Colorado Cases July 19, 2019: Hayes v. SkyWest Airlines, Inc.

Case Description

[401 F.Supp.3d 1198]

Amy Dell Trenary, Appeal to Justice, LLC, Broomfield, CO, Mary Josephine Lowrey, Sarah J. Parady, Lowrey Parady, LLC, Denver, CO, Paul J. Maxon, Paul Maxon, P.C., The Law Office of, Boulder, CO, for Plaintiff.

Gregory M. Saylin, Tyson C. Horrocks, Holland & Hart LLP, Scott M. Petersen, Fabian VanCott, PC, Salt Lake City, UT, for Defendant.

ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL

Robert E. Blackburn, United States District Judge

The matter before me is Defendant's Motion for New Trial [#265], filed October 24, 2018. I deny the motion.

I. JURISDICTION

I have jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (federal question).

II. STANDARD OF REVIEW

When a case has been tried to a jury, a new trial may be granted "for any of the reasons for which new trial have heretofore been granted in actions at law in the courts of the United States." FED. R. CIV. P. 59(a)(1)(A). In matters decided without a jury, the court may grant a new trial on any issue "for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court." FED. R. CIV. P. 59(a)(1)(B). see also McHargue v. Stokes Division of Pennwalt Corp. , 912 F.2d 394, 396 (10th Cir. 1990).

In either instance, a motion for new trial "is not regarded with favor and should only be granted with great caution," United States v. Kelley , 929 F.2d 582, 586 (10th Cir. 1991), and then "only to correct manifest errors of law or to present newly discovered evidence," Elm Ridge Exploration Co., LLC v. Engle , 721 F.3d 1199, 1216 (10th Cir. 2013). see also Charles Alan Wright et al., 11 Federal Practice & Procedure Civil § 2804 (3rd ed.) ("A motion for a new trial in a nonjury case...should be based upon manifest error of law or mistake of fact, and a judgment should not be set aside except for substantial reasons.") (footnote omitted). The decision whether to grant a new trial is committed to the sound discretion of the trial court. Kelley , 929 F.2d at 586.

III. ANALYSIS

Plaintiff John Hayes's claims for retaliation under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 - 2654, and for discrimination and retaliation under the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 - 12213, were tried to a jury on September 18-22, 2017. The jury returned verdicts in favor of Mr. Hayes on all claims submitted to it and

[401 F.Supp.3d 1199]

awarded substantial compensatory and punitive damages. Defendant SkyWest Airlines, Inc. ("SkyWest") now moves for a new trial on numerous grounds under Rule 59(a)(1)(A). Pursuant to Rule 59(a)(1)(B), it also seeks reconsideration of my order granting Mr. Hayes's post-trial motion for an award of front pay. ( See Findings of Fact, Conclusions of Law, and Orders Re: Front Pay [#247], filed September 24, 2018 [hereinafter " FOF & COL "].) For the reasons set forth herein, I deny the motion in all particulars.

A. Evidence of Mr. Hayes's Employment with UGE

SkyWest argues first that Mr. Hayes withheld material evidence regarding his subsequent employment as a ramp agent with United Ground Express ("UGE") in Memphis, Tennessee. More specifically, SkyWest maintains Mr. Hayes failed to apprise it timely that, beginning in July 2017 and continuing through the time of trial, he had been placed on medical leave by UGE and thus was not working. The circumstances of UGE's decision were set forth in my findings awarding Mr. Hayes front pay:

Mr. Hayes's position as a Ramp Agent for UGE is physically demanding work that required him to work outside in all weather conditions. While Mr. Hayes was still receiving dialysis, he was more susceptible to dehydration, a condition exacerbated by Memphis's summertime heat and humidity. Mr. Hayes's doctors were "not supportive" of his decision to take the job with UGE for this very reason. As a result of this confluence of factors, on July 7, 2017, Mr. Hayes collapsed at work. He was placed on medical leave by UGE and was not approved to return to work until September 17, 2018.

( FOF & COL at 12 (footnote omitted).) SkyWest insists a new trial is warranted based on the failure to provide this evidence prior to trial.

I disagree. To warrant a new trial based on newly discovered evidence, SkyWest must show each and all of the following:

(1) the evidence was newly discovered since the trial; (2) [the moving party] was diligent in discovering the new evidence; (3) the newly discovered evidence could not be merely cumulative or impeaching; (4) the newly discovered evidence [was] material; and (5) that a new trial, with the newly discovered evidence[, will] probably produce a different result.

Joseph v. Terminix International Co. , 17 F.3d 1282, 1285 (10th Cir. 1994) (citation and internal quotation marks omitted). Even assuming arguendo SkyWest can satisfy the first three elements of the relevant standard, I cannot find Mr. Hayes's circumstances at UGE were material, much less that they would have changed the outcome of the trial.

Evidence is material if it goes to "one of the most significant aspects" of the case. Graham by Graham v. Wyeth Laboratories, Division of American Home Products Corp. , 906 F.2d 1399, 1417 (10 thCir.), cert. denied , 498 U.S. 981, 111 S.Ct. 511, 112 L.Ed.2d 523 (1990). While SkyWest focuses myopically on whether Mr. Hayes could perform the lifting duties of a Ramp Agent as SkyWest defined that position, Mr. Hayes never maintained he could perform that aspect of the job. Indeed, it was quite clear he could not. Nevertheless, it was also clear from the evidence

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presented at trial that Mr. Hayes could perform, and desperately wished to perform, other jobs which did not require lifting beyond his medical restrictions, including the very job he was performing at the time SkyWest forced him back on medical leave in August, 2014.

More importantly, whether another employer determined Mr. Hayes could not work as a "ramp agent," as that employer defined the position, does not speak to the material question that was at the center of this case: SkyWest's motivations for forcing Mr. Hayes to go back on medical leave and refusing to hire him for other available positions within the company. Those decisions are specific to the relationship between Mr. Hayes and SkyWest. SkyWest's intentions in dealing with Mr. Hayes could not have been informed by the actions of a different employer in a different city occurring several years after the events in this case. If anything, allowing this evidence would have risked jury confusion over the relevant issues in the case.

Nor would this evidence been likely to change the jury's award of punitive damages, for the same reasons. The jury was tasked to consider whether SkyWest acted with malice or reckless indifference to Mr. Hayes's federally protected rights. See 42 U.S.C. § 1981a(b)(1). That standard is met when the evidence shows the employer knew it was acting in violation of federal law or that it acted "in the face of a perceived risk that its action will violate federal law." Kolstad v. American Dental Association , 527 U.S. 526, 535-36, 119 S.Ct. 2118, 2124-25, 144 L.Ed.2d 494 (1999). Here again, the focus is entirely on why SkyWest knew and how it acted toward Mr. Hayes. Whether it was reasonable for another employer to place Mr. Hayes on medical leave, three years after the events in this case, simply would not have made it more or less likely that SkyWest did not understand its obligations to Mr. Hayes under the disability discrimination laws.

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Because this evidence was not material, it would not have changed the outcome of this trial. The jury heard copious evidence that fully supported its determinations that SkyWest intentionally discriminated and retaliated against Mr. Hayes. Having presided over this trial, I have no trouble in concluding that evidence of UGE's treatment of Mr. Hayes would not have altered the jury's perception of the reasonableness or legality of SkyWest's decisions.

B. Contempt Findings/Plaintiff's Closing Arguments

SkyWest next alleges error in my advisements to the jury following the three contempt citations that occurred during the course of the trial. It claims these comments, together with arguments made by counsel for Mr. Hayes during his rebuttal closing, unfairly prejudiced the jury against it. Stripping away SkyWest's hyperbole about these matters, none of these alleged errors, either Individually or collectively, warrants a new trial. See United States v. Lopez-Medina , 596 F.3d 716, 741 (10th Cir. 2010) ("Where, as here, a defendant has failed to establish the existence of multiple non-reversible errors... he cannot benefit from the cumulative error doctrine.") (citation and internal quotation marks omitted).

Regarding the contempt citations against SkyWest's paralegal, Ann Rutledge, and its corporate representative, Jaime Sorensen, as well as against the juror implicated in Ms. Sorensen's contempt, I note that SkyWest failed to lodge a contemporaneous objection to the advisements I gave to the jury about the absence of these individuals from the courtroom. My review therefore is limited to plain error only. See Henderson v. United States , 568 U.S. 266, 277, 133 S.Ct. 1121, 1129, 185 L.Ed 2d 85 (2013) ; United States v. Gonzalez-Huerta , 403 F.3d 727, 744-45 (10th Cir.), cert. denied , 546 U.S. 967, 126 S.Ct. 495, 163 L.Ed.2d 375 (2005).

I perceive no error, much less plain error, in this regard. First, and contrary to SkyWest's reckless misrepresentation, I did not reprimand or dismiss any of these three individuals in the presence of the jury. When I witnessed what I perceived to be Ms. Rutledge's attempts to coach Ms. Sorensen as the latter was asked to testify about a particular trial exhibit, I immediately called the parties to the bench to apprise them of what I had seen and then dismissed the jury, telling them only that "a matter has arisen that requires our attention outside your hearing and your presence altogether." ( See Trial Tr. at 736-738.) After questioning Ms. Rutledge, who admitted she had "gestured don't answer a question about [the document]," I found her in direct contempt of court and dismissed her from the remainder of the trial. (Trial Tr. at 739-740.)

I then allowed the parties to make "any record that may be indicated or implicated by the Court's finding of direct contempt of Court." (Trial Tr. at 740.) Counsel for SkyWest was permitted to speak first and acknowledged that some instruction to the jury to apprise it of the fact that Ms. Rutledge had been removed was called for. Counsel for SkyWest requested I examine Ms. Sorensen to determine whether she had witnessed Ms. Rutledge's attempt to coach her, which examination I conducted on the record but still outside the presence of the jury. (Trial Tr. at 740-741.) Counsel for Mr. Hayes requested I provide a brief explanation to the jury as to why Ms. Rutledge had been dismissed, arguing that such bore on the credibility of Ms. Sorensen's testimony. (Trial Tr. at 742, 744.)

After examining Ms. Sorensen, who said she saw Ms. Rutledge "doing something" but "didn't catch a hint or anything else," I informed the parties as follows:

I intend to advise the jury that Ms. Ann Rutledge, the paralegal for the defendant, attempted to communicate improperly

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with the witness during examination by Mr. Maxon; that the Court found that to be highly inappropriate, contemptuous, and has dismissed Ms. Rutledge.

(Trial Tr. at 746.) I then stated my intent to question the jury as a group as to whether they witnessed any attempted communication from Ms. Rutledge to Ms. Sorensen. As noted previously, SkyWest lodged no objection to that proposal. Only then did the jury return to the courtroom, where I advised them:

Ladies and gentlemen of the jury, in apparent reaction and response to Mr. Maxon's last question to Ms. Sorensen, the witness on the stand, the paralegal for the defendant SkyWest, Ann Rutledge, attempted to communicate improperly, inappropriately, with Ms. Sorensen. As a result, I have banished Ms. Rutledge from the courtroom and this trial.

(Trial Tr. at 747.) When, in response to my query, no juror acknowledged having seen the attempted communication, the trial resumed.

Given these truly extraordinary circumstances, there is no manner in which my advisement to the jury could be construed to constitute error, let alone to have so grievously effected the fairness of the trial as to amount to plain error. Any attempt to influence the testimony of a witness is a gravely serious matter; when such actions occur in open court, in the presence and possible view of the jury, the risk of irreparable damage to the fairness and integrity of the trial is extremely high. If any of the jurors had witnessed Ms. Rutledge's behavior, as I did, a mistrial almost certainly would have been indicated. I could not possibly have asked the jurors whether they had been seen these actions had I not informed them, succinctly and in the most general terms, what occurred. Telling the jury that such "improper[ ], inappropriate[ ]" conduct had resulted in Ms. Rutledge being "banished from the courtroom and this trial" was meant to impress on them the profound seriousness of the infraction, so they would be encouraged to take their own responses as to whether they had seen such actions with the same degree of gravity.

Nor did my subsequent advisement to the jury about the dismissals of Ms. Sorensen and the juror with whom she communicated the very evening after Ms. Rutledge's dismissal constitute error, plain or otherwise. Having three serious acts of contempt occur within less than twelve hours of each other during a trial is truly

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unprecedented in all my time on the bench. These contempts occurred at the very end of a long and hard-fought trial, which itself was preceded by several years of long and hard-fought litigation between the parties. A mistrial is never a trivial matter, but it would have been particularly devastating in this case. As with Ms. Rutledge's conduct, these indirect acts of contempt also implicated the integrity and fairness of the trial, except now a juror was implicated. Moreover, Ms. Sorensen's and the juror's absence from the proceedings would have been conspicuous to the jury.

Given the totality of the circumstances, it was vital to impress on the remaining jurors the seriousness of these offenses and of their consequences. Informing the jury that these two individuals would be subject to contempt proceedings was intended to do just that. ( See Trial Tr. at 822.)

As for the comments made in rebuttal closing on behalf of Mr. Hayes, I see no basis on which to conclude that any of these statements require a new trial. See Whittenburg v. Werner Enterprises Inc. , 561 F.3d 1122, 1127 (10th Cir. 2009) ("The trial judge is in the best position to determine the prejudicial effect of improper arguments, and thus whether a new trial is warranted.") (citation and internal quotation marks omitted). Contrary to SkyWest's characterizations, these comments were not improper ad hominem attacks on counsel for SkyWest, but rather arguments as to the believability of the positions counsel advanced in support of his client's position. By definition, rebuttal argument is a comment on and critique of the defense's closing argument, and counsel is afforded "considerable leeway" in zealously advocating for his client. Lambert v. Midwest City Memorial Hospital Authority , 671 F.2d 372, 375 (10th Cir. 1982). Counsel for SkyWest made arguments based on what he perceived the evidence showed; counsel for Mr. Hayes simply responded with his contrary view. Counsel for Mr. Hayes did not call counsel for SkyWest a liar, but rather stated only

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that the positions he advocated on behalf of SkyWest were not supportable on the evidence. See United States v. Kravchuk , 335 F.3d 1147, 1153 (10th Cir.) (although improper to refer to defendant as a liar, it is not per se improper to refer to his testimony as a lie), cert. denied , 540 U.S. 941, 124 S.Ct. 279, 157 L.Ed.2d 254 (2003). That he referred back to defense counsel's closing arguments in so doing does not transform his remarks into improper ad hominem attacks.

Moreover, I am confident that in the context of this trial as a whole, these remarks did no influence the jury's verdict. Lambert , 671 F.2d at 375. With respect to the single statement to which SkyWest actually objected, I immediately issued a curative instruction, telling the jury that it was for them to "decide who and what to believe from the evidence in this case." (Trial Tr. at 937-938.) Lopez-Medina , 596 F.3d at 740 (improper remarks which are not pervasive do not require reversal when "the jury is advised that arguments of counsel are not evidence"). Although SkyWest would have me infer prejudice from the size of the jury's punitive damages award, I have no doubt that it was the strength of Mr. Hayes's claims, and the weaknesses of SkyWest's explanations and defenses, rather than any improper passion or favoritism, that brought about that result. No new trial is warranted on this basis.

C. Rule 602 Objections

SkyWest next posits the trial was littered with evidentiary errors because testimony was admitted without first requiring the proponent to lay a proper foundation. More specifically, it objects to my practice of admitting testimony over a Rule 602 objection if the question is prefaced with some variant of the statement "If you know, and only if you know..." In SkyWest's estimation, a witness's own affirmation that she has personal knowledge of a matter is insufficient to establish foundation under Rule 602.

This is utter nonsense. Rule 602 expressly provides "[e]vidence to prove personal knowledge may consist of the witness's own testimony." FED. R. CIV. P. 602. "[P]ersonal knowledge may be established by the testimony of an in court

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witness without any elaborate foundation separate from the witness' description of the events in question." United States v. Gutierrez de Lopez , 761 F.3d 1123, 1132 (10th Cir.), cert. denied , ––– U.S. ––––, 135 S.Ct. 768, 190 L.Ed.2d 639 (2014) (citation and internal quotation marks omitted). "This standard is not difficult to meet":

A court should exclude testimony for lack of personal knowledge "only if in the proper exercise of the trial court's discretion it finds that the witness could not have actually perceived or observed that which he testifies to." United States v. Sinclair , 109 F.3d 1527, 1536 (10th Cir. 1997) (quotations omitted); see also 1 Kenneth S. Broun, McCormick on Evidence § 10 n. 6 (7 ed. 2013) ("[T]he foundational fact of personal knowledge under Rule 602 falls under Rule 104(b); and the trial judge plays only a limited, screening role, merely deciding whether the foundational testimony would permit a rational juror to find that the witness possesses the firsthand knowledge."); [ 27 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure: Evidence ] § 6022 [ (2 ed.2007) ] ("[T]he testimony is excluded only if, as a matter of law, no juror could reasonably conclude that the witness perceived the facts to which she testifies.").

Id. Any purported infirmity in that foundation could and should have been explored on cross-examination. See id. at 1133 ("There is nothing in the record to suggest that [the witness] did not, or even likely did not, have such personal knowledge. [The opponent] had ample opportunity to cross-examine [the witness], or to take him on voire dire [sic], to establish any lack of personal knowledge or opportunity for same, and he could have requested that this be done out of the presence of the jury.") (citation and internal quotation marks omitted).

Moreover, as to each of the specific examples SkyWest cites in support of this argument, each witness's testimony as a whole made abundantly clear the basis for his or her personal knowledge of the question. For example, Kiana Jodell testified she knew SkyWest's valuation from having read the company's own press releases on the topic. (Trial Tr. at 98.) Robert Hopkins was able to testify as to how much Mr. Hayes would have earned had he been hired as a safety supervisor by Simplicity because he himself had been hired for that position. (Trial Tr. at 450-452, 458-459.) It also was proper to allow him to testify as to whether the candidate who SkyWest hired as a safety supervisor instead of Mr. Hayes was qualified for that position, as he had worked with the candidate previously. (Trial Tr. at 429-430, 445-449.)

A new trial therefore is not warranted on this basis either.

D. Backpay and Punitive Damages Awards

SkyWest next challenges the jury's awards of backpay and punitive damages

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under the ADA as speculative and insupportable on the evidence. These contentions are groundless.

The Tenth Circuit has affirmed that, as the finder of fact, a jury has "wide latitude and discretion" in determining an appropriate award of damages:

The jury holds the exclusive function of appraising credibility, determining the weight to be given to the testimony, drawing inferences from the facts established, resolving conflicts in the evidence, and reaching ultimate conclusions of fact. It is a fundamental legal principle that the determination of the quantum of damages in civil cases is a fact-finder's function. The jury, who has the first-handed opportunity to hear the testimony and to observe the demeanor of the witnesses, is clothed with a wide latitude and discretion in fixing damages, pursuant to the court's instructions, deemed proper to fairly compensate the injured party. Further, the amount of damages awarded by a jury can be supported by any competent evidence tending to sustain it.

Prager v. Campbell County Memorial Hospital , 731 F.3d 1046, 1063 (10th Cir. 2013) (internal citations and quotation marks omitted). Given the breadth of the jury's discretion in this regard, SkyWest "carries the heavy burden of demonstrating that the verdict was clearly, decidedly, or overwhelmingly against the weight of the evidence." Hill v. J.B. Hunt Transport, Inc. , 815 F.3d 651, 668 (10th Cir. 2016) (citation and internal quotation marks omitted). "[A] jury's determination of fact is considered inviolate absent an award so excessive or inadequate as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial." Id. (citation and internal quotation marks omitted).

Nothing in the record of this case comes anywhere close to meeting that exacting standard. The jury's backpay award of $150,000 can easily be traced to the evidence establishing what Mr. Hayes could have expected to make (with benefits, and less what he actually did earn) had he been employed by Simplicity in the approximately three years between the date he was forced out on unpaid medical leave by SkyWest and the date of the jury's verdict. Nor was it purely speculative (as SkyWest suggests) that Mr. Hayes would have been hired by Simplicity – all former SkyWest Certified Station Trainers who applied to Simplicity were hired by the company, and Robert Hopkins (who had authority to hire for Simplicity) testified he would have hired Mr. Hayes for that position. SkyWest's suggestion that Mr. Hayes's entitlement to backpay should be measured against the very job he was denied as a result of SkyWest's discrimination and retaliation simply was not one the jury was required to accept.

Nor was the jury's award of punitive damages excessive. I have already found appropriate the jury's determination that SkyWest acted with the requisite "malice or reckless indifference to [Mr. Hayes's] federally protected rights." ( See Order Denying Defendant's Renewed Motion for Judgment as a Matter of

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Law at 5-6 [#282], filed July 3, 2019) (quoting 42 U.S.C. § 1981a(b)(1).) An award of punitive damages therefore was appropriate, although the jury's substantial award later was reduced to comply with the applicable statutory cap. 42 U.S.C. § 1981a(b)(3)(D) (for employers of SkyWest's size, "[t]he sum of the amount of compensatory damages awarded under this section...and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party...$300,000"). ( See Order Granting Stipulated Motion To Amend Final Judgment and for Entry of Amended Final Judgment [#254], filed October 12, 2018.) The reduction rendered the punitive damage award precisely equal to the amount of backpay awarded under the ADA.

That award is most certainly not excessive. Indeed, to reduce it further would constitute unwarranted judicial ingerence wreaking impermissible violence to the jury's verdict:

Section 1981a establishes a regime whereby the jury will set the damages, without reference to the statutory cap. Then, if the damages awarded exceed the relevant limit, the district court shall reduce the amount so that it conforms to the statutory cap. The statutory cap is not the limit of a damages spectrum, within which the judge might recalibrate the award given by the jury. To treat it as such would be to invade the province of the jury, something explicitly contrary to the purposes of 1981a. Thus, only when an award would shock the judicial conscience, and constitute a denial of justice, for example because it would result in the financial ruin of the defendant or constitute a disproportionately large percentage of a defendant's net worth, will we reduce the award below the statutory cap.

Deters v. Equifax Credit Information Services, Inc. , 202 F.3d 1262, 1273 (10th Cir. 2000) (internal citations and quotation marks omitted). Given all the evidence in this case, the punitive damages ultimately awarded against SkyWest in this case do not shock the judicial conscience, and thus do not warrant a new trial.

E. FMLA Retaliation

At least twice previously, SkyWest has argued that Mr. Hayes's FMLA retaliation claim was infirm on the same bases advanced here. ( See Defendant's Renewed Motion for Judgment as a Matter of Law at 3-8 [#263], filed October 24, 2018; Defendant SkyWest Airlines, Inc.'s Response to Plaintiff's Motion for Additional Monetary Awards at 10-21 [#204], filed March 14, 2018.) Having already considered and rejected these arguments, I see no reason to rehearse them again here. ( See Order Denying Defendant's Renewed Motion for Judgment as a Matter of Law at 3-5 [#282], filed July 3, 2019; Order Re: Plaintiff John Hayes' Motion for Additional Monetary Awards at 9-12 [#220], filed July 2, 2018.) Suffice to say that a new trial is not warranted on this basis.

F. Front Pay

SkyWest acknowledges that I have already found Mr. Hayes was entitled to front pay despite the elimination of his original job with SkyWest, and thus objects here only to preserve that issue. I overrule that objection for the same reasons

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stated and authorities cited I set forth previously. ( See Order Re: Plaintiff John Hayes' Motion for Additional Monetary Awards at 7-9 [#220], filed July 2, 2018.)

Separately, however, SkyWest also argues that it is entitled to a new hearing on the issue of front pay under Rule 59(a)(1)(B). I disagree and find that, far from showing any manifest error of law or mistake of fact, SkyWest has done little more than rehash arguments I have already considered and addressed, sometimes repeatedly.

SkyWest first argues that my decision to deny its various eleventh-hour appeals for further discovery on front pay issues was prejudicial. SkyWest first raised the allegation of inadequate discovery in its response to Mr. Hayes's motion for additional monetary awards, including front pay. Although SkyWest characterized this request as "narrow," it in fact was quite broad, seeking an additional ninety days to discover not only "the status of Plaintiff's health circumstances, his ability to work, his work status and compensation, and his efforts to continue to mitigate his damages," but also "to seek discovery from Plaintiff's employers or those from whom he has sought employment." ( Defendant SkyWest Airlines, Inc.'s Response to Plaintiff's Motion for Additional Monetary Awards at 9 [#204], filed March 14, 2018.) I denied that request because, in addition to being procedurally improper under D.C.COLO.LCivR 7.1(d), it was substantively groundless:

[SkyWest] plainly could have anticipated front pay would be an issue were plaintiff to prevail on any one of his claims in this lawsuit. Its failure to take adequate discovery on that issue prior to the discovery deadline is unexplained and inexcusable.

( Order Re: Plaintiff John Hayes' Motion for Additional Monetary Awards at 7 n.10 [#220], filed July 2, 2018.)

Having determined Mr. Hayes was entitled to front pay, I set an evidentiary hearing to determine front pay for September 4, 2018. ( See id. ¶ 4 at 15.) Less than two weeks before the date scheduled for the hearing, SkyWest filed a motion seeking a ninety-day continuance on the ground that it had become aware that Mr. Hayes recently had received a kidney transplant . ( Motion for Continuance of September 4, 2018 Hearing and Motion for Leave To Conduct Additional Discovery [#221], filed August 23, 2018.) Concluding SkyWest had not been diligent in seeking this discovery (as it had been on notice since the inception of the case that Mr. Hayes ultimately would require, and had long been awaiting, a kidney transplant ), I found further that the issues as to which SkyWest claimed it required discovery were either addressed by the information already provided in anticipation of the hearing and/or could adequately be explored on cross-examination. ( See Order Denying Motion for Continuance of September 4, 2018 Hearing and Motion for Leave To Conduct Additional Discovery at 2 [#229], filed August 29, 2018.)

Thus, procedurally, I find, as I did previously (albeit implicitly), that SkyWest has waived any right to complain about the inadequacy of its front pay discovery. See United States v. Carrasco-Salazar , 494 F.3d 1270, 1272 (10th Cir. 2007) ("[W]aiver is the intentional relinquishment of a known right.") (quoting United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993) ) (internal

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quotation marks omitted). It therefore is not entitled to review at all, even for plain error. See id. ; United States v. Hardwell , 80 F.3d 1471, 1487 (10th Cir. 1996), reh'g granted in part on other grounds , 88 F.3d 897 (10th Cir. 1996).

Moreover, I find nothing in SkyWest's present arguments that convince me that it was error, let alone prejudicial error, to deny its discovery requests. For example, there was no perceivable prejudice in failing to allow SkyWest to take discovery of Mr. Hayes's post-termination efforts to mitigate his damages by obtaining other employment, as defense counsel explored these issues at length at the hearing. SkyWest fails to specify how this opportunity was inadequate, and as I subsequently found, most of this evidence was irrelevant to the issue of front pay in any event. ( See FOF & COL at 3 n.3.) As for the supposed lack of information regarding Mr. Hayes's long-term health prospects following his kidney transplant , to the extent such matters are even knowable, the fact that Mr. Hayes's present doctors released him to work just shortly after the date of front pay hearing suggested by at least a preponderance of the evidence that his future employment prospects were bright.

SkyWest next argues I should not have used the job at Simplicity as a benchmark for front pay because Mr. Hayes could not perform the lifting requirements of that job. Although the written job description purports to require lifting of up to seventy pounds, which was beyond Mr. Hayes's restrictions at the time he might have been hired by Simplicity (Front Pay Hrg. Tr. at 47), Mr. Hopkins testified that someone with Mr. Hayes's restrictions nevertheless could perform the job by seeking assistance from other employees. (Front Pay Hrg. Tr. at 17 (discussing training on "team lifts").) In addition, Mr. Hopkins averred he still would have recommended Mr. Hayes for that position despite his lifting restrictions. (Front Pay Hrg. Tr. at 70.)

Nor do I find persuasive SkyWest's related contention that Mr. Hayes's entitlement to front pay ended when he accepted employment with UGE. This argument is based on SkyWest's facile assumption that Mr. Hayes was incapable of performing any type of work after UGE placed him on medical leave. I have rejected this proposition already, finding that but for SkyWest's illegal discrimination and retaliation, Mr. Hayes would have been working for Simplicity in conditions that were within his medical restrictions, which was not the case at UGE. ( FOF & COL at 12.) Nor is there any basis for SkyWest's assumption that Simplicity would have terminated Mr. Hayes's employment if he had been forced to take a lengthy medical leave. If anything the evidence at the

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front pay hearing was to the contrary. ( See Front Pay Hrg. Tr. at 38-40.)

Finally, SkyWest contests the amount of front pay awarded. It first challenges my finding that plaintiff's work-life expectancy extended to age 65. This argument is based on SkyWest's now-familiar refrain that plaintiff's hypothetical working life absent SkyWest's discrimination and retaliation should be measured either by the position he held at the time he was placed on leave by SkyWest, which ended in December 2014, or alternatively by the Pilot Recruiter position he sought but was denied, which was eliminated in January 2018. As should be plain by this point, I do not find either of these positions to be an appropriate benchmark for plaintiff's post-SkyWest career path. As I have said repeatedly, but for SkyWest's illegal discrimination and retaliation against him, Mr. Hayes most likely would have been hired by Simplicity, where he had the potential for a career stretching at least to standard retirement age.

In related arguments, SkyWest urges (1) that Mr. Hayes's recovery of front pay should be delimited by the amount of his wages while employed by SkyWest; and (2) should be cut off all together because he found employment comparable to that he held at SkyWest after he was terminated. As none of these positions paid anywhere near the same salary plaintiff would have earned had he been employed by Simplicity, I reject these arguments as well.

I likewise reject SkyWest's suggestion that it was error to assume Mr. Hayes will never move to full-time employment with UGE, given the current, much-improved state of his health. As I noted in ruling on the issue of front pay, Mr. Hayes testified credibly and without contradiction that there were no prospects for a full-time position at UGE. ( FOF & COL at 10 n.13.) Moreover, without the network of contacts in Memphis that he enjoyed in Denver, Mr. Hayes's ability to find better employment in Memphis is drastically curtailed. ( Id. at 11.) Nor does the prospect of Mr. Hayes applying for and securing a job with Simplicity in Denver now convince me that his front pay award should be reduced. Again, I addressed this very issue in my findings of fact and conclusions of law, finding that Mr. Hayes could not be faulted for failure to mitigate by relocating yet again while his wife still held a good-paying job in Memphis. ( See id. 11 n.14, 15.)

In sum, SkyWest has not shown the type of manifest error of law or mistake of fact that would warrant a new front pay hearing under Rule 59(a)(1)(B).

IV. ORDERS

For these reasons, SkyWest's motion for new trial must be denied in all its particulars.

THEREFORE, IT IS ORDERED that Defendant's Motion for New Trial [#265], filed October 24, 2018, is denied.