United States District Court, D. Arizona
ORDER
HONORABLE ROSEMARY MARQUEZ, UNITED STATES DISTRICT JUAGE
Pending
before the Court is Plaintiff Thomas Montgomery's Motion
to Bifurcate. (Doc. 77.) The motion is fully briefed and
suitable for determination without oral argument. (Docs. 92,
98.) For the following reasons, Plaintiff's request to
bifurcate the trial into liability and damages phases will be
granted.
I.
Factual & Procedural History
This
lawsuit arises from Defendant Union Pacific Railroad
Company's decision to rescind an offer of employment to
Plaintiff. In October 2014, Defendant offered Plaintiff a
position on its train crew, conditioned on Plaintiff
satisfying certain medical requirements. During the
medical-examination process, Plaintiff disclosed that he had
suffered a brain aneurysm in January 2012. Determining that
Plaintiff posed a risk of sudden incapacitation greater than
1% per year, Defendant rescinded the offer of employment.
Plaintiff
alleges three claims against Defendant. In Count One,
Plaintiff alleges that Defendant discriminated on the basis
of disability by rescinding the offer of employment due to
Plaintiff's brain aneurysm, in violation of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §
12112(a). In Count Two, Plaintiff alleges that
Defendant's 1% policy constitutes unlawful screening on
the basis of disability, in violation of the ADA, 42 U.S.C.
§ 12112(a) and (b)(6). In Count Three, Plaintiff alleges
that Defendant violated the Genetic Information
Nondiscrimination Act (“GINA”), 42 U.S.C. §
2000ff-1(b), by requesting his family medical history.
On
November 21, 2018, the Court denied Defendant's motion
for summary judgment. (Doc. 70.) On December 21, 2018, the
parties filed a Joint Proposed Pretrial Order. (Doc. 72.) The
parties filed various pretrial motions on February 7, 2019,
Plaintiff's Motion to Bifurcate among them. (Docs. 77,
80, 81, 82, 83, 84, 85.)
The
Motion to Bifurcate concerns the following additional facts:
Prior to applying for a job with Defendant, Plaintiff was a
production manager at Gale Insulation for nearly 20 years.
Plaintiff was terminated from that position for taking his
work-issued vehicle home in violation of company policy.
After Gale Insulation, Plaintiff worked for BNSF Railway
Company (“BNSF”) for approximately one year.
During his employment with BNSF, Plaintiff was involved in a
car derailment. As a result, Plaintiff participated in
BNSF's alternative handling process, a non-disciplinary
response to rule violations. The derailment incident did not
appear on Plaintiff's employment record.
In his
application for employment with BNSF, Plaintiff falsely
stated that he was “laid off” from Gale
Insulation. In his application for employment with Defendant,
Plaintiff falsely stated that he left Gale Insulation due to
“downsizing.” Furthermore, in response to the
question, “Have you ever been fired, asked to resign,
forced to leave a position, or had your employment
involuntarily terminated in the last two (2) years, ”
Plaintiff answered “NO.” Plaintiff also answered
“NO” to the question: “Have you been
disciplined for any work related safety violations in the
past two years?”
Defendant's
policy is to not accept candidates who have been disciplined
for any work-related safety violations or who have been
involuntarily terminated in the two years preceding the
application for employment. Both Plaintiff's
involuntarily termination and safety incident would have
independently disqualified Plaintiff from employment with
Defendant, had he disclosed them. There is, however, no
evidence that Defendant knew of Plaintiff's
misrepresentations when deciding to revoke the offer of
employment.
II.
Standard of Review
Rule
42(b) of the Federal Rules of Civil Procedure permits
district courts to bifurcate trials “[f]or convenience,
to avoid prejudice, or to expedite and economize.”
“It is clear that Rule 42(b) gives the courts the
authority to separate trials into liability and damages
phases.” Estate of Diaz v. City of Anaheim,
840 F.3d 592, 601 (9th Cir. 2016) (alteration omitted)
(quoting De Anda v. City of Long Beach, 7 F.3d 1418,
1421 (9th Cir. 1993)).
III.
Discussion
A.
Prejudice
Plaintiff
asserts that separate trials on liability and damages are
necessary to avoid unfair prejudice associated with
Defendant's after-acquired evidence, i.e., evidence of
employee wrongdoing that is discovered after the
allegedly discriminatory employment decision. See Rivera
v. NIBCO, Inc., 364 F.3d 1057, 1070-71 (9th Cir. 2004).
The after-acquired evidence in this case-i.e.,
Plaintiff's false statements that he had not been
terminated and that he had no safety violations-is not
relevant to Defendant's decision to rescind the offer of
employment. See McKennon v. Nashville Banner Publ'g
Co., 513 U.S. 352, 360 (1995) (“The employer could
not have been motivated by knowledge it did not have and it
cannot now claim that the employee was fired for the
nondiscriminatory reason.”) ...