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Pegues v. Mississippi State Veterans Home

United States District Court, N.D. Mississippi, Oxford Division

October 30, 2017

TAMISHA PEGUES PLAINTIFF
v.
MISSISSIPPI STATE VETERANS HOME DEFENDANT

          ORDER

          MICHAEL P. MILLS, UNITED STATES DISTRICT COURT.

         This cause comes before the court on plaintiff Tamisha Pegues' Motion for Judgment as a Matter of Law or, Alternatively, for a New Trial. Following a trial held on September 11-12, 2017, the jury rendered a defense verdict in this case, finding that defendant Mississippi State Veterans Home (“MSVH”) did not fail to reasonably accommodate plaintiff's disability and that it did not otherwise terminate her on the basis of that disability. In addressing plaintiff's motion, this court will concentrate primarily upon plaintiff's argument that it failed to properly instruct the jury, since it has already made clear its view that this case involved fact issues which were appropriate for resolution by a jury. Indeed, this court made its view in this regard clear in denying plaintiff's motion for a judgment as a matter of law at trial, and there is nothing in plaintiff's post-trial motion which has caused it to alter its view in this regard. Moreover, defendant has thoroughly briefed this issue in its response to the motion for new trial, and plaintiff declined to file a reply to that response. This court therefore concludes that the jury's verdict was supported by the evidence in this case, for essentially the reasons stated in defendant's brief, and it now turns to the jury instruction issues raised by plaintiff.

         In instructing the jury in this case, this court relied upon the Fifth Circuit's quite thorough model jury instructions, which it incorporated largely verbatim. Pegues notes that, during the jury instruction conference, she submitted an additional proposed jury instruction, P-10, which is nowhere to be found in the lengthy model jury instructions prepared by the Fifth Circuit. Jury instruction P-10 would have informed the jury as follows:

The Court instructs the jury that when an employer knows an employee has a disability, law requires the employer to engage in a good faith discussion or “interactive process” with employee before terminating the employee. The purpose of this discussion is to determine if there is any accommodation that can be made in order to keep from terminating the employee.

         This Court refused this instruction, which was truly a “last minute” addition to plaintiff's proposed instructions.

         This court notes that plaintiff failed to include P-10 in the proposed instructions which she submitted during the week before trial, and it was not even submitted at the informal jury instruction conference between the parties' counsel and this court's law clerk which was held after the first day of trial. This court routinely utilizes such informal conferences as a means of narrowing and clarifying the legal issues for its consideration, since the actual jury instruction conference on the record provides a poor forum for the consideration of new legal authorities and arguments. In order to benefit from this process, however, it is incumbent upon the parties to not wait until the last minute to submit their proposed instructions. It also seems clear that submitting eleventh-hour proposed jury instructions has a great potential to ambush opposing counsel, who would have had no reason to suspect that new legal authorities or instructions would be proposed at the formal conference.

         In light of the foregoing, this court believes that, as a procedural matter, plaintiff was clearly derelict in submitting P-10. Moreover, the question arises as to why, if P-10 truly represents a required part of the jury instructions in a Rehabilitation Act case, the Fifth Circuit did not see fit to include it in its proposed instructions. In arguing that this instruction was legally required, plaintiff writes that:

         On September 12, 2017, District Judge Sharion Aycock wrote in Head v. City of Columbus Light & Water Dep't, 2017 WL 4015657 (N.D. Miss. 2017):

The Fifth Circuit has held that “ADA compliance requires an employer to engage in an interactive process with an employee who requests an accommodation for his disability to ascertain what changes could allow him to continue working.” Dillard v. City of Austin, Texas, 837 F.3d 557, 562 (5th Cir. 2016) (citing E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014) (. “In other words, employer and employee must work together in good faith, back and forth, to find a reasonable accommodation.” Id. (citing EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 621 (5th Cir. 2009). The Fifth Circuit has further characterized this process, as “ongoing” and “reciprocal, ” “not one that ends with the first attempt at accommodation, but one that continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed.” Id. at 562-63 (internal quotations omitted).

Head, 2017 WL 4015657, at *9.

In the present case, Defendant gave Pegues no opportunity to discuss an accommodation. Defendant immediately suspended Pegues upon her making the complaint about being required to work outside of light duty, and abolished light duty work altogether when it terminated her. Similar to Cummins v. Curo Health Servs., LLC, 2017 WL 473896, *3 (N.D. Miss. 2017), “[b]ased on the record in this case, it appears that [defendant] terminated any interactive process or flexible dialogue with the Plaintiff when they fired her.”

[Plaintiff's brief at 5-6]. Thus, there are five cases which are either cited or indirectly referenced in plaintiff's briefing on this issue, namely Head, Dillard, LHC, Chevron Phillips and Cummins. One thing these five decisions have in common is that they all involved either summary judgment rulings or the appeals of such rulings. None of the cited decisions were rendered in the jury instruction context, and none of them suggest that a court should instruct a jury regarding the “interactive” nature of the accommodation process.

         Crucially, defendant notes in its briefing that the Fifth Circuit has issued an opinion which directly refutes plaintiff's arguments on this issue. In Picard v. St. Tammany Par. Hosp., 423 F. App'x 467, 470 (5th Cir. 2011), the Fifth Circuit affirmed a district court's rejection of a jury instruction that a violation of the ADA occurs when an employer fails to engage in an “interactive process.” In so ruling, the Fifth Circuit wrote that:

We have observed that the “ADA's regulations state that ‘it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation' in order to craft a reasonable accommodation.” Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 735 (5th Cir. 1999) (quoting 29 C.F.R. § 1630.2(o)(3)). Of course, that which “may be” necessary is not universally required. In fact, [Plaintiff's] proposed per se rule is ill-suited to consideration of the interactive process. We have stated that “there may be some situations in which the reasonable accommodation is so obvious that a solution may be developed without either party consciously participating in an interactive process.” Id. at 736. This is so ...

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