Eleventh Circuit Court of Appeals 
Weekly Update
 May 12, 2019
Published Cases
 
Case No. 17-13073
April 29, 2019

The district court entered a judgment against the employee on her FLSA overtime claim after a bench trial and denied her motion requesting relief under Rule 59 and Rule 60. The Eleventh Circuit affirmed, ruling in part that the testimony of an impeachment witness, who was unavailable during the trial, was not newly discovered evidence for purposes of a new trial under Rule 59. 

The parties offered two very different stories at the trial. The employee, a paralegal, alleged she worked about 70 hours a week. The employer, on the other hand, testified she never worked more than 40 hours, reasoning that her predecessor never worked overtime, her successor never worked overtime, and his practice was slow during her employment. The district court resolved the conflicts in the evidence in favor of the employer, primarily because it matched the evidence of other employees, including the bookkeeper and the employee’s successor. The employee’s predecessor was the unavailable witness.

On appeal, the employee argued the district court abused its discretion by denying relief under Rule 59 because, among other things, her predecessor was now available and would “directly rebut” the employer. The Court rejected the contention that the predecessor’s testimony was “newly discovered evidence” and further rejected the employee’s contention that the testimony was indispensable. The Court highlighted the fact that the plaintiff had never asked the district court for a continuance, which it considered a strategic choice that backfired on her. The Court further explained that adopting the plaintiff’s position would incentivize parties to manipulate Rule 59 by “rolling the dice” and trying their case without a witness that they knew about at trial, and, then using that witness, if they lost, to ask for a second bite at the apple.
Unpublished Cases
 
Case No. 18-10476
April 29, 2019

Hudson appealed the district court’s grant of summary judgment in favor of the employer on her claim that the employer discriminated against her in violation of the ADA, by failing to accommodate her back injury and asthma. The Eleventh Circuit affirmed. 

Hudson worked for Tyson as a tray packer for one week before she began complaining of back pain. After her first doctor placed restrictions on the amount of time Hudson could stand which Tyson could not accommodate, Hudson saw a second doctor who removed the restrictions, at her request, and noted that she requested to be assigned two floor mats and a stand while working. Hudson also requested an inhaler, though she had not previously required one. Tyson made mats and stands available to all employees; however, it was unable to assign Hudson a specific mat and stand due to insufficient supplies. Hudson quit the day after a line leader instructed her to wait 10 minutes, until her lunch break, in response to her request to leave her station to use an inhaler. 

The Court agreed with the district court that neither Hudson’s back injuries nor her asthma amounted to disabilities under the ADA. In analyzing her claim, the Court walked through the three-step approach set forth in Bragdon v. Abbot . As to her back injury, the Court highlighted that Hudson’s first doctor did not provide a medical diagnosis and her second doctor removed her restrictions after determining her back was “normal.” The Court then acknowledged Hudson’s subjective complaints may have demonstrated the existence of physical impairment. But, the Court opined that an impairment does not substantially limit the ability to work because it prevents a person from performing either a specific job or a narrow range of jobs. The Court concluded Hudson could not claim she was substantially limited in the major life activity of working and that she, therefore, failed to prove her back injury was a disability. Hudson’s claim that her asthma amounted to a disability failed because she did not specify any major life activity affected by her condition.

The Court further concluded the employer did not fail to reasonably accommodate Hudson, even if the conditions were considered disabilities. The Court highlighted that Hudson did not identify health restrictions on her post-offer health assessment. Her request for her own mat and stand was reasonably refused given that she did not have a known disability, had not identified a work restriction, and while her second doctor recommended the use of the items, he did not conclude she could not work without them. The Court reiterated that an employer “is not required to accommodate an employee in any manner in which that employee desires” and that reasonable accommodations are determined by the circumstances.

As to her asthma claim, the Court opined that even if her one request to use her inhaler was a request for a reasonable accommodation, the request was denied only for a short period, she did not pursue the matter further, and she was responsible for the breakdown in the interactive process because she abruptly quit the next day. Consequently, her claim failed because she never identified an accommodation or an unreasonable failure on the part of Tyson. Similarly, her constructive discharge claim failed because she denied the employer the opportunity to engage in the interactive process.  

There were two cases this past week not directly involving labor or employment law but which might be of interest.

Cephus v. CSX Transporation, Inc. , Case No. 18-10533 (April 29, 2019), is a FELA case in which the Court analyzed the sufficiency of evidence supporting an award of future lost income damages, finding the jury verdict excessive, as well as a discussion of preservation of error regarding contentions of improper argument by counsel. 

U.S. v. Powell , Case No. 18-13718 (April 29, 2019) involved an appeal of a wire-fraud conviction involving an employment-related scam. The defendant advertised job openings in legitimate job-recruitment websites. Applicants were guaranteed positions but told they must first complete required “OSHA training” provided by the defendant which the applicants had to pay for themselves. In reality, the positions did not exist.  

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The Eleventh Circuit Weekly Update was prepared by Reemployment Assistance Appeals Commission staff: case summaries by Chairman Frank E. Brown, and Appellate Counsel Cristina A. Velez and Katie E. Sabo; editing by Deputy General Counsel and Chief Appellate Attorney Amanda L. Neff; research and layout by Research Attorney Lesley Blanton.