Plaintiff-Appellee Patrick S. Brady filed suit in the United States District Court for the Eastern District of New York (Oren-stein,
M.J.)
against his former employer,
*130
Wal-Mart Stores, Inc., and his former boss, Yem Hung Chin (collectively, “Appellants”), alleging violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq.,
and New York Human Rights Law, N.Y. Exec. Law § 290
et seq.
The jury returned a mixed verdict, finding for Appellee on some claims and Appellants on others, and awarding Appel-lee compensatory, economic, punitive, and nominal damages. The district court struck the economic damages award, reduced the punitive damages award to the statutory cap, and ordered that a new trial be held if Appellee did not accept a remit-titur of the compensatory damages award,
Brady v. Wal-Mart Stores, Inc.,
I. Background
“When an appeal comes to us after a jury verdict, we view the facts of the case in the light most favorable to the prevailing party.”
Kosmynka v. Polaris Indus.,
Appellee Patrick Brady was, at the time pertinent to this suit, a nineteen-year-old man with cerebral palsy. A witness testified that “[j]ust by looking at him, you could tell he had a disability.” His disability manifested itself in noticeably slower walking, walking with a shuffle and limp, recognizably slower and quieter speech, not looking directly at people when talking to them, weaker vision, and a poor sense of direction. Brady himself testified that, “It basically affects everything I do.” His father testified that, “It affects everything he does, his whole life, everything about him” and that “[i]t affects ... his driving, the school work, his working ability, his eating, his walking, his seeing. Everything involved in each one of those aspects and so much more.” And his mother testified that, “It’s just everything he does.... [I]t’s really ... life-changing.... I mean, the way he walks, the way he sits, his mannerisms. The way he thinks. I mean, he learns differently. His eyes—it’s just— it touches everything. The way he eats. I mean, he had auto/motor problems [sic], just the way—his posture.”
In 2002, after having worked for about two years in a local pharmacy receiving prescriptions and dispensing prescription drugs without incident, Brady applied for a job in the pharmacy department of the Wal-Mart store in Centereach, New York. The part-time pharmacy job which he sought was classified as a “Salesfloor Associate” position. As part of the application, he was asked to sign a document entitled Job Description, which was generic to all Salesfloor Associate positions, and thereby to certify that he “ha[d] the ability to perform the essential functions of th[is] position either with or without a reasonable accommodation.” The job functions listed included, “[f]requently pick up, lift, carry, and place items of varying sizes, weighing up to and greater than 50 pounds, while moving up and down a ladder.” Brady marked that he had the ability to perform the listed tasks “either with or without a reasonable accommodation.” Following two interviews and a drug test, he was hired and told when to report to work.
Upon beginning work, he was given a vest with “pharmacy” on it, and he was instructed to stock merchandise and dispense prescriptions. He very quickly perceived that Appellant Chin, his boss, was unhappy with his performance. He testified that “she was kind of short with me. She knew there was something wrong with me.... [She was s]hort, as if she wasn’t happy with me. She didn’t appear to like me, the fact that I was hired for the pharmacy.... She told me to speed it up, *131 you know, as if I was working slow, to speed it up a little bit.” Chin testified that she thought that Brady was too slow and that he appeared to have difficulty matching customers’ names with their prescriptions. She also testified that she was “completely alarmed at that time, and [she] knew there was something wrong.” She thought to herself, “forget it, this is ridiculous .... [0]kay, forget it, this is not working.... I need to take control back.” She thought Brady’s performance was “absolutely awful,” and she “wanted [him] away from [her] prescriptions.” Although Wal-Mart had an institutional “coaching policy,” she never approached Brady about participating in it, because “I really didn’t think it kind of applied. I didn’t know how to teach him to find names better....” Brady testified that he never handed out the wrong prescription, was never unable to find a prescription in the bin, and never required assistance from Chin or any other co-worker to perform his job.
At the end of his first shift, Brady requested his schedule for the upcoming week. Chin told him that she would call him with his schedule. She did not, and when Brady’s mother suggested that he go to the store and ask about his schedule, he told her that, “I don’t think [Chin] wants me there.” He did go into the store, and Chin told him that “she had been meaning to call [him] about [his] schedule but she hadn’t gotten around to it.” She then asked him if he would be willing to work in another department because she really needed to hire a pharmacy technician, rather than a pharmacy assistant. Brady believed this to be a lie because no one had previously mentioned that the pharmacy needed to hire a technician. Brady worked two more days in the pharmacy without incident. At the end of the second day, he again asked about his schedule for the coming week and was again told that Chin would call him. Again, she did not. When Brady went back to the store, another pharmacist told him that he would remind Chin to call him. Once again, she did not. When he returned to the store the next day, Chin “seemed visibly annoyed to see [him], as if she didn’t want anything to do with [him].” Chin told him to go to the personnel department.
The personnel manager told Brady that the only available job was collecting shopping carts and garbage in the parking lot. Brady felt that this job was “degrading” because “it really doesn’t involve any skill or knowledge and ... I felt that they put people out there that couldn’t possibly do anything else.” The parking lot job had a different uniform, and Brady understood it to be a demotion. He also testified that, because of his disability, he was less suited to it than he was to working in the pharmacy.
After Brady’s transfer to the parking lot, his father came to the store and spoke with the assistant store manager, telling him that he hoped his son’s disability had not played any role in the transfer. The assistant manager promised to investigate, and later James Bowen, the store manager, called Brady’s father and, according to Brady’s father, told him “that he didn’t think that [Brady] had a fair chance at this job; that [Chin] didn’t give him a fair chance and she didn’t handle it the right way.... And he told me what Ms. Chin had said, that [Brady] wasn’t fit for the job. And then she said that, ‘I’ll put him back in the pharmacy, but if we get sued, it’s on you.’ ” Bowen also stated that new employees were typically given a training period and that Brady should have been given more time to learn the job. 1
*132 Bowen then called Brady into his office. He told Brady about Chin’s complaints, but Brady replied that he had two years of experience at another pharmacy without problems. Bowen asked Brady if he was happy with the parking lot job, and Brady replied that he was not. Brady was then transferred to the food department, where he was asked to stock shelves and zone merchandise. Bowen walked Brady to the food department, but gave him no training or instruction, nor did he provide him a uniform. Brady was not offered the option of returning to the pharmacy. At the end of the day, Brady was given a work schedule for the next week that conflicted with his community college schedule, a schedule he had noted on Wal-Mart’s availability forms. Frustrated, Brady called the store the next day and quit.
Brady testified that, after quitting, he became depressed and, for the first time, sought psychiatric help. He and his parents testified that he lost self-confidence, withdrew from his family, became angry, and lost interest in his community college studies.
He subsequently brought this suit, alleging a number of counts of discrimination under the ADA and New York Human Rights Law. Specifically, he alleged that Wal-Mart took the following discriminatory actions: (1) transferring him from the pharmacy to the parking lot; (2) transferring him from the parking lot to the food department; (3) creating a hostile work environment; (4) failing reasonably to accommodate his disability; and (5) constructively discharging him. He also claimed that Wal-Mart made prohibited pre-employment disability inquiries, and he alleged intentional infliction of emotional distress.
The jury returned a mixed verdict. It found that Brady was disabled and/or was regarded as disabled within the meaning of the ADA and that Wal-Mart discriminated against him on the basis of his disability by transferring him from the pharmacy to the parking lot. It also found that Wal-Mart subjected him to a hostile work environment. Moreover, it found that Wal-Mart failed reasonably to accommodate him and that Wal-Mart had made an impermissible pre-employment inquiry in its job description. It found that Chin aided and abetted in the discrimination but that Bowen—who was a defendant below—did not. The jury, however, also found that Brady was not constructively discharged, and that he had not been subjected to intentional infliction of emotional distress.
Based on these findings, the jury awarded Brady $2.5 million in compensatory damages, $9,114 in economic damages, $5 million in punitive damages, and $2 in nominal damages. The district court apportioned all of the compensatory damages to the state law claim and all of the punitive damages to the ADA claim. The court struck the economic damages award because Brady did not prevail on his constructive discharge claim. And, pursuant to 42 U.S.C. § 1981a(b)(3)(D), the punitive damages award was reduced to the statutory cap of $300,000. Appellants filed a Rule 50(b) motion for judgment as a matter of law and a Rule 59 motion for a new trial. The court denied those motions except that it ordered that a new trial on the issue of compensatory damages be held unless Brady accepted a remittitur of the compensatory damages award from $2.5
*133
million to $600,000.
Brady v. Wal-Mart Stores, Inc.,
II. Discussion
The appeal involves seven issues: (1) whether Appellants waived their right to move for judgment as a matter of law post-verdict by failing properly to move for judgment as a matter of law at the close of all of the evidence; (2) whether the district court erred in not granting Appellants judgment as a matter of law on Appellee’s disability discrimination claims; (3) whether the district court erred in not granting Appellants judgment as a matter of law on Appellee’s failure-to-accommodate claim; (4) whether the district court improperly admitted into evidence a nationwide consent decree and, if so, whether a new trial should be granted; (5) whether the district court erred in not granting Appellants judgment as a matter of law on Appellee’s claim that Appellants made an impermissible pre-employment inquiry; (6) whether the district court erred in not granting Appellants judgment as a matter of law on Appellee’s claim for punitive damages; and (7) whether the district court erred in its ruling on Appellants’ application for remittitur of damages. We deal with each issue in turn.
A. Waiver
A prerequisite for a motion for judgment as a matter of law post-verdict is that the movant had also moved for judgment as a matter of law “at the close of all of the evidence.” Fed.R.Civ.P. 50(a), (b) (1995). Appellee asserts that Appellants failed to meet this requirement because, although they moved for judgment as a matter of law at the close of Appellee’s case, they did not so move at the close of all the evidence. On the final day of testimony, immediately before the first witness was called, however, Appellants’ counsel renewed his Rule 50 motion, saying, “I assume you don’t need me to raise [it] in any kind of detail.” The court replied, “No. Your 50(a) motion is denied without prejudice to renewing it, if appropriate, after the verdict(emphasis added).
We have held that where the trial judge has indicated that renewing a previously made motion for judgment as a matter of law at the close of all the evidence was not necessary, and where the opposing party could not reasonably have thought that the motion was dropped, then judgment as a matter of law may be sought post-verdict.
See Am. Protein Corp. v. AB Volvo,
B. Disability Discrimination Claims
This Court reviews
de novo
a district court’s denial of a motion for judgment as a matter of law.
Wolf v. Yamin,
In order to establish a prima facie case of discrimination under the ADA, a plaintiff must show (a) that his employer is subject to the ADA; (b) that he is disabled within the meaning of the ADA or perceived to be so by his employer; (c) that he was otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (d) that he suffered an adverse employment action because of his disability.
Jacques v. DiMarzio, Inc.,
The evidence presented, including descriptions of Brady’s cerebral palsy, was sufficient to permit the jury to find that he was in fact disabled under the ADA. See 42 U.S.C. 12102(2)(A). In addition, we think the record amply supports the conclusion that he was perceived to be disabled. See 42 U.S.C. § 12102(2)(C) (defining disability so as to include certain types of impairments or “being regarded as having such an impairment”). Chin herself testified that she regarded Brady to be slow and that she “knew there was something wrong” with him. Brady’s father testified that the store manager told him that Chin said that Brady “wasn’t fit for the job.”
We also find that there was sufficient evidence for the jury to conclude that Brady’s transfer from the pharmacy to the parking lot constituted an adverse employment action. Although this transfer did
not
affect his wages or benefits, it resulted in a “less distinguished title” and “significantly diminished material responsibilities,” and therefore constituted an adverse employment action.
Patrolmen’s Benevolent Ass’n of N.Y. v. City of New York,
Because we find that Appellee presented sufficient evidence for the jury to find a specific adverse employment action, we need not reach his alternative claim that Appellants created a hostile work environment.
C. Failure to Accommodate Claim
Discrimination under the ADA includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C. § 12112(b)(5)(A); accord 29 C.F.R. § 1630.9(a). Appellants argue that, because Brady never requested an accommodation and testified that he did not think he needed one, the district court should have granted judgment as a matter of law on the failure to accommodate claim. Appellants also argue that Brady did not *135 demonstrate the existence of an accommodation that would have enabled him to perform his job.
“[Ggenerally,
it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.”
Graves v. Finch Pruyn & Co.,
We have not had occasion in the past to determine when the “general[]” rule announced in
Graves
might be inapplicable. Appellee relies on district court cases to argue that the employer is obligated to provide a reasonable accommodation when it perceives the employee to be disabled, whether or not the employee has asked for an accommodation. In
Felix v. New York City Transit Authority,
Application of this general rule [that a request for accommodation is a prerequisite to liability for failure to accommodate] is not warranted, however, where the disability is obvious or otherwise known to the employer without notice from the employee. The notice requirement is rooted in common sense. Obviously, an employer who acts or fails to act without knowledge of a disability cannot be said to have discriminated based on that disability. Moreover, the notice requirement prevents an employee from keeping her disability a secret and suing later for failure to accommodate. These concerns are not relevant when an employer has independent knowledge of an employee’s disability. The rule requiring a request for accommodation [does not apply] in such circumstances.
Id.
at 657 (internal citations omitted);
accord Glozman v. Retail, Wholesale & Chain Store Food Employees Union Local 338,
But what does accommodation mean, if the employee does not request specific accommodation? We have held that the ADA contemplates that employers will engage in “an ‘interactive process’ [with their employees and in that way] work together to assess whether an employee’s disability can be reasonably accommodated.”
Jackan v. N.Y. State Dep’t of Labor,
D. Consent Decree
At the time of Brady’s employment and throughout this litigation, Wal-Mart was subject to a nationwide consent decree pursuant to
EEOC v. Wal-Mart Stores, Inc.,
No. S99 CIV 0414,
The trial court’s evidentiary rulings are reviewed only for abuse of discretion.
See, e.g., Old Chief v. United States,
E. Pre-Employment Inquiry
Appellee claims that Wal-Mart’s pre-employment inquiry as to whether he could carry fifty-pound boxes while climbing a ladder violated the requirement that pre-employment medical inquiries be narrowly tailored to the job for which the applicant is applying,
see
29 C.F.R. § 1630 app. Appellants reply that, because Ap-pellee answered that he was able to perform the job, and because he was hired, he has no standing to make this claim. The question is a close one.
See Conroy v. N.Y. State Dep’t of Corr. Servs.,
But we need not take a stand on the matter today. It is manifest that the damages ultimately awarded would have been the same regardless of the position we took on this question. The court, well within its discretion, assigned all of the compensatory damages to the state law claims, which were not based on the pre-employment inquiry. The jury awarded punitive damages of $5 million; these were reduced to the statutory cap of $300,000. The jury awarded $4.5 million in punitive damages on the basis of discrimination alone. Hence we can say without fear of peradventure that all of the damages awarded, which we affirm infra, were attributable to other behavior on the part of Appellants.
F. Punitive Damages
Appellants assert that Appellee failed to present sufficient evidence to justify an award of punitive damages. An award of punitive damages in an ADA case requires a showing “that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(l). “The terms ‘malice’ or ‘reckless indifference’ pertain to the employer’s knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination.” Kolstad
v. Am. Dental Ass’n,
G. Remittitur
Because the compensatory damages were allocated entirely to the state law claim, the remittitur is evaluated under state law. Appellants assert that the district court improperly evaluated its remit-titur application under the standard set forth in
New York City Transit Authority v. State Division of Human Rights,
The district court here wrote that,
Whether I analyze it under the “deviates materially” standard of § 5501(c) or the more nuanced approach of Transit Au *138 thority, I cannot sustain the jury’s award of $2.5 million as compensation for Brady’s emotional distress. With respect to § 5501(c), the award does deviate materially from other awards that the parties have cited.... And under the Transit Authority analysis, the third prong—requiring a comparison to other awards—compels a similar result.
Brady v. Wal-Mart Stores, Inc.,
We think it is uncertain which of the two standards the district court used in determining the amount of the remittitur. Its citations do not clarify the matter: two of the cases (Tiffany & Co. and Sogg) appear to use the “deviates materially” standard, while the third (Cavagnuolo) appears to use the Transit Authority standard. We believe that Transit Authority states the applicable law of New York. 2 We note, moreover, that the Transit Authority standard is more favorable to plaintiffs than the statutory standard. Therefore, either the district court correctly applied the Transit Authority standard, or it erred in a way that harmed Appellee—by applying the “deviates materially” standard—but Appellee has not protested. Either way, there is no cause for remand.
Therefore, the judgment of the district court is Affirmed.
Notes
. Brady had not been given the standard ninety-day probationary period and training *132 generally provided to new employees, and he received no coaching, in violation of Wal-Mart's “coaching for improvement” policy. A Wal-Mart pharmacist, Joan Little, testified that it would normally take "one to three months just to [learn] the basic functions” of working in the pharmacy.
. In
Cross v. New York City Transit Authority,