Luсas A. Canny, Appellee, v. Dr. Pepper/Seven-Up Bottling Group, Inc., Appellant.
No. 05-1491
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Filed: March 9, 2006
Submitted: November 16, 2005
Before ARNOLD, BEAM, and RILEY, Circuit Judges.
Lucas Canny (Canny) brought this action against his former employer, Dr. Pepper/Seven-Up Bottling Group, Inc. (Dr Pepper),1 claiming violations of the Americans with Disabilities Act (ADA),
In October 1998, Canny began working as a route driver in the sales department of Mid-Continent Bottlers, Inc. (Mid-Continent) in Ottumwa, Iowa. Shortly thereafter, Dr Pepper acquired Mid-Continent.2 As a route driver, Canny drove a semi-truck, and accordingly, Dr Pepper required Canny to maintain an unrestricted driver‘s license. In July 1999, Dr Pepper promoted Canny to account manager. Canny had 100 to 150 accounts and had to drive to the various customer locations to maintain those accounts. In November 2001, Dr Pepper promoted Canny to route supervisor and put him in charge of several route drivers and account managers. As route supervisor, Canny‘s responsibilities included driving routes and making deliveries when his route drivers were unavailable.
On March 11, 2002, Canny was diagnosed with Stargardt‘s Disease, a hereditary degenerative eye disease that causes loss of central vision but does not affect peripheral vision. Canny had a visual acuity of 20/200, rendering him legally blind and unable to qualify for a driver‘s license. The doctor told Canny his visual acuity would probably not become any worse, but it could not be treated or corrected.
On March 12, 2002, Canny told his supervisor, Doug Canny (Doug) (no relation), and vending manager, Tim O‘Neill (O‘Neill), about his diagnosis, and that he no longer qualified for a driver‘s license. The three men discussed the possibility of Canny continuing in his position as route supervisor by riding with a vending manager on the occasions he needed to fill in for his route drivers. They also talked about transferring Canny to another position in the sales department, in the production facility, or in the warehouse. Canny told them, “I would transfer anywhere to do about anything at аny time. I just really wanted—I was just worried sick. I wanted to
Canny continued to contact Doug about available positions. Doug discussed the situation with Dr Pepper‘s division manager, Randall Hall (Hall). Hall told Doug not to have any further contact with Canny “[b]ecause we didn‘t have anything open in Ottumwa” and “to refer any questions that [Canny] had to [Dixson], because it was past me.” Dixson never contacted Canny about any available positions.
Brenda Criswell (Criswell), a rehabilitation counselor from the Iowa Department for the Blind (IDB), met with Canny shortly after his diagnosis. At Canny‘s request, Criswell stopped by Dr Pepper‘s Ottumwa facility to see Dixson. Dixson was unavailable. Criswell thereafter left several telephone messages for Dixson; Dixson never responded. On March 25, 2002, IDB‘s president sent a letter to Hаll, with a copy to Dr Pepper‘s CEO, inquiring about possible accommodations for Canny. Hall forwarded the letter to Dixson who responded that driving was an essential function of all positions at the Ottumwa facility.
While on medical leave, Canny received disability insurance payments along with social security disability benefits. From June 2002 to October 2002, Canny worked part time as a forklift operator for Schwartz Beer Wholesalers, Inc.
On April 3, 2003, Canny filed a lawsuit alleging Dr Pepper discriminated against him and failed to accommodate him in violation of the ADA and the ICRA. Canny requested compensatory damages, lost wages and benefits, and punitive damages. Dr Pepper moved for summary judgment, which the district court denied on July 21, 2004, finding genuine issues of fact existed regarding whether reassignment to a vacant position was a reasonable accommodation and whether Dr Pepper made a good faith effort to engage in the interactive process of seeking reasonable accommodations. In response to the district court‘s ruling, Dr Pepper sent a letter on July 30, 2004, offering Canny a merchandiser position at Dr Pepper‘s Des Moines facility (July 30 offer). Dr Pepper conditioned the offer on Canny finding his own transрortation to job sites, as well as a physician‘s confirmation Canny could safely operate forklifts and motorized pallet jacks. Dr Pepper had not previously notified Canny of any job vacancies at any of Dr Pepper‘s other facilities. Canny declined the position because of his family circumstances.
The case proceeded to trial on Canny‘s failure to accommodate claim and resulted in a verdict for Canny. The jury awarded $53,910 in back pay, $20,000 in past emotional damages, and $100,000 in punitive damages. Dr Pepper renewed its motion for judgment as a matter of law pursuant to
II. DISCUSSION
A. Judgment as a Matter of Law
We review de novo the denial of a motion for judgment as a matter of law, applying the same standard as the district court. Ostrander v. Duggan, 341 F.3d 745, 748 (8th Cir. 2003). A judgment as a matter of law is appropriate if “a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.”
In his complaint, Canny alleged claims of disparate treatment and failure to accommodate under the ADA and the ICRA. However, on appeal, Dr Pepper only raises issues relating to Canny‘s failure to accommodate claim. On claims for failurе to make reasonable accommodation under the ADA, we apply a modified burden-shifting analysis. Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 712 (8th Cir. 2003).3 “Thus, [Canny] must first make a facial showing that he has an ADA
The ADA defines a disability as “a physical or mental impairment that substantially limits one or more of the major life activities,”
1. Qualified Individual
Analyzing whether a person is a qualified individual is a two-step process: first, we determine whether the individual possesses the requisite skills for the job; second, we must determine whether the individual can perform the essential functions of the job, with or without reasonable accommodation. Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 786-87 (8th Cir. 1998). “An essential function ‘means the fundamental job duties of the employment position the individual with a disability holds or desires. The term “essential functions” does not include the marginal functions of the position.‘” Id. at 787 (quoting
Dr Pepper concedes Canny possessed the requisite skills for the merchandiser and warehouse loader positions, but argues the evidence was insufficient to show Canny could perform the essential functions of either position and, therefore, Canny
a. Warehouse Loader Position
(i) Waiver
“Rule 50(a) requires that challenges to the sufficiency of the evidence must be raised initially at the close of the evidence. Such challenges must be sufficiеntly specific so as to apprise the district court of the grounds relied on in support of the motion.” Conseco Fin. Servicing Corp. v. N. Am. Mortgage Co., 381 F.3d 811, 821 (8th Cir. 2004) (citing
At the close of Canny‘s case-in-chief, Dr Pepper moved for judgment as a matter of law pursuant to Rule 50(a) stating:
With respect to the warehouse loader, I‘ll have to say that there is a dispute, so I don‘t know that the Court grant the directed verdict motion with respect to the—solely the issue of warehouse loader.
. . . .
For those reasons we would ask that the Court direct a verdict in favor of Defendant and against Plaintiff on all positions except the warehouse loаder position and that the Court direct a verdict on that position based on the good faith defense.
We find Dr Pepper unambiguously excluded the warehouse loader position from its Rule 50(a) motion, and therefore waived the issue in its Rule 50(b) motion.
(ii) Essential Functions
The waiver notwithstanding, ample evidence supports the jury finding Canny could perform the essential functions of the warehouse loader position. Dr Pepper disputed Canny‘s ability to operate a forklift. Canny testified he maintained a forklift license, operated a forklift without any problems while he worked for Dr Pepper, and continued to do so at other jobs after leaving Dr Pepper. Doug testified Canny drove a forklift safely without incident and he had no reason to believe Canny could not continue doing so. O‘Neill also testified he saw Canny safely operate a forklift. Canny testified Dr Pepper never asked him about his vision limitations or whether he was able to operate a forklift. Doug similarly testified forklift certification did not require a vision examination. Dixson testified she never asked Canny for medical verification of his ability to drive a forklift, but simply concluded “if you ha[ve] been restricted in operating a motor vehicle, I don‘t believe you would be able to operate a forklift.” Dixson conceded Dr Pepper had no minimum vision acuity requirement for driving a forklift, but said “Mr. Canny‘s 20/200 legal blind vision was the entire issue to be considered.” Dixson testified there were warehouse loader positions available between March 2002 and July 2002, but she did not offer them to Canny. Even if Dr Pepper had not waived the issue, this evidence is sufficient for a reasonable jury to conclude Canny could perform the essential functions of a warehouse loader position.
Dr Pepper argues the employer determines the essential functions of a job, and the merchandiser position requires the ability to drive. Canny argues Dr Pepper‘s July 30 offer demonstrates driving was not an essential function. We agree with Canny.
Although the ADA does not require an employer to reallocate the essential functions of a job, restructuring marginal job functions is a reasonable accommodation. Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995). Canny testified merchandisers used pallet jacks and walk-behind forklifts, but did not drive trucks or operate motorized equipment. Dixson testified merchandisers usually drove between customer locations and Dr Pepper always considered driving an essential function of a merchandiser position. Dr Pepper paid merchandisers for their travel time between customer locations. Dixson conceded Dr Pepper‘s July 30 offer demonstrated Canny could have arranged his own transportation between customer locations. Dixson also admitted there were open merchandiser positions in Iowa after March 12, 2002, and before Dr Pepper offered Canny the position on July 30, 2004. This testimony provided sufficient evidence for the jury to conclude Canny could perform the essential functions of available merchandiser positions.
c. Interactive Process
Dr Pepper asserts Canny did not prove by sufficient evidence Dr Pepper failed to participate in the interactive process to determine reasonable accommodations. Under the ADA, an employer must engage in an interactive process to identify potential accommodations that could overcome the employee‘s limitations. Burchett v. Target Corp., 340 F.3d 510, 517 (8th Cir. 2003). “‘[T]he failure of an employer to engage in an interactive process to determine whether reasonable accommodations are possible is prima facie evidence that the employer may be acting in bad faith.‘” Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1021 (8th Cir. 2000) (quoting Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 (8th Cir. 1999)). To establish Dr Pepper failed to engage in an interactive process, Canny must
Applying this analysis in the present case, Canny presented a submissible case for the jury. First, there is no question Canny is disabled and requested accommodations. Second, although Dr Pepper argues Canny‘s discussions with Doug and O‘Neill, as well as Doug‘s multiple efforts to assist Canny are evidence of its good faith efforts, we disagree. Dr Pepper admitted Doug had no authority to offer Canny a position. Furthermore, Hall told Doug to discontinue discussing accommodations with Canny and to refer Canny‘s questions to Dixson. Third, Dixson and Hall both testified that after March 2002, they did not contact Canny regarding available positions or possible job accommodations. Dixson also admitted (1) she never investigated Canny‘s abilities which was “a step that [Dr Pepper] could have taken to avoid some of what we‘re going through here today,” (2) she never sent Canny for a physician‘s evaluation because “we did not feel that it was necessary to do more,” (3) she never contacted the production manager at the Ottumwa facility about available positions for Canny, (4) she knew of Canny‘s willingness to go to any Dr Pepper facility to stay employed with Dr Pepper, and (5) nothing prevented Dr Pepper from making the July 30 offer two years earlier. Dr Pepper‘s perception that the accommodations Canny suggested were impractical did not relieve Dr Pepper of its obligation to discuss possible accommodations that were available and appropriate. Fjellestad, 188 F.3d at 953.
2. Punitive Damages
“‘Federal law imposes a formidable burden on plaintiffs who seek punitive damages’ in employment discrimination cases.” Webner v. Titan Distrib., Inc., 267 F.3d 828, 837 (8th Cir. 2001) (quoting Henderson v. Simmons Foods, Inc., 217 F.3d 612, 618 (8th Cir. 2000)). Although punitive damages are available in ADA cases,
Dr Pepper argues insufficient evidence supports the punitive damages award because evidence of malice or reckless disregard is lacking. We agree. Although we concluded sufficient evidence supports the jury‘s finding Dr Pepper intentionally and unlawfully discriminated against Canny by failing to accommodate him, Dr Pepper‘s conduct did not, as a matter of law, rise to the level of malice or reckless indifference.
Dr Pepper did not offer Canny reassignment to an available position in the warehouse because Dr Pepper believed Canny‘s poor vision created a safety risk to Canny and to others. Dixson based that safety concern on a serious arm injury sustained by another employee in the warehouse just six months earlier. Dixson also testified she had “very, very serious concerns about [Canny‘s] safety if he was operating . . . a forklift.” Dixson said she logically equated Canny‘s inability to operate a motor vehicle, with an inability to operate motorized equipment in the plant. Dixson testified, “I believe that the basis of our decision to disallow [Canny] to drive
Although these reasons are not enough to escape liability under the ADA, they do not constitute the type of malicious intent or reckless indifference required to support an award of punitive damages. See Webner, 267 F.3d at 837 (vacating a punitive damages award finding employer‘s safety concerns that employee would injure himself were consistent with the employer acting to protect itself, and, while culpable, did not rise to the level of malice required to sustain an award of punitive damages); see also Ollie v. Titan Tire Corp., 336 F.3d 680, 688-89 (8th Cir. 2003) (аffirming the district court for vacating a punitive damages award where the employer‘s attempt to protect itself and its potential employee from repeated health problems and absences did not demonstrate malice or evil intent). Accordingly, the award of punitive damages must be set aside.4
B. New Trial
Dr Pepper next argues it is entitled to a new trial because the district court abused its discretion by admitting the July 30 offer into evidence. We review the district court‘s evidentiary rulings made at trial for an abuse of discretion. McPheeters v. Black & Veatch Corp., 427 F.3d 1095, 1103 (8th Cir. 2005).
Despite this favorable ruling, Dr Pepper decided preemptively to introduce the contents of the July 30 offer during its direct examination of Dixson. Canny argues by making this preemptive move, Dr Pepper waived its challenge to the admission of the evidence on appeal. We agree. “Generally, a party introducing evidence cannot complain on appеal that the evidence was erroneously admitted.” Ohler v. United States, 529 U.S. 753, 755 (2000). Dr Pepper cannot avoid the consequence of its own trial tactic by arguing it was forced to introduce the evidence during the direct examination of Dixson to diminish the prejudice. See id. at 758-59 (reasoning a defendant cannot make the decision to introduce damaging evidence (prior conviction) during her own testimony in order to remove its sting, “and still preserve its admission as a claim of error on appeal“). We conclude Dr Pepper waived a challеnge to the admission of the July 30 offer.
C. Remittitur of Damages
The jury awarded Canny $53,910 in lost earnings. Dr Pepper moves for remittitur arguing Canny did not seek full-time employment from November 2003 through September 2004, and therefore he is not entitled to full-time wages or benefits. In response, Canny argues Dr Pepper did not object to the damages instruction and the jury correctly followed the instruction.
The district court instructed the jury that if it found Dr Pepper liable, then it must consider the amount Canny would have earned at Dr Pepper from March 12, 2002, to the date of its verdict, minus disability benefits, as well as wages and benefits from other employment. The district court further instructed the jury that Canny had a duty to mitigate his damages, and if Dr Pepper proved by the greater weight of the evidence Canny failed to seek out or take advantage of an opportunity reasonably available to him, the jury must reduce Canny‘s damages “by the amount of the wages and fringe benefits he reasonably would have earned if he had sought out or taken advantage of such an opportunity.”
The district court denied Dr Pepper‘s motion for remittitur holding the jury could have reasonably found Dr Pepper did not meet its burden of showing Canny failed to seek opportunities reasonably available to him. The district court noted Canny sought full-time opportunities with Dr Pepper but was rebuffed; Canny found work in the Ottumwa area consistent with his experience and the seasonal nature of full-time work at a smaller bottling warehouse; and Canny‘s inability to find a full-time position with benefits did not mean he failed to take advantage of opportunities reasonably available to him. The district court also remarked Dr Pepper‘s July 30 offer was not аn unconditional offer of reinstatement, because the offer was conditioned on Canny arranging his own transportation, making wage concessions,
The district court thoroughly discussed the record evidence supporting the jury‘s compensatory award. Based on our review of the record, the district court did not clearly err in refusing to deduct from Canny‘s award the amounts clаimed by Dr Pepper.
III. CONCLUSION
For the reasons stated, we reverse the district court‘s denial of Dr Pepper‘s motion for judgment as a matter of law as to the punitive damages award and affirm the judgment in all other respects. Accordingly, we remand to the district court for an entry of judgment consistent with this opinion.