NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 18 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH LEWIS, No. 18-16911

Plaintiff-Appellee, D.C. No. 2:14-cv-01683-RFB-GWF v.

DELTA AIR LINES, INC., MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding

Submitted May 6, 2020** Portland, Oregon

Before: WATFORD and HURWITZ, Circuit Judges, and PREGERSON,*** District Judge.

1. We need not decide whether the district court abused its discretion by

admitting evidence about Joseph Lewis’s internal appeal of his termination. Even

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. Page 2 of 4

if the court erred by admitting some of that evidence, any error was harmless. The

principal question for the jury was whether Delta terminated Lewis because of his

disability-related absences from work on August 11 and 12, 2012. The evidence

overwhelmingly established that Delta terminated Lewis due to those absences,

including testimony from Lewis’s supervisor that he would not have recommended

Lewis’s termination but for those absences. Thus, even if the jury had not heard

any of the evidence concerning Lewis’s internal appeal, the verdict would more

likely than not have been the same. See Harper v. City of Los Angeles, 533 F.3d

1010, 1030 (9th Cir. 2008).

2. The district court did not abuse its discretion by declining to give Delta’s

proposed business judgment instruction. The district court instructed the jury that

it could find Delta liable only if, among other things, “Lewis prove[d] by a

preponderance of the evidence that Delta would not have terminated him but for

his disability.” That instruction correctly stated the law and was not “inadequate or

misleading.” Phillips v. I.R.S., 73 F.3d 939, 941 (9th Cir. 1996). Delta’s proposed

instruction, conversely, risked misleading the jury into believing that it could not

question the sincerity of Delta’s proffered explanation for terminating Lewis.

3. Delta advances no convincing reason to overturn the district court’s

backpay, front pay, or tax gross-up awards. Those awards were amply supported

by the uncontradicted testimony and reports of Lewis’s expert. See Traxler v. Page 3 of 4

Multnomah Cty., 596 F.3d 1007, 1014 & n.4 (9th Cir. 2010); Amantea-Cabrera v.

Potter, 279 F.3d 746, 750 (9th Cir. 2002). The backpay award properly accounted

for the pay raises, overtime pay, and fringe benefits that Lewis never received

because of his unlawful termination.

4. Delta argues for the first time in its reply brief that the prejudgment

interest award should have been prorated to properly account for the incremental

infliction of Lewis’s monetary injuries. We decline to consider that argument

because Delta did not raise it either in the district court or in its opening brief on

appeal. See Autotel v. Nevada Bell Tel. Co., 697 F.3d 846, 852 n.3 (9th Cir. 2012).

5. We vacate the district court’s award of attorney’s fees and costs.

Notwithstanding the district court’s broad discretion in calculating attorney’s fees,

the court appears to have abdicated its “duty to ensure that claims for attorneys’

fees are reasonable.” Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1160 (9th

Cir. 2018) (cleaned up). The court did not address any of Delta’s challenges to the

reasonableness of the number of hours billed, even though Delta flagged many

“seemingly excessive fee requests.” Id. Without commenting on the merits of any

of Delta’s specific challenges, on remand the court should more thoroughly

analyze Delta’s objections to the reasonableness of the time spent by Lewis’s

counsel on matters such as the unsuccessful motion for summary judgment, the

unsuccessful motion to compel production of privileged materials, the unsuccessful Page 4 of 4

opposition to a motion for pro hac vice admission, and the litigation surrounding a

settlement conference that was aborted after Lewis failed to attend. See Sealy, Inc.

v. Easy Living, Inc., 743 F.2d 1378, 1385 (9th Cir. 1984). As to the costs award,

the court should more thoroughly analyze whether the individual costs requested

by Lewis are properly taxable under the court’s local rules.

AFFIRMED in part, VACATED in part, and REMANDED.

The parties shall bear their own costs on appeal under Federal Rule of

Appellate Procedure 39.