.D.C.

IN THE UNITED STATES DISTRICT COURT R~DBY ._._.~~

FOR

THE

WESTERN DISTRICT OF WESTERN DIVISION

TENNESSE~ SEP

27

£H

5:00

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
PLAINTIFF

Vo
NORTHWEST AIRLINES,

INC.

DEFENDANT.

Civil Action No.
00-2916
COMPLAINT JURY TRIAL DEMANDED

NATURE OF THE ACTION

This is an action under Title I of the Americans With Disabilities Act of 1990 and Title I of the Civil Rights Act of 1991, to correct unlawful employment practices on the basis of disability and to make whole Kevin Armstrong (hereinafter referred

to as "Armstrong").

The Commission alleges that the Defendant

Northwest Airlines, Inc., refused to hire Kevin Armstrong for an

equipment service employee position because of his disability,

diabetes.

JURISDICTION AND VENUE

i. 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 Section 107(a) of the

Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C.

§12117(a), which incorporates by reference Sections 706(f)(i) and

(3) of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42

UoS.C. §§2000e-5(f) (I) and (3), and pursuant to Section 102 of the

Civil Rights Act of 1991, 42 U.S.C. §1981a.

2.

The unlawful employment practices alleged below were and

are now being committed in the Western District of Tennessee,

Western Division.

PARTIES

3.

Plaintiff, Equal Employment Opportunity Commission (the

"Commission") is an 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

Section 107(a) of the ADA, 42 U.S.C. §12117(a), which incorporates

by reference Sections 706(f) (I) of Title VII, 42 U.S.C. §2000e-

5 (f) (i) .

4. At all relevant times, Defendant, Northwest Airlines,

Inc., (hereinafter referred to as "Employer" or ~Northwest

Airlines") has been and is now a corporation doing business in the

State of Tennessee and has continuously had and does now have at

least fifteen (15) employees. Defendant employer is a commercial

airline engaged in the business of providing passenger air

transportation. It is one of the largest airlines in the world.

5.

At all relevant times,

Defendant Employer has

continuously been an employer engaged in an industry affecting

commerce within the meaning of 8101(5) of the ADA, 42 U.S.C.

812111(5), and Section 107(7) of the A/3A, 42 U.S.C. §12117(a),

which incorporates by reference Sections 701(g). and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h).
At all relevant times, Defendant Employer has been a covered entity under Section 101(2) of the ADA, 42 U.S.C. §12111(2) .
STATEMENT OF CLAIMS

7.

More than thirty (30) days prior to the institution of

this lawsuit, Kevin Armstrong filed a charge with the Commission

alleging a violation of Title I of the ADA by Defendant Employer.

All conditions precedent to the institution of this lawsuit have

been fulfilled.

8.

The Commission alleges that in January 1998, Kevin

Armstrong applied for employment as an equipment service employee

with Northwest Airlines. He was offered the position on January

29, 1998, based on his application and interview. The offer was

contingent on Armstrong passing a

pre-placement physical

examination. Armstrong underwent the medical exam on May 13, 1998,

at the Baptist Minor Medical Center in Memphis

9.

During his physical, Armstrong reported his insulin-

dependent diabetes. Based on that information, the results of his

examination were forwarded to the Airport Medical Clinic (AMC), for

further review. An AMC physician then requested additional medical history regarding Armstrong’s diabetes.

3

i0.

In June 1998, the AMC physician submitted a

recommendation to Northwest Airlines that Armstrong should be

restricted from driving heavy equipment/vehicles or working at

unprotected heights. The physician based his decision on a concern

that Armstrong could experience sudden loss of consciousness or

incapacitation.

However, neither Armstrong nor his treating

physician was consulted about the possibility of Armstrong

experiencing such diabetes related symptoms.

ii.

After Northwest Airlines received the AMC report, a

human resources representative advised Armstrong, in writing, of

the restrictions and asked him to complete an Accommodation Request

Form. By letter dated July 2, 1998, Armstrong responded that he

did not need accommodations.

He pointed out that he has been

issued a valid driver’s license, without restrictions. He also

noted that he was working the same position with another airline.

12.

In his letter, Armstrong assured the human resources

representative that he could perform the essential job functions.

He also requested reconsideration of his application.

Shortly

thereafter, Northwest Airlines withdrew its offer of employment.

13.

Since at least June 1998, Defendant Employer has

engaged in unlawful employment practices in violation of the ADA,

Section 102(a), 42 U.S.Co §§12112(a), at its Memphis, Tennessee facility. These practices include but are not limited to refusing

to hire Kevin Armstrong, a qualified individual with a disability

4

becauseof his disability, diabetes.

14. The effect of these practices complained of above has

been to deprive Mr. Armstrong of equal employment opportunities and

otherwise adversely affect his status as an employee because

Defendant Employer refused to hire him because of his disability.

15.

The unlawful employment practices complained of above

were and are intentional.

16. Defendant Northwest Airlines, Inc., at all relevant times has been acting with malice or reckless indifference to the

federally protected rights of Kevin Armstrong in violation of the

ADA, 42 U.S.C. ~12101 et seq. PRAYER FOR RELIEF

WHEREFORE, the Commission respectfully prays that this Court:

A.

Grant a permanent injunction enjoining the Defendant

Northwest Airlines, Inc., its officers, successors, assigns and all

persons in active concert or participation with it, from engaging

in any employment practice which discriminates on the basis of disability.

B.

Order Defendant to institute and carry out policies,

practices and programs which provide equal employment opportunities

for qualified individuals with disabilities, and which eradicate

the effects of past and present unlawful employment practices.

C.

Order Defendant Northwest Airlines, Inc., to make whole

Kevin Armstrong by providing him with appropriate back pay with

5

prejudgment interest, in amounts to be proved at trial, rightful

place hiring, and other affirmative relief necessary to eradicate

the effects of its unlawful employment practices.

D.

Order Defendant Northwest Airlines, Inc., to make whole

Kevin Armstrong by providing Compensation for nonpecuniary losses,

including emotional pain, suffering, inconvenience and mental

anguish in amounts to be proven at trial. E. Order Defendant Northwest Airlines, Inc., to pay punitive

damages for its malicious and/or reckless conduct, in an amount to

be determined at trial.

F.

Grant such further relief as the Court deems necessary

and proper; and,

G.

Award the Commission its costs in this action.

6

JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by the Complaint.
Respectfully submitted, C. GREGORY STEWART General Counsel
GWENDOLYNYOUNG REAMS Deputy General Counsel
KATHARINE W. KORES Regional Attorney TN Bar # 6283
TERRY BECK Supervisory Trial Attorney TN Bar.# 9436
DEIDR~ Trial Attorney TN Bar # 018499 EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION 1407 Union Avenue, Suite 621 Memphis, Tennessee 38104 Telephone: (901) 544-0140

 
 Case 2:00-cv-02916-JPM-tmp Document 172 Filed 10/31/2002 Page 1 of 4

n:'~~:31 J::C. IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

.. " I I

WESTERN D I V I S I O N " ,!: ')

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, and KEVIN ARMSTRONG,
Intervening Plaintiff, vs, NORTHWEST AIRLINES, INC.
Defendant.

Case No, 00-2916-MI

ORDER ON JURY VERDICT

This cause came on for jury trial on October 21, 2002; the EEOC was represented

by counsel, Deidre Smith and Faye Williams and the intervening plaintiff, Kevin Armstrong,

was represented by Joe Lee Wyatt. The defendant was represented by counsel, Herbert

Gerson and Timothy Bland.

Jurors were selected and sworn and opening statements were presented by

counsel. After listening to all the evidence, closing arguments, and the charge of the Court,

the Jury began deliberations on October 25, 2002. After due deliberations, the Jury

returned into open court and announced a verdict in favor ofthe intervening plaintiff, Kevin

Armstorng. As to Element One (1), the jury found that Northwest Airlines regarded Mr.

Armstrong as having a disability. As to Element Two (2), the jury found that Mr. Armstrong

This document entered on the docket sheet In compliance
with Rule 58 and/or 79(8) FRCP on I Q-31--0 '2..

~

Case 2:00-cv-02916-JPM-tmp Document 172 Filed 10/31/2002 Page 2 of 4
was a qualified individual able to perform the job requirements of the ESE position and that Mr. Armstrong did not pose a direct threat to himself or others. As to Element Three (3), the jury found that Mr. Armstrong suffered an adverse employment decision because of the perceived disability (that is, was not hired by Northwest Airlines in violation of Mr. Armstrong's federally protected rights under the American with Disabilities Act).
The jury also found that the Mr. Armstrong is entitled to back pay in the amount of Twenty Thousand Nine Hundred Sixty Seven Dollars and Fifteen Cents ($20,967.15). Furthermore, the jury found that Mr. Armstrong suffered emotional pain and mental anguish as a result of the unlawful conduct of Northwest Airlines and awarded compensatory damages in the amount of Nineteen Thousand Two Hundred Fifty Dollars ($19, 250.00).

The jurors were polled individually and excused.

(31 ENTERED, this the

day of October, 2002.

JO P. McCALLA U ITED STATES DISTRICT JUDGE

2

Case 2:00-cv-02916-JPM-tmp Document 172 Filed 10/31/2002 Page 3 of 4
UNITED STATES DISTRICT COURT - WESTERN DISTRICT OF TENNESSEE
Notice of Distribution
This notice confirms a copy ofthe document docketed as number 172 in case 2:00-CV-02916 was distributed by fax, mail, or direct printing on October 31, 2002 to the parties listed.
Katharine W. Kores EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste.621 Memphis, TN 38104
Terry L. Beck EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste.621 Memphis, TN 38104
Deidre Smith EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste.621 Memphis, TN 38104
Faye A. Williams EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste.621 Memphis, TN 38104
Herbert E. Gerson FORD & HARRISON, LLP 6750 Poplar Avenue Ste.600 Memphis, TN 38138
Timothy S. Bland FORD & HARRISON, LLP 6750 Poplar Avenue Ste.600 Memphis, TN 38138

Case 2:00-cv-02916-JPM-tmp
Thomas J. Walsh FORD & HARRISON, LLP 6750 Poplar Avenue Ste.600 Memphis, TN 38138

Document 172

Filed 10/31/2002

Page 4 of 4

Joe L. Wyatt MCWHIRTER & WYATT 73 Union Avenue Memphis, TN 38103

James Allen U.S. Magistrate Judge 167 N. Main St., Rm 341 Memphis, TN 38103

Honorable Jon McCalla US DISTRICT COURT

 
 Case 2:00-cv-02916-JPM-tmp Document 173 Filed 10/31/2002 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff and KEVIN ARMSTRONG,
Intervening Plaintiff VS. NORTHWEST AIRLINES
Defendant

.. :,,~')
.. :,;~
CASE NO. 00-2916-Ml

JUDGMENT ON JURY VERDICT
This action came on for trial before the Court and jury, the Honorable Jon Phipps McCalla, United States District Judge, presiding, and the issues having been duly tried and the jury having duly rendered its verdict on October 25, 2002.
It is hereby ORDERED AND ADJUDGED that the claim of Equal Employment Opportunity Commission and Kevin Armstrong, intervening plaintiff, vs. Northwest Airlines, Kevin Armstrong is to recover back pay of $20,967.16 from Northwest Airlines and compensatory damages of $19,250.00 from Northwest Airlines, for a total of $40,217.15 in damages.
APPROVED:

PHIPPS McCALLA TED STATES DISTRICT JUDGE
This document entered on the docket sheet In compliance
with Rule 58 and/or 79(a) FRCP on I Q-:3) -02.

Case 2:00-cv-02916-JPM-tmp Document 173 Filed 10/31/2002 Page 2 of 4

~ Dated at Memphis, Tennessee, this

day of October, 2002.

ROBERT R. 01 TROUO
CLERK OF THE COURT

Case 2:00-cv-02916-JPM-tmp Document 173 Filed 10/31/2002 Page 3 of 4
UNITED STATES DISTRICT COURT - WESTERN DISTRICT OF TENNESSEE
Notice of Distribution
This notice confirms a copy ofthe document docketed as number 173 in case 2:00-CV-02916 was distributed by fax, mail, or direct printing on October 31, 2002 to the parties listed.
Katharine W. Kores EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste.621 Memphis, TN 38104
Terry L. Beck EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste.621 Memphis, TN 38104
Deidre Smith EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste.621 Memphis, TN 38104
Faye A. Williams EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste.621 Memphis, TN 38104
Herbert E. Gerson FORD & HARRISON, LLP 6750 Poplar Avenue Ste.600 Memphis, TN 38138
Timothy S. Bland FORD & HARRISON, LLP 6750 Poplar Avenue Ste.600 Memphis, TN 38138

Case 2:00-cv-02916-JPM-tmp
Thomas J. Walsh FORD & HARRISON, LLP 6750 Poplar Avenue Ste.600 Memphis, TN 38138

Document 173

Filed 10/31/2002

Page 4 of 4

Joe L. Wyatt MCWHIRTER & WYATT 73 Union Avenue Memphis, TN 38103

James Allen U.S. Magistrate Judge 167 N. Main St., Rm 341 Memphis, TN 38103

Honorable Jon McCalla US DISTRICT COURT

 
 DISTRIC;;:~r4:':" Case 2:00-cv-02916-JPM-tmp Document 205 Filed 08/19/2003 Page 1 of 4 IN THE UNITED STATES FOR THE WESTERN DISTRICT OF T~~,,~~~S~~oLlo WESTERN DIVISION ~~Y!:P:~:·I;::. OIST. CT. "" [1 ,-)::. :,r,EMPHIS

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff, and KEVIN ARMSTRONG,
Intervening Plaintiff, vs. NORTHWEST AIRLINES, INC.
Defendant.

Case No. 00-2916-MI

'AMENDED ORDER ON JURY VERDICT

This cause came on for jury trial on October 21, 2002; the EEOC was represented by counsel, Deidre Smith and Faye Williams and the intervening plaintiff, Kevin Armstrong, was represented by Joe Lee Wyatt. The defendant was represented by counsel, Herbert Gerson and Timothy Bland.
Jurors were selected and sworn and opening statements were presented by counsel. After listening to all the evidence, closing arguments, and the charge of the Court, the Jury began deliberations on October 25, 2002. After due deliberations, the Jury returned into open court and announced a verdict in favor of the intervening plaintiff, Kevin Armsrong. As to Element One (1), the jury found that Northwest Airlines regarded Mr. Armstrong as having a disability. As to Element Two (2), the jury found that Mr. Armstrong
This document entered on the docket sheet In cO"2!'lIanc8
with Rule 58 and/or 79(a) FRGP on ,,\ 20 -0,::)

Case 2:00-cv-02916-JPM-tmp Document 205 Filed 08/19/2003 Page 2 of 4
was a qualified individual able to perform the job requirements of the ESE position and that Mr. Armstrong did not pose a direct threat to himself or others. As to Element Three (3), the jury found that Mr. Armstrong suffered an adverse employment decision because of the perceived disability (that is, was not hired by Northwest Airlines in violation of Mr. Armstrong's federally protected rights under the American with Disabilities Act). 'Furthermore, the jury found that the Defendant's actions were not in malicious or reckless disregard of Mr. Armstrong's federally protected rights.
The jury also found that the Mr. Armstrong is entitled to back pay in the amount of Twenty Thousand Nine Hundred Sixty Seven Dollars and Fifteen Cents ($20,967.15). Furthermore, the jury found that Mr. Armstrong suffered emotional pain and mental anguish as a result of the unlawful conduct of Northwest Airlines and awarded compensatory damages in the amount of Nineteen Thousand Two Hundred Fifty Dollars ($19, 250.00).

The jurors were polled individually and excused.

---tl ENTERED, this the

day of August, 2003.

JUDGE

2

Case 2:00-cv-02916-JPM-tmp Document 205 Filed 08/19/2003 Page 3 of 4
UNITED STATES DISTRICT COURT - WESTERN DISTRICT OF TENNESSEE
Notice of Distribution
This notice confirms a copy ofthe document docketed as number 205 in case 2:00-CV-02916 was distributed by fax, mail, or direct printing on August 20, 2003 to the parties listed.
Katharine W. Kores EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste.621 Memphis, TN 38104
Terry L. Beck EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste.621 Memphis, TN 38104
Deidre Smith EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste.621 Memphis, TN 38104
Faye A. Williams EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste.621 Memphis, TN 38104
Herbert E. Gerson FORD & HARRISON, LLP 6750 Poplar Avenue Ste.600 Memphis, TN 38138
Timothy S. Bland FORD & HARRISON, LLP 6750 Poplar Avenue Ste.600 Memphis, TN 38138

Case 2:00-cv-02916-JPM-tmp
Thomas J. Walsh FORD & HARRISON, LLP 6750 Poplar Avenue Ste.600 Memphis, TN 38138

Document 205

Filed 08/19/2003

Page 4 of 4

Joe L. Wyatt MCWHIRTER WYATT BRANNON & ELDER 73 Union Ave. Memphis, TN 38103

James Allen U.S. Magistrate Judge 167 N. Main St., Rm 341 Memphis, TN 38103

Robert Di Trolio U.S. DISTRICT COURT Office ofthe Clerk 167 N. Main Street Rm. 242 Federal Building Memphis, TN 38103

Honorable Jon McCalla US DISTRICT COURT

 
 Case 2:00-cv-02916-JPM-tmp Document 207 Filed 09/23/2003 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

KEVIN ARMSTRONG,

)

)

Intervening Plaintiff,

)

)

)

v.

)

)

)

NORTHWEST AIRLINES, INC.,

)

)

Defendant.

)

)

CL'~
IN ~.,
No. 00-2916 Ml/A

ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW OR IN THE ALTERNATIVE FOR NEW TRIAL

Before the Court is Defendant's Motion for Judgment as a Matter of Law or in the Alternative for New Trial, filed on November 12, 2002. Plaintiff Equal Employment Opportuni ty Commission (the" EEOC") responded in opposition on November 27, 2002.
The Equal Employment Opportunity Commission (the" EEOC") filed
suit under the Americans With Disabilities Act of 1990, 42 u.s.c.
§ 12111 et seq. (the "ADA"), against Defendant Northwest Airlines ("Northwest") alleging that Defendant failed to hire Mr. Kevin

This document entered on the docketq!j1lrtdmPuance 1 with Rule 58 andlor 79(a) FRCP on ....J_+~~-"''f,10""-_ __

Case 2:00-cv-02916-JPM-tmp Document 207 Filed 09/23/2003 Page 2 of 10
Armstrong because of his disability, insulin-dependent diabetes. A jury trial in this matter took place from October 21-25, 2002, concluding with a verdict in favor of Intervening Plaintiff Kevin Armstrong in the amounts of $20,967.15 back pay and $19,250.00 compensatory damages.
Defendant moves for judgment as a matter or law or in the alternative for new trial pursuant to Rules 50(b) and 59(a) of the Federal Rules of Civil Procedure. Defendant avers that Plaintiffs failed to present sufficient proof that Defendant regarded Armstrong as substantially limited in a maj or life activi ty, the Court committed reversible error in its rulings on the admission or exclusion of evidence and that the Defendant's proposed jury instructions and verdict form are proper and in accordance with the applicable law.
For the following reasons, the Court DENIES Defendant's motion. Discussion
Following a jury verdict, judgment as a matter of law, pursuant to Fed. R. Civ. P. 50, is proper only when there are no facts to support the verdict so that a reasonable jury could not have found for the nonmoving party. More v. KUKA Welding Svs. & Robot Corp., 171 F.3d 1073, 1078 (6th Cir. 1999).
Plaintiffs submitted sufficient proof to support their burden of showing that Defendant regarded Mr. Armstrong as substantially limited in the major life activity of working. Plaintiffs presented
2

Case 2:00-cv-02916-JPM-tmp Document 207 Filed 09/23/2003 Page 3 of 10
deposi tion testimony of Dr. Kevin 0' Connell showing that he believed that Armstrong was always at risk of sudden incapacitation and altered states of consiciousness. Mark Williams, Defendant's human resources official stated through deposition testimony, that at the time Armstrong applied for the position in question, Williams contacted a manager in Memphis and was told that, with the restrictions placed on Armstrong by Dr. O'Connell, there were no jobs available for Armstrong in Memphis. Moreover, Plaintiffs demonstrated that Dr. 0' Connell, upon whose recommendation Defendant relied, never actually examined Armstrong. Dr. Myers gave testimony establishing that Dr. 0' Connell was mistaken about Armstrong's restrictions and symptoms. Such evidence created a question of fact for the jury to decide whether Defendant regarded Mr. Armstrong as disabled.
Defendant further argues that working is not a maj or life activity and, therefore, Defendant is entitled to judgment as a matter of law. The Court previously addressed this argument in its Order Denying Defendant's Motion for Summary Judgment entered September 30, 2002. As the Court stated in that order, the Sixth Circuit has determined that working is a major life activity under the ADA. Mahon v. Cromwell, 295 F.3d 585, 590 (6th Cir. 2002).
Accordingly, the Court DENIES Defendant's motion for judgment as a matter of law.
In support of their motion for a new trial, Defendant asserts
3

Case 2:00-cv-02916-JPM-tmp Document 207 Filed 09/23/2003 Page 4 of 10
that the Court committed harmful error in several of the Court's
evidentiary rulings. Defendant asserts that the Court erred in
allowing Dr. Myers and Dr. Levin to testify as experts. Defendant
also asserts that the Court erred in excluding Dr. O'Connell's
expert report; erred in excluding evidence of other medical
conditions from which Armstrong suffered; erred in excluding
Northwest's interactive process; and erred in excluding evidence of
accidents at Northwest caused by employees' lack of attention.
The authority to grant a new trial is almost entirely within
the discretion of the trial court. Allied Chemical Corp. v. Daiflon,
Inc., 449 U.S. 33 (1980); Montgomery Ward & Co. v. Duncan, 311 U.S.
243 (1940). In Strickland v. Owens Corning, 142 F.3d 353, 357 (6th
Cir. 1998), the court explained the procedure a trial court should
follow in ruling on a motion for a new trial:
[Iln ruling upon a motion for a new trial based on the ground that the verdict is against the weight of the evidence, the trial court must compare the opposing proofs, weight the evidence, and set aside the verdict if it is of the opinion that the verdict is against the clear weight of the evidence. It should deny the motion if the verdict is one which could reasonably have been reached, and the verdict should not be considered unreasonable simply because different inferences and conclusions could have been drawn or because other results are more reasonable.
For the reasons stated during trial regarding Defendant's
motions in limine and for the reasons stated in the EEOC's reply
brief, the Court concludes that it did not err in allowing Dr. Myers and Dr. Levin to testify, nor did it err in excluding the expert
report of Dr. 0' Connell; evidence of Armstrong's other medical
4

Case 2:00-cv-02916-JPM-tmp Document 207 Filed 09/23/2003 Page 5 of 10
conditions; evidence of Northwest's interactive process; and evidence of other accidents at Northwest Airlines.
Finally, Defendants argue that the Court erred in rejecting Northwest's proposed jury instructions involving Northwest's Safety Protocol; Business Necessity; FAA mandate; Different Safety Standards; ADA Interactive Process; McDonnell-Douglas; and Direct Threat. The Court will briefly address each argument.
Defendant presented no evidence during trial that Defendant relied on a safety protocol to disqualify Mr. Armstrong from the position in question. Therefore, a jury instruction on safety protocol would have been inappropriate.
Similarly, there was no evidence that Defendant had in place a qualifying standard that affected all insulin-dependent diabetics that would trigger the business necessity defense.
Kevin Frommelt, Defendant's manager of safety and regulatory compliance testified at trial that there is no federal regulation applicable to insulin-dependent diabetics in the ESE position; i.e., there is no federal provision that requires Defendant to reject Armstrong. Therefore, a jury instruction on Defendant's federal safety mandate would have been improper.
Defendant also argues that it was entitled to a jury instruction that it is not liable because it refused to adopt the lower safety standards of Northwest Airlink and Airtran. A comparison of the safety standards of the various airlines was not
5

Case 2:00-cv-02916-JPM-tmp Document 207 Filed 09/23/2003 Page 6 of 10
at issue in this case, nor was there any evidence put on by either party about the safety standards of Airtran or Airlink that would justify such a comparison. Mr. Armstrong's testimony regarding his employment position at those airlines involved the essential functions of the jobs, and had nothing to do with safety standards. Therefore, a jury instruction on those airlines safety standards would have been inappropriate.
Next, Defendant avers that the Court should have included a jury instruction regarding the fact that it had an interactive procedure in place. Reasonable accommodation was not an issue in this case because Mr. Armstrong never requested an accommodation. Therefore, a jury instruction on the interactive process is not appropriate in a case that does not involve the issue of reasonable accommodation.
Defendant argues that the burden-shifting analysis of
McDonnell-Douglas v. Green, 411 u.s. 792 (1973) applies to this
case. However, the Sixth Circuit has held that when, as in this case, there is direct evidence that the employer's decision was based on the employee's disability, the burden-shifting framework is not appropriate because the basis for the employer's decision "sought to be extracted through application of McDonnell Douglas ... is already established. H Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1180-81 (6th Cir. 1996).
Defendant also avers that the Court committed harmful error in
6

Case 2:00-cv-02916-JPM-tmp Document 207 Filed 09/23/2003 Page 7 of 10
failing to include its direct threat jury instruction that states even where the likelihood of an accident is small, a direct threat still exists if the severity and scale of potential harm is significant. The Sixth Circuit has established that a direct threat means there "is 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." Hamlin v. Charter Township of Flint, 165 F.3d 426, 431 (6th Cir. 1999). In determining if an individual poses a direct threat, the following factors have to be evaluated: "(1) the duration of the risk; (2) the nature and severity of the harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm." Id. Defendant did not tie any proof that accidents at the airports can cause harm to individual employees or others to Armstrong. Defendant's proposed jury instruction would, therefore, circumvent the requirement that an individualized assessment be conducted in determining the risk.
Finally, Defendant argues that the Court erred in rejecting Defendant's proposed "threat to safety" defense. Defendant raised the defense that Armstrong posed a direct threat to the safety of himself and others. The Court concludes that the verdict form appropriately addressed the direct threat defense as defined in the jury instructions.
Accordingly, the Court concludes that it did not commit harmful
7

Case 2:00-cv-02916-JPM-tmp Document 207 Filed 09/23/2003 Page 8 of 10 error in failing to include Defendant's above-mentioned proposed jury instructions.
For the reasons stated above, the Court DENIES Defendant's motion for judgment as a matter of law or in the alternative for new trial.
So ORDERED this .22- day of ~.~, 2003.
P. McCALLA TED STATES DISTRICT JUDGE
8

Case 2:00-cv-02916-JPM-tmp Document 207 Filed 09/23/2003 Page 9 of 10
UNITED STATES DISTRICT COURT - WESTERN DISTRICT OF TENNESSEE
Notice of Distribution
This notice confirms a copy ofthe document docketed as number 207 in case 2:00-CV-02916 was distributed by fax, mail, or direct printing on September 23, 2003 to the parties listed.
Katharine W. Kores EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste.621 Memphis, TN 38104
Terry L. Beck EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste.621 Memphis, TN 38104
Deidre Smith EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste.621 Memphis, TN 38104
Faye A. Williams EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste.621 Memphis, TN 38104
Herbert E. Gerson FORD & HARRISON, LLP 6750 Poplar Avenue Ste.600 Memphis, TN 38138
Timothy S. Bland FORD & HARRISON, LLP 6750 Poplar Avenue Ste.600 Memphis, TN 38138

Case 2:00-cv-02916-JPM-tmp
Thomas J. Walsh FORD & HARRISON, LLP 6750 Poplar Avenue Ste.600 Memphis, TN 38138

Document 207

Filed 09/23/2003

Page 10 of 10

Joe L. Wyatt McWHIRTER WYATT & ELDER 73 Union Ave. Memphis, TN 38103

James Allen U.S. Magistrate Judge 167 N. Main St., Rm 341 Memphis, TN 38103

Robert Di Trolio U.S. DISTRICT COURT Office ofthe Clerk 167 N. Main Street Rm. 242 Federal Building Memphis, TN 38103

Honorable Jon McCalla US DISTRICT COURT

 
 246 F.Supp.2d 916 (2002)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and Kevin Armstrong, Intervening Plaintiff, v.
NORTHWEST AIRLINES, INC., Defendant.
No. 00-2916 Ma/A.
United States District Court, W.D. Tennessee, Western Division.
October 30, 2002.
918 *918 Faye A. Williams, Esq., Katharine W. Kores, Esq., Terry L. Beck, Esq., Deidre Smith, Equal Employment Opportunity Commission, Memphis, TN, for Equal Employment Opportunity Commission, plaintiff.
Herbert E. Gerson, Esq., Thomas J. Walsh, Jr., Esq., Timothy S. Bland, Esq., Ford & Harrison, LLP, Memphis, TN, for Northwest Airlines, Inc., defendant.
James Allen, Memphis, TN, pro se.
Robert Di Trolio, Memphis, TN, pro se.
Joe L. Wyatt, McWhirter & Wyatt, Memphis, TN, for Kevin Armstrong.
OPINION AND ORDER DENYING DFENDANT'S MOTION FOR SUMARY JUDGMENT AND DENING DEFENDANT'S MOTION TO CONTINUE TRIAL AND OTHER PRE-TRIAL MATTERS
MCCALLA, District Judge.
Before the Court is Defendant's Motion for Summary Judgment, filed on December 31, 2001. Plaintiff Equal Employment Opportunity Commission (the "EEOC") and Intervening Plaintiff Armstrong responded separately to this motion on February 4, 2002.[1] Defendant replied to Plaintiffs' responses on February 25, 2002. Because Plaintiffs have demonstrated the existence of a genuine issue of material fact as to whether Northwest Airlines ("NWA") regarded Mr. Armstrong as disabled, the Court DENIES Defendant's motion.
I. Facts
This case arises from Defendant's withdrawal of a conditional offer of employment to Mr. Armstrong in June, 1998. The material, undisputed facts in this case are as follows.
Defendant is a commercial airline, which operates a hub in Memphis. (Compl.¶¶ 4, 6.) There is no dispute that Defendant has at all relevant times been a covered entity under Section 101(2) of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12111(2). (Compl. ¶ 6; Ans. ¶ 7.) The EEOC is a federal agency charged with enforcing Title I of the ADA. (Compl.¶ 3.) Mr. Armstrong resided in Memphis, Tennessee when he applied for a position as an Equipment Service Employee ("ESE") with Defendant. (Armstrong Dep., pp. 7-9.)
Mr. Armstrong was diagnosed with Type I diabetes mellitus at age nine. (Def.'s Statement of Und. Facts ¶ 24.) Dr. Lisa Myers, a Memphis endocrinologist, began treating Mr. Armstrong in May, 1997. (Id ¶ 25.) Dr. Myers noted after Mr. Armstrong's first visit that his diabetes was poorly controlled. (Id. ¶ 27.) On several other occasions, Dr. 919 Myers noted that Mr. Amstrong's blood sugar was in "fair," "poor," or "very poor" control. (Id. *919 ¶ 37; Exh. 1 to Def.'s Mot. for Summ. Judg.)

At the time Mr. Armstrong applied to work as an ESE for Defendant, he had a habit of eating meals at irregular intervals and he was injecting himself with insulin at least twice daily. (Def.'s Statement of Und. Facts ¶¶ 46, 47.) Before Mr. Armstrong can ingest food, he must prick his finger in order to draw a sample of blood to test his sugar level and analyze the food to be consumed in accordance with diabetic nutrition guidelines. (Dr. Levin Dep., pp. 116-7.)[2] Mr. Armstrong testified that it only takes a minute and a half to check his blood sugar. (Armstrong Dep., pp. 153-54.) In addition, Mr. Armstrong must always plan his meals in order to insure proper control over his blood sugar levels throughout the day. (Dr. Levin Dep., pp. 116-7.)
Mr. Armstrong testified that the only symptoms he experiences from low blood sugar are weakness and trembling. (Armstrong Dep., p. 159.) He explained that he always carries pieces of hard candy in order to raise his blood sugar, which take effect within five minutes. (Id. at 188-89). Mr. Armstrong reported that he has not experienced significant blood sugar fluctuations at work that have caused him to stop working, nor has he experienced any blurred vision or loss of consciousness. (Id. at 190-91.)
Mr. Armstrong held several jobs before applying to work as an ESE for Defendant. On two occasions he worked as a sacker at a grocery store. (Def.'s Statement of Und. Facts ¶ 61.) He worked briefly for a construction company and as a clerk for Sears. (Id. ¶ 62.) Mr. Armstrong also did seasonal work as a package courier for UPS. (Id. ¶ 63.) He worked for Phoenix Airline Services, which operates under the name "Northwest Air Link," in 1997, as an ESE. (Id. ¶¶ 65, 67.) In January 1998, Mr. Armstrong was hired by Air Tran to work as an ESE in Memphis. (Id, ¶ 74.)
On January 21, 1998, Mr. Armstrong applied for an ESE position with Defendant at its Memphis hub. (Id. ¶ 106.) The duties of a Northwest Airlines ESE in Memphis include handling baggage on the tarmac, transporting luggage in and out of aircraft bins and between aircraft and baggage areas of the terminal, guiding planes in and out of their parking places, and deicing planes when needed. (Id. ¶ 84.) Essential functions of the ESE position include operating heavy equipment, working at unprotected heights, and regular heavy lifting. (Id. ¶ 85.) ESE's are exposed to all weather conditions, chaotic working conditions, sustained loud noises, and exhaust fumes. (Id. ¶¶ 92, 93.) The ESE position is a dangerous and demanding job, requiring a high level of visual acuity, constant alertness, and quick reaction time. (Id. ¶ 98.)
When completing the application form for the ESE position at Northwest Airlines, Mr. Armstrong indicated that he is not disabled. (Id. ¶ 108; Exh. 4 to Def.'s Mot. for Summ. Judg.) Defendant extended a conditional job offer to Mr. Armstrong on January 29, 1998, which was rejected. (Def.'s Statement of Und. Facts ¶ 115.) In late April or 920 early May of 1998, *920 Mr. Armstrong again applied for the ESE position, and Defendant again extended a conditional offer. (Id.¶¶ 116, 117.) His employment was conditioned on the satisfactory completion of a preplacement physical examination and drug test, as well as a background investigation. (Id. ¶¶ 117.)
Mr. Armstrong reported for a physical examination at a medical clinic in Memphis. (Id ¶¶ 119.) As a part of his preplacement physical examination, Mr. Armstrong completed a medical history form, in which he reported that he was a diabetic and that he had a history of two openheart surgeries. (Id. ¶¶ 120.) He indicated that he was in excellent health. (Id)
Records of the pre-placement physical examination and the medical history form were forwarded to Dr. Kevin O'Connell at the Airport Medical Clinic in Minnesota.[3] (Id. ¶ 122.) Dr. O'Connell asked Mr. Armstrong to submit additional records concerning whether his diabetes was in good control and the status of his heart condition. (Id ¶ 132.) Mr. Armstrong had delivered to Dr. O'Connell certain lab reports from Dr. Myers' records. (Id ¶ 136.) After reviewing the records sent by Mr. Armstrong, Dr. O'Connell concluded that his poorly controlled diabetes prevented him from operating heavy equipment and working at unprotected heights. (Id ¶ 138.) He advised Defendant accordingly. Id. Dr. O'Connell then spoke on the telephone with Mr. Armstrong about his conclusions and the basis for them. (Id. ¶ 141.) Mark Williams, Defendant's resources generalist, called Mr. Armstrong to advise him of the restrictions and invited him to engage in an interactive process to determine if any reasonable accommodations could be made to allow him to perform the functions of an ESE safely. (Id. ¶ 143.)
Mr. Williams confirmed the phone conversation by letter dated June 22, 1998. (Id. ¶ 144.) Mr. Armstrong responded by letter dated July 2, 1998, stating that he could see no reason why his diabetes would preclude him

from performing the duties of an ESE. (Id. ¶ 146.) He enclosed a form on which he wrote "no accommodation needed." (Id) Upon receiving Mr. Armstrong's response, Defendant effectively withdrew its conditional offer. (Id. ¶ 148, n. 5.)
Mr. Armstrong then filed a charge with the EEOC alleging Defendant violated the ADA. (Compl.¶ 7.) On September 27, 2000, the EEOC filed the Complaint in this case under the authority granted it in Section 107(a) of the ADA, 42 U.S.C. § 12117(a). On January 30, 2001, Mr. Armstrong was allowed to intervene as a party plaintiff, and to adopt by reference the allegations set forth in the Complaint.
II. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if ... there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). So long as the movant has met its initial burden of "demonstrat[ing] the absence of a genuine issue of material fact," Celotex, 477 U.S. at 323, 106 S.Ct. 2548, and the nonmoving party is unable to make such a showing, summary judgment is 921 appropriate, Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir.1989). In considering a motion *921 for summary judgment, "the evidence as well as all inferences drawn therefrom must be read in a light most favorable to the party opposing the motion." Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
III. Analysis
Plaintiffs assert that Defendant deprived Mr. Armstrong of equal employment opportunities in its refusal to hire him because of a disability. (Compl.¶¶ 13-16.) Plaintiffs contend that this deprivation constitutes an unlawful employment practice in violation of the ADA, 42 U.S.C. § 12112(a) (1994). (Compl.¶ 16.)
The ADA requires covered entities to provide "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship." 42 U.S.C. § 12112 (b)(5)(A).
To establish a prima facie case of employment discrimination based on disability, Plaintiffs must show that: 1) Mr. Armstrong is an individual with a disability as defined by the statute; 2) he is otherwise qualified to perform the job requirements of an ESE, with or without reasonable accommodation; 3) he suffered an adverse employment decision; 4) Defendant knew or had reason to know of his disability; and 5) the position remained open after the adverse employment decision. Sivanson v. University of Cincinnati 268 F.3d 307, 314 (6th Cir.2001); Monette v. Electronic Data Sys. Corp. 90 F.3d 1173, 1185 (6th Cir.1996). If Plaintiffs establish a prima facie case, the burden shifts to Defendant to articulate a legitimate, non-discriminatory reason for its action. Monette, 90 F.3d at 1179. If Defendant meets that burden, Plaintiffs must show that the proffered explanation is a pretext for unlawful discrimination. (Id.)
Defendant argues that it is entitled to summary judgment for four reasons: 1) Mr. Armstrong is not ADA-disabled, and therefore cannot establish a prima facie case under the ADA; 2) Defendant did not withdraw its conditional offer because of a disability, but rather because of his poorly controlled diabetes, which made him unqualified to perform the essential functions of the job and posed a safety risk to himself, his co-workers, and the public; 3) Mr. Armstrong's refusal to engage in the ADAmandated interactive process precludes him from pursuing his claim; and 4) Defendant had a legitimate business reason for not hiring Mr. Armstrong. (Def.'s Mot. for Summ. Judg., pp. 3-4.)
Disability is defined under the ADA as: 1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; 2) a record of such impairment; or 3) being regarded as having such an impairment. See 42 U.S.C. § 12102(2). In this case, Plaintiffs assert that Mr. Armstrong was ADA-disabled under either the first or third definitions. Specifically, Plaintiffs assert that Mr. Armstrong is substantially limited in the

major life activities of eating and self care as a result of his diabetes.[4] (PL EEOC's Mem. in Opp. to Def.'s Mot. for Summ. Judg., p. 6; Intervening PL's Mem. in Opp. to Def.'s Mot. for Summ. Judg., p. 3.) Alternatively, Plaintiffs 922 argue *922 that Defendant mistakenly regarded Mr. Armstrong as substantially limited in the major life activities of working, walking, seeing, and speaking. (Id.)
Under the first definition of disability, Plaintiffs must initially prove that Mr. Armstrong has a physical or mental impairment. See 42 U.S.C. § 12102(2)(A). Plaintiffs must then demonstrate that the impairment substantially limits at least one of his major life activities. Id
Defendant does not contest that Mr. Armstrong's diabetes constitutes a physical impairment for ADA purposes. See also Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 831 (8th Cir. 2000) (noting that insulin-dependent diabetes is a "recognized impairment[ ]" and collecting cases). Defendant also does not dispute that eating and self care are major life activities. Lawson v. CSX Transportation, Inc., 245 F.3d 916, 923 (7th Cir. 2001) (determining that eating is a major life activity for ADA purposes); Erjavac v. Holy Family Health Plus, 13 F.Supp.2d 737, 747 (N.D.Ill.1998) (deciding that eating and self care are major life activities). Defendant asserts, however, that there is no proof in the record indicating that Mr. Armstrong's diabetes substantially limits the major life activities of eating and self care.
In order to determine whether or not a particular person is substantially limited, it is necessary to make an individual assessment of the impact of that person's impairment. Sutton v. United Air Lines, 527 U.S. 471, 483, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999); see also Schaefer v. State Ins. Fund, 207 F.3d 139, 143 (2d Cir.2000) (holding that plaintiff bears the burden of proof on this issue). The Supreme Court recently determined that in order "to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 691, 151 L.Ed.2d 615 (2002). The Supreme Court also recently held that, "if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures 0907both positive and negative 0907 must be taken into account when judging whether that person is `substantially limited' in a major life activity." Sutton, 527 U.S. at 482, 119 S.Ct. 2139.[5] The issue before the Court, therefore, is whether Mr. Armstrong has presented sufficient evidence that his insulin-regulated diabetes substantially limits the major life activities of eating and self care.
Plaintiffs assert that before Mr. Armstrong can ingest food, he must prick his finger in order to draw a sample of blood to test his sugar level and analyze the food to be consumed in accordance with diabetic nutrition guidelines. (Dr. Levin Dep., pp. 116-7.) In addition, they point to the fact that Mr. Armstrong must always plan his meals in order to insure proper control over his blood sugar levels throughout the day. (Id.)
Mr. Armstrong testified, however, that it only takes a minute and a half to check his blood sugar. (Armstrong Dep., 923 pp. *923 153-54.) He also testified that the only symptoms he experiences from low blood sugar are weakness
and trembling. (Armstrong Dep., p. 159.) He explained that he always carries pieces of hard candy in order to raise his blood sugar, which take effect within five minutes. (Id at 188-89). Mr. Armstrong reported that he has not experienced significant blood sugar fluctuations at work that have caused him to stop working, nor has he experienced any blurred vision or loss of consciousness. (Id at 190-91.) The record shows that Mr. Armstrong has held numerous jobs involving manual labor, evidently without diabetes-related problems. (Def.'s Statement of Und. Facts ¶¶ 61-63, 65, 67, 70, 74.)
Mr. Armstrong's testimony reveals that the food restrictions cited by Plaintiffs are no more complicated or demanding than those undertaken by the millions of Americans who attempt to control their weight through diet, for example. The injection of insulin several times a day, by Mr. Armstrong's own admission, does not interfere with his ability to engage in any major life activities. On the occasions when his blood sugar fluctuates, Mr. Armstrong is accustomed to eating a piece of candy, which eases his discomfort in a matter of minutes. Plaintiffs have submitted no other evidence leading the Court to believe that Mr. Armstrong's insulin-dependent diabetes is of sufficient severity as to render him substantially limited in the major life activities of eating and self care. Cf. Sepidveda v. Glickman, 167 F.Supp.2d 186, 191 (D.Puerto Rico 2001) (holding that plaintiff not substantially limited in any major life activities where he presented evidence only that he "requires medication, a fixed meal schedule, timely snack breaks, and the opportunity to use the bathroom very frequently during the work day");

Fraser v. United States Bancorp, 168 F.Supp.2d 1188, (D.Or. 2001) (finding plaintiff not actually substantially limited by insulin-dependent diabetes, only potentially limited in future if blood sugar not adequately controlled).
Moreover, when completing the application form for the ESE position at Northwest Airlines, Mr. Armstrong indicated that he is not disabled. (Id. ¶ 108; Exh. 4 to Def.'s Mot. for Summ. Judg.) He insists that he is capable of performing a wide range of tasks. (Armstrong Dep., pp. 111-12, 138-39, 144-45). Again, Mr. Armstrong's own testimony contradicts Plaintiffs' assertions regarding his substantial limitations in eating and self care. See Cash v. Smith, 231 F.3d 1301, 1306 (11th Cir.2000) (most telling evidence that plaintiff not substantially limited was her own testimony that despite all of her ailments, she could still walk, swim, fish, and work 40-hour-week).
Plaintiffs rely mainly on Lawson v. CSX Transportation, Inc., 245 F.3d 916 (7th Cir.2001), to support their argument that Mr. Armstrong's insulin-dependent diabetes is substantially limiting. Mr. Armstrong's condition, however, is distinguishable from Mr. Lawson's condition. Mr. Lawson "ha[d] a life-long medical history of Type I diabetes, he sufferfed] from a number of diabetes-related medical problems, and the very medication that he use [d] to control his diabetes cause[d] severe symptoms that ha[d] potentially lifethreatening consequences." Lawson, 245 F.3d at 926. As a result, the Seventh Circuit found that "the particular nature of Mr. Lawson's diabetes, even after treatment, could be said to significantly impair his daily activities ..." Id There is no proof in this case that Mr. Armstrong's diabetes, after treatment, impairs his daily activities as the plaintiff in Lawson, 924 Instead, Mr. Armstrong is in the category of diabetics described by the Lawson court *924 as those "who must follow simple `dietary restrictions' that medical conditions sometimes entail." Id. at 924-25. Plaintiffs' citation to Lawson, therefore, does not dissuade the Court from its determination that Mr. Armstrong is not substantially limited in the major life activities of eating and self care.
Under the third definition of disability under the ADA, Plaintiffs must show that Defendant mistakenly believes that: 1) Mr. Armstrong has a physical impairment that substantially limits one or more major life activities; or 2) Mr. Armstrong has an actual, nonlimiting impairment that substantially limits one or more major life activities. Sutton, 527 U.S. at 489, 119 S.Ct. 2139. Plaintiffs assert that although Mr. Armstrong suffers from a significant impairment, that impairment can be adjusted to any working environment. (Intervening PL's Mem. in Opp. to Def.'s Mot. for Summ. Judg., p. 8.) Accordingly, Plaintiffs argue that Defendant regarded Mr. Armstrong as substantially limited in the major life activity of working.[6] (PL EEOC's Mem. in Opp. to Def.'s Mot. for Summ. Judg. p. 11.)
The EEOC defines "substantially limits" in the context of the major life activity of working as "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2(j)(3)(i) (1998). Therefore, Plaintiffs bear the burden of establishing that Defendant regarded Mr. Armstrong as being precluded from a "class of jobs or a broad range of jobs in various classes," rather than simply "precluded from ... one type of job, a specialized job, or a particular job of choice." Ballard v. Vulcan Materials Co., 978 F.Supp. 751, 756 (W.D.Tenn.1997) (citing McKay v. Toyota Motor Manufacturing, 110 F.3d 369, 372 (6th Cir.1997)); see also Sutton, 527 U.S. at 492, 119 S.Ct. 2139.
In order to carry this burden, Plaintiffs must submit "evidence, expert or otherwise, relating to [Mr. Armstrong's] vocational skills or training, the geographical area to which he has access, or the number and type of jobs which demand similar training from which he would also be disqualified because of his disability," as mistakenly perceived by Defendant. Ballard, 978 F.Supp. at 756. Analytically, meeting this burden is most crucial to set forth a prima facie case under the ADA.
Here, Plaintiffs assert that there is extensive evidence that Defendant regarded Mr. Armstrong as substantially limited in the major life activity of working. (PL EEOC's Mem. in Opp. to Def.'s Mot. for Summ. Judg., p. 11.) Plaintiffs argue that the work restrictions imposed by Defendant would exclude Mr. Armstrong "not only from thousands of ESE positions, but from any other positions such as mechanics, customer service agents, cleaner 925 positions ..." *925 (Id.) Defendant's proposed restrictions that prohibited Armstrong from driving and operating heavy equipment and working at unprotected heights above five feet could indeed severely limit Armstrong from performing a wide range of jobs. Furthermore, Plaintiffs present evidence that NWA believed Armstrong was

always at risk of sudden incapacitation due to the threat of a hypoglycemic coma, and that this conclusion formed the basis for their decision not to hire Armstrong. As Plaintiffs argue, such an inability could disqualify Armstrong from an array of jobs, not limited to the specific job of an ENE at NWA for which he applied. Additionally, Plaintiffs cite the testimony given by Mark Williams, NWA's human resources generalist stating that when he inquired of a NWA manager whether there were any jobs that Armstrong could perform in Memphis, he was told that no jobs were available. (Exh. 11, Williams Dep. 170-171.) See Coleman v. Keebler Co., 997 F.Supp. 1102, 1114 (N.D.Ind.1998) (genuine issue of material fact existed as to whether employer regarded plaintiff as substantially limited in major life activity of working where employer concluded that plaintiff could not perform any available jobs in production plant). The Court agrees with the Plaintiffs that there is sufficient evidence to conclude that Defendant's proposed restrictions disqualify him from a broad class of jobs.
The Court next considers whether Armstrong was qualified to perform the functions of an ESE. The Court finds that Plaintiffs have adduced sufficient facts to show that Armstrong was indeed qualified for the position of ENE. Armstrong's job at Air Tran and Northwest Airlink were arguably similar to the one for which he applied at NWA. While at Airlink, his duties included loading and unloading airplanes, transferring luggage from one airplane to another and parking airplanes. (Exh. 2, Armstrong Dep.) After the planes came in, Armstrong handed the baggage down from the tail of the plane, operating seven to eight feet above the ground. (Id. 23-24.) At Air Tran, Armstrong operated push-backs, belt loaders, tows and bobtail trucks. (Id. 36.) During the time he worked at Northwest Airlink and Air Tran, he only missed one day of work related to his diabetes. (Id. 27-28, 38-39.) The "fact that an ADA plaintiff currently holds a position similar to the one from which he was previously terminated constitutes sufficient evidence to create an actual question as to whether the plaintiff was qualified to perform the essential functions of the job." Holiday v. City of Chattanooga, 206 F.3d at 644, 645 (6th Cir.2000).
After a plaintiff sets forth a prima facie case, it is necessary to move to the next state of the burden-shifting analysis, in which the employer must articulate a legitimate reasons for its decision. Defendant asserts the defense of safety as a legitimate non-discriminatory reason for not hiring Armstrong. NWA argues that they revoked the offer of employment to Armstrong because Armstrong posed a direct threat to the health and safety of himself and others due to the poor control of his blood sugar levels.
EEOC regulations identify the following factors to be considered in evaluating the direct threat defense: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. To make this determination, there must be an "individualized assessment of the individual's present ability to perform the essential function of the job" which must be founded 926 on "a reasonable medical judgment that relies on the most current medical knowledge and/or *926 the best available objective evidence." 29 C.F.R. Section 1630.2(r).
In the case at bar, Plaintiffs set forth sufficient evidence such that a reasonable jury could conclude that an individualized assessment did not occur. Dr. O'Connell never personally examined Armstrong and reached his conclusion only after reviewing blood levels from a total of five lab reports. Dr. O'Connell never contacted Dr. Myers, Armstrong's treating physician, nor did he obtain a complete set of Armstrong's medical records. (Exh. 15, Dr. O'Connell Dep. 131-132.) Additionally, the Defendant's physicians never discussed with Armstrong his diabetes-related symptoms.
Plaintiffs set forth evidence that directly contradicts Defendant's assertion that Armstrong posed a direct threat. Specifically, Plaintiffs cite the fact that Armstrong was examined at the Baptist Minor Medical facility in Memphis and was recommended for the position of ENE during his pre-employment examination. Additionally, Dr. Myers, Armstrong's treating physician testified that so long as Armstrong checks his blood sugar and has access to food he could perform the job. She further testifies that she has written two letters to Armstrong's prospective employers advising them that Armstrong could do the respective jobs and that if NWA had ever contacted her, she would have discussed Armstrong's blood sugar levels with her. In her deposition, Dr. Myers asserts that Dr. O'Connell misinterpreted the references to poor control in the lab reports he reviewed. (Exh. 9, Myers Dep. 157-168.)
Plaintiffs have presented sufficient evidence to show that Mr. Armstrong was regarded as disabled and that he was qualified to perform the job of an ENE at Northwest Airlines. Therefore, Plaintiffs have stated a prima facie case of disability discrimination under the ADA. Moreover, Defendants have failed to carry their burden of proving

that Armstrong posed a direct threat in setting forth a legitimate, non-discriminatory reason why he was not hired. [7]
IV. Motion to Continue Trial and Other Pre-Trial Matters
Also before the Court is Defendant's Motion to Continue Trial and Other Pre-Trial Matters. Defendant contends that maintaining the current trial date of October 21 would cause it to incur time and expense involved in trial preparation prior to receiving a ruling on its summary judgment motion. Given that the Court has now ruled on Defendant's Motion for Summary Judgment, the Court DENIES Defendant's Motion to Continue Trial and Other Pre-Trial Matters.
V. Conclusion
For the foregoing reasons, the Court DENIES Defendant's Motion for Summary Judgment and DENIES Defendant's Motion to Continue Trial and Other Pre-Trial Matters.
[1] The Court will refer to Plaintiff EEOC and Intervening Plaintiff Armstrong collectively as "Plaintiffs."
[2] On July 16, 2002, Judge Mays entered an order denying Defendant's motion to strike the testimony of Dr. Levin from consideration in relation to the motion for summary judgment. The Court denied the motion to strike testimony because it is capable of weighing the credibility of each portion of Dr. Levin's report separately. The portions of Dr. Levin's expert report cited in the Facts section of this opinion are those based on Dr. Levin's knowledge of the treatment of diabetes generally. The Court has not relied on the portions of his report in which he draws conclusions about Mr. Armstrong's condition specifically.
[3] The physicians at the Airport Medical Clinic who serve Defendant, Dr. O'Connell and Dr. David Zanick, both specialize in occupational and aviation medicine. (Id. ¶ 126.) Both doctors are very familiar with the essential functions and physical requirements of the ESE position. (Id. ¶ 128.)
[4] The EEOC asserts that Mr. Armstrong is substantially limited in the major life activities of eating and self care. Mr. Armstrong, however, only asserts that he is substantially limited in the major life activity of eating.
[5] The Supreme Court cites diabetes as an example in explaining why it is inappropriate to judge a person's abilities in their uncorrected or unmitigated state. "[U]nder this view, courts would almost certainly find all diabetics to be disabled, because if they failed to monitor their blood sugar levels and administer insulin, they would almost certainly be substantially limited in one or more major life activities. A diabetic whose illness does not impair his or her daily activities would therefore be considered disabled simply because he or she has diabetes." Sutton, 527 U.S. at 483, 119 S.Ct. 2139.
[6] The EEOC also argues that Defendant regarded Mr. Armstrong as substantially limited in the major life activities of seeing, walking, and speaking. (Pi. EEOC's Mem. in Opp. to Def.'s Mot. for Summ. Judg., p. 12.) The EEOC points to the working restrictions imposed by Defendant, including that Mr. Armstrong should be restricted from driving, operating heavy equipment, and working at heights because he could suffer diabetic episodes causing blurred vision, sudden incapacitation, or altered consciousness as evidence of Defendant's mistaken belief. Id. There is no evidence, however, supporting the assertion that Mr. Armstrong is substantially limited in the life activities of seeing, walking, and speaking. Intervening Plaintiff Armstrong specifically states that nothing in his medical records shows that he has a history of suffering from hypoglycemic comas.
[7] The Court acknowledges that there is disagreement between the parties over whether or not Defendant or Plaintiff failed to cooperate in the interactive accommodation process pursuant to the Act. Since the Defendant has not met their burden in proving direct threat, the Court will not address this issue at this time.
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 EEOC v. Northwest Airlines, Inc.
United States District Court for the Western District of Tennessee December 18, 2002, Filed; December 19, 2002, Entered Case No. 00-2916Ml/A

Reporter: 2002 U.S. Dist. LEXIS 26272 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, vs. NORTHWEST AIRLINES, INC., Defendant.

Opinion

Prior History: EEOC v. Northwest Airlines, Inc., 2002 U.S. Dist. LEXIS 26276 (W.D. Tenn., Oct. 31, 2002)

ORDER TAXING COSTS

Disposition: Court awarded costs.

Counsel: [*1]

For EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION, plaintiff: Faye A.

Williams, Esq., Katharine W. Kores, Esq., Terry L. Beck,

Esq., Deidre Smith, EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION, Memphis, TN.

Taxation of costs is governed by 28 U.S.C. § 1920, and the costs taxable under this section "shall be allowed as of course to the prevailing party unless the court otherwise directs" or unless a statute or rule otherwise provides. Fed.R.Civ.P 54(d)(1). Plaintiff in this cause was the prevailing party. As such, Plaintiff did on November 21, 2002, file a cost bill totaling $ 22,367.45 as costs taxable against Defendant.

For NORTHWEST AIRLINES, INC., defendant: Herbert E. Gerson, Esq., Thomas J. Walsh, Jr., Esq., Timothy S. Bland, Esq., FORD & HARRISON, LLP, Memphis, Tn.
JAMES ALLEN, miscellaneous, Pro se, Memphis, TN.

Pursuant to Local Rule 54.1(b), notice was given to permit these parties opportunity to be heard concerning the assessment of costs over which they could [*2] not agree. Both Plaintiff's counsel and counsel for Defendant participated at the scheduled hearing.

ROBERT DI TROLIO, miscellaneous, Pro se, Memphis, TN.
For KEVIN ARMSTRONG, intervenor plaintiff: Joe L. Wyatt, Esq., MCWHIRTER & WYATT, Memphis, TN.

As a result of the hearing and upon a review of relevant documents in the file, costs are taxed against Defendant and in favor of Plaintiff as follows:

Claim

Award

Deposition fees

$ 7,717.45

$ 3,688.04

Expert witness fees

$ 11,911.50

$ 493.50

Attorney travel

$ 2,738.50

-0-

TOTAL $ 22,367.45

$ 4,181.54

Deposition fees:

taken." 10 Charles Allen Wright et al, Federal Practice and Procedure: Civil 2d § 2676, at 341(2d ed. 1983); see also Sales, 873

Pursuant to 28 U.S.C. § 1920(2)and (4), the cost of taking and transcribing depositions and transcripts, and the cost of purchasing copies of depositions may be taxed if the depositions were "necessarily obtained for use in the case." Thus, if the depositions are "reasonably necessary to the prosecution of the action," and not "merely useful for discovery," the costs are appropriately taxed.

F.2D at 120 ("Necessity is determined as of the time of taking, and the fact that a deposition is not actually used at trial is not controlling."), and Shanklin v. Norfolk Southern Railway Co., No. 94-1212 (W.D. Tenn. Sept. 9, 1996) relying on Hudson v. Nabisco Brands, Inc., 758 F.2d 1237, 1243 (7th Cir. 1985); In re Air Crash Disaster, 687 F.2d 626, 631 (2d Cir. 1982).

Ramos v. Lamm, 713 F.2d 546, 560 (10th Cir. 1983); Sales v. Marshall, 873 F.2d 115, 120 (6thCir. 1989); Independent Iron Works, Inc. v. U.S. Steel Corp., C.A. Cal. 1963, 322 F.2d 656, certiorari denied 84 S. Ct. 267, 375 U.S. 922, 11 L. Ed. 2d 165. [*3]

However, administrative expenses incorporated in the reporters' invoice, such as for postage, delivery and condensed transcript charges, represents the cost of doing business and are generally incurred for a party's convenience. Consequently, the costs for these

A deposition does not have to be used as evidence to be taxed as an expense. "When a deposition is not actually used at trial or as evidence on some successful preliminary motion, whether its cost may be taxed generally is determined by deciding if the deposition reasonably seemed necessary at the time it was

services which were assessed by the court reporters used in this [*4] case are not taxable and has been culled from the award. Moreover, Plaintiff's claim for reimbursement of the cost of their expert witnesses' time to sit for deposition is not a taxable item under the prevailing statute.

2002 U.S. Dist. LEXIS 26272, *4

Page 2 of 2

Expert witness fees:

Attorney travel costs:

Title 28 U.S.C. § 1821(b) mandates that costs for witnesses, both

fact and expert, art not allowable in excess of $ 40.00 per Attorney's travel expenses related to the taking of depositions are

appearance, except where an expert witness is court-appointed under not [*5] taxable, Kiefel v. Las Vegas Hacienda, Inc., C.A.Ill. 1968,

28 U.S.C. § 1820(b). Crawford Fitting v. J. T. Gibbons, Inc., 482 404 F.2d 1163, certiorari denied 89 S. Ct. 1750, 395 U.S. 908, 23 L.

U.S. 437, 96 L. Ed. 2d 385, 107 S. Ct. 2494 (1987).

Ed. 2d 221, rehearing denied 89 S. Ct. 2128, 395 U.S. 987, 23 L. Ed.

2d 776, absent extraordinary or compelling circumstances. George

For the purpose of taxation, witnesses who travel are required to do R. Hall, Inc. v. Superior Trucking Co., Inc., D.C.Ga. 1982, 532 F.

so by common carrier at the most economical rate reasonably Supp. 985.

available. The statute also mandates evidence of actual travel cost be

furnished.

TOTAL AWARD $ 4,181.54

In the instant case, Drs. Garber and Myers were deposed, and Dr. Levin testified, entitling Plaintiff to a total of $ 240 in witness fees. Dr. Levin also traveled, pursuant to guideline strictures. Accordingly, Dr. Levin's travel expense also is taxable.

Pursuant to Fed.R.Civ.P. Rule 54(d), this action of the Clerk may be reviewed by the court upon motion, served within 5 days of the docketing of this order.

 
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51AE/J, TERMED
U.S. District Court Western District of Tennessee (Memphis) CIVIL DOCKET FOR CASE #: 2:00-cv-02916-JPM-tmp

EEOC v. Northwest Airlines Assigned to: Judge Jon Phipps McCalla Referred to: Magistrate Judge Tu M. Pham Demand: $0 Cause: 28:1331 Fed. Question: Employment Discrimination

Date Filed: 09/27/2000 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Miscellaneous
James Allen TERMINATED: 10/07/2003

represented by James Allen U.S. District Judge 167 N. Main St., Rm 341 Memphis, TN 38103 PRO SE

Miscellaneous Robert Di Trolio

represented by Robert Di Trolio U.S. DISTRICT COURT Office of the Clerk 167 N. Main Street Rm. 242 Federal Building Memphis, TN 38103 Fax: 495-1250 PRO SE

Plaintiff
Equal Employment Opportunity Commission

represented by Deidre Smith EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste. 621 Memphis, TN 38104 901-544-0140 Fax: 901-544-0111 Email: deidre.smith@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Faye A. Williams EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste. 621 Memphis, TN 38104

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V. Defendant Northwest Airlines, Inc.
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901-544-0088 Email: faye.williams@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katharine W. Kores EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste. 621 Memphis, TN 38104 901-544-0151 Email: katharine.kores@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terry L. Beck EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste. 621 Memphis, TN 38104 901-544-0138 Fax: 901-544-0111 Email: terry.beck@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Herbert E. Gerson FORD & HARRISON, LLP- Ridge Lake Blvd. 795 Ridge Lake Blvd. Ste. 300 Memphis, TN 38120 901-291-1500 Fax: 901-291-1501 Email: hgerson@fordharrison.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J. Walsh, Jr. FORD & HARRISON, LLP- Ridge Lake Blvd. 795 Ridge Lake Blvd. Ste. 300 Memphis, TN 38120 901-291-1500
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Intervenor Plaintiff Kevin Armstrong

Fax: 901-291-1501 Email: twalsh@fordharrison.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy S. Bland FORD & HARRISON, LLP- Ridge Lake Blvd. 795 Ridge Lake Blvd. Ste. 300 Memphis, TN 38120 901-291-1500 Fax: 901-291-1501 Email: tbland@fordharrison.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Joe L. Wyatt McWHIRTER, WYATT, & ELDER 73 Union Avenue Memphis, TN 38103 901-522-1813 Email: joe-lee@mcwhirter-wyatt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/27/2000 12/04/2000 01/23/2001 01/24/2001 01/30/2001
01/31/2001

#

Docket Text

1 COMPLAINT pursuant to 28 USC 1331 (employment discrimination); (BAG) (Entered: 09/28/2000)
2 ANSWER and Affirmative Defenses by defendant Northwest Airlines to [1-1] (BAG) (Entered: 12/05/2000)
3 SETTING LETTER ; scheduling conference set for 9:00 2/14/01 (BAG) (Entered: 01/24/2001)
4 MOTION to intervene of Kevin Armstrong and Legal Authority in support thereof; (to intervene as party plaintiff) (BAG) (Entered: 01/26/2001)
5 ORDER by Judge Julia S. Gibbons granting motion to intervene of Kevin Armstrong [4-1]; Applicant Kevin Armstrong allowed to intervene as a party plaintiff and allowed to seek individual relief and damages as set forth in his motion; (cc: all counsel) (BAG) (Entered: 01/30/2001)
6 NOTICE OF FILING OF "Report of Parties' Planning Meeting" (BAG) (Entered: 02/01/2001)

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02/01/2001 02/09/2001 02/14/2001
02/21/2001
02/27/2001 05/17/2001 08/13/2001 08/13/2001 08/16/2001
08/29/2001 08/29/2001 08/29/2001 08/31/2001

7 NOTICE OF FILING OF "Report of Parties' Planning Meeting" by defendant Northwest Airlines (BAG) (Entered: 02/05/2001)
8 Intervening Plaintiff's RULE 26(a) Initial Disclosures by Kevin Armstrong (BAG) (Entered: 02/12/2001)
9 MINUTES: ; scheduling conference 2/14/01. Rule 26(a)(1) disclosure ddl 2/26/01; Scheduling order to enter. Schedule set as follows; pla join parties 3/31/01; pla amend pleadings 3/31/01; discovery 10/15/01; pla experts 8/15/01; dft experts 9/15/01; dispositive/sumjgm motions 11/5/01; jury trial Tues 2/19/02; est trial length 3 days; dft join parties/amend pleadings 4/30/01. Settlement conf before mag judge around 9/1/01. Presiding Judge: Gibbons Atty: Deidre Smith, Joe L. Wyatt DFT Atty: Timothy Bland C/R: Mark Dodson (EHG) (Entered: 02/20/2001)
10 SCHEDULING ORDER 16(b) Judge Julia S. Gibbons ; ddl Rule 26 initial disclosures 2/26/01; ddl for pla to amend pleadings and to join additional parties 3/31/01; ddl for dft to amend pleadings and to join additional parties 4/30/01; discovery 10/15/01; pla's expert disclosures 8/15/01; dft's expert disclosures 9/15/01; filing potentially dispositive motions 11/15/01; trial set 2/19/02; 3 days to try; The magistrate judge will conduct a settlement conf around 9/1/01. (cc: all counsel) (EHG) (Entered: 02/21/2001)
11 SETTING LETTER settlement conference set for 10:00 9/4/01 before Mag Judge Allen (EHG) (Entered: 03/01/2001)
12 SETTING LETTER: jury trial set for 2/19/02 at 9:30: pretrial conference set for 2/8/02 at 9:15; pretrial order deadline set for 2/1/02 (BAG) (Entered: 05/17/2001)
13 MOTION by plaintiff EEOC for leave to modify Rule 16(b) Scheduling Order (BAG) (Entered: 08/14/2001)
14 MEMORANDUM by plaintiff EEOC in support of motion for leave to modify Rule 16(b) Scheduling Order [13-1] (BAG) (Entered: 08/14/2001)
15 ORDER Granting Plaintiff Equal Employment Opportunity Commission's Motion For Leave To Modify Rule 16(b) Scheduling Order by Judge Julia S. Gibbons granting motion for leave to modify Rule 16(b) Scheduling Order [13-1]; the ddl for pla's expert witness disclosure extended from 8/15/01 to 9/14/01 and the ddl for dft's expert witness disclosure extended from 9/15/01 to 10/15/01; Deadline for deposing dft's expert witness extended to 10/30/01; (cc: all counsel) (BAG) (Entered: 08/16/2001)
16 MOTION by defendant Northwest Airlines to stay discovery (BAG) (Entered: 08/30/2001)
17 MEMORANDUM by defendant Northwest Airlines in support of motion to stay discovery [16-1]; w/exhibits (BAG) (Entered: 08/30/2001)
18 JOINT MOTION by plaintiff, defendant for court order rescheduling settlement conference (set for 9/4/01) (BAG) (Entered: 08/30/2001)
19 ORDER GRANTING JOINT MOTION FOR COURT ORDER RESCHEDULING SETTLEMENT CONFERENCE by Judge Julia S. Gibbons granting motion for court order rescheduling settlement conference (set for

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09/12/2001 09/24/2001 09/24/2001
10/03/2001 10/03/2001 10/03/2001 10/18/2001 10/29/2001
11/16/2001 11/20/2001
11/26/2001

9/4/01) [18-1]; the settlement conference before Mag Judge Allen is hereby canceled. The parties are further ordered to notify the Court at such time that they believe that a settlement conference may be fruitful. (cc: all counsel) (YDS) (Entered: 09/04/2001)
20 RESPONSE by plaintiff EEOC in Opposition to defendants motion to stay discovery [16-1]; w/attachments (BAG) (Entered: 09/13/2001)
21 REPLY by defendant Northwest Airlines to plaintiff's response in opposition to defendant's motion to stay discovery re [20-1] (BAG) (Entered: 09/25/2001)
22 ORDER On Motion To Stay Discovery by Judge Julia S. Gibbons re [16-1]; The decision as to whether to transfer venue is one for the Minnesota court; Assuming for purposes of this motion that the Minnesota action is transferred here, a stay of discovery in this case is not warranted; The denial of the request to stay discovery is based on an assumption that the parties will in fact conclude discovery and will not ask for further extensions of the 10/15 date; If that assumption is incorrect, parties are directed to advise the court immediately; (cc: all counsel) (BAG) (Entered: 09/25/2001)
23 MOTION by plaintiff EEOC for leave to modify Rule 16(b) Scheduling Order (BAG) (Entered: 10/04/2001)
24 MEMORANDUM by plaintiff EEOC in support of motion for leave to modify Rule 16(b) Scheduling Order [23-1] (BAG) (Entered: 10/04/2001)
25 CERTIFICATE Of Consultation by plaintiff EEOC re [23-1] (BAG) (Entered: 10/04/2001)
26 RESPONSE by defendant Northwest Airlines to pla's motion for leave to modify Rule 16(b) Scheduling Order [23-1] (BAG) (Entered: 10/19/2001)
27 ORDER On Plaintiff Equal Employment Opportunity Commissioner's Motion For Leave To Modify Rule 16(b) Scheduling Order by Judge Julia S. Gibbons granting motion for leave to modify Rule 16(b) Scheduling Order [23-1]; The Scheduling Order entered 2/21/01 and modified 8/15/01 is further modified as follows: Pla's expert disclosures: 10/26/01; Dft's experts disclosures: 11/26/01; discovery ddl set 11/26/01, except for deposition of dft's expert witness; ddl for deposing dft's expert witness 12/7/01; motion filing ddl set 12/31/01; jury trial set for week of 4/22/02 (cc: all counsel) (BAG) (Entered: 10/29/2001)
28 JOINT MOTION and Memorandum by plaintiff, defendant, intervenor plaintiff for leave to take depositions out of time (between 11/26/01 and 12/7/01) (BAG) (Entered: 11/19/2001)
29 ORDER Granting Joint Motion To Take Depositions Out Of Time by Judge Julia S. Gibbons granting motion for leave to take depositions out of time (between 11/26/01 and 12/7/01) [28-1]; (depositions of Mark Williams, Dr. Lisa Myers, Dr. Kevin O'Connell, Dr. David Zanick & Dr. Marvin Levin) (cc: all counsel) (BAG) (Entered: 11/20/2001)
30 MOTION by plaintiff EEOC to compel discovery , and for extension of 30 days to supplement its discovery responses (BAG) (Entered: 11/27/2001)

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11/26/2001 11/26/2001 11/26/2001 11/26/2001 11/26/2001 11/26/2001 11/26/2001 11/26/2001 11/26/2001 11/26/2001 11/30/2001 11/30/2001 12/03/2001 12/05/2001
12/05/2001
12/05/2001

31 MEMORANDUM by plaintiff EEOC in support of motion to compel discovery [30-1],and for extension of 30 days to supplement its discovery responses [30-2]; w/exhibits (BAG) (Entered: 11/27/2001)
32 CERTIFICATE of Consultation by plaintiff EEOC re [30-1],[30-2] (BAG) (Entered: 11/27/2001)
33 MOTION by defendant Northwest Airlines for extension of time to produce an expert economist report (BAG) (Entered: 11/27/2001)
34 Defendant's Expert Witness Disclosure of Dr. Kevin O'Connell (RULE 26 Disclosures) by Northwest Airlines (BAG) (Entered: 11/27/2001)
35 Defendant's Expert Witness Disclosure of Dr. Alan J. Garber (RULE 26 Disclosures) by Northwest Airlines (BAG) (Entered: 11/27/2001)
36 Defendant's Expert Witness Disclosure of Dr. David Zanick (RULE 26 Disclosures) by Northwest Airlines (BAG) (Entered: 11/27/2001)
37 Defendant's Expert Witness Disclosure of David Cisnel (RULE 26 Disclosures) by Northwest Airlines (BAG) (Entered: 11/27/2001)
38 MOTION and MEMORANDUM by defendant Northwest Airlines to compel against Kevin Armstrong (BAG) (Entered: 11/27/2001)
39 MOTION and MEMORANDUM by defendant Northwest Airlines to compel against the EEOC (BAG) (Entered: 11/27/2001)
40 MOTION and MEMORANDUM by defendant Northwest Airlines for leave to take deposition of Debbie Lemkhuel out of time (BAG) (Entered: 11/27/2001)
41 SETTING LETTER : joint proposed pretrial order deadline set for 4/5/02 : pretrial conference set for 4/12/02 at 9:15 : jury trial set for 4/22/02 at 9:30 (YDS) (Entered: 11/30/2001)
42 AMENDED MOTION by defendant Northwest Airlines for leave to take deposition of Debbie Lahmkuhl out of time and Memorandum (YDS) (Entered: 12/03/2001)
43 NOTICE OF FILING OF Dr. Alan Garber's prior testimony by defendant Northwest Airlines (BAG) (Entered: 12/04/2001)
44 ORDER Granting Defendant's Amended Motion To Take Deposition Of Debbie Lahmkuhl Out Of Time by Judge Julia S. Gibbons granting motion for leave to take deposition of Debbie Lahmkuhl out of time [42-1]; Dft granted through and including 12/11/01 to depose Debbie Lahmkuhl; (cc: all counsel) (BAG) (Entered: 12/05/2001)
45 ORDER Of Reference by Judge Julia S. Gibbons referring to Mag Judge James H. Allen the motion to compel against Kevin [38-1]; Any exceptions to mag judge's order shall be made by motion w/in 10 days of the order; All exceptions shall be stated w/particularity; (cc: all counsel) (BAG) (Entered: 12/05/2001)
46 ORDER Of Reference by Judge Julia S. Gibbons referring to Mag Judge James H. Allen the motion to compel against the EEOC; Any exceptions to mag judge's order shall be made by motion w/in 10 days of the order; All exceptions shall be

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12/05/2001
12/06/2001
12/06/2001
12/10/2001 12/11/2001 12/11/2001 12/11/2001 12/13/2001 12/14/2001 12/14/2001
12/19/2001 12/21/2001

stated w/particularity; (cc: all counsel) (BAG) (Entered: 12/05/2001)
47 ORDER Of Reference by Judge Julia S. Gibbons referring to Mag Judge James H. Allen the motion to compel discovery [30-1]; Any exceptions to mag judge for a determination; Any exceptions to mag judge's order shall be made by motion w/in 10 days of the order; All exceptions shall be stated w/particularity; (cc: all counsel) (BAG) (Entered: 12/06/2001)
48 ORDER On Defendant's Motion To Take Deposition Of Debbie Lemkhuel Out Of Time by Judge Julia S. Gibbons denying motion for leave to take deposition of Debbie Lahmkuhl out of time [42-1]; The motion is denied for failure to comply w/Local Rule 7.2(a)(1)(B) which requires in part a certificate of consultation for motions of this type; Dft may renew motion after complying w/this requirement; (cc: all counsel) (BAG) (Entered: 12/06/2001)
49 ORDER Of Reference by Judge Julia S. Gibbons referring to Mag Judge James H. Allen the motion for extension of 30 days to supplement its discovery responses [30-2]; Any exceptions to mag judge's order shall be made by motion w/in 10 days of the order; All exceptions shall be stated w/particularity; (cc: allo counsel) (BAG) (Entered: 12/06/2001)
50 RESPONSE in Opposition by plaintiff EEOC to dft's motion to compel against the EEOC [39-1] (BAG) (Entered: 12/11/2001)
51 MOTION by defendant Northwest Airlines for protective order (regarding confidential and/or proprietary information...) (BAG) (Entered: 12/12/2001)
52 MEMORANDUM by defendant Northwest Airlines in support of order [5-1] (BAG) (Entered: 12/12/2001)
53 RESPONSE by defendant Northwest Airlines to plaintiff's motion to compel discovery [30-1], to motion for extension of 30 days to supplement its discovery responses [30-2]; w/exhibits (BAG) (Entered: 12/12/2001)
54 RESPONSE by intervenor plaintiff Kevin Armstrong to dft's motion to compel against Kevin Armstrong [38-1] (BAG) (Entered: 12/13/2001)
55 ORDER Of Reference by Judge Julia S. Gibbons referring to Mag Judge James H. Allen the dft's motion for protective order [51-1]; Any exceptiosn to mag judge's order shall be made by motion w/in 10 days of order; All exceptions shall be stated w/particularity; (cc: all counsel) (BAG) (Entered: 12/14/2001)
56 MINUTES: Motion hearing held 12/14/01; Dft's request for production #8 & 9; #8 Court directed there by a chart as outlined by Mr. Bland; #9 EEOC's request for a list of swits filed under ADA from 1998 to present; Language changeParties to submit a Proposed Order; EEOC directed to file supplement in light of today's presentation; Presiding Judge: James H. Allen; PLA Atty: Kores/Smith/Wyatt; DFT Atty: Gerson/Bland; C/R: Brenda Smith; (BAG) (Entered: 12/17/2001)
57 NOTICE OF FILING OF Defendant's Disclosure of prior testimony of Dr. Kevin O'Connell by defendant Northwest Airlines (BAG) (Entered: 12/20/2001)
58 Renewal of MOTION and Memorandum by defendant Northwest Airlines for extension of time to produce an expert economist report (BAG) (Entered:

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12/26/2001
12/28/2001 12/31/2001 12/31/2001 12/31/2001 12/31/2001 01/02/2002
01/03/2002
01/03/2002 01/04/2002 01/08/2002 01/08/2002

12/21/2001)
59 ORDER GRANTING RENEWAL OF DEFENDANT'S MOTION FOR EXTENSION OF TIME TO PRODUCE AN EXPERT ECONOMIST REPORT by Judge Julia S. Gibbons ..dft shall be allowed 15 days to produce an expert report for David Ciscel after receipt of calculations of alleged damages from both EEOC and Armstrong. [58-1], [33-1] (cc: all counsel) (EHG) (Entered: 12/26/2001)
60 MOTION AND MEMORANDUM by defendant Northwest Airlines to exceed page limitation (EHG) (Entered: 12/31/2001)
61 MOTION by defendant Northwest Airlines for summary judgment; w/exhibits (exhibits placed in separate folder- doc. # 61-A) (BAG) (Entered: 01/02/2002)
62 MEMORANDUM by defendant Northwest Airlines in support of motion for summary judgment [61-1]; w/attachment (BAG) (Entered: 01/02/2002)
63 STATEMENT of material facts by defendant Northwest Airlines in support of motion for summary judgment [61-1] (BAG) (Entered: 01/02/2002)
64 MOTION and Memorandum by defendant Northwest Airlines for leave to to seal confidential video tapes (BAG) (Entered: 01/02/2002)
65 ORDER Granting Motion To Exceed Page Limitation by Judge Julia S. Gibbons granting motion to exceed page limitation [60-1]; Dft's memorandum in support of its motion for summary judgment may exceed page limit set forth in local rule 7.2(e), but may not exceed 30 pages; (cc: all counsel) (BAG) (Entered: 01/03/2002)
66 ORDER Granting Defendant's Motion To Seal Confidential Video Tapes by Judge Julia S. Gibbons granting motion for leave to to seal confidential video tapes [64-1]; Video tapes confidentially submitted by dft to the Judge are hereby sealed; (sealed video tapes placed in vault) (cc: all counsel) (BAG) (Entered: 01/03/2002)
67 NOTICE OF FILING OF "additional exhibits to defendant's motion for summary judgment by defendant Northwest Airlines (exhibits placed in separate folder) (BAG) (Entered: 01/04/2002)
68 MOTION by plaintiff EEOC to exceed page limitation re response in opposition to motion for summary judgment (YDS) (Entered: 01/07/2002)
69 TRANSCRIPT of proceedings for the following date(s): 12/14/01 of Proceedings before Mag Judge Allen; Volumes 1 (orig); Court Reporter: Brenda Parker; (document placed in separate folder) (BAG) (Entered: 01/08/2002)
70 ORDER Granting Plaintiff Equal Employment Opportunity Commission's Motion To Exceed Page Limit by Judge Julia S. Gibbons granting pla's motion to exceed page limitation re response in opposition to motion for summary judgment [68-1]; Commissioner's memorandum in support of its response ... may exceed page limit ... but may not exceed 30 pages; (cc: all counsel) (BAG) (Entered: 01/08/2002)

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01/10/2002 01/10/2002 01/10/2002 01/10/2002
01/10/2002
02/04/2002 02/04/2002 02/04/2002

71 SETTING LETTER settlement conference set for 10:00 3/11/02 before Mag Judge Allen in room 338; (BAG) (Entered: 01/10/2002)
72 ORDER Granting Defendant's Motion To Compel (EEOC) by Mag Judge James H. Allen granting dft's motion to compel against the EEOC [39-1]; Pla EEOC ORDERED to provide information requested by Northwest w/in 15 days of receipt of the above personnel information; (cc: all counsel) (BAG) (Entered: 01/10/2002)
73 ORDER Granting Defendant's Motion To Compel (Armstrong) by Mag Judge James H. Allen granting dft's motion to compel against Kevin Armstrong [38-1]; Pla Armstrong ORDERED to provide the information requested by dft w/in 15 days of receipt of personnel information; This information may be shared by the EEOC, provided there is a clear understanding on the part of Armstrong and his counsel of provisions of the Protective Order; (cc: all counsel) (BAG) (Entered: 01/10/2002)
74 ORDER On Plaintiff Equal Employment Opportunity Commission's Motion To Compel Discovery And For Extension Of 30 Days To Supplement Its Discovery Responses by Mag Judge James H. Allen granting EEOC's motion to compel discovery [30-1], granting motion for extension of 30 days to supplement its discovery responses [30-2]; Following entry of protective order, dft shall respond, to the extent previously agreed upon by EEOC and dft, to Interrogatory No. 18 & Request for Production No. 3; EEOC shall have 15 days following receipt of information described herein soley for purpose of supplementing its written discovery responses to reflect information received from dft; exhibit attached; (cc: all counsel) (BAG) (Entered: 01/10/2002)
75 PROTECTIVE ORDER by Mag Judge James H. Allen: granting dft's motion for protective order [51-1]; Upon motion, for cause shown, the Court orders all otherwise discoverable proprietary or non-public documents, things and employment records pertaining to individuals other than pla-intvp Armstrong designated as confidential shall be under protective ordet and kept strictly confidential; If potential witness is shown documents protected by this Protective Order, that person shall be advised by counsel of this Order, and its meaning and purpose and agrees to maintain confidentiality of documents or thing; Counsel shall advise respective clients of obligations imposed by terms of the Order; ...it is ordered that any confidential information ... produced by either of parties in response to discovery requests ... may be judiciously marked as "confidential"; (cc: all counsel) (BAG) (Entered: 01/10/2002)
76 MEMORANDUM by intervenor plaintiff Kevin Armstrong in opposition to defendant's motion for summary judgment [61-1]; w/attachments (BAG) (Entered: 02/05/2002)
77 STATEMENT of material facts by intervenor plaintiff Kevin Armstrong in support of [76-1] (BAG) (Entered: 02/05/2002)
78 RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT by plaintiff EEOC to motion for summary judgment; [61-1] (EHG) (Entered: 02/05/2002)

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02/04/2002 02/04/2002
02/25/2002 02/25/2002 03/01/2002 03/06/2002 03/06/2002 03/06/2002 03/11/2002
03/12/2002 03/21/2002
03/26/2002 03/26/2002 03/26/2002

79 MEMORANDUM by plaintiff EEOC in opposition to defendant's motion for summary judgment; [61-1] (EHG) (Entered: 02/05/2002)
80 RESPONSE TO DEFENDANT'S STATEMENT OF MATERIAL FACTS IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT by plaintiff EEOC to [63-1] w/Exhibits; (Document placed in separate folder) (EHG) (Entered: 02/05/2002)
81 REPLY to intervening pla's memorandum in opposition to dft's motion for summary judgment by defendant Northwest Airlines re [76-1] (BAG) (Entered: 02/26/2002)
82 REPLY to pla's memorandum in opposition to dft's motion for summary judgment by defendant Northwest Airlines re [79-1]; w/attachments (BAG) (Entered: 02/26/2002)
83 UNOPPOSED MOTION and Memorandum by defendant Northwest Airlines for court order canceling settlement conf (currently set for 3/11/02) (BAG) (Entered: 03/04/2002)
84 ORDER by Mag Judge James H. Allen granting motion for court order canceling settlement conf (currently set for 3/11/02) [83-1] settlement conf set for 3/11/02 will be re-scheduled. (cc: all counsel) (EHG) (Entered: 03/07/2002)
85 SETTING LETTER settlement conference REset for 10:00 4/24/02 before Mag Judge Allen (EHG) (Entered: 03/07/2002)
86 MOTION by defendant Northwest Airlines to strike testimony of plaintiff EEOC's expert witness Marvin E. Levin, M.D. from consideration in relation to motion for summary judgment and Memorandum (YDS) (Entered: 03/07/2002)
87 ORDER On Unopposed Motion For Court order Canceling Settlement Conference by Judge Julia S. Gibbons re [83-1] For cause shoen, Mag Allen's office may postpone the 3/11/02 settlement conf. currently scheduled until after disposition of pending summary judgment motion; (cc: all counsel) (BAG) (Entered: 03/11/2002)
88 MOTION and Memorandum by defendant Northwest Airlines to continue trial and other pre-trial matters (BAG) (Entered: 03/13/2002)
89 RESPONSE by plaintiff EEOC in opposition to dft's motion to strike testimony of plaintiff EEOC's expert witness Marvin E. Levin, M.D. from consideration in relation to motion for summary judgment [86-1]; w/exhibits (document placed in separate folder) (BAG) (Entered: 03/22/2002)
90 UNOPPOSED MOTION by plaintiff EEOC for leave to extend the deadline for providing calculations for damages (BAG) (Entered: 03/27/2002)
91 MEMORANDUM by plaintiff EEOC in support of motion for leave to extend the deadline for providing calculations for damages [90-1] (BAG) (Entered: 03/27/2002)
92 CERTIFICATE Of Consultation by plaintiff EEOC re [90-1] (BAG) (Entered: 03/27/2002)

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03/28/2002
03/29/2002 03/29/2002 03/29/2002
04/09/2002
05/14/2002 06/11/2002 06/18/2002 06/20/2002 06/20/2002 06/24/2002 06/24/2002 06/25/2002 07/02/2002

93 ORDER Granting The Equal Employment Opportunity Commission's Unopposed Motion For Leave To Extend The Deadline For Providing Calculations For Damages by Judge Julia S. Gibbons granting motion for leave to extend the deadline for providing calculations for damages [90-1], The Commission has until 4/1/02 to provide dft w/calculations for damages; (cc: all counsel) (BAG) (Entered: 03/28/2002)
94 ATTORNEY APPEARANCE for plaintiff EEOC by Faye A. Williams (BAG) (Entered: 04/01/2002)
95 RESPONSE and Memorandum in Opposition by plaintiff EEOC to defendant Northwest Airlines' motion to continue trial and other pre-trial matters [88-1] (BAG) (Entered: 04/01/2002)
96 REPLY by defendant Northwest Airlines to EEOC's response in opposition to defendant's motion to strike EEOC's expert witness Marvin E. Levin, M.D. from consideration in relation to motion for summary judgment re [89-1] (BAG) (Entered: 04/01/2002)
97 ORDER GRANTING MOTION TO CONTINUE TRIAL AND OTHER PRETRIAL MATTERS by Judge Julia S. Gibbons granting motion to continue trial and other pre-trial matters [88-1] ; Pretrial conference not held 4/9/02 ; Jury trial not held 4/9/02 The court will reset the trial and notice will be sent to the parties of the new dates. (cc: all counsel) (PWM) (Entered: 04/09/2002)
98 SETTING LETTER: jury trial set for 8/19/02 at 9:30: pretrial conference set for 8/9/02 at 1:45: pretrial order ddl set for 8/2/02 (resetting from 4/22/02) (BAG) (Entered: 05/14/2002)
99 NOTICE OF FILING OF "Slip Opinion in Chevron USA v. Echazabal" by defendant Northwest Airlines (BAG) (Entered: 06/12/2002)
100 ADMINISTRATIVE ORDER No. 02-11 by Chief Judge James D. Todd Case reassigned to Judge Samuel H. Mays Jr. (cc: all counsel) (BAG) (Entered: 06/19/2002)
101 UNOPPOSED MOTION by plaintiff EEOC and supporting Memorandum for leave to file supplemental memorandum (BAG) (Entered: 06/21/2002)
102 CERTIFICATE of Consultation by plaintiff EEOC re [101-1] (BAG) (Entered: 06/21/2002)
103 ORDER Granting Motion For Permission To File Supplemental Memorandum by Judge Samuel H. Mays Jr. granting EEOC's motion for leave to file supplemental memorandum [101-1]; (cc: all counsel) (BAG) (Entered: 06/25/2002)
104 SUPPLEMENTAL MEMORANDUM by plaintiff EEOC (submitting to explain the significance of Chevron USA v. Exchazabal...) (BAG) (Entered: 06/25/2002)
105 SETTING LETTER: Jury Trial set 8/19/02 at 9:30; pretrial conference set for 8/9/02 at 2:00; Joint pretrial Order due 8/2/02; (BAG) (Entered: 06/26/2002)
106 SUPPLEMENTAL MEMORANDUM by plaintiff EEOC (... in order to explain the significance of Chevron USA v. Exchazabal...) re [104-1] (BAG) (Entered: 07/03/2002)

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07/15/2002 07/16/2002
07/16/2002
07/16/2002 07/19/2002 08/06/2002 08/29/2002 09/11/2002 09/11/2002 09/17/2002 09/23/2002 09/30/2002

107 JOINT MOTION and MEMORANDUM by plaintiff, defendant, intervenor plaintiff for new trial date, new pretrial conference date and new settlement conference date (BAG) (Entered: 07/15/2002)
108 ORDER Granting Motion To Reset Trial Date by Judge Samuel H. Mays Jr. granting motion for new trial date, new pretrial conference date and new settlement conference date [107-1] jury trial reset to 9:30 10/21/02; pretrial conference reset for 9:30 10/8/02; pretrial order ddl set 5:00 10/2/02; settlement conf presently set for 8/12/02 is canceled and parties are to contact mag judge to reset settlement conf.; (cc: all counsel) (BAG) (Entered: 07/16/2002)
109 ORDER Denying Defendant's Motion To Strike Expert Testimony Of Marvin E. Levin, M.D. by Judge Samuel H. Mays Jr. denying motion to strike testimony of plaintiff EEOC's expert witness Marvin E. Levin, M.D. from consideration in relation to motion for summary judgment [86-1]; The Court will only consider portions of Dr. Levin's testimony relevant to Mr. Armstrong's condition at time of adverse employment action based on undisputed facts agreed to by parties; Because the Court is capable of weighing the credibility of each portion of Dr. Levin's report separately, it need not exclude all of his testimony; (cc: all counsel) (BAG) (Entered: 07/16/2002)
110 ORDER Of Transfer by Judge Samuel H. Mays Jr. Case transferred to Judge Julia S. Gibbons, in exchange for an equivalent case (cc: all counsel) (BAG) (Entered: 07/17/2002)
111 SETTING LETTER: jury trial set 10/21/02 at 9:30; pretrial conference set for 10/11/02 at 9:15: pretrial order deadline set for 10/4/02 (BAG) (Entered: 07/22/2002)
112 SETTING LETTER settlement conference set for 10:00 9/13/02 before Mag Judge Allen (BAG) (Entered: 08/07/2002)
113 SETTING LETTER : settlement conference set for 9/13/02 is CANCELLED, in light of the telephone conversation of 8/27/02. (YDS) (Entered: 08/30/2002)
114 SUPPLEMENTAL Authority (Fifth Circuit Court's decision) by plaintiff EEOC in support of its response in opposition to dft's motion (for summary judgment) re [79-1], [78-1] (BAG) (Entered: 09/12/2002)
115 ORDER Of Transfer by Judge Julia S. Gibbons Case transferred to Judge Jon P. McCalla for all further proceedings (cc: all counsel) (BAG) (Entered: 09/12/2002)
116 MOTION and MEMORANDUM by defendant Northwest Airlines to continue trial and other pre-trial matters (BAG) (Entered: 09/18/2002)
117 RESPONSE and Memorandum in Opposition by plaintiff EEOC to defendant Northwest Airlines, Inc.s' motion to continue trial and other pre-trial matters [116-1] (BAG) (Entered: 09/24/2002)
118 OPINION And ORDER Denying Defendant's Motion For Summary Judgment And Denying Defendant's Motion To Continue Trial And Other Pre-Trial Matters by Judge Jon P. McCalla denying motion for summary judgment [61-1], denying motion to continue trial and other pre-trial matters [116-1]; Plas have presented sufficient evidence to show that Mr. Armstrong was regarded as disabled and that

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10/07/2002 10/09/2002 10/11/2002 10/11/2002
10/15/2002 10/15/2002 10/15/2002 10/15/2002 10/15/2002 10/15/2002 10/15/2002

he was qualified to perform the job of an ENE...; Pla have stated a "prima facie" case of disability discrimination under the ADA; Dfts have failed to carry their burden of proving that Armstrong posed a direct threat in setting forth a legitimate, non-discriminatory reason why he was not hired; The Court DENIES dft's motion for summary judgment and DENIES dft's motion to continue trial...; (cc: all counsel) (BAG) (Entered: 10/01/2002)
119 MOTION and MEmorandum in support by plaintiff EEOC for leave to present direct testimony out-of-turn or, in the alternative by means of deposition; w/exhibits (BAG) (Entered: 10/08/2002)
120 MOTION and MEMORANDUM in support thereof by defendant Northwest Airlines for reconsideration of the Opinion and Order denying defendant's motion for summary judgment; w/attachments (BAG) (Entered: 10/10/2002)
121 RESPONSE by plaintiff EEOC to motion for reconsideration of the Opinion and Order denying defendant's motion for summary judgment [120-1]; w/exhibits (BAG) (Entered: 10/11/2002)
122 MINUTES: Pretrial conference held 10/11/02; Jury trial set for 10/21/02 at 9:30, est. 3 days; Procedures during Jury selection/trial addressed; Draft Jury Instructions submitted; Dft's motion for reconsideration of order denying motion for summary judgment - pending; Presiding Judge: Jon P. McCalla; DFT Atty: T. Bland/H. Gerson; C/R: Brenda Parker; (BAG) (Entered: 10/15/2002)
123 MOTION and MEMORANDUM in support thereof by defendant Northwest Airlines in limine to preclude testimony of plaintiff EEOC's expert witness Marvin E. Levin, M.D. at trial and introduction of his expert report into evidence; w/attachments (BAG) (Entered: 10/16/2002)
124 MOTION and MEMORANDUM in support thereof by defendant Northwest Airlines in limine to exclude arguments and evidence relating to issues dismissed by the court in its order on summary judgment (BAG) (Entered: 10/16/2002)
125 MOTION and MEMORANDUM in support thereof by defendant Northwest Airlines in limine to exclude evidence of certain back pay damages (BAG) (Entered: 10/16/2002)
126 MOTION and MEMORANDUM in support thereof by defendant Northwest Airlines in limine to preclude any expert testimony by Dr. Lisa Myers (BAG) (Entered: 10/16/2002)
127 PRETRIAL MEMORANDUM by defendant Northwest Airlines (BAG) (Entered: 10/16/2002)
128 MOTION and MEMORANDUm in support thereof by defendant Northwest Airlines in limine to exclude arguments that plaintiffs are entitled to punitive damages and any evidence related to a punitive damages award such as financial information regarding defendant; w/attachments (BAG) (Entered: 10/16/2002)
129 MOTION and MEMORANDUM in support thereof by defendant Northwest Airlines in limine to exclude evidence as to class or broad range of jobs (BAG) (Entered: 10/16/2002)

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10/15/2002 10/16/2002 10/16/2002 10/16/2002 10/16/2002 10/16/2002 10/16/2002 10/16/2002 10/16/2002 10/16/2002 10/16/2002 10/16/2002 10/16/2002 10/17/2002 10/17/2002 10/18/2002

130 MOTION and Memorandum in support therof by defendant Northwest Airlines in limine to exclude introduction of medical restrictions document at trial (BAG) (Entered: 10/16/2002)
131 MOTION by plaintiff EEOC in limine to disqualify Dr. O'Connell and Dr. Zanick as expert witness (BAG) (Entered: 10/16/2002)
132 MEMORANDUM by plaintiff EEOC in support of motion in limine to disqualify Dr. O'Connell and Dr. Zanick as expert witness [131-1]; w/exhibits (BAG) (Entered: 10/16/2002)
133 MOTION by plaintiff EEOC in limine to exclude testimony and documentary evidence related to certain accidents involving Northwest Airlines Employees (BAG) (Entered: 10/16/2002)
134 MEMORANDUM by plaintiff EEOC in support of motion in limine to exclude testimony and documentary evidence related to certain accidents involving Northwest Airlines Employees [133-1] (BAG) (Entered: 10/16/2002)
135 MOTION by plaintiff EEOC in limine to exclude testimony at trial of Paul Earnest and Audrey Bonner; (BAG) (Entered: 10/16/2002)
136 MEMORANDUM by plaintiff EEOC in support of motion in limine to exclude testimony at trial of Paul Earnest and Audrey Bonner; [135-1] (BAG) (Entered: 10/16/2002)
137 MOTION by plaintiff EEOC in limine to exclude testimony and documentary evidence related to certain medical conditions and records (BAG) (Entered: 10/16/2002)
138 MEMORANDUM by plaintiff EEOC in support of motion in limine to exclude testimony and documentary evidence related to certain medical conditions and records [137-1] (BAG) (Entered: 10/16/2002)
139 MOTION by plaintiff EEOC in limine to exclude Kevin Armstrong's personnel files from other employment (BAG) (Entered: 10/16/2002)
140 MEMORANDUM by plaintiff EEOC in support of motion in limine to exclude Kevin Armstrong's personnel files from other employment [139-1] (BAG) (Entered: 10/16/2002)
141 AMENDED Designation of portions of Dr. Kevin O'Connell's deposition to be read at trial by plaintiff EEOC (BAG) (Entered: 10/16/2002)
142 AMENDED Designation of portions of Mark Williams' deposition to be read at trial by plaintiff EEOC (BAG) (Entered: 10/16/2002)
143 PROPOSED Voir Dire Questions submitted by defendant Northwest Airlines (BAG) (Entered: 10/18/2002)
144 PROPOSED Jury Instructions submitted by defendant Northwest Airlines (BAG) (Entered: 10/18/2002)
145 MEMORANDUM by plaintiffs EEOC, Kevin Armstrong in opposition to defendant's motion in limine to exclude introduction of medical restrictions document at trial [130-1] (BAG) (Entered: 10/18/2002)

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10/18/2002 10/18/2002 10/18/2002 10/18/2002 10/18/2002 10/18/2002
10/18/2002 10/18/2002
10/21/2002 10/21/2002 10/21/2002

146 MEMORANDUM by plaintiff EEOC, intervenor plaintiff Kevin Armstrong in opposition to defendant's motion in limine to preclude any expert testimony by Dr. Lisa Myers [126-1] (BAG) (Entered: 10/18/2002)
147 RESPONSE by plaintiff EEOC in OPPOSITION to dft's motion in limine and Memorandum in support thereof to exclude evidence as to class or broad range of jobs [129-1] (BAG) (Entered: 10/21/2002)
148 PROPOSED Voir Dire Questions submitted by plaintiff EEOC (BAG) (Entered: 10/21/2002)
149 RESPONSE by plaintiff EEOC to dft's motion in limine to exclude arguments and evidence relating to issues dismissed by the court in its order on summary judgment [124-1] (BAG) (Entered: 10/21/2002)
150 MOTION and MEMORANDUM in support thereof by plaintiff EEOC to amend the proposed joint pretrial order to exclude stipulation number nine (BAG) (Entered: 10/21/2002)
151 RESPONSE by plaintiff EEOC in Opposition to dft's motion in limine to exclude arguments that plaintiffs are entitled to punitive damages and any evidence related to a punitive damages award such financial information regarding defendant [128-1] (BAG) (Entered: 10/21/2002)
152 RESPONSE by plaintiff EEOC in Opposition to dft's motion in limine to exclude evidence of certain back pay damages [125-1] (BAG) (Entered: 10/21/2002)
153 RESPONSE by plaintiff EEOC in Opposition to dft's motion in limine to preclude testimony of plaintiff EEOC's expert witness Marvin E. Levin, M.D. at trial and introduction of his expert report into evidence [123-1]; w/exhibits (BAG) (Entered: 10/21/2002)
154 PRE-TRIAL ORDER approved by Judge Jon P. McCalla: Jury trial set for 10/21/02, est. 4-5 days; Settlement appears unlikely; w/attachments (cc: all counsel) (BAG) (Entered: 10/21/2002)
155 PROPOSED Jury Instructions submitted by plaintiff EEOC (BAG) (Entered: 10/21/2002)
156 MINUTES: Jury trial began 10/21/02; (day 1); Preliminary matters/motions in limine addressed; Voir Dire by the Court/Counsel; Panel of 8 Jurors selected/administered impanelment oath; Court's preliminary Jury Instructions; Pla's proof: witnesses sworn/exhibits admitted; Kevin Armstrong; Court ruled that Dr. Meyer may testify as treating physician; The Court ruled that Dr. Meyer isn't required to provide a report; EEOC's motion to exclude Kevin Armstrong's personnel file- denied; Motion by pla to exclude testimony and documentary evidence related to certain medical conditions; Motion #133- granted; motion #131- under advisement; #129- granted; motion #137- denied; #126- denied; #123- denied; #125-denied, however, calculation will depend on Armstrong's testimony; #129- bifurcated; , Presiding Judge: Jon P. McCalla; PLA Atty: J. Wyatt; DFT Atty: Gerson/Bland/Smith/Williams; C/R: Brenda Parker; (BAG) (Entered: 10/22/2002)

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10/22/2002 10/22/2002 10/22/2002 10/22/2002 10/22/2002 10/22/2002 10/22/2002 10/22/2002 10/22/2002
10/23/2002
10/24/2002

157 SUPPLEMENTAL MEMORANDUM by defendant Northwest Airlines re motion in limine to preclude testimony of plaintiff EEOC's expert witness Marvin E. Levin, M.D. at trial and introduction of his expert report into evidence [123-1] (BAG) (Entered: 10/22/2002)
158 RESPONSE in opposition by defendant Northwest Airlines to pla's motion in limine to exclude testimony and documentary evidence related to certain medical conditions and records [137-1] (BAG) (Entered: 10/22/2002)
159 RESPONSE in opposition by defendant Northwest Airlines to pla's motion in limine to exclude Kevin Armstrong's personnel files from other employment [139-1] (BAG) (Entered: 10/22/2002)
160 RESPONSE in Opposition by defendant Northwest Airlines to plaintiff's memorandum in support of motion in limine to exclude testimony and documentary evidence related to certain accidents involving Northwest Airlines Employees [134-1] (BAG) (Entered: 10/22/2002)
161 RESPONSE in opposition by defendant to motion in limine to disqualify Dr. O'Connell and Dr. Zanick as expert witness [131-1] and to plaintiff's Memorandum in support thereof; (BAG) (Entered: 10/22/2002)
162 DEPOSITION of Dr. Kevin T. O'Connell taken on the following date(s): 11/27/01; C/R: Daniel Larkin- reported by Susan K. Schwaller; (document placed in separate folder) (BAG) (Entered: 10/22/2002)
163 DEPOSITION of Mark S. Williams; taken on the following date(s): 11/28/01; C/R: Susan K. Schwaller; (document placed in separate folder) (BAG) (Entered: 10/22/2002)
164 STIPULATIONS by plaintiff, defendant (filed in open court) regarding positions of an ESE employee... (BAG) (Entered: 10/24/2002)
165 MINUTES: Jury trial resumed 10/22/02 (day 2); Pla's proof: witnesses sworn/exhibits admiited; Kevin Armstrong, Dr. Lisa Meyers, deposition testimony of Dr. O'Connell, Dr. Marvin Levin; Exhibit A was marked as part of the proceeding- transcript ... w/anonymous caller re: Juror Leilani Stephens, Jurors questionnaire & internet printout; Jury is return at 8:30 on 10/23/02 and trial will begin at 9:00; Presiding Judge: Jon P. McCalla; PLA Atty: D. Smith/F. Williams/J. Wyatt; DFT Atty: H. Gerson/T. Bland; C/R: Brenda Parker; (BAG) (Entered: 10/24/2002)
168 MINUTES: Jury trial resumed on 10/23/02 (day 3); Pla's proof: witnesses sworn/exhibits admitted; Sheila C. Williams, Debbie L...., Kevin Frommelt, Mark Williams by depo., Nancy Kincaid; Pla rests; Motion for jgmt. as a matter of law- denied; Dft's proof: witnesses sworn/exhibits admitted; Dft w/drew Dr. Zaneck as a witness; Court excused Juror Leilanda Stephens as a juror due to family issues; Exhibit B to the record was marked; Jury to return at 8:30 on 10/24/02; trial will resume at 9:00; Presiding Judge: Jon P. McCalla; PLA Atty: Smith/Wyatt/Williams; DFT Atty: Gerson/Blande; C/R: Brenda Parker; (BAG) (Entered: 10/25/2002)
166 TRANSCRIPT of proceedings for the following date(s): 10/21/02 of opening statements by Mr. Wyatt and Mr. Gerson before Judge McCalla; Volumes 1;

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10/24/2002 10/24/2002 10/25/2002
10/25/2002 10/31/2002
10/31/2002 11/06/2002

Court Reporter: Brenda Parker; (document placed in separate folder) (BAG) (Entered: 10/25/2002)
167 TRANSCRIPT of proceedings for the following date(s): 10/23/02 of trial testimony of Dr. Kevin O'Connell before Judge McCalla; Volumes 1 (original); Court Reporter: Brenda Parker; (document placed in separate folder) (BAG) (Entered: 10/25/2002)
169 MINUTES: Jury trial resumed on 10/24/02 (day 4); Dft's proof: witnesses sworn/exhibits admitted: Mark Williams, Kevin Frommelt; Dft rests: Rebuttal proof: Kevin Armstrong; Mr. Gerson made an offer of proof as to the testimony of Carolyn Moore; Mr. Bland made an offer of proof re: Mr. Frommelts depo. testimony re: accidents involving non-diabetes employees of NWA; trial will resume at 8:30 on 10/25/02; Presiding Judge: Jon P. McCalla; PLA Atty: D. Smith/F. Williams/J. Wyatt; DFT Atty: H. Gerson/T. Bland; C/R: Brenda Parker; (BAG) (Entered: 10/29/2002)
170 MINUTES: Jury trial resumed on 10/25/02; (day 5); Closing arguments; Charge conf.; Jury charge; Verdict as published/filed in open court: Element 1- for pla; Element 2- for pla; Element 3 for pla; Element 4- for pla backpay $20,967.15; compensatory- yes: $19,250.00; Jury polled; Court excused/discharged jury; Jury began deliberations at 2:00; Question 6: for dft; Dft submitted business necessity instruction which is attached; Dft submitted jury instruction re: substantially limited disability and the relationship to safety policies; Presiding Judge: Jon P. McCalla; PLA Atty: Smith/Williams/Wyatt; DFT Atty: Gerson/Bland; C/R: Brenda Parker; (BAG) (Entered: 10/29/2002)
171 VERDICT for plaintiff EEOC (and Kevin Armstrong) against defendant Northwest Airlines (amount of backpay: $20,967.15- compensatory damages: $19,250.00) (BAG) (Entered: 10/29/2002)
172 ORDER On Jury Verdict by Judge Jon P. McCalla re [171-1]; After due deliberations (on 10/25/02) the Jury returned into open court and announced a verdict in favor of intervening pla, Kevin Armstrong; As to Element 1, the jury found Northwest Airlines regarded Mr. Armstrong as having a disability; Element 2, the jury found Mr. Armstrong was a qualified individual able to perform job requirements of ESE psition...' Element 3, jury found Mr. Armstrong suffered an adverse employment decision...; Jury also found Mr. Armstrong entitled to back pay in amount of $20,967.15; ...as a result of unlawful conduct of Northwest Airlines and awarded compensatory damages in amount of $19,250.00; Jurors were polled individually and excused; terminating case (cc: all counsel) (BAG) (Entered: 10/31/2002)
173 JUDGMENT On Jury Verdict: by Judge Jon P. McCalla re [171-1]; It is ORDERED that the claim of EEOC and KEvin Armstrong v. Northwest Airlines, Kevin Armstrong is to recover back pay of $20,967.16 ... and compensatory damages of $19,250.00 from Northwest Airlines for a total of $40,217.15 in damages; (cc: all counsel) (BAG) (Entered: 10/31/2002)
176 EXHIBIT AND WITNESS list submitted of hearing held 10/21/02 (BAG) (Entered: 11/08/2002)

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11/06/2002 11/07/2002
11/07/2002 11/08/2002 11/08/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/13/2002
11/15/2002 11/21/2002 11/21/2002 11/21/2002 11/21/2002 11/21/2002

177 EXHIBIT AND WITNESS list submitted of hearing held 10/21- ... (BAG) (Entered: 11/08/2002)
174 MOTION by defendant Northwest Airlines to enlarge page limitation for post-trial motions (for a 10 page enlargement of the 20 page limit for memorandum in support of motion for judgment as a matter of law and in the alternative for new trial) (BAG) (Entered: 11/08/2002)
175 MEMORANDUM by defendant Northwest Airlines in support of motion to enlarge page limitation for post-trial motions [174-1] (BAG) (Entered: 11/08/2002)
178 MOTION/REQUEST by intervenor plaintiff Kevin Armstrong for attorneys fees and costs and supporting legal authority; w/attachments (BAG) (Entered: 11/08/2002)
179 CERTIFICATE Of Consultation by intervenor plaintiff Kevin Armstrong pursuant to LR 7.2(a)(1)(B) re [178-1] (BAG) (Entered: 11/08/2002)
180 MOTION by defendant Northwest Airlines to alter or amend judgment (pursuant to Rule 59(e) of FRCP) (BAG) (Entered: 11/13/2002)
181 MEMORANDUM by defendant Northwest Airlines in support of motion to alter or amend judgment [180-1] (BAG) (Entered: 11/13/2002)
182 MOTION by defendant Northwest Airlines for judgment as a matter of law , or in the alternative for new trial (BAG) (Entered: 11/13/2002)
183 MEMORANDUM by defendant Northwest Airlines in support of motion for judgment as a matter of law [182-1], of motion for new trial [182-2] (BAG) (Entered: 11/13/2002)
184 ORDER Granting Defendant's Motion To Enlarge Page Limitation by Judge Jon P. McCalla granting motion to enlarge page limitation for post-trial motions (for a 10 page enlargement of the 20 page limit for memorandum in support of motion for judgment as a matter of law and in the alternative for new trial) [174-1] (cc: all counsel) (BAG) (Entered: 11/14/2002)
185 BILL OF COSTS submitted by intervenor plaintiff Kevin Armstrong re [173-1] (YDS) (Entered: 11/18/2002)
186 MOTION by plaintiff EEOC to enlarge page limitation for response to defendant's post-trial motion (BAG) (Entered: 11/22/2002)
187 MEMORANDUM by plaintiff EEOC in support of motion to enlarge page limitation for response to defendant's post-trial motion [186-1] (BAG) (Entered: 11/22/2002)
188 CERTIFICATE of Consultation by plaintiff EEOC re [186-1] (BAG) (Entered: 11/22/2002)
189 BILL OF COSTS submitted by plaintiff EEOC re [173-1] (YDS) (Entered: 11/22/2002)
190 AFFIDAVIT of Patricia Kronz in support of Bill of Costs [189-1] (YDS) (Entered: 11/22/2002)

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11/21/2002 11/22/2002 11/22/2002 11/25/2002 11/26/2002
11/27/2002 12/03/2002 12/03/2002 12/03/2002 12/06/2002 12/06/2002 12/09/2002 12/13/2002

191 CERTIFICATE of Consultation by plaintiff EEOC re Bill of Costs [189-1] (YDS) (Entered: 11/22/2002)
192 UNCONTESTED MOTION and MEMORANDUM by defendant Northwest Airlines for additional time to respond to intervening plaintiff's request for attorney's fees and costs and supporting legal authority (BAG) (Entered: 11/25/2002)
193 ORDER Granting Plaintiff EEOC's Motion To Enlarge Page Limitation by Judge Jon P. McCalla granting motion to enlarge page limitation for response to defendant's post-trial motion [186-1] (cc: all counsel) (BAG) (Entered: 11/25/2002)
194 SETTING LETTER : taxation of cost hearing set 9:30 12/13/02, Rm 242 (YDS) (Entered: 11/26/2002)
195 ORDER Granting Defendant's Uncontested Motion For Additional Time To Intervening Plaintiff's Request For Attorneys Fees And Costs And Supporting Legal Authority by Judge Jon P. McCalla granting dft's motion for additional time to respond to intervening plaintiff's request for attorney's fees and costs and supporting legal authority [192-1]; Dft's response is now due 12/6/02; (cc: all counsel) (BAG) (Entered: 11/26/2002)
196 RESPONSE by plaintiff EEOC and Memorandum in Opposition to dft's motion for judgment as a matter of law [182-1], to motion for new trial [182-2] (BAG) (Entered: 11/27/2002)
197 TRANSCRIPT of proceedings for the following date(s): 10/21/02 of Trial testimony of Kevin Armstrong; Volumes 1 (orig); Court Reporter: Brenda Parker; (document placed in separate fodler) (BAG) (Entered: 12/04/2002)
198 TRANSCRIPT of proceedings for the following date(s): 10/22/02 of Trial testimony of Lisa Marie Myers; Volumes 1 (orig); Court Reporter: Brenda Parker; (document placed in separate folder) (BAG) (Entered: 12/04/2002)
199 TRANSCRIPT of proceedings for the following date(s): 10/22/02 of trial testimony of Kevin Armstrong; Volumes II; Court Reporter: Brenda Parker; (document placed in separate folder); (BAG) (Entered: 12/04/2002)
200 OBJECTIONS to plaintiff EEOC's Bill of Costs by defendant Northwest Airlines to [189-1] (BAG) (Entered: 12/09/2002)
201 RESPONSE/OPPOSITION by defendant Northwest Airlines to intervening plaintiff Kevin Armstrong's motion for attorneys fees and costs and supporting legal authority [178-1] (BAG) (Entered: 12/09/2002)
202 MOTION and MEMORANDUM by defendant Northwest Airlines for permission to file reply to plaintiff EEOC's response and Memorandum in opposition to defendant's motion for judgment as a matter of law or in the alternative for new trial (BAG) (Entered: 12/10/2002)
203 ORDER Granting Permission To File Reply by Judge Jon P. McCalla granting motion for permission to file reply to plaintiff EEOC's response and Memorandum in opposition to defendant's motion for judgment as a matter of law or in the alternative for new trial [202-1] (cc: all counsel) (BAG) (Entered:

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https://ecf.tnwd.uscourts.gov/cgi-bin/DktRpt.pl?725700748050976-L_9...

12/18/2002
08/19/2003 08/28/2003 09/23/2003 09/23/2003 10/07/2003 12/12/2003 12/12/2003

12/13/2002)
204 ORDER TAXING COSTS by the Clerk of Court : costs are taxed against dft and in favor of pla as follows: Deposition fees $3,688.04, Expert witness fees: $493.50, Attorney Travel: $0; TOTAL: $4,181.54...Pursuant to FRCvP Rule 54(d), this action of the Clerk may be reviewed by the court upon motion, served w/i 5 days of the docketing of this order. (cc: all counsel) (YDS) (Entered: 12/19/2002)
205 *AMENDED ORDER ON JURY VERDICT by Judge Jon P. McCalla re [172-2] .....*Furthermore, the jury found that the Defendant's actions were not in malicious or reckless disregard of Mr. Armstrong's federally protected rights... (cc: all counsel) (JAE) (Entered: 08/20/2003)
206 ORDER by Judge Jon P. McCalla granting motion to alter or amend judgment (pursuant to Rule 59(e) of FRCP) [180-1] all counsel) (JAE) (Entered: 08/28/2003)
207 ORDER by Judge Jon P. McCalla DENYING motion for judgment as a matter of law [182-1], DENYING motion for new trial [182-2] (cc: all counsel) (JAE) (Entered: 09/23/2003)
208 ORDER by Judge Jon P. McCalla granting motion for attorneys fees and costs and supporting legal authority; w/attachments [178-1] (cc: all counsel) (CCP) (Entered: 09/23/2003)
209 ORDER by Mag Judge James H. Allen to reassign this case to Magistrate Judge Tu M. Pham for all pending and future references (cc: all counsel) (JAE) (Entered: 10/08/2003)
210 SATISFACTION OF JUDGMENT re [173-1]: plaintiff EEOC acknowledges that judgment against defendant Northwest Airlines that judgment has been fully satisfied, discharged and fully extinguished (JAE) Modified on 12/12/2003 (Entered: 12/12/2003)
211 SATISFACTION OF JUDGMENT re [173-1]: Intervenine Plaintiff Kevin Armastrong acknoweldges that Judgment as to defendant Northwest Airlines has been fully satisfied, discharged and extinguished (JAE) (Entered: 12/12/2003)

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6/5/2007 12:49 PM

 
 MEMPHIS JURY RETURNS VERDICT AGAINST NORTHWEST A...

http://www.eeoc.gov/press/10-31-02.html

The U.S. Equal Employment Opportunity Commission

FOR IMMEDIATE RELEASE October 31, 2002

CONTACT: Faye A. Williams Supervisory Trial Attorney (901) 544-0088
Deidre Smith Senior Trial Attorney TTY: (901) 544-0112

MEMPHIS JURY RETURNS VERDICT AGAINST NORTHWEST AIRLINES IN EEOC DISABILITY CASE ON BEHALF OF
DIABETIC APPLICANT

MEMPHIS - A federal jury in the U.S. District Court for the Western District of Tennessee returned a verdict in favor of the U.S. Equal Employment Opportunity Commission (EEOC) and the Plaintiff-Intervenor, Kevin Armstrong (Armstrong), in a lawsuit brought by the Agency on behalf of Armstrong, an insulin-dependent diabetic applicant for the position of equipment service employee (ESE or baggage handler) at the Northwest Airlines hub in Memphis, Tennessee. The suit was brought by the EEOC under Title I of the Americans with Disabilities Act of 1990 (ADA).
The jury awarded the EEOC and the Plaintiff-Intervenor, for the benefit of Armstrong, $19,250 in compensatory damages and $21,000 in back pay.
According to the EEOC, Armstrong applied for the ESE position in May 1998. He was issued a conditional job offer on May 9, 1998, and passed his pre-placement physical in Memphis on May 13, 1998. Later, Northwest Airlines' contract physician located in Minnesota learned that Armstrong was an insulin-dependent diabetic and then withdrew job offer.
The Commission filed suit on September 27, 2000, after exhausting its efforts to reach a voluntary pre-litigation settlement. The judge in the case was District Judge Jon P. McCalla. The jury rejected Northwest Airlines' defense that Armstrong posed a direct threat to himself or others because his insulin-dependent diabetes was poorly controlled.
The EEOC was represented by Supervisory Trial Attorney Faye Williams and Senior Trial Attorney Deidre Smith, both of the agency's Memphis District Office.
Katharine Kores, EEOC Acting District Director in Memphis, said: "The verdict in this case should remind all employers that hiring decisions should be based on the applicant's real abilities and not stereotypical ideas about an applicant's disability."
The EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex, or national origin; the Age Discrimination in Employment Act, which prohibits employment discrimination against individuals who are 40 years of age or older; the Equal Pay Act; Sections of the Civil Rights Act of 1991; Title I of the Americans With Disabilities Act, which prohibits discrimination against individuals with disabilities, and laws pertaining to disability discrimination in the federal sector. Further information about the Commission is available on its web site at www.eeoc.gov.

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