213 F.3d 365 (7th Cir. 2000)
Cheryl A. Gile,    Plaintiff-Appellee,v.United Airlines, Inc.,    Defendant-Appellant.
No. 99-2509
In the  United States Court of Appeals  For the Seventh Circuit
Argued January 18, 2000
Decided May 22, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 94 C 1692--Rebecca R. Pallmeyer, Judge. [Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Easterbrook, Kanne and Diane P. Wood, Circuit  Judges.
Kanne, Circuit Judge.


1
Cheryl Gile worked eight  years for United Airlines, Inc. ("United") before  she began suffering from a cluster of  psychological disorders that made it increasingly  difficult for her to perform her job. Gile  initially had volunteered for night shift duty,  but insomnia and exhaustion from sleep  deprivation were aggravating her psychological  condition. After consultation with a  psychologist, she asked United to accommodate her  condition by reassigning her to a daytime shift,  but United refused Gile's repeated requests and  suggested that she consider quitting her job  instead. Gile sued under the Americans with  Disabilities Act of 1990 ("ADA"), secs. 42  U.S.C. 12101-12213, for United's failure to  accommodate her disability and won both  compensatory and punitive damages at trial.  United now appeals the district court's denial of  judgment as a matter of law on compensatory  damages, the jury instruction barring  consideration of mitigating measures in assessing  disability under the ADA and the denial of  judgment as a matter of law on punitive damages  under the Supreme Court's decision last term in  Kolstad v. American Dental Ass'n, 527 U.S. 526,  119 S.Ct. 2118 (1999). We affirm the judgment for  Gile but reverse the award of punitive damages.

I.  History

2
In March 1984, Cheryl Gile began working for  United as a data entry operator in the air  freight department at O'Hare International  Airport in Chicago, Illinois. Her mother had  worked eighteen years for United and recommended  United as an employer, so Gile was excited about  the job. Although United transferred Gile several  times over the next five years between the day  and night shifts, she received good performance  evaluations describing her as a "valuable asset"  and a "very competent, thorough and accurate  employee." In January 1989, at her request, Gile  received a transfer to the night shift, running  from 10 p.m. to 6:30 a.m., and worked nights  without complaint for several years.


3
However, when Gile returned to work from  maternity leave in March 1992, she began feeling  chronically depressed and suffered from insomnia  and constant anxiety. She slept only a few hours  a day, struggled to perform mundane household  chores, erupted into spontaneous outbursts of  crying, fell asleep while driving and felt  perpetually fatigued. In June 1992, Gile initiated semi-weekly consultations about her  psychological condition with Betty Orlandino, a  licensed clinical social worker listed by United  in its catalog of health care providers  recommended to employees.


4
Gile told Orlandino that she had been able to  sleep only a few hours a day since returning to  work in March. Gile reported that she "could not  function properly" and was "going crazy."  Orlandino diagnosed Gile with depression and  anxiety disorder because Gile was suffering from  feelings of "hopelessness and helplessness" and  experiencing "fatigue, irritability,  distractibility, [and] difficulty concentrating."  Orlandino noted that Gile's anticipatory anxiety  over getting enough sleep each night and the  sheer exhaustion from insomnia exacerbated Gile's  condition, and she instructed Gile to seek  transfer to a daytime shift. Soon afterward, Gile  informed her supervisor James Kinzler that she  was struggling with depression and that she  needed a shift transfer. Although Kinzler  testified at trial that he did not recall this  meeting, Gile said Kinzler told her that he would  let her know about any new openings on the day  shift. Kinzler never spoke to Gile about a  transfer again.


5
On August 28, 1992, Gile had an emotional  "breakdown" at work. She started crying  uncontrollably and told supervisor Frank Mancini  that she thought she was losing her mind. Gile  tried resting for a spell then returning to work,  but Mancini allowed her to go home when that did  not alleviate her anxiety attack. Gile called  Orlandino immediately after arriving home and saw  Orlandino on August 31. After consulting a  physician, psychologist and two psychiatric  social workers, Orlandino formally recommended  that Gile be placed on medical leave and given  anti-depressant and anti-anxiety medication.  Orlandino provided Gile a note, which Gile  presented to Mancini a few days later, stating  that Gile was "experiencing a depressive reaction  with anxiety state" and "her present position at  United and the night shift are aggravating her  condition."


6
United's Regional Medical Director Dr. Robert  McGuffin handled Gile's claim pursuant to his  duties of evaluating the medical condition and  work fitness of United employees at O'Hare  Airport. He telephoned Orlandino, who told him  that Gile's condition was directly related to  Gile working the night shift. On September 22,  1992, McGuffin met with Gile but did not take her  medical history or conduct a psychological  examination. Gile explained her symptoms and told  McGuffin that she was seeing Orlandino twice  weekly for depression. McGuffin retorted that "if  [she] was that unhappy, [then] why didn't [she]  just resign and stay home." Gile answered that  she did not want to stay home and that she wanted  to work; she insisted that it "didn't matter if  it was lateral, didn't matter if it was a  demotion. [She] would take anything as long as  [she] could be on a regular shift, a regular  daytime shift." McGuffin told her to see him in  a couple of weeks and terminated the fifteen-  minute meeting. McGuffin approved Gile's request  for medical leave but deemed Gile's condition a  "nonoccupational illness."


7
Three days later, on September 25, 1992, Gile  applied for a "competitive transfer." United  regularly posted new job openings at O'Hare and  invited employees to submit their resumes and  most recent performance evaluations as  "competitive transfer" applications for these  positions. Gile applied for two non-data entry  job openings, one in reservations and one in the  air freight headquarters, but never heard back  about her applications.


8
Disappointed by McGuffin's summary conclusion,  Orlandino sent a letter dated September 29, 1992,  to McGuffin repeating that Gile needed  reassignment to the day shift because Gile's  problems stemmed directly from her night shift  position. The letter averred that "[a]lthough the  etiology of Mrs. Gile's condition is non-  occupational as to her job duties, it is directly  related to the shift she had been assigned to." Therefore, the letter requested that "a change in  shift be considered for Cheryl Gile." McGuffin  testified at trial that he realized "there was  something wrong with [Gile] mentally" and he did  not disagree with the diagnosis of depression and  anxiety or "take issue" with Orlandino's  assessment. Furthermore, though United challenged  Orlandino's professional credentials at trial and  in its appellate briefs, neither McGuffin nor any  other United representative ever requested that  Gile be treated or evaluated by another physician  or psychologist.


9
When Gile saw McGuffin again on November 2,  1992, Gile reported ongoing "severe, severe  depression" and again "begged him to please help  [her]." Gile said that she would be happy to go  back to work if he would "please just help [her]  get a job that [she] would be working the day  shift." McGuffin huffed that "it sounded like a  personal problem . . . not an illness." McGuffin  explained at trial that he did not expedite  reassignment to the day shift partly because he  was concerned that other employees might expect  or request a transfer out of the night shift as  well. He also thought that a "change in work  schedule more accurately addressed personal and  life and family issues rather than an illness."  McGuffin took no further action other than  telling Gile to seek a nonmedical transfer, which  she had already tried, and issuing Gile a work  release note for continued duty on the night  shift.


10
Upon hearing McGuffin's assessment, Orlandino  called McGuffin to insist that Gile's night shift  assignment was a "major factor" in Gile's  condition. McGuffin steadfastly disagreed and  said that "if [Gile] didn't like it, she could  quit." A few days later, Orlandino faxed McGuffin  a letter recommending that Gile be placed on  temporary disability until January when United  annually rearranged work shift schedules. Gile  gave McGuffin's work release note to her  supervisor but explained that Orlandino had not  released her to work the night shift. As a  result, United placed Gile on authorized leave  without pay.


11
United annually reshuffled its employee shift  assignments and permitted employees each November  to bid according to seniority for shift  reassignments. By the November 1992 bidding, Gile  had accrued sufficient seniority to win an  evening shift, running from 2 p.m. to 10 p.m.,  beginning in January 1993. Gile testified that  she would have been happy to work the evening  shift because it was basically a daytime shift,  however Gile was home on authorized leave at the  time of November bidding and did not place a bid  at all for the 1993 work year.


12
Since United had placed Gile on indefinite  authorized leave, Gile was understandably  surprised when she received a termination letter  from United on January 14, 1993, notifying her  that United had terminated her employment for  abandonment of her job. Gile contacted United for  clarification, but United did not respond.  Buffeted by the stress of her apparent  termination, Gile's psychological condition  worsened, and she began seeing psychiatrist Dr.  Alan Hirsch on Orlandino's recommendation in  April 1993. Hirsch examined Gile four times over  the next six months and confirmed Orlandino's  diagnoses of clinical depression and severe  anxiety. During these sessions with Hirsch, Gile  reported loss of self-esteem from her termination  and explained that she had seriously contemplated  suicide. Hirsch prescribed additional medication  and forwarded his diagnoses to United. In  addition, Orlandino continued to lobby United on  several occasions, urging it to reinstate Gile  and permit her to work a daytime shift. United  acknowledges that daytime positions remained open  throughout all the events of this case, even  after November bidding closed.


13
After a series of persistent inquiries by  Gile's lawyer, United contacted Gile on September  23, 1993, and negotiated her return to work in  April 1994. At trial, United explained that it  had mailed the termination letter by mistake and  "unfired" Gile when it unraveled the confusion.  For her part, Gile was "more than happy to come  back" to United. Upon her return, Gile worked the  day shift for two months while another employee  was ill, then worked the evening shift after the  ill employee's return. Working during the day and  evening served Gile well, just as Orlandino  predicted. Gile testified that "[i]t was  immensely helpful to be back at work," and her  condition "started to stabilize," though it did  not clear up overnight.


14
Before her return to work, however, Gile sued  United in the Northern District of Illinois on  March 18, 1994, alleging that United violated the  ADA in failing to accommodate reasonably her  disability by transferring her out of the night  shift. In its defense, United pointed to its  "Reasonable Accommodation Policy," which read in  pertinent part:


15
In keeping with its commitment to equal  employment opportunity and through implementation  of our Affirmative Action Plan for the Disabled,  United Airlines is obligated to make reasonable  accommodations whenever possible for disabled  applicants and/or employees who are selected for  hire, promotion, job retention or training.     By way of explanation, United has a Reasonable  Accommodation procedure applicable to employees  or applicants with physical or mental work  restrictions. . . .


16
* * * *


17
Regulations state: "An employer must make a  reasonable accommodation to the physical and  mental limitations of an employee/applicant,  unless the employer can demonstrate an  accommodation would impose an "undue hardship" on  the Company."


18
* * * *


19
The key to this process is to identify the work  restriction(s) and then establish the financial  and productivity loss which may be associated  with an accommodation. In some instances, these  restrictions are insignificant to the performance  of the job being considered. In these cases,  Reasonable Accommodation is achieved with no  significant financial or productivity loss.


20
* * * *


21
A.  Reasonable Accommodation--Employees  (internal)    Same procedures as for new-hire accommodations.  If the accommodation can be made, proceed  accordingly. If the recommendation is to deny  accommodation, and that decision is upheld by the  Accommodations Committee, the Staff  Representative-Personnel supporting the operation  will work in conjunction with the employment  offices to find alternative job opportunities for  the employee.


22
At all relevant times, McGuffin and Gile's  supervisors knew and understood United's  reasonable accommodation policy.


23
After several contentious discovery disputes  during which United refused to produce a number  of documents, the district court granted summary  judgment in favor of United, holding that United  was not required to transfer Gile as a reasonable  accommodation for her disability. Gile appealed  several district court discovery rulings and the  grant of summary judgment, and we reversed and  remanded in Gile v. United Airlines, Inc., 95  F.3d 492 (7th Cir. 1996). The case proceeded to  trial on February 8, 1999, and a jury granted  judgment for Gile four days later, awarding  $200,000 in compensatory damages and $500,000 in  punitive damages. The district court denied  United's renewed motions for judgment as a matter  of law, or in the alternative, a new trial, but  limited Gile's total damages to $300,000 as  required under 42 U.S.C. sec. 1981a(b)(3). United  now appeals the district court's denial of its  motions for judgment as a matter of law regarding  compensatory damages, denial of United's  requested jury instruction on consideration of  mitigating measures in assessing Gile's  disability and denial of United's motion for  judgment as a matter of law regarding punitive  damages.

II.  Analysis

24
A.  Judgment as a Matter of Law  on Compensatory Damages


25
The district court denied all three of United's  motions under Rule 50 of the Federal Rules of  Civil Procedure for judgment as a matter of law  on liability for compensatory damages, and United  now appeals arguing that (1) there was no legally  sufficient evidentiary basis for a reasonable  jury to find that Gile was a qualified individual  under the ADA; and (2) Gile was solely  responsible for a breakdown in the required  interactive process by failing to avail herself  of the bidding procedures for an employee to  request a shift transfer.


26
In appealing a denial of a motion for judgment  as a matter of law after the jury has decided  against it, United assumes a herculean burden. We  reverse only if no rational jury could have found  for the plaintiff, even when viewing the evidence  in the light most favorable to the nonmovant. See  Collins v. Kibort, 143 F.3d 331, 335 (7th Cir.  1998). Careful to avoid substituting our judgment  for that of the factfinder at trial, we ascertain  whether there exists sufficient evidence upon  which any rational jury could reach the trial  verdict. See Tincher v. Wal-Mart Stores, Inc.,  118 F.3d 1125, 1129 (7th Cir. 1997). Moreover, we  apply this standard stringently in discrimination  cases, where witness credibility is typically  crucial. See Williams v. Pharmacia, Inc., 137  F.3d 944, 948 (7th Cir. 1998). We review this  question de novo. See Collins, 143 F.3d at 335.


27
First, United claims that the jury lacked  sufficient evidentiary basis to find that Gile  was a qualified individual with a disability  under the ADA. Specifically, United argues that  Gile did not provide the jury with a reasonable  basis to find that her requested accommodation--a  transfer from the night shift to a daytime shift-  -would have enabled her to perform the essential  functions of her job. The ADA requires  accommodation only for a "qualified individual  with a disability" who can perform her job with  or without reasonable accommodation. See Vollmert  v. Wisconsin Dep't of Transp., 197 F.3d 293, 297  (7th Cir. 1999). The ADA thus mandates that an  employer make reasonable accommodations only if  accommodation would permit the disabled employee  to perform her job, and an employer need not  grant a disabled employee's request for  an  accommodation that would be an "inefficacious  change." Vande Zande v. Wisconsin Dep't of  Admin., 44 F.3d 538, 542 (7th Cir. 1995).


28
In Weigel v. Target Stores, 122 F.3d 461, 469  (7th Cir. 1997), we affirmed summary judgment for  the defendant and held that the plaintiff failed  to show that she was a qualified individual under  the ADA. The plaintiff, who undisputedly could  not work without accommodation, rested her claim  entirely on a doctor's affidavit that "there was  a good chance" that she could return to work with  her requested accommodation of extended medical  leave, which the employer had rejected. This bare  assertion without any further explanation was  "simply too conclusory and uninformative to be  given any weight" because "we [were] left totally  in the dark" about the bases for the doctor's  opinion. Weigel, 122 F.3d at 469. The doctor  indicated nothing about the plaintiff's  condition, past responsivity to treatment or the  reasons that Weigel's condition would improve  with accommodation. Without any additional  evidence that she could perform her job with  reasonable accommodation, Weigel could not show  that she was a qualified individual under the  ADA.


29
Contrary to United's assertions, however, Gile  presented far more credible evidence about her  condition and the expected effect of a transfer  to a daytime shift than the lone, conclusory  affidavit presented by the plaintiff in Weigel.  Unlike the plaintiff in Weigel, Gile presented an  endless stream of documentation from Orlandino  about her psychological symptoms and the need for  a transfer to a daytime shift. Orlandino  testified that Gile's anticipatory anxiety over  being able to get enough sleep each night and the  sheer exhaustion from insomnia exacerbated Gile's  condition. She and Gile explained to McGuffin  that regular daytime work would have stabilized  her sleep patterns and reduced the anxiety and  stress attendant to her psychological conditions.  Although a shift transfer may not have cured  Gile's condition altogether, a rational jury  easily could conclude that a shift transfer would  have alleviated her symptoms such that Gile could  have performed her job. Indeed, once Gile  returned to work on daytime shifts in April 1994,  Gile's condition did benefit from the regular  work and sleep schedule. Gile sufficiently  established that she was a qualified individual  with a disability who could have performed her  job with reasonable accommodation.


30
Second, United claims that it is entitled to  judgment as a matter of law because, according to  United, Gile obstructed the interactive process  by failing to avail herself of United's bidding  and competitive transfer procedures. To begin,  United mistakes Gile's obligation in the  interactive process. In Hendricks-Robinson v.  Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998),  we presented the respective obligations of  employer and disabled employee in executing the  accommodation process. The employee first must  start by informing the employer of her  disability. See id. Gile duly notified United of  her disability and requested accommodation. At  that point, the ADA obligates the employer to  "engage with the employee in an 'interactive  process' to determine the appropriate  accommodation under the circumstances." Bombard  v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563  (7th Cir. 1996). This step "imposes a duty upon  employers to engage in a flexible, interactive  process with the disabled employee needing  accommodation so that, together, they might  identify the employee's precise limitations and  discuss accommodation which might enable the  employee to continue working." Hendricks-  Robinson, 154 F.3d at 693 (internal citations  omitted); see also Miller v. Illinois Dep't of  Corrections, 107 F.3d 483, 486-87 (7th Cir. 1997)  (holding that the employer must "ascertain  whether he has some job that the employee might  be able to fill."). Although United argues that  Gile's proposed accommodation would have been  ineffective, United had the affirmative  obligation to seek Gile out and work with her to  craft a reasonable accommodation, if possible,  that would have permitted her return to work. See  Hendricks, 154 F.3d at 693; Bultemeyer v. Fort  Wayne Community Sch., 100 F.3d 1281, 1286 (7th  Cir. 1996).


31
It is here that United flunked its obligations  under the ADA. In the face of Gile's repeated  pleas for a shift transfer, United refused her  request for a modest accommodation, then did  nothing to engage with Gile in determining  alternative accommodations that might permit Gile  to continue working. McGuffin provided no help at  all except to suggest that Gile "just resign and  stay home." United's only action in the  subsequent months was to terminate Gile in  January--a move that United subsequently  disclaimed. Unlike Weiler v. Household Finance  Corp., 101 F.3d 519, 526 (7th Cir. 1996), where  the plaintiff requested a transfer which would  have required either creation of a new position  or bumping another employee, and the defendant  contacted the plaintiff about five available  positions as alternative accommodations, United  made no effort to accommodate Gile.


32
However, United contends that it did not  approach Gile and engage in the interactive  process because Gile readily possessed the means  to obtain reasonable accommodation by herself  without United's help. United concedes that  daytime and evening positions were vacant  throughout the period during which Gile was  requesting a transfer, but notes that Gile was  entitled by seniority to an evening shift  position if she had participated in United's  November 1992 bidding process. United argues that  Gile should have bid for a transfer in November,  even though she was no longer working and was on  indefinite medical leave, and she would have  received the transfer that she requested. When  Gile failed to bid for one of the vacant daytime  positions, United claims that it could do nothing  more for her. United protests that it would have  constituted prohibited "affirmative action" for  United to have reassigned Gile to a daytime shift  outside the November bidding process, even for  positions that remained open after bidding  closed.


33
We disagree.


34
Under the circumstances, the ADA required that  United transfer Gile to a vacant daytime  position. Although the ADA does not obligate  employers to "bump" other employees or create new  positions, sec. 12111(9) of the ADA requires an  employer to reassign a disabled employee to a  vacant position for which the employee is  otherwise qualified. See Gile, 95 F.3d at 499;  Hendricks-Robinson, 154 F.3d at 694-95; Dalton v.  Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678  (7th Cir. 1998); DePaoli v. Abbott Laboratories,  140 F.3d 668, 675 (7th Cir. 1998). The employer  is obligated to "identify the full range of  alternative positions for which the individual  satisfies the employer's legitimate,  nondiscriminatory prerequisites" and consider  "transferring the employee to any of these other  jobs, including those that would represent a  demotion." Dalton, 141 F.3d at 678. United is  wrong to say that it constitutes "affirmative  action" to reassign Gile to a vacant position for  which she was entitled by seniority and which  would have accommodated her disability. If United  had reassigned Gile as she requested, the only  preferential treatment of Gile would have been  that, unlike nondisabled employees who were not  on medical leave, she did not have to fulfill the  technical requirement of casting her November  bid.


35
Although the ADA does not require the employer  to abandon its legitimate policies regarding job  qualifications and entitlements to company  transfers, United cannot seriously claim that the  procedural requirement of November bidding was  too important for United to bypass when daytime  positions remained vacant after the bidding  process. In Hendricks-Robinson, the defendant's  policy of posting job openings and insisting that  disabled employees independently learn of and  apply for new positions was insufficient to  satisfy the employer's duty under the ADA to  investigate the possibility of transferring  disabled employees. Hendricks-Robinson, 154 F.3d  at 694. Likewise, United failed its duty of  reasonable accommodation because it took no  action other than to reject Gile's request. By  refusing her request and assuming no further duty  to accommodate because its shift bidding process  was in place, United failed its ADA obligation.

B.  Jury Instruction Under Sutton

36
At trial, the district court instructed the  jury that it should assess Gile's disability  without regard to mitigating measures, namely the  medications that Gile took to treat her  depression and anxiety. A few months after the  trial's close, the Supreme Court decided Sutton  v. United Airlines, Inc., 527 U.S. 471, 119 S.Ct.  2139, 2143 (1999), and held that "the  determination of whether an individual is  disabled should be made with reference to  measures that mitigate the individual's  impairment." Gile admits that the jury  instruction in this case was therefore improper  under the Supreme Court's subsequent holding in  Sutton, but explains that United could present  scant evidence that this error prejudiced United.  Indeed, to win a new trial based on an incorrect  jury instruction, United must show both that (1)  the instruction inadequately states Seventh  Circuit law; and (2) the error likely confused or  misled the jury causing prejudice to the  appellant. See Doe v. Burnham, 6 F.3d 476, 479  (7th Cir. 1993). This is another onerous burden  for United because, even if the jury instruction  was patently incorrect, United still must  establish that it was prejudiced by the improper  instruction. See EEOC v. AIC Security  Investigations, Ltd., 55 F.3d 1276, 1283 (7th  Cir. 1995). United is correct that the jury  instruction was improper under Sutton, but United  is wrong to say that it made any difference here.


37
United went so far to declare in its reply  brief that evidence which Gile proffered to  disprove prejudice is "irrelevant." It is both  relevant and the reason that United loses this  claim on appeal. United alleges only that Gile's  condition improved under medication, and that the  jury was not given the chance to conclude that  Gile was not disabled when medicated. United does  not demonstrate that substantial harm flowed from  the improper jury instruction, and its  speculation that the jury might have decided the  case differently if given the proper instruction  is insufficient to establish prejudice. In fact,  we doubt that the improper jury instruction  resulted in substantial harm because Gile  suffered significant impairment despite the  medication. Gile began taking medication in  September 1992, and nearly all the relevant  events of the case occurred while Gile was taking  regular medication but still suffering serious  depression and anxiety. The jury instruction was  harmless error.

C.  Punitive Damages

38
United moved at the end of trial for judgment  as a matter of law on punitive damages, but the  district court denied United's motion and the  jury awarded $500,000 to Gile in punitive  damages, later limited in accordance with 42  U.S.C. sec. 1981a. United now appeals, arguing  that the district court's instruction on punitive  damages violated the Supreme Court's recent  decision in Kolstad v. American Dental Ass'n, 527  U.S. 526, 119 S.Ct. 2118 (1999). We review de  novo the district court's denial of motion for  judgment as a matter of law. See Tincher, 118  F.3d at 1132.


39
The district court may award punitive damages  in connection with an ADA claim when the  defendant engaged in a "discriminatory practice  or discriminatory practices with malice or  reckless indifference to the federally protected  rights of an aggrieved individual." See 42 U.S.C.  sec. 1981a(b)(1). In Kolstad, a discrimination  case under Title VII of the Civil Rights Act, 42  U.S.C. secs. 2000e to 2000e-17, the Supreme  Court decided that establishing the requisite  "malice or reckless indifference" depends not on  the egregiousness of the employer's misconduct,  but instead on the "employer's knowledge that it  may be acting in violation of federal law."  Kolstad, 119 S.Ct. at 2124. Punitive damages are  proper when the employer discriminates "in the  face of a perceived risk that its actions will  violate federal law." Id. at 2125.


40
It is clear that McGuffin and Gile's floor  supervisors knew of the ADA and United's  reasonable accommodation policy, but United did  not act with reckless disregard for Gile's ADA  rights. Gile's supervisors deferred to McGuffin's  evaluation, and McGuffin believed that a shift  transfer would not have accommodated Gile's  disability. McGuffin in good faith disagreed with  Orlandino that a shift transfer would enable Gile  to work and believed that Gile's psychological  condition was a nonoccupational, personal problem  which did not trigger any obligation under the  ADA on United's part. Punitive damages depend not  on the egregiousness of the defendant's  misconduct, or its callousness in denying  reasonable accommodation, but instead run from a  culpable state of mind regarding whether that  denial of accommodation violates federal law. See  Kolstad, 119 S.Ct. at 2124; see also Deters v.  Equifax Credit Info. Servs., 202 F.3d 1262, 1269  (10th Cir. 2000). United's failure to accommodate  Gile's disability amounted to negligence because  it misunderstood Gile's difficulties, did not  regard her condition a disability and neglected  to pursue Gile in developing an alternative  accommodation. Although United wrongly believed  that Gile was not disabled under the ADA and did  not adequately address her accommodation request,  United did not exhibit the requisite reckless  state of mind regarding whether its treatment of  Gile violated the ADA. The district court should  have granted United's motion for judgment as a  matter of law regarding punitive damages, and we  will reverse the award of punitive damages,  leaving Gile with a judgment for $200,000 in  compensatory damages.

III.  Conclusion

41
For the foregoing reasons, we AFFIRM the judgment  for Cheryl Gile of compensatory damages but REVERSE  the award of punitive damages.


42
DIANE P. WOOD, Circuit Judge, concurring in part  and dissenting in part. I agree with the  conclusion of the majority in Parts II.A. and  II.B. of the opinion that United Airlines has  shown no reason to upset the jury's verdict in  favor of Cheryl Gile on compensatory damages and  that the erroneous instruction about mitigating  measures was harmless error. I would not,  however, reverse the jury's award of punitive  damages, reduced as it was required to be under  42 U.S.C. sec. 1981a(b)(3) from $500,000 to  $100,000 (which kept the total verdict within the  statutory $300,000 cap). As the majority states,  under Kolstad v. American Dental Ass'n, 527 U.S.  526, 119 S.Ct. 2118 (1999), the requisite malice  or reckless indifference required for a punitive  damage award is present when the employer  discriminates "in the face of a perceived risk  that its actions will violate federal law." 527  U.S. at ___, 119 S.Ct. at 2125.


43
The jury was entitled to find, as it did, that  this is precisely what United did, through its  authorized decisionmaker, Regional Medical  Director Dr. Robert McGuffin. McGuffin was  responsible for handling the accommodation  process for United employees whose medical  condition called into question their fitness to  work. He unquestionably knew about United's ADA  policy, as the majority agrees. The jury did not  believe that McGuffin seriously thought that a  shift transfer would not have accommodated Gile's  disability, or that his view was formed in good  faith. Instead, he behaved with astonishing  callousness in the face of Gile's disability,  twice insensitively telling her she should just  quit or resign and dismissing her complaints as  "mere" personal problems in the face of the  extensive medical documentation to the contrary  from a professional United itself recommended. I  do not disagree with the majority that the record  did not compel a finding of malice or reckless  indifference; had Gile filed a proper partial  Rule 50 motion, she would not have been entitled  to judgment as a matter of law on that point. But  on this record the jury was certainly entitled to  find that United had engaged in reckless  behavior.


44
I therefore respectfully dissent from Part II.C.  of the opinion, which reverses the jury's award  of punitive damages.

