                     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                                      *     [UNPUBLISHED]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.




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       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

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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


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      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.
                       ______________________________




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