Walker v. Fred Nesbit Distributing Co. , 156 F. App'x 880 ( 2005 )


Menu:
  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 05-1869
    ___________
    Amber Walker,                         *
    *
    Plaintiff-Appellant,      *
    * Appeal from the United States
    v.                              * District Court for the
    * Southern District of Iowa.
    Fred Nesbit Distributing Co.,         *
    *     [UNPUBLISHED]
    Defendant-Appellee.       *
    ___________
    Submitted: December 16, 2005
    Filed: December 22, 2005
    ___________
    Before WOLLMAN, LAY, and RILEY, Circuit Judges.
    ___________
    PER CURIAM.
    Amber Walker appeals the district court’s1 denial of her motion for a new trial.
    The district court ruled that the jury’s verdict that Walker’s former employer did not
    discriminate against her on the basis of her pregnancy was supported by the clear
    weight of the evidence. We affirm.
    1
    The Honorable Robert W. Pratt, United States District Court Judge for the
    Southern District of Iowa.
    I. Procedural and Factual Background
    In March 2002, Amber Walker initiated an employment discrimination claim
    against her former employer, Fred Nesbit Distributing Company (“Nesbit”). In June
    2004, Nesbit filed a motion for summary judgment, which the district court granted
    in part and denied in part, holding that genuine issues of material fact existed
    regarding Walker’s claims that Nesbit discriminated against her on the basis of her
    pregnancy pursuant to the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e-
    2(a), as defined and codified by § 2000e(k). A jury trial was held in November 2004,
    during which Walker sought to demonstrate that Nesbit had a policy of
    accommodating employees who were injured off the job by providing light duty or
    reassignment. Although Nesbit admitted it had once administered such a policy, the
    company presented evidence that it had changed the policy in the fall of 2001 for
    economic reasons. Walker claimed that Nesbit’s “policy change” argument was
    pretextual and that, in fact, the company had refused to accommodate her because she
    was pregnant. The jury returned a verdict in favor of Nesbit. Walker then filed a
    motion for a new trial, contending that the jury’s verdict was not supported by the
    clear weight of the evidence. The district court denied Walker’s motion, stating“there
    is nothing in the record to indicate the verdict was against the clear weight of the
    evidence.” Walker now appeals to this court, arguing the district court abused its
    discretion in denying a new trial.
    Walker was employed by Nesbit as a beer truck driver in May 2000. Her duties
    consisted of delivering products, rotating back stock, stocking shelves, building and
    maintaining displays, and picking up old and damaged products. Her job description
    required that she be able to lift more than fifty pounds. In January 2002, Walker
    notified her supervisor at Nesbit that she was pregnant. Despite being pregnant,
    Walker continued to perform all the requirements of her job.
    -2-
    In April 2002, Walker requested either to be reassigned to light duty or to have
    an assistant accompany her to do the required heavy lifting during deliveries. Nesbit
    refused this request, citing a policy change made in the fall of 2001 that allowed
    employees to be reassigned to light duty only if they were injured on the job. Nesbit
    did not add this new policy to the employee handbook or commit it to writing. In lieu
    of reassigning Walker to light duty or providing someone to assist with heavy lifting,
    Nesbit told Walker she was entitled to twelve weeks of unpaid leave under the Family
    and Medical Leave Act (“FMLA”). Shortly thereafter, Walker again requested
    accommodation, providing Nesbit with a physician’s work restriction stating she
    could no longer lift more than twenty pounds and was limited to working no more
    than eight hours a day, forty hours per week. Nesbit denied Walker’s request and told
    her that, because the remainder of her pregnancy was longer than the twelve weeks of
    unpaid leave she would receive under FMLA, the company would provide an
    additional six weeks of unpaid leave. Walker was placed on unpaid leave on May 1,
    2002. She gave birth on August 21, 2002. Her eighteen weeks of unpaid leave ended
    on August 27, 2002, six days after her child was born. Two days later, on August 29,
    2002, Nesbit terminated Walker because she did not return to work. Nesbit told
    Walker she was free to reapply for her old job when she was able to return to work.
    Walker never reapplied for her old job.
    II. Analysis
    A.     Standard of Review
    This court reviews a district court’s denial of a motion for a new trial under an
    abuse of discretion standard. A district court will reverse only “if the evidence weighs
    heavily enough against the verdict that a miscarriage of justice may have occurred.”
    United States v. Walker, 
    393 F.3d 842
    , 848 (8th Cir. 2005). The district court “is not
    ‘free to reweigh the evidence and set aside the jury verdict merely because the jury
    could have drawn different inferences or conclusions or because judges feel that other
    -3-
    results are more reasonable.’” White v. Pence, 
    961 F.2d 776
    , 780 (8th Cir. 1992)
    (quoting Fireman’s Fund Ins. Co. v. Aalco Wrecking Co., 
    466 F.2d 179
    , 186 (8th Cir.
    1972)). Accordingly, “where reasonable men can differ in evaluating credible
    evidence, a new trial on the ground of weight of the evidence should not be granted.”
    
    White, 961 F.2d at 781
    . “When the basis of the motion for a new trial is that the
    jury’s verdict is against the weight of the evidence, the district court’s denial of the
    motion is virtually unassailable on appeal.” Wash Solutions, Inc. v. PDQ Mfg., Inc.,
    
    395 F.3d 888
    , 892 (8th Cir. 2005) (internal quotation and citation omitted).
    B.     Analysis
    In evaluating Walker’s argument, we first note that Walker had the ultimate
    burden of proof in her claim that Nesbit intentionally discriminated against her
    because she was pregnant. Texas Dept. of Cmty. Affairs v. Burdine, 
    450 U.S. 248
    ,
    253 (1981). After the close of evidence, the trial court instructed the jury as follows:
    [Walker’s] claim of pregnancy discrimination is that she was
    subjected to different, more adverse employment actions or conditions
    than similarly situated male employees. Specifically, that she was
    denied accommodation, light duty (a driver’s assistant) or a
    reassignment.
    Your verdict must be for [Walker] on her pregnancy
    discrimination claim if all of the following elements have been proved
    by the greater weight of the evidence:
    First, [Walker] was subjected to different, more adverse
    employment actions or conditions than similarly situated male
    employees; and
    Second, [Walker’s] pregnancy was a motivating factor in
    [Nesbit’s] employment decisions. Pregnancy was a “motivating factor”
    if [Walker’s] pregnancy played a role in [Nesbit’s] decision to refuse
    -4-
    accommodation, light duty or reassignment, to [Walker]. However, it
    does not require that [Walker’s] pregnancy was the only reason for
    [Nesbit’s] employment decisions.
    If either of the above elements has not been proved by the greater
    weight of the evidence, your verdict must be for [Nesbit] and you need
    not proceed further in considering this claim.
    The court also instructed the jury that “[y]ou may not return a verdict for [Walker] just
    because you might disagree with [Nesbit’s] decisions or believe [those decisions] to
    be harsh or unreasonable. An employer is entitled to make its own subjective
    personnel decisions for any reasons that are not discriminatory.”
    As the district court observed in its memorandum opinion denying Walker’s
    motion for a new trial, both elements set forth in the jury instruction “needed to be
    answered in the affirmative for Walker to be successful in her suit.” Thus, given the
    verdict in favor of Nesbit, it follows that the jury concluded either 1) that Walker was
    not subjected to different, more adverse employment actions or conditions than
    similarly situated male employees, or 2) that pregnancy was not a motivating factor
    in Nesbit’s employment decisions. It is also possible that the jury concluded that
    neither criteria had been met.
    On appeal, Walker presents two arguments. First, she contends that she
    presented uncontroverted evidence that Nesbit accommodated similarly situated
    employees–i.e., male delivery truck drivers–when they experienced off-the-job
    injuries or engaged in off-the-job activities that rendered them unable to perform their
    duties. Walker asserts Nesbit accommodates two categories of male drivers. The
    first category consists of drivers who lose their Commercial Drivers Licenses (“CDL”)
    due to operating while intoxicated (“OWI”) convictions. Walker points out that
    Nesbit has a written policy providing that a driver who loses his or her CDL “will be
    terminated.” If, however, the driver resigns, he or she may “reapply as a sales
    trainee.” Walker presented evidence that at least one male truck driver (who was
    -5-
    terminated by Nesbit after losing his license as a result of an off-the-job OWI
    conviction) was rehired by Nesbit as a sales trainee. Walker argues that this
    establishes that Nesbit, by policy and practice, accommodates truck drivers who can
    no longer perform their truck driving duties due to off-the-job conduct. The second
    category of similarly situated male drivers Walker identifies consists of drivers who
    are injured off the job and then are provided with an assistant to help with their duties
    while they recover. Walker presented evidence that truck driver James Sassatelli
    received help with his lifting duties for two days to a week after he returned from knee
    surgery in February 2001. Another truck driver, Mark Miller testified that in August
    2000, after breaking his leg off the job, Nesbit accommodated him with a “driver
    trainee” for seven or eight days to assist with lifting. A third truck driver, Charles
    Starmer, testified that in September 2001 Nesbit provided a “driver’s trainee” to ride
    along and assist him with lifting for five to six weeks after breaking his foot. Walker
    asserts that these three examples establish that Nesbit has a policy of accommodating
    drivers who, due to off-the-job injuries, are temporarily unable to fulfill all their
    duties.
    The second argument Walker presents on appeal involves Nesbit’s admission
    that it did not include its 2001 policy change in the employee handbook or reduce it
    to writing. Walker asserts Nesbit’s actions were “insufficient to effect a change in its
    practice/policy of accommodation” and that the company’s inaction supports her
    claim that the “policy change” argument was a pretext for denying her accommodation
    because she was pregnant. According to Walker, Nesbit’s failure to make the policy
    change more explicit “gives rise to a powerful inference of unlawful
    discrimination”–and which, when considered in light of the evidence she presented
    regarding accommodations given to male drivers, establishes no reasonable jury could
    have concluded that Nesbit did not discriminate against her on the basis of pregnancy.
    We first turn to Walker’s claim regarding Nesbit’s policy of allowing male
    drivers who have lost their licenses due to OWI convictions to resign and reapply for
    -6-
    sales trainee positions. Walker argues this policy establishes that Nesbit’s refusal to
    accommodate her was motivated by pregnancy discrimination. The district court
    concluded that male truck drivers who had lost their license due to OWI convictions
    were not similarly situated to Walker because they were not “similar in their ability
    or inability to work” as required by the Pregnancy Discrimination Act, 42
    U.S.C. § 2000e(k). The district court observed that, unlike a driver terminated due to
    the loss of his or her CDL, Walker was not terminated with the possibility of being
    rehired in a different position. Rather, she was given eighteen weeks of unpaid leave
    from her job as a truck driver. Further, her inability to work stemmed from her
    inability to meet the fifty-pound lifting requirement of her job, not the loss of her
    CDL. Given the difference between a male driver who is terminated due to the loss
    of his license and a female driver given eighteen months of unpaid leave due to an
    inability to meet the lifting requirement, we hold the district court did not abuse its
    discretion in concluding that a reasonable jury could have found that Walker was not
    similarly situated to male drivers terminated by Nesbit due to the loss of their CDLs.
    Next we turn to Walker’s argument that she was similarly situated to male truck
    drivers who, due to off-the-job injuries, could not fulfill the lifting requirement but
    were accommodated by Nesbit with assistants. The district court stated that “there is
    no question that drivers injured off the job who could not fulfill the lifting
    requirements are similarly situated to [Walker].” However, the district court then
    stated that whether Nesbit’s disparate treatment of Walker was motivated by
    pregnancy discrimination presented a fact question for the jury. The district court
    concluded that, based on the evidence presented, a reasonable jury could have
    concluded that Nesbit’s disparate treatment of Walker was not motivated by
    pregnancy discrimination. Specifically, the district court observed that Nesbit
    admitted it allowed light duty assignments for employees injured off the job prior to
    the fall of 2001. However, the company provided evidence that the company changed
    its policy of providing accommodation for off-the-job injuries as a result of truck
    driver Charles Starmer’s need for assistance in September and October of 2001.
    -7-
    Nesbit’s human resources director testified that he made the policy change because
    it did not make “economic sense” to pay two people to do the job of one. Thus,
    although Nesbit accommodated drivers by providing light duty assignments following
    off-the-job injuries before the fall of 2001, Starmer was the last person to receive
    accommodation for an off-the-job injury. We therefore hold that the district court did
    not abuse its discretion when it concluded that a reasonable jury could have found that
    Nesbit’s decision to deny Walker accommodation was the result of the company’s fall
    2001 policy change rather than the result of discrimination against Walker on the basis
    of pregnancy.
    Finally, we address Walker’s argument that Nesbit did not take adequate action
    to put its new accommodation policy into effect. Walker points out that none of the
    changes Nesbit made were reduced to writing and that the company handbook was not
    amended. As the district court observed, however, “the question before the jury was
    not whether Nesbit should have put the September 2001 policy change in writing, but
    whether a ‘discriminatory animus [laid] behind the defendant’s neutral explanations’”
    (quoting Roxas v. Presentation Coll., 
    90 F.3d 310
    , 316 (8th Cir. 1996)). Here, the jury
    apparently concluded that Nesbit was truthful in its statement that its decision to
    change its policy of accommodating drivers injured off the job was motivated by
    economic reasons rather than Walker’s pregnancy. Accordingly, we hold the district
    court did not abuse its discretion in concluding that a reasonable jury could have
    believed that Nesbit had implemented its new accommodation policy in the fall of
    2001, despite not committing the new policy to writing.
    For the foregoing reasons, the district court’s denial of Walker’s motion for a
    new trial is affirmed.
    ______________________________
    -8-