014 03:58 PM]

06/17/2014
8 pg, 70.22 KB

[10184378] Motion filed by Appellee EEOC to extend time to file appellee/respondent's brief until 08/14/2014 at 11:59 pm. Served on: 06/17/2014. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-1012] JMT [Entered: 06/17/2014 11:54 AM]

06/17/2014
1 pg, 23.25 KB

[10184422] Order filed by Clerk of the Court granting appellee's motion to extend time to file response brief. Appellee's brief now due 08/13/2014 for Equal Employment Opportunity Commission. Served on 06/17/2014. [14-1012] No further extensions will be granted under the clerk's authority. [Entered: 06/17/2014 12:56 PM]

08/13/2014

[10198170] Appellee/Respondent's brief filed by EEOC. 7 paper

76 pg, 292.13 KB copies to be provided to the court. Served on: 08/13/2014. Manner

of service: email. Oral argument requested? No. This pleading

complies with all required (privacy, paper copy and virus)

certifications: Yes. [14-1012] JMT [Entered: 08/13/2014 08:49

AM]

08/13/2014

[10198639] Supplemental appendix filed by Appellee EEOC. Original and 1 copy. Appendix pages: 36. Hardcopy only. Served on 08/13/2014. Manner of Service: US mail. [14-1012] [Entered: 08/14/2014 11:53 AM]

08/14/2014

[10198640] Minute order filed - Appellant's optional reply brief now due 09/02/2014 for Beverage Distributors Company, LLC. (Text Only - No Attachment) [14-1012] [Entered: 08/14/2014 11:54 AM]

08/27/2014
5 pg, 98.52 KB

[10201795] Motion filed by Appellant Beverage Distributors Company, LLC to extend time to file a reply brief until 09/16/2014. Served on: 08/27/2014. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-1012] JBK [Entered: 08/27/2014 02:11 PM]

08/27/2014
1 pg, 23.32 KB

[10201871] Order filed by Clerk of the Court granting appellant's motion to extend time to file appellant's reply brief. Appellant's optional reply brief now due 09/16/2014 for Beverage Distributors Company, LLC. No further extensions will be granted on the clerk's authority. Served on 08/27/2014. [14-1012] [Entered: 08/27/2014 03:30 PM]

09/15/2014
5 pg, 101.8 KB

[10206433] Motion filed by Appellant Beverage Distributors Company, LLC to extend time to file a reply brief until 09/23/2014. Served on: 09/15/2014. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-1012] JBK [Entered: 09/15/2014 04:29 PM]

09/15/2014
1 pg, 23.28 KB

[10206463] Order filed at the direction of the Court granting appellant's second motion to extend time to file appellant's reply brief. Appellant's optional reply brief now due 09/23/2014 for Beverage Distributors Company, LLC. Served on 09/15/2014. [141012] No further extensions will be granted. [Entered: 09/15/2014 04:46 PM]

09/23/2014

[10208929] Appellant/Petitioner's reply brief filed by Beverage

34 pg, 306.88 KB Distributors Company, LLC. 7 paper copies to be provided to the

court. Served on 09/23/2014. Manner of Service: email. This

pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-1012] JBK [Entered: 09/23/2014 04:36 PM]

11/17/2014
1 pg, 73.93 KB

[10224748] Calendar notice sent to counsel. Arguments to be held on Thursday, January 22, 2015 at 8:30 A.M. in Courtroom II, Byron White United States Courthouse, Denver, CO. Counsel is required to go to http://www.ca10.uscourts.gov under the argument calendar tab to obtain an important notice regarding calendared cases and required forms. The calendar acknowledgment form (and the custody status form when applicable) must be completed and filed with the clerk via Electronic Case Filing within 10 days of today's date. [14-1012] [Entered: 11/17/2014 11:05 AM]

11/20/2014
1 pg, 38.12 KB

[10226367] Oral Argument Acknowledgment Form filed by. Served on 11/20/2014. Manner of Service: email. [14-1012] JBK [Entered: 11/20/2014 03:13 PM]

11/21/2014
1 pg, 78.35 KB

[10226698] Oral Argument Acknowledgment Form filed by EEOC. Served on 11/21/2014. Manner of Service: email. [141012] JMT [Entered: 11/21/2014 02:05 PM]

01/22/2015
1 pg, 23.16 KB

[10242060] Case argued by Scott Forman for the Appellant and by James Tucker for the Appellee; Submitted to Judges Tymkovich, Holmes and Bacharach. [14-1012] [Entered: 01/22/2015 01:49 PM]

01/22/2015
2 pg, 32.34 KB

[10242172] Order filed at the direction of the panel of judges assigned to this case. The parties are directed to file supplemental briefs. Appellant shall file its supplemental brief within 7 days from the date of this order. Supplemental brief due 01/29/2015 for Beverage Distributors Company, LLC. Appellee may file a responsive supplemental brief within 7 days of service of the Appellant's supplemental brief. Served on 01/22/2014. [14-1012] [Entered: 01/22/2015 04:40 PM]

01/29/2015

[10243924] Appellant's supplemental brief filed by Beverage

10 pg, 125.39 KB Distributors Company, LLC. 7 paper copies to be provided to the

court. Served on 01/29/2015. Manner of Service: email. This

pleading complies with all required (privacy, paper copy and virus)

certifications: Yes. [14-1012] JBK [Entered: 01/29/2015 02:36

PM]

02/05/2015

[10245773] Appellee/Respondent's supplemental brief filed by

16 pg, 113.92 KB EEOC. 7 paper copies to be provided to the court. Served on

02/05/2014. Manner of Service: email. This pleading complies

with all required (privacy, paper copy and virus) certifications:

Yes. [14-1012] JMT [Entered: 02/05/2015 11:18 AM]

02/05/2015

[10245775] Supplemental authority filed by EEOC. Served on

13 pg, 203.89 KB 02/05/2015. Manner of Service: email. [14-1012] JMT [Entered:

02/05/2015 11:20 AM]

03/16/2015
15 pg, 59.87 KB

[10254993] Reversed.Terminated on the merits after oral hearing. Written, unsigned, published. Judges Tymkovich, Holmes and Bacharach (authoring judge). Mandate to issue. [14-1012] [Entered: 03/16/2015 09:19 AM]

03/16/2015

[10254997] Judgment for opinion filed. [14-1012] [Entered:

1 pg, 21.24 KB 03/16/2015 09:22 AM]

03/30/2015
6 pg, 133.47 KB

[10259360] Motion filed by Appellant Beverage Distributors Company, LLC to tax costs. Served on: 03/30/2015. Manner of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-1012] JBK [Entered: 03/30/2015 03:35 PM]

03/30/2015
13 pg, 3.08 MB

[10259365] Bill of costs filed by Beverage Distributors Company, LLC. Served on 03/30/2015. Manner of Service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-1012] JBK [Entered: 03/30/2015 03:39 PM]

03/30/2015

[10259374] Minute order filed - Response due on 04/13/2015 for Equal Employment Opportunity Commission. (Text Only - No Attachment) [14-1012] [Entered: 03/30/2015 03:54 PM]

03/31/2015

[10259653] Minute order filed - Bill of costs optional response due on 04/16/2015 for Equal Employment Opportunity Commission. (Text Only - No Attachment) [14-1012] [Entered: 03/31/2015 11:51 AM]

04/02/2015
10 pg, 91.86 KB

[10260681] Response filed by EEOC to Appellant's Bill of Costs. Served on 04/02/2015. Manner of Service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-1012] JMT [Entered: 04/02/2015 02:12 PM]

04/08/2015
1 pg, 19.76 KB

[10261979] Order filed by Clerk of the Court (ERR). Appellant shall file a written response setting forth the specific authority which would allow it to obtain its costs from the appellee Response due on 04/20/2015 for Beverage Distributors Company, LLC. Served on 04/08/2015. [14-1012] [Entered: 04/08/2015 07:33 AM]

04/17/2015

[10264840] Response filed by Beverage Distributors Company,

12 pg, 163.37 KB LLC to Response to the Court's 4-8-15 Order. Served on

04/17/2015. Manner of Service: email. This pleading complies

with all required (privacy, paper copy and virus) certifications: Yes. [14-1012] JBK [Entered: 04/17/2015 01:37 PM]

04/22/2015
12 pg, 93.22 KB

[10265875] Appellee's response filed by EEOC to Appellant's Brief in Response to the Court's 4/8/15 Order on Appellant's Bill of Costs. Served on 04/22/2015. Manner of Service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes.--[Edited 04/22/2015 by KF to modify the text] [14-1012] JMT [Entered: 04/22/2015 08:51 AM]

04/27/2015
2 pg, 23.31 KB

[10266945] Order filed by Judges Tymkovich, Holmes and Bacharach (CW). Appellant's Motion to Tax Costs is granted in part and denied in part. Transcript and bond premium costs are taxable only in the district court. Costs are taxed in favor of the Appellant and against the Appellee in the amount of $810.20. (Please refer to the order for additional information.) Served on 04/27/2015. [14-1012] [Entered: 04/27/2015 10:24 AM]

04/30/2015

[10268129] Petition for rehearing, for rehearing en banc filed by

41 pg, 371.82 KB EEOC. Original and 12 copies. Served on 04/30/2015. Manner of

Service: email. This pleading complies with all required (privacy,

paper copy and virus) certifications: Yes. [14-1012] JMT [Entered:

04/30/2015 08:50 AM]

04/30/2015
1 pg, 23.28 KB

[10268366] Order filed by Judges Tymkovich, Holmes and Bacharach directing appellant to file a response to appellee's petition for panel rehearing or rehearing en banc. Response due on 05/14/2015 for Beverage Distributors Company, LLC. Served on 04/30/2015. [14-1012] [Entered: 04/30/2015 02:22 PM]

05/14/2015

[10271849] Response filed by Beverage Distributors Company,

21 pg, 436.94 KB LLC to Appellee's Petition for Panel Rehearing or Rehearing En

Banc. Served on 05/14/2015. Manner of Service: email. This

pleading complies with all required (privacy, paper copy and virus)

certifications: Yes. [14-1012] JBK [Entered: 05/14/2015 03:00

PM]

05/27/2015
1 pg, 23.41 KB

[10274624] Order filed by Judges Tymkovich, Holmes and Bacharach denying petition for rehearing and rehearing en banc filed by Appellee EEOC. [14-1012] [Entered: 05/27/2015 08:13 AM]

06/04/2015

[10276589] Mandate issued. [14-1012] [Entered: 06/04/2015 07:44

1 pg, 20.13 KB AM]

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02557-CMA-CBS EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. BEVERAGE DISTRIBUTORS COMPANY, LLC,
Defendant.
CONSENT DECREE
I. RECITALS 1. This matter was instituted by Plaintiff Equal Employment Opportunity Commission (“Plaintiff,” “EEOC,” or “the Commission”), an agency of the United States government, alleging that after eliminating Mike Sungaila’s position as a Driver Helper, Defendant Beverage Distributors Company, LLC (“Defendant” or “BDC”) offered Mr. Sungaila a position as a Night Warehouse Loader, conditioned on the results of a medical examination, and that after obtaining the results of the medical examination, Defendant withdrew the offer because of Mr. Sungaila’s disability and terminated his employment. 2. The Parties signatory hereto are the EEOC and the Defendant. 3. The Parties, desiring to settle this action by an appropriate Consent Decree (“Decree”), agree to the jurisdiction of this Court over the Parties and the subject matter

of this action, and agree to the power of this Court to enter a Consent Decree enforceable against Defendant. 4. As to the issues resolved, this Decree is final and binding upon the Parties and their successors and assigns. 5. For the purpose of amicably resolving disputed claims, the Parties jointly request this Court to adjudge as follows: IT IS ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:
II. JURISDICTION 6. The Parties stipulate to the jurisdiction of the Court over the Parties and subject matter of this action, and have waived the entry of findings of fact and conclusions of law. 7. The duration of this Decree shall be two (2) years from the date of signing by the Court.
III. ISSUES RESOLVED 8. This Decree resolves the claims alleged in the above-captioned lawsuit, and constitutes a complete resolution of all of the Commission’s claims of unlawful employment practices under the Americans with Disabilities Act (ADA) that arise from Charge of Discrimination Number 541-2008-01960 filed by Mike Sungaila, which claims Defendant has denied. 9. Defendant and its officers, agents, employees, successors, and all other persons in active concert or participation with any of them will not interfere with the relief herein ordered, but shall cooperate in the implementation of this Decree.
2

IV. MONETARY RELIEF 10. Judgment is hereby entered in favor of the Commission and against Defendant in the amount of $160,000. 11. Defendant will not condition the receipt of individual relief upon Mr. Sungaila’s agreement to: (a) maintain as confidential the terms of this Decree or the facts of the case; (b) waive his statutory right to file a charge with any federal or state antidiscrimination agency; or (c) promise not to reapply for a position with the Defendant. 12. To resolve these claims, Defendant shall pay a total of $160,000, payable to Mr. Sungaila, allocated as follows:
12.1 Total Back Pay, Including Pre-Judgment Interest and Tax Penalty Offset: $80,000 12.2 Compensatory Damages: $80,000 13. The payments required under this Decree shall be mailed to the payee(s) within ten (10) calendar days after the Court’s entry of the Decree, and mailed to the address provided by the EEOC. 14. Within three (3) business days after payments are mailed to Mr. Sungaila, Defendant shall submit to the EEOC copies of the checks issued.
V. OTHER INDIVIDUAL RELIEF 15. Within seven (7) calendar days of the entry of the Decree, Defendant will provide Mr. Sungaila with a letter of recommendation on company letterhead in the form attached as Exhibit 1. 16. Unless otherwise required to be maintained by Defendant under applicable law, Defendant shall expunge from its records (a) any and all references to the allegations of
3

discrimination filed against Defendant that formed the basis of this action; and (b) any and all references to Mr. Sungaila’s participation in this action.
VI. EQUITABLE RELIEF Scope 17. The terms of this Decree shall apply to all of Defendant’s facilities in Colorado. Injunctive Relief 18. Defendant, its officers, agents, successors, and other persons in active concert or participation with them, or any of them, shall not engage in any employment practice which discriminates on the basis of disability. Defendant, its officers, agents, successors and other persons in active concert or participation with them, or any of them, shall not engage in reprisal or retaliation of any kind against any individual because of such individual’s opposition to any act or practice made unlawful under the ADA or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the ADA. EEO Policy Review 19. Defendant shall amend its equal employment opportunity (EEO) policy to comply with the correct legal standards under the ADA. Specifically, Defendant must amend its policy to state that it will provide reasonable accommodations unless doing so would impose an undue hardship on Defendant or create a significant risk of substantial harm to the health or safety of its employees, which risk cannot be reduced or eliminated by reasonable accommodation. Defendant will have this policy reviewed by an Outside Consultant (which may be a law firm/ specializing in the area of employment law). Anti-Discrimination Policy
4

20. After consultation with an Outside Consultant (which may be a law firm specializing in the area of employment law), Defendant shall adopt and maintain a policy proscribing discrimination based on disability, mandating that Defendant provide reasonable accommodations to qualified individuals under the ADA, and proscribing retaliation against any employee who complains about discrimination, requests reasonable accommodation for a disability, or files a charge of discrimination (“AntiDiscrimination Policy”). The Anti-Discrimination Policy shall contain a description of the consequences, up to and including termination, that shall be imposed upon violators of the policy and an assurance of non-retaliation against persons and witnesses who report to Defendant that they believe they or other employees have been subjected to unlawful discrimination and/or who have asked for reasonable accommodations. Defendant shall post and keep posted for the duration of this Decree, in a conspicuous place, frequented by employees, in each of its facilities, where notices to employees and applicants for employment are customarily kept or posted, a copy of the AntiDiscrimination Policy. Within forty-five (45) calendar days of the Court’s entry of this Decree, Defendant shall provide a copy of the Anti-Discrimination Policy to all employees and also will include the Policy in its Associate Handbook, which is provided to all new employees. Within sixty (60) calendar days of the Court’s entry of this Decree and again annually through the duration of this Decree, Defendant shall forward a copy of the Anti-Discrimination Policy to the Commission and a letter indicating that the AntiDiscrimination Policy has been posted and distributed.
5

Reasonable Accommodation Guidance 21. After consultation with an Outside Consultant (which may be a law firm specializing in the area of employment law), Defendant shall adopt and maintain a written policy that advises that Defendant will make reasonable accommodations to qualified employees and applicants with disabilities in compliance with applicable laws and that sets forth the process for considering and providing those reasonable accommodations. The policy will provide guidance on how to determine the reasonableness of potential accommodations and, more specifically, will explain that Defendant must engage in the interactive process with the applicant/employee in order to determine the precise limitations resulting from the disability at issue and the potential reasonable accommodations that could assist in overcoming the identified limitations. The policy also will advise that Defendant will provide reasonable accommodations unless doing so would impose an undue hardship on Defendant or create a significant risk of substantial harm to the health or safety of its employees, which risk cannot be reduced or eliminated by reasonable accommodation. 22. The policy must be distributed to all employees in accordance with the AntiDiscrimination Policy provisions in Paragraph 20. Within sixty (60) calendar days of the Court’s entry of this Decree, Defendant shall forward a copy of the Reasonable Accommodation Guidance to the Commission and a letter indicating that the policy has been distributed. Training 23. By no later than ninety (90) days following the entry of this Decree, and at least twice a year throughout the duration of this Decree, Defendant shall provide live, in-
6

person EEO training for managers, human resources personnel and employees with hiring authority that, at a minimum, is no less than three (3) hours in length and addresses the following areas: (a) rights of disabled employees and applicants to reasonable accommodations under the ADA, including the interactive process for determining what accommodations may be appropriate to provide; (b) the procedure for employees or applicants to request accommodations and the responsibilities of the individual receiving any such requests; (c) Defendant’s procedures for handling accommodation requests; (d) the ADA provisions and prohibitions regarding medical inquiries; (e) the ADA limitations on use of medical information obtained through lawful post-offer/pre-employment medical screening; (f) the interactive process for determining reasonable accommodation, including instruction that the interactive process is required before an individual may be denied employment because of some medical condition, or based on information obtained through post-offer/pre-employment medical screening; (g) proper handling of medical information obtained as a result of post-offer/preemployment medical screening or otherwise; and (h) the penalties for engaging in discriminatory behavior. These training sessions will be conducted on a timetable which ensures that each employee who is newly-hired or promoted into a managerial or human resources position, or a position with hiring authority, completes the requisite three (3) hours of disability training within six (6) months of being hired or promoted into such position. It is understood, however, that any employee required to attend training pursuant to this Paragraph 23 shall only be required to attend one (1) such training session in any twelve (12) month period.
7

24. By no later than ninety (90) days following the entry of this Decree, Defendant shall provide EEO training, which may be either live or on-line, for all other employees that, at a minimum, is no less than thirty (30) minutes in length and: (a) explains Defendant’s policy on reasonable accommodations as described in Paragraph 21; (b) explains how employees should request reasonable accommodations, including the titles and contact information for the person(s) to whom the requests should be made; and (C) explains the interactive process, including how an employee can initiate that process. 25. All training under Paragraphs 23 and 24 shall be at Defendant’s selection and expense, and Defendant shall maintain a register of all personnel who attended the training. Unless otherwise approved by the EEOC, training shall be conducted by Erin Connolly, Defendant’s in-house employment counsel, or by an Outside Consultant (which may be a law firm specializing in the area of employment law), provided that any trainer must have experience with ADA training. Within thirty (30) days of completion of any training, Defendant also shall provide the EEOC with a copy of the register of attendance from the training as well as an outline/copy of the training agenda. Defendant agrees that all personnel shall both register and attend the training sessions, and no one shall be listed on the register of attendance unless he or she actually attended the training.
VII. Record Keeping and Reporting Provisions 26. For the duration of this Decree, Defendant shall maintain all records concerning implementation of this Decree, including all of the following:
26.1. Job Postings
8

26.2. Hiring records 26.3. Medical examination results for all individuals sent for a physical agility test and/or medical evaluation; and 26.4. Complaints of disability discrimination and records documenting investigation of such complaints, including witness statements, documents compiled, findings, and remedial steps; and 26.5. Requests for disability accommodation and records documenting efforts to provide any such accommodation, including records reflecting what accommodations were considered and/or provided. 27. For each six (6) month period during the duration of this Decree, Defendant shall provide written reports to the EEOC that contain the following information: 27.1. Applicants for Hire. If any candidate was not hired by Defendant within the applicable six (6) month period due to his or her disability or the results of a pre-employment medical screen, Defendant will provide the name, address and telephone number of the candidate and an explanation of why the results of the medical screen precluded employment. 27.2. Reports of Disability Discrimination. If any candidate or employee has made either a verbal complaint of alleged disability discrimination (to include any complaints regarding the witnessing of alleged disability discrimination) to Defendant’s managerial or human resources personnel or a written complaint of alleged disability discrimination (to include any complaints regarding the witnessing of alleged disability discrimination) to Defendant’s managerial or human resources personnel or to a federal, state or local government agency
9

within the applicable six (6) month period, Defendant will provide the following information: the name, address and telephone number of the complainant; the name, address and telephone number of each person identified as a potential witness; a brief summary of the complaint, to include the date of the complaint and the names of the individual(s) alleged to have engaged in the discriminatory conduct; a copy of the complaint, if applicable; a summary of Defendant’s investigation and response to the complaint, including the name of the person(s) who investigated and responded to the complaint; and the resolution reached, if any. If additional information or documentation is needed by the Commission, a Commission representative can contact Erin Connolly, Defendant’s in-house employment counsel, or her replacement. 27.3. Reasonable Accommodation Procedures and Results. A report of any disability-related reasonable accommodation requests made to Defendant’s managerial or human resources personnel within the applicable six (6) month period which includes the following: the name, address and telephone number for each person making the request; the date of the request; to whom the request was made; a summary of the accommodation requested; the person responsible for responding to the request; a summary of the interactive process engaged in with respect to the request; a description of the outcome of the request (ie; whether an accommodation was provided and, if so, a summary of the accommodation and the reasons for granting or denying any particular accommodation). If additional information or documentation is needed by the
10

Commission, a Commission representative can contact Erin Connolly, Defendant’s in-house employment counsel, or her replacement. Any reports required to be provided pursuant to this Paragraph 27 shall be sent to the EEOC by no later than forty-five (45) days following the completion of the applicable six (6) month period, except the final report which shall be submitted to the EEOC at least eight (8) weeks prior to the date on which the Decree is set to expire. VII. RETENTION OF JURISDICTION AND ENFORCEMENT OF DECREE 28. This Court shall retain jurisdiction of this cause for purposes of enforcing and ensuring compliance with this Decree, to include the jurisdiction to grant any necessary extensions of the Decree or other relief. 29. There is no private right of action to enforce Defendant’s obligations under the Decree, and only the Commission, its successors, or assigns may enforce compliance herewith. 30. The Commission may petition this Court for compliance with this Decree at any time during which this Court maintains jurisdiction over this action. However, prior to petitioning the Court, the Commission must give Defendant a thirty (30) day notice period in which to investigate and respond to the Commission’s allegations, followed by a fifteen (15) day period to either cure the alleged deficiency or to negotiate a resolution, unless a longer period is agreed upon by the Parties. Should the Court determine that Defendant has not complied with this Decree, appropriate relief, including extension of this Decree for such period as may be necessary to remedy its non-compliance, may be ordered.
11

31. Absent extension, this Decree shall expire by its own terms at the end of
two (2) years from the date of entry without further action by the Parties or the
Court.
IX. EEOC AUTHORITY
32. With respect to matters or charges outside the scope of this Decree, this Decree
shall in no way limit the powers of the Commission to seek to eliminate employment
practices or acts made unlawful by any of the statutes over which the EEOC has
enforcement authority, and do not arise out of the claims asserted in this lawsuit.
X. COSTS AND ATTORNEY'S FEES
33. Each Party shall be responsible for and shall pay its own costs and attorney’s
fees.
XI. NOTICE
34. Unless otherwise indicated, any notice, report, or communication required under
the provisions of this Decree shall be sent by certified mail, postage prepaid, and by
email, as follows:
EEOC:
Sean Ratliff Supervisory Trial Attorney EEOC Denver Field Office 303 E. 17th Avenue, Suite 410 Denver, CO 80203
BDC:
Kris Gleason Human Resources Director Beverage Distributors Corp. 14200 E. Moncrieff Place Suite E Aurora, CO 80011
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XII. SIGNATURES 35. The Parties agree to the entry of this Decree subject to final approval by the Court.

DATED: December 4, 2015

BY THE COURT:
CHRISTINE M. ARGUELLO United States District Judge

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Case 1:11-cv-02557-CMA-CBS Document 159-1 Filed 12/03/15 USDC Colorado Page 14 of 16
BY CONSENT:
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, BEVERAGE DISTRIBUTORS COMPANY, LLC
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14

Case 1:11-cv-02557-CMA-CBS Document 159-1 Filed 12/03/15 USDC Colorado Page 15 of 16

APPROVED AS TO FORM:

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/

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Isl ~ '\ & U< L?.:zv /~i~

Lauren Jaeckel

Trial Attorney !..

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Denver Field Office

303 East 17th Avenue, Suite 410

Denver, CO 80203

Telephone: 303.866.1381

E-Mail: lauren.jaeckel@eeoc.gov

Attorney for Plaintiff

/s/ . -,'--""~~~~---~~~
J ua B. Kirkpatrick, Esq.
!TILER MENDELSON, P.C.
1900 Sixteenth Street, Suite 800 Denver, CO 80202 Telephone: 303.362.2877 E-Mail: JKirkpatrick@littler.com
Attorney for Defendants

15

EXHIBIT 1 [Insert Date] [Insert Name] [Insert Address] Re: [Mike Sungaila]. Dear [Insert Name]: We employed Mr. Sungaila from [insert date] until [insert date], when Mr. Sungaila resigned for personal reasons. The last position Mr. Sungaila held was [insert position title], and his last rate of pay was [insert last rate of pay]. Mr. Sungaila was a valuable employee, and he remains eligible for re-hire. Sincerely,
[Insert Name] [Insert Title]
16

 
 No. 14-1012 _________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
_________________________________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellee,
v.
BEVERAGE DISTRIBUTORS COMPANY, LLC,
Defendant-Appellant.
_________________________________
On Appeal from the United States District Court for the District of Colorado
Hon. Christine M. Arguello, United States District Judge No.11-cv-2557
_________________________________
APPELLEE’S PETITION FOR PANEL REHEARING OR REHEARING EN BANC
_________________________________

P. DAVID LOPEZ General Counsel
CAROLYN L. WHEELER Acting Associate General Counsel
JENNIFER S. GOLDSTEIN Acting Assistant General Counsel
JAMES M. TUCKER Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov

Table of Contents Table of Authorities..................................................................................................ii Rule 35(b) Statement ................................................................................................ 1 Statement of Facts .................................................................................................... 3 The Direct Threat Instruction ................................................................................... 5 Panel Decision .......................................................................................................... 6 Argument .................................................................................................................. 7 Conclusion .............................................................................................................. 15 Addendum Attachment: Panel Decision Certificate of Digital Submission Certificate of Service
i

Table of Authorities

Cases

Page(s)

Bragdon v. Abbott, 524 U.S. 624 (1998) ..................................................................................... 13
Branham v. Snow, 392 F.3d 896 (7th Cir. 2004) .................................................................... 2, 13
Echazabal v. Chevron USA, Inc., 336 F.3d 1023 (9th Cir. 2003) .................................................................. 2, 13
Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643 (10th Cir. 2006) ...................................................................... 10
Jarvis v. Potter, 500 F.3d 1113 (10th Cir. 2007) .................................................. 1, 8, 9, 12, 13
Lederman v. Frontier Fire Prot., Inc., 685 F.3d 1151 (10th Cir. 2012) ...................................................................... 1
McKenzie v. Benton, 388 F.3d 1342 (10th Cir. 2004) .......................................................... 2, 11, 12
Verzeni v. Potter, 109 F. App’x 485 (3d Cir. 2004) .............................................................. 2, 13
Webb v. ABF Freight Sys., Inc., 155 F.3d 1230 (10th Cir. 1998) ...................................................................... 1

Statutes and Regulations 42 U.S.C. § 12101 et seq. ......................................................................................... 2 42 U.S.C. § 12113 .................................................................................................... 7 42 U.S.C. § 12113(b)............................................................................................ 7, 8
ii

29 C.F.R. § 1630.2(r).................................................................................. 2, 8, 9, 13 Other Authority Fed. Civ. Jury Instr. 7th Cir. 4.10 (2010) ........................................................... 3, 14 Model Civ. Jury Instr. 3d Cir. 9.3.1 (2011) ........................................................ 3, 14 Model Civ. Jury Instr. 9th Cir. 12.12 (2007)...................................................... 3, 14
iii

Rule 35(b) Statement In this appeal, the panel concluded that reversal of the jury’s verdict was warranted. Relying on this Court’s decision in Jarvis v. Potter, 500 F.3d 1113, 1122-23 (10th Cir. 2007), the panel held that the district court was required to state at the very outset of its “direct threat” instruction that Beverage Distributors Co. (“BDC”) “could avoid liability by showing that it reasonably determined” that its employee posed a direct threat. The panel concluded that beginning by instructing the jury that BDC had to “prove” that the employee posed a direct threat tainted the entire instruction. Slip op. at 3-5. The panel held, in essence, that a court commits reversible error when, in what the panel denoted the “first part” of the direct threat jury instruction, it gives an instruction that tracks the relevant statutory and regulatory language and then, in the “second part,” provides the jury with the applicable standards developed in the case law for making a direct threat determination. That conclusion is inconsistent with this Court’s recognition that what is critical in assessing jury instructions is whether “‘the charge as a whole adequately states the law,’” Lederman v. Frontier Fire Prot., Inc., 685 F.3d 1151, 1155 (10th Cir. 2012) (citation omitted), and “‘[n]o particular form of words is essential if the instruction as a whole conveys the correct statement of the applicable law,’” Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1248 (10th Cir. 1998) (citation omitted).
1

The panel ruling also conflicts with the precedent of this Court interpreting the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Equal Employment Opportunity Commission’s (“Commission”) ADA regulations, 29 C.F.R. § 1630.2(r). Not only is the panel’s ruling not compelled by Jarvis, it conflicts with McKenzie v. Benton, 388 F.3d 1342 (10th Cir. 2004), a direct threat case in which this Court did not focus on “objective reasonableness” as the central issue. Instead, this Court repeatedly observed that the jury found that the plaintiff “posed a direct threat,” not that the employer had reasonably reached that conclusion; this Court referred to the burden of proof as requiring proof that the plaintiff was a direct threat; and the direct threat instruction cited by this Court did not ask the jury to assess the objective reasonableness of the employer’s direct threat determination. 388 F.3d at 1345, 1347, 1352 & n.3, 1356. By contrast, the panel deemed the instruction here to be flawed because, although it used the term “objectively reasonabl[e]” two times, it was insufficiently explanatory at the outset.
The panel’s conclusion is also in conflict with three other courts of appeals that acknowledge the fact-finder’s role as determining the objective reasonableness of the employer’s direct threat determination, yet have model jury instructions that do not require stating at the outset that the jury must assess the objective reasonableness of the employer’s direct threat determination. See Branham v. Snow, 392 F.3d 896, 906 (7th Cir. 2004); Verzeni v. Potter, 109 F. App’x 485, 491-92 (3d Cir. 2004) (unpubl.); Echazabal v. Chevron USA, Inc., 336 F.3d 1023, 1033 (9th Cir. 2003); see also Model
2

Civ. Jury Instr. 3d Cir. 9.3.1 (2011) (attached at Addendum-1); Fed. Civ. Jury Instr. 7th Cir. 4.10 (2010) (attached at Addendum-3); Model Civ. Jury Instr. 9th Cir. 12.12 (2007) (attached at Addendum-4). And as with the instruction in McKenzie, these other courts’ direct threat model jury instructions closely track the instruction given here. To our knowledge, no other court of appeals has adopted the approach to a direct threat jury instruction taken by the panel in this case. Accordingly, the panel decision conflicts with the decisions of this Court and is in tension with the treatment of the issue in other courts of appeals, and panel rehearing or consideration by the full Court is therefore necessary to secure and maintain uniformity of this Court’s decisions.
Statement of Facts In this ADA enforcement action, the Commission brought suit alleging that BDC refused to hire charging party Mike Sungaila because of his disability. As a child, Sungaila was diagnosed with achromatopsia, a non-progressive eye disease. Defendant/Appellant’s Appendix (“App.”) 636. As a result of this condition, Sungaila is unable to see detail “too well” from a distance. App.636. Sungaila can see better indoors than outdoors in sunlight, and has no problems with his peripheral vision. App.637. BDC is a wholesale liquor distribution company. App.784-85. Sungaila began working for BDC in 2000, first as a “Lumper” preparing product for delivery, and then, starting in 2003, as a Driver’s Helper. App.649-50, 657, 626. Sungaila was a safe, effective employee who was never injured on the job, did not have any safety incidents, and received safety awards and bonuses. App.403, 675; Supp.App.16-18. In March
3

2008, BDC eliminated the Driver’s Helper position. App.596. Bob Pieron (BDC’s Director of Safety and Security), John Johnson (Vice President of Operations), Tom Rogers (Delivery Manager), and Curt Eby (Night Shift Manager) all encouraged Sungaila to apply for a Night Warehouse Associate position. App.398, 412, 446, 461, 580, 594, 676. Sungaila was sure he could do the job despite his disability, as he had previously done many of the same tasks in the warehouse while working as a Driver’s Helper and Lumper. App.677. BDC required only a short interview before making Sungaila a conditional job offer. App.678-79. While Sungaila was exempted from the standard preemployment physical agility test, Sungaila was required to undergo a pre-employment medical examination. App.414, 418; Supp.App.28-29.
Dr. Sanidas performed Sungaila’s medical examination. App.419, 499, 518. Dr. Sanidas testified that when he asked Sungaila whether he has any disabilities, Sungaila responded simply that he was “legally blind.” App.530. Dr. Sanidas did not ask Sungaila any follow-up questions about his vision, did not examine Sungaila’s visual acuity—he simply “took [Sungaila] at his word”—and did not fail Sungaila on his exam. App.530-31, 544. Instead, “the only recommendation [Dr. Sanidas had] is that [Sungaila] should have work accommodations.” App.544. Dr. Sanidas checked a box on the medical evaluation report indicating that “a medical condition exists which may be a direct threat to self or others unless reasonable accommodations are available.” App.544. (emphasis added). Dr. Sanidas also noted that Sungaila was “legally blind. Should not
4

climb ladders. Cannot drive. Not to drive pallet jack, forklift, and avoid being in the way
of these or hit by them.” App.545.
After receiving Dr. Sanidas’ report, Pieron, Johnson, and HR Director Linda
Hollman decided to withdraw their offer of employment to Sungaila, based entirely on
Dr. Sanidas’ report. App.419-20. They made this decision even though none of the
decisionmakers knew what “legally blind” meant, and without attempting to contact Dr.
Sanidas to discuss his recommendation. App.848. BDC also did not present Sungaila
with the opportunity to provide a vision report from his own doctor—an opportunity the
company had provided to other employees or applicants after undergoing a pre-
employment medical examination. App.407, 449, 451, 842-43, 903. Pieron and Rogers
met briefly with Sungaila to tell him that they were revoking their job offer. App.597.
They told Sungaila that he was a “liability,” but did not ask questions about his vision or
discuss potential accommodations. App.436, 657, 685.
The Direct Threat Instruction
The district court’s direct threat jury instruction read as follows:
If you find that the EEOC has proved [that BDC failed to hire Sungaila because of his disability], then you must determine whether Beverage Distributors has proved its affirmative defense that Mr. Sungaila’s employment in a Night Warehouse position posed a direct threat to himself or other employees.
To establish this defense, Beverage Distributors must prove both of the following by a preponderance of the evidence:
1. Mr. Sungaila’s employment in a Night Warehouse position posed a significant risk of substantial harm to the health or safety of Mr. Sungaila and/or other employees; and
5

2. Such a risk could not have been eliminated or reduced by reasonable accommodation.
A direct threat means a significant risk of substantial harm to the health or safety of the person or other persons that cannot be eliminated or reduced by reasonable accommodation. The determination that a direct threat exists must have been based on a specific personal assessment of Mr. Sungaila’s ability to safely perform the essential functions of the job. This assessment of Mr. Sungaila’s ability must have been based on either a reasonable medical judgment that relied on medical knowledge available at the time of the assessment, or on the best objective evidence available at the time of the assessment. For evidence to be “available” it must have been in existence at the time of the assessment. An employer’s subjective belief that a direct threat exists, even if maintained in good faith, is not sufficient unless it is objectively reasonable. . . .
In determining whether Beverage Distributors acted objectively reasonably when it determined that Mr. Sungaila was a direct threat, you must consider the following factors: (a) the duration of the risk; (b) the nature and severity of the potential harm; (c) the likelihood that the potential harm would occur; and (d) the imminence of the potential harm.
App.78.
Panel Decision
The panel concluded that the district court’s direct threat instruction constituted
reversible error because it “did not accurately convey the direct-threat standard.” Slip op.
at 5. The panel stated that “[a]ccording to the first part of the instruction, [BDC] had to
prove that Mr. Sungaila posed a direct threat” but “[t]his was not accurate under our case
law.” Id. at 6. Instead, the panel stated, BDC “should have avoided liability if it had
reasonably believed the job would entail a direct threat; proof of an actual threat should
have been unnecessary” and the instruction “overstated [BDC’s] burden.” Id. at 6-7. The
6

panel added that the “second part of the instruction did not cure the error” because, while “stat[ing] that the jury was to consider the reasonableness of [BDC’s] belief regarding the existence of a direct threat” “the jury was never told why it was to consider the reasonableness of what [BDC] thought.” Id. at 7. The panel further stated that “[e]ven if the instruction had directed the jury to consider [BDC’s] determination, that determination was about the ‘existence’ of a direct threat, not the objective reasonableness of the determination.” Id. at 7 n.2. The panel ultimately determined that reversal was necessary because the jury might have relied upon the given direct threat instruction. Id. at 8.
Argument While the panel determined that the district court’s direct threat instruction “did not accurately convey the direct-threat standard,” slip op. at 5, this is incorrect. The instruction tracked the legal standard for the direct threat defense, and so did not constitute reversible error. Because of the inter- and intra-circuit confusion caused by the panel’s contrary conclusion, panel rehearing or rehearing en banc is required to clarify the proper legal standard for establishing the direct threat defense. As an affirmative defense to a claim of disability discrimination, the ADA provides that employers may require “that an individual shall not pose a direct threat to the health or safety of other workers in the workplace.” 42 U.S.C. § 12113(b). The ADA defines “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3). No statutory
7

language indicates that proof of direct threat is connected to the employer’s reasonable belief.
The direct threat instruction in the instant case was substantively identical to both this statutory language, and to language in the Commission’s ADA regulations and this Court’s precedent, explaining the direct threat defense. The instruction first directed the jury to “determine whether Beverage Distributors has proved its affirmative defense that Mr. Sungaila’s employment in a Night Warehouse position posed a direct threat to himself or other employees.” App.78. See 42 U.S.C. § 12113(b) (providing that employers may require “that an individual shall not pose a direct threat to the health or safety of other workers in the workplace”). The instruction next stated:
To establish this defense, Beverage Distributors must prove both of the following by a preponderance of the evidence: 1. Mr. Sungaila’s employment in a Night Warehouse position posed a significant risk of substantial harm to the health or safety of Mr. Sungaila and/or other employees; and 2. Such a risk could not have been eliminated or reduced by reasonable accommodation. App.78. See 29 C.F.R. § 1630.2(r) (ADA regulations defining “direct threat” as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation”); Jarvis, 500 F.3d at 1121 (same). The instruction then repeated this definition of direct threat, and continued: A direct threat means a significant risk of substantial harm to the health or safety of the person or other persons that cannot be
8

eliminated or reduced by reasonable accommodation. The determination that a direct threat exists must have been based on a specific personal assessment of Mr. Sungaila’s ability to safely perform the essential functions of the job. This assessment of Mr. Sungaila’s ability must have been based on either a reasonable medical judgment that relied on medical knowledge available at the time of the assessment, or on the best objective evidence available at the time of the assessment.
App.78. See 29 C.F.R. § 1630.2(r) (“The determination that an individual poses a
‘direct threat’ shall be based on an individualized assessment of the individual’s
present ability to safely perform the essential functions of the job. This
assessment shall be based on a reasonable medical judgment that relies on the
most current medical knowledge and/or on the best available objective
evidence.”); Jarvis, 500 F.3d at 1122 (same). Later, the instruction stated:
In determining whether Beverage Distributors acted objectively reasonably when it determined that Mr. Sungaila was a direct threat, you must consider the following factors: (a) the duration of the risk; (b) the nature and severity of the potential harm; (c) the likelihood that the potential harm would occur; and (d) the imminence of the potential harm.
App.78. See 29 C.F.R. § 1630.2(r) (“[I]n determining whether an individual would pose
a direct threat, the factors to be considered include: (1) The duration of the risk; (2) The
nature and severity of the potential harm; (3) The likelihood that the potential harm will
occur; and (4) The imminence of the potential harm.”); Jarvis, 500 F.3d at 1122 (same).
The instruction thus was substantially identical to the statutory and regulatory
language that this Court recognizes as describing the requirements of the direct threat
defense. In addition, the instruction twice referred to assessing the objective
reasonableness of BDC’s direct threat determination: 9

An employer’s subjective belief that a direct threat exists, even if maintained in good faith, is not sufficient unless it is objectively reasonable. . . . In determining whether Beverage Distributors acted objectively reasonably when it determined that Mr. Sungaila was a direct threat, you must consider the following factors . . . . App.78. Accordingly, reading the charge as a whole reveals that the district court’s direct threat instruction correctly stated the standard of proof BDC was required to meet in order to establish its direct threat defense, and so provided the jury with an ample understanding of the applicable principles of law and factual issues confronting them. See Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 660 (10th Cir. 2006) (“We review de novo whether, as a whole, the district court’s jury instructions correctly stated the governing law and provided the jury with an ample understanding of the issues and applicable standards.”). To parse out the instructions into two parts walled off from each other, as the panel did here, is at odds with Grace United. The panel’s focus on the reasonableness of the employer’s determination, as opposed to the evidentiary support for its determination, would make sense if, for example, the employer had mistakenly but reasonably relied on false information or an outdated medical analysis. But that is not this case. The jury’s application of the direct threat factors to the evidence BDC submitted is necessarily the same as its assessment of the reasonableness of BDC’s conclusion about whether Sungaila posed a direct threat. Thus, the panel’s belief that it was error not to focus the
10

jury’s attention initially on the reasonableness of BDC’s belief cannot be squared with BDC’s theory of the case or the evidence it presented.
Furthermore, the panel’s conclusion conflicts with the standard for direct threat jury instructions recognized previously by this Court, and with other circuits’ treatment of direct threat jury instructions. Until now, no court of appeals—including this Court— has required that a jury instruction on the direct threat defense state explicitly at the outset that the jury is to assess the “objective reasonableness” of the employer’s direct threat determination. To the contrary, this Court implicitly has approved of direct threat jury instructions that do not mention the objective reasonableness of the employer at all, but instead simply lay out the proper factors to consider. In McKenzie, an ADA failureto-hire case, the employer asserted the direct threat defense at a jury trial. 388 F.3d at 1345. This Court described certain trial testimony as relevant to “the jury’s examination of whether [plaintiff] was a direct threat to herself and others,” not whether the employer’s determination of such was reasonable. Id. This Court quoted the instruction, which listed the relevant factors and noted, as did the instructions here, that “‘the determination . . . may be based on valued medical analyses and/or on other objective evidence.’” Id. at 1352 n.3.
This Court then held that “the district court did not err by instructing the jury that the burden rested on the plaintiff to prove that she did not pose a ‘direct threat’ to others in the workplace.” Id. at 1356 (emphasis added). While this holding is focused primarily
11

on the question of which party bears the burden of proof, 1 it also indicates that
explaining the “objective” evidence on which a direct threat determination may be based
adequately instructs the jury. As such, McKenzie is at odds with the panel holding in the
instant case.
Nor did Jarvis—the jurisprudential basis for the instant panel decision—suggest
that the instruction in McKenzie was erroneous. In Jarvis, this Court mentioned
McKenzie in its direct threat analysis, but did not address the jury instruction in McKenzie or otherwise discuss how a jury should be instructed on the direct threat defense.2 Jarvis,
500 F.3d at 1121-23. This Court stated that “[t]he fact-finder’s role is to determine
whether the employer’s decision was objectively reasonable,” but it did not require,
contrary to the panel’s interpretation of Jarvis, that to make such an assessment the jury
must be instructed at the outset to assess not only whether the employer’s determination
was properly based on the requisite criteria, but also, separately, whether the employer’s
determination was “reasonable.” Id. at 1122-23.
The panel decision is also inconsistent with how other circuits have treated this
question. Three other courts of appeals have recognized, as has this Court, that an
employer’s direct threat determination must be objectively reasonable—but this 1 In McKenzie, this Court concluded that the plaintiff bore the burden of proof on the direct threat question because the parties agreed the occupation at issue was “inherently dangerous.” 388 F.3d at 1355-56. While BDC bore the burden of proof on its direct threat defense here, the relevant considerations are the same whichever party bears the burden of proof. 2 Similarly, the panel cited McKenzie but only for the proposition that direct threat is an affirmative defense. Slip op. at 4.
12

assessment is linked to whether the employer considered the proper criteria. See Jarvis, 500 F.3d at 1122-23 (recognizing that “the fact-finder’s role is to determine whether the employer’s decision was objectively reasonable,” and citing the direct threat criteria described at 29 C.F.R. § 1630.2(r)); Branham, 392 F.3d at 906 (“The assessment of risk ‘must be based on medical or other objective evidence’ and the determination that a significant risk exists must be objectively reasonable.”) (quoting in part Bragdon v. Abbott, 524 U.S. 624, 649-50 (1998)); Echazabal, 336 F.3d at 1033 (stating that courts must assess “whether the opinion that a direct threat existed was objectively reasonable” and adding in a parenthetical that “analysis of direct threat ‘requires the employer to gather “substantial information” about the employee’s work history and medical status, and disallows reliance on subjective evaluations by the employer’”) (citation omitted) (emphasis in original); Verzeni, 109 F. App’x at 491-92 (“Any jury considering this defense should be instructed not to base its determination on unfounded fears, but only on medically accurate facts. . . . [T]he jury should ‘assess the objective reasonableness of the views of health care professionals without deferring to their individual judgments.’ Not providing these warnings to the jury takes the risk that the jury’s determination will be based on the same ‘archaic attitudes’ Congress was trying to prevent.”) (citation omitted). As in these cases, here too the district court’s jury charge directed the jury to evaluate BDC’s determination of Sungaila’s safety threat in light of the relevant factors.
Consistent with this precedent, the Third and Ninth Circuits’ pattern jury instructions provide the same type of instruction that the district court provided here—
13

both start by stating that the employer “must prove” the individual posed a direct threat. Compare App.78 with Model Civ. Jury Instr. 3d Cir. 9.3.1 (2011) (attached at Addendum-1) (“Your verdict must be for [defendant] if [defendant] has proved both of the following by a preponderance of the evidence: First: [Defendant] [specify actions taken with respect to plaintiff] because [plaintiff] posed a direct threat to the health or safety of [plaintiff][others in the workplace]; and Second: This direct threat could not be eliminated by providing a reasonable accommodation.”), and Model Civ. Jury Instr. 9th Cir. 12.12 (2007) (attached at Addendum-4) (“The defendant claiming the direct threat defense must prove by a preponderance of the evidence that plaintiff posed a direct threat to the health or safety of [[others][himself][herself]] that could not be eliminated by a reasonable accommodation.”).3 Again, like the instruction here, the model instructions list the relevant factors to consider. Id.
The Seventh Circuit’s direct threat pattern jury instruction reads slightly differently, but instructs the jury to consider the defendant’s assessment of direct threat in the same way the district court here instructed the jury. See Fed. Civ. Jury Instr. 7th Cir. 4.10 (2010) (attached at Addendum-3) (“In this case, Defendant says that it [did not accommodate/did not hire/fired] Plaintiff because [accommodating/hiring/retaining] him would have created a significant risk of substantial harm to [plaintiff and/or others in the workplace]. [Defendant must have based this decision on a reasonable medical judgment that relied on [the most current medical knowledge][the best available objective 3 The brackets and emphases used in all these model jury instructions were provided by the drafters of the instructions.
14

evidence] about whether Plaintiff could safely perform the essential functions of the job

at the time.] If Defendant proves this to you by a preponderance of the evidence, you

must find for Defendant. . . . [Defendant must prove that there was no reasonable

accommodation that it could make which would eliminate the risk or reduce it so that it

was no longer a significant risk of substantial harm.]”).

Despite holding a similar understanding of the direct threat defense, no other court

of appeals has required that a direct threat jury instruction explicitly direct the jury to

assess the objective reasonableness of the employer’s determination at the outset, and the

panel’s ruling creates a conflict with the direct threat jury instructions approved in those

other jurisdictions.

Conclusion

For the foregoing reasons, the Commission respectfully requests that the Court

grant this petition for panel rehearing and/or rehearing en banc.

Respectfully submitted,

P. DAVID LOPEZ General Counsel
CAROLYN L. WHEELER Acting Associate General Counsel
JENNIFER S. GOLDSTEIN Acting Assistant General Counsel

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov

s/ James M. Tucker JAMES M. TUCKER Attorney

15

Addendum

Page 1 of 2

FEDCIV-JI3C 9.3.1 Model Civ. Jury Instr. 3rd Cir. 9.3.1 (2011)

Page 1

Federal Jury Practice And Instructions
Model Civil Jury Instructions for the District Courts of the Third Circuit Prepared by Committee on Model Civil Jury Instructions Third Circuit
Federal Claims Instructions Chapter
9. Instructions for Employment Claims Under the Americans With Disabilities Act
9.3.1 ADA Defenses—Direct Threat
In this case, [defendant] claims that it [describe employment action] [plaintiff] because [plaintiff] would have created a significant risk of substantial harm to [plaintiff] [others in the workplace].
Your verdict must be for [defendant] if [defendant] has proved both of the following by a preponderance of the evidence:
First: [Defendant] [specify actions taken with respect to plaintiff] because [plaintiff] posed a direct threat to the health or safety of [plaintiff] [others in the workplace]; and
Second: This direct threat could not be eliminated by providing a reasonable accommodation, as I have previously defined that term for you.
A direct threat means a significant risk of substantial harm to the health or safety of the person or other persons that cannot be eliminated by reasonable accommodation. The determination that a direct threat exists must have been based on a specific personal assessment of [plaintiff's] ability to safely perform the essential functions of the job. This assessment of [plaintiff's] ability must have been based on either a reasonable medical judgment that relied on the most current medical knowledge, or on the best available objective evidence.
In determining whether [plaintiff] would have created a significant risk of substantial harm, you should consider the following factors: 1)
How long any risk would have lasted; 2)
The nature of the potential harm and how severe the harm would be if it occurred; 3)
The likelihood the harm would have occurred; and 4)
Whether the harm would be likely to recur.
Comment
The ADA provides an affirmative defense where accommodation of, hiring or retaining an employee would constitute a “direct threat.” 42 U.S.C. § 12113(b). “Direct threat” is defined as “a significant risk to the health or

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FEDCIV-JI3C 9.3.1 Model Civ. Jury Instr. 3rd Cir. 9.3.1 (2011)

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safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C.§ 12111(3). The regulations extend this definition to include a direct threat to the health or safety of the plaintiff as well. In Chevron U.S.A., Inc., v. Echazabal, 536 U.S. 73, 79 (2002), the Court upheld those regulations and held that the “direct threat” defense applied to a direct threat of harm to the plaintiff as well as to others. The Court specifically noted that direct threat is an “affirmative defense” to the ADA qualification standards. Thus a plaintiff does not have the burden of proving that she did not pose a direct threat to the health and safety of herself or others in the work- place.
FEDCIV-JI3C 9.3.1
END OF DOCUMENT

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FEDCIV-JI7C 4.10 Fed. Civ. Jury Instr. 7th Cir. 4.10 (2010)

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Federal Jury Practice And Instructions Federal Jury Instructions: Seventh Circuit, Civil Cases Prepared by the Committee on Pattern Civil Jury Instructions of the Seventh Circuit
4. Employment Discrimination: Americans with Disabilities Act
4.10 Direct Threat Defense
In this case, Defendant says that it [did not accommodate/did not hire/fired] Plaintiff because [accommodating/hiring/retaining] him would have created a significant risk of substantial harm to [Plaintiff and/or others in the workplace]. [Defendant must have based this decision on a reasonable medical judgment that relied on [the most current medical knowledge] [the best available objective evidence] about whether Plaintiff could safely perform the essential functions of the job at the time.] If Defendant proves this to you by a preponderance of the evidence, you must find for Defendant.
In deciding if this is true, you should consider the following factors: (1) how long the risk will last; (2) the nature and severity of the potential harm; (3) how likely it is that the harm will occur; and (4) whether the potential harm is likely to occur in the near future.
[Defendant must prove that there was no reasonable accommodation that it could make which would eliminate the risk or reduce it so that it was no longer a significant risk of substantial harm.]
Committee Comments
The format of the instruction is taken from EIGHTH CIRCUIT MANUAL OF MODEL CIVIL JURY INSTRUCTIONS § 5.53B (2001) (“'Direct Threat'—Statutory Defense”) and NINTH CIRCUIT MANUAL OF MODEL CIVIL JURY INSTRUCTIONS § 15.12 (2001) (“Defenses—Direct Threat”). The instruction conforms with 42 U.S.C. § 12111(3) (definition of direct threat), 42 U.S.C. § 12113(b) (a qualification standard can include a condition that a person not pose a direct threat), and Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002) (“direct threat” includes a threat to the employee himself); School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987) (criteria for direct threat under analogous Rehabilitation Act of 1973); Emerson v. Northern States Power Co., 256 F.3d 506, 513–514 (7th Cir. 2001); Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 671–672 (7th Cir. 2000); and EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1283–1284 (7th Cir. 1995).
As to the burden of proof, see Branham v. Snow, 392 F.3d 896, 905–907 (7th Cir. 2004).
FEDCIV-JI7C 4.10
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FEDCIV-JI9C 12.12 Model Civ. Jury Instr. 9th Cir. 12.12 (2007)

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Federal Jury Practice And Instructions Current through May 2007
Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit Prepared by Committee on Model Civil Jury Instructions Within the Ninth Circuit
12. Americans With Disabilities Act
12.12 ADA—Defenses—Direct Threat
It is a defense to the plaintiff's ADA claim if the plaintiff posed a direct threat to the health and safety of others [or if the requirements of the job would pose a direct threat to the plaintiff]. The defendant may require, as a qualification for the position, that an individual not pose a “direct threat” to the health or safety of [[others] [himself] [herself]] in the workplace. A health or safety risk can only be considered if it is a significant risk of substantial harm. Assessment of the existence of a direct threat must be based on valid and objective evidence and not speculation.
The defendant claiming the direct threat defense must prove by a preponderance of the evidence that the plaintiff posed a direct threat to the health or safety of [[others] [himself] [herself]] that could not be eliminated by a reasonable accommodation.
Factors that may be considered in determining whether an individual poses a direct threat to the health and safety of [[others] [himself] [herself]] are: (1)
the nature and severity of the potential harm; (2)
the duration of the potential harm; (3)
the imminence of the potential harm; and (4)
the probability of the harm occurring.
If you find that each of the elements on which the plaintiff has the burden of proof has been proved, your verdict should be for the plaintiff, unless you also find that the defendant has proved this affirmative defense, in which event your verdict should be for the defendant.
Comment
See 42 U.S.C. §§ 12111(3) (defines direct threat), 12113(b) (provides that a qualification standard can include a condition that a person not pose a direct threat); School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987) (claim under the Rehabilitation Act of 1973), provides the criteria for what is considered a direct threat.
This defense does apply when the direct threat is to the disabled individual. See Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 76–77 (2002) (recognizing the availability of the “direct threat” defense where toxins at

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FEDCIV-JI9C 12.12 Model Civ. Jury Instr. 9th Cir. 12.12 (2007)
an oil refinery would exacerbate plaintiff's liver condition). FEDCIV-JI9C 12.12 END OF DOCUMENT

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Panel Decision

Appellate Case: 14-1012

Document: 01019398555
PUBLISH

Date Filed: 03/16/2015 Page: 1
FILED United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS March 16, 2015

TENTH CIRCUIT

Elisabeth A. Shumaker Clerk of Court

Equal Employment Opportunity Commission,
Plaintiff-Appellee, v.
Beverage Distributors Company, LLC,
Defendant-Appellant.

No. 14-1012

Appeal from the United States District Court for the District of Colorado
(D.C. No. 1:11-cv-02557-CMA-CBS)
Scott Forman, Littler Mendelson, P.C., Miami, Florida (Joshua B. Kirkpatrick and Jennifer S. Harpole, Littler Mendelson, P.C., Denver, Colorado, with him on the brief), for Appellant.
James Tucker, Equal Employment Opportunity Commission, Washington, D.C. (P. David Lopez, General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel, and Jennifer S. Goldstein, Acting Assistant General Counsel, Equal Employment Opportunity Commission, Washington, D.C., with him on the brief), for Appellee.
Before TYMKOVICH, HOLMES, and BACHARACH, Circuit Judges.
BACHARACH, Circuit Judge.

Appellate Case: 14-1012 Document: 01019398555 Date Filed: 03/16/2015 Page: 2
This case involves a claim of employment discrimination. Mr. Michael Sungaila, who is legally blind, worked for Beverage Distributors Company. When his position was eliminated, Mr. Sungaila obtained a higher-paying job in the company’s warehouse. But, Mr. Sungaila’s employment was conditioned on passing a physical examination.
Mr. Sungaila passed the physical. But, the examining doctor stated that Mr. Sungaila would require workplace accommodations to mitigate the risks from his impaired vision. Beverage Distributors concluded that it could not reasonably accommodate Mr. Sungaila’s condition and rescinded the offer of a job in the warehouse. Shortly thereafter, Mr. Sungaila found a lower-paying position with another company.
Mr. Sungaila filed a discrimination claim with the Equal Employment Opportunity Commission, which then sued Beverage Distributors on Mr. Sungaila’s behalf under the Americans with Disabilities Act.
At trial, Beverage Distributors asserted two defenses. 1. Direct Threat. Beverage Distributors stated that Mr. Sungaila’s
impaired vision would create a significant risk of harm to himself and others and no reasonable accommodations could reduce or eliminate that risk. 2. Failure to Mitigate Damages. Beverage Distributors added that if Mr. Sungaila were to prevail, the fact-finder should reduce the award because of a failure to mitigate damages. The jury found that Beverage Distributors was liable for discrimination and that Mr. Sungaila was not a direct threat. But, the jury
2

Appellate Case: 14-1012 Document: 01019398555 Date Filed: 03/16/2015 Page: 3
also found that Mr. Sungaila had failed to mitigate his damages. Based on these findings, the jury awarded Mr. Sungaila a reduced back pay award because of his failure to mitigate.
The EEOC filed two post-trial motions. In the first motion, the EEOC invoked Federal Rule of Civil Procedure 50(a) and argued that Beverage Distributors had not proven as a matter of law that Mr. Sungaila failed to mitigate his damages. The court agreed and reinstated the full damage award. In the second motion, the EEOC sought a tax-penalty offset to compensate Mr. Sungaila for the additional tax liability resulting from the lump-sum award of back pay. The court granted that motion and awarded the tax offset.
Beverage Distributors appeals, arguing in part: 1. The direct-threat instruction constitutes reversible error; and 2. the district court abused its discretion in awarding the tax
offset. We reverse because the direct-threat jury instruction constituted error. But, if the EEOC prevails upon retrial, Mr. Sungaila may be entitled to a tax offset. I. Direct-Threat Instruction
Beverage Distributors argues that the direct-threat instruction constituted reversible error. We agree, concluding that the instruction inaccurately conveyed the direct-threat standard.
3

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A. Standard of Review
We first consider whether the direct-threat instruction is erroneous. In doing so, we review the entire instruction de novo1 to determine whether
it accurately states the governing law. Gardetto v. Mason, 100 F.3d 803,
816 (10th Cir. 1996).
B. Direct-Threat Defense
The direct-threat defense stems from the Americans with Disabilities
Act. Under the Act, an employer cannot discriminate on the basis of a
disability. See 42 U.S.C. § 12112(a). But, an employer may decide not to
hire disabled individuals if they pose a “direct threat to the health or
safety” of themselves or others. 29 C.F.R. § 1630.15(b)(2). A “direct
threat” involves “a significant risk of substantial harm to the health or
safety of the [person] or others that cannot be eliminated or reduced by
reasonable accommodation.” 29 C.F.R. § 1630.2(r).
The existence of a direct threat is an affirmative defense to a
statutory claim of discrimination. McKenzie v. Benton, 388 F.3d 1342,
1353-54 (10th Cir. 2004). For this defense, Beverage Distributors had to
1 The EEOC urges an abuse-of-discretion standard. We disagree. That standard is appropriate only when we are reviewing a district court’s decision to give (or not to give) a specific instruction. See Lederman v. Frontier Fire Prot., Inc., 685 F.3d 1151, 1154 (10th Cir. 2012) (stating that appellate courts “review a district court’s decision to give a particular jury instruction for abuse of discretion”). Here, we are reviewing the legal sufficiency of an instruction, which is a question we review de novo. Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1237 (10th Cir. 2002); Sherouse v. Ratchner, 573 F.3d 1055, 1059 (10th Cir. 2009).
4

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show that it reasonably determined that Mr. Sungaila had posed a direct threat. See Jarvis v. Potter, 500 F.3d 1113, 1122 (10th Cir. 2007) (stating that “the fact-finder does not independently assess whether it believes that the employee posed a direct threat,” but “determine[s] [instead] whether the employer’s decision was objectively reasonable”).
In sum, Beverage Distributors could avoid liability by showing that it reasonably determined:
1. Mr. Sungaila posed a significant risk of substantial harm to the health or safety of himself or others, and
2. that risk could not be eliminated or reduced by reasonable accommodation.
C. The Direct-Threat Instruction We consider these elements to determine whether the district court correctly instructed the jury. Doing so, we conclude that the instruction did not accurately convey the direct-threat standard. The direct-threat instruction contained two parts. The first part explained what Beverage Distributors had to “prove” to establish the defense:
To establish this defense, Beverage Distributors must prove both of the following by a preponderance of the evidence: 1. Mr. Sungaila’s employment in a Night Warehouse
position posed a significant risk of substantial harm to the health or safety of Mr. Sungaila and/or other employees; and
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2. Such a risk could not have been eliminated or reduced by reasonable accommodation.
Appellant’s App. at 78. The second part of the instruction elaborated
on the standard:
The determination that a direct threat exists must have been based on a specific personal assessment of Mr. Sungaila’s ability to safely perform the essential functions of the job. This assessment of Mr. Sungaila’s ability must have been based on either a reasonable medical judgment that relied on medical knowledge [or best objective evidence] available at the time of assessment . . . . An employer’s subjective belief that a direct threat exists, even if maintained in good faith, is not sufficient unless it is objectively reasonable.
. . . .
In determining whether Beverage Distributors acted objectively reasonably when it determined that Mr. Sungaila was a direct threat, you must consider the following factors: (a) the duration of the risk; (b) the nature and severity of the potential harm; (c) the likelihood that the potential harm would occur; and (d) the imminence of the potential harm.
Id. The instruction did not accurately convey the direct-threat standard.
The first part of the instruction required Beverage Distributors to
prove more than what was legally necessary. According to the first part,
Beverage Distributors had to prove that Mr. Sungaila posed a direct threat.
That was not accurate under our case law. Beverage Distributors should
have avoided liability if it had reasonably believed the job would entail a
direct threat; proof of an actual threat should have been unnecessary. See
Jarvis v. Potter, 500 F.3d 1113, 1122 (10th Cir. 2007) (“[T]he fact-finder
does not independently assess whether it believes that the employee posed
6

Appellate Case: 14-1012 Document: 01019398555 Date Filed: 03/16/2015 Page: 7
a direct threat.”). Thus, the instruction overstated Beverage Distributors’ burden. See Menne v. Celotex Corp., 861 F.2d 1453, 1470-71 (10th Cir. 1988) (concluding that jury instructions were erroneous because they confused the burden of proof).
The second part of the instruction did not cure the error. This part stated that the jury was to consider the reasonableness of Beverage Distributors’ belief regarding the existence of a direct threat. But, the jury was never told why it was to consider the reasonableness of what Beverage Distributors thought. Thus, the error was not cured by a reference in the instruction to the reasonableness of the company’s subjective belief.2
In sum, the instruction was erroneous. The first part of the instruction inaccurately stated that Beverage Distributors had to prove that Mr. Sungaila posed a direct threat. And the second part of the instruction did not cure the error by directing the jury, without explanation, to consider the reasonableness of Beverage Distributors’ belief.
2 The EEOC suggests that the instruction directed the jury to consider Beverage Distributors’ subjective determination by referring to that determination in the past tense. For instance, the instruction stated that “[t]he determination that a direct threat exist[ed] must have been based on a specific personal assessment of Mr. Sungaila’s ability to safely perform the essential functions of the job.” Appellant’s App. at 78 (emphasis added). We reject this argument. Even if the instruction had directed the jury to consider Beverage Distributors’ determination, that determination was about the “existence” of a direct threat, not the objective reasonableness of the determination.
7

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D. Need for Reversal We must reverse if the jury might have relied on an erroneous jury instruction. Level 3 Commc’n, LLC v. Liebert Corp., 535 F.3d 1146, 1158 (10th Cir. 2008). Thus, reversal is warranted even if it is “very unlikely” that the jury relied on the erroneous standard. Id. We conclude that the jury might have relied on the erroneous directthreat standard; thus, reversal is warranted. The inaccurate standard appeared prominently in the instruction, and the verdict form directed the jury to consider that erroneous standard. See Appellant’s App. at 91 (“Did Defendant Beverage Distributors prove . . . both elements of its affirmative defense that Mr. Sungaila’s employment in the Night Warehouse position posed a direct threat to himself or other employees . . . ?” (emphasis added)). Because the instruction and verdict form could have misled the jury on the standard, we must reverse. II. Mitigation of Damages Beverage Distributors also argues that the district court erroneously granted the EEOC’s Rule 50(a) motion, arguing that the evidence could have allowed the jury to find a failure to mitigate damages. We need not decide this issue. The sufficiency of the evidence entails a fact-intensive inquiry, and the mitigation evidence may be different on remand. Thus, we
8

Appellate Case: 14-1012 Document: 01019398555 Date Filed: 03/16/2015 Page: 9
decline to address the sufficiency of the mitigation evidence.3 See Doering
ex rel. Barrett v. Copper Mountain, Inc., 259 F.3d 1202, 1216 (10th Cir.
2001) (declining to address the award of punitive damages when the Court
reversed the judgment based on error in the jury instructions).
III. Tax Offset
Beverage Distributors argues that the district court abused its discretion in awarding Mr. Sungaila a tax penalty offset.4 This issue is
affected by our reversal of the EEOC’s award. On remand, this issue might
or might not recur. But, unlike mitigation of damages, the tax offset issue
is primarily legal rather than factual. Thus, we will address the issue.
Doing so, we conclude that the district court did not err in awarding a tax
offset.
3 The EEOC has suggested that we might lack jurisdiction over this part of the appeal. Appellee’s Supp. Resp. Br. at 12 n.5 (Feb. 5, 2015). Because we are declining to address the issue on other grounds, we need not address the EEOC’s suggestion that we lack jurisdiction. 4 Beverage Distributors also asserts that the offset award constituted unlawful additur in violation of the Seventh Amendment. But, the company did not raise this argument in district court. See Appellee’s Supp. App. at 7-8. Thus, this argument has been forfeited. See Cummings v. Norton, 393 F.3d 1186, 1190 (10th Cir. 2005). Though we can consider forfeited arguments under the plain-error standard, Beverage Distributors has not argued plain error. See Bishop v. Smith, 760 F.3d 1070, 1095 (10th Cir. 2014) (stating that we will not consider the possibility of plain error on a forfeited theory when the claimant fails to argue for plain error), cert. denied, __ U.S. __, 135 S. Ct. 271 (2014).
9

Appellate Case: 14-1012 Document: 01019398555 Date Filed: 03/16/2015 Page: 10
A. Jurisdiction The EEOC argues that we lack jurisdiction because the notice of appeal preceded the district court’s entry of judgment and computation of the amount. See EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1250 (10th Cir. 1999) (discussing prematurity of an appeal involving a post-judgment award of attorneys’ fees). But, we conclude that we have jurisdiction on the tax offset issue. Even if the notice of appeal had been premature, Beverage Distributors filed a post-judgment motion for a stay pending appeal. This motion (1) specified that Beverage Distributors was taking the appeal, (2) stated that the company was appealing the “monetary components” of the district court’s amended order, which would necessarily include the tax offset award, and (3) stated that the appeal was to our court. Def.’s Mot. for Stay Pending Appeal at 1, EEOC v. Beverage Distributs. Co., LLC, No. 1:11-cv-02557-CBA-CBS (filed May 13, 2014), Doc. No. 137. Thus, the motion for a stay served as the “functional equivalent” of a notice of appeal under Federal Rule of Appellate Procedure 3. See Smith v. Barry, 502 U.S. 244, 248-49 (1992) (“If a document . . . gives the notice required by Rule 3, it is effective as a notice of appeal.”). In these circumstances, we have appellate jurisdiction.
10

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B. Merits Courts have broad discretion in prescribing remedies for victims of discrimination. See Franks v. Bowman Transp. Co., 424 U.S. 747, 763 (1976). One such remedy is a tax penalty offset, which compensates victims for additional tax liabilities they would incur as a result of a lumpsum payment. See Sears v. Atchison Topeka & Santa Fe Ry., Co., 749 F.2d 1451, 1456 (10th Cir. 1984) (awarding a tax offset for victims of discrimination). The district court determined that Mr. Sungaila was entitled to a tax penalty offset. Mr. Sungaila obtained a lump-sum damage award, which would increase his tax liability.5 Given this result, the court concluded that an offset would compensate Mr. Sungaila for the added liability and “restore [him] to the position he would have been but for his wrongful separation from Beverage Distributors.” EEOC v. Beverage Distribs. Co., LLC, No. 11-cv-02557, 2013 WL 6458735, at *8 (D. Colo. Dec. 9, 2013). This award fell within the district court’s discretion. Mr. Sungaila obtained a lump-sum damage award that would increase his tax liability. And the court acted within its discretion in compensating Mr. Sungaila for the added burden.
5 The parties do not dispute that the lump-sum award would increase Mr. Sungaila’s tax liability.
11

Appellate Case: 14-1012 Document: 01019398555 Date Filed: 03/16/2015 Page: 12
Beverage Distributors disagrees. In its view, Mr. Sungaila is not entitled to the offset because his added tax burden would not be “significant.” Appellant’s Opening Br. at 39. This argument is based on Blim v. W. Elec. Co., 731 F.2d 1473 (10th Cir. 1984). We are not persuaded.
In Blim, we concluded that a tax offset award was improper because the plaintiffs would “suffer no significant tax penalty.” 731 F.2d at 1480. The penalty would not have been “significant” because the plaintiffs could eliminate “nearly all” of their additional tax liability by using the tax code’s averaging provisions. Id.
That reasoning is inapplicable here. Unlike the plaintiffs in Blim, Mr. Sungaila cannot lighten his additional tax liability because Congress repealed the averaging provisions in 1986. See Tax Reform Act of 1986, Pub. L. No. 99-514, § 141(a), 100 Stat. 2117 (repealing 26 U.S.C. §§ 13021305). Without other ways of reducing the added tax liability, Mr. Sungaila would experience a tax disadvantage that the Blim plaintiffs were able to avoid.
Beverage Distributors also contends that Mr. Sungaila is not entitled to an offset because his case is “typical.” Appellant’s Opening Br. at 39. This contention is based on our opinion in Sears v. Atchison, Topeka & Santa Fe Ry., Co., where we affirmed an offset award while suggesting that such an award “may not be appropriate in a typical [discrimination] case.”
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749 F.2d 1451, 1456 (10th Cir. 1984). But, we did not hold that tax offsets were limited to atypical cases. In our view, the district court acted within its discretion even if Mr. Sungaila’s situation might be considered “typical.” See, e.g., EEOC v. N. Star Hospitality, Inc., __ F.3d __, No. 141660, 2015 WL 363997, at *5 (7th Cir. Jan. 29, 2015) (upholding an award of a tax offset in an EEOC claim on behalf of a single plaintiff in order to make the plaintiff “whole”).
Accordingly, we conclude that the district court did not err in awarding a tax offset. IV. Conclusion
We conclude that (1) the direct-threat jury instruction constituted reversible error, and (2) the district court did not err in awarding a tax offset.
13

Certificate of Compliance and Digital Submission
I certify that all required privacy redactions (in this document, none) have been
made to this document, that this digital submission is an exact copy of the petition filed in
hard copy with the Court, and that this digital submission has been scanned for viruses
with the most recent version of a commercial virus scanning program, Trend Micro
OfficeScan, version 10.6.5495 Service Pack 3 (updated April 30, 2015) and, according to
that program, is free of viruses.
s/ James M. Tucker JAMES M. TUCKER Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870
James.Tucker@EEOC.gov

Certificate of Service
I hereby certify that on April 30, 2015, I electronically filed the foregoing petition
with the Clerk of the Court for the United States Court of Appeals for the Tenth Circuit
by using the Court’s CM/ECF system. I certify that all participants in the case are
registered CM/ECF users and that service will be accomplished by the Court’s CM/ECF
system.
I further certify that on this same date, twelve hard copies of the foregoing petition
were submitted to the Clerk of Court, United States Court of Appeals for the Tenth
Circuit, Byron White U.S. Courthouse, 1823 Stout St., Denver, CO 80257.
s/ James M. Tucker JAMES M. TUCKER Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870
James.Tucker@EEOC.gov

 
 UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT _________________________________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

FILED United States Court of Appeals
Tenth Circuit
May 27, 2015
Elisabeth A. Shumaker Clerk of Court

Plaintiff - Appellee,

v.

No. 14-1012

BEVERAGE DISTRIBUTORS COMPANY, LLC,

Defendant - Appellant. _________________________________

ORDER _________________________________

Before TYMKOVICH, HOLMES, and BACHARACH, Circuit Judges. _________________________________

Appellee’s petition for rehearing is denied.

The petition for rehearing en banc was transmitted to all of the judges of the court

who are in regular active service. As no member of the panel and no judge in regular

active service on the court requested that the court be polled, that petition is also denied.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

 
 Case: 1:11-cv-2557 As of: 11/05/2017 06:44 PM MST 1 of 16
NDISPO,TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:11−cv−02557−CMA−CBS

Equal Employment Opportunity Commission v. Beverage Distributors Company, LLC Assigned to: Judge Christine M. Arguello Referred to: Magistrate Judge Craig B. Shaffer
Case in other court: USCA, 14−01012
Cause: 42:12112 American with Disabilities Act (ADA− Discrimination)
Plaintiff

Date Filed: 09/29/2011 Date Terminated: 12/04/2015 Jury Demand: Plaintiff Nature of Suit: 445 Civil Rights: Americans with Disabilities − Employment Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by David Andrew Winston U.S. Equal Employment Opportunity Commission−Denver 303 East 17th Avenue #410 Denver, CO 80203−9634 303−866−1361 Fax: 303−866−1375 Email: andrew.winston@eeoc.gov TERMINATED: 07/24/2015

Lauren Golden Jaeckel U.S. Equal Employment Opportunity Commission−Denver 303 East 17th Avenue Suite 410 Denver, CO 80203−9634 303−866−1381 Fax: 303−866−1375 Email: lauren.jaeckel@eeoc.gov ATTORNEY TO BE NOTICED

Rita Byrnes Kittle U.S. Equal Employment Opportunity Commission−Denver 303 East 17th Avenue #410 Denver, CO 80203−9634 303−866−1347 Fax: 303−866−1375 Email: rita.kittle@eeoc.gov ATTORNEY TO BE NOTICED

Stephanie Struble U.S. Equal Employment Opportunity Commission−Denver 303 East 17th Avenue #410 Denver, CO 80203−9634 303−866−1381 Fax: 303−866−1375 Email: stephanie.struble@eeoc.gov TERMINATED: 06/26/2015

V. Defendant Beverage Distributors Company, LLC

represented by

Case: 1:11-cv-2557 As of: 11/05/2017 06:44 PM MST 2 of 16

Jennifer S. Harpole Littler Mendelson, PC−Denver 1900 16th Street Suite 800 Denver, CO 80202 303−629−6200 Fax: 303−629−0200 Email: jharpole@littler.com ATTORNEY TO BE NOTICED

Joshua B. Kirkpatrick Littler Mendelson, PC−Denver 1900 16th Street Suite 800 Denver, CO 80202 303−629−6200 Fax: 303−629−0200 Email: jkirkpatrick@littler.com ATTORNEY TO BE NOTICED

Scott Alan Forman Littler Mendelson, PC−Miami 333 South East 2nd Avenue Suite 2700 Miami, FL 33131 305−400−7500 Fax: 305−603−2552 Email: sforman@littler.com ATTORNEY TO BE NOTICED

Defendant
Beverage Distributors Holding, Inc. TERMINATED: 01/09/2012

represented by Joshua B. Kirkpatrick (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/29/2011 10/04/2011 10/04/2011 10/18/2011
10/20/2011

# Docket Text
1 COMPLAINT and Jury Trial Demand against Beverage Distributors Company, LLC, Beverage Distributors Holding, Inc. Summons Issued, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(lygsl, ) (Entered: 09/29/2011)
2 MEMORANDUM RETURNING CASE for reassignment by Senior District Judge Lewis T. Babcock. (sah2, ) (Entered: 10/04/2011)
3 LETTER REASSIGNING CASE. Case reassigned to Judge Christine M. Arguello for all further proceedings. Judge Lewis T. Babcock no longer assigned to the case. (sah2, ) (Entered: 10/04/2011)
4 ORDER REFERRING CASE to Magistrate Judge Craig B. Shaffer. Magistrate Judge Shaffer is designated to conduct NDISPO proceedings pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed.R.Civ.P. 72(a) and (b). ALSO ORDERED that unless service has otherwise been completed or arranged, Plaintiff's counsel is directed to effect service of the summons and complaint pursuant to Rule 4 of the Federal Rules of Civil Procedure no later than 11/18/2011 in order for the initial scheduling conference to be held promptly. The parties should expect to be given a firm trial setting that is 60 to 120 days from the date of the final pretrial conference, and should be available for trial accordingly. By Judge Christine M. Arguello on 10/18/11. Text Only Entry (cmasec) (Entered: 10/18/2011)
5 ORDER setting a Scheduling Conference on 12/20/2011 at 10:00 a.m. in Courtroom A 402 before Magistrate Judge Craig B. Shaffer, by Magistrate Judge Craig B. Shaffer on 10/20/11. (cbssec) (Entered: 10/20/2011)

Case: 1:11-cv-2557 As of: 11/05/2017 06:44 PM MST 3 of 16

11/02/2011 11/22/2011 12/13/2011 12/20/2011
12/20/2011 12/20/2011 01/09/2012 01/09/2012 01/10/2012 02/21/2012 02/21/2012
02/22/2012
04/27/2012 04/27/2012
05/02/2012

6 NOTICE of Entry of Appearance by David Andrew Winston on behalf of Equal Employment Opportunity Commission (Winston, David) (Entered: 11/02/2011)
7 WAIVER OF SERVICE Returned Executed by Equal Employment Opportunity Commission. Beverage Distributors Company, LLC waiver sent on 10/21/2011, answer due 12/20/2011; Beverage Distributors Holding, Inc. waiver sent on 10/21/2011, answer due 12/20/2011. (Struble, Stephanie) (Entered: 11/22/2011)
8 Proposed Scheduling Order by Plaintiff Equal Employment Opportunity Commission. (Struble, Stephanie) (Entered: 12/13/2011)
9 MINUTE ENTRY for proceedings held before Magistrate Judge Craig B. Shaffer: Scheduling Conference held on 12/20/2011. Discovery due by 6/22/2012. Dispositive Motions due by 7/20/2012. Final Pretrial Conference set for 10/10/2012 09:15 AM in Courtroom A 402 before Magistrate Judge Craig B. Shaffer. (FTR: Laura Galera and Robin Mason) (cbscd) (Entered: 12/20/2011)
10 SCHEDULING ORDER: by Magistrate Judge Craig B. Shaffer on 12/20/2011. (cbscd) (Entered: 12/20/2011)
11 STIPULATION for Extension of Time to Answer or Otherwise Respond to The Complaint by Defendants Beverage Distributors Company, LLC, Beverage Distributors Holding, Inc.. (Kirkpatrick, Joshua) (Entered: 12/20/2011)
12 NOTICE of Voluntary Dismissal of Party Beverage Distributors Holding, Inc. by Plaintiff Equal Employment Opportunity Commission (Struble, Stephanie) (Entered: 01/09/2012)
19 Party Beverage Distributors Holding, Inc. terminated pursuant to the notice of dismissal or stipulation to dismiss filed in this case on 1/9/12. Text Only Entry (cmacd) (Entered: 04/30/2012)
13 ANSWER to 1 Complaint by Beverage Distributors Company, LLC.(Kirkpatrick, Joshua) (Entered: 01/10/2012)
14 Joint MOTION to Amend/Correct/Modify 10 Scheduling Order , Joint MOTION for Extension of Time to Designate Expert Witnesses by Plaintiff Equal Employment Opportunity Commission. (Struble, Stephanie) (Entered: 02/21/2012)
15 MEMORANDUM regarding 14 Joint MOTION to Amend/Correct/Modify 10 Scheduling Order Joint MOTION for Extension of Time to Designate Expert Witnesses filed by Equal Employment Opportunity Commission. Motion referred to Magistrate Judge Craig B. Shaffer by Judge Christine M. Arguello on 02/21/12. Text Only Entry (cmasec) (Entered: 02/21/2012)
16 ORDER granting 14 Motion to Amend/Correct/Modify; granting 14 Motion for Extension of Time. The deadline for Rule 26(a)(2) affirmative expert disclosures is extended to 4/27/12 and the deadline for Rule 26(a)(2) rebuttal expert disclosures is extended to 6/1/12. All deadlines previously set by this court, not modified herein, remain in effect, by Magistrate Judge Craig B. Shaffer on 2/22/12. Text Only Entry(cbssec) (Entered: 02/22/2012)
17 Unopposed MOTION for Extension of Time to Designate Experts and to Extend the Discovery Cut−Off by Plaintiff Equal Employment Opportunity Commission. (Struble, Stephanie) (Entered: 04/27/2012)
18 MEMORANDUM regarding 17 Unopposed MOTION for Extension of Time to Designate Experts and to Extend the Discovery Cut−Off filed by Equal Employment Opportunity Commission. Motion referred to Magistrate Judge Craig B. Shaffer by Judge Christine M. Arguello on 04/27/12. Text Only Entry (cmasec) (Entered: 04/27/2012)
20 ORDER granting 17 Motion for Extension of Time. ORDERED that the deadline for Rule 26(a)(2) affirmative expert disclosures is extended to 6/8/12 and the deadline for Rule 26(a)(2) rebuttal expert disclosures is extended to 6/29/12. FURTHER ORDERED that the Discovery deadline is extended to on or before 7/20/2012 and the Dispositive Motion deadline is extended to 8/17/2012, by Magistrate Judge Craig B. Shaffer on 5/2/12. Text Only Entry(cbssec) (Entered: 05/02/2012)

Case: 1:11-cv-2557 As of: 11/05/2017 06:44 PM MST 4 of 16

06/05/2012 06/05/2012 06/06/2012
06/07/2012
06/07/2012 08/16/2012 08/17/2012 08/17/2012
08/21/2012 08/22/2012 09/06/2012 09/06/2012 09/10/2012

21 Joint MOTION to Amend/Correct/Modify 10 Scheduling Order To Extend Discovery Deadlines by Defendant Beverage Distributors Company, LLC, Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Proposed Order (PDF Only))(Kirkpatrick, Joshua) (Entered: 06/05/2012)
22 MEMORANDUM regarding 21 Joint MOTION to Amend/Correct/Modify 10 Scheduling Order To Extend Discovery Deadlines filed by Equal Employment Opportunity Commission, Beverage Distributors Company, LLC. Motion referred to Magistrate Judge Craig B. Shaffer by Judge Christine M. Arguello on 6/5/12. Text Only Entry (cmacd ) (Entered: 06/05/2012)
23 ORDER Setting Hearing on 21 Joint MOTION to Amend 10 Scheduling Order To Extend Discovery Deadlines by Magistrate Judge Craig B. Shaffer on 6/6/12. ORDERED that a Telephonic Motion Hearing will take place on 6/7/2012 at 9:15 AM before Magistrate Judge Craig B. Shaffer. Counsel shall coordinate to create a conference call among themselves before contacting the court (303.844.2117) at the scheduled time. Text Only Entry (cbssec) (Entered: 06/06/2012)
24 MINUTE ENTRY for proceedings held before Magistrate Judge Craig B. Shaffer: Telephonic Motion Hearing held on 6/7/2012. The court GRANTS IN PART and DENIES IN PART 21 Motion to Amend/Correct/Modify. The court shall extend the discovery cut date to August 17, 2012. The court shall not move the dispositive motions deadline. The designation of all expert witnesses shall be extended to June 26, 2012. The designation of rebuttal experts shall be extended to July 20, 2012. (FTR: RobinMason) (cbscd, ) (Entered: 06/07/2012)
25 NOTICE of Entry of Appearance by Scott Alan Forman on behalf of Beverage Distributors Company, LLC (Forman, Scott) (Entered: 06/07/2012)
26 WITHDRAWN − MOTION for Protective Order , MOTION to Quash 3d Party Subpoena by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit subpoena, # 2 Exhibit Calahan v. PSC, # 3 Exhibit Blasio v. UPS, # 4 Exhibit Paystub)(Struble, Stephanie) Modified on 1/29/2013 to withdraw pursuant to 58 Order (dkals, ). (Entered: 08/16/2012)
27 MOTION for Summary Judgment by Defendant Beverage Distributors Company, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Kirkpatrick, Joshua) (Entered: 08/17/2012)
28 MOTION for Partial Summary Judgment by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Mr. Sungaila's Application, # 2 Exhibit HealthOne Evaluation, # 3 Exhibit Discovery Responses, # 4 Exhibit Charge of Discrimination, # 5 Exhibit EEOC Determination, # 6 Exhibit Declaration of Helbis Varangot, # 7 Exhibit Notice of Failed Conciliation, # 8 Exhibit 7.1 Letter, # 9 Deposition Excerpts Linda Holman, # 10 Deposition Excerpts John Johnson, # 11 Deposition Excerpts Bob Pieron, # 12 Deposition Excerpts Tom Rogers)(Struble, Stephanie) (Entered: 08/17/2012)
29 Unopposed MOTION for Extension of Time to File Response/Reply as to 27 MOTION for Summary Judgment by Plaintiff Equal Employment Opportunity Commission. (Struble, Stephanie) (Entered: 08/21/2012)
30 ORDER granting 29 Motion for Extension of Time to File Response/Reply.By Judge Christine M. Arguello on 8/22/2012. Text Only Entry(cmacd, ) (Entered: 08/22/2012)
31 RESPONSE to 26 MOTION for Protective Order MOTION to Quash 3d Party Subpoena filed by Defendant Beverage Distributors Company, LLC. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Kirkpatrick, Joshua) (Entered: 09/06/2012)
32 Exhibits in Support of 27 MOTION for Summary Judgment (Defendant's Lodging of Declaration of Dr. John D. Sanidas) by Defendant Beverage Distributors Company, LLC. (Attachments: # 1 Declaration of Dr. John D. Sanidas)(Kirkpatrick, Joshua) (Entered: 09/06/2012)
33 MEMORANDUM regarding 26 MOTION for Protective Order MOTION to Quash 3d Party Subpoena filed by Equal Employment Opportunity Commission. Motion referred to Magistrate Judge Craig B. Shaffer by Judge Christine M. Arguello on

Case: 1:11-cv-2557 As of: 11/05/2017 06:44 PM MST 5 of 16

09/10/2012 09/11/2012 09/17/2012
09/24/2012 09/25/2012 09/25/2012 09/27/2012 10/03/2012 10/04/2012 10/04/2012 10/09/2012 10/09/2012

09/10/12. Text Only Entry (cmasec) (Entered: 09/10/2012)
34 RESPONSE to 28 MOTION for Partial Summary Judgment filed by Defendant Beverage Distributors Company, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Kirkpatrick, Joshua) (Entered: 09/10/2012)
35 ORDER setting hearing on 26 MOTION for Protective Order/to Quash. ORDERED that a Motion Hearing will take place on 10/11/2012 at 3:00 PM in Courtroom A 402 before Magistrate Judge Craig B. Shaffer. Text Only Entry by Magistrate Judge Craig B. Shaffer on 9/11/12. (cbssec) Modified on 9/12/2012 to correct signature date (dkals, ). (Entered: 09/11/2012)
36 RESPONSE to 27 MOTION for Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Declaratin of Dr. Lervick, # 2 Exhibit Application, # 3 Exhibit Position Statement, # 4 Exhibit photo of Conveyor Belts with Netting, # 5 Exhibit Photo of more netting, # 6 Exhibit Photo of Truck Loading Job, # 7 Exhibit Photo of Truck Loading Job, # 8 Exhibit Photo of Truck Loading Job, # 9 Exhibit Expert Report, # 10 Exhibit Agility Test Results, # 11 Exhibit qualification for Truck Loader, # 12 Exhibit doctor's report, # 13 Deposition Excerpts Cook, # 14 Deposition Excerpts Hollman, # 15 Deposition Excerpts Johnson, # 16 Deposition Excerpts Pieron, # 17 Deposition Excerpts Rogers, # 18 Deposition Excerpts Sungaila)(Struble, Stephanie) (Entered: 09/17/2012)
37 REPLY to Response to 26 MOTION for Protective Order MOTION to Quash 3d Party Subpoena filed by Plaintiff Equal Employment Opportunity Commission. (Struble, Stephanie) (Entered: 09/24/2012)
38 MOTION for Leave to Restrict Document by Plaintiff Equal Employment Opportunity Commission. (Struble, Stephanie) (Entered: 09/25/2012)
39 Exhibits in Support of 36 Response to Motion,,, Amended Exhibit 1 by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Amended Exhibit 1 to Dkt. # 36)(Struble, Stephanie) (Entered: 09/25/2012)
40 REPLY to Response to 28 MOTION for Partial Summary Judgment filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Investigator Log of investigation, # 2 Exhibit Investigator notes from witness interviews)(Struble, Stephanie) (Entered: 09/27/2012)
41 Proposed Pretrial Order by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit EEOC Exhibit List, # 2 Exhibit Defendant Exhibit List)(Struble, Stephanie) (Entered: 10/03/2012)
42 ORDER sua sponte resetting hearing to combine the 10/10/12 Final Pretrial Conference with the 10/11/12 Motions Hearing. ORDERED that the Final Pretrial Conference will take place on 10/11/2012 at 3:00 PM in Courtroom A 402 before Magistrate Judge Craig B. Shaffer. Text Only Entry by Magistrate Judge Craig B. Shaffer on 10/4/12. (cbssec) (Entered: 10/04/2012)
43 Unopposed MOTION for Extension of Time to File Response/Reply as to 27 MOTION for Summary Judgment by Defendant Beverage Distributors Company, LLC. (Attachments: # 1 Proposed Order (PDF Only))(Kirkpatrick, Joshua) (Entered: 10/04/2012)
44 Amended MOTION for Extension of Time to File Response/Reply as to 27 MOTION for Summary Judgment , 43 Unopposed MOTION for Extension of Time to File Response/Reply as to 27 MOTION for Summary Judgment by Defendant Beverage Distributors Company, LLC. (Attachments: # 1 Proposed Order (PDF Only))(Kirkpatrick, Joshua) (Entered: 10/09/2012)
45 ORDER GRANTING 44 Motion for Extension of Time to File Response/Reply. Defendant shall have to and including 10/10/12 within which to file its Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment. SO ORDERED BY Judge Christine M. Arguello on 10/09/12. Text Only Entry (cmasec) (Entered: 10/09/2012)

Case: 1:11-cv-2557 As of: 11/05/2017 06:44 PM MST 6 of 16

10/09/2012 10/10/2012 10/11/2012
10/11/2012 10/16/2012
10/16/2012
10/19/2012 10/19/2012

46 ORDER DENYING AS MOOT 43 Motion for Extension of Time to File Response/Reply, by Judge Christine M. Arguello on 10/09/12. Text Only Entry (cmasec) (Entered: 10/09/2012)
47 REPLY to Response to 27 MOTION for Summary Judgment filed by Defendant Beverage Distributors Company, LLC. (Attachments: # 1 Exhibit H, # 2 Exhibit I, # 3 Exhibit J, # 4 Exhibit K)(Kirkpatrick, Joshua) (Entered: 10/10/2012)
48 MINUTE ENTRY for proceedings held before Magistrate Judge Craig B. Shaffer: Final Pretrial Conference/Motion Hearing held on 10/11/2012. Magistrate Judge Shaffer advises the parties that he will issue a written order ruling on this motion. The court further advises the parties that until a ruling has been made, the subpoena shall not go out. The parties were instructed to put together a conference call to Judge Arguello's chambers inorder to obtain trial dates. FTR: Robin Mason. (cbscd, ) Modified on 10/12/2012 to add text (romsl, ). (Entered: 10/12/2012)
49 FINAL PRETRIAL ORDER by Magistrate Judge Craig B. Shaffer on 10/11/2012. (Attachments: # 1 Exhibit A, # 2 Envelope B) (cbscd, ) (Entered: 10/12/2012)
50 ORDER GRANTING 38 Motion for Leave to Restrict. Exhibits No. 2 and No. 9 to 36 Plaintiff's Response to Defendant's Motion for Summary Judgment have been placed under RESTRICTED LEVEL 1. Plaintiff is DIRECTED to file with the Court REDACTED versions of Doc. Nos. 36−2 and 36−9 as a supplement to Doc. No. 36. SO ORDERED BY by Judge Christine M. Arguello on 10/16/12. Text Only Entry (cmasec) (Entered: 10/16/2012)
51 MINUTE ORDER. This matter is before the Court sua sponte. Upon completion of the Final Pretrial Conference, this matter is ready to be set for trial. The Parties anticipate a seven−day jury trial. The Court hereby ORDERS a Status Conference set for 10/19/2012 at 1:30 PM in Courtroom A602 before Judge Christine M. Arguello, to determine the number of days this matter should be set for trial. All counsel, with full knowledge of the case, should be present at this status conference. SO ORDERED BY Judge Christine M. Arguello on 10/16/12. Text Only Entry (cmasec) (Entered: 10/16/2012)
52 SUPPLEMENT/AMENDMENT to 36 Response to Motion,,, Exhibits 2 and 9 by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Application, # 2 Exhibit Dr. Cook's Expert Report)(Struble, Stephanie) (Entered: 10/19/2012)
53 MINUTE ENTRY for proceedings held before Judge Christine M. Arguello: Status Conference held on 10/19/2012. Counsel are directed to amend their witness lists. A Final Trial Preparation Conference is set for 3/22/2013 at 02:30 PM before Judge Christine M. Arguello. A Five−day Jury Trial is set to commence on 4/8/2013 at 9:00 AM before Judge Christine M. Arguello. (Total time: 00:20, Hearing time: 1:31−1:51)

12/07/2012 12/14/2012 01/10/2013
01/28/2013

APPEARANCES: Stephanie Struble on behalf of the plaintiff, Joshua Kirkpatrick on behalf of the defendant. Court Reporter: Darlene Martinez. (cmacd) Text Only Entry (Entered: 10/22/2012)
54 ORDER denying 27 Motion for Summary Judgment by Judge Christine M. Arguello on 12/7/12.(dkals, ) (Entered: 12/07/2012)
55 ORDER granting in part and denying in part 28 Motion for Partial Summary Judgment by Judge Christine M. Arguello on 12/14/12.(dkals, ) (Entered: 12/14/2012)
56 ORDER setting hearing on 26 MOTION for Protective Order and MOTION to Quash Third Party Subpoena. ORDERED that a further Motion Hearing will be held on 1/29/2013 at 1:30 PM in Courtroom A 402 before Magistrate Judge Craig B. Shaffer. As oral argument was held on the instant motion on October 11, 2012, the purpose of this hearing will be to issue a ruling from the bench, no further argument will be necessary. Text Only Entry by Magistrate Judge Craig B. Shaffer on 1/10/13. (cbssec) (Entered: 01/10/2013)
57 Joint MOTION to Withdraw 26 MOTION for Protective Order MOTION to Quash 3d Party Subpoena by Plaintiff Equal Employment Opportunity Commission. (Struble, Stephanie) (Entered: 01/28/2013)

Case: 1:11-cv-2557 As of: 11/05/2017 06:44 PM MST 7 of 16

01/28/2013 02/13/2013
03/08/2013
03/11/2013 03/12/2013 03/14/2013 03/15/2013 03/15/2013 03/18/2013
03/18/2013 03/20/2013 03/20/2013 03/20/2013 03/22/2013

58 ORDER granting 57 Motion to Withdraw and withdrawing 26 Motion for Protective Order and Motion to Quash. The motion hearing set for 1/29/13 is vacated. Text Only Entry by Magistrate Judge Craig B. Shaffer on 1/28/13. (cbssec) (Entered: 01/28/2013)
59 MOTION in Limine to Exclude Evidence by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Medical Exam, # 2 Deposition Excerpts Pieron, # 3 Deposition Excerpts Rogers, # 4 Deposition Excerpts Sungaila)(Struble, Stephanie) (Entered: 02/13/2013)
60 MOTION to Exclude opinions of Dr. Robin Cook by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1 − Initial Report, # 2 Exhibit 2 − Rebuttal Designation, # 3 Deposition Excerpts Dr. Cook)(Struble, Stephanie) (Entered: 03/08/2013)
61 RESPONSE to 59 MOTION in Limine to Exclude Evidence filed by Defendant Beverage Distributors Company, LLC. (Kirkpatrick, Joshua) (Entered: 03/11/2013)
62 Exhibits in Support of 61 Response to Motion by Defendant Beverage Distributors Company, LLC. (Kirkpatrick, Joshua) (Entered: 03/12/2013)
63 MOTION to Exclude Expert Testimony of Julia Kothe by Defendant Beverage Distributors Company, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Proposed Order (PDF Only))(Kirkpatrick, Joshua) (Entered: 03/14/2013)
64 MOTION in Limine to Preclude Plaintiff From Providing Testimony of Dr. Lervick At Trial by Defendant Beverage Distributors Company, LLC. (Attachments: # 1 Exhibit A)(Kirkpatrick, Joshua) (Entered: 03/15/2013)
65 Joint MOTION for Extension of Time to Submit Exhibit List, Objections to Exhibit List, and Briefs re Jury Instructions by Plaintiff Equal Employment Opportunity Commission. (Struble, Stephanie) (Entered: 03/15/2013)
66 ORDER GRANTING 65 Motion for Extension of Time. The parties shall have to and including 03/20/2013 within which to submit their Exhibit Lists, Objections to Exhibit Lists, and Briefs re Jury Instructions. SO ORDERED BY Judge Christine M. Arguello on 03/18/13. Text Only Entry (cmasec) (Entered: 03/18/2013)
67 NOTICE of Entry of Appearance by Jennifer S. Harpole on behalf of Beverage Distributors Company, LLC (Harpole, Jennifer) (Entered: 03/18/2013)
68 REPLY to Response to 59 MOTION in Limine to Exclude Evidence filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Deposition Excerpts Sungaila Depo excerpts)(Struble, Stephanie) (Entered: 03/20/2013)
69 OBJECTIONS to Defendant's Proposed Jury Instructions by Plaintiff Equal Employment Opportunity Commission. (Struble, Stephanie) (Entered: 03/20/2013)
70 OBJECTIONS to Defendant's Trial Exhibits by Plaintiff Equal Employment Opportunity Commission. (Struble, Stephanie) (Entered: 03/20/2013)
71 MINUTE ENTRY for proceedings held before Judge Christine M. Arguello: Final Pretrial Conference held on 3/22/2013. MOTIONS: Plaintiff's Motion in Limine to Exclude Evidence 59 is granted in part and denied in part. Plaintiff EEOC's Motion to Exclude Opinions of Robin Cook 60 is deferred. Defendant's Motion to Exclude Expert Testimony of Julia Kothe 63 is deferred. Defendant's Motion in Limine to Preclude Plaintiff From Providing Testimony of Dr. Lervick at Trial 64 is deferred. Response to the remaining Motions are due by noon on March 29, 2013. Any replies are due by 5:00 PM on March 29, 2013. TRIAL: Case shall be tried to a jury of ten. Jury selection will be on April 1, 2013 at 1:30 PM. Jury selection is by simultaneous strikes. Jurors will be allowed to take notes. Parties agree to the sequestration of witnesses. Parties waive the reporting of Jury Instructions. (Total time: 00:38, Hearing time: 2:29−3:07)

APPEARANCES: Stephanie Struble and David Winston on behalf of the Plaintiff, Joshua Kirkpatrick and Jennifer Harpole on behalf of the defendant. Court Reporter: Darlene Martinez. (cmacd) Text Only Entry. Modified on 4/1/2013 to add attorneys (cmacd) Modified on 4/2/2013 to correct the ruling on the motion 59 (cmacd). Modified on 4/4/2013 to add time in text (cmacd). (Entered: 03/27/2013)

Case: 1:11-cv-2557 As of: 11/05/2017 06:44 PM MST 8 of 16

03/28/2013 03/29/2013
03/29/2013 03/29/2013
03/29/2013 03/29/2013 03/29/2013 03/29/2013 03/29/2013 03/29/2013 04/01/2013

72 TRIAL BRIEF Re: In−Court Experiment or Demonstration Evidence of Mike Sungaila's Vision by Plaintiff Equal Employment Opportunity Commission. (Winston, David) (Entered: 03/28/2013)
73 RESPONSE to 64 MOTION in Limine to Preclude Plaintiff From Providing Testimony of Dr. Lervick At Trial filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Deposition Excerpts Dr. Sanidas)(Struble, Stephanie) (Entered: 03/29/2013)
74 RESPONSE to 60 MOTION to Exclude opinions of Dr. Robin Cook filed by Defendant Beverage Distributors Company, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kirkpatrick, Joshua) (Entered: 03/29/2013)
75 RESPONSE to 63 MOTION to Exclude Expert Testimony of Julia Kothe filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Position Description, # 2 Deposition Excerpts Kothe, # 3 Deposition Excerpts Hollman, # 4 Deposition Excerpts Johnson)(Struble, Stephanie) (Entered: 03/29/2013)
76 REPLY to Response to 60 MOTION to Exclude opinions of Dr. Robin Cook filed by Plaintiff Equal Employment Opportunity Commission. (Winston, David) (Entered: 03/29/2013)
77 REPLY to Response to 63 MOTION to Exclude Expert Testimony of Julia Kothe filed by Defendant Beverage Distributors Company, LLC. (Kirkpatrick, Joshua) (Entered: 03/29/2013)
78 MOTION for Leave to Restrict Document by Defendant Beverage Distributors Company, LLC. (Attachments: # 1 Proposed Order (PDF Only))(Kirkpatrick, Joshua) (Entered: 03/29/2013)
79 RESTRICTED DOCUMENT − Level 1: by Defendant Beverage Distributors Company, LLC.. (Kirkpatrick, Joshua) (Entered: 03/29/2013)
80 REPLY to Response to 64 MOTION in Limine to Preclude Plaintiff From Providing Testimony of Dr. Lervick At Trial filed by Defendant Beverage Distributors Company, LLC. (Attachments: # 1 Exhibit)(Kirkpatrick, Joshua) (Entered: 03/29/2013)
81 Exhibit B in Support of 79 Restricted Document − Level 1 by Defendant Beverage Distributors Company, LLC. Public entry to 78 filed on 3/29/2013. TEXT ONLY ENTRY. (cmacd) (Entered: 04/01/2013)
82 MINUTE ENTRY for proceedings held before Judge Christine M. Arguello: Jury Selection held on 4/1/2013. JURY: Voire Dire. Jury of 10 impaneled and sworn. Jury is excused with the instruction to return on April 8, 2013 at 7:30 AM. MOTIONS: Plaintiff's Motion to Exclude Opinions of Dr. Robin Cook 60 is denied. Defendant's Motion to Exclude Expert Testimony of Julia Kothe 63 is denied. Defendant's Motion in Limine to Preclude Plaintif from Providing Testimony of Dr. Lervick at Trial 64 ruling is deferred. A trial brief is due by April 5, 2013 by 5:00 PM. Response to the trial brief is due by 5:00 PM on April 5, 2013. (Total time: 03:05, Hearing time: 1:22−4:43)

04/03/2013 04/05/2013 04/05/2013

APPEARANCES: Stephanie Struble and David Winston on behalf of the plaintiff, Scott Forman and Joshua Kirkpatrick on behalf of the defendant. ALSO PRESENT: Rita Kittle, Mike Sungaila, John Johnson (corporate representative for Beverage Distributors Company, LLC.) Court Reporter: Darlene Martinez. (cmacd) Text Only Entry (Entered: 04/02/2013)
83 TRIAL BRIEF re Offer of Proof of Dr. Lervick's Testimony by Plaintiff Equal Employment Opportunity Commission. (Struble, Stephanie) (Entered: 04/03/2013)
84 Witness List (Notice of Amended Witness List) by Plaintiff Equal Employment Opportunity Commission. (Struble, Stephanie) (Entered: 04/05/2013)
85 TRIAL BRIEF in Response to Plaintiff's Trial Brief Regarding In−Court Experiment or Demonstration Evidence of Mike Sungaila's Vision by Defendant Beverage Distributors Company, LLC. (Kirkpatrick, Joshua) (Entered: 04/05/2013)

Case: 1:11-cv-2557 As of: 11/05/2017 06:44 PM MST 9 of 16

04/08/2013

86 MINUTE ENTRY for proceedings held before Judge Christine M. Arguello: Jury Trial−DAY ONE held on 4/8/2013. Opening statements. WITNESSES SWORN AND TESTIFIED: Robert Pieron, Dr. John Sanidas, Tom Rogers. EXHIBITS RECEIVED: 14,1,4,3,2,8,32. Trial continued. (Total time: 05:56, Hearing time: 7:46−2:51)

04/09/2013 04/09/2013

APPEARANCES: Stephanie Struble and David Winston on behalf of the plaintiff, Scott Forman and Joshua Kirkpatrick on behalf of the defendant. ALSO PRESENT: Mike Sungaila, John Johnson (corporate representative for Beverage Distributors Company, LLC.) Court Reporter: Darlene Martinez. (cmacd) Text Only Entry (Entered: 04/09/2013)
87 NOTICE of Authority by Defendant Beverage Distributors Company, LLC (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Harpole, Jennifer) (Entered: 04/09/2013)
88 MINUTE ENTRY for proceedings held before Judge Christine M. Arguello: Jury Trial−DAY TWO held on 4/9/2013. WITNESSES SWORN AND TESTIFIED: Joe Linacre, Julia Kothe, Rogelio Cobos, Robert LaJeunesse, Mike Sungaila. EXHIBITS RECEIVED: 7(pages 1,2,3,4,5,7,10),19, 28(pages 1,3),24,25,27,26,13. Trial continued. (Total time: 05:26, Hearing time: 9:05−3:21)

04/10/2013 04/10/2013

APPEARANCES: Stephanie Struble and David Winston on behalf of the plaintiff, Scott Forman and Joshua Kirkpatrick on behalf of the defendant. ALSO PRESENT: Mike Sungaila, John Johnson (corporate representative for Beverage Distributors Company, LLC.) Court Reporter: Darlene Martinez. (cmacd) Text Only Entry (Entered: 04/10/2013)
89 NOTICE of Entry of Appearance by Rita Byrnes Kittle on behalf of Equal Employment Opportunity Commission (Kittle, Rita) (Entered: 04/10/2013)
90 MINUTE ENTRY for proceedings held before Judge Christine M. Arguello: Jury Trial−DAY THREE held on 4/10/2013. WITNESSES SWORN AND TESTIFIED: Mike Sungaila, Joseph Moffett, Helbis Varangot, John Johnson, Robin Cook.EXHIBITS RECEIVED: 12, 21, 22, 23,15,16. MOTION: Defendants Oral Motion Under Rule 50 for Judgment as a Matter of Law is denied. Trial continued. (Total time: 6:12, Hearing time: 7:55−3:24)

04/11/2013

APPEARANCES: Stephanie Struble and David Winston on behalf of the plaintiff, Scott Forman and Joshua Kirkpatrick on behalf of the defendant. ALSO PRESENT: Mike Sungaila, John Johnson ( corporate representative for Beverage Distributors Company, LLC.) Court Reporter: Darlene Martinez. (cmacd) Text Only Entry (Entered: 04/11/2013)
91 MINUTE ENTRY for proceedings held before Judge Christine M. Arguello: Jury Trial−DAY FOUR held on 4/11/2013. WITNESSES SWORN AND TESTIFIED: Robin Cook, Linda Hollman, Dale Lervick. EXHIBITS RECEIVED: 42 (demonstrative purposes only). MOTIONS: Plaintiffs Oral Motion Pursuant to Rule 50 as a Matter of Law denied. Defendants Renewed Oral Motion Pursuant to Rule 50 as a Matter of Law is denied as previously stated. Charging conference. Closing arguments. Jury deliberations. (Total time: 06:41, Hearing time: 8:17−5:03)

04/12/2013 04/12/2013

APPEARANCES: Rita Kittle,Stephanie Struble and David Winston on behalf of the plaintiff, Jennifer Harpoole, Scott Forman and Joshua Kirkpatrick on behalf of the defendant. ALSO PRESENT: Mike Sungaila, John Johnson (corporate representative for Beverage Distributors Company, LLC.) Court Reporter: Darlene Martinez. (cmacd) Text Only Entry (Entered: 04/12/2013)
92 Court's Proposed Final Jury Instructions Sent to Parties on April 6, 2013. (cmacd) (Entered: 04/15/2013)
93 MINUTE ENTRY for proceedings held before Judge Christine M. Arguello: Jury Trial−DAY FIVE completed on 4/12/2013. JURY VERDICT. Jurors are dismissed with thanks from the Court. (Total time: 00:08, Hearing time: 11:03−11:11) APPEARANCES: Rita Kittle,Stephanie Struble and David Winston on behalf of the plaintiff, Jennifer Harpoole, Scott Forman and Joshua Kirkpatrick on behalf of the defendant. ALSO PRESENT: Mike Sungaila, John Johnson (corporate representative for Beverage Distributors Company, LLC.) Court Reporter: Darlene Martinez.

Case: 1:11-cv-2557 As of: 11/05/2017 06:44 PM MST 10 of 16

04/12/2013 04/12/2013 04/12/2013 04/15/2013 04/15/2013 04/30/2013
04/30/2013
04/30/2013
04/30/2013 05/06/2013

(cmacd) Text Only Entry Modified on 4/16/2013 to add time and appearances(cmacd). (Entered: 04/15/2013)
94 Jury Instructions. (cmacd) (Entered: 04/15/2013)
95 Jury Notes. (Attachments: # 1 Court Note 2)(cmacd) (Entered: 04/15/2013)
96 JURY VERDICT. (cmacd) (Entered: 04/15/2013)
97 JUDGMENT in favor of Equal Employment Opportunity Commission and against Beverage Distributors Company, LLC in the amount of $29,543,253.25 pursuant to 93 Minute Entry. Post−judgment interest shall accrue at the rate of 0.12%. Plaintiff shall have its costs. By Judge Christine M. Arguello on 4/15/13. (dkals, ) (Entered: 04/17/2013)
98 AMENDED JUDGMENT in favor of Equal Employment Opportunity Commission and against Beverage Distributors Company, LLC in the amount of $29,543.25 pursuant to 93 Minute Entry. Post−judgment interest shall accrue at the rate of 0.12%. Plaintiff shall have its costs. By Judge Christine M. Arguello on 4/15/13 (dkals, ) (Entered: 04/17/2013)
99 Partial TRANSCRIPT of Jury Trial Day 4 − Testimony of Dr. R. Cook held on 4/10/13 before Judge Arguello. Pages: 1−61. <P> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 8/1/2013. (Martinez, Darlene) (Entered: 04/30/2013)
100 Partial TRANSCRIPT of Jury Trial Day 5 − Cont'd Testimony of Dr. R. Cook held on 4/11/13 before Judge Arguello. Pages: 62−107. <P> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 8/1/2013. (Martinez, Darlene) (Entered: 04/30/2013)
101 Partial TRANSCRIPT of Jury Trial Day 5 − Defendant's Closing Argument held on 4/11/13 before Judge Arguello. Pages: 1−29. <P> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 8/1/2013. (Martinez, Darlene) (Entered: 04/30/2013)
102 Proposed Bill of Costs and Stipulation by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Stipulation)(Struble, Stephanie) (Entered: 04/30/2013)
103 Costs Taxed in amount of $6,544.66 against Beverage Distributors Company, LLC (dkals, ) (Entered: 05/06/2013)

Case: 1:11-cv-2557 As of: 11/05/2017 06:44 PM MST 11 of 16

05/13/2013 05/13/2013 05/21/2013
05/21/2013
05/31/2013
05/31/2013

104 MOTION for Judgment as a Matter of Law on Defendant's Failure−to−Mitigate Defense, MOTION to Amend/Correct/Modify 98 Judgment, by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Trial Transcript − Cook Testimony, # 2 Exhibit Trial Transcript − Cook Cross Examination)(Struble, Stephanie) (Entered: 05/13/2013)
105 MOTION to Amend/Correct/Modify 98 Judgment, to Include Injunctive Relief by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit BDC Employee Handbook, # 2 Exhibit Prejudgment Interest, # 3 Exhibit Prejudment Interest on Full Back Pay Award, # 4 Exhibit Trial Exhibit 26, # 5 Exhibit Front Pay Calculation, # 6 Exhibit Proposed Order re Injunctive Relief)(Struble, Stephanie) (Entered: 05/13/2013)
106 Partial TRANSCRIPT of Jury Trial Day 3 − Testimony of M. Sungaila held on 4/9/13 before Judge Arguello. Pages: 1−68. <P> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 8/22/2013. (Martinez, Darlene) (Entered: 05/21/2013)
107 Partial TRANSCRIPT of Jury Trial Day 4 − M. Sungaila Testimony held on 4/10/13 before Judge Arguello. Pages: 69−145. <P> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 8/22/2013. (Martinez, Darlene) (Entered: 05/21/2013)
108 Partial TRANSCRIPT of Jury Trial Day 4 − Rule 50 Motion held on 4/10/13 before Judge Arguello. Pages: 1−19. <p> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</p> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 9/3/2013. (Martinez, Darlene) (Entered: 05/31/2013)
109 Partial TRANSCRIPT of Jury Trial Day 5 − Charging Conference held on 4/11/13 before Judge Arguello. Pages: 1−110. <p> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</p> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 9/3/2013. (Martinez, Darlene) (Entered: 05/31/2013)

Case: 1:11-cv-2557 As of: 11/05/2017 06:44 PM MST 12 of 16

06/06/2013 06/06/2013 06/20/2013
06/21/2013 06/24/2013 10/01/2013 12/09/2013 01/08/2014 01/09/2014 01/09/2014 01/10/2014 01/13/2014 01/13/2014

110 RESPONSE to 104 MOTION for Judgment as a Matter of Law on Defendant's Failure−to−Mitigate Defense MOTION to Amend/Correct/Modify 98 Judgment, filed by Defendant Beverage Distributors Company, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Kirkpatrick, Joshua) (Entered: 06/06/2013)
111 RESPONSE to 105 MOTION to Amend/Correct/Modify 98 Judgment, to Include Injunctive Relief filed by Defendant Beverage Distributors Company, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kirkpatrick, Joshua) (Entered: 06/06/2013)
112 Partial TRANSCRIPT of Jury Trial Day 3 − Testimony of Dr. LaJeunesse held on 4/9/13 before Judge Arguello. Pages: 1−31. <br><br> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 9/23/2013. (Martinez, Darlene) (Entered: 06/20/2013)
113 REPLY to Response to 105 MOTION to Amend/Correct/Modify 98 Judgment, to Include Injunctive Relief filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Order Granting Injunctive Relief)(Struble, Stephanie) (Entered: 06/21/2013)
114 REPLY to Response to 104 MOTION for Judgment as a Matter of Law on Defendant's Failure−to−Mitigate Defense MOTION to Amend/Correct/Modify 98 Judgment, filed by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Dr. LaJuenesse Testimony)(Struble, Stephanie) (Entered: 06/24/2013)
115 NOTICE Of Unavailability by Plaintiff Equal Employment Opportunity Commission (Struble, Stephanie) (Entered: 10/01/2013)
116 ORDER granting in part and denying in part 104 Motion Pursuant to Fed. R. Civ. P. 50(b) for Judgment as a Matter of Law on Defendant's Failure−to−Mitigate Defense, and granting in part and denying in part 105 Motion for Injunctive Relief, by Judge Christine M. Arguello on 12/9/13. The jury's damages award is vacated.(dkals, ) (Entered: 12/09/2013)
117 NOTICE OF APPEAL as to 94 Jury Instructions by Defendant Beverage Distributors Company, LLC (Filing fee $ 505, Receipt Number 1082−3686587) (Kirkpatrick, Joshua) (Entered: 01/08/2014)
118 LETTER Transmitting Notice of Appeal to all counsel advising of the transmittal of the 117 Notice of Appeal filed by Beverage Distributors Company, LLC to the U.S. Court of Appeals. ( Retained Counsel, Fee paid) (Attachments: # 1 Docket Sheet, # 2 Preliminary Record)(mjfsl). (Entered: 01/09/2014)
120 USCA Case Number 14−1012 for 117 Notice of Appeal filed by Beverage Distributors Company, LLC. (dbrow, ) (Entered: 01/13/2014)
119 MINUTE ORDER: Pursuant to this Court's 116 Order granting Plaintiff's request for a tax penalty offset, lead counsel for the parties are DIRECTED to call Chambers (303−335−2174) via conference call no later than 01/17/2014 to schedule a hearing to determine the amount of the offset. SO ORDERED BY Judge Christine M. Arguello on 01/10/14. Text Only Entry (cmasec) (Entered: 01/10/2014)
121 VOIR DIRE TRANSCRIPT of proceedings held on 4/1/13 before Judge Arguello. Pages: 1−136. (Martinez, Darlene) (Entered: 01/13/2014)
122 TRANSCRIPT of Jury Trial Day 2 held on 4/8/13 before Judge Arguello. Pages: 137−428. <br> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice

Case: 1:11-cv-2557 As of: 11/05/2017 06:44 PM MST 13 of 16

01/13/2014 01/13/2014 01/13/2014 01/13/2014 01/15/2014 01/23/2014

of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 4/17/2014. (Martinez, Darlene) (Entered: 01/13/2014)
123 TRANSCRIPT of Jury Trial Dat 3 held on 4/9/13 before Judge Arguello. Pages: 429−598. <br> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 4/17/2014. (Martinez, Darlene) (Entered: 01/13/2014)
124 TRANSCRIPT of Jury Trial Day 4 held on 4/10/13 before Judge Arguello. Pages: 599−734. <br> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 4/17/2014. (Martinez, Darlene) (Entered: 01/13/2014)
125 TRANSCRIPT of Jury Trial Day 5 held on 4/11/13 before Judge Arguello. Pages: 735−816. <br> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 4/17/2014. (Martinez, Darlene) (Entered: 01/13/2014)
126 TRANSCRIPT of Jury Trial Day 6 held on 4/12/13 before Judge Arguello. Pages: 817−823. <br> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 4/17/2014. (Martinez, Darlene) (Entered: 01/13/2014)
127 MINUTE ORDER: Pursuant to this Court's 116 Order granting Plaintiff's request for a tax penalty offset, and a telephone conference between counsel and Chambers staff, a hearing to determine the amount of the offset is set on 03/14/2014 at 2:30 PM, in Courtroom A602, before Judge Christine M. Arguello. The Court has set aside two hours for said hearing. SO ORDERED BY Judge Christine M. Arguello on 01/15/14. Text Only Entry (cmasec) (Entered: 01/15/2014)
128 TRANSCRIPT ORDER FORM re 117 Notice of Appeal by Defendant Beverage Distributors Company, LLC (Kirkpatrick, Joshua) (Entered: 01/23/2014)

Case: 1:11-cv-2557 As of: 11/05/2017 06:44 PM MST 14 of 16

01/24/2014 01/24/2014 03/11/2014 03/12/2014
03/26/2014 03/27/2014 03/28/2014 05/02/2014 05/13/2014 06/05/2014 06/23/2014 07/23/2014
09/29/2014 11/01/2014

129 LETTER TO USCA and all counsel certifying the record is complete as to 117 Notice of Appeal filed by Beverage Distributors Company, LLC. All transcripts ordered are now on file as of 1/13/2014. (Appeal No. 14−1012) Text Only Entry (dbrow, ) (Entered: 01/24/2014)
130 ORDER of USCA as to 117 Notice of Appeal filed by Beverage Distributors Company, LLC. Briefing on the merits is TOLLED, pending further order of this court. (USCA Case No. 14−1012) (dbrow, ) (Entered: 01/27/2014)
131 STIPULATION Re: Pre−Judgment Interest and Tax Penalty Offset by Plaintiff Equal Employment Opportunity Commission. (Winston, David) (Entered: 03/11/2014)
132 ORDER : In light of the 131 Joint Stipulation filed by the parties, the court hearing set for 03/14/2014 at 2:30 PM in Courtroom A602 before Judge Christine M. Arguello is VACATED. FURTHER, judgment will be entered in this matter in accordance with the parties' Joint Stipulation. SO ORDERED BY Judge Christine M. Arguello on 03/12/14. Text Only Entry (cmasec) (Entered: 03/12/2014)
133 ORDER of USCA as to 117 Notice of Appeal filed by Beverage Distributors Company, LLC. Proceedings in this appeal will remain abated, pending entry of judgment in this matter in accordance with the district courts March 12, 2014 order. (USCA Case No. 14−1012) (dbrow, ) (Entered: 03/27/2014)
134 SECOND AMENDED JUDGMENT. Signed by Deputy Clerk on 3/27/2014. (shart) (Entered: 03/27/2014)
135 LETTER Transmitting to US Court of Appeals Supplemental Record as to 117 Notice of Appeal filed by Beverage Distributors Company, LLC. (USCA Case No. 14−1012) (Attachments: # 1 Supplemental Docket Sheet, # 2 Supplemental Record containing Second Amended Final Judgment)(dbrow, ) (Entered: 03/28/2014)
136 ORDER of USCA as to 117 Notice of Appeal filed by Beverage Distributors Company, LLC. The abatement of proceedings in this appeal is lifted. Briefing will proceed. (USCA Case No. 14−1012) (dbrow, ) (Entered: 05/02/2014)
137 MOTION to Stay re 134 Clerk's Judgment Pending Appeal by Defendant Beverage Distributors Company, LLC. (Kirkpatrick, Joshua) (Entered: 05/13/2014)
138 RESPONSE to 137 MOTION to Stay re 134 Clerk's Judgment Pending Appeal Plaintiff EEOC's Response in Partial Opposition to Defendant's Motion for Stay Pending Appeal [ECF 137] filed by Plaintiff Equal Employment Opportunity Commission. (Winston, David) (Entered: 06/05/2014)
139 REPLY to Response to 137 MOTION to Stay re 134 Clerk's Judgment Pending Appeal filed by Defendant Beverage Distributors Company, LLC. (Kirkpatrick, Joshua) (Entered: 06/23/2014)
140 Partial TRANSCRIPT of Jury Trial Day 5 − Testimony of Dr. Lervick held on 4/11/13 before Judge Arguello. Pages: 1−14. <br> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 10/24/2014. (dmart, ) (Entered: 07/23/2014)
141 STATUS REPORT Regarding Compliance with Second Amended Final Judgment by Defendant Beverage Distributors Company, LLC. (Kirkpatrick, Joshua) (Entered: 09/29/2014)
142 ORDER granting in part and denying in part 137 Motion to Stay. The Second Amended Judgment is STAYED to the extent it orders Beverage Distributors to reinstate Mr. Sungaila to the position of Night Warehouse Loader with the same seniority he would have had if he had not been terminated. Upon the posting of a

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11/19/2014 03/16/2015 03/16/2015 04/24/2015 04/27/2015
04/29/2015
06/04/2015 06/11/2015 06/25/2015 06/26/2015 07/07/2015 07/09/2015

supersedeas bond in the amount of $132,347.00, the Second Amended Judgment is STAYED to the extent it orders Beverage Distributors to pay a monetary award. Beverage Distributors shall have 20 days from the date of this Order to obtain and post the bond, otherwise this portion of this Order shall become null and void and the EEOC can begin collection. Beverage Distributors shall report, within six months of this Order, its compliance with this Court's 12/9/2013 Order (Doc. # 116 ) to engage an outside consultant to provide employee training and assistance in revisions to its policies, updates to its job postings, notice posting, and reporting and compliance review. By Judge Christine M. Arguello on 11/01/2014. (athom, ) (Entered: 11/04/2014)
143 BOND [APPEAL] posted by Defendant Beverage Distributors Company, LLC. (Kirkpatrick, Joshua) (Entered: 11/19/2014)
144 USCA Order as to 117 Notice of Appeal filed by Beverage Distributors Company, LLC: the direct−threat jury instruction constituted reversible error, and the district court did not err in awarding a tax offset. (USCA Case No. 14−1012) (This document is not the Mandate) (dkals, ) (Entered: 03/16/2015)
145 USCA Judgment as to 117 Notice of Appeal filed by Beverage Distributors Company, LLC: The judgment of the District Court is reversed. (USCA Case No. 14−1012) (This document is not the Mandate) (dkals, ) (Entered: 03/16/2015)
146 Unopposed MOTION for Order to Regarding Compliance With Equitable Relief by Defendant Beverage Distributors Company, LLC. (Attachments: # 1 Exhibit 1)(Kirkpatrick, Joshua) (Entered: 04/24/2015)
147 ORDER of USCA as to 117 Notice of Appeal filed by Beverage Distributors Company, LLC. Costs are taxed in favor of the Appellant and against the Appellee in the amount of $810.20, which equals the $627.60 in copying costs conceded by the Appellee plus $182.60 for the Appellant's copy of each of the four documents. (USCA Case No. 14−1012) (athom, ) (Entered: 04/27/2015)
148 ORDER granting 146 Defendant's Unopposed Motion. The deadline for reporting compliance with this Court's 11/1/2014 Order (Doc. 142 )is continued until one month after the issuance of the Tenth Circuit's mandate in the case, should this Courts directives still stand after issuance of the mandate. SO ORDERED by Judge Christine M. Arguello on 4/29/2015. Text Only Entry(vbarn, ) (Entered: 04/29/2015)
149 MANDATE of USCA as to 144 USCA Order, 117 Notice of Appeal filed by Beverage Distributors Company, LLC, 145 USCA Judgment : (USCA Case No. 14−1012) (athom, ) (Entered: 06/04/2015)
150 MINUTE ORDER: Status Conference re: 149 Mandate of USCA set for 7/9/2015 at 10:00 AM in Courtroom A 602 before Judge Christine M. Arguello. SO ORDERED by Judge Christine M. Arguello on 6/11/2015. Text Only Entry (vbarn ) (Entered: 06/11/2015)
151 Unopposed MOTION to Withdraw as Attorney by Plaintiff Equal Employment Opportunity Commission. (Struble, Stephanie) (Entered: 06/25/2015)
152 ORDER GRANTING MOTION to Withdraw as Attorney 151 . Attorney Stephanie Struble terminated. SO ORDERED BY Judge Christine M. Arguello on 6/26/15. Text Only Entry. (cmalc1) (Entered: 06/26/2015)
153 STIPULATION relating to BILL OF COSTS by Defendant Beverage Distributors Company, LLC. (Attachments: # 1 Exhibit 1)(Kirkpatrick, Joshua) (Entered: 07/07/2015)
154 MINUTE ENTRY for proceedings held before Judge Christine M. Arguello: Status Conference held on 7/9/2015. ORDERED setting a trailing five−day Jury Trial for 2/8/2016 at 8:00 AM, with a Final Pretrial Conference set for 2/2/2016, at 3:30 PM. The Court also sets a FIRM five−day Jury Trial for 3/21/2015 at 8:00 AM, with a Final Pretrial Conference set for 3/15/2016, at 3:30 PM. All hearing to be held in Courtroom A 602 before Judge Christine M. Arguello. (Total time: 14, Hearing time: 9:58 AM − 10:12 AM)

APPEARANCES: Andy Winston on behalf of the plaintiff, Jennifer Harpole and

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07/21/2015 07/22/2015 07/24/2015
11/06/2015
12/03/2015 12/04/2015 12/04/2015

Joshua Kirkpatrick on behalf of the defendant. ALSO PRESENT: EEOC Client Representative Sean Ratliff Court Reporter: Darlene Martinez. (vbarn) Text Only Entry (Entered: 07/09/2015)
155 NOTICE of Entry of Appearance by Lauren Golden Jaeckel on behalf of Equal Employment Opportunity CommissionAttorney Lauren Golden Jaeckel added to party Equal Employment Opportunity Commission(pty:pla) (Jaeckel, Lauren) (Entered: 07/21/2015)
156 Unopposed MOTION to Withdraw as Attorney for the EEOC by Plaintiff Equal Employment Opportunity Commission. (Winston, David) (Entered: 07/22/2015)
157 ORDER granting 156 Motion to Withdraw as Attorney. ORDERED that Attorney D. Andrew Winston is permitted to withdraw as counsel for Plaintiff. The Court notes that Plaintiff continues to be represented by Lauren Jaeckel. FURTHER ORDERED that the Clerk of the Court is DIRECTED to delete Mr. Winstons email address from future ECF filings and electronic notifications in this case. SO ORDERED BY Judge Christine M. Arguello on 7/24/2015. Text Only Entry(vbarn ) (Entered: 07/24/2015)
158 ORDER AFFIRMING the Trial Preparation Conference set for 2/2/2016 at 3:30 PM, and five−day Jury Trial set to begin 2/8/2016 at 8:00. VACATING the Trial Preparation Conference set for 3/15/2016 and Jury Trial set for 3/21/2016. SO ORDERED by Judge Christine M. Arguello on 11/6/2015. Text Only Entry (vbarn) (Entered: 11/06/2015)
159 MOTION for Order to Enter Consent Decree and for Administrative Closure by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Consent Decree)(Jaeckel, Lauren) (Entered: 12/03/2015)
160 CONSENT DECREE by Judge Christine M. Arguello on 12/04/2015. This case is Administratively Closed. (athom, ) (Entered: 12/04/2015)
161 MINUTE ORDER VACATING the Final Trial Preparation Conference set for 2/2/2016 at 3:30 PM and five−day Jury Trial set to begin 2/8/2016 at 8:00 AM. SO ORDERED BY Judge Christine M. Arguello on 12/04/15. Text Only Entry. (cmalc1) (Entered: 12/04/2015)

 
 U.S. Equal Employment Opportunity Commission
PRESS RELEASE 9-30-11
Beverage Distributors Company Sued by EEOC for Disability Discrimination
Company Refuses to Hire Applicant Because He Is Legally Blind, Federal Agency Charges
DENVER – Beverage Distributors Company in Colorado intentionally and unlawfully discriminated against an applicant for hire due to his disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed September 29, 2011.
According to the EEOC’s lawsuit, Michael Sungalia, who is legally blind, worked for Beverage Distributors for over four years as a driver’s helper. When the company decided to eliminate this position and use contract laborers instead, Sungalia applied for a position as a night warehouse loader. Beverage Distributors offered him the position subject to a pre-employment medical examination. Following the medical examination, Beverage Distributors withdrew the job offer believing that Sungalia could not safely perform the functions of the position due to his poor eyesight. According to the EEOC’s complaint, the position involves loading cases of liquor and kegs of beer into the back of trucks, which the EEOC contends that Sungalia could safely perform.
The EEOC filed the lawsuit (EEOC v. Beverage Distributors Company., Case No. 11-cv-02557) in U.S. District Court for the District of Colorado after first attempting to reach a pre-litigation settlement through its conciliation process. The suit seeks monetary damages, including back pay, compensation for emotional distress and punitive damages. The EEOC also seeks injunctive relief prohibiting further discrimination by the employer and mandating corrective action, including hiring Sungalia into a night warehouse loader position.
“An employer cannot deny an applicant a position based on its generalized fears about risks from the employment environment,” said EEOC Regional Attorney Mary Jo O’Neill. “Rather, an employer must analyze the nature and severity of the potential harm and whether the harm would likely occur. In addition, the employer must consider whether there are any reasonable accommodations that would eliminate the risk.”
EEOC Denver Field Office Director Nancy Sienko added, “The unemployment rate for people with a disability is well above the figure for those with no disability. This nation has committed to making accommodations in the workplace so individuals with disabilities can work and contribute to society.”
The EEOC is responsible for enforcing federal laws against employment discrimination. Further information about the EEOC is available on its website at www.eeoc.gov.

 
 U.S. Equal Employment Opportunity Commission
PRESS RELEASE 12-12-13
Beverage Distributors Ordered to Pay About $200K and Hire Sight-Impaired Employee in EEOC Disability Discrimination Suit
Jury Found Company Violated Federal Law by Shunning Legally Blind Applicant
DENVER - In a disability lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), a federal court in Denver has ordered Beverage Distributors Company (BDC) in Colorado to pay around $200,000 and hire him to a position he had been denied because of his impaired eyesight, the agency announced today.
According to the EEOC's suit, Mike Sungaila, who is legally blind, worked for BDC for over four years as a driver's helper. When the company decided to eliminate his position and instead use contract laborers, Sungaila applied for a position as a night warehouse loader. BDC offered Sungaila the position subject to a pre-employment medical examination. Following the medical examination, BDC withdrew the job offer, believing that Sungaila could not safely perform the functions of the position due to his poor eyesight. The position involves loading cases of liquor and kegs of beer into the back of trucks. The EEOC, contending that Sungaila could safely perform the job, filed suit in U.S. District Court for the District of Colorado after first attempting to reach a pre-litigation settlement through its conciliation process. EEOC v. Beverage Distributors Company, LLC, 11-cv-02557-CMA-CBS.
Following a four-day trial in April, the jury agreed with the EEOC that BDC intentionally violated the Americans with Disabilities Act (ADA) when it withdrew its job offer to Sungaila because of his impaired eyesight. The jury initially awarded Sungaila $132,347 in back pay, but found that his damages should be reduced by $102,803 because the jury believed that Sungaila could have mitigated his damages by finding a comparable position. This week, U.S. District Judge Christine Arguello vacated the jury's finding that Sungaila could have mitigated his damages, finding that BDC failed to prove there were any available comparable jobs that Sungaila could have performed, and ordered BDC to pay Sungaila his entire back pay. Moreover, BDC must pay interest on the award, which will increase the award to approximately $200,000, and must compensate Sungaila for any tax consequence he will suffer due to being paid this judgment in one year.
In addition, the court ordered BDC to hire Sungaila as a night warehouse loader with the same seniority that he would have had BDC not withdrawn the job offer due to his eyesight. Sungaila must be offered this position within the next six months and will be paid the same salary as other employees who have been employed in the position for five years, which is approximately $23 per hour.
The court also found that "the testimony of Beverage Distributors managers and human resources professionals demonstrated a lack of sufficient knowledge about the ADA, its interactive process, and the requirement that reasonable accommodations be provided to employees." The judge also stated that BDC's employee handbook was insufficient to explain to employees how they can request accommodations and contained an incorrect statement of its obligations under the law. Therefore, the court ordered that BDC must engage an outside consultant to provide employee training and assistance in revisions to BDC's policies, job postings, notice posting, and reporting and compliance review. BDC must report to the court within six months that it has complied with the judge's order.
"The Commission is always willing to resolve cases informally," said EEOC General Counsel P. David Lopez. "As we have demonstrated consistently nationwide, when necessary, we will try the case and secure both monetary relief for the victim and, importantly, non-monetary relief to ensure the company modifies it practices so that the discrimination does not recur. The Commission has prevailed in 10 of its past 11 jury trials."
"Employers must provide accommodations for qualified individuals with disabilities and must base all employment-related decisions on facts, not stereotypical assumptions about an employee's abilities," said EEOC Regional Attorney Mary Jo O'Neill. "We believe this order will ensure that going forward, individuals with disabilities will no longer be discriminated against by Beverage Distributors. Further, this decision will send a message to all employers that it does not pay to discriminate."
EEOC Denver Field Office Director Nancy Sienko added, "We are excited that Mr. Sungaila will finally be fully

compensated for the harm that he suffered due to discrimination by his former employer."
The EEOC is responsible for enforcing federal laws against employment discrimination. Further information is available at www.eeoc.gov. Further information about the EEOC is available on its website at www.eeoc.gov.