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), 42 U.S.C. §§ 12101-12213, and the Iowa Civil Rights Act (ICRA), Iowa Code Chapter 216. The case proceeded to trial, and a jury found for Canny, awarding him compensatory and punitive damages. For the reasons *898 set forth below, we affirm the jury’s liability finding and compensatory damages award, but reverse the punitive damages award.
1. BACKGROUND
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 any time. I just really wanted-I was just worried sick. I wanted to stay.” Doug said he had no authority to create a new position for Canny because of Dr Pepper’s hiring freeze and they should talk to Brenda Dixson (Dixson), Dr Pepper’s Regional Human Resources Manager. Doug and Canny told Dixson about Canny’s visual impairment and some of the accommodations they had discussed. Dixson told them that those options “would require a change in head count,” and “there is no way they could do it.” Canny then suggested transferring to a position in the production unit or in the warehouse. According to Canny, Dixson dismissed the suggestion saying, “There’s just no way we can put you out there. You’ll either kill someone or you’ll lose an arm.” Dixson ended the meeting after about five minutes saying she would file Canny’s medical leave of absence paperwork. Dr Pepper placed Canny on medical leave effective March 12, 2002.
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 “[bjecause 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 short *899 ly 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 Hall, 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. (Schwartz). In March 2003, Canny worked full time for Mahaska Bottling Company (Mahaska) until its busy season ended in November 2003. Although Canny expected Mahaska to rehire him, Ma-haska did not. In May 2004, Canny went back to work for Schwartz two days a week earning $80 per day. After leaving Dr Pepper, Canny got married, he and his wife had a child, and his wife began attending school in Ottumwa making it impossible for Canny to leave Ottumwa for work.
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 transportation 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 Federal Rule of Civil Procedure 50(b), arguing, insufficient evidence supported the jury’s verdict and the punitive damages award. In the alternative, Dr Pepper moved for a new trial, arguing the district court erred by admitting the July 30 offer into evidence and by submitting certain jury instructions. Dr Pepper also moved for remittitur of the back pay award. Canny moved for the award of front pay, attorney fees, and expenses. The district court granted Canny’s motion for attorney fees and expenses, but denied all other motions. On appeal, Dr Pepper renews all issues raised in its post-trial motions with the exception of the jury instruction challenge.
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,
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 failure to make reasonable accommodation under the ADA, we apply a modified burden-shifting analysis.
Fenney v. Dakota, Minn. & E. R.R. Co.,
The ADA defines a disability as “a physical or mental impairment that substantially limits one or more of the major life activities,” 42 U.S.C. § 12102(2)(A), and defines a qualified individual as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires,” id. § 12111(8). Canny’s visual impairment is a disability within the meaning of the ADA because it substantially limits Canny’s major life activity of seeing. Canny suffered adverse employment action when he lost his job due to his vision disability. Dr Pepper, however, contends Canny failed to prove by sufficient evidence he was a qualified individual under the ADA.
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.,
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 failed to prove he was a qualified individual under the ADA. Dr Pepper also argues Canny did not prove by sufficient evidence Dr Pepper failed to engage in the interactive process. Canny submits Dr Pepper *901 waived the sufficiency of the evidence argument regarding the warehouse loader position by omitting the issue in its pre-verdict Rule 50(a) motion for judgment as a matter of law. Alternatively, Canny asserts the evidence produced at trial was sufficient to show he could perform the essential functions of either position. Canny denies he had the burden of showing Dr Pepper failed to engage in the interactive process, but argues nonetheless ample evidence supports that conclusion.
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 sufficiently 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.,
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 loader 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 *902 reasonable jury to conclude Canny could perform the essential functions of a warehouse loader position.
b. Merchandiser 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.,
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.,
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
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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,
2. Punitive Damages
“ ‘Federal law imposes a formidable burden on plaintiffs who seek punitive damages’ in employment discrimination cases.”
Webner v. Titan Distrib., Inc.,
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 a forklift would be substantiated by an OSHA investigator or by [a] medical professional as putting [Canny] and the other employees at undue risk.” Dr Pepper reasonably perceived itself caught between federal regulations under the Occupational Safety and Health Administration and federal law under the ADA, and made a culpable, but not malicious or reckless, decision based upon safety concerns.
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 sup
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port an award of punitive damages.
See Webner,
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.,
At trial, Canny moved to have Dr Pepper’s July 30 offer admitted into evidence. Dr Pepper objected under Federal .Rule of Evidence 403 arguing the letter was an offer of compromise and its admission constituted unfair prejudice. The district court ruled the letter was an admission by Dr Pepper, and could come into evidence. The district court sustained Dr Pepper’s objection to the extent the letter itself would not be admitted into evidence because it appeared on counsel’s letterhead, rather than on Dr Pepper’s letterhead. However, the court ruled Canny would be allowed to cross-examine Dr Pepper’s witnesses about the contents of the letter.
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 appeal that the evidence was erroneously admitted.”
Ohler v. United States,
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.
“A party harmed by discriminatory employment decisions has an affir
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mative duty to mitigate his damages by reasonably seeking and accepting other substantially equivalent employment.”
Hartley v. Dillard’s, Inc.,
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 an unconditional offer of reinstatement, because the offer was conditioned on Canny arranging his own transportation, making wage concessions, and relocating. The district court further reasoned Dr Pepper failed to engage in discussion with Canny regarding the accommodations of that position.
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 claimed 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.
Notes
. The period after Dr was dropped in the 1950s.
. In May 1999, Dr Pepper opened a larger facility which housed the sales and distribution operation, as well as the production warehouse. Dr Pepper employed approximately 200 people at the larger facility.
. “Disability claims under the ICRA are analyzed in accordance with federal standards.”
Brunko v. Mercy Hosp.,
. In his prayer for relief, Canny asked for punitive damages under both the ADA and ICRA. On appeal, however, the parties only address the standard for punitive damages under the ADA. Because the issue was not raised, we state no opinion regarding the standard or availability of punitive damages under Iowa law.
United States v. Simmons,