This order and judgment is not binding precedent, except under the *

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I LED

United States Court of Appeals

Tenth Circuit

August 11, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RAY LEVELLE, 

Plaintiff - Appellee, No. 05-1216

v. (D.C. No. 02-F-2220 (PAC))

PENSKE LOGISTICS, a subsidiary of

Penske Truck Leasing Corporation, 

(D. Colo.)

Defendant - Appellant.

 

ORDER AND JUDGMENT

*

Before MURPHY, BALDOCK, and McCONNELL, Circuit Judges.

I. Introduction

Ray LeVelle sued his former employer, Penske Logistics (“Penske”), in the

United States District Court for the District of Colorado. Among other claims,

LeVelle alleged Penske violated the Americans with Disabilities Act (“ADA”)

when it terminated his employment after learning he was working subject to

doctor-recommended lifting restrictions. The ADA claim proceeded to a jury
-2-

trial. LeVelle prevailed, and the jury awarded him compensatory damages, backpay, and punitive damages. The district court awarded LeVelle attorneys’ fees

and costs. Penske appeals from both the judgment and the court’s award of

attorneys’ fees. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291. 

We affirm in part, vacate in part, and remand for further proceedings not

inconsistent with this opinion. 

II. Background

“When reviewing a jury verdict, we review the record in favor of the

prevailing party, and give that party the benefit of all reasonable inferences to be

drawn from the evidence.” Miller v. Eby Realty Group LLC, 396 F.3d 1105, 1108

(10th Cir. 2005) (quotation omitted). Viewed in this light, the record reveals the

following. From 1996 to March 1999, and again from November 1999 to

February 2001, LeVelle worked for Penske delivering and installing household

appliances such as refrigerators, washers, dryers, dishwashers, ranges, and cook

tops. LeVelle started out at Penske as a driver’s helper. Helpers were

responsible for the “grunt work” of preparing appliances for installation and

moving appliances from a delivery truck into customers’ homes using a dolly. 

Later, LeVelle became a driver. Drivers assessed delivery logistics, assisted the

helper in moving appliances, disconnected old appliances, connected new

appliances, dealt with paperwork, and interacted with customers. 
In December 2000, LeVelle underwent a separate medical examination, 1

performed by Dr. David Reinhard. Dr. Reinhard agreed with Dr. Kawasaki that

LeVelle had reached maximum medical improvement by September 2000 and

(continued...)

-3-

In March 2000, LeVelle slipped while delivering an appliance and injured

his back. After the injury, he filed a report at work and sought medical treatment

at the health-care provider Penske used in cases of employee injuries. LeVelle’s

physicians told him he could not return to work. As a consequence, LeVelle did

not work from March 16, 2000 until October 9, 2000. During this time, LeVelle

underwent physical therapy and received workers’ compensation benefits. 

In September 2000, Dr. Robert Kawasaki gave LeVelle an impairment

assessment and functional capacity evaluation. Dr. Kawasaki determined LeVelle

had reached maximum medical improvement, but noted LeVelle had “some

significant limitations regarding his work capabilities.” Dr. Kawasaki

recommended the following work restrictions:

1. For all lifting below the shoulder level, I recommend a light

duty category with 40 pounds maximum occasionally, 20

pounds frequently, and 10 pounds constantly.

2. For lifting overhead I recommend 20 pounds maximum

occasionally, 10 pounds frequently, and 5 pounds constantly.

3. For push and pull, I recommend 80 pounds maximum

occasionally, 40 pounds frequently, and 20 pounds constantly.

4. The patient will need to alternate activities between sitting,

standing, and walking as needed for comfort.

App. at 693. Dr. Kawasaki also determined LeVelle had an impairment of eleven

percent of the whole person.1
(...continued) 1

agreed with Dr. Kawasaki’s recommended work restrictions. Dr. Reinhard,

however, concluded LeVelle’s impairment rating was seventeen percent of the

whole person.

-4-

In October 2000, LeVelle gave his medical reports, including the

recommended work restrictions, to Brett Carl, Penske’s logistics center manager

at the time. LeVelle testified he and Carl discussed the doctor-recommended

work restrictions, and LeVelle assured Carl he would be able to perform his job

as a driver. At the conclusion of the conversation, Carl told LeVelle he could

return to work at Penske. At first, Penske teamed LeVelle with an experienced

driver who evaluated LeVelle’s ability to perform the job. After a week or so,

Penske gave LeVelle his own truck and a helper, and he returned to his former

position as a driver. LeVelle worked as a driver for Penske for the next several

months without any problems, working approximately the same hours and making

approximately the same number of deliveries as other Penske drivers.

In December 2000, Penske asked LeVelle to install a set of appliances that

had already been delivered to a customer’s house. After arriving at the job site,

LeVelle and his helper discovered one of these appliances was a KSS refrigerator,

a large and heavy style of refrigerator. Installation of a KSS refrigerator required

a special type of dolly and at least one extra person. Because LeVelle did not

have the special dolly or the extra help, he did not install the refrigerator. 
-5-

LeVelle’s failure to install the KSS refrigerator was, in part, the subject of

a meeting between LeVelle and his supervisors in late January 2001. At the

meeting, LeVelle explained to his supervisors he could not install the appliance

because he did not have the correct dolly or the required number of people. 

LeVelle also told his supervisors he was still working subject to doctorrecommended weight restrictions, and expressed to them his concern that

installing a KSS refrigerator without the special dolly and extra help might

adversely affect his back. LeVelle’s supervisors ended the meeting, and LeVelle

resumed his normal duties as a driver.

By the time of the meeting, Carolyn Jo Ward had replaced Brett Carl as

Penske’s logistics center manager. Ward testified that, until the meeting, she was

not aware LeVelle was working subject to medical restrictions. She told the jury

that after the meeting with LeVelle, she looked through her files and asked other

Penske departments for information on LeVelle’s restrictions. Approximately one

week after the meeting, Ward obtained workers’ compensation and medical

records concerning LeVelle’s back injury and restrictions. Ward reviewed

LeVelle’s records and discussed his situation with Penske’s risk management

department. Ward told the jury she was concerned that if a driver who had

already suffered an on-the-job injury returned to work, he could re-injure himself.

On February 14, 2001, Ward called LeVelle into her office and told him he

could not work as a driver in light of the medical restrictions placed on him by his
-6-

doctors. Ward assured LeVelle she would put him back on workers’

compensation, even though LeVelle told Ward he was no longer eligible to

receive workers’ compensation benefits. LeVelle testified he asked Ward whether

he could work at Penske in some other capacity. According to LeVelle, Ward

said she would talk to someone and let him know.

At trial, Ward testified she did not consider employing LeVelle in any

capacity other than as a driver and did not consider any alternative to terminating

LeVelle’s employment with Penske. Ward also told the jury she did not ask

anyone in her office or in the adjoining Penske division whether there was any

light-duty work available for LeVelle. She explained she knew the operation, and

there was no need to ask anyone else about available jobs. During her testimony,

Ward conceded there was a vacant transportation clerk position at the time

LeVelle was terminated, but noted she did not have approval to fill the position at

that time.

After Ward told LeVelle he could not work as a driver, LeVelle discovered

an adjoining Penske division was in need of a “retail” driver. LeVelle testified

retail drivers delivered cabinets from one loading dock to another and were not

subject to the same physical demands as drivers who installed appliances. The

manager of the adjoining Penske division offered LeVelle the retail driver job,

subject to approval from Penske’s human resources department. According to 
-7-

LeVelle, the manager later told him Penske’s human resources department would

not allow him to have the retail driver job. 

On February 28, Ward gave LeVelle a letter informing him he was being

placed back on workers’ compensation. LeVelle insisted he was not eligible for

workers’ compensation and convinced Ward to look into the matter further. Ward

called LeVelle later that day and told him he was correct, she could not place him

back on workers’ compensation. Ward told LeVelle she had another letter for

him, and asked him to return the first letter she had given him. 

LeVelle complied with Ward’s request, and Ward gave him the second

letter. The new letter terminated LeVelle’s employment at Penske, effective

March 1, 2001. Ward testified she terminated LeVelle because she believed his

doctor-recommended restrictions precluded him from doing the type of heavyduty work required of Penske drivers. She also stated she believed her decision

not to allow LeVelle to work as a driver was in the interest of LeVelle’s safety, as

well as the safety of other Penske employees.

The letter terminating LeVelle stated, “Due to no work being available at

this time, you are terminated effective immediately.” App. at 687. LeVelle told

the jury he inquired about the wording of the letter with Terry Cooley, who

worked in Penske’s human resources department. LeVelle explained to Cooley he

felt the letter was misleading when Penske had terminated LeVelle due to his

medical restrictions, not because there was no work available. Cooley told
-8-

LeVelle the letter would work better for him as it was written. If the letter stated

LeVelle was terminated because of his restrictions, Cooley said, it would interfere

with LeVelle’s ability to get another job by letting other employees know of his

restrictions.

After his termination, LeVelle filed suit against Penske. LeVelle alleged

Penske violated the ADA by terminating him because it regarded him as disabled. 

LeVelle also brought claims for racial discrimination and wrongful termination. 

The district court granted summary judgment to Penske on the racial

discrimination and wrongful termination claims. LeVelle’s ADA claim, however,

proceeded to a jury trial.

At trial, LeVelle argued he was qualified for protection under the ADA

because the evidence showed Penske regarded him as having a disability. See 42

U.S.C. § 12102(2)(C). The jury agreed; it found LeVelle was a qualified

individual and Penske regarded LeVelle as disabled. LeVelle also contended

Penske violated the ADA because the evidence showed its termination of him was

motivated by its perception that he was disabled. Again, the jury agreed, finding

Penske intentionally discriminated against LeVelle because its perception of him

as disabled was a motivating factor in its decision to discharge him.

The jury awarded LeVelle compensatory damages in the amount of

$10,000.00, back-pay in the amount of $28,500.00, and punitive damages in the

amount of $50,000.00. LeVelle filed a Motion for Attorney’s Fees and Costs,
-9-

seeking fees in the amount of $111,949.50, an enhancement totaling $32,628.84,

and $2533.74 in costs. Pursuant to Rules 50 and 59 of the Federal Rules of Civil

Procedure, Penske moved the court to grant judgment as a matter of law or, in the

alternative, grant a new trial or amend the verdict. It also opposed in part

LeVelle’s motion for fees and costs. The district court denied Penske’s Rule

50/Rule59 motion, and awarded LeVelle $111,949.50 in fees and $2533.74 in

costs. Penske appeals from the district court’s denial of its post-trial motion. It

also appeals the district court’s award of attorneys’ fees and costs. 

III. Analysis

A. LeVelle’s “Regarded As” Disabled Claim

Penske contends the district court erred in denying its motion for judgment

as a matter or law or for a new trial on the merits of LeVelle’s ADA claim. This

court reviews de novo a district court’s denial of a motion for judgment as a

matter of law. Kelly v. Metallics W., Inc., 410 F.3d 670, 674 (10th Cir. 2005). 

Judgment as a matter of law is “only proper when the evidence and all reasonable

inferences to be drawn therefrom are so clear that reasonable minds could not

differ on the conclusion.” Id. (quotation omitted). In other words, a court may

grant a motion for judgment as a matter of law “only if the evidence points but

one way and is susceptible to no reasonable inferences which may support the

opposing party’s position.” Miller v. Auto. Club of N.M., Inc., 420 F.3d 1098,

1131 (10th Cir. 2005) (quotations omitted). In reviewing a district court’s denial
The Supreme Court has observed an employee may fall within the 2

“regarded as” prong of the ADA’s definition in two ways: his employer can

believe he has a substantially limiting impairment that he does not actually have,

or his employer can believe his actual impairment is substantially limiting when

his impairment is not, in fact, substantially limiting. Sutton v. United Air Lines,

Inc., 527 U.S. 471, 489 (1999). 

-10-

of a motion for a judgment as a matter of law, “[w]e review all the evidence in

the record, construing it and any inferences therefrom in favor of the non-moving

party, and refraining from making credibility determinations and weighing

evidence.” Id. We review a district court’s denial of a motion for a new trial for

abuse of discretion, viewing all the evidence in the light most favorable to the

prevailing party. Escue v. N. Okla. Coll., 450 F.3d 1146, 1156 (10th Cir. 2006). 

“[E]ven if we do not necessarily agree with the jury’s verdict, it must be upheld

unless it is clearly, decidedly or overwhelmingly against the weight of the

evidence.” Id. at 1157 (quotation omitted).

“The ADA prohibits discrimination by covered entities, including private

employers, against qualified individuals with a disability.” Sutton v. United Air

Lines, Inc., 527 U.S. 471, 477 (1999). Under the ADA, a person with a disability

is defined, among other things, as an individual who is “regarded as having . . . an

impairment” which “substantially limits one or more of the major life activities of

such individual.” 42 U.S.C. § 12102(2). “[T]o establish a disability under the 2

‘regarded as’ prong of the ADA with respect to the major life activity of working,

an individual must show [his] employer regarded him . . . as being substantially
-11-

limited in performing either a class of jobs or a broad range of jobs in various

classes.” Steele v. Thiokol Corp., 241 F.3d 1248, 1256 (10th Cir. 2001)

(quotation omitted). The employee also must show his employer’s misperceptions

were based on myths, fears, or stereotypes associated with disabilities. Doebele

v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1133 (10th Cir. 2003). 

Penske contends the jury’s verdict on LeVelle’s ADA claim cannot stand

because LeVelle presented no evidence it regarded him as unable to perform a

class of jobs or a broad range of jobs in various classes. Penske also asserts

LeVelle failed to present evidence to show its actions were based on speculation,

myth, or stereotype. Upon review of the record as a whole, we cannot agree with

Penske’s argument.

(1) Regarded As Unable to Perform a Broad Range of Jobs

LeVelle presented evidence susceptible to reasonable inferences supporting

his position that Penske viewed him as unable to perform a broad variety of jobs.

According to Ward’s testimony, after she determined LeVelle could not work as a

driver, she did not consider him for any other positions with Penske because of

his restrictions. Ward told the jury there was a vacant transportation clerk

position at Penske at the time LeVelle was terminated, and she defined the vacant

job as a clerical position that did not involve heavy physical work. Although

Ward noted she lacked approval to have the transportation clerk position filled at

that time, she conceded she did not consider LeVelle for the job and admitted she
-12-

received approval to fill the position shortly after LeVelle was terminated. The

foregoing evidence is susceptible to the reasonable inference Penske did not

consider LeVelle for the transportation clerk position because of his medical

restrictions.

After learning Penske would not allow him to continue working as a driver

delivering and installing appliances, LeVelle inquired of the manager of another

Penske division about getting a job delivering cabinets on a route that was largely

“retail.” LeVelle testified the retail route would have involved delivering

cabinets from one loading dock to another, and would not have required him to

install the cabinets. Although the cabinet delivery position would have required

LeVelle to move boxes weighing up to 300 pounds without a helper, LeVelle told

the jury he was physically capable of the job. LeVelle explained that by sliding a

dolly under an appliance, tilting it to a balanced position, and rolling the

appliance on the dolly, he could singlehandedly move heavy appliances without

lifting them. LeVelle told the jury he believed he did not exceed his doctorrecommended restrictions when he used the dolly in this fashion. Penske’s human

resources department, however, did not allow LeVelle to be hired for the cabinet

delivery position. A jury could reasonably infer from LeVelle’s testimony that

the cabinet delivery position was not as physically demanding as the driver

position, that LeVelle could have performed the job without violating his medical 
-13-

restrictions, and that Penske nonetheless refused to consider LeVelle for the

position. 

Upon terminating LeVelle, Penske gave him a letter stating he was laid off

because no work was available, not because he was subject to medical

restrictions. Cooley, the Penske human resources department employee, told

LeVelle he would be better off with the “no work available” letter and explained a

letter revealing the existence of LeVelle’s restrictions to potential future

employers would interfere with LeVelle’s ability to get another job. A jury could

reasonably infer from this testimony that Cooley believed disclosure of LeVelle’s

restrictions would interfere with LeVelle’s ability to get any other job, not just

another job involving heavy physical labor. 

In short, evidence presented at trial permits the reasonable inference Penske

regarded LeVelle as being unable to perform a wide range of jobs. Therefore, a

jury could reasonably conclude Penske viewed LeVelle unable to perform a class

of jobs or a broad range of jobs in various classes.

(2) Action Based on Myths, Fears, or Stereotypes

The evidence presented at trial also permits the conclusion that Penske’s

actions were based upon myths, fears, or stereotypes about LeVelle’s perceived

disability, not upon his actual ability to work. Penske argues it acted reasonably, 

basing its actions solely on the lifting, pulling, and pushing restrictions

recommended by LeVelle’s physicians. As discussed above, however, LeVelle
-14-

presented evidence sufficient to permit the inference Penske refused to consider

LeVelle for jobs even when LeVelle’s doctor-recommended restrictions would not

have precluded him from performing those jobs. Based on this evidence, a jury

could reasonably infer Penske’s actions were based upon myths, fears, or

stereotypes about LeVelle’s perceived disability rather than an objective

evaluation of LeVelle’s actual abilities.

(3) Summary

After considering the record as a whole and drawing all reasonable

inferences in favor of LeVelle, we conclude a jury could reasonably infer Penske

considered LeVelle unable to perform a class of jobs or a broad range of jobs in

various classes, and Penske based its actions on myths, fears, or stereotypes

instead of on LeVelle’s actual abilities. The evidence presented at trial was

therefore sufficient to permit the conclusion that Penske regarded LeVelle as

disabled for purposes of the ADA. Accordingly, Penske is not entitled to

judgment as a matter of law. For the same reasons, we conclude the district court

did not abuse its discretion when it denied Penske’s motion for a new trial.

B. Award of Punitive Damages

Penske contends the district court erred in denying its motion for judgment

as a matter of law or for a new trial on the issue of punitive damages. It claims

there is no evidence to support the jury’s award of punitive damages. This court 
-15-

reviews de novo whether there exists sufficient evidence to support an award of

punitive damages. Dilley v. SuperValu, Inc., 296 F.3d 958, 966 (10th Cir. 2002). 

A court may award punitive damages to an ADA plaintiff when the plaintiff

demonstrates the defendant “engaged in a discriminatory practice or

discriminatory practices with malice or with reckless indifference to the federally

protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1); see also

EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1244 (10th Cir. 1999). A

plaintiff seeking to meet this standard need not show “egregious or outrageous

discrimination independent of the employer’s state of mind.” Kolstad v. Am.

Dental Ass’n, 527 U.S. 526, 535 (1999). He must, however, demonstrate the

employer “at least discriminate[d] in the face of a perceived risk that its actions

w[ould] violate federal law.” Id. at 536. To demonstrate he is entitled to punitive

damages, a plaintiff must meet a higher standard than that required to show he is

entitled to compensatory damages. Id. at 534. For that reason, “[t]here will be

circumstances where intentional discrimination does not give rise to punitive

damages liability.” Id. at 536. 

LeVelle argues a jury could conclude Penske knew it was violating his

rights under the ADA because Cooley, who worked in Penske’s human resources

department, participated in LeVelle’s termination. LeVelle argues a jury could

infer that as a human resources employee, Cooley knew federal disability law and

thus was aware Penske’s decision to terminate LeVelle might violate the ADA. 
-16-

As LeVelle points out, this court has determined a jury could conclude an

employer discriminated in the face of a perceived risk that its action would

violate federal law when the discriminating employer’s agent testified he was

familiar with the ADA’s requirements when he suspended a disabled employee. 

Wal-Mart Stores, 187 F.3d at 1246. In the instant case, however, LeVelle did not

call Cooley as a witness, and the record is devoid of evidence indicating whether

Cooley was familiar with the requirements of the ADA. Cooley’s position in

Penske’s human resources department, standing alone, is not enough to support a

reasonable inference Penske terminated LeVelle in the face of a perceived risk its

actions would violate federal law. 

LeVelle claims a number of other facts suggest Penske terminated him in

the face of a perceived risk it was violating the ADA. For example, he contends

Penske must have been aware its actions risked violating the ADA because Ward

terminated him soon after she found out about his restrictions, without making

any effort to seek updated medical information or perform an individualized

assessment of his abilities. This evidence does not suggest Penske knew

terminating LeVelle risked violating the ADA and therefore does not support

LeVelle’s claim to punitive damages. LeVelle also argues Penske must have

known terminating him risked violating the law because Ward and Cooley gave

him a letter containing a false explanation for his termination. As noted above,

LeVelle presented no evidence to suggest Cooley was familiar with the
-17-

requirements of the ADA. Similarly, Ward gave unrebutted testimony that she

had never received training in ADA compliance. Without any evidence to suggest

Cooley or Ward was familiar with the requirements of the ADA, the termination

letter they gave to LeVelle, standing alone, does not permit the reasonable

inference that Penske knew its actions risked violating the law. Finally, LeVelle

asserts Penske’s conduct in terminating him evidenced malicious disregard of his

federal rights. The record does not substantiate LeVelle’s claim, and we find

LeVelle’s argument unpersuasive.

After reviewing the record on appeal, we conclude LeVelle failed to present

evidence that would allow a jury to find Penske discriminated in the face of a

perceived risk its conduct would violate the ADA. Accordingly, the district court

erred when it denied Penske’s motion for judgment as a matter of law on the issue

of punitive damages.

C. Award of Attorneys’ Fees

Penske contends the district court’s award of attorneys’ fees to LeVelle was

excessive and must be substantially reduced. This court reviews a district court’s

award of attorneys’ fees for abuse of discretion, although the “legal analysis

underpinning the fee award is reviewed de novo.” Praseuth v. Rubbermaid, Inc.,

406 F.3d 1245, 1257 (10th Cir. 2005). We conduct our review with knowledge

that “[t]he district court has an inherent advantage in passing on a fee request

given its familiarity with the proceedings below.” Id. “Unless district courts are
-18-

specific in their reasons for awarding attorneys’ fees,” however, “we have no

adequate basis upon which to review such awards.” Wolfe ex. rel Joseph A. v.

N.M. Dep’t of Human Servs., 28 F.3d 1056, 1061 (10th Cir. 1994).

“A party who prevails on an ADA claim is permitted recovery of attorneys’

fees, costs and expenses.” Praseuth, 406 F.3d at 1257. As the prevailing party,

LeVelle requested attorneys’ fees in the amount of $111,949.50 and an

enhancement in the amount of $32,628.84. Penske conceded LeVelle was entitled

to attorneys’ fees, but argued the court should award him less than the amount he

requested. It argued LeVelle was not entitled to the full amount he claimed

because, inter alia, LeVelle did not prevail on his race discrimination and

wrongful discharge claims, he did not need two attorneys at trial, certain of his

expenditures were excessive, and he was not entitled to any enhancement of fees.

The district court awarded LeVelle attorneys’ fees in the amount of

$111,949.50, which was the exact lodestar amount presented by LeVelle. In

making its award, however, the district court indicated it reduced the lodestar and

added an enhancement in arriving at $111,949.50. The court stated its award was 

based in part on an offset between a reduction in fees for limited

inefficiencies, some vague billing entries and the lack of success on

two of the plaintiff’s claims balanced against a limited enhancement

of allowable fees that is justified here. Implicit in the award is the

reasonableness of the hourly rates sought by plaintiff’s counsel.

LeVelle v. Penske Logistics, No. 02-F-2220 (D. Colo. April 18, 2005) (Orders On

Post-Trial Motions). 
-19-

On appeal, Penske claims the district court abused its discretion by

awarding excessive attorneys’ fees. Without a more particularized explanation of

the reductions and enhancements found by the district court, however, we cannot

determine whether the district court abused its discretion. See, e.g., Bartlett v.

Martin Marietta Operations Support, Inc. Life Ins. Plan, 38 F.3d 514, 519 (10th

Cir. 1994) (concluding the district court did not sufficiently explain its award of

attorney’s fees). This court therefore remands the district court’s order on

attorneys’ fees for more detailed findings. LeVelle’s motion for leave to file a

sur-reply is granted.

IV. Conclusion

For the foregoing reasons, this court affirms the district court’s denial of

Penske’s post-trial motion in part, vacates the district court’s award of punitive

damages, and remands for further proceedings not inconsistent with this opinion.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge