Table of Contents

Table of Authorities........................................................................... iii

Statement of Related Cases............................................................... 1

Statement of the Issues...................................................................... 1

Statement of Facts............................................................................... 1

Jury Verdict and Post-Verdict District Court Ruling................... 13

Summary of the Argument.............................................................. 16

Argument............................................................................................ 17

I. The Court Correctly Instructed the Jury to Assess the

Objective Reasonableness of BDC’s Determination

that Sungaila Posed a Direct Threat............................... 17

A. Standard of Review...................................................... 19

B. The Direct Threat Instruction Directed the Jury to

Assess the Objective Reasonableness of BDC’s

Direct Threat Determination...................................... 21

C. If the Court’s Rejection of BDC’s Request for

Additional References to Objective Reasonableness

was Error, such Error was Harmless......................... 28

II. The Court Correctly Determined that the Evidence

was Insufficient to Support BDC’s Failure-To-Mitigate

Defense.............................................................................. 32

III. The Court’s Award of a Tax Penalty Offset was

Appropriate Under the Circumstances of this Case.. 51

Conclusion.......................................................................................... 64

Statement Regarding Oral Argument............................................ 64

Certificate of Compliance and Digital Submission

Certificate of Service

Table of Authorities

Cases Page[s]

Aguinaga v. United Food & Commercial Workers Int’l Union,

993 F.2d 1463 (10th Cir. 1993).......................... 35, 36, 37, 44

Barrett v. Salt Lake Cnty.,

754 F.3d. 864 (10th Cir. 2014)............................................... 54

Blim v. W. Elec. Co.,

731 F.2d 1473 (10th Cir. 1984)....................................... 57, 59

Brodie v. Gen. Chem. Corp.,

112 F.3d 440 (10th Cir. 1997)................................................ 20

Brown v. Reardon,

770 F.2d 896 (10th Cir. 1985)................................................ 46

Chauffeurs, Teamsters, and Helpers Local No. 391 v. Terry,

494 U.S. 558 (1990)................................................................. 62

Coleman v. City of Omaha,

714 F.2d 804 (8th Cir. 1983).................................................. 35

Considine v. Newspaper Agency Corp.,

43 F.3d 1349 (10th Cir. 1994)................................................ 19

David v. Sirius Computer Solutions, Inc.,

No. 11-203, 2014 U.S. Dist. LEXIS 29555 (D. Colo.

Mar. 7, 2014)............................................................................ 61

Dilley v. SuperValu, Inc.,

296 F.3d 958 (10th Cir. 2002)................................................ 54

EEOC v. RadioShack Corp.,

No. 10-2365, 2012 WL 6090283 (D. Colo.

Dec. 6, 2012)................................................................ 56, 57, 59

EEOC v. Sandia Corp.,

639 F.2d 600 (10th Cir. 1980)........................................ passim

Eshelman v. Agere Systems, Inc.,

554 F.3d 426 (3d Cir. 2009)............................................. 55, 56

Fitzgerald v. Sirloin Stockade, Inc.,

624 F.2d 945 (10th Cir. 1980)................................................ 54

Franks v. Bowman Transp. Co.,

424 U.S. 747 (1976)................................................................. 53

Frederick v. Swift Transp. Co.,

616 F.3d 1074 (10th Cir. 2010)............................................. 19

Garcia v. Wal-Mart Stores, Inc.,

209 F.3d 1170 (10th Cir. 2000)............................................. 35

Goodman v. Fort Howard Corp.,

30 F.3d 141, 1994 WL 371528 (10th Cir. 1994)..... 37, 43, 44

Green v. Denver & Rio Grande W. R.R. Co.,

59 F.3d 1029 (10th Cir. 1995)......................................... 63, 64

In re Continental Airlines,

125 F.3d 120 (3d Cir. 1997)................................................... 55

Jarvis v. Potter,

500 F.3d 1113 (10th Cir. 2007).................... 21, 22, 23, 24, 25

Justice v. Crown Cork & Seal Co.,

527 F.3d 1080 (10th Cir. 2008)....................................... 21, 23

Kelley v. City of Albuquerque,

No. 3-507, 2006 U.S. Dist. LEXIS 28785 (D.N.M.

Mar. 31, 2006).................................................................... 60, 61

Lederman v. Frontier Fire Prot., Inc.,

685 F.3d 1151 (10th Cir. 2012) ..................................... passim

Lusby v. T.G. & Y. Stores, Inc.,

796 F.2d 1307 (10th Cir. 1986)............................................. 20

Malone v. Potter,

No. 07-5530, 2010 WL 330252 (C.D. Cal.

Jan. 15, 2010).................................................................... 49, 50

McClure v. Indep. Sch. Dist. No. 16,

228 F.3d 1205 (10th Cir. 2000)............................................. 34

Miller v. Eby Realty Grp., LLC,

396 F.3d 1105 (10th Cir. 2005)............................................. 39

Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc.,

413 F.3d 1163 (10th Cir. 2005)....................................... 30, 60

Sears v. Atchison, Topeka & Santa Fe Railway Co.,

749 F.2d 1451 (10th Cir. 1984)................................. 56, 58, 59

Sellers v. Delgado Cmty. Coll.,

839 F.2d 1132 (5th Cir. 1988)................................................ 40

Shikles v. Sprint/United Mgmt. Co.,

426 F.3d 1304 (10th Cir. 2005)............................................. 33

Sias v. City Demonstration Agency,

588 F.2d 692 (9th Cir. 1978).................................................. 34

Steckler v. United States,

549 F.2d 1372 (10th Cir. 1977)............................................. 64

Stone v. D.A. & S. Oil Well Servicing, Inc.,

624 F.2d 142 (10th Cir. 1980)................................................ 40

United States v. Barrera-Gonzales,

952 F.2d 1269 (10th Cir. 1992)............................................. 19

United States v. Brooks,

736 F.3d 921 (10th Cir. 2013)................................................ 31

United States v. Laughlin,

26 F.3d 1523 (10th Cir. 1994)................................................ 20

United States v. Lee Way Motor Freight, Inc.,

625 F.2d 918 (10th Cir. 1979)......................................... 33, 34

United States v. Suntar Roofing, Inc.,

897 F.2d 469 (10th Cir. 1990)................................................ 20

Webb v. ABF Freight Sys., Inc.,

155 F.3d 1230 (10th Cir. 1998)....................................... 19, 20

Wilson v. Union Pac. R.R. Co.,

56 F.3d 1226 (10th Cir. 1995)................................................ 35

Wood v. Harper Hosp. Dist. No. 5,

No. 95-1404, 1998 WL 159515 (D. Kan. Mar. 30, 1998)... 45

World Wide Assoc. of Specialty Programs v. Pure, Inc.,

450 F.3d 1132 (10th Cir. 2006)....................................... 20, 28

Statutes

42 U.S.C. § 12111(3)......................................................................... 21

42 U.S.C. § 12113.............................................................................. 23

42 U.S.C. § 12113(b)................................................................... 21, 26

42 U.S.C. § 12117(a)......................................................................... 33

42 U.S.C. § 2000e-5(g)...................................................................... 33

42 U.S.C. § 2000e-5(g)(1)........................................................... 33, 53

Regulation

29 C.F.R. § 1630.2(r)...................................................... 21, 22, 23, 24

Statement of Related Cases

There are no known prior or related appeals.

Statement of the Issues

I. Where the district court instructed the jury to assess whether Beverage Distributors Company (“BDC”) had been objectively reasonable in its determination that Sungaila posed a direct threat to the safety of himself and others, did the court act within its discretion when it refused BDC’s request that the instruction make further, repetitive reference to objective reasonableness?

II. Did the district court correctly determine that BDC failed to establish its failure-to-mitigate defense as a matter of law?

III. Did the district court act within its broad authority to craft appropriate remedies when it awarded a tax penalty offset to account for the additional tax burden Sungaila faced because of the lump sum back pay award?

Statement of Facts

As a child, Mike Sungaila was diagnosed with achromatopsia, a non-progressive eye disease. Defendant/Appellant’s Appendix “(App.”) 636. As a result of this condition, Sungaila is unable to see detail “too well” from a distance. App.636. Sungaila can see better indoors than outdoors in sunlight, and has no problems with his peripheral vision. App.637.

Growing up, Sungaila was able to play soccer, baseball, and football, and was a linebacker in high school. App.638-39. Sungaila attended the Colorado Springs Deaf and Blind School, where he graduated second in his class. App.643. As an adult, Sungaila engages in hiking and fishing, and loves going to watch baseball games—and can still watch the game if he ends up seated in the “nose bleed” section. App.639-40. While Sungaila does not have a driver’s license, as a teenager he was advised by his optometrist that he would need monocular glasses and special sunlight-filtering contacts to be able to obtain a driver’s license. App.643-44.

BDC is a wholesale liquor distribution company located in Aurora, Colorado. App.784-85. The company delivers alcoholic beverages to restaurants, bars, and other establishments throughout the state. App.785. During the day, workers bring product into the warehouse, and at night they prepare the orders for delivery. App.479-80, 787.

BDC’s warehouse is well-organized, with numerous safety features including railings, safety markings in yellow, safety netting, safety gating, and safety barriers. Appellee’s Supplemental Appendix (“Supp.App.”) 24-25. The warehouse also utilizes indicator lights in different colors, similar to traffic lights. App.489. The warehouse is loud, but not so loud that employees have to wear protective earplugs or cannot hear forklifts approaching or conversations with their coworkers. Supp.App.34-35; App.799-800.

Forklifts in the warehouse are subject to safety rules. App.491. The forklifts, which are noisy, are required to honk their horns when approaching people. Supp.App.26, 33-34. Employees can also “feel” the forklifts approaching as they “thump” over cracks in the floor. App.614.

Relevant to this case are three particular warehouse jobs performed by individuals in the Night Warehouse Associate position. In the bottle line position, workers take individual bottles and repackage them into shipping containers based on submitted orders. App.430. The bottle line does not have a conveyer belt—instead, the containers are placed on rollers. App.430. Forklifts do not go into the bottle line area. App.430.

On the mezzanine level, workers label boxes of product and put them on the conveyer belt. App.429. The mezzanine is a separate area where there are no forklifts, all of the walkways have railings, and there is only one ladder. App.198, 429, 853; Supp.App.26.

Employees performing the loader position move cases of product from the conveyer belt into trucks. App.424-25. Loaders sometimes have to clean out product jams on conveyor belts, though this accounts for only five to ten percent of their responsibilities, there is always a supervisor present, and it is part of the supervisors’ duties to help clear out jams. App.837-38, 845.

Night Warehouse Associates are not required to drive forklifts or pallet jacks. App.427. Night Warehouse Associates do not all use ladders. Supp.App.31. Most employees typically stay within specific areas for their shift. Supp.App.27, 31; App.857.

Sungaila started working for BDC in 2000, as a “lumper.” App.649-50. Lumpers prepare product for delivery. App.626. In order to sort the product, lumpers must read writing on boxes of product. App.651. Sungaila did not have trouble performing this job function. App.651. In 2001, when BDC had Sungaila transfer to a temp agency with lower pay, he left BDC. App.657.

In 2003, Sungaila returned to BDC, this time as a Driver’s Helper. App.657. As a Driver’s Helper, Sungaila was given the same responsibilities as the delivery drivers, except for driving the trucks. App.765-66. This included reading labels—the same labels placed on the product by mezzanine workers. Supp.App.32.

Sungaila was a safe, effective employee who was never injured on the job, did not have any safety incidents, and received safety awards and bonuses. App.403, 675; Supp.App.16-18. Sungaila’s supervisor testified that he was never worried about Sungaila’s safety. App.605. Sungaila was praised as “one of the best” Driver’s Helpers and could “run circles around half of the drivers” currently employed by BDC. Supp.App.16.

In March 2008, BDC eliminated the Driver’s Helper position. App.596. Pieron, John Johnson (Vice President of Operations), Tom Rogers (Delivery Manager), and Curt Eby (Night Shift Manager) all encouraged Sungaila to apply for a Night Warehouse Associate position. App.412, 446, 461, 580, 594, 676. Sungaila was sure he could do the job despite his disability, as he had previously done many of the same tasks in the warehouse while working as a Driver’s Helper and Lumper. App.677.

Furthermore, the Commission’s expert witness testified that, based upon her review of Sungaila’s personnel file, medical information about Sungaila’s vision impairment, a job description for the Loader position, a tour of BDC’s warehouse, and other information, Sungaila would need very little in the form of reasonable accommodation in order safely to perform the Night Warehouse Associate position. Supp.App. 19-23, 29. The expert offered that Sungaila could have been accommodated by wearing glasses and a brightly colored vest to alert others to his presence, and having others perform whatever work there was to be done on ladders—and the company already had other employees who could perform such ladder work. Supp.App.29-31. The expert also offered that Sungaila could have been accommodated by BDC assigning him to work in the mezzanine or the bottle line—places “where he is not exposed to the things [BDC was] worried about.” Supp.App.31. The expert also offered that Sungaila could have performed the Loader position “without even thinking about it.” Supp.App.31.

BDC required only a short interview before making Sungaila a conditional job offer. App.678-79. While Sungaila was exempted from the standard pre-employment physical agility test, Sungaila was required to undergo a pre-employment medical examination. App.414, 418; Supp.App.28-29.

Dr. Sanidas at Health One performed Sungaila’s examination. App.419, 499, 518. Dr. Sanidas testified that in his standard examination, he asks the patient a number of questions, including whether the patient has any disabilities. App.530. When Dr. Sanidas asked this question of Sungaila, Sungaila responded simply that he was “legally blind.” App.530. Dr. Sanidas did not ask Sungaila any follow-up questions about his vision, and did not examine Sungaila’s visual acuity—he simply “took [Sungaila] at his word.” App.530-31.

Dr. Sanidas did not fail Sungaila on his medical exam. App.544. Instead, “the only recommendation [Dr. Sanidas had] is that [Sungaila] should have work accommodations.” App.544. Dr. Sanidas checked a box on the medical evaluation report indicating that “a medical condition exists which may be a direct threat to self or others unless reasonable accommodations are available.” App.544. (emphasis added). Dr. Sanidas also noted that Sungaila was “legally blind. Should not climb ladders. Cannot drive. Not to drive pallet jack, forklift, and avoid being in the way of these or hit by them.” App.545.

Dr. Sanidas made these recommendations without attempting to confirm Sungaila’s actual level of visual impairment, be it by examination, conversation with Sungaila’s regular doctor, or any other means. App.530-31. Moreover, prior to performing Sungaila’s exam, Dr. Sanidas could not recall if he had read a job description for the Night Warehouse Associate position, had never been to BDC’s warehouse, and did not have specific knowledge of whether BDC employees were required to climb ladders, how quickly the forklifts move, or any other specifics regarding the warehouse or its operation. App.514-16, 518.

Dr. Sanidas anticipated, as a result of his recommendation, that BDC would discuss the matter with Sungaila. App.548. Dr. Sanidas also stated in the report that “if there are any questions regarding these findings or recommendations, please call our office.” App.548. However, BDC never contacted Dr. Sanidas regarding his assessment of Sungaila. App.548.

After receiving Dr. Sanidas’ report, Pieron, Johnson, and HR Director Linda Hollman decided to withdraw Sungaila’s offer of employment, based entirely on Dr. Sanidas’ report. App.419-20. They made this decision even though none of the decisionmakers knew what “legally blind” meant, without attempting to contact Dr. Sanidas’ office to discuss his recommendation.[1] App.848. BDC also did not present Sungaila with the opportunity to provide a vision report from his own doctor—an opportunity the company had provided to other employees or applicants after undergoing a medical examination by Health One. App.407, 449, 451, 842-43, 903.

Pieron and Rogers met briefly with Sungaila to tell him that they were revoking their job offer. App.597. They told Sungaila that he was a “liability,” but did not ask questions about his vision or discuss potential accommodations. App.436, 657, 685.

A week or two later, Sungaila secured a maintenance job elsewhere. App.689-90. At his new job, Sungaila does landscaping, uses power equipment such as trimmers, and rides lawnmowers. App.691. Sungaila is also required on occasion to climb a fifty-foot ladder to hang ornaments and decorations. App.693. There was no evidence that Sungaila has been unable to perform these duties safely.

Sungaila’s starting pay in the Night Warehouse Associate position would have been $12.50 per hour, and by the time of trial that pay would have increased to $22.56 per hour. App.337, 660. Sungaila’s maintenance job had a starting pay of $9.50 per hour and at the time of trial his hourly wage was $10.30 per hour. App.690.

In support of its claim that Sungaila failed properly to seek comparable employment, BDC proffered the expert testimony of Dr. Robin Cook. App.111, 152-65. Cook testified that she had identified roughly 10,000 warehouse worker/driver helper/storage laborer jobs, and that the mean pay for these positions was $12.53 per hour, with the average salary in 2011 being “about [$]11.50 to $12.50 an hour.”[2] App.158, 163, 175-76.

Cook admitted, however, that she had “not identified a single open position that [she] contend[ed] Mr. Sungaila was qualified for and could have qualified for.” App.177. Cook also acknowledged in regard to her labor market survey that “most of those jobs actually required driving forklifts,” and also testified that she had excluded from her analysis of BDC’s own warehouse positions any jobs that required the incumbent to drive a forklift, because such jobs were not “going to be appropriate. Mr. Sungaila didn’t have a driver’s license, didn’t have a forklift certification.” App.122, 180.

While it was uncontested that BDC’s Night Warehouse Associate position was a full-time position, there was no evidence whether the jobs Cook claimed were comparable were full-time or part-time positions. See App.152-67. The compensation package for the Night Warehouse Associate position included insurance, paid leave, and a 401(k) retirement plan, Supp.App.9-13, but BDC offered no evidence that any of the claimed comparable jobs had similar benefit packages. Nor was any evidence offered indicating that Sungaila—who cannot drive and typically relies on his coworkers or public transportation to get to work, App.648-49—could reasonably commute to any of these jobs. BDC also did not present evidence of any other relevant comparative criteria—be it promotion potential, shift start/end times, or any other such job characteristic.

The Direct Threat Instruction

The district court’s jury instruction regarding the direct threat defense provided that “[i]n determining whether BDC acted objectively reasonably when it determined that Mr. Sungaila was a direct threat, you must consider the following factors: (a) the duration of the risk; (b) the nature and severity of the potential harm; (c) the likelihood that the potential harm would occur; and (d) the imminence of the potential harm.” App.78 (emphasis added). The instruction also provided that “[a]n employer’s subjective belief that a direct threat exists, even if maintained in good faith, is not sufficient unless it is objectively reasonable.” Id. (emphasis added). During the charging conference, BDC requested additional references be made to the requirement that the employer acted objectively reasonably—that the court insert such a reference in the first and second paragraphs of the instruction. App.979-80. The court declined the company’s request. Id.

Jury Verdict and Post-Verdict District Court Rulings

The jury returned a verdict in favor of the Commission and calculated back pay damages as $132,347. App.91. The jury also found that BDC had met its burden to prove that Sungaila failed to make reasonable efforts to mitigate his back pay damages, and reduced the back pay amount by $102,803.75. Id.

The Commission renewed its Rule 50(a) motion for judgment as a matter of law on the mitigation question. App.95. The court granted the motion, awarding the full back pay amount. App.362. The court concluded that it had “erred in allowing the jury to consider BDC’s failure-to-mitigate defense because there was insufficient evidence to show that (1) there were jobs available, and (2) there were substantially comparable jobs.”[3] App.353-54.

The court rejected BDC’s contention that it need only establish the “existence” of positions, not their actual availability. App.357. The court noted that the Tenth Circuit “routinely requires that employers prove not a position’s existence, but its availability,” adding that “[t]o give vitality to the principle of making an employee whole through back pay, yet requiring that employee to take responsibility for ameliorating his damages, an employer should present some evidence that positions were available and could have been obtained by the employee.” App.357-58. The court added that this Court and other courts in the circuit “have likewise concluded that availability of a position requires some evidence that a plaintiff could obtain that position.” App.358.

The court noted Cook’s testimony that she had not identified a single open position for which Sungaila was qualified, and rejected BDC’s argument that the jury could have inferred the existence of such openings as unreasonable given the lack of evidence regarding the comparability of these positions to the Night Warehouse Associate position. App.358-59. The court also found inadequate the evidence that these positions were suitable, or that Sungaila was qualified for them, identifying the absence of evidence on a number of comparative factors including whether the positions were full-time or part-time; the job duties and required qualifications; salary; benefit packages; geographic location; and other characteristics. App.359-62.

The court also granted the Commission’s motion for a tax penalty offset in order to compensate Sungaila for the increased tax burden he would face as a result of receiving the back pay award in a single lump-sum payment. App.367-69. The court concluded such an award was appropriate, as “[a] tax offset would simply restore Mr. Sungaila to the position he would have been [in] but for his wrongful separation from Beverage Distributors.” App.368-69. The parties subsequently stipulated that the proper tax penalty offset amount, based on the district court’s reinstatement of the full back pay amount, was $18,805. App.376-77.

Summary of the Argument

The district court’s direct threat instruction adequately directed the jury to assess the objective reasonableness of BDC’s determination that Sungaila would have posed a direct threat in the Night Warehouse position. The jury was instructed to “determin[e] whether Beverage Distributors acted objectively reasonably when it determined that Mr. Sungaila was a direct threat,” App.78, and there can be no genuine dispute that the court’s direct threat instruction as a whole adequately stated the law. Even if the court erred in rejecting BDC’s request to add additional, repetitive references to the objective reasonableness requirement in other portions of the instruction, such error would be harmless because the jury would have rendered the same verdict.

The district court also properly concluded that there was insufficient evidence to support BDC’s failure-to-mitigate defense. BDC’s own expert witness on mitigation testified that she never identified even a single position that was available to Sungaila and for which he was qualified, and the record was otherwise devoid of evidence of the availability of suitable, comparable other jobs for which Sungaila was qualified.

Nor did the court err in awarding a tax penalty offset to minimize the adverse tax consequences for Sungaila as a result of the lump sum back pay award. It is well established that, where appropriate, an award of a tax penalty offset is in harmony with the remedial provision of the ADA, and with the decisions of this Court and the Supreme Court, and the award was appropriate under the circumstances of this case.

Argument

I. The Court Correctly Instructed the Jury to Assess the Objective

Reasonableness of BDC’s Determination that Sungaila Posed a

Direct Threat.

BDC contends that the district court’s direct threat instruction erroneously failed to direct the jury to assess the objective reasonableness of BDC’s determination that Sungaila would have posed a direct threat to his own safety and that of others if he was employed in the Night Warehouse position. See BDC Appellant’s Brief (“AtBr.”) at 22-23. As the plain language of the court’s jury instruction shows, this assertion is flatly incorrect—the jury was instructed to “determin[e] whether Beverage Distributors acted objectively reasonably when it determined that Mr. Sungaila was a direct threat.” App.78. Further amplifying the need for the jury to assess BDC’s objective reasonableness, the court also explained that “[a]n employer’s subjective belief that a direct threat exists, even if maintained in good faith, is not sufficient unless it is objectively reasonable.” App.78.

In its argument on appeal, BDC completely ignores this critical fact—that the “objective reasonableness” standard that it claims the district court omitted from the instruction was in fact provided to the jury in the instruction. See AtBr.22-27 (BDC’s direct threat argument).

The court’s direct threat instruction as a whole adequately stated the law and directed the jury to determine whether BDC’s direct threat determination was objectively reasonable. Even if BDC’s claimed error were present, such error would be harmless because the same substantive legal standard applies regardless of whether the jury considered whether Sungaila was “in fact” a direct threat or whether BDC was objectively reasonable in reaching that conclusion. Accordingly, there is no basis whatsoever for disturbing the jury’s verdict.

A. Standard of Review

This court “‘review[s] a district court’s decision to give a particular jury instruction for abuse of discretion.’” Lederman v. Frontier Fire Prot., Inc., 685 F.3d 1151, 1154 (10th Cir. 2012) (citing Frederick v. Swift Transp. Co., 616 F.3d 1074, 1079 (10th Cir. 2010)). “Within the scope of this review, we will find an abuse of discretion if the challenged instruction incorrectly states the governing law.” Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1248 (10th Cir. 1998). “Furthermore, ‘[n]o particular form of words is essential if the instruction as a whole conveys the correct statement of the applicable law.’” Id. (quoting in part Considine v. Newspaper Agency Corp., 43 F.3d 1349, 1365 (10th Cir. 1994)).

When this Court reviews objections to jury instructions, it “read[s] and evaluate[s] the jury instructions in light of the entire record to determine if they ‘fairly, adequately, and correctly state the governing law and provide the jury with an ample understanding of the applicable principles of law and factual issues confronting them.’” Lederman, 685 F.3d at 1154-55 (quoting in part United States v. Barrera-Gonzales, 952 F.2d 1269, 1272 (10th Cir. 1992)). This Court “do[es] not decide whether the instructions ‘are flawless, but whether the jury was misled in any way and whether it had a[n] understanding of the issues and its duty to decide those issues.’” Id. at 1155 (quoting in part Brodie v. Gen. Chem. Corp., 112 F.3d 440, 442 (10th Cir. 1997)); see also Webb, 155 F.3d at 1248 (“[W]e must decide whether the jury ‘could seriously have been misled in its understanding of the issues and law applicable to the case before it.’”) (quoting in part United States v. Laughlin, 26 F.3d 1523, 1528 (10th Cir. 1994)). “‘So long as the charge as a whole adequately states the law, the refusal to give a particular requested instruction’ is not grounds for reversal.” Lederman, 685 F.3d at 1155 (quoting in part United States v. Suntar Roofing, Inc., 897 F.2d 469, 473 (10th Cir. 1990)).

“Even if the district court erred” in its instructions, however, this Court “will affirm as long as the error is harmless in the context of the trial as a whole.” World Wide Assoc. of Specialty Programs v. Pure, Inc., 450 F.3d 1132, 1139 (10th Cir. 2006) (citations omitted). “‘The error is harmless when the erroneous instruction could not have changed the result of the case.’” Id. (quoting Lusby v. T.G. & Y. Stores, Inc., 796 F.2d 1307, 1310 (10th Cir. 1986)).

B. The Direct Threat Instruction Directed the Jury to

Assess the Objective Reasonableness of BDC’s

Direct Threat Determination.

As an affirmative defense to a claim of disability discrimination, the ADA provides that employers may require “that an individual shall not pose a direct threat to the health or safety of other workers in the workplace.” 42 U.S.C. § 12113(b); see also Jarvis v. Potter, 500 F.3d 1113, 1122 (10th Cir. 2007) (describing the employer’s burden to prove the direct threat defense). The ADA defines “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3); Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1091 (10th Cir. 2008).

The Commission’s regulations implementing the ADA define “direct threat” as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. § 1630.2(r). The regulations further provide that:

The determination that an individual poses a “direct threat” shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.

Id.; see also Jarvis, 500 F.3d at 1122 (same). “‘[I]n determining whether an individual would pose a direct threat, the factors to be considered include: (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm.’” Jarvis, 500 F.3d at 1122 (quoting 29 C.F.R. § 1630.2(r)).

“In evaluating an employer’s direct-threat contention, the fact-finder does not independently assess whether it believes that the employee posed a direct threat.” Jarvis, 500 F.3d at 1122. Instead, “the fact-finder’s role is to determine whether the employer’s decision was objectively reasonable.” Id. In assessing the objective reasonableness of the employer’s decision, the factfinder is not required to accept the employer’s conclusion of direct threat “just because the employer acted in good faith in deciding that the employee posed such a threat.” Id. To the contrary, “to hold that one cannot second-guess an employer’s conclusion regarding the safety risks posed by an employee would eviscerate the ADA’s protections by permitting the employer to assert in nearly every case that it believed the employee’s medical limitations posed a credible threat to his safety or the safety of others.” Justice, 527 F.3d at 1092 n.5.

Reading the “charge as a whole,” Lederman, 685 F.3d at 1155, the district court’s direct threat instruction fairly, adequately, and correctly stated the governing law and provided the jury with an ample understanding of the applicable principles of law and factual issues confronting them.

The district court instructed the jury that if the Commission proved either of its claims, “then you must determine whether Beverage Distributors has proved its affirmative defense that Mr. Sungaila’s employment in a Night Warehouse position posed a direct threat to himself or other employees.” App.78. In so doing, it explained the direct threat defense in language that tracks the ADA, its regulations, and this Court’s jurisprudence. See 42 U.S.C. § 12113; 29 C.F.R.

§ 1630.2(r); Jarvis, 500 F.3d at 1122.

The court did not instruct the jury that BDC must prove “that Sungaila actually posed a direct threat,” as BDC erroneously asserts on appeal. See AtBr.23. Rather, the court’s instruction focused on BDC’s determination that Sungaila posed a direct threat. The court instructed the jury that, “[t]he determination that a direct threat exists must have been based on a specific personal assessment of Mr. Sungaila’s ability to perform the essential functions of the job.” App.78 (emphasis added). “This assessment of Mr. Sungaila’s ability,” the court continued, “must have been based on either a reasonable medical judgment that relied on medical knowledge available at the time of the assessment, or on the best objective evidence available at the time of the assessment.” App.78 (emphasis added); see also 29 C.F.R. § 1630.2(r); Jarvis, 500 F.3d at 1122. Given the instruction’s use of the past tense in reference to what the direct threat assessment “must have been based on,” this instruction plainly directs the jury to assess BDC’s own direct threat determination regarding Sungaila.

BDC also claims that the district court’s direct threat instruction “misstated the law . . . by failing to include the objective-reasonableness test.” AtBr.23. This assertion is completely incorrect. The court’s direct threat instruction included exactly the statement of law that BDC claims the district court erroneously excluded—instructing the jury that it was assessing whether BDC acted objectively reasonably in deeming Sungaila a direct threat. In fact, the court twice instructed the jury on this objective reasonableness standard. First, the Court instructed the jury on the four criteria it must consider “[i]n determining whether Beverage Distributors acted objectively reasonably when it determined that Mr. Sungaila was a direct threat.” App.78. This is precisely the jury question that this Court deemed critical in Jarvis: “[T]he fact-finder’s role is to determine whether the employer’s decision is objectively reasonable.” 500 F.3d at 1122. Moreover, and fully consistent with Jarvis, the court instructed the jury that “[a]n employer’s subjective belief that a direct threat exists, even if maintained in good faith, is not sufficient unless it is objectively reasonable.” App.78 (emphasis added).

BDC makes no mention of any of these critical portions of the jury instruction in its argument on appeal. See AtBr.22-27. These components of the instruction plainly show that the jury was fully instructed that it was to assess the objective reasonableness of BDC’s direct threat determination. Under these circumstances, it cannot reasonably be said that the court’s instruction constituted reversible error.

BDC is correct that the district court rejected a portion of the company’s proposed direct threat instruction, but in so doing the court simply omitted an unnecessarily duplicative reference to the phrase “objectively reasonable” in the portion of the instruction that tracks the statute’s definition of direct threat—statutory language that does not contain the phrase “objectively reasonable.” See 42 U.S.C. § 12113(b) (providing that employers may require “that an individual shall not pose a direct threat to the health or safety of other workers in the workplace”); App.979 (BDC’s argument that “[s]tarting with the first paragraph . . . we think we should insert ‘—it acted objectively reasonably in determining that Mr. Sungaila’s employment as a night warehouse associate’ . . . ‘was a direct threat to himself or other employees’”). Nevertheless, as discussed above, the court did make explicit reference to the need to assess the objective reasonableness of BDC’s direct threat conclusion elsewhere in the instruction, and the court’s rejection of this small, repetitive part of BDC’s requested instruction did not conflict with or otherwise compromise the legal sufficiency of the remainder of the instruction. See Lederman, 685 F.3d at 1155 (“‘So long as the charge as a whole adequately states the law, the refusal to give a particular requested instruction’ is not grounds for reversal.”).

Moreover, viewing the record as a whole further confirms that the jury properly understood that it was assessing the objective reasonableness of BDC’s 2008 determination that Sungaila posed a direct threat, and not simply whether, in the abstract, Sungaila posed a direct threat. As stated previously, this Court reads and evaluates jury instructions in light of the entire record. Lederman, 685 F.3d at 1154-55. BDC’s defense at trial was premised on its argument that in 2008 it rescinded its offer of employment to Sungaila because it determined at that time that he would pose a direct threat if employed in the Night Warehouse position. The district court’s instruction that the jury was to “determin[e] whether Beverage Distributors acted objectively reasonably when it determined that Sungaila was a direct threat,” in conjunction with the evidence supporting BDC’s primary theory of the case—that the company was excused from liability because it had determined that Sungaila posed a direct threat—amply supports the conclusion that the jury was properly instructed to consider the objective reasonableness of BDC’s 2008 determination that Sungaila was a direct threat. Nothing in the instruction or the record suggests that the jury believed it was to make its own independent assessment of whether Sungaila posed a direct threat.

C. If the Court’s Rejection of BDC’s Request for Additional

References to Objective Reasonableness was Error, such

Error was Harmless.

Even if this Court should conclude that the district court erred in refusing BDC’s request for additional references to the objective reasonableness standard, any such error was harmless because it could not have changed the jury’s verdict. See World Wide Assoc., 450 F.3d at 1139 (“‘The error is harmless when the erroneous instruction could not have changed the result of the case.’”) (citation omitted).

The court’s instruction described the criteria by which the jury would assess the objective reasonableness of the company’s direct threat determination. The court left no ambiguity on this point when it instructed the jury that “[i]n determining whether Beverage Distributors acted objectively reasonably when it determined that Mr. Sungaila was a direct threat, you must consider the following factors.” App.78. It is clear from this instruction that the court was directing the jury to evaluate the company’s assessment of whether Sungaila posed a direct threat, and, as the court instructed the jury, “whether Beverage Distributors acted objectively reasonably when it determined that Mr. Sungaila was a direct threat.” App.78. Accordingly, the fact that the court omitted mention of the phrase “objectively reasonable” in its opening description had no meaningful impact on the jury’s direct threat determination.

Furthermore, the court made clear in the instruction that the jury was assessing BDC’s decisionmaking, and not determining whether the jury itself believed Sungaila to be a direct threat. The court’s instruction described the direct threat determination as one already made, at an earlier time, by describing it in the past tense:

The determination that a direct threat exists must have been based on a specific personal assessment of Mr. Sungaila’s ability to safely perform the essential functions of the job. This assessment of Mr. Sungaila’s ability must have been based on either a reasonable medical judgment that relied on medical knowledge available at the time of the assessment, or on the best available objective evidence available at the time of the assessment. For evidence to be “available,” it must have been in existence at the time of the assessment.

App.78 (emphasis added). It makes no sense to interpret this instruction, which refers to a prior direct threat assessment, as directing the jury to itself determine whether, at the time of trial, Sungaila posed a direct threat. This is particularly so given that BDC’s 2008 direct threat determination was the matter at the heart of this case. BDC is therefore incorrect that the court’s direct threat instruction misdirected the jury to consider not the information available at the time the employer made its assessment, but any information at any time regarding direct threat.[4] See AtBr.26.

Even if BDC were correct and the instruction failed to convey to the jury that it was to assess the objective reasonableness of BDC’s 2008 direct threat assessment, the verdict still would have been the same. That is, if BDC had been objectively reasonable in concluding in 2008 that Sungaila was a direct threat, then the jury would have also concluded, based on the same evidence and legal standard, that Sungaila was a direct threat. This is because, in the context of this case and viewing the instruction and the record as a whole, see Lederman, 685 F.3d at 1154-55, the jury’s analysis of the direct threat issue would rely on the same evidence and the same legal criteria regardless of whether it was currently assessing whether Sungaila posed a direct threat in 2008, or whether BDC was objectively reasonable in so concluding in 2008.

The jury was instructed that an assessment of direct threat must be based on information “available” or “in existence” “at the time of the assessment,” and that the jury was to assess “whether Beverage Distributors acted objectively reasonably when it determined that Mr. Sungaila was a direct threat,” indicating that the proper time frame for evidentiary purposes was 2008. App.78.

Presuming that the jury acted reasonably and consistent with the instructions given, see, e.g., United States v. Brooks, 736 F.3d 921, 941 (10th Cir. 2013) (“[W]e ‘presume jurors will conscientiously follow the trial court’s instructions.’”) (citation omitted), the jury would have relied on exactly the same “available” evidence and substantive factors to reach its direct threat verdict that BDC would have relied upon in 2008 had it acted objectively reasonably in making its direct threat determination. The jury’s verdict indicates that BDC’s determination was not objectively reasonable, and therefore the verdict would have been the same regardless of whether the jury was instructed a third and fourth additional time to assess the objective reasonableness of BDC’s 2008 direct threat determination.

II. The Court Correctly Determined that the Evidence was

Insufficient to Support BDC’s Failure-To-Mitigate Defense.

The district court concluded that, as a matter of law, there was insufficient evidence that Sungaila failed to mitigate his back pay damages to support the jury’s reduction of the back pay award. App.351-52; 362. In so ruling, the court recognized a number of evidentiary infirmities in BDC’s mitigation defense—the most significant being the admission of the company’s own expert witness at trial that she never identified a single position that was available to Sungaila and for which he was qualified. App.357-58. Given the absence of sufficient evidence to establish necessary elements of the employer’s mitigation defense to a back pay award, the district court did not err in ruling that BDC failed to establish that defense as a matter of law.

The ADA provides that when a court concludes that an employer has discriminated against an individual in violation of the ADA, the court may order back pay as a remedy.[5] 42 U.S.C. § 2000e-5(g)(1). The statute further provides that “[i]nterim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.” Id. However, the victim of discrimination “‘is required to make only reasonable exertions to mitigate damages, and is not held to the highest standards of diligence. It does not compel him to be successful in mitigation. It requires only an honest good faith effort.’” EEOC v. Sandia Corp., 639 F.2d 600, 627 (10th Cir. 1980) (quoting United States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 938 (10th Cir. 1979)).

It is the employer’s burden to establish that the victim of its unlawful discrimination failed properly to mitigate his damages. “‘[O]nce a violation has been demonstrated and back pay has been awarded, the employer has the burden of showing that the discriminatee did not exercise reasonable diligence in mitigating damages caused by the employer’s illegal action.’” Id. (quoting Lee Way, 625 F.2d at 937) (further citations omitted). “In order to satisfy this burden, ‘the defendant must establish (1) that the damage suffered by plaintiff could have been avoided, i.e. that there were suitable positions available which plaintiff could have discovered and for which he was qualified; and (2) that plaintiff failed to use reasonable care and diligence in seeking such a position.’” Id. (quoting in part Sias v. City Demonstration Agency, 588 F.2d 692, 696 (9th Cir. 1978)).

This Court has long interpreted the first of these elements to require the employer not only to establish the existence of suitable positions for which the victim of discrimination was qualified, but also to show that such positions were available to the claimant. See Sandia, 639 F.2d at 627 (holding employer failed to satisfy its mitigation defense burden in part because it failed to present “any evidence indicating that other comparable positions were available for the claimants”); see also McClure v. Indep. Sch. Dist. No. 16, 228 F.3d 1205, 1214 (10th Cir. 2000) (employer must “‘establish . . . that the damage suffered by the plaintiff could have been avoided, i.e., that there were suitable positions available which plaintiff could have discovered and for which he was qualified’”) (citing Sandia, 639 F.2d at 627); Garcia v. Wal-Mart Stores, Inc., 209 F.3d 1170, 1175 (10th Cir. 2000) (holding no error in failing to instruct jury on mitigation defense where the defendant “offered no evidence that appropriate jobs were available for someone in [the plaintiff’s] condition or that such jobs were available to someone of her educational and skill level”); Wilson v. Union Pac. R.R. Co., 56 F.3d 1226, 1232 (10th Cir. 1995) (“[T]he defendant must . . . show that appropriate jobs were available.”) (citing Coleman v. City of Omaha, 714 F.2d 804, 808 (8th Cir. 1983)); Aguinaga v. United Food & Commercial Workers Int’l Union, 993 F.2d 1463, 1474 (10th Cir. 1993) (holding that defendant failed to satisfy its burden to show “that suitable positions were available for any of the plaintiffs”).[6]

The requirement to show availability is based on the idea that a victim of discrimination cannot mitigate his lost wages with a job that is not available. No amount of “reasonable diligence” can permit a victim of discrimination to be hired into a position comparable to that lost due to discrimination, if that comparable position is not open and the employer is not accepting applicants. When the employer fails to present evidence that “any comparable positions were available for the claimant[],” it therefore has failed to “satisf[y] its burden to show that reasonable efforts to mitigate damages were not made.”[7] Sandia, 639 F.2d at 627.

Moreover, “[i]n order to satisfy its burden, [the defendant is] required to satisfy both prongs of the above two-part test.” Aguinaga, 993 F.2d at 1474 (emphasis in original). Accordingly, when the defendant fails to satisfy the first prong of the mitigation defense—“i.e., that suitable positions were available” for the claimant—the defendant “has failed its burden of proof and evidence that supports the second prong of the test—i.e., the individual mitigation efforts of [the claimant]—are simply irrelevant.” Id.; see also Goodman v. Fort Howard Corp., 30 F.3d 141, 1994 WL 371528, at *4, *7 (10th Cir. 1994) (unpubl.) (same).[8]

As the district court correctly concluded, this is exactly what BDC failed to do in this case—present, through either its expert Cook or any other source, evidence that any job for which Sungaila was qualified was actually available to him during the relevant back pay period. To the contrary, BDC’s expert witness affirmed at trial that she had not identified even a single job that was available to Sungaila and that he was qualified to perform. See App.357-58 (district court’s observation that “Dr. Cook specifically testified that she had not identified a single open position that Mr. Sungaila was qualified for.”); App.152-65 (Cook’s testimony, on direct examination, regarding Sungaila’s economic damages); App.177 (trial testimony by Cook, admitting that “in [her] report, in [her] deposition, and here today, [she had] not identified a single open position that [she] contend[ed] Mr. Sungaila was qualified for and could have qualified for”). As the court stated, and as BDC has not disputed on appeal, the company’s expert “testified only that the BDC states that warehouse and driver-helper positions existed, but offered no testimony regarding how many of these positions were currently occupied by other workers and, therefore, unavailable to Mr. Sungaila.” App.358; see also AtBr.28-38 (presenting no challenge on appeal to this conclusion by the district court).

Accordingly, BDC failed to make the evidentiary showing required for its mitigation defense—“‘that there were suitable positions available which plaintiff could have discovered and for which he was qualified.’” Sandia, 639 F.2d 627 (citation omitted) (emphasis added). Under these circumstances, the district court correctly concluded that, as a matter of law, BDC failed to present sufficient evidence to establish its mitigation defense, and, therefore, the district court correctly awarded the full back pay amount.

BDC’s failure to present evidence identifying any available positions that were “suitable” for Sungaila, that he could have “discovered,” and for which he was “qualified,” further supports the district court’s ruling.[9] See Sandia, 639 F.2d at 627 (defendant must establish “that there were suitable positions available which plaintiff could have discovered and for which he was qualified”). As the district court correctly noted, when assessing whether jobs are suitable or comparable for mitigation purposes, courts routinely consider factors such as “salaries, benefits, promotional opportunities, and commuting distance[s].” App.359 (citing cases); see also Sellers v. Delgado Cmty. Coll., 839 F.2d 1132, 1138 (5th Cir. 1988) (“‘Substantially equivalent employment’ for purposes of Title VII mitigation has been defined as employment which affords virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status as the position from which the Title VII claimant has been discriminatorily terminated. In addition, the new position should provide comparable hours to the previous position.”) (citations omitted).

It was uncontested that BDC’s Night Warehouse position was a full-time position, but the company failed to present any evidence whether the jobs it claimed were comparable were full-time or part-time positions. See generally App.109-214 (Cook’s trial testimony, making no mention of whether other jobs were full- or part-time); see also Stone v. D.A. & S. Oil Well Servicing, Inc., 624 F.2d 142, 144 (10th Cir. 1980) (noting that where the job denied because of discrimination would have quickly become a full-time position, “[c]omparable employment was full-time employment”). There was also evidence that the salary for the Night Warehouse position started at $12.50 per hour, and that, had Sungaila been hired, by the time of trial his salary in that position would have been $22.56 per hour. App.337, 660. However, the only evidence that BDC proffered regarding the salary of similar warehouse positions in the region was the mean salary of $12.53 per hour, with the average salary in 2011 being between “about [$]11.50 to $12.50 an hour.” App.158. Accordingly, even if such an unidentified warehouse job was actually available to Sungaila, the pay in 2011 was roughly one-half of what his pay in a Night Warehouse position at BDC would have been at the time of trial. This roughly one-half salary difference cannot reasonably be characterized as showing that the pay for these jobs was “comparable.”

Similarly, while the compensation package for the BDC Night Warehouse position included insurance, paid leave, and a 401(k) retirement plan, Supp.App.9-13, BDC offered no evidence that any of the other warehouse jobs it claimed were comparable had similar benefit packages. BDC concedes as much on appeal, as it does not claim that it did present such evidence at trial. See AtBr.36-38. Nor did BDC offer any evidence indicating that Sungaila—who cannot drive and typically relies on his coworkers or public transportation to get to work, App.648-49—could reasonably commute to any of these jobs.

BDC also failed to present evidence that Sungaila was qualified for any of these other warehouse positions. To the contrary, the little testimony Cook did offer on that point casts doubt over whether Sungaila was qualified for any of these positions. Cook stated, in regard to the labor market survey she performed for this litigation, that “most of those jobs actually required driving forklifts”—a job function that Cook herself acknowledged Sungaila cannot perform. App.180; see also App.122 (Cook’s testimony that she excluded from her analysis of BDC’s own warehouse positions any jobs that required the incumbent to drive a forklift, because such jobs were not “going to be appropriate. Mr. Sungaila didn't have a driver’s license, didn’t have a forklift certification.”). At best, the evidence suggests that Sungaila was not qualified to perform the vast majority of these proffered warehouse positions, and BDC did not establish his qualification to perform the remaining such jobs.[10]

Nor did BDC present evidence of the comparability of any other relevant criteria—be it promotion potential, shift start/end times, or other such job characteristics. Accordingly, the district court correctly concluded that BDC failed as a matter of law to present sufficient evidence to satisfy its burden of proving that Sungaila failed to mitigate his economic losses caused by BDC’s unlawful conduct.

Despite this Circuit’s long-established requirement that to establish its mitigation defense a defendant must prove that suitable positions were available to the plaintiff at the relevant time, BDC argues that it was not required to present evidence of specific job openings but instead only “‘evidence indicating that there existed suitable positions.’” AtBr.30 (quoting Goodman, 1994 WL 371528, at *4). BDC is incorrect.

First, as discussed previously, it is well-settled law in this circuit that in order to establish the mitigation defense to a back pay award, a defendant must show that appropriate jobs not only existed but were in fact available to the plaintiff. See, e.g., Sandia, 639 F.2d 627.

This Court has routinely concluded that defendants who failed to show that suitable jobs were available failed to meet their burden of proof on mitigation. See, e.g., Aguinaga, 993 F.2d at 1474; Sandia, 639 F.2d at 627. BDC has not cited any contrary controlling authority. The sole Tenth Circuit decision (an unpublished decision) BDC offers as supporting its position—Goodman—stands for exactly the opposite proposition, stating not only that the defendant failed to present evidence that suitable positions “existed,” 1994 WL 371528, at *4, but also that the defendant was not entitled to a mitigation defense jury instruction because it “failed to produce any evidence establishing that suitable full-time positions were available to Plaintiff and consequently did not meet its burden of showing that Plaintiff failed to mitigate damages,” 1994 WL 371528, at *7 (citing Aguinaga, 993 F.2d at 1474). BDC failed to mention on appeal this recognition in Goodman that this Court requires a showing of job availability in order to satisfy the mitigation defense. See AtBr.30.

BDC also cites an unpublished decision from a district court in Kansas noting that the defendant had failed to show the “existence” of appropriate jobs. See AtBr.30 (citing Wood v. Harper Hosp. Dist. No. 5, No. 95-1404, 1998 WL 159515 (D. Kan. Mar. 30, 1998) (unpubl.). Again, however, BDC fails to mention to this Court that Wood cites Aguinaga for the controlling legal standard—that the defendant must prove that “there were suitable positions available which plaintiff could have discovered.” Wood, No. 95-1404, at *15 (emphasis added); see also AtBr.30 (no mention of “available” requirement in Wood).

BDC next asserts that it met its evidentiary burden because it presented evidence that “there were approximately 10,000 warehouse and driver-helper jobs available” in the relevant area. AtBr.31. As discussed above, the company did not present any evidence that a single one of these jobs was “available” or comparable. See supra, at 37-43. The company argues that Cook “reasonably inferred” that there were “numerous warehouse jobs in existence into which Sungaila could have been hired,” that there was evidence of “thousands” of “possible job openings,” and that it could be “inferred” that Sungaila could have successfully applied to “at least some” of those jobs, particularly given Cook’s testimony that “an individual with Sungaila’s background and experience could have secured comparable employment . . . within 14 weeks.” AtBr.31.

As the district court correctly identified, however, BDC’s argument on this point is inadequate because the limited evidence it did present as to the existence of allegedly comparable jobs does not establish whether any of these positions were actually available, suitable, and discoverable by Sungaila. See App.357-59.

These flaws in BDC’s evidentiary presentation display why it cannot reasonably be inferred from Cook’s testimony on the existence of some 10,000 jobs that some of these jobs were available, suitable positions that Sungaila could have discovered and for which he was qualified. To arrive at such a conclusion on this sparse evidentiary record would require, as the district court characterized, “cascading inferences” on the other factors that pertain to whether any of these “possible” jobs is actually an appropriate, comparable job. App.359 (citing Brown v. Reardon, 770 F.2d 896, 904 (10th Cir. 1985)). Such a compounding of inferences here would undermine the defendant’s burden of proof, permitting the factfinder to reach a conclusion based on “inference upon inference, such as would dictate a jury verdict based on pure speculation.” Id. Given the substantial array of factors necessary to identify whether a particular job is appropriate for mitigation purposes, and the lack of any evidence as to the vast majority of those factors, it cannot reasonably be concluded here that there were suitable positions available which Sungaila could have discovered and for which he was qualified.

BDC further asserts that Cook’s testimony that “an individual with Sungaila’s background and experience could have secured comparable employment . . . within 14 weeks” lends support to its inferential argument. AtBr.31. This assertion misrepresents Cook’s testimony and highlights the lack of evidence to satisfy BDC’s burden of proof. First, Cook’s actual testimony was that, based on Bureau of Labor Statistics data from 2008 regarding “unskilled workers,” only sixty-eight percent of such individuals were able to find work within fourteen weeks of experiencing a job loss or separation. App.158-59. Accordingly, even assuming that Sungaila’s background and experience are properly categorized as that of an “unskilled worker,” roughly one-third of such individuals did not find work within fourteen weeks.

Cook also provided other testimony that undermined the relevance of this conclusion to Sungaila’s situation. Cook testified that there are “different statistics o[r] figures available with respect to warehouse workers, in particular,” and that “it is commonly found” that “for more skilled types of work, you would expect to see longer periods of time required to find replacement work.” App.159-60. By Cook’s own testimony, the fourteen week period within which some—but by no means all—“unskilled” workers find replacement jobs does not reflect the time for “warehouse” workers to find replacement work, and there is no dispute that the job Sungaila was denied by BDC was a warehouse job.

Perhaps most critically, however, is the fact that Cook admitted that she did not take Sungaila’s disability into account when she analyzed his lost wages. See App.174-75 (Cook’s admission that she “did not consider Mr. Sungaila’s vision loss to be relevant in [her] analysis” of his damages relating to lost pay). In other words, Cook did not consider the uncontested narrowing effect Sungaila’s medical condition has on his job prospects, even though, as Cook acknowledged, most of the jobs she identified required driving a forklift, which is one job function Sungaila cannot do because of his disability. Given this omission from Cook’s analysis, no reasonable jury could have concluded on the basis of Cook’s analysis that BDC proved that appropriate jobs were available to Sungaila.[11]

BDC also asserts that its position is supported by Malone v. Potter, No. 07-5530, 2010 WL 330252 (C.D. Cal. Jan. 15, 2010), an unreported decision from an out-of-circuit district court which concluded, as BDC characterizes that case, that an expert witness’ opinion that the plaintiff “could have found work in the customer service field” is sufficient to satisfy the defendant’s burden of proof. AtBr.33. Malone, however, provides no such support. In Malone, the court did not examine whether the expert’s testimony regarding customer service jobs was sufficient to satisfy the defendant’s burden to show the existence of suitable, available positions which the plaintiff could have discovered and for which he was qualified. See Malone, No. 07-5530, at *10. Instead, the court simply concluded that it would credit the expert’s testimony that the plaintiff could perform customer service work, because such testimony was corroborated by the plaintiff himself and not disputed by two physicians. Id. To the extent that the court’s analysis ignored the lack of evidence regarding the availability of comparable positions, it runs contrary to this Court’s precedent requiring such evidence to establish the mitigation defense. See supra, at 34-37.

BDC next argues that several of this Court’s mitigation decisions support its position because in those cases the defendants “offered no evidence whatsoever of the existence of comparable jobs in the marketplace.” AtBr.33. The company’s argument misses the point, for the requirement is not merely to present evidence of the existence of a comparable job, but its availability to the victim of discrimination, so that he can mitigate his economic losses—and such mitigation cannot occur with a job that exists but is not available.

Moreover, BDC’s argument regarding “comparable jobs” is misplaced because the burden is not simply to identify a position and declare it “comparable,” but to present evidence “that there were suitable positions available which plaintiff could have discovered and for which plaintiff was qualified.” Sandia, 639 F.2d at 627 (citation omitted). BDC’s argument on this point ignores that its burden is not merely to identify “comparable” jobs, as it defines the term in the context of this argument—“evidence of a vast number of driver’s helper and warehouse worker positions in the marketplace.” AtBr.34. Rather, the company’s evidentiary proffer was incomplete on necessary elements: the availability of such jobs; the duties, pay, work hours, and other job characteristics which would show whether or not these “possible” jobs were in fact comparable to the Night Warehouse position; and whether Sungaila was qualified for any such job—a proposition called into considerable doubt by BDC’s own expert witness.

III. The Court’s Award of a Tax Penalty Offset was Appropriate Under

the Circumstances of this Case.

It is uncontested that, as a result of the lump-sum back pay damages awarded to Sungaila because of BDC’s unlawful discriminatory conduct, he would owe substantially more in taxes on this pay than he would have absent the company’s unlawful conduct. See AtBr.38-41. BDC stipulated that the proper tax penalty offset amount was $18,805.00.[12] See App.377 (offset amount). As an exercise of its broad authority to fashion an appropriate remedy that makes victims of discrimination whole and places them as closely as possible in the same position as if the discrimination had not occurred, the district court’s award of a tax penalty offset is in harmony with the remedial provision of the ADA, as well as the decisions of this Court and the Supreme Court interpreting that provision, and does not constitute reversible error.

The ADA provides that upon a finding of discrimination, the court “may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g)(1) (emphasis added). The Supreme Court has long recognized that “one of the central purposes of [the statute] is ‘to make persons whole for injuries suffered on account of unlawful employment discrimination.’” Franks v. Bowman Transp. Co., 424 U.S. 747, 763 (1976).[13] “‘To effectuate this “make whole” objective, Congress in § [2000e-5(g)] vested broad equitable discretion in the federal courts . . . as the court deems appropriate.’” Id. (citation omitted; emphasis added). Given Congress’ intent that “‘persons aggrieved by the consequences and effects of . . . unlawful employment practice[s] be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination,’” “federal courts are empowered to fashion such relief as the particular circumstances of a case may require to effect restitution, making whole insofar as possible the victims” of unlawful discrimination.” Id. at 764.

This Court agrees, recognizing the well-settled nature of district courts’ broad authority to craft appropriate remedies in such cases.[14] See, e.g., Barrett v. Salt Lake Cnty., 754 F.3d. 864, 869 (10th Cir. 2014) (“Everyone acknowledges a district court enjoys considerable discretion when fashioning equitable relief under Title VII. Discretion that embraces the power to restore—as much as possible—the plaintiff’s position prior to the Title VII violation.”) (citations omitted); Dilley v. SuperValu, Inc., 296 F.3d 958, 967 (10th Cir. 2002) (noting that district courts have “‘broad discretion in fashioning relief’”) (quoting Fitzgerald v. Sirloin Stockade, Inc., 624 F.2d 945, 957 (10th Cir. 1980)).

More specifically, courts have recognized that an award of a tax penalty offset is not only available, but warranted, to make a victim of discrimination “whole” when a back pay award will create adverse tax consequences that would not have arisen in the normal course of his employment, and that, therefore, only exist because of the unlawful discrimination. For example, in Eshelman v. Agere Systems, Inc., an ADA case, the Third Circuit held that courts may include in the award an amount to compensate for the increased tax burden created by a back pay award. 554 F.3d 426, 441-42 (3d Cir. 2009). “Without this type of equitable relief in appropriate cases,” the court of appeals reasoned, “it would not be possible ‘to restore the employee to the economic status quo that would exist but for the employer’s conduct.’” Id. at 442 (quoting In re Continental Airlines, 125 F.3d 120, 135 (3d Cir. 1997)). The court recognized that “receipt of a lump sum back pay award could lift an employee into a higher tax bracket for that year, meaning the employee would have a greater tax burden than if she were to have received the same pay in the normal course.” Id. at 441. The court concluded that a tax penalty offset award “to compensate a prevailing employee for her increased tax burden as a result of a lump sum award will, in the appropriate case, help to make a victim whole. This type of an award . . . represents a recognition that the harm to a prevailing employee’s pecuniary interest may be broader in scope than just a loss of back pay.” Id. at 442. The court also emphasized that a plaintiff’s entitlement to such an award is to be determined on a case-by-case basis, and that prevailing plaintiffs in discrimination cases are not “presumptively entitled to an additional award to offset tax consequences above the amount to which she would otherwise be entitled.” Id.

This Court also has approved of a tax penalty offset as part of make-whole relief. In Sears v. Atchison, Topeka & Santa Fe Railway Co., a Title VII class action, this Court held that the district court had not abused its discretion when it included in its remedial order an amount intended to compensate discrimination victims for the additional tax liability they faced as a result of receiving a substantial back pay award in a lump sum. 749 F.2d 1451, 1456 (10th Cir. 1984). Recognizing that “the trial court has wide discretion in fashioning remedies to make victims of discrimination whole,” the circumstances of that case—seventeen years of back pay being awarded in a lump sum where the victims could not rely on “tax averaging” provisions in the tax code to avoid being subject to a higher tax liability—made “the trial court’s inclusion of the tax component . . . an appropriate exercise of its discretion” in that case.[15] Id.

Given this wide latitude in fashioning an appropriate remedial award, and the well-recognized importance of tax penalty offsets—where necessary—to restoring a victim of discrimination to the position in which he would have been but for the unlawful discrimination, the district court was within its discretion to award a tax penalty offset in this case. The court recognized, and it is uncontested on appeal, that because of the back pay award, Sungaila “will be placed into a higher tax bracket.” App.368; AtBr.38-41. Therefore, “[a] tax offset would simply restore Mr. Sungaila to the position he would have been [in] but for his wrongful separation from Beverage Distributors.” App.368-69. Under these circumstances, the district court acted well within its discretion to ensure that the awarded damages would truly constitute “make whole” relief.

On appeal, BDC argues that in Sears this Court stated that a tax penalty offset may not be available in “‘a typical Title VII case,’” and implies that such an offset should not apply here. See AtBr. at 39 (citing 749 F.2d at 1456). BDC misunderstands Sears, which does not suggest the district court here abused its discretion. In Sears, this Court recognized that because the plaintiffs would suffer a higher tax liability as a result of a lump-sum back pay award, “the trial court’s inclusion of the tax component was an appropriate exercise of its discretion.” 749 F.2d at 1456. While the protracted litigation in Sears presented unique circumstances that supported this result, the key factor was the increased tax liability caused by the lump sum back pay award. Id. This is exactly the same uncontested factor that supports the district court’s decision to award a tax penalty offset in the instant case—Sungaila will suffer a substantial tax penalty as a result of the lump sum back pay award.

BDC is correct that in Sears this Court stated that “a tax component may not be appropriate in a typical Title VII case.” 749 F.2d at 1456. However, this Court did not offer any indication of what it meant by a “typical” Title VII case, and did not foreclose the availability of a tax penalty offset award in a case where the victim of discrimination will suffer a substantial tax consequence as a result of the defendant’s unlawful conduct. See id. In addition, there were tax-related conditions present at the time Sears was decided that may have served to mitigate the adverse effects of lump-sum backpay awards in “typical” cases, but that are no longer available under the tax code. For example, at that time the tax code provided for income averaging over a period of years, which would permit the recipient of a lump-sum backpay award to spread out the tax liability for that award over a period of years and possibly eliminate any adverse tax consequences of the award.[16] EEOC v. RadioShack Corp., No. 10-2365, 2012 WL 6090283, at *5 (D. Colo. Dec. 6, 2012) (awarding tax penalty offset in single-victim discrimination case, and noting that after Sears was decided “income averaging was eliminated from the tax code”).

BDC argues that the district court’s tax penalty offset award constituted an unlawful additur in violation of the Seventh Amendment. See AtBr.39-41. This argument does not support reversal for a number of reasons, but primarily because BDC never raised this argument in the district court and therefore waived it for purposes of appellate review. See Supp.App.7-8 (BDC’s tax penalty offset argument below, making no mention of a Seventh-Amendment-based additur argument); Rosewood, 413 F.3d at 1167 (arguments not raised below are waived on appeal).

Even if not waived, the company’s additur argument is without merit. At its foundation, BDC’s argument is that the Seventh Amendment “‘command[s] that courts not reexamine the findings of a jury,’” AtBr. at 40 (quoting Kelley v. City of Albuquerque, No. 3-507, 2006 U.S. Dist. LEXIS 28785 (D.N.M. Mar. 31, 2006)), and therefore the district court ran afoul of the Constitution by awarding a tax penalty offset which increased the back pay award. See AtBr. at 39-41. However, and as BDC should be aware, the question of the back pay amount was not placed before the jury, but was explicitly reserved by the parties for determination by the court.[17]

In its motion for judgment as a matter of law on BDC’s failure-to-mitigate defense, the Commission reminded the district court that “[a]t the beginning of this trial, the parties agreed that the jury’s determination of back pay would be advisory only.” App.105. The Commission pointed out that awards of back pay under Title VII are equitable in nature and therefore within the province of the court, not the jury. App.105 (citing Chauffeurs, Teamsters, and Helpers Local No. 391 v. Terry, 494 U.S. 558, 571-72 (1990)). In its response brief, BDC argued that “the jury’s finding on the amount of back pay was advisory,” and added that BDC had objected to the Commission’s proposed back pay instruction “on the basis that back pay should be determined by the Court.” Supp.App.5 (emphasis added). BDC further acknowledged that “the parties discussed with the Court that because back pay is equitable relief, any back pay instruction submitted to the jury should only be for the purpose of obtaining an advisory opinion.” Id. (emphasis added).

Accordingly, there can be no Seventh Amendment violation resulting from a district court’s award of a tax penalty offset where, as here, the question of the amount of back pay was always and only before the district court, not the jury, for ultimate determination.[18] BDC finally asserts, without citation to any supporting authority or otherwise developing its argument, that “equities” “weigh against awarding a tax penalty offset in this case” because Sungaila receives SSDI benefits to which he is lawfully entitled, and as such the back pay award already constitutes a “windfall” for Sungaila. AtBr.41. BDC is incorrect and ignores longstanding contrary precedent.

This Court has recognized that, under the collateral source rule, “a plaintiff [may] seek full recovery from a tortfeasor even though an independent source has compensated the plaintiff in full or in part for the loss.” Green v. Denver & Rio Grande W. R.R. Co., 59 F.3d 1029, 1032 (10th Cir. 1995). “The rationale for the rule is at least two-fold: First, public policy favors giving the plaintiff a double recovery rather than allowing a wrongdoer to enjoy reduced liability simply because the plaintiff received compensation from an independent source. Second, by assuring a plaintiff’s payments from a collateral source will not be reduced by a subsequent judgment, the rule encourages the maintenance of insurance.” Id. (citations omitted). Moreover, this Court’s “cases have always treated payments from the public treasury, at least when funded by a tax scheme to which the injured party contributed, as from a collateral source.” Id. (citations omitted). This Court has specifically included Social Security Disability Insurance (“SSDI”) payments as falling under the coverage of the collateral source rule. Id. (citing Steckler v. United States, 549 F.2d 1372, 1379 (10th Cir. 1977), for the proposition that SSDI payments are covered by the collateral source rule). Accordingly, it is well-settled that the equities in situations such as those present here favor the victim, not the tortfeasor, and do not constitute an unjust windfall for the victim of discrimination. It therefore cannot reasonably be said that the “equities” preclude a tax penalty offset—and BDC has not identified any authority to the contrary.

Conclusion

For the foregoing reasons, the Commission respectfully requests that this Court affirm the district court.

Statement Regarding Oral Argument

The Commission does not believe that oral argument is necessary, given the well-settled nature of the questions presented in this appeal and the lack of any truly genuine dispute over whether the district court exceeded its discretion as asserted by BDC.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

JENNIFER S. GOLDSTEIN

Acting Assistant General Counsel

s/ James M. Tucker

JAMES M. TUCKER

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

James.Tucker@EEOC.gov

[1] Hollman called Health One because she could not read some of the handwriting on the report, but did not ask for more information regarding Sungaila’s vision or the substance of Dr. Sanidas’ report. App.889. Dr. Sanidas testified that had he been asked, he would have recommended that Sungaila see his own doctor. App.549.

[2] Despite BDC’s claim on appeal that these jobs were all in the local “Denver/Aurora Metropolitan Statistical Area,” see BDC Appellant’s Brief at 13, Cook specifically stated in her July 20, 2012, report presenting this jobs information that the geographic area pertaining to these jobs was statewide, not the Denver metropolitan area. See Supp.App.3 (stating that these types of jobs “were plentiful in Colorado . . . with 6,650 in the state for Driver’s Helper in 2009 . . . and an additional 3750 jobs in the state as of 2009 for Stores Laborer.”) (emphasis added). While this report was not submitted into evidence at trial, Cook did not testify at trial to the contrary.

[3] The court also rejected BDC’s claim that the Commission had failed to preserve its post-verdict challenge to the sufficiency of the evidence regarding substantially comparable jobs. App.354 at n.1.

[4] BDC did not argue below that the instruction impermissibly expanded the temporal scope of the evidence the jury was to consider. See App-979-980. As such, this argument is waived on appeal. See, e.g., Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1167 (10th Cir. 2005) (arguments not raised below are waived on appeal).

[5] The remedies available for violations of the ADA are the same remedies provided under Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 12117(a) (“The powers, remedies, and procedures set forth in section[] . . . 2000e-5 . . . of this title shall be the powers, remedies, and procedures [provided in] this subchapter.”); 42 U.S.C. § 2000e-5(g) (Title VII’s remedial provision); Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1309 (10th Cir. 2005) (“Title I of the ADA . . . explicitly incorporates the powers, remedies, and procedures of Title VII.”).

[6] BDC suggests that because Garcia and Wilson involved a different standard of review than applies here, their holdings are not binding on the company. AtBr.35. Of course, the standard of review applied in these cases has no bearing on the substantive legal standard established by this Court for the defendant’s burden of proof to establish the mitigation defense.

[7] To the extent that, in denying the Commission’s motion for judgment as a matter of law at the close of evidence, the district court interpreted Garcia and Wilson not to require evidence of a specific job opening to satisfy the mitigation defense, see Apx.996-99, the Commission disagrees and submits that the court’s post-trial ruling regarding the lack of evidence of available jobs is correct. A job seeker cannot get a job that is not open and available for hire.

[8] Given this Court’s recognition that evidence regarding the plaintiff’s job search efforts is irrelevant absent evidence of the availability of suitable positions, there is no merit to BDC’s claim of unfairness in being required to present evidence of “available” positions because of the evidence supporting the second prong of the mitigation defense. See AtBr.35. Because BDC failed to satisfy the first prong of the mitigation defense, second prong evidence is as irrelevant here as it was in Goodman and Aguinaga.

[9] BDC’s claim that the question of suitability was not properly before the district court because the Commission failed to raise the issue in its Rule 50(a) motion is incorrect. The Commission raised this “suitability” issue in its Rule 50(a) motion for judgment as a matter of law on the mitigation defense when it argued that BDC failed to present any evidence of the existence of “appropriate” jobs that were available. See App.924-25 (“The Tenth Circuit has specifically said that the Court should not give a failure to mitigate instruction if defendant fails to offer evidence that appropriate jobs were available,” and “[t]he defendant must show also that appropriate jobs were available.”). This Court uses the phrase “appropriate jobs” interchangeably with the phrase “suitable positions” in reference to the defendant’s burden under the first prong of the mitigation defense. See supra, at 34-35; see also AtBr.36-37 (BDC acknowledging same). As Rule 50(a) motions need not adhere to a level of technical precision but instead need only adequately notify the court of the issues being raised, see, e.g., Miller v. Eby Realty Grp., LLC, 396 F.3d 1105, 1114 (10th Cir. 2005), it cannot be said that the Commission’s assertion of a lack of evidence of “appropriate jobs” failed to present the issue of the lack of suitable, comparable positions.

[10] Accordingly, Cook’s testimony is in conflict with BDC’s factually unsupported assertion on appeal that “there were not only one or two possible openings—there were thousands.” AtBr.31.

[11] BDC cites four decisions in which this Court has addressed what the company characterizes as “limited or circumstantial evidence” in the context of a motion for judgment as a matter of law. AtBr.31-32 (citing cases). Each of these cases stands for the unremarkable proposition that despite the absence of strong evidence, a jury can still reach a conclusion based in part on an inference, where appropriate, so long as the record is sufficient to make such an inference reasonable. See cases cited at AtBr.31-32. None of these cases endorse the cascading inference-upon-inference that a jury would have to rely upon to conclude that any of the “possible” jobs Cook mentioned would suffice as a suitable, available position which Sungaila could have discovered and for which he was qualified.

[12] The company stipulated to this amount while reserving its right to challenge on appeal the Commission’s entitlement to the tax penalty offset award, and this amount is based on the court’s post-verdict reinstatement of the full back pay award. See App.376-77.

[13] While in Franks the Supreme Court addressed Title VII’s remedies provision, the remedies available under the ADA are the remedies provided in the same Title VII provision at issue in Franks. See supra, at 33 n.5; Franks, 424 U.S. at 763-64.

[14] This Court reviews a district court’s exercise of its remedial authority under the ADA for abuse of discretion. See Dilley v. SuperValu, Inc., 296 F.3d 958, 967 (10th Cir. 2002) (reviewing remedial award for abuse of discretion).

[15] In EEOC v. RadioShack Corp., No. 10-2365, 2012 WL 6090283, at *5 (D. Colo. Dec. 6, 2012), the district court similarly understood Sears as “put[ting] great emphasis on the plaintiff-recipient’s ability or inability to reduce the tax penalty through income-averaging provisions.” The district court in RadioShack concluded that the victim there was similarly situated to the estates of deceased plaintiffs in Sears, for which income averaging was not available as a matter of law, and was “unlike the plaintiffs in Blim [v. Western Electric Company, 731 F.2d 1473 (10th Cir. 1984)] [because he] would indeed suffer a significant tax penalty, leaving him with less than what he would have had but for his termination.” Id. at *5.

[16] BDC’s attempt to rely on Blim as support for its claim of abuse of discretion is similarly misplaced, because it is uncontested that at the time Blim was decided, just as was the case with Sears, “the tax laws contain[ed] five-year averaging provisions that will eliminate nearly all of any penalty that would otherwise result from receipt of a lump sum payment,” and as a consequence the plaintiffs would “suffer no significant tax penalty.” Blim, 731 F.2d at 1480.

[17] BDC argues that two non-precedential district court decisions suggest that the award of a tax penalty offset here runs afoul of the Seventh Amendment. See AtBr.39-40 (citing Kelley v. City of Albuquerque, No. 3-507, 2006 U.S. Dist. LEXIS 28785 (D.N.M. Mar. 31, 2006); David v. Sirius Computer Solutions, Inc., No. 11-203, 2014 U.S. Dist. LEXIS 29555 (D. Colo. Mar. 7, 2014)). However, neither case supports BDC’s argument. Kelley offers no support because in that case, unlike here, the ultimate question of back pay was submitted to the jury to resolve in an absolute, not advisory, capacity. See Kelley, 2006 U.S. Dist. LEXIS 28785, at *3-*4, *12-*20. In fact, the court in Kelley distinguished Sears and another case because in those cases, the court decided the back pay issue, not a jury. See id. at *17-*19. Similarly, in David, the district court observed that in discrimination cases like Sears the Tenth Circuit had approved the district court’s award of a tax penalty offset. David, 2014 U.S. Dist. LEXIS 29555, at *6-*7. The district court further observed, however, that unlike those discrimination cases, David involved an action in tort, and concluded that “[a]ny such award in a tort action before a jury would be for a jury to decide as an element of damages.” Id. at *7.

[18] For these same reasons, BDC’s assertion that the Commission’s post-trial request for a tax penalty offset deprived the company of “the right to a jury trial on that issue, and the District Court’s grant of that motion violated [the company’s] Seventh Amendment rights,” are not well taken. The company cannot reasonably claim to have lost a right to have a jury determine this component of the back pay award when it argued to the district court that the jury’s role regarding back pay was merely advisory.