Kramer v. Tosco Corp.
Kramer v. Tosco Corp.
Opinion of the Court
MEMORANDUM
Appellant Ronald L. Kramer appeals the district court’s judgment entered following a jury verdict in favor of Appellee Tosco Corporation
Kramer contends that the district court erred by giving the following jury instruction: “[P]laintiff must prove by a preponderance of the evidence what the essential functions of the head operator position were at the time he was terminated, and that he was able to perform all of these essential functions with or without a reasonable accommodation.” Although Kramer waited until the morning of the last day of testimony to raise his objection in the district court, he did not waive the objection to this instruction because he made the objection prior to the close of evidence. See Fed.R.Civ.P. 51(a)(1), (c)(2)(A).
We need not and do not decide whether it was error to place on Kramer the burden to define the essential functions of the Head Operator position and to establish that he could perform those functions. Even if there was error, it was harmless. See Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1087 (9th Cir. 2005).
In civil cases, reversal is not required if “the error is more probably than not harmless.” Swinton v. Potomac Corp., 270 F.3d 794, 805 (9th Cir. 2001). In addition, we will not vacate a judgment when the party benefitting from the instructional error clearly satisfied its requisite burden of proof. See Modeler v. Multnomah County, 140 F.3d 808, 813 (9th Cir. 1998); Oliver v. United States, 921 F.2d 916, 919 (9th Cir. 1990). A review of the evidence adduced at trial shows that Tosco clearly established that the rotating shift, tank farm duties, and emergency response responsibilities were essential functions of the Head Operator position, job-related, and consistent with business necessity.
In addition, Tosco documented the extensive disruptions to its business operations that would occur if the head operator were not able to perform tank farm work during a time when the terminal operator is not on duty or is occupied doing other work. See 29 C.F.R. § 1630.2(n)(3)(iv). Tosco also adduced considerable evidence which detailed the catastrophic damage to the environment and to human health which could occur if an oil spill occurred during the four hour window when terminal operators are not on duty and the head operator would be physically incapable of assisting in the emergency response. Id.
We also conclude that the district court did not err by refusing to give Kramer’s proposed jury instruction on the interactive process that would have stated, in part: “If you find that the defendant failed to engage in an interactive process with plaintiff, you may consider that as evidence of a failure to reasonably accommodate plaintiff.” While the jury may consider whether the range of possible reasonable accommodations extends beyond those proposed when the employer fails to engage in the interactive process, see Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1115-16 (9th Cir. 2000), rev’d and remanded on other grounds, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002), failure to engage in that process is not itself evidence of failure to reasonably accommodate. There must first exist a reasonable accommodation that will enable the employee to perform the essential functions of the position. See Humphrey v. Mem’l Hasps. Ass’n, 239 F.3d 1128, 1137-38 (9th Cir. 2001) (“Employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible.” (emphasis added)).
However, “[i]f a disabled person cannot perform a job’s ‘essential functions’ (even with a reasonable accommodation), then the ADA’s employment protections do not apply.” Cripe, 261 F.3d at 884. Kramer’s proposed instruction would have misled the jury into erroneously believing that there existed an independent cause of action for failing to engage in the interactive process. Tosco is not liable because, as the jury found, Kramer was not a qualified individual, with or without reasonable accommodation.
The district court did not abuse its discretion by excluding the testimony of Randy Canady. See Geurin v. Winston Indus., Inc., 316 F.3d 879, 882 (9th Cir. 2002). Canady’s position as a C Operator for the Tesoro refinery was markedly different from Kramer’s position as a Head Operator at a bulk terminal that received petroleum shipments via land, pipeline, and water. Canady testified that the C Operators worked only in the control room and that there had never been any outdoor physical components to his job, whereas Head Operators at Tosco had always performed tank farm and emergency response duties that require full mobility. While the EEOC regulations governing what constitutes evidence of essential functions allow consideration of the work experience of employees performing the same or similar jobs, the regulations do not suggest that the work experience of employees performing other jobs at different facilities is relevant to this inquiry. See 29 C.F.R. § 1630.2(n)(3)(vi),(vii).
In addition, many of the pumps and valves at the Tesoro facility were automated and had remote shutdown switches, whereas very few of the valves at the Tosco facility were motorized. Because the Tesoro facility had already been automated prior to Canady’s accident, Canady’s testimony would have little bearing on what modifications would be reasonable to accommodate Kramer’s disability. Furthermore, even if we were to conclude that the district court abused its discretion by excluding Canady’s testimony, Kramer has not shown prejudice — that the exclusion of Canady’s testimony more probably than not tainted the jury’s verdict. McEuin v. Crown Equip. Corp., 328 F.3d 1028, 1032 (9th Cir. 2003).
Finally, we reject Kramer’s contention that the jury verdict is not supported by “substantial evidence” and that the district court abused its discretion in denying his Federal Rule of Civil Procedure 59(a) motion for a new trial on this ground. See Watec Co., Ltd. v. Liu, 403 F.3d 645, 651 n. 5 (9th Cir. 2005). Kramer faces a high bar in asking us to reverse the district court’s ruling because “[a] district court’s denial of a motion for a new trial after consideration of all the evidence is ‘virtually unassailable’ and is subject to reversal only if there is a complete absence of evidence supporting the jury’s verdict.” Freund v. Nycomed Amersham, 347 F.3d 752, 764 n. 13 (9th Cir. 2003) (citing Saman v. Robbins, 173 F.3d 1150, 1154 n. 4 (9th Cir. 1999)). There is no such absence of evidence here — Tosco adduced a written job description and extensive testimony of super
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. After Kramer filed suit, Tosco Corp. was acquired by Phillips Petroleum, which then merged with Conoco, Inc., to form ConocoPhillips Co. For ease of reference, we refer to Appellee as Tosco.
. Both parties agree that Oregon state law on disability discrimination is to be construed as consistent with the ADA. See Or.Rev.Stat. § 659A.139.
. Although Tosco asserted an "undue hardship” defense at trial rather than a "business necessity” defense, the concepts are closely related. Because Tosco argued the relevant
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