United States District Court, D. Colorado
ORDER DENYING PLAINTIFFS' MOTION FOR NEW
CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' Motion for a
New Trial. (Doc. # 299.) For the reasons outlined below, the
Court denies the motion.
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 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.)
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.)
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.
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.)
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,
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
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.
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.”)
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.
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.”)
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;
(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).
Introduction of Safety-Related Evidence at Trial
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
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,  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.)
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
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.)
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?
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.)
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'
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 ...