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Goodman v. OS Restaurant Services, LLC

Court of Appeals of New Mexico

July 31, 2019

JUSTIN GOODMAN, Plaintiff-Appellee,

          APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY Manuel I. Arrieta, District Judge

          Brett Duke, P.C. Brett Duke El Paso, TX Law Firm of Daniela Labinoti, P.C. Daniela Labinoti El Paso, TX for Appellee

          Rodey, Dickason, Sloan, Akin & Robb, P.A. Edward Ricco Scott D. Gordon Albuquerque, NM for Appellant



         {¶1} Defendant OS Restaurant Services, LLC (Outback) appeals from the district court's judgment and certain pre- and posttrial rulings associated with a jury's finding that Outback violated the New Mexico Human Rights Act (NMHRA). On appeal, Outback contends that under the NMHRA: (1) Plaintiffs previously-filed worker's compensation claim does not provide a basis for his claim that Outback retaliated against him; (2) Plaintiff failed to establish that he had a reasonable, objective, good-faith belief he was disabled or Outback believed him to be disabled when it terminated his employment; and (3) inconsistent evidentiary and legal rulings by the trial court deprived Outback of a jury determination as to whether Plaintiff was disabled. We affirm.

         I. BACKGROUND

         {¶2} Plaintiff hurt his ankle while working at the Outback Steakhouse in Las Cruces, New Mexico. He immediately reported the injury to his supervisor, Dustin York. Several minutes later Plaintiff discovered that his ankle was discolored and swollen to a size larger than a grapefruit. Unable to walk from the restaurant without support, Plaintiff left using crutches that his wife brought to him upon learning of his injury. When Plaintiff told York that he wanted to file a worker's compensation claim and asked for an incident report, York replied that Plaintiff did not need to file such a claim and suggested that Plaintiff was not injured while working. York also told Plaintiff that an incident report was not required to receive medical treatment utilizing worker's compensation benefits, which was inaccurate. When Plaintiff persisted in his desire to file a worker's compensation claim, York both delayed submitting the claim with Outback's insurance carrier and entered an incorrect date of injury, which slowed the availability of Plaintiffs worker's compensation benefits.

         {¶3} According to Plaintiff, three days after his injury, York informed him that because he wanted to file a worker's compensation claim, Plaintiff "would no longer be promoted" to assistant manager, as Plaintiff had anticipated, because he was perceived to be "unreliable." Plaintiff nevertheless insisted that his worker's compensation claim be submitted, at which point York continued to obfuscate, giving Plaintiff two toll-free numbers that were actually phone numbers for Wells Fargo Bank. Plaintiff finally asked his medical care provider to call York, and York eventually acquiesced and told Plaintiff he would file the claim.

         {¶4} Five days after his injury, Plaintiff asked York to make an accommodation for him so he could return to work, but York refused. By then, Plaintiff could walk while wearing a protective boot, but not well enough to be a server. Plaintiff suggested that he could expedite food orders (expediting work) or do prep work in the kitchen (prep work), but York did not think Plaintiff could perform those alternative duties with his impairment. Sometime later, Plaintiff told his coworker Eric Tyler that he wanted to contact an attorney, which Tyler reported to another supervisor.

         {¶5} Approximately five weeks after his injury, Plaintiff contacted Jacilyn Jolly, Outback's employment paralegal, and reported that York had taken actions to delay his worker's compensation benefits and refused to accommodate him. Two days later, ostensibly because it was York's policy to terminate employees who had not worked in over thirty days, Plaintiff was fired. Over the course of the next several weeks, Plaintiff developed osteomyelitis, a rare type of bone infection that arose as a complication of his ankle injury, spread through both of his legs, and persisted for nine months.

         {¶6} Plaintiffs amended complaint alleged three causes of action. Under the NMHRA, Plaintiff alleged alternative bases for liability: First, that Outback unlawfully discriminated against him based upon "his disability and/or perceived disability"; and Second, that Outback's actions "also constitute[d] a bad faith worker's compensation retaliation claim." Plaintiff also alleged common law tort claims for retaliatory discharge, also premised upon Plaintiffs worker's compensation claim, and for negligent hiring, training, supervision, and retention of York. Prior to trial, Outback filed its motion in limine which sought exclusion of evidence related to "the exacerbation of Plaintiffs ankle injury," which Outback contended to be irrelevant, and Outback's alleged "failure to accommodate Plaintiffs disability" because Plaintiffs amended complaint did not allege such a claim under the NMHRA. In its written order granting the motion in part, the district court ruled that Plaintiff lacked evidence establishing a "long term or permanent" injury that "substantially limit[s] a major life activity[, ]" which rendered any accommodation-premised claim non-cognizable under the NMHRA, but that Plaintiff could assert that his medical treatment was delayed because of Outback's actions.

         {¶7} A jury trial ensued, and after the presentation of evidence Outback sought judgment as a matter of law under Rule 1-050(A)(2) NMRA on all counts. As relevant to this appeal, and first regarding Plaintiffs NMHRA claim for discrimination, Outback reminded the district court of its evidentiary ruling on Outback's motion in limine, arguing that the trial evidence failed to establish that Plaintiffs injury was a serious medical condition as that term is utilized in the NMHRA and did not reveal knowledge on the part of Outback regarding any such condition. Secondly, as to Plaintiffs NMHRA claim of retaliation, Outback contended that Plaintiff failed to show that he "engaged in a protected activity" on which retaliation was premised.

         {¶8} With respect to the first component of Outback's motion, the district court stated that Plaintiff "ha[d] failed to establish and [could not] establish that [his injury] was a medical condition or disability as defined under the [NMHRA]." The court added that the regulatory definition of a serious medical condition was unmet because Plaintiff seemed only to have a "sprained ankle or a seriously sprained ankle[, ]" and "[t]here did not appear to be any impairment that would come out of it nor [would be] expected." The court observed that "[t]he problem is we don't have any medical evidence to substantiate the medical condition that existed as of [Plaintiffs date of injury]. I was surprised that everybody pulled the medical records out, but that's a trial decision." Accordingly, the court announced its intention to not permit Plaintiffs claim of discrimination based on a serious medical condition or a disability under the NMHRA to proceed to the jury. Although the record is less clear regarding its rationale for permitting Plaintiffs NMHRA retaliation claim to proceed to the jury, the court stated its perception that Plaintiffs submission of a worker's compensation claim could be a basis for it.

         {¶9} Before deliberations began the following morning, the district court instructed the jury and provided it with a special verdict form. Among other responses supplied in conjunction with the jury's partial verdict for Plaintiff-that is, a verdict that rested solely upon Plaintiffs NMHRA claim-the jury concluded that Plaintiffs filing of a worker's compensation claim was not "a motivating factor" in Outback's decision to discharge him, nor had Outback negligently "retain[ed] or supervis[ed]" York. Consistent with the special verdict form, those answers appear to have eliminated the common law torts of retaliatory discharge and negligent hiring, supervision and retention of York. In answering "Yes" in response to the same special verdict form's question as to whether or not Outback violated the NMHRA, the jury's conclusion could only have rested upon the lone instruction it received regarding the NMHRA, which stated only generally that in order to have violated the NMHRA Outback must have engaged in some form of "threat, retaliation, or discrimination against [Plaintiff for] oppos[ing] an unlawful discriminatory practice." The jury instructions lacked definitions or guidance regarding what constitutes an unlawful threat, retaliatory act, or a discriminatory act or practice, and the special verdict form did not seek specificity as to the basis for a finding of Outback's liability under the NMHRA. Outback expressed reservations regarding, but notably did not object to the special verdict form, predicting that because the form only generally asked whether Outback violated the NMHRA, "the appellate court will not know whether [an NMHRA verdict against Outback would rest upon] protected activity involving Plaintiffs [w]orker's [compensation] claim, or . . . things that fall within the four corners of the [NMHRA]."[1] In conjunction with its affirmative response to the form's question regarding whether Outback violated the NMHRA, the jury awarded Plaintiff $60, 000 in damages for lost wages and $35, 000 in damages for emotional distress.

         {¶10} Following the verdict, Outback filed a renewed motion for judgment as a matter of law. The motion focused solely on whether an employee's filing of a worker's compensation claim can amount to protected activity for the purpose of an NMHRA retaliation claim. Specifically, it asserted that "[Plaintiff] prevailed on only . . . [his] claim that Outback had violated the anti-retaliation provision [of the NMHRA] by discharging [Plaintiff] for filing a worker's compensation claim." Plaintiff responded in part by arguing that "Plaintiff had multiple causes of action ... under three legal theories from the same common core of operative facts" and that aspect of the verdict that concluded that Outback violated the NMHRA was supported by testimony regarding Plaintiffs engagement in numerous protected activities for which retaliation is disallowed. In reply, Outback renewed its argument that Plaintiff "failed to establish that he suffered from a disability or that he was perceived as disabled by Outback on or before the date that he was terminated. Nor does Plaintiffs proof establish that it was objectively reasonable for him to believe that he was disabled on that date."

         {¶11} During the hearing on Outback's renewed motion, both parties and the district court were unsure of the basis upon which the jury reached its verdict. For example, Outback believed the only basis for Plaintiffs NMHRA retaliation claim as it was presented to the jury was Plaintiffs filing of a worker's compensation claim. Plaintiff believed the district court "agreed with [Plaintiff]" that "there was another cause of action under [the NMHRA that] prohibits threats, reprisal, [and] retaliation for making a complaint," including complaints about failure to accommodate because of a disability. For its part, and reflecting on Outback's argument that the jury was not instructed as to what constitutes an unlawful discriminatory practice or protected activity under the NMHRA, the district court said,

Yeah, I had difficulty in submitting both theories as alternative theories. I would have preferred one over the other, but it went on both. The special verdict [form expressed that] Outback had violated the [NMHRA], Now, the question is, what does [the jury's] finding mean? To me, it means that they, the jury, found that in retaliation for filing a worker's comp[ensation] claim on a serious physical injury, the jury could have found that they terminated [Plaintiff]. That's how I read it. It's not a tort claim, but it is a finding under the [NMHRA]. The other finding that's probable here from the jury is that [Plaintiff] had opposed an unlawful discriminatory practice . . . related to the worker's comp[ensation] claim.

         {¶12} Adding to the perplexity, the district court's own position with respect to whether Plaintiff proved the occurrence of a serious medical condition diverged from that expressed in its order granting Outback's motion in limine and its ruling that appeared to grant Outback's pre-verdict motion for judgment as a matter of law as to Plaintiffs claim of disability discrimination under the NMHRA: "Now that I've sat at trial and I've seen the exhibits . . . there is evidence to tie the lack of accommodation as a retaliatory discriminatory practice" and that "there was evidence here of a serious physical injury so I think the jury rightfully found so."

         {¶13} Ultimately, the district court's ruling denying Outback's renewed Rule 1-050 motion rested upon its conclusion that: "The parties instructed the jury that [in order for Plaintiff to prevail it must] find an unlawful discriminatory practice. I think the jury could have tied in the worker's comp[ensation] claim to the serious medical condition and that's what we've got. I can't see it any other different way." Following issuance of the district court's one-page order of denial, Outback appealed.


         {¶14} On appeal, Outback argues that the jury's verdict must be reversed, or that a new trial should be granted, for three reasons. First, because the NMHRA does not protect Plaintiff from retaliation based on his filing a claim for worker's compensation benefits. Second, because Plaintiff did not objectively and reasonably believe himself to be disabled or that he was regarded by Outback to be disabled within the scope of the NMHRA. Third, because the district court's inconsistent rulings regarding the ...

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