Gunter v. Bemis Co., Inc., No. 17-6144 (6th Cir. Oct. 16, 2018)

By Paul Mollica

Through careful advocacy, a former factory worker with lifting restrictions preserves most of his jury verdict in an ADA discrimination case - $181,522.61 in back pay and $92,000 in compensatory damages - and is remanded to the district court for an award of front pay.

Gunter v. Bemis Co., Inc., No. 17-6144 (6th Cir. Oct. 16, 2018): Plaintiff Gunter, who worked and was injured on a factory press, returned to work in 2013 "with temporary restrictions: no reaching with his right arm and no performing overhead work."

By June 2014, his doctor cleared him for general duty with restrictions. Gunter "could not work overhead with his right arm, could lift up to 40 pounds occasionally and 20 pounds frequently from the floor to his waist, could lift up to 20 pounds occasionally from his waist to his chest, could not lift overhead, and could occasionally outstretch his right arm."

The company returned Gunter to duty, but on July 2, 2014 placed him on paid leave "reasoning that it could no longer accommodate his restrictions." He remained on leave until November 2014, then was terminated.

A jury hearing Gunter's ADA discrimination case awarded him back pay and compensatory damages, plus $315,000 in front pay. The district court judge denied the employer's post-verdict motions, other than denying the plaintiff an award for lost benefits, thus reducing the back pay award. Both sides appealed.

The Sixth Circuit substantially affirms. Bemis's principal argument on liability was that it should have won, as a matter of law, because Gunter's restrictions prevented him from performing essential functions of his job, which required lifting and reaching. But the panel holds that the issue was one of fact for the jury. Despite that Bemis's job description included "lifting 45 pounds and reaching 24 inches," counsel introduced sufficient evidence (that a jury could credit) showing that these were not essential functions. These included (1) "that Bemis encourages employees not to lift anything over 40 pounds"; (2) "that Bemis has lifting equipment that employees can use to lift many objects, even if an object weighs as little as 20 pounds"; (3) that co-workers often assisted each other in lifting heavier objects; and (4) "that press assistants do not need to do overhead work, and Gunter learned to use his left arm to complete other duties."

The rest of the opinion is devoted to remedies. First, the panel hold that the jury could have held that Gunter used reasonable diligence in seeking other work, thus mitigating his damages. Gunter "quit school after eighth grade and has never learned to read more than a few words or short phrases," and thus was drastically limited in his opportunities. He could not even "read the newspaper or search the internet" for work. He nevertheless inquired at a number of retailers, and looked into government employment, but at best found part-time, minimum wage work.

On front pay, the panel agrees that the jury should have been instructed that reinstatement was a preferred alternative to front pay, and thus the front-pay verdict had to be vacated. Nevertheless, because the Bemis plant where Gunter once worked closed after the trial ended, the case is remanded to the district court to award "from the time of trial until the plant closed." [Ed. note: it is unclear to me why the jury is charged with deciding this equitable-remedy issue at all, other than on an advisory basis, but seemingly no one objected.]

Finally, on Gunter's cross-appeal, the panel affirms the district court's reduction the jury's award for lost benefits. It holds that Gunter offered no evidence "showing how much [he] paid to join his wife's plan" or how much he "spent money on medical or dental care that his Bemis insurance would have covered." Thus, "[i]n the end, Gunter provided no evidence from which a jury could reasonably find the actual expenses he incurred in joining his wife's insurance."