               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 19a0435n.06

                                  Case Nos. 16-4259/17-4135

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                             Aug 20, 2019
NICHOLAS SIEWERTSEN,                              )                      DEBORAH S. HUNT, Clerk
                                                  )
       Plaintiff-Appellant/Cross-Appellee,
                                                  )
                                                  )       ON APPEAL FROM THE UNITED
v.
                                                  )       STATES DISTRICT COURT FOR
                                                  )       THE NORTHERN DISTRICT OF
WORTHINGTON INDUSTRIES, INC.,
                                                  )       OHIO AT TOLEDO
       Defendant-Appellant/Cross-Appellee         )




BEFORE: BATCHELDER, DONALD, and THAPAR, Circuit Judges

       BERNICE BOUIE DONALD, Circuit Judge. Nicholas Siewertsen has worked for

Worthington Industries, Inc. (“Worthington”), a steel manufacturing company, since 1999. For

part of his tenure, Siewertsen worked as a shipper, which entailed operating forklifts, overhead

cranes, and other motorized equipment. Siewertsen is also deaf.

       In 2011, Worthington implemented a company-wide policy that disallowed deaf

employees from operating forklifts. Siewertsen filed suit, alleging disability discrimination in

violation of the Americans with Disabilities Act (“ADA”) and Ohio law.

       In 2015, both parties filed motions for summary judgment. A key dispute at that stage

centered on an admission that Siewertsen made during discovery. He admitted that “operators of

the [overhead crane] must be able to hear audible sounds in order to avoid injury to others.” At

summary judgment, though, he moved to withdraw that admission, arguing that there had been an
Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


error in translation. The district court granted Siewertsen’s motion to withdraw and subsequently

denied both parties’ motions for summary judgment.

          The case proceeded to a bifurcated trial, with the first portion concerning liability and the

second concerning damages. After the close of evidence at the trial on liability, each party moved

for judgment as a matter of law. The district court denied both motions, and the jury returned a

verdict in favor of Siewertsen.

          Prior to the trial on damages, the district court excluded Siewertsen’s damages experts and

denied his motion for a punitive damages jury instruction. At the close of the evidence, the district

court granted Worthington’s motion for a directed verdict on backpay, finding that Siewertsen had

not proven that he was entitled to such damages. After the trial, Worthington filed a motion for a

new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure (“FRCP”), and a motion for

judgment as a matter of law pursuant to FRCP 50(b). The district court denied both motions. Prior

to a verdict being rendered in the damages trial, though, the district court ordered the parties to

enter into settlement negotiations, and the parties reached a resolution pending the outcome of this

appeal.

          The rulings submitted for review are whether the district court: (1) properly granted

Siewertsen’s motion for leave to withdraw his response to request for admission no. 10,

(2) appropriately denied both parties’ motions for judgment as a matter of law, (3) correctly

granted Worthington’s motion for a directed verdict on back pay damages, (4) abused its discretion

in declining to give a punitive damages jury instruction, (5) abused its discretion when it excluded

Siewertsen’s damages experts, and (6) properly denied Siewertsen’s post-trial motion for

declaratory judgment. For the reasons stated below, we AFFIRM.




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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


                                                I.     BACKGROUND1

            Siewertsen has worked at Worthington’s Delta Plant since 1999. The Delta Plant is a steel-

processing center where workers manipulate raw steel to customers’ specifications and then ship

it to them. From 2001 through 2008, Siewertsen was officially assigned to work in packaging, but

he testified at trial that he frequently performed all jobs in the shipping department, including

operating forklifts and overheard cranes multiple times per week.                         Worthington employees

informally trained Siewertsen to operate a forklift in 2000, and Worthington formally certified

Siewertsen to drive a forklift in 2004. Worthington recertified Siewertsen several times after that,

with the latest coming in 2010.

            In early 2011, Worthington sought an expert opinion from David Hoover, the owner and

President of Forklift Training Systems, concerning the ability of a deaf person to operate a forklift

in Worthington’s plants.2 Hoover replied that he did not believe a deaf person could safely operate

a forklift in that environment. Worthington accepted Hoover’s opinion and enacted a policy

disallowing deaf employees, including Siewertsen, from operating forklifts.

            Worthington subsequently determined that, due to Siewertsen’s limited communication

skills, he was eligible for only four positions at the Delta Plant, all of which Siewertsen described

as entry-level and that provided no room for advancement. Siewertsen was transferred to one of

those positions but did not have his pay decreased.

            Siewertsen filed suit on November 28, 2011, alleging that Worthington illegally

discriminated against him on the basis of his disability in violation of Ohio law and the ADA. On

September 25, 2015, the district court denied summary judgment to both parties.


1
 The following consists of testimony from the trial on liability. It is necessarily presented in the light most favorable
to Siewertsen because a substantial portion of the analysis below concerns whether the district court was correct in
denying Worthington’s motions for judgment as a matter of law and for a new trial.
2
    This inquiry was unrelated to Siewertsen.

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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


           A three-day jury trial on liability commenced on September 6, 2016.                      At the trial,

Siewertsen testified that he transferred from the packaging department to the shipping department

in 2008, which he characterized as a promotion. In the shipping department, Siewertsen’s duties

consisted of driving forklifts and operating overhead cranes to load steel coils onto trucks for

delivery. He said that the department was very busy, but he loved working there.

           The shipping department itself is made up of fields of large metal coils waiting to be

shipped, and a shipping bay where trucks and trains arrive to be loaded. In some areas of the coil

fields, the coils were stacked on top of each other such that they created blind spots. The

composition of the fields, and thus the blind spots, were ever-changing because shipping-

department employees loaded trucks throughout the day.

             The shipping-department employees navigated the coil fields and the loading bays on

foot, in forklifts, and on bikes.3 Siewertsen admitted that the coil fields were dangerous. To avoid

accidents between machines and pedestrians, the employees operating forklifts and overhead

cranes would honk their horns and flash their lights when approaching blind spots in the coil fields

and when driving through the loading bay.4 Siewertsen stated that he was able to communicate

with the truck drivers through hand gestures and written messages.

           Siewertsen also testified that he took extra precautions to ensure he maintained a safe work

environment. Prior to operating his forklift every day, he checked to make sure the horn was

functioning properly by sounding it and feeling for the vibration. If Siewertsen believed the horn

was not working, he would alert a supervisor and stop operating that forklift. Id. Siewertsen said

that he always sounded the horn as he approached a blind spot and that he would stop to look



3
    The employees walked while operating the overhead cranes.
4
 The testimony from trial established that the shipping department, though busy, was not loud and that everyone
could hear the horns of the forklifts and cranes.

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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


before continuing. He would also observe pedestrians’ reactions as he approached them to make

sure they heard the horn. Siewertsen averred that he honked the horn on his overhead cranes so

much that “it might [have] bothered some of the other employees[.]” He also testified that he

never walked through the loading area quickly or without following the proper safety procedures.

       Siewertsen further testified that he never had an accident while driving the forklift and that

he had always received high marks in his employee evaluations. Siewertsen did admit, however,

that he had been involved in a near-miss accident in 2010 while walking through the coil field. He

explained that his view to the right was obstructed by coils, and a forklift operator nearly hit him

as he drove past the intersection into which Siewertsen was walking.

       In addition, another Worthington employee testified that Siewertsen was involved in a

near-miss accident while driving a forklift. In that one, Siewertsen, purportedly, almost hit a

pedestrian. The incident was not formally reported, and Siewertsen denied it occurred.

       At the close of the evidence both parties moved for judgment as a matter of law, but the

district court denied each party’s motion. The jury returned a verdict in favor of Siewertsen on the

only issues presented to it: (1) whether he was capable of performing the essential functions of

the shipper position; (2) whether he suffered an adverse employment action; and (3) whether

Worthington failed to prove its direct-threat defense.

       The district court set a trial on damages for September 27 through 28, 2016. Prior to the

trial, the court excluded Siewertsen’s damages experts and denied Siewertsen’s motion for a

punitive-damages instruction. At the close of the trial, the district court granted Worthington’s

motion for a directed verdict on back pay, holding that Siewertsen was not entitled to such

damages. Siewertsen appeals all three rulings.




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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


          After the trial on damages but before the jury reached a verdict, the district court ordered

the parties to enter into settlement negotiations regarding the amount of compensatory damages

owed to Siewertsen. The parties agreed to a stipulation that, should this matter have proceeded to

a verdict as to damages, Siewertsen would have been awarded $150,000.00 in compensatory

damages. The stipulation also contained a caveat that, in the event we reverse the district court,

the stipulation is void.

          Worthington then filed a motion for a new trial under FRCP 59 and a renewed motion for

judgment as a matter of law under FRCP 50(b). Siewertsen did not renew his motion for a new

trial. The district court denied both motions, which Worthington now appeals.

                                           IV. ANALYSIS

          The following analysis proceeds chronologically, addressing first the pre-trial issue raised

by Worthington, then turning to the issues arising from the trial on liability, and concluding with

the issues connected to the trial on damages.

A.        Request for Admission No. 10

          In its request for admission number 10, Worthington asked Siewertsen to “[a]dmit that

operators of the [overhead crane] must be able to hear audible sounds in order to avoid injury to

others.” Siewertsen initially admitted this was true. At summary judgment, though, Siewertsen

argued that he should be allowed to withdraw the admission pursuant to FRCP 36(b) because he

misunderstood the requested admission, and because it would not prejudice Worthington. The

court granted his motion. Worthington appeals, arguing that we should reverse the district court’s

decision because Worthington suffered prejudice as a result of the withdrawn admission. We

affirm.




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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


       “We review the district court’s decision . . . to allow a party to withdraw or amend Rule 36

admissions for abuse of discretion.” See S.E.C. v. Global Express Capital Real Estate Inv. Fund,

I, LLC, 289 Fed. App’x 183, 191 (6th Cir. 2008) (citing Conlon v. United States, 474 F.3d 616,

621 (9th Cir.2007)); see also Kerry Steel, Inc. v. Paragon Indus., 106 F.3d 147, 154 (6th Cir.

1997). “An abuse of discretion occurs if the district court relies on clearly erroneous findings of

fact, applies the wrong legal standard, misapplies the correct legal standard when reaching a

conclusion, or makes a clear error of judgment.” Young v. Nationwide Mut. Ins. Co., 693 F.3d

532, 536 (6th Cir. 2012). “This Court may not disturb the district court’s determination unless it

has a ‘definite and firm conviction that the trial court committed a clear error of

judgment.’” Paterek v. Village of Armada, 801 F.3d 630, 643 (6th Cir. 2015) (quoting FTC v.

EMA Nationwide, Inc., 767 F.3d 611, 623 (6th Cir. 2014)).

       Pursuant to FRCP 36(b), a district court should only allow a withdrawal or an amendment

of an admission if two conditions are met: (1) “the presentation of the merits of the action will be

subserved thereby,” and (2) “the party who obtained the admission fails to satisfy the court that

withdrawal or amendment will prejudice that party in maintaining the action or defense on the

merits.” Kerry Steel, Inc. v. Paragon Indus., 106 F.3d 147, 154 (6th Cir. 1997) (citation and

internal quotation marks omitted).

       Worthington pins its entire argument on the second prong—asserting that it was prejudiced

in its defense against Siewertsen’s claims. It contends that the district court clearly erred because

(1) the court conceded that Worthington would be prejudiced by the withdrawal, and (2) the

prejudice Worthington suffered is obvious because Siewertsen did not attempt to withdraw the

admission for nearly three years.




                                                -7-
Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


       Initially, we note that Worthington misconstrues the district court’s order. The court did

not find that Worthington would be prejudiced by the withdrawal. Specifically, the court stated,

“To remedy any prejudice Worthington may incur from this decision, it may take such reasonable

additional discovery as is necessary to that end.” Thus, the court did not find that Worthington

was prejudiced, and it even took an extra step to ensure that it would not be.

       Next, the court’s finding that Worthington did not necessarily suffer prejudice fits within

our precedent. As we have previously opined, “[t]he prejudice contemplated by [Rule 36(b)] is

not simply that the party who initially obtained the admission will now have to convince the fact

finder of its truth.” Kerry Steel, Inc., 106 F.3d at 154 (quoting Brook Village North Assoc. v.

General Elec. Co., 686 F.2d 66, 70 (1st Cir. 1982). Prejudice under Rule 36(b), rather, “relates to

special difficulties a party may face caused by a sudden need to obtain evidence upon withdrawal

or amendment of an admission.” Id. (citation and internal quotation marks omitted).

       Worthington’s entire argument is premised on the length of time Siewertsen allowed the

admission to remain uncontroverted. However, Worthington does not submit any evidence of

special difficulties it faced in obtaining evidence to remedy the withdrawal or establish how it was

prejudiced at trial. To allow it to avoid any prejudice, the district court even reopened discovery

as to this issue. Moreover, during the trial—which occurred a year later—Worthington cross-

examined Siewertsen concerning the withdrawn admission. Thus, the district court did not abuse

its discretion in allowing Siewertsen to withdraw the admission because Worthington has not

established that it was prejudiced.




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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


B.       Worthington’s Renewed Motion for Judgment as a Matter of Law and Motion for a
         New Trial5

         After the trial on damages, Worthington renewed its motion for judgment as a matter of

law under FRCP 50(b). The district court denied it, and Worthington now appeals.

         “We review de novo the district court’s denial of [a] Defendant[’s] renewed motion for a

judgment as a matter of law.” Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir. 2010) (citing

Radvansky v. City of Olmsted Falls, 496 F.3d 609, 614 (6th Cir. 2007)). In doing so, “[w]e . . .

may grant the motion ‘only if in viewing the evidence in the light most favorable to the non-

moving party, there is no genuine issue of material fact for the jury, and reasonable minds could

come to but one conclusion, in favor of the moving party.’” Id. (quoting Radvansky, 496 F.3d at

614). We do not reweigh the evidence or assess witness credibility, and “our review is restricted

to the evidence . . . admitted at trial.” Id. (citing 9B Charles A. Wright & Arthur R. Miller, Federal

Practice and Procedure § 2540 (3d ed. 2008)).

         In the district court, Worthington argued that no reasonable juror could find that

(1) Siewertsen could perform the essential functions of a shipper, (2) that Siewertsen suffered an

adverse employment action, or (3) that Worthington failed to prove its direct threat defense. It

reasserts those same arguments here.

         1.       The Essential Functions of a Shipper

         “The term essential functions means the fundamental job duties of the employment position

the individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1). It “does not include

the marginal functions of the position.” Id. Courts consider the following non-exhaustive list of

factors in determining whether a function is essential:


5
 Ohio courts follow federal law in regard to disability discrimination claims filed under O.R.C. § 4112.02. Bloomfield
v. Whirlpool Corp., 984 F. Supp. 2d 771, 776 (N.D. Ohio 2013). Therefore, there is no need for a separate discussion
of the elements of a claim for disability discrimination under Ohio law.

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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


       (i) The employer’s judgment as to which functions are essential;
       (ii) Written job descriptions prepared before advertising or interviewing applicants for
       the job;
       (iii) The amount of time spent on the job performing the function;
       (iv) The consequences of not requiring the incumbent to perform the function;
        ...
       (vi) The work experience of past incumbents in the job; and/or
       (vii) The current work experience of incumbents in similar jobs.

§ 1630.2(n)(3). “The inquiry into whether a function is essential is highly fact specific.” Hoskins

v. Oakland Cty. Sheriff’s Dept., 227 F.3d 719, 726 (6th Cir. 2000) (citing Hall v. United States

Postal Serv., 857 F.2d 1073, 1079 (6th Cir.1988) (“Such a determination should be based upon

more than statements in a job description and should reflect the actual functioning and

circumstances of the particular enterprise involved.”)).

       It is undisputed that shippers must communicate. Siewertsen admitted as much while

testifying. The dispositive question is whether “communication” in this context encompasses the

ability to hear audible communications. The district court found that there were genuine issues of

material fact and submitted the question to the jury. The jury determined that it did not. Because

the question was appropriately submitted to, and resolved by, the jury, we affirm.

       At trial, Worthington attempted to establish that the ability to hear is an essential function

of a shipper by submitting proof that shippers are required to operate forklifts and overhead cranes,

enter the coil field, and move among motorized equipment while on foot. It also showed that the

noise level in the shipping department is low enough to allow for audible communication.

Worthington produced documentation that, in its judgment, the ability to hear and talk are required

physical attributes of a shipper. It also admitted into evidence policies that require forklift

operators to sound the horn when they are coming around a blind spot, approaching a pedestrian,

and crossing an aisle.



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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


       For his part, Siewertsen put on evidence that he could perform the essential functions of a

shipper without the ability to hear. Siewertsen’s expert testified that Siewertsen could safely

operate the forklift through sight, and that he could sufficiently communicate through hand signals.

Siewertsen himself testified that he had operated forklifts and other machinery for over ten years

without an accident and that he had been certified to operate a forklift multiple times since 2000.

One of Worthington’s own witnesses corroborated Siewertsen’s testimony that he had not had any

accidents. Siewertsen further testified that he communicated with truck drivers through written

notes and gestures.

       Thus, both parties submitted evidence concerning the type of communication required to

perform the essential functions of a shipper. The jury was not required to give controlling weight

to any one factor, including Worthington’s judgment or policies. EEOC v. Ford Motor Co., 782

F.3d 753, 765-66 (6th Cir. 2015) (en banc) (“None of this is to say that whatever the employer

says is essential necessarily becomes essential . . . . Our ruling does not, in other words, require

blind deference to the employer’s stated judgment.”). The jury weighed the evidence and

concluded that Siewertsen could perform the essential functions of a shipper, even though he could

not hear. Overturning the jury’s decision when there is evidence to support it is beyond the scope

of FRCP 50. Therefore, we affirm.

       2.      Adverse Employment Action

       Worthington argues that the evidence at trial is insufficient to sustain the jury’s verdict that

Siewertsen suffered an adverse employment action when he was prohibited from working as a

shipper and transferred to a different position.

       An adverse employment action is “‘a materially adverse change in the terms or conditions

of employment because of [the] employer’s conduct.’” Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d

876, 885 (6th Cir. 1996) (quoting Spring v. Sheboygan Area Sch. Dist., 865 F.2d 883 (7th Cir.
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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


1989)). “Under this standard, a ‘materially adverse’ change in employment conditions ‘must be

more disruptive than a mere inconvenience or an alteration of job responsibilities.’” Mitchell v.

Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir. 2004) (quoting Kocsis, 97 F.3d at 885).

“[R]eassignments without salary or work hour changes do not ordinarily constitute adverse

employment decisions in employment discrimination claim[s],” Kocsis, 97 F.3d at 885, but “[a]

reassignment without salary or work hour changes . . . may be an adverse employment action if it

constitutes a demotion evidenced by ‘a less distinguished title, a material loss of benefits,

significantly diminished material responsibilities, or other indices that might be unique to a

particular situation[,]’” White v. Burlington Northern & Santa Fe Ry. Co., 364 F.3d 789, 797 (6th

Cir. 2004) (en banc) (quoting Kocsis, 97 F.3d at 886).

       Worthington asserts that Siewertsen did not suffer an adverse employment action because

he was not terminated and because he did not have his pay decreased.

       Viewing the evidence in the light most favorable to Siewertsen, there is sufficient evidence

for a reasonable juror to find that Siewertsen suffered an adverse employment action. To begin,

Siewertsen testified that he loved his job as a shipper and that he found it challenging. In contrast,

upon being transferred, Worthington limited him to just three positions—all of which Siewertsen

regarded as entry level. See Spees v. James Marine, Inc., 617 F.3d 380, 392 (6th Cir. 2010)

(holding that a reasonable jury could find an adverse employment action where an employee was

transferred to a position that, among other things, required less training and was less challenging).

Additionally, Siewertsen testified that the transfer prevented him from attaining promotions, and

he was limited in the amount of raises he could obtain. See Wasek v. Arrow Energy Servs., Inc.,

682 F.3d 463, 470-71 (6th Cir. 2012) (holding that a transfer can result in an adverse employment

action where the transferred employee’s career prospects are significantly limited); see also O'Neal



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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


v. City of Chicago, 392 F.3d 909, 911 (7th Cir. 2004). Based on our prior precedent, a reasonable

juror could have found that Siewertsen suffered an adverse employment action.

          3.      Worthington’s Direct Threat Defense

          In Worthington’s final assignment of error as to the district court’s denial of its motion for

judgment as a matter of law, Worthington contends that the record shows that Siewertsen posed a

direct threat. If Worthington can establish that he was, Siewertsen is not qualified to be a shipper,

and Worthington is absolved of liability. See Estate of Mauro v. Borgess Med. Ctr., 137 F.3d 398,

401-03 (6th Cir. 2000). Worthington, however, did not establish that Siewertsen was a direct

threat.

          “The term ‘direct threat’ means a significant risk to the health or safety of others that cannot

be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3). To determine whether an

individual poses a direct threat, an employer must undertake “an individualized assessment of the

individual’s present ability to safely perform the essential functions of the job.” 29 C.F.R.

§ 1630.2(r). The “assessment shall be based on a reasonable medical judgment that relies on the

most current medical knowledge and/or on the best available objective evidence.” Id. “[T]he

factors to be considered include: (1) [t]he duration of the risk; (2) [t]he nature and severity of the

potential harm; (3) [t]he likelihood that the potential harm will occur; and (4) [t]he imminence of

the potential harm.” Id. In carrying out this analysis, courts should remain mindful of the

underlying objective of the ADA: “‘[t]hat people with disabilities ought to be judged on the basis

of their abilities; they should not be judged nor discriminated against based on unfounded fear,

prejudice, ignorance, or mythologies; people ought to be judged on the relevant medical evidence

and the abilities they have.’” Holiday v. City of Chattanooga, 206 F.3d 637, 643 (6th Cir. 2000)

(quoting Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998)). Employers are thus

prohibited “‘from making adverse employment decisions based on stereotypes and generalizations
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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


associated with       the individual’s       disability rather than on the individual’s         actual

characteristics.’” Id. (quoting EEOC v. Prevo’s Family Mkt., Inc., 135 F.3d 1089, 1097 (6th Cir.

1998)).

          Here, a reasonable juror could have found that Worthington did not establish that

Siewertsen posed a direct threat to the safety of others.

          Siewertsen testified that he had driven a forklift for Worthington for over ten years without

having an accident. He described his daily safety protocols and how he communicated with others,

and his testimony was buttressed by his expert witness, who testified that Siewertsen could operate

a forklift safely. While Worthington did elicit testimony to the contrary, including opinions from

experts and co-workers that Siewertsen was unsafe, we do not weigh evidence or gauge credibility.

The question before us is whether the record contains sufficient evidence from which a reasonable

juror could have found that Siewertsen did not pose a direct threat. It does. Accordingly, we

affirm.

C.        Siewertsen’s Motion for Judgment as a Matter of Law

          Siewertsen appeals the district court’s denial of his motion under FRCP 50(a) for judgment

as a matter of law as to all issues related to liability. Worthington argues that Siewertsen waived

his right to appeal this claim because he did not file a post-trial motion under FRCP 50(b).

          Now that we have affirmed the denial of Worthington’s motion for judgment as a matter

of law, this issue appears to be moot. To the extent it is not, we affirm the denial of Siewertsen’s

motion for the same reason we affirmed above—both sides presented competent evidence to

submit the issue of liability to the jury.




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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


D.      The District Court’s Denial of Siewertsen’s Motion for a Punitive Damages
        Instruction

        “The ADA permits an award of punitive damages ‘if the complaining party demonstrates

that the [employer] engaged in a discriminatory practice . . . with malice or with reckless

indifference to [her] federally protected rights.’” Bates v. Dura Auto. Sys., Inc., 767 F.3d 566, 583

(6th Cir. 2014) (quoting 42 U.S.C. § 1981a(a)(2), (b)(1)). “To be liable for punitive damages, ‘an

employer must at least discriminate in the face of a perceived risk that its actions will violate

federal law.’” Id. (quoting Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535 (1999)).

        During the trial on liability, Siewertsen never requested a jury instruction on punitive

damages or a finding that Worthington acted maliciously or with reckless indifference. Siewertsen

did request a punitive damages instruction prior to the trial on damages, however. The district

court denied the motion, noting that the trial was bifurcated so that the evidence could be presented

efficiently, and the trial on liability was the appropriate forum in which to litigate all issues related

to Worthington’s conduct. The court found that it would undermine the purpose of the bifurcation

to allow Siewertsen to put on further evidence of Worthington’s conduct during the trial on

damages. Siewertsen appeals.6

        Siewertsen frames this issue as simply a question of whether the district court abused its

discretion in denying his motion for a punitive damages instruction. In reality, though, these facts

present a two-step inquiry: (1) whether the district court abused its discretion in determining the

manner in which it tried the issues in the case, and if so, (2) whether the court abused its discretion

in denying Siewertsen’s motion for the punitive damages instruction during the trial on damages.



6
 Worthington argues that Siewertsen waived this issue because the district court actually granted Worthington’s
motion for judgment as a matter of law, and Siewertsen did not appeal the court’s order granting that motion.
Worthington, however, overlooks docket entry number 178, in which the district court specifically states that
Siewertsen preserved the punitive damages issue for appeal. While this is an unusual way to preserve an issue for
appellate review, we will address Siewertsen’s argument.

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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


Siewertsen only perfunctorily addresses the first question, and it is dispositive as to the second.

We find that the district court did not abuse its discretion in efficiently trying this case and therefore

affirm its denial of Siewertsen’s motion.

        Under FRCP 42(b), a district court has broad discretion over whether to try issues

separately and the manner in which it does so. See Yung v. Raymark Indus., Inc., 789 F.2d 397,

400 (6th Cir. 1986). “[M]any courts have upheld cases bifurcated between liability and damages

because the evidence pertinent to the two issues is wholly unrelated, and as a logical matter,

liability must be resolved before the question of damages.” In re Bendectin Litigation, 857 F.2d

290, 309 (6th Cir. 1988). Siewertsen all but avoids FRCP 42 and whether the court appropriately

bifurcated the trial. He argues only that he did not request a punitive damages instruction during

the liability phase because the district court bifurcated the trial over his objection and that he would

not need to re-litigate Worthington’s conduct because the same jury heard both trials. Such brief

argument constitutes forfeiture of the district court’s decision to bifurcate the trial. United States

v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006) (“[I]t is a settled appellate rule

that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed [forfeited].”). Therefore, we find the district court acted within its

discretion in requiring all issues related to Worthington’s conduct be litigated during the trial on

liability.

        To demonstrate that he was eligible to receive punitive damages, Siewertsen had to

establish that Worthington acted with malice or reckless indifference. Bates, 767 F.3d at 583. It

is axiomatic that these findings relate solely to Worthington’s conduct. Because Siewertsen did

not seek a jury finding that Worthington’s conduct rose to maliciousness or reckless indifference

during the liability phase of the trial, and the district court appropriately prohibited further



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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


litigation of Worthington’s conduct during the damages phase, Siewertsen was not entitled to a

punitive damages instruction.

E.      The Exclusion of Siewertsen’s Damages Experts

        Prior to the damages phase of the trial, the district court granted Worthington’s motion to

exclude Siewertsen’s damages experts, finding that their report was neither reliable nor relevant.

Specifically, the court held that the report made invalid assumptions concerning Siewertsen’s lost

opportunity for advancement and promotion and did not establish that the report was based on a

reliable methodology. Siewertsen appeals, arguing that the court erred on both counts. Because

the report is not reliable, we affirm.

        We review a district court’s decision to exclude the testimony of an expert for an abuse of

discretion. Pride v. BIC Corp., 218 F.3d 566, 575 (6th Cir. 2000) (citing Kumho Tire Co., Ltd. v.

Carmichael, 526 U.S. 137, 142 (1999)). Admission of expert testimony is governed by Federal

Rule of Evidence 702. It provides:

        A witness who is qualified as an expert by knowledge, skill, experience, training,
        or education may testify in the form of an opinion or otherwise if:

        (a) the expert’s scientific, technical, or other specialized knowledge will help the
        trier of fact to understand the evidence or to determine a fact in issue;
        (b) the testimony is based on sufficient facts or data;

        (c) the testimony is the product of reliable principles and methods; and

        (d) the expert has reliably applied the principles and methods to the facts of the
        case.

Fed. R. Evid. 702. In short, the report must “rest[] on a reliable foundation and [be] relevant to

the task at hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). When

determining reliability, a district court should consider “whether the reasoning or methodology

underlying the testimony is scientifically valid.” Id. at 592-93. While there is no “definitive

checklist or test,” the Supreme Court has set forth a number of factors that generally “bear on the
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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


inquiry.” Id. at 593. These factors include “whether the theory or technique in question ‘can be

(and has been) tested,’ whether it ‘has been subjected to peer review and publication,’ whether it

has a ‘known or potential rate of error,’ and finally, whether the theory or technique enjoys general

acceptance in the relevant scientific community.” Best v. Lowe’s Home Ctrs., Inc., 563 F.3d 171,

177 (6th Cir. 2009) (quoting Daubert, 509 U.S. at 594). The inquiry is flexible and its “focus . . .

must be solely on principles and methodology, not on the conclusions that the [report] generate[s].”

Daubert, 509 U.S. at 595.

       Siewertsen’s position is that the district court cited the correct legal standard but applied it

incorrectly. He also argues that the district court made clearly erroneous findings. We disagree.

       Siewertsen’s experts prepared a report wherein they calculated damages based on

Siewertsen’s lost opportunity for advancement and promotion after he was removed from the

shipper position. The district court found that the report was unreliable because Siewertsen’s

experts did not explain certain methodologies or disclose others. The district court was within its

discretion in making those determinations.

       To begin, Siewertsen’s experts calculated his earning power based on his average yearly

income from 2011 to 2015. However, Siewertsen’s experts never explained why they used that

formula, and they failed to explain why that formula was reliable or recognized as reliable.

Additionally, the experts appended a “Worklife Probability” chart to the report in which they

calculated that Siewertsen would sustain a future loss of $359,738.00 if he were not transferred

back to the shipper position. But the only explanation offered as to the methodology underlying

the chart is that it represents the difference in Siewertsen’s wages pre- and post-removal from the

shipper position. Again, though, there is no explanation for why the calculation is reliable or even




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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


useful in this case. Therefore, we find that the district court did not abuse its discretion in excluding

Siewertsen’s experts.

F.      Directed Verdict on Back Pay

        After the close of Siewertsen’s evidence in the trial on damages, the district court granted

Worthington’s motion for a directed verdict as to back pay, finding that Siewertsen’s evidence was

too speculative to support an award. We affirm.

        Back pay in this context is an equitable remedy, and therefore, an award is within the trial

court’s discretion. See 42 U.S.C. §§ 12117(a), 2000e-5; Howe v. City of Akron, 801 F.3d 718, 744

(6th Cir. 2015); Szeinbach v. Ohio State Univ., 820 F.3d 814, 820 (6th Cir. 2016); Harris v.

Richards Mfg. Co., 675 F.2d 811, 815 n.2 (6th Cir. 1982). Once a finding of discrimination has

been found, back pay “should be denied only for reasons which, if applied generally, would not

frustrate the central statutory purposes of eradicating discrimination throughout the economy and

making persons whole for injuries suffered through past discrimination.” Albemarle Paper Co. v.

Moody, 422 U.S. 405, 421 (1975). Even with this edict, however, “[t]o prevail on a claim for back

pay . . . a plaintiff must establish the amount of back pay with reasonable certainty.” Szeinbach,

820 F.3d at 824 (6th Cir. 2016) (citing McMahon v. Libbey-Owens-Ford Co., 870 F.2d 1073, 1079

(6th Cir. 1989)). While a plaintiff need not prove damages “‘with the exactitude of lost profits in

a breach of contract case, neither can such an award be appropriately founded on mere

speculation.’” Hance v. Norfolk S. Ry., 571 F.3d 511, 520 (6th Cir. 2009) (quoting Christopher v.

Stouder Mem'l Hosp., 936 F.2d 870, 880 (6th Cir. 1991)).

        In the district court, Siewertsen requested back pay for lost wages, lost overtime, lost profit

sharing, and lost deferred profit sharing. All of Siewertsen’s proof at trial consisted of his previous

payment records and his own testimony concerning calculations done by him and his attorneys.



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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


Because Siewertsen’s calculations were mere speculation with no grounding in fact, he did not

carry his burden of establishing he was entitled to back-pay damages.

         Siewertsen first asked for a total of $28,542.00 in lost wages. He testified that he calculated

this total by taking the average hourly wage of similar shipping department employees from 2011

through 2016 and subtracting what he believed his hourly wage would have been during that time.

He determined that the difference was around ten percent and thus multiplied his total earnings by

ten percent for those years.

         However, Siewertsen’s numbers were incorrect, inconsistent, and based on pure

speculation. First, he based his entire damages calculation on an initial, unreasonable raise—a

methodology for which he had no explanation. Second, he admits that he did not receive a decrease

in pay upon being transferred out of the shipping department and that he continued to receive

raises. His theory of damages therefore is that he would have received higher raises if he would

have been allowed to remain in the shipping department, but Siewertsen admitted that raises at

Worthington were dependent on employees’ evaluations and other budgetary factors and thus were

not predictable. He also testified that he had no evidence of the rate of yearly raises for his

shipping-department comparators, and he did not know their evaluation scores, how long they had

worked in the shipping department, or what jobs they had previously held.                             Accordingly,

Siewertsen submitted no proof from which a reasonable juror could discern whether Siewertsen’s

actual raises were less than what he would have received had he remained in the shipping

department. The district court’s decision to grant Worthington’s motion for a directed verdict did

not frustrate the purpose of the ADA because there was no competent proof to support such an

award.7 Szeinbach, 820 F.3d at 824 (“The plaintiff cannot rest her entitlement to back pay on


7
 Because Siewertsen’s claims as to profit sharing are derivative of his claim for back pay, he is also not entitled to
damages stemming from any alleged lost profit sharing.

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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


‘mere speculation’ about what she would have earned in the absence of discrimination.”) (citation

omitted).

       Siewertsen made similar errors in regard to his claim for lost overtime. He argued that he

was entitled to $46,999.00 in lost overtime compensation. He based that number solely on the

difference in the amount of annual overtime pay he earned in 2010 versus 2011 through 2016.

However, Siewertsen admitted that his overtime compensation in 2010 was an outlier because the

plant was short-staffed. He also conceded that he was unaware of the total amount of available

overtime hours in the shipping department versus the packaging department from 2011 through

2016 and that the shipping department actually had less overtime available to be worked than did

the packaging department. Moreover, Siewertsen testified that he was unaware of any other

shipping-department employee who earned as much in overtime from 2011 through 2016 as

Siewertsen had in 2010. Therefore, Siewertsen’s loss-of-overtime evidence was based on pure

speculation.

G.     Siewertsen’s Post-Trial Motion for Declaratory Judgment

       On September 27, 2016, the district court granted in part and denied in part Siewertsen’s

motion for declaratory judgment and injunctive relief. In its order, the court granted Siewertsen’s

motion insofar as the court mandated that Worthington “return [Siewertsen] to the shipper position

by September 30, 2016; remove the restriction that [he] may not operate a forklift or similar

“powered industrial equipment”; and remove restrictions, if any, limiting [his] application for

positions in the manufacturing department. The court also stated that, “[s]hould [Siewertsen]

believe that [Worthington] has violated this Order, [Siewertsen] may file an appropriate Motion or

Complaint.”

       Siewertsen, however, also sought a declaratory judgment that Worthington’s blanket policy

preventing deaf people from operating certain motorized equipment violates the ADA and Ohio
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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


law. The district court denied this portion of his motion, opining that such relief is overbroad,

unnecessary, and unsupported by the jury’s verdict. Siewertsen appeals that denial.

       We review a district court’s decision to grant or deny a motion for declaratory relief for an

abuse of discretion. Found. for Interior Design Educ. Research v. Savannah Coll. of Art & Design,

244 F.3d 521, 526 (6th Cir. 2001). In doing so, we consider the following factors:

           1) whether the judgment would settle the controversy; 2) whether the
           declaratory judgment action would serve a useful purpose in clarifying the legal
           relations at issue; 3) whether the declaratory remedy is being used merely for
           the purpose of “procedural fencing” or “to provide an arena for a race for res
           judicata;” 4) whether the use of a declaratory action would increase the friction
           between our federal and state courts and improperly encroach on state
           jurisdiction; and 5) whether there is an alternative remedy that is better or more
           effective.

Id. (quoting Scottsdale Ins. Co. v. Roumph, 211 F.3d 964, 967-68 (6th Cir. 2000)). We address

the factors seriatim.

       As to the first factor, the controversy has been settled. Siewertsen alleged that Worthington

violated the ADA and Ohio law by refusing to allow him to work as a shipper. A jury found in

his favor, and he has been returned to that position. We have now affirmed that verdict on appeal.

Therefore, a broader judgment would not assist in settling the controversy.

       As for the second factor, declaring that the blanket policy violates the ADA and Ohio law

would not further clarify the legal relations between the parties. The district court has already

ordered that Siewertsen be returned to his shipper position and that Worthington remove any

restrictions limiting him from applying for other positions within the manufacturing department.

Moreover, Worthington has conceded that the district court’s order encompasses Worthington as

a company, not just its Delta Plant. Lastly, the court instructed Siewertsen to file a motion with it

if he believed Worthington violates its order. The relationship between the parties is sufficiently

clear without need for a further ruling.

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Case Nos. 16-4529/17-4135, Siewertsen v. Worthington Indus., Inc.


            Finally, as to the fifth factor,8 Siewertsen has not submitted argument demonstrating that a

broader declaration would be more effective. As above, the controversy has been settled, and the

legal relations between the parties have been sufficiently established. The district court did not

abuse its discretion in declining to issue a declaratory judgment that Worthington’s blanket policy

violated the ADA and Ohio law.

                                                   V. CONCLUSION

            For the foregoing reasons, the district court is AFFIRMED.




8
    Neither party has argued that the third or fourth factors are at issue.

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