USCA11 Case: 21-11963 Date Filed: 10/27/2022 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11963
Non-Argument Calendar
____________________
TIMETHIA BROWN,
Plaintiff-Appellee-
Cross Appellant,
versus
ADVANCED CONCEPT INNOVATIONS, LLC,
Defendant-Appellant-
Cross Appellee.
____________________
Appeals from the United States District Court
for the Middle District of Florida
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2 Opinion of the Court 21-11963
D.C. Docket No. 8:19-cv-02888-TPB-AAS
____________________
Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges.
PER CURIAM:
Timethia Brown was working as a customer service repre-
sentative for Advanced Concept Innovations, LLC (“ACI”), a con-
tract packing and manufacturing company, when she became preg-
nant. Her pregnancy was complicated by hyperemesis gravi-
darum, a condition characterized by nausea and severe vomiting,
and by changes in saliva, including ptyalism, or excessive saliva. As
a result, she was forced to take and exhaust her FMLA1 leave dur-
ing her pregnancy. Yet Brown found that she could prevent vom-
iting by spitting regularly and not swallowing saliva.
To manage her medical condition when she returned to
work, Brown brought a cup with her to spit saliva into. On the
morning of her return, ACI management told her she could not use
a spit cup if she wanted to continue working there, citing sanitation
and cleanliness requirements for its production area, where no
more than 20% of Brown’s job occurred. The rest of her job was
1 The Family and Medical Leave Act (“FMLA”) entitles eligible employees to
take up to twelve weeks of unpaid leave per year for serious health conditions,
among other reasons. See
29 U.S.C. § 2612(a)(1). Upon returning from FMLA
leave, the employee is entitled to be restored to her former position or to an
“equivalent position with equivalent employment benefits, pay, and other
terms and conditions of employment.”
29 U.S.C. § 2614(a)(1).
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21-11963 Opinion of the Court 3
in ACI’s administrative area, where use of a spit cup was not pro-
hibited. Brown said she could still work and do her primarily cler-
ical job, but ACI did not offer or discuss any accommodations to
retain her. As a result, her employment was terminated. Brown
sued, claiming in part that ACI violated the Florida Civil Rights Act
(“FCRA”) by refusing to provide her with a reasonable accommo-
dation. ACI removed the case to federal district court.
The district court held a jury trial lasting two days. After
Brown put on all her evidence, ACI moved for judgment as a mat-
ter of law. The court took the matter under advisement, and ACI
called several witnesses in its defense.
The jury found ACI liable for violating the FCRA. It found
that a reasonable accommodation existed that would have allowed
Brown to perform the essential functions of the job and would not
have imposed an undue hardship on ACI’s business. And it deter-
mined that ACI failed to provide a reasonable accommodation or
engage in good-faith efforts to accommodate Brown. The jury
awarded $34,440 for lost wages and benefits, $10,000 for emotional
pain and mental anguish, and $50,000 in punitive damages.
After the verdict, ACI renewed its motion for judgment as a
matter of law and alternatively moved for a new trial on the FCRA
claim. It also requested that the award of punitive damages be set
aside. The court denied ACI’s challenge to the verdict on the
FCRA claim, concluding that it was adequately supported by the
trial evidence. But the court granted relief from punitive damages
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4 Opinion of the Court 21-11963
because, in its view, no reasonable jury could have found that ACI
acted with the requisite malice or reckless indifference.
ACI appeals the denial of its motions for judgment as a mat-
ter of law or, alternatively, for a new trial on Brown’s failure-to-
accommodate claim. Brown cross-appeals the order setting aside
the punitive-damages award.
I.
We start with the FCRA failure-to-accommodate claim. We
review de novo a district court’s decision to grant or deny judg-
ment as a matter of law, construing the evidence in the light most
favorable to the non-moving party. Pickett v. Tyson Fresh Meats,
Inc.,
420 F.3d 1272, 1278 (11th Cir. 2005); Carruthers v. BSA Adver-
tising, Inc.,
357 F.3d 1213, 1215 (11th Cir. 2004). A district court
should grant judgment as a matter of law only when the plaintiff
“presents no legally sufficient evidentiary basis for a reasonable
jury to find for [her] on a material element of [her] cause of action.”
Pickett,
420 F.3d at 1278.
We review the denial of a motion for a new trial for an abuse
of discretion. Ard v. Sw. Forest Indus.,
849 F.2d 517, 520 (11th Cir.
1988). District courts may grant a motion for a new trial “if the
verdict is against the great, not just the greater, weight of the evi-
dence.”
Id. “This rule does not, however, grant a license to the trial
judge merely to substitute his judgment for that of the jury on
questions of fact.”
Id.
A.
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An employer violates the FCRA if it fails “to make reasona-
ble accommodation for an otherwise qualified disabled employee.”
D’Angelo v. ConAgra Foods, Inc.,
422 F.3d 1220, 1225–26 (11th Cir.
2005) (citing
42 U.S.C. § 12112(b)); see D’Onofrio v. Costco Whole-
sale Corp.,
964 F.3d 1014, 1021 (11th Cir. 2020) (“Given the parallel
structure of the statutes, this Court analyzes state-law disability dis-
crimination claims under the FCRA using the same framework as
it does for claims made under the federal Americans with Disabili-
ties Act (ADA).”). An otherwise “qualified individual” is someone
“able to perform the essential functions of the employment posi-
tion that [s]he holds or seeks with or without reasonable accom-
modation.” D’Angelo,
422 F.3d at 1226.
Reasonable accommodations may include job restructuring,
modified work schedules, or reassignment to a vacant position.
42
U.S.C. § 12111(9)(B);
29 C.F.R. § 1630.2(o)(2). “The plaintiff bears
the burden of identifying an accommodation, and of demonstrat-
ing that the accommodation allows him to perform the job’s essen-
tial functions.” Lucas v. W.W. Grainger, Inc.,
257 F.3d 1249, 1255-
56 (11th Cir. 2001).
“Essential functions are the fundamental job duties of a po-
sition that an individual with a disability is actually required to per-
form.” Holly v. Clairson Indus.,
492 F.3d 1247, 1257 (11th Cir.
2007) (quotation marks omitted). A job function may be consid-
ered essential when “the position exists to perform that function,”
there are few employees “available among whom the performance
of that job function can be distributed,” or the function is “highly
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specialized.”
29 C.F.R. § 1630.2(n)(2). Evidence of whether a func-
tion is essential includes the employer’s judgment as to which func-
tions are essential, written job descriptions, the amount of time
spent performing the function, the consequences of not requiring
the individual to perform the function, the experience of those who
previously held the job, and the experience of those currently in
similar jobs.
Id. § 1630.2(n)(3).
Even if an employer failed to provide a reasonable accom-
modation, the employer may still avoid liability by showing “that
the accommodation would impose an undue hardship on the op-
eration of [its] business.”
42 U.S.C. § 12112(b)(5)(A).
B.
ACI argues that Brown failed to prove that a “reasonable ac-
commodation existed that would have allowed her to perform the
essential elements of the Quality Control Document Reviewer po-
sition.” It cites evidence showing that, upon her return from
FMLA leave, Brown had been transferred from her position as a
Customer Service Representative to a new position as a Quality
Control Document Reviewer, which likewise required time on the
production floor as an essential duty. Because Brown’s evidence
related solely to the old position, in ACI’s view, it was insufficient
to show that a reasonable accommodation existed for the new po-
sition or to contradict ACI’s evidence regarding the essential func-
tions of the new position.
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Here, viewing the evidence in the light most favorable to
Brown, a reasonable jury could have determined that Brown was
entitled to relief under the FCRA. We assume without deciding
that, because of sanitary and cleanliness requirements in the pro-
duction area, ACI could prohibit Brown from having a spit cup in
the production area without violating the FCRA. But an ACI wit-
ness admitted that a spit cup would not interfere with Brown’s du-
ties in the administrative area, and Brown sought an accommoda-
tion that would relieve her of her production-area duties. Because
an employer is not required to change the essential functions of a
position as an accommodation, Lucas, 257 F.3d at 1260, the ques-
tion is whether “reasonable jurors could differ as to whether [phys-
ical presence in the production area] is an essential function,” Sam-
son v. Fed. Express Corp.,
746 F.3d 1196, 1202 (11th Cir. 2014). We
conclude that they could.
To start, a reasonable jury could have found that being in
the production area was not an essential function of Brown’s old
customer service position. Brown and ACI witnesses testified that
the old position was primarily clerical and involved no more than
20% of her time in the production area. That testimony is con-
sistent with ACI’s job description for the position, which does not
list being in the production area among the job’s “Essential Duties
and Responsibilities.” Brown also testified that the customer ser-
vice team had a “buddy system” that involved sharing production-
area duties, and that she could still do the job’s essential functions
from her desk in the administrative area.
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While ACI presented contrary evidence, the jury was enti-
tled to resolve any factual disputes in Brown’s favor. So if being in
the production area was not an essential function, the jury reason-
ably could have found that a reasonable accommodation included
restructuring of the position to exclude those duties. See Lewis,
257 F.3d at 1260 (“[T]he ADA may require an employer to restruc-
ture a particular job by altering or eliminating some of its marginal
functions.”). And Gomez confirmed in her testimony that Brown
could use a spit cup in the administrative area without issue.
Even assuming the new document-review position is our
guidepost, a reasonable jury could have drawn similar conclusions
about that position as well. The jury received evidence of ACI’s
job description for the new document-review position, which out-
lined the job’s “Primary Responsibilit[ies].” See Lucas, 257 F.3d at
1258 (“[I]f an employer has prepared a written description for the
job, this description shall be considered evidence of the essential
functions of the job.” (cleaned up)). Although the listed duties for
the new position included routine interaction with the quality con-
trol or manufacturing groups, they did not specifically require time
in the production area, and the bulk of the duties involved docu-
ment review, which seemingly could be done in the administrative
area.
ACI points out that a separate section of the job description
regarding “Physical Demands” indicated that “walking to and from
the production area is required.” But a jury would not be required
to conclude from this statement alone that physical presence in the
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production area was essential to the job. That the job as originally
conceived included a function—here, time in the production
area—does not alone make the function essential. Otherwise no
“job restructuring” could ever be a reasonable accommodation.
See
42 U.S.C. § 12111(9)(B).
Plus, the jury had before it more than just the job descrip-
tion. It also heard testimony about the new position from ACI
managers Matthew Muller, the President of Administration, and
Yorky Gomez, the President of Operations and part-owner of the
company. These witnesses described the job largely in administra-
tive or clerical terms—“get[ting] in the nitty-gritty of the docu-
ments”—and indicated that it was broadly equivalent to Brown’s
old position and comparable in terms of its production-area duties.
See
29 C.F.R. § 1630.2(n)(vii) (evidence of whether a job function
is essential includes “[t]he current work experience of incumbents
in similar jobs”).
The evidence also indicates that, in the new position, Brown
would have been working with employees in the quality-control
group. And ACI’s witnesses did not dispute that there were em-
ployees “available among whom the performance of [the produc-
tion-area duties] can be distributed.”
29 C.F.R. § 1630.2(n)(2)(ii).
Rather, their testimony focused on the burdens to other employees
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10 Opinion of the Court 21-11963
and the company of “dumping 20 percent of her work on these
other employees.” 2
Considered as a whole, we believe that the trial evidence
provided a legally sufficient evidentiary basis for the jury to find
that physical presence in the production area was not an essential
function of either the old customer-service position or the new doc-
ument-review position. See Pickett,
420 F.3d at 1278. And ACI
does not challenge the sufficiency of the evidence to support the
jury’s finding that providing a reasonable accommodation to
Brown would not have imposed an undue hardship on the com-
pany’s operations. See
42 U.S.C. § 12112(b)(5)(A); see also
id.
§ 12111(10)(A);
29 C.F.R. § 1630.2(p). So, any challenge to that
finding has been abandoned. Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680 (11th Cir. 2014) (issues not raised on appeal are
abandoned).
Because the evidence was legally sufficient to sustain the
jury’s verdict against ACI on Brown’s failure-to-accommodate
claim, the district court also did not abuse its discretion by denying
a new trial based on the weight of the evidence. The jury’s findings
were supported by the evidence, so it was within the court’s discre-
tion not to disturb them. See Ard,
849 F.2d at 520.
2 Notably, Gomez did not address the possibility of redistributing job duties
from other employees to Brown to balance out the workloads.
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21-11963 Opinion of the Court 11
For these reasons, we affirm the judgment against ACI on
Brown’s failure-to-accommodate claim under the FCRA.
II.
Next, we consider Brown’s cross-appeal of the district
court’s decision to grant judgment as a matter of law and set aside
the punitive damages award of $50,000.
A.
Punitive damages are available in employment-discrimina-
tion cases under the ADA. 42 U.S.C. § 1981a(a)(2). To recover pu-
nitive damages, the complaining party must show that the em-
ployer engaged in discrimination “with malice or with reckless in-
difference to the federally protected rights of an aggrieved individ-
ual.” Id. § 1981a(b)(1).
This standard means “that the employer must at least dis-
criminate in the face of a perceived risk that its actions will violate
federal law to be liable in punitive damages.” U.S. Equal Emp’t Op-
portunity Comm’n v. W&O, Inc.,
213 F.3d 600, 611 (11th Cir. 2000)
(quotation marks omitted); see Kolstad v. Am. Dental Ass’n,
527
U.S. 526, 534–35 (1999) (explaining that these terms “focus on the
actor’s state of mind” and “pertain to the employer’s knowledge
that it may be acting in violation of federal law”). But “lack of ill
will” by management “is not sufficient, in and of itself, to bar puni-
tive damages.” W&O, 213 F.3d at 611.
No showing of malice has been made, so we focus on reck-
less indifference. “A jury may find reckless indifference where the
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employer does not admit that it knew that its actions were wrong.
However, mere negligence as to the civil rights of employees is not
enough to justify punitive damages.” Id. (citations omitted).
B.
Here, sufficient evidence supports the jury’s award of puni-
tive damages, so we vacate the district court’s grant of judgment as
a matter of law and reinstate the verdict. We begin by noting that
ACI does not dispute that its managers were aware of the com-
pany’s obligations to provide a reasonable accommodation. For
instance, ACI previously had accommodated a pregnant woman
with a similar, though milder, ptyalism condition.
The trial evidence supports a finding that ACI made no at-
tempt to provide a reasonable accommodation.3 When Brown re-
turned to work from FMLA leave and requested an accommoda-
tion to manage her pregnancy-related medical condition, ACI
made no effort to identify or make a reasonable accommodation
that would permit her to perform the essential functions of the job.
It did not even offer her the accommodation it had previously
given a pregnant employee with a similar condition, despite claims
at trial that Brown was a valued employee whom ACI wanted to
retain. ACI simply told her there was no place for her, even though
3 ADA regulations generally require employers to engage in an “interactive
process” to determine reasonable accommodations once an accommodation
has been requested. See Gaston v. Bellingrath Gardens & Homes, Inc.,
167
F.3d 1361, 1364 (11th Cir. 1999);
29 C.F.R. § 1630.2(o)(3).
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a reasonable accommodation was available. It then created docu-
mentation falsely suggesting that Brown had voluntarily resigned,
rather than been terminated for not being able to perform the du-
ties of the position. See Doc. 88-3 at 2 (“We are sorry you elected
not to stay and work yesterday.”). Although a close call, we believe
that the jury was presented with sufficient evidence to support a
finding that ACI acted with reckless indifference to the civil rights
of an employee with a manageable medical condition who was
ready and willing to perform the essential functions of the job.
The district court also relied on ACI’s prior favorable treat-
ment of Brown to justify setting aside the punitive-damages award.
But the jury reasonably could have concluded that ACI’s generos-
ity to Brown in the past did not excuse its failure to comply with
civil-rights law in this instance. That ACI generally liked Brown
does not preclude the possibility that it acted with reckless indiffer-
ence to her civil rights. Cf. W&O, 213 F.3d at 611 (“[T]o the extent
that W&O’s argument depends solely on the fact that its manage-
ment acted out of the desire to benefit the pregnant women in its
employ, it is clear that its managers’ and owners’ alleged lack of ill
will is not sufficient, in and of itself, to bar punitive damages.”).
IV.
For these reasons, in the main appeal, we affirm the denial
of ACI’s motion for judgment as a matter of law or a new trial on
Brown’s failure-to-accommodate claim. In the cross-appeal, we va-
cate the grant of ACI’s motion for judgment as a matter of law on
the issue of punitive damages and reinstate the jury’s punitive-
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14 Opinion of the Court 21-11963
damages award.4 We remand for further proceedings consistent
with this opinion.
AFFIRMED IN PART; VACATED AND REMANDED IN
PART.
4 The district court may consider ACI’s alternative request for remittitur of
punitive damages on remand.
