Dunlap v. Liberty Natural Products, 2017 WL 6614570 (9th Cir. 2017)
Tracy Dunlap sued her employer Liberty Natural Products for violation of the Americans with Disabilities Act (“ADA”) and Oregon state law when Liberty terminated her employment after she was diagnosed with bilateral lateral epicondylitis in both elbows. The jury awarded Dunlap $70,000 in noneconomic damages, and the district court awarded her $13,200 in backpay damages. The district court granted Dunlap half of the prevailing-party attorneys’ fees that she sought. The Ninth Circuit held that the district court had conflated the elements of Dunlap’s disparate treatment claim with the elements of her failure-to-accommodate claim, but that the error was harmless because it is more probable than not that the jury’s verdict was not affected by the instructional error. The Court further affirmed the reduced attorneys’ fee award to Dunlap based upon the fact that she had succeeded on only one of her five claims against Liberty. See also Lopez v. Routt, 17 Cal. App. 5th 1006 (2017) (individual defendant who prevailed in a FEHA harassment claim may not recover prevailing-party attorney’s fees against the plaintiff unless the claim was “frivolous”).