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Equal Employment Opportunity Commission v. JetStream Ground Services, Inc.

United States District Court, D. Colorado

November 3, 2016

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
JETSTREAM GROUND SERVICES, INC., Defendant. SAFIA ABDULLE ALI, SAHRA BASHI ABDIRAHMAN, HANA BOKKU, SADIYO HASSAN JAMA, and SAIDA WARSAME, a/k/a AMINO WARSAME, Plaintiff Intervenors,

          ORDER DENYING PLAINTIFFS' MOTION FOR NEW TRIAL

          CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiffs' Motion for a New Trial. (Doc. # 299.) For the reasons outlined below, the Court denies the motion.

         I. BACKGROUND

         Plaintiffs, [1] five Muslim females who had previously worked as cabin cleaners for Airserv, a United Airlines subcontractor, applied for, and were denied, cabin cleaning positions with Defendant JetStream Ground Services, Inc. (JetStream), when JetStream assumed Airserv's subcontract for United Airlines. (Id. at 4.) Plaintiffs brought this Title VII suit, alleging that JetStream refused to hire them for discriminatory reasons after they requested to cover their heads with a hijab[2] and wear long skirts for religious purposes. (Doc. # 1.) Plaintiffs also alleged that JetStream retaliated against employees who wore hijabs and against applicants for engaging in protected activity in seeking a religious accommodation for their clothing and/or for complaining about discrimination. (Id.)

         On summary judgment, the Court ruled that Plaintiffs had met their burden to show that hijabs that were tucked into a shirt and secured to an employee's head presented no safety problems; accordingly, as a matter of law, it held that accommodating such hijabs posed no “undue hardship” for Jetstream. (Doc. # 184 at 54-58.) However, the Court also found that Jetstream had presented sufficient evidence to create a disputed issue of fact as to whether it would pose an “undue hardship” for JetStream to permit its cabin cleaners to wear long skirts while working. (Id.)

         On January 21 and 22, 2016, Plaintiffs filed two motions (Doc. ## 192 and 193) to exclude under Fed.R.Civ.P. 702 the expert opinions of Matthew Lykins and Dr. Nancy Grugle, both of whom were retained by Defendants to opine about the dangers of wearing loose clothing, including “long, loose” skirts while working as cabin cleaners and the reasonableness of JetStream's conduct in restricting such clothing. On February 26, 2016, prior to any response being filed by Defendants to these motions, the parties submitted a Joint Motion for Leave to File Proposed Amended Final Pretrial Order and Withdraw EEOC's Fed.R.Evid. 702 Motions to Excluded the Opinions of Two of Defendant's Experts [Dkt. Nos. 192 & 193]. In this joint motion, Plaintiffs indicated that they were withdrawing their skirt accommodation claims and sex-plus-religion discrimination claims, leaving only their hijab accommodation claims for trial. (Doc. # 206 at 3.) The parties also agreed to not call those experts who were going to testify regarding the safety of wearing skirts (rather than pants) when walking up and down jetway stairs and in performing cabin cleaning work. (Id.)

         On April 29, 2016, after a fourteen-day jury trial, in accordance with the verdict of the jury, this Court entered final judgment in favor of JetStream and against Plaintiff EEOC and Intervenor Plaintiffs. (Doc. # 287.)

         Plaintiffs bring the instant motion under Rules 59 and 60 of the Federal Rules of Civil Procedure, the Court's inherent powers, and the plain error doctrine. (Doc. # 299 at 1.) They assert that a new trial is justified for a host of reasons, including:

a) that evidence regarding safety hazards was confusing and distracting to the jury, and was designed to incite juror's fear and prejudice of Muslims;
b) new evidence was disclosed at trial;
c) defense counsel committed misconduct throughout the trial;
d) the Court erred in denying sanctions for the destruction of evidence;
e) the jury was tainted by anti-Muslim bias and the Court erred in deciding not to allow the Plaintiffs to use a juror questionnaire prior to trial and in denying Plaintiffs' motion to strike two jurors for cause.

         II. ANALYSIS

         A. LEGAL STANDARD

         1. Rule 59 Under Rule 59(a)(1)(A) of the Federal Rules of Civil Procedure, the Court may, Aon motion, grant a new trial on all or some of the issues . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.@ The decision to grant a motion for a new trial pursuant to Rule 59 is committed to the trial court's sound discretion. Sanjuan v. IBP, Inc., 160 F.3d 1291, 1296 (10th Cir. 1998). Nevertheless, a motion for new trial “is not regarded with favor and should only be granted with great caution.” United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991); see also Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure (hereinafter “FPP”) § 2805 (quoting Fed.R.Civ.P. 61) (emphasis added) (“The importance of Rule 61 in its application to motions for a new trial cannot be overlooked. It provides specifically that ‘unless justice requires otherwise, ' no error ‘is ground[s] for granting a new trial' . . . It further admonishes the courts to ‘disregard all errors and defects that do not affect any party's substantial rights.' Thus, it is only those errors that have caused substantial harm to the losing party that justify a new trial. Those errors that are not prejudicial do not call for relief under Rule 59.”)

         A motion under Rule 59(a) can be premised upon the argument that the verdict is against the weight of the evidence. See Anaeme v. Diagnostek, Inc ., 164 F.3d 1275, 1284 (10th Cir.1999). A motion for a new trial based on this ground presents a question of fact. Patton v. TIC United Corp., 77 F.3d 1235, 1242 (10th Cir. 1996). Although the decision to grant such a motion is within the court's discretion, “[u]nder the Seventh Amendment, the court may not substitute its judgment of the facts for that of the jury.” Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1443 (10th Cir. 1988); see also Minshall v. McGraw Hill Broadcasting Co., 323 F.3d 1273, 1279 (10th Cir. 2003) (citation and internal quotation marks omitted) (noting that, in reviewing such a motion, the Court may “not weigh the evidence, pass on the credibility of the witnesses, or substitute [its] conclusions for that of the jury”); see also Thunder Basin Coal Co. v. Sw. Pub. Serv. Co., 104 F.3d 1205, 1213 (10th Cir. 1997) (“It is the province of the jury, . . . and not that of th[e] court, to resolve conflicting evidence and to appraise credibility. The jury has the power to accept or reject any particular evidence presented. Thus, the mere existence of contrary evidence does not itself undermine the jury's findings as long as sufficient other evidence supports the findings.”). Additionally, “[w]here a new trial motion asserts that the jury verdict is not supported by the evidence, the verdict must stand unless it is clearly, decidedly, or overwhelmingly against the weight of the evidence.” Anaeme, 164 F.3d at1284 (emphasis added) (internal quotation marks and citations omitted); see also Skinner, 859 F.2d at 1443; FPP § 2806 (noting that, in considering a motion for a new trial based on the weight of the evidence, “a decent respect for the collective wisdom of the jury, and for the function entrusted to it in our system, certainly suggests that in most cases the judge should accept the findings of the jury, regardless of the judge's own doubts in the matter”). The burden of proof is on the moving party, see Domann v. Vigil, 261 F.3d 980, 983 (10th Cir. 2001), and the Court considers the record evidence in the light most favorable to the nonmoving party, see Anaeme, 164 F.3d at 1284.

         Additionally, in order to secure a new trial based on allegedly improper evidentiary rulings, a moving party must show that the evidentiary rulings were both clearly erroneous and so prejudicial that “it can be reasonably concluded that with or without such evidence, there would have been a contrary result.” Hinds v. General Motors Corp., 988 F.2d 1039, 1049 (10th Cir. 1993); see also Tanberg v. Sholtis, 401 F.3d 1151, 1162 (10th Cir. 2005) (“Remand for a new trial is a blunt instrument with which to address the many and multifarious evidentiary rulings made during any trial; a deferential standard of review coupled with the distinction between harmless and reversible error ensures that that instrument will be wielded only as necessary to protect litigants' rights to a fundamentally fair adjudication of their disputes.”)

         2. Rule 60

         Rule 60(b) of the Federal Rules of Civil Procedure provides that

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). ARelief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances.@ Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., Inc., 909 F.2d 1437, 1440 (10th Cir. 1990). The decision whether to grant relief pursuant to Rule 60(b) lies within the sound discretion of the trial court. Malandris v. Merrill Lynch, Pierce, Fenner & Smith Inc., 703 F.2d 1152, 1181 (10th Cir. 1981).

         B. APPLICATION

         1. The Introduction of Safety-Related Evidence at Trial

         Plaintiffs moved in limine to exclude evidence of safety hazards and safety issues at the airport, “subject to a narrow exception for the testimony from JetStream co-owner David Norris factually describing his personal interactions with Plaintiff-Intervenors and his mental impressions at that time, as described in his deposition testimony on those matters.”

         Specifically, Plaintiffs argued that

This Court previously held as a matter of law that a hijab accommodation would not create an ‘undue hardship' for Defendant. Because Plaintiffs are not pursuing their skirt accommodation claim at trial, [3] evidence regarding the aggrieved individuals' religious practice of wearing skirts, and evidence of clothing-related injuries (including any perceived safety risks associated with skirts), is no longer of any consequence in determining any part of this action, and therefore is neither relevant nor admissible under Fed.R.Evid. 401 and 402.

(Id. at 2) (emphasis added). Defendant opposed the motion, and based on Defendant's representations that Mr. Norris would testify that he had safety concerns about the women's skirts, the Court deferred decision on Plaintiffs' motion until trial. (Id.)

         During defense counsel's opening statement, he stated:

MR. DEENEY: . . . And I just want to express something that should be obvious and that is that nobody in JetStream's position was concerned about head dress. The issue has always been, and you will hear it from Mr. Dave Norris, all of the way through the ranks. . . The question was, from the inception, the free flowing skirts. And that is not an issue before you, because the EEOC and Ms. King, after many years of litigation about this, withdraw those . . .
MS. HALPERN: Your Honor, we object. Sorry, that skirt case has been withdrawn.
THE COURT: If he will have a witness that testifies that is what it is, then that is what it is.
MR. DEENY: That is exactly what I was saying, Your Honor.
THE COURT: All right. Overruled.

(Doc. # 299-16 at 1:16-25, 2:1-7) (emphasis added). At trial, Mr. Norris testified that he did have safety concerns about the Plaintiffs' skirts when he met with them, but no such concerns regarding their hijabs:

Q. And you claim that your response to [the Plaintiff-applicants] was that you absolutely had no problem with the scarf, that you could make allowances for that, and maybe even put a JetStream logo on it, is that correct?
A. That is what I said. I said we have no issue with your headscarf whatsoever, but the long skirts, we do. As a safety hazard.
Q. And then you said as to your skirt, I don't know, we will have to see; correct?
A. Yeah, I said we might have an issue with that, but I didn't make the determination right then and there. I said we will probably have an issue with that. I said we will have to see. Wait and see. HR department everybody else would get involved and make the ruling

(Doc. # 314-22 at 44:16-25, 45:1-4.)

         Subsequently, Mr. Norris testified regarding his decision to place Plaintiffs' applications in the so-called “B” pile, rather than the “A” pile (the latter, he claimed, would have received a job offer/interview):

Q. One more question, Mr. Norris. It is your position that the clothing of the women who gave you their applications in the AirServe break room had nothing to do with the pile that you actually put their application in; is that correct?
A. That is correct.
***
Q. I want to clarify something in your testimony with regard to the women in the AirServe break room that you spoke to. Now, you indicated that you said you didn't have a problem with their headscarves but you did have a problem with their skirts; correct?
A. Correct.
Q. But then you indicated that your decision to put them in the B pile had nothing to do with their clothing, correct?
A. That's correct.

(Doc. # 299-15 at 44:7-12; 139:16-25.)

         Plaintiffs also point to testimony from JetStream's Director of Station Operations, Frank Austin, who was asked general questions about his background in “aviation safety, ” and also stated as follows:

Q: You mentioned your background in safety. Is [sic] there any safety related aspects to uniforms?
A: Loose clothing around airplanes is a huge issue. Safety concern. Anything loose, because of loading, unloading bags, that could fall into the conveyer belt. Going up and down the stairs and the jetway, in and out of a motorized equipment. So if you have loose fitting clothing, it just increases the risk of some type of injury or accident.

(Doc. # 299-11 at 116:21-25, 117:1-4.) Plaintiffs' counsel did not object to this line of questioning. Mr. Austin also testified about safety dangers occurring on jetway stairs, without objection from Plaintiffs' counsel:[4]

Q. And we heard testimony earlier today that [the cabin cleaning employees] may be going up and down the stairs, was it 30 or 60 times a day? Does that sound right for you?
A. At least twice per aircraft. If they work 10 airplanes 12 airplanes a day, 35, 30 times possibly.
Q. So employees are going up and down the stairs carrying supplies 20 or 30 times a shift?
A. Yes, sir.
Q. Are there any safety rules or procedures associated with using the jetway ...

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