                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-1491
                                    ___________

Lucas A. Canny,                          *
                                         *
              Appellee,                  *
                                         * Appeal from the United States
    v.                                   * District Court for the
                                         * Southern District of Iowa.
Dr. Pepper/Seven-Up Bottling             *
Group, Inc.,                             *
                                         *
              Appellant.                 *
                                    ___________

                              Submitted: November 16, 2005
                                 Filed: March 9, 2006
                                  ___________

Before ARNOLD, BEAM, and RILEY, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

       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 set forth below, we affirm the jury’s liability finding and compensatory
damages award, but reverse the punitive damages award.

      1
         The period after Dr was dropped in the 1950s.
I.     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


      2
        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.

                                         -2-
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 “[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 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.

                                         -3-
(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, Mahaska 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.

                                         -4-
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, 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.” Fed. R. Civ. P. 50(a)(1). We
grant Canny all reasonable inferences and view the facts in the light most favorable
to Canny. See Webner v. Titan Distrib., Inc., 267 F.3d 828, 833 (8th Cir. 2001). We
have long held that “where conflicting inferences reasonably can be drawn from
evidence, it is the function of the jury to determine what inference shall be drawn.”
Ryther v. KARE 11, 108 F.3d 832, 845 (8th Cir. 1997) (en banc) (internal quotations
omitted). We are “reluctant to set aside a jury’s verdict and will not do so lightly.”
Kelly v. Armstrong, 206 F.3d 794, 797 (8th Cir. 2000).

       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., 327 F.3d 707, 712 (8th Cir.
2003).3 “Thus, [Canny] must first make a facial showing that he has an ADA



      3
       “Disability claims under the ICRA are analyzed in accordance with federal
standards.” Brunko v. Mercy Hosp., 260 F.3d 939, 941 (8th Cir. 2001). The parties
do not contest the district court’s parallel treatment of the claims.
                                         -5-
disability and that he has suffered adverse employment action. Then he must make
a facial showing that he is a ‘qualified individual.’” Id.

      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., 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 29 C.F.R. § 1630.2(n)(1)). Evidence a function is
essential includes the employer’s judgment as to which functions are essential, a
written job description, and the amount of time spent on the job performing the
function. 29 C.F.R. § 1630.2(n)(3).

     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

                                          -6-
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 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., 381 F.3d 811, 821
(8th Cir. 2004) (citing Fed. R. Civ. P. 50(a)(2)). Articulation of the grounds for
judgment as a matter of law affords the nonmoving party the opportunity to cure the
defects which may preclude the jury from considering his case. Id. Stating the
grounds of the motion with technical precision is not required, as long as the trial
court is made aware of the movant’s position. Id. “A post-trial motion for judgment
can be granted only on grounds advanced in the pre-verdict motion.” Fed. R. Civ. P.
50(b) advisory comm. notes to 1991 amendment. “Adherence to the rule is
mandatory.” Conesco, 381 F.3d at 821.

      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.

                                         -7-
             ....
             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 reasonable
jury to conclude Canny could perform the essential functions of a warehouse loader
position.




                                          -8-
                   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., 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

                                         -9-
show (1) he was disabled, (2) he requested accommodations, (3) Dr Pepper did not
assist him in seeking accommodations, and (4) he could have been reasonably
accommodated but for Dr Pepper’s lack of good faith. See Cravens, 214 F.3d at 1021
(citing Fjellestad, 188 F.3d at 952).

        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,

                                        -10-
they are limited “to cases in which the employer has engaged in intentional
discrimination and has done so ‘with malice or with reckless indifference to the
federally protected rights of an aggrieved individual.’” Kolstad v. Am. Dental Ass’n,
527 U.S. 526, 529-30 (1999) (quoting 42 U.S.C. § 1981a(b)(1)); Webner, 267 F.3d
at 837. “The terms ‘malice’ and ‘reckless’ ultimately focus on the actor’s state of
mind,” and “‘malice’ or ‘reckless indifference’ pertain to the employer’s knowledge
that it may be acting in violation of federal law, not its awareness that it is engaging
in discrimination.” Kolstad, 527 U.S. at 535 (discussing punitive damages under Title
VII). To sustain an award of punitive damages, the employee must often show
something more than intentional discrimination. Id. at 536. An award of punitive
damages is inappropriate, for example, when “the underlying theory of discrimination
may be novel or poorly recognized,” or when the employer (1) is unaware federal law
prohibits the relevant conduct, (2) believes the discriminatory behavior is lawful, or
(3) reasonably believes there is a bona fide occupational qualification defense for the
discriminatory conduct. Kolstad, 527 U.S. at 536-37; Webner, 267 F.3d at 837.

      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

                                          -11-
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
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)
(affirming 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).


      4
        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, 964 F.2d 763, 777 (8th Cir. 1992) (“As a general rule, an appellate
court may review only the issues specifically raised and argued in an appellant’s
brief.”).
                                          -12-
        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, 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 challenge 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.




                                         -13-
       “A party harmed by discriminatory employment decisions has an affirmative
duty to mitigate his damages by reasonably seeking and accepting other substantially
equivalent employment.” Hartley v. Dillard’s, Inc., 310 F.3d 1054, 1061 (8th Cir.
2002). This duty did not require Canny to “go into another line of work, accept a
demotion, or take a demeaning position.” Id. Dr Pepper bears the burden of showing
Canny failed to mitigate his damages. See id. We review for clear error the district
court’s finding of fact regarding Canny’s reasonable effort to find other employment.
See Kehoe v. Anheuser-Busch, Inc., 96 F.3d 1095, 1106 (8th Cir. 1996).

       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,



                                          -14-
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.
                       ______________________________




                                       -15-
