United States District Court, District of Colorado
ORDER DENYING DEFENDANT’S MOTION FOR STAY PENDING APPEAL
Christine M. Arguello United States District Judge
This case was tried to a jury, which found that Defendant Beverage Distributors Company, LLC (“Beverage Distributors”) discriminated against Mike Sungaila when it withdrew an offer of employment upon learning that he was legally blind. Beverage Distributors now asks this Court to postpone until the Tenth Circuit rules on the appeal, the requirement that Beverage Distributors hire a consultant to provide training and other remedial services to its employees. (Doc. # 137.) Because Beverage Distributors has not met its burden, the Court declines to allow postponement of hiring a consultant.
The U.S. Equal Employment Opportunity Commission (“EEOC”) brought this enforcement action against Beverage Distributors on behalf of Mr. Sungaila. This case was tried to a jury, and, on April 12, 2013, the jury returned a verdict finding that Beverage Distributors discriminated against Mr. Sungaila in violation of the Americans with Disabilities Act (“ADA”) when it withdrew its conditional offer of employment as a Night Warehouse Loader upon being informed that he is legally blind. The jury awarded back pay in the amount of $132, 347.00, but reduced that award by $102, 803.75, because it determined that Beverage Distributors proved by a preponderance that Mr. Sungaila failed to make reasonable efforts to reduce his damages for loss of back pay. (Doc. # 96.)
After considering post-trial motions, this Court reinstated the full jury award, finding that Beverage Distributors failed to present evidence to support the jury’s reduction of the back pay damages award. This Court also awarded various forms of injunctive relief, including, as relevant here, that Beverage Distributors reinstate Mr. Sungaila to the position of Night Warehouse Loader and hire an outside consultant to provide employee training and assistance in revisions to its policies, updates to its job postings, notice posting, and reporting and compliance review. (Doc. # 116.)
II. LAW AND ANALYSIS
In the instant motion, Beverage Distributors requests, and the EEOC does not oppose, that this Court stay payment of the monetary judgment and reinstatement of Mr. Sungaila. Accordingly, this Court grants these requests and orders that Beverage Distributors post a supersedeas bond in the amount of $132, 347.00. See Fed. R. Civ. P. 62(d); Miami Int’l Realty Co. v. Paynter, 807 F.2d 871, 873 (10th Cir. 1986) (typically, the amount of the bond will equal the amount of the judgment). Beverage Distributors also requests that this Court stay its order that Beverage Distributors hire an outside consultant to provide employee training. For the reasons set forth below, the Court denies this request.
A. STANDARD OF REVIEW
Under Fed.R.Civ.P. 62(c), this Court may “suspend, modify, restore, or grant an injunction on terms . . . that secure the opposing party's rights” while an appeal is pending from a final judgment that grants an injunction. The purpose of a stay is to preserve the status quo pending appellate determination. McClendon v. City of Albuquerque, 79 F.3d 1014, 1020 (10th Cir.1996). “A stay is an intrusion into the ordinary processes of administration and judicial review, and accordingly is not a matter of right, even if irreparable injury might otherwise result to the appellant.” Nken v. Holder, 556 U.S. 418, 427 (2009) (internal citations and quotation marks omitted). It is in this Court’s discretion to grant a stay. Id. at 433. The party requesting the stay, here Beverage Distributors, “bears the burden of showing that the circumstances justify an exercise of that discretion.” Id. at 433-34.
When considering a stay pending appeal, this Court must address the following factors: (1) the likelihood of success on appeal, (2) the threat of irreparable harm absent a stay, (3) the absence of harm to opposing parties if the stay is granted, and (4) any risk of harm to the public interest. F.T.C. v. Mainstream Mktg. Servs., Inc., 345 F.3d 850, 852 (10th Cir. 2003); Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001). Where the moving party has established that the three “harm” factors tip decidedly in its favor, the “probability of success” requirement is somewhat relaxed, and is satisfied by showing questions going to the merits so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation. Mainstream Mktg Serv., Inc., 345 F.3d at 852-53 (citations omitted). Thus, the Court will begin by addressing the three “harm” factors.
1. Threat Of Irreparable Harm Absent A Stay
Beverage Distributors argues that it will suffer irreparable harm in the absence of a stay because “even if successful on appeal, [it] will not be able to recoup the lost amount paid to a consultant, or the time and effort spent reporting its compliance to [this Court].” (Doc. # 137 at 9.) In applying the identical prong to determine whether to grant a preliminary injunction, the Tenth Circuit has warned, “To constitute irreparable harm, an injury must be certain, great, actual, and not theoretical. . . . It is also well settled that simple economic loss usually does not, in and of itself, constitute irreparable harm; such losses are compensable by monetary damages.” Schrier v. Univ. Of Co., 427 F.3d 1253, 1267 (10th Cir. 2005) (citing Heideman v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003)). Beverage Distributors fails to state, or even ...