When a federal jury convenes Jan. 9 for a retrial of a defamation lawsuit against Jim Harris, chief of staff for state Treasurer Dennis Milligan, it will also hear a related disability discrimination claim against Milligan, a judge said Monday.
The first trial of a lawsuit brought against Harris and Milligan by a former treasurer's office employee, David Singer, ended Aug. 12 with Chief U.S. District Judge Brian Miller declaring a mistrial, after Harris was removed from the courtroom by paramedics.
The nature of Harris' ailment has never been publicly revealed, but one of Singer's attorneys, Luther Sutter, effectively argued for a mistrial, saying jurors who knew that Harris was carted out of the courtroom on a gurney might be overly sympathetic to him when deliberating.
As will be the case with a second jury, the first jury was to decide whether Harris defamed Singer by writing in an interoffice memo to the deputy chief of staff that Singer had "mental problems," and whether Milligan fired Singer because he believed, based on viewing the memo, that Singer suffered from a mental disability. Singer contends that Milligan violated the Americans with Disabilities Act, which prohibits terminating someone on the basis of a disability, real or perceived.
The first trial was winding down after nearly four days of testimony when Harris' attorneys alerted the judge that Harris, sitting at a counsel table listening to a defense witness, had a look of discomfort on his face that indicated he might be ill or having a heart attack. Even though jurors were escorted out of the courtroom before paramedics arrived, Miller said court security officers reported that several jurors were asking questions about Harris' health, and wondering whether he was OK, after the recess was called.
After a new trial date was set, attorneys for Milligan cited the testimony in the first trial in asking Miller to dismiss the disability claim before the retrial.
But in an order signed Monday, Miller denied the request. The judge cited Singer's argument that "the record demonstrates that he was terminated because defendants perceived him as having a mental impairment." He also cited the defense's position that "Singer was terminated because his work was unsatisfactory, and because he had poor relationships with the members of the treasurer's management team."
Miller said that summary judgment -- a ruling on legal arguments alone -- applies when there is no genuine dispute about any material fact. In this case, he said, "there is a genuine factual dispute that must be resolved by a jury."
He noted that Singer must prove he was disabled or regarded as being disabled; that he was qualified to perform the essential functions of his job; and that he was fired because of his disability or perceived disability.
The judge said Singer must prove through direct evidence that Milligan regarded him as having an impairment, and that Milligan made his decision to terminate Singer on the basis of that perception. If Singer can establish discrimination, the defendants must articulate a legitimate, nondiscriminatory reason for the termination. If they are successful, Singer must prove that the stated reasons for firing him are merely a pretext for discrimination.
Miller noted that Milligan testified in August that he fired Singer because "we never could get him to complete a task," despite assigning him to three different jobs.
While a reasonable juror could find that Singer was terminated because he was perceived as having a disability, "this case has been tried once and the evidence presented at trial seemed to weigh in favor of the defendants on Singer's ADA claim," Miller said in the order, adding, "Although that is the case, a trial judge cannot weigh evidence when deciding a motion for summary judgment."
In response to Singer's request that he be allowed to gather information on Harris' medical condition before the retrial, Miller told the parties in September that he wouldn't allow any further discovery. However, Miller said the parties will be allowed to call additional witnesses.
Metro on 12/06/2016