IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ______________________________ Case No. 06-2874 ______________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, and AHMET DEMIRELLI, Plaintiff-Appellee, v. CONVERGYS CUSTOMER MANAGEMENT GROUP, INC., Defendant-Appellant. _______________________________________________________ On Appeal from the United States District Court for the Eastern District of Missouri _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _______________________________________________________ RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel SUSAN L.P. STARR Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7038 Washington, D.C. 20507 (202) 663-4727 SUMMARY OF THE CASE This is an appeal from a final judgment based on a jury verdict finding that Convergys violated Title I of the Americans with Disabilities Act by failing to make a reasonable accommodation to Ahmet Demirelli's known disability, thereby causing him to be terminated for returning late from his meal break in violation of the company's attendance policy. The district court denied Convergys's motion for judgment as a matter of law, holding that there was ample evidence in the trial record supporting a finding that Demirelli could perform the essential functions of his job with a reasonable accommodation and that his immigration status did not render him unqualified at the time Convergys discriminated against him. The court also denied Convergys's challenges to the jury's award of compensatory damages and back pay. The Commission agrees with Convergys that oral argument would assist the Court in elucidating the issues on appeal. TABLE OF CONTENTS SUMMARY OF THE CASE. . . . . . . . . . . . . . . . . . . . . . ii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . vi STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings . . . . . . . .4 2. Statement of the Facts . . . . . . . . . . . . . . . . . . .5 3. District Court Decision. . . . . . . . . . . . . . . . . . 14 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 16 ARGUMENT I. THE DISTRICT COURT CORRECTLY DENIED DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW BECAUSE THERE IS AMPLE EVIDENCE IN THE TRIAL RECORD TO SUPPORT A FINDING THAT DEMIRELLI WAS A QUALIFIED INDIVIDUAL WITH A DISABILITY . . . . 18 A. Standard of Review. . . . . . . . . . . . . . . . . . 18 B. Introduction . . . . . . . . . . . . . . . . . . . . 19 1. Because Demirelli Could Perform the Essential Functions of His Job With a Reasonable Accommodation, He Was a "Qualified Individual".. . . . . . . . . . . . . 20 2. Demirelli's Immigration Status Did Not Render Him Unqualified at the Time Convergys Discriminated Against Him22 TABLE OF CONTENTS (cont.) II. THE JURY WAS PROPERLY INSTRUCTED THAT DEMIRELLI WAS REQUIRED ONLY TO NOTIFY DEFENDANT OF HIS NEED FOR AN ACCOMMODATION IN GENERAL.. . . . . . . . . . . . . . . . . . . 25 A. Standard of Review. . . . . . . . . . . . . . . . . . . . .25 B. Discussion. . . . . . . . . . . . . . . . . . . . . . . . 25 III. THE DISTRICT COURT PROPERLY REJECTED CONVERGYS'S CHALLENGE TO THE DAMAGES AWARDED BY THE JURY . . . . . . . . . 31 A. The District Court Correctly Denied Convergys's Motion for JMOL With Respect to the Claim for Compensatory Damages Because the Evidence Does Not Compel a Finding That Convergys Made a Good Faith Effort to Reasonably Accommodate Demirelli's Disability. 31 1. Standard of review . . . . . . . . . . . . . . . 31 2. Discussion . . . . . . . . . . . . . . . . . . . 32 B. The District Court Did Not Abuse its Discretion in Refusing to Reduce the Award of Compensatory . . . . . . . . . . . . . . . 35 1. Standard of review . . . . . . . . . . . . . . . 35 2. Discussion . . . . . . . . . . . . . . . . . . . 35 C. Convergys's Argument That the Jury Must Have Been Influenced by Evidence of Its Net Worth Admitted in Connection With Plaintiffs' Claim for Punitive Damages Ignores the Presumption That the Jury Followed the Court's Instructions Regarding the Evidence to be Considered in Determining Its Compensatory Damage Award. . . . 40 TABLE OF CONTENTS (cont.) CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 42 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Avitia v. Metrop. Club of Chicago, Inc., 49 F.2d 1219 (7th Cir. 1995) . . . . . . . . . . . . . . . 38 Ballard v. Rubin, 284 F.3d 957 (8th Cir. 2002). . . . . . . 25, 29 Block v. Macy, 712 F.2d 1241(8th Cir. 1983). . . . . . . 16 Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043 (8th Cir. 1999). . . . . . . . . . . . . . . . . . . . . 2, 24 Browning v. President Riverboat Casino-Mo., Inc., 139 F.3d 631 (8th Cir. 1998). . . . . . . . . . . . . . 18 Buckles v. First Data Res., Inc., 176 F.3d 1098 (8th Cir. 1999). . . . . . . . . . . . . . . . . . . . . 21, 30 Calderone v. United States, 799 F.2d 254 (6th Cir. 1986). . . . . . . . . . . . . . . . . . . . . 3, 33 California and Haw. Sugar Co. v. Kansas City Terminal Warehouse Co., 788 F.2d 1331 (8th Cir. 1996). . . . . . . . . . . . . 40-41 Campos v. City of Blue Springs, Mo., 289 F.3d 546 (8th Cir. 2002). . . . . . . . . . . . . . 25 Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894 (8th Cir. 2006). . . . . . . . . . . . . . 2 Delph v. Dr. Pepper Bottling Co. of Paragould, Inc. , 130 F.3d 349 (8th Cir. 1999). . . . . . . . . . . . . . 38 Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005). . . . . . . . . . . . . 18 Earl v. Mervyns, Inc., 207 F.3d 1361(11th Cir. 2000). . . . . . 30 Egbuna v. Time Life Libraries, Inc., 153 F.3d 184 (4th Cir. 1998). . . . . . . . . . . . . . 22-23 Eich v.Bd. of Regents for Cent. Mo. State Univ., 350 F.3d 752 (8th Cir.2003). . . . . . . . . . . . . . 35 EEOC v. Union Independiente de la Autoridad de Acuductos y Alcantarillados de Puerto Rico, 279 F.3d 49 (1st Cir. 2002). . . . . . . . . . . . . . . . . . . . . 31 Forshee v. Waterloo Indus., Inc., 178 F.3d 527 (8th Cir. 1999). . . . . . . . . . . . . . . . . . . . . 32, 38 Frazier v. Iowa Beef Processors, Inc., 200 F.3d 1190 (8th Cir. 2000). . . . . . . . . . . . . . . . . . . . . 38 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). . . . . . . . . . . . . . 2, 23-24 Jenkins v. McLean Hotels, Inc., 859 F.2d 598 (8th Cir. 1988) 3, 35 Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051 (8th Cir.1993). . . . . . . . . . . . . . 40 Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997). . . . . . . . . . . . . . . . . . . . .15, 39-40 Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040 (8th Cir. 2005). . . . . . . . . . . . . 27-29 Kucia v. Southeast Ark. Community Action Corp., 284 F.3d 944 (8th Cir.2002). . . . . . . . . . . . . . 32, 35 MacGregor v. Mallinckrodt, Inc., 373 F.3d 923 (8th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 37 Madison v. IBP, Inc., 330 F.3d 1051 (8th Cir. 2003). . . . . . .35 FEDERAL CASES (cont.) Maziarka v. Mills Fleet Farm, Inc., 245 F.3d 675 (8th Cir. 2001). . . . . . . . . . . . . . . . . . . . . 21, 30 In re MidAmerican Energy Co., 286 F.3d 483 (8th Cir. 2002). . . . . . . . . . . . . . 14 Mathieu v. Gopher News Co., 273 F.3d 769 (8th Cir.2001). . . . . . . . . . . . . . . . . . . . . 39 Mole v. Buckhorn Rubber Products, Inc., 165 F.3d 1212 (8th Cir. 1999). . . . . . . . . . . . . . . . . . . . . 27-29 Pebbles v. Potter, 354 F.3d 761 (8th Cir. 2004). . . . . . . . . . . . . . . . . . . . . 3, 26 Peoples Bank & Trust Co. of Mountain Home v. Globe Int'l Pub. Inc., 978 F.2d 1065 (8th Cir. 1992). . . . . . . . . . . . . . 38 Ross v. Douglas County, Nebraska, 234 F.3d 391, 397 (8th Cir.2000). . . . . . . . . . . . . . . . . . . . . . . . .39 Rowe v. Hussmann Corp., 381 F.3d 775 (8th Cir. 2004). . . . . . 37 Smith v. Chase Group, Inc., 354 F.3d 801 (8th Cir. 2004). . . . . . . . . . . . . . . . . . . . . 18 Sweat v. City of Fort Smith, 265 F.3d 692 (8th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . 14 Sure-Tan v. NLRB, 467 U.S. 883 (1984). . . . . . . . . . . . . .24 Taylor v. Phoenixville Sch. Dist., 174 F.3d 142 (3d Cir. 1999). . . . . . . . . . . . . . . . . . . . . 29 Triton Corp. v. Hardrives, Inc., 85 F.3d 343 (8th Cir. 1996). . . . . . . . . . . . . . . . . . . . . 15 United States v. Big D Enter., Inc., 184 F.3d 924 (8th Cir. 1999). . . . . . . . . . . . . . . . . . . . . 14, 18 Walker v. AT & T Technologies, 995 F.2d 846 (8th Cir. 1993). . . . . . . . . . . . . . . . . . . . . 25 Weeks v. Angelone, 528 U.S. 225 (2000). . . . . . . . . . . . . 40 Williams v. Valentec Kisco, Inc., 964 F.2d 723 (8th Cir. 1992). . . . . . . . . . . . . . . . . . . . . 25 FEDERAL STATUTES AND REGULATIONS 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1331 and 1345. . . . . . . . . . . . . . . . . . . . 2 29 C.F.R. § 1606.1. . . . . . . . . . . . . . . . . . . . . . . .6 29 C.F.R. § 1630.2(m) App.. . . . . . . . . . . . . . . . . .2, 24 29 C.F.R. § 1630.2(n). . . . . . . . . . . . . . . . . . . . . 21 29 C.F.R. § 1630.9. . . . . . . . . . . . . . . . . . . . . 3, 25 42 U.S.C. § 1981a. . . . . . . . . . . . . . . . . . . . . 3, 32 Title I of the Americans With Disabilities Act, 42 U.S.C. § 12111 et seq. passim Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.. . . . . . . . . . . . . . 1-2 MISCELLANEOUS EEOC Directives Transmittal 915.002, June 27, 2002, Rescission of Enforcement Guidance on Remedies Available to Undocumented Workers under Federal Employment Discrimination Laws, http://www.eeoc.gov/policy/docs/undoc-rescind.html. . . .23 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ______________________________ Case No. 06-2874 ______________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, AHMET DEMIRELLI, Plaintiff-Appellee, v. CONVERGYS CUSTOMER MANAGEMENT GROUP, INC., Defendant-Appellant. _______________________________________________________ On Appeal from the United States District Court for the Eastern District of Missouri _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _______________________________________________________ STATEMENT OF JURISDICTION The Equal Employment Opportunity Commission brought this enforcement action under § 107(a) of the Americans With Disabilities Act of 1990, 42 U.S.C. § 12117(a), which incorporates by reference §§ 706(f)(1) & (3) of Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e-5(f)(1) and (3). Ahmet Demirelli intervened as a plaintiff pursuant to 42 U.S.C. § 2000e-5(f)(1). The district court had jurisdiction over this action under 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. §§ 1331 and 1345. Final judgment was entered on July 7, 2006. D's App. at 22. A notice of appeal was filed by the defendant on July 14, 2006. Id. at 23. This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether an individual who can perform the essential functions of a job with a reasonable accommodation is "qualified" within the meaning of the ADA without regard to whether he requested the needed accommodation. 42 U.S.C. § 12111(8). Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894, 900 (8th Cir. 2006). 2. Whether an individual who was legally authorized to work in the United States at the time of the alleged discrimination is "qualified" under the ADA even if he was not authorized to work at some other time. 29 C.F.R. § 1630.2(m) App. Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1047 (8th Cir. 1999). Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 146 (2002). 3. Whether the district court properly instructed the jury that Convergys's duty to offer Demirelli a reasonable accommodation was triggered when he informed Convergys of his need for an accommodation, whether or not he specifically requested the exact accommodation he required. 42 U.S.C. § 12112(b)(5)(A). 29 C.F.R. § 1630.9. Pebbles v. Potter, 354 F.3d 761, 767 (8th Cir. 2004). 4. Whether the district court properly denied Convergys's motion for judgment as a matter of law with respect to the plaintiffs' claim for compensatory damages where the evidence does not compel a finding that Convergys made a good faith effort to accommodate Demirelli's disability. 42 U.S.C. § 1981a(3). Calderone v. United States, 799 F.2d 254, 258-59 (6th Cir. 1986). 5. Whether the district court properly denied Convergys's request for remittitur of the award of compensatory damages. Jenkins v. McLean Hotels, Inc., 859 F.2d 598, 600 (8th Cir. 1988). STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final judgment based on a jury verdict in favor of the plaintiffs in this enforcement action under Title I of the Americans With Disabilities Act, 42 U.S.C. § 12111 et seq. The Equal Employment Opportunity Commission (EEOC) commenced this action by filing a complaint on July 8, 2004, alleging that the defendant violated § 102(a) of the ADA by failing to provide a reasonable accommodation for Ahmet Demirelli's known disability, brittle bone disease, and terminating him because of that disability. D's App. at 27. The Commission requested, among other relief, backpay, compensatory and punitive damages, and injunctive relief. Id. On December 10, 2004, the district court granted Demirelli's motion to intervene as a plaintiff. D's App. at 4. On January 19, 2006, the district court granted, in part, and denied, in part, the defendant's motion for summary judgment. D's App. at 408. The court denied summary judgment on the claim that the defendant failed to reasonably accommodate Demirelli's request for a longer lunch period but granted summary judgment dismissing the claims relating to other requested accommodations. D's App. at 407-09. After the plaintiffs presented their case-in-chief at trial, the district court denied defendant's motion for a directed verdict, as well as its motion for judgment as a matter of law on the claim for compensatory damages. D's App. at 17. On April 14, 2006, the jury returned a verdict in favor of the plaintiffs, awarding backpay and compensatory damages, but denying punitive damages. D's App. at 550-51. The district court denied defendant's renewed motions for judgment as a matter of law, remittitur, or, in the alternative, for a new trial. D's App. at 18. The court granted EEOC's motion for prejudgment interest and granted, in part, EEOC's motion for a permanent injunction, EEOC's and Demirelli's motions for costs, and Demirelli's motion for attorney's fees. D's App. at 22-23. 2. Statement of the Facts Ahmet Demirelli came to the United States from Turkey in 1992 to seek treatment for Osteogenesis Imperfecta, a medical condition commonly known as brittle bone disease. EEOC's App. at 24-27. Demirelli's condition is characterized by extreme bone fragility, such that if he tried to walk the bones in his legs would break. EEOC's App. at 26-29. Demirelli has had approximately 60 fractures, has very weak teeth, and uses a manual wheelchair for mobility. EEOC's App. at 28-29, 32-33. He is at risk of serious injury if he moves his wheelchair excessively or gains significant weight. EEOC's App. at 32, 126-27, 178-81. He has difficulty opening manual doors and suffers from pain on a regular basis. EEOC's App. at 30-33. Demirelli began working for Convergys Customer Management Group on January 15, 2001, as a call representative, answering telephone calls from persons having problems with their broadband internet connections. EEOC's App. at 26- 27, 34-35. At the time he was hired, Demirelli had authorization to work in the United States. His work authorization lapsed on September 9, 2001, but reauthorization was granted on April 5, 2002, while he was still employed with Convergys.<1> D's App. at 453. Under Convergys's attendance policy, an employee may be considered tardy if he is more than three minutes late reporting for work or returning from a break. EEOC's App. at 1. Convergys had two systems to record tardies. A computerized Timekeeping System ("TKS") automatically records the time of day an agent plugs his headset into his computer, and, in so doing, records all tardies. EEOC's App. at 54-55, 144-47. A Consolidated Reporting Data Base ("Metrix") records only those tardies entered by supervisors. Id. Tardies entered in the Metrix system are officially charged against an agent while all other tardies are considered "excused." EEOC's App. at 148-51. Supervisors often fail to enter tardies recorded by the TKS system in the Metrix system.<2> EEOC's App. at 148- 57 (supervisors did not routinely charge against agents all of the tardies they commit). An employee with 14 or more tardies recorded in the Metrix system in a calendar year may be terminated. EEOC's App. at 1, 144-45. Teresa Horstmann, Convergys's Human Resources manager, testified that the company has "never made any exception to the attendance policy," and all employees are required to abide by it. D's App. at 453; EEOC's App. at 196-97. However, there was evidence that the policy was, in fact, not strictly followed and that Convergys deliberately overscheduled agents to ensure coverage of calls in anticipation of unscheduled absences and tardies. EEOC's App. at 184-85. According to Convergys's records, during Demirelli's tenure, 12 employees had more charged tardies than Demirelli. EEOC's App. at 10, 166-69. Some of those 12, including one person who had 76 charged tardies, received written warnings rather than termination. Id. The remainder were eventually terminated. Id. At the start of his employment with Convergys, Demirelli had difficulty getting to work on time in part because of problems with parking. EEOC's App. at 92-95, 182-83. He made great efforts to arrive punctually, including rolling his wheelchair faster, although that caused him "tremendous bone pain." EEOC's App. at 32-33, 176-79. Demirelli repeatedly requested help from different management personnel, but received no response. EEOC's App. at 92-95 (supervisor Hill told Demirelli she would notify upper management about his accommodation request but no further action was taken); EEOC's App. at 96-97 (supervisor Lartch told Demirelli he would look into accommodations but did not get back to him). Finally, in February 2002, Demirelli requested that his schedule be changed to delay his start time by one hour when more parking was available. EEOC's App. at 96-101, 220-29. And then to further reduce his late arrivals, in April 2002 Demirelli decided to sit in a section of cubicles cordoned off for training because they were empty and closer to the front door. He continued to work in that area despite the objections of several supervisors. EEOC's App. at 102-05, 130-33. Demirelli's actions eventually resolved the late arrival problem. EEOC's App. at 14 (Demirelli's late arrivals dropped off significantly at the beginning of 2002 and stopped altogether after April 15, 2002). However, Demirelli continued to incur tardies for returning from his meal break late. Full-time employees, such as Demirelli, are permitted to take one unpaid 30-minute meal break and two 15-minute breaks. EEOC's App. at 54-57, 134-39. The 30-minute meal break did not provide Demirelli sufficient time both to use the bathroom and eat due to the physical characteristics of the facilities. EEOC's App. at 58-61, 136-37. Convergys's bathroom was inadequate to meet the needs of the disabled in several ways, causing Demirelli substantial delays.<3> EEOC's App. at 64-69. The lunch room also caused delays due to its narrow passageways which were difficult to navigate in a wheelchair. Furthermore, because his condition weakened his teeth, Demirelli had a severely restricted diet and needed to use the microwave to prepare his meal. EEOC's App. at 70-73. However, he had to wait for assistance to use the microwave in the lunch room because it was too high for him to reach. Id. The overall design of the lunch room required Demirelli to go back and forth to the table with his food in his lap and a drink in his teeth, sometimes spilling beverages or food on himself, which necessitated using even more time to clean up. EEOC's App. at 60-65, 70-77. Furthermore, Demirelli's disability also made it difficult for him to log onto his computer promptly when he returned from his meal break. Demirelli had to locate a headset and, unlike employees who could stand, he could not simply look over the cubicles to quickly locate an available one. EEOC's App. at 36-47. Instead, he had to move up and down aisles, avoiding those with obstacles, pushing empty chairs out of his way, and asking persons in the aisles to move. EEOC's App. at 36-41. He tried to engage in self-help by taking a headset with him during his meal break, but stopped when he was told by his supervisor that taking the headset off the floor was prohibited and constituted grounds for immediate termination. EEOC's App. at 50-53. Convergys officials spoke to Demirelli about his tardies returning from his meal break, but none of them offered any assistance. At the beginning of 2002 he explained to a supervisor, David Miller, that his delayed return from his meal break was due to the fact that he was in a wheelchair and needed to eat special foods due to his disability. EEOC's App. at 80-85. During that conversation, Demirelli requested that Convergys provide him with a few additional minutes, either by adding time to his break or subtracting from his pay the additional time used. Id. Miller denied his request stating that the meal period could not be extended for anyone, but said he would speak with his supervisor. Id. Miller never got back to Demirelli. Id. Stephen Brookins, Convergys's operations manager, testified that another employee with a medical condition which delayed his return from his meal break was given an extended lunch break as an accommodation. EEOC's App. at 140-43. Brookins testified that it creates no difficulty for Convergys' business to expand meal breaks so long as the modification is logged into the schedule. EEOC's App. at 142-43. Between March 2002 and April 18, 2002, Demirelli made the same request for an extended meal break to his supervisor at that time, Marlon Mitchell. EEOC's App. at 218-19. Mitchell denied his request, telling Demirelli that he should either roll faster or buy a motorized wheel chair because if he received more tardies he would be terminated.<4> EEOC's App. at 86-91, 100-01. Finally, Demirelli's last supervisor, LaShonda Aldridge, testified that, although she spoke with Demirelli numerous times about being a few minutes late returning from his meals and Demirelli told her he had difficulty maneuvering through the aisles, she did not know the difficulty had anything to do with the fact that he was in a wheelchair. EEOC's App. at 184-85, 188-91. On April 18, 2002, Demirelli received a written warning for being charged with 17<5> tardies, seven of which were for being late returning from the meal break and the rest were for late arrivals. EEOC's App. at 11, 17. On June 19, 2002, eight days before his termination, Demirelli received an evaluation giving him the highest rating possible in attendance and punctuality. EEOC's App. at 4, 157-58, 192-93. After the April 18th warning, Demirelli was charged with being one minute late returning from break on two separate occasions and was terminated on June 27, 2002. Ten of the 20 tardies official charged against Demirelli were for being late returning from the meal break; the remaining ten were for late arrivals prior to April 16, 2002. EEOC's App. at 11, 170-75. All of the charged meal- break tardies were for clocking in less than ten minutes late. EEOC's App. at 11. Immediately prior to coming to work on the day he was terminated, Demirelli and his mother purchased their first home in the United States. EEOC's App. at 112-15. After Demirelli's termination, his family's sole income sources were his mother's work as a babysitter and occasional loans from Demirelli's aunt in Turkey. EEOC's App. at 116-21. They have held onto the house only by amassing significant debt. Id. The initial fear and anxiety caused by Demirelli's termination increased to despair, helplessness and a loss of self-confidence as his efforts to find a new job were unsuccessful. EEOC's App. at 120-27. Demirelli's active social life ceased within one month; he stopped communicating with others, locked himself in his room for extended periods, and gained thirty pounds, thereby putting excessive pressure on his bones. EEOC's App. at 124-29, 176-81. Because he lost his health insurance when he was fired, he could not afford to seek psychiatric help. EEOC's App. at 128-29. At the conclusion of trial, the court instructed the jury, inter alia, that, for the plaintiffs to prove that Demirelli was entitled to a reasonable accommodation, he "need not have made a request for a specific accommodation. It was enough for him to notify defendant of his need for an accommodation in general." D's App. at 520. The court also instructed the jury that any award of backpay should be limited to the period between "June 27, 2002, through April 4, 2003," and any award of damages "must not include any compensation for any damages sustained after April 3, 2003." D's App. at 525. 3. District Court's Decision The district court denied Convergys's post-trial motions for judgment as a matter of law, remittitur, or, in the alternative, a new trial. The court noted that "[a] party seeking to overturn a jury verdict based on the insufficiency of the evidence faces an onerous burden." D's App. at 582 (citing United States v. Big D Enter., Inc., 184 F.3d 924, 929 (8th Cir. 1999)). According to the court, "Convergys fails to meet the heavy burden for judgment as a matter of law because ample evidence was presented to support the jury's verdict." Id. The court also denied Convergys's motion for a new trial, stating that, "[b]ased on the Court's observation during the trial, the verdict was not against the weight of the evidence, excessive, or the result of a miscarriage of justice." Id. at 584.<6> The court also rejected Convergys's request for remittitur of the award of back pay and compensatory damages. According to the court, Convergys "failed to meet its burden [of establishing] that Demirelli failed to mitigate his damages." D.'s App. at 584. The court concluded that, "[c]onsidering Demirelli's work experience, skills, and limited mobility, his efforts [to find a new job] while unsuccessful were sufficient." D's App. at 584-85.<7> Finally, the court denied the request for remittitur with respect to the jury's award of compensatory damages for Demirelli's emotional distress. The court noted that this Court has held that "‘[m]edical or other expert evidence is not required to prove emotional distress.'" D's App. at 585 (quoting Kim v. Nash Finch Co., 123 F.3d 1046, 1065 (8th Cir. 1997)). Furthermore, the court stated, a district court should not grant remittitur with respect to a jury's award of damages unless "‘the award is so excessive as to shock the court's conscience.'" Id. (quoting Triton Corp. v. Hardrives, Inc., 85 F.3d 343, 347 (8th Cir. 1996)). Applying this standard, the court first concluded that "[Demirelli's] testimony and the circumstances of this particular case are sufficient to sustain the burden for an emotional distress award." Id. (citation omitted). The court noted the testimony of Demirelli and his mother regarding the emotional stress caused by the termination, as well as the "physical effects" and "the effect it had on his relations with other people." Id. Based on this evidence, the court stated that, "[b]ecause the jury ‘had the benefit of observation of plaintiff in considering and determining a fair allowance for [his] emotional distress and humiliation,' the Court does not believe that the award [of $100,000] was so excessive as to shock the conscience." Id. (quoting Block v. Macy, 712 F.2d 1241, 1245 (8th Cir. 1983) (alteration in quote by the district court)). SUMMARY OF ARGUMENT A jury found that Convergys violated the ADA by failing to make a reasonable accommodation to Ahmet Demirelli's disability, thereby causing him to be terminated for violating the company's attendance policy. On appeal, Convergys does not dispute that it failed to accommodate Demirelli's disability and does not argue that it could not have readily offered him an accommodation which would have permitted him to comply with the company's attendance policy by extending his meal break. Instead the company argues that Demirelli was not a "qualified individual" protected by the ADA because the accommodation he requested would not have allowed him to be punctual. There is no basis in the law for Convergys's contention that an individual who can perform essential job functions with accommdation is rendered unqualified if he does not ask for the right accommodation. The question of whether Demirelli adequately informed Convergys of his need for an accommodation goes to the question of whether the company's duty to accommodate was triggered, not to whether Demirelli was qualified. Similarly misplaced is Convergys's argument that, although Demirelli was authorized to work in this country at the time of the discrimination at issue, he was not qualified because he lacked employment authorization at some time in the past. As this Court has made clear, the determination of whether an individual was "qualified" for purposes of the ADA is based on his status at the time of the discriminatory act. Convergys' argument that the jury instruction misstated the law is also wrong because the district court's instruction that an employee is required to notify the employer only of the need for an accommodation in general is an accurate statement of the law. While it is true that an employee must provide enough information for the employer to determine the type of accommodation needed or if one is possible, it is undisputed that Convergys knew that Demirelli needed an accommodation, and an effective accommodation – granting him a longer meal break – would have been obvious to any reasonable employer. Finally, Convergys's challenges to the award of damages are meritless. Convergys fails to meet its burden of establishing that the evidence compels a finding that Convergys had made a good faith effort to accommodate Demirelli's inability to return from meal breaks consistently within the allotted time. Far from compelling a finding that Convergys made a good faith effort, there is ample evidence that it made no effort whatsoever. And, notwithstanding the company's argument to the contrary, the amount of the award for emotional distress was not excessive given the testimony of the devastating effects Demirelli suffered as a result of his termination. ARGUMENT I. THE DISTRICT COU2RT CORRECTLY DENIED DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW BECAUSE THERE IS AMPLE EVIDENCE IN THE TRIAL RECORD TO SUPPORT A FINDING THAT DEMIRELLI WAS A QUALIFIED INDIVIDUAL WITH A DISABILITY A. Standard of Review In reviewing an order denying a motion for judgment as a matter of law, a court of appeals applies the same standard as the district court. See Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005). As Convergys acknowledges, that standard imposes "an onerous burden" on the moving party. See D's App. at 581 (citing United States v. Big D Enter., Inc., 184 F.3d 924, 929 (8th Cir. 1999)). The court must view the evidence "in the light most favorable to the prevailing party," and "cannot weigh or evaluate the evidence or consider questions of credibility." Id. (citing Smith v. Chase Group, Inc., 354 F.3d 801, 806 (8th Cir. 2004)). "Judgment as a matter of law is proper only when . . . there is a complete absence of probative facts to support the verdict." Browning v. President Riverboat Casino-Mo., Inc., 139 F.3d 631, 634 (8th Cir. 1998). B. Introduction Section 102(b)(5)(A) of the ADA makes it unlawful for an employer to fail to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability" unless the employer demonstrates that such accommodation would cause it "undue hardship." 42 U.S.C. § 12112(b)(5)(A). The plaintiffs allege that Convergys violated this provision when it failed to accommodate Demirelli's known physical limitations which prevented him from returning from his meal break consistently on time. After hearing evidence concerning the ways in which Demirelli's disability interfered with his ability to finish his meal break and clock back in within the allotted time, and Convergys's failure to offer Demirelli any assistance in overcoming these obstacles, the jury found that Convergys violated the ADA. On appeal, Convergys does not dispute most of the elements of the plaintiffs' claim. The company does not dispute that it was aware that Demerilli had a disability which restricted his mobility or that he requested assistance from management to deal with his tardiness problem. Furthermore, Convergys does not dispute that it failed to offer Demirelli an accommodation for this problem and that, as a consequence, Demirelli lost his job. Instead, the company argues that, for two different reasons, Demirelli was not a "qualified individual" within the meaning of the ADA, notwithstanding undisputed evidence that he was a valued employee who was legally authorized to work when he was fired. Neither argument has any merit. 1. Because Demirelli Could Perform the Essential Functions of His Job With a Reasonable Accommodation, He Was a "Qualified Individual" Convergys first argues that, even if it failed to provide Demirelli with a reasonable accommodation which would have allowed him to work without incurring excessive tardies, it did not violate the ADA because Demirelli was not a "qualified individual," and therefore was not protected by the statute. Section 101(8) of the ADA defines a "qualified individual" as an individual "who, with or without reasonable accommodation, can perform the essential functions" of the job at issue. 42 U.S.C. § 12111(8). The company argues that "punctuality" is an essential function of the job Demirelli held, and the plaintiffs failed to establish that Demirelli was qualified because they failed to show "that Demirelli requested an accommodation that would have enabled him to be punctual and that Convergys failed to provide it." Br. at 17. Notably, Convergys does not argue that Demirelli could not have been punctual with a reasonable accommodation, only that he did not request an accommodation that would have allowed him to be punctual. This argument ignores the plain language of the statute. According to the statute, an individual is qualified if he "can perform the essential functions" of a job with a reasonable accommodation. Even assuming that "punctuality" was an essential function of Demirelli's job, there is no dispute that Demirelli could have "performed"<8> this function with the reasonable accommodation of a schedule change. Convergys does not argue that it was not able to provide Demirelli an accommodation which would have put him in compliance with its punctuality policy. It did, in fact, provide to another employee the precise accommodation Demirelli needed by extending that employee's lunch break by fifteen minutes. Convergys's official conceded that such an accommodation would not cause any disruption to its business. Accordingly, it is clear that, at the time he was fired, Demirelli could perform the essential functions of his job, including punctuality, with the reasonable accommodation of a schedule change. Therefore, he was a "qualified individual" within the meaning of the ADA. The question of whether Demirelli adequately requested this accommodation goes to whether Convergys's duty to accommodate was triggered, not to whether Demirelli was protected by the ADA. We address the question of the proper standard for determining whether Convergys has a duty to offer Demirelli an effective accommodation in response to the company's challenge to the district court's jury instructions. See infra at 25-31. 2. Demirelli's Immigration Status Did Not Render Him Unqualified at the Time Convergys Discriminated Against Him Convergys also argues that Demirelli was not a qualified individual because during a portion of his employment with the company, Demirelli was not legally authorized to work in the United States. Br. at 26. The company bases this argument entirely on the Fourth Circuit's decision in Egbuna v. Time Life Libraries, Inc., 153 F.3d 184 (4th Cir. 1998). In Egbuna, the court held that the plaintiff could not show that he was "qualified" for purposes of establishing a prima facie case under Title VII because, at the time the defendant refused to hire him, he was not legally authorized to work in the United States. Id. at 187-88. Even if this Court were to follow Egbuna,<9> it has no bearing on this case. There is no question that Demirelli was authorized to work in the United States at the time he was hired, and at the time he was fired. Demirelli was authorized to work at all times during his employment except a seven-month period during which that authorization lapsed. Even if it were true that Demirelli was not protected by the ADA during the period he was not authorized to work, there is no support for Convergys's argument that he was still unprotected after he regained his work authorization. To the contrary, this Court has made clear that to determine whether an employee is "qualified" is strictly limited to an assessment of his qualifications at the time of the challenged employment decisions. Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1047 (8th Cir. 1999) ("[t]he determination of whether an individual is qualified for purposes of the ADA is a two-step process, and should be made as of the time of the employment decision") (citing 29 C.F.R. § 1630.2(m) App.). Demirelli was denied accommodations to help him be punctual returning from his meal break throughout his employment, including times during which he was authorized to work. EEOC's App. at 180-91, 218-19. In addition, Demirelli unquestionably was authorized to work at the time of his termination. EEOC's App. at 6, 106-07. Accordingly, the district court correctly rejected Convergys's request for judgment as a matter of law based on Demirelli's immigration status.<10> II. THE JURY WAS PROPERLY INSTRUCTED THAT DEMIRELLI WAS REQUIRED ONLY TO NOTIFY DEFENDANT OF HIS NEED FOR AN ACCOMMODATION IN GENERAL A. Standard of Review Jury instructions are reviewed for abuse of discretion. Campos v. City of Blue Springs, Mo., 289 F.3d 546, 551-52 (8th Cir. 2002). "[T]he form and language of jury instructions are committed to the sound discretion of the district court so long as the jury is correctly instructed on the substantive issues in the case." Walker v. AT & T Technologies, 995 F.2d 846, 849 (8th Cir. 1993) (quoting Williams v. Valentec Kisco, Inc., 964 F.2d 723, 731 (8th Cir. 1992)). B. Argument An employer violates the ADA if it does "not . . . make reasonable accommodation to the known physical or mental limitations of an otherwise qualified . . . employee with a disability," unless it demonstrates that accommodation would cause undue hardship. 42 U.S.C. § 12112(b)(5)(A); accord, Ballard v. Rubin, 284 F.3d 957, 960 (8th Cir. 2002). The Commission's ADA regulations provide that "[i]n general, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed." 29 C.F.R. § 1630.9. Similarly, this Court has stated that "the known disability triggers the duty to accommodate." Pebbles v. Potter, 354 F.3d 761, 767 (8th Cir. 2004). Consistent with this standard, the district court correctly instructed the jury that, in order to trigger Convergys's duty to provide a reasonable accommodation, "[i]t was enough for [Demirelli] to notify defendant of his need for an accommodation in general." D's App. at 520. Convergys argues that this instruction was a misstatement of the law because the company was under no obligation to respond to Demirelli's requests for assistance in complying with its attendance policy until Demirelli requested a specific accommodation "that would have permitted him to be punctual." Br. at 24. According to Convergys, Demirelli's request for an extension of the three- minute grace period for returning from his meal break, without specifying the exact number of minutes he wanted his meal break extended, would have "allowed [him] to return from his meal break when and as he was able – eliminating the job function of punctuality." Br. at 18-22. Accordingly, the company argues, it had no obligation to offer Demirelli an accommodation, or even to respond to his request for assistance. Contrary to Convergys's argument, this Court's decisions do not support this narrow interpretation of an employer's duties under the ADA. According to Convergys, two decisions of this Court establish that, in order to prevail on a claim that Convergys failed to provide a reasonable accommodation, "Demirelli must have requested the accommodation which he now alleges Convergys should have provided to him." Br. at 17 (citing Mole v. Buckhorn Rubber Products, Inc., 165 F.3d 1212, 1217-18 (8th Cir. 1999); and Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1045 (8th Cir. 2005)). These decisions, however, do not support Convergys's argument that an employer has no responsibility to respond to a request for accommodation unless the employee initially identifies a viable accommodation. Rather, they stand for the narrower proposition that an employer is not liable for failing to provide a reasonable accommodation where the employee fails to provide enough information to permit the employer to discern either that a reasonable accommodation is needed or that an effective accommodation is possible. Since it is undisputed that Convergys knew that Demirelli needed an accommodation for his disability and an effective accommodation – granting him a longer meal break – would have been obvious to any reasonable employer, neither Mole nor Kratzer supports the company's argument. In Mole, the case upon which Convergys primarily relies, the employer provided an employee with multiple sclerosis with numerous accommodations, but she continued to have performance problems and the company terminated her employment. Mole, 165 F.3d at 1217. Noting that "[t]here is no evidence Buckhorn failed to make a good faith reasonable effort to help Mole determine if other accommodations might be needed," this Court rejected her argument that the company "should have learned more about accommodating MS by consulting informational pamphlets and discussing her condition with her doctors." Id. at 1217-18. It was in this context that the Court made the observation that the employee "cannot expect the employer to read her mind and know she secretly wanted a particular accommodation." Id. at 1218. In Kratzer, an employee who had physical limitations that were not apparent requested accommodation to qualify for a promotion. The employer responded by asking the employee to submit to a medical examination to assist it in determining what accommodation, if any, was necessary and feasible. After the employee failed to submit to the medical examination or otherwise provide information concerning her need for accommodation, the employer denied her the requested promotion. In affirming the district court's grant of summary judgment for the employer on the employee's ADA claim, this Court noted that an employer has an obligation to engage in an interactive process with an employee with a disability who requests assistance in meeting job requirements. The Court noted, "An employer impedes the process when: the employer knows of the employee's disability; the employee requests accommodations or assistance; the employer does not in good faith assist the employee in seeking accommodations; and the employee could have been reasonably accommodated but for the employer's lack of good faith." Kratzer, 398 F.3d at 1045 (citing Ballard, 284 F.3d at 960 (quoting Taylor v. Phoenixville Sch. Dist., 174 F.3d 142, 165 (3d Cir. 1999))). Because "[w]ithout the updated evaluation, Rockwell could not provide an appropriate accommodation," this Court held that the company was not liable for failing to accommodate the plaintiff's disability. Id. Neither Mole nor Kratzer provides any support for Convergys's argument that it had no obligation to respond to Demirelli's repeated requests for assistance because he failed to request the precise accommodation he seeks in this lawsuit. By contrast to both Mole nor Kratzer, Demirelli's disability and the limitations it imposed on his ability to comply with Convergys's attendance policy were visible and obvious. The company needed no additional information from Demirelli to determine that it could reasonably accommodate his limitations by extending his lunch break. Convergys's suggestion that Demirelli's reluctance to specify the exact number of minutes his break should be extended caused the company to believe that Demirelli had no idea if and when he could return from his meal (br. 17-19) is disingenuous. Based on its own records, the company knew or could have readily ascertained that Demirelli's charged tardies returning from break were all for returning less than ten minutes late. Accordingly, without any further input from Demirelli, Convergys should have known that it could accommodate Demirelli's mobility problems by extending his meal break by 15 minutes. If Demirelli had been provided an additional 15 minutes for his meal break, he would have had fewer than 14 tardies in 365 days and, even if the attendance policy was strictly followed,<11> Demirelli would have been in compliance with the punctuality policy. Moreover, by changing Demirelli's schedule in this manner, the company would have avoided the predictability problems suggested by Convergys and Demirelli would have been "punctual."<12> See Br. at 19. Furthermore, Convergys had afforded this exact accommodation to another employee whose limited mobility caused him to be late returning from his breaks, and the company's operations manager conceded that it had not been a problem. If the same accommodation had been offered to Demirelli, he would not have lost his job. Because Convergys had enough information to know that Demirelli could be accommodated in this way, the district court's jury instruction was correct. III. THE DISTRICT COURT PROPERLY REJECTED CONVERGYS'S CHALLENGE TO THE DAMAGES AWARDED BY THE JURY A. The District Court Correctly Denied Convergys's Motion for JMOL With Respect to the Claim for Compensatory Damages Because the Evidence Does Not Compel a Finding That Convergys Made a Good Faith Effort to Reasonably Accommodate Demirelli's Disability 1. Standard of review This Court applies the same standard in reviewing a decision denying JMOL as the district court applied. Where, as here, a party moves for JMOL on an issue as to which it bears the burden of proof, it carries a significantly heavier burden. EEOC v. Union Independiente de la Autoridad de Acuductos y Alcantarillados de Puerto Rico, 279 F.3d 49, 55 (1st Cir. 2002) ("‘if the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor") (internal citation omitted). Therefore, to prevail on appeal, Convergys must demonstrate that the evidence construed in the light most favorable to the plaintiffs compels a finding that Convergys made a good faith effort to accommodate Demirelli's disability. See Kucia v. Southeast Arkansas Community Action Corp., 284 F.3d 944, 947 (8th Cir.2002). 2. Discussion The jury found that Convergys violated the ADA by failing to make reasonable accommodations to Demirelli's disability to permit him to comply with the attendance standards. Ordinarily, a plaintiff is entitled to compensatory damages for violation of the ADA. See Forshee v. Waterloo Indus., Inc., 178 F.3d 527, 531 (8th Cir.1999) (compensatory damages granted when supported by competent evidence of "genuine injury") (citation omitted). However, 42 U.S.C. § 1981a(3) provides an exception where a defendant "establishes" it made good faith efforts to accommodate. Convergys argued that it was entitled to this exception and the issue was submitted to the jury. The jury found that Convergys failed "prove[] by the greater weight of the evidence that Convergys made a good faith effort and consulted with Plaintiff Demirelli to identify and make a reasonable accommodation." D's App. at 551. The district court correctly denied Convergys' motion for JMOL on this point. Convergys was entitled to JMOL on this issue only if it established that no reasonable jury "could find other than" that it made a good faith effort to accommodate Demirelli's inability to be return on time from his meal breaks. See Calderone v. United States, 799 F.2d 254, 258-59 (6th Cir.1986). Far from compelling a finding that Convergys made a good faith effort, the record contains ample evidence that the company made no effort whatsoever to assist Demirelli in overcoming the limitations imposed by his disability. At trial, the jury heard evidence that, in response to Demirelli's repeated requests for an accommodation with respect to his meal breaks, Convergys's management did nothing. David Miller flatly denied his requests, and, although he agreed to pass on Demirelli's request to his superior, nothing further occurred. Tr. I at 134-36. Supervisor Marlon Mitchell similarly rejected Demirelli's request for assistance accommodation request. Instead, Mitchell told Demirelli that he would be fired if he was late one more time, and advised him to either roll his wheelchair faster or buy a motorized chair if he wanted to keep his job. Tr. I at 137-39, 146-47. Finally, Demirelli's last supervisor, LaShonda Aldridge, admitted at trial that she made no efforts to accommodate Demirelli, justifying her failure to act on ignorance. Aldridge testified that, although she discussed with Demirelli meal tardies numerous times and Demirelli told her he was having trouble manuevering through the halls, it never occurred to her that his tardies were connected to his using a wheelchair. Tr. III at 164-66. On appeal, Convergys points to no evidence that it made any effort to accommodate Demirelli's problems returning from his meal break on time. Instead, it points to other accommodations it purportedly made with respect to Demirelli's difficulty arriving to work on time. Even if this evidence was relevant to Convergys's duty to accommodate Demirelli's problems with respect to his meal break, the jury was entitled to conclude that these were not accommodations by Convergys since Demirelli testified that he resolved the problems with his arrival time largely on his own after the company repeatedly rejected his requests for help. For example, Demirelli requested the change in his arrival time only after Convergys rejected his requests for a dedicated parking space, work station and headset. Tr. I at 144-46. Similarly, Demirelli himself initiated use of a work area set aside for training without assistance from management, and over the objections of several supervisors. Tr. I at 147-48; Tr. II at 32-33. B. The District Court Did Not Abuse its Discretion in Refusing to Reduce the Award of Compensatory Damages 1. Standard of review This Court reviews challenges to the size of an award of compensatory damages with a "keen sense of respect for the latitude given to juries," Kucia, 284 F.3d at 947, keeping in mind that the "collective wisdom that life's experiences confer" on jurors is especially suited to determining the appropriate compensation for psychic injuries. Madison v. IBP, Inc., 330 F.3d 1051, 1054 (8th Cir. 2003); Eich v.Board of Regents for Cent. Mo. State Univ., 350 F.3d 752, 763 (8th Cir.2003) (same). Remittitur is appropriate only if the verdict is grossly excessive. Kucia, 284 F.3d at 947. A verdict is not considered excessive unless there is "plain injustice" or a "monstrous" or "shocking result." Jenkins v. McLean Hotels, Inc., 859 F.2d 598, 600 (8th Cir.1988). 2. Discussion The jury found that Demirelli suffered $100,000 in emotional distress. This award should be affirmed unless there was a clear abuse of discretion; that is, the size of the award is so "monstrous" that maintaining it creates "plain injustice." Jenkins, 859 F.2d at 600. Convergys argues that the award is excessive because: (1) the plaintiffs "presented limited evidence of emotional distress;" and (2) the award is larger than awards "in similar cases." Br. at 34-35. Neither argument justifies overriding the jury's determination of the appropriate compensation for Demirelli's injury. The jury could have reasonably found that Demirelli suffered severe emotional harm in connection with his termination. The jury heard evidence that Demirelli was psychologically devastated by his termination. Demirelli testified that his termination was the "worst day of my life." EEOC App. at 120. Both Demirelli and his mother testified to Demirelli's despair, hopelessness and loss of self-confidence, which resulted in Demirelli shutting himself off socially and spending most of his time in his room alone. EEOC App. at 114-29. Moreover, despite knowing the significant risk to his health and additional pain and pressure on his body, he gained thirty pounds. EEOC App. at 114-29, 176-81. Finally, the evidence showed that, for financial and emotional reasons, Demirelli needed to keep working after his termination but could not find a new job. EEOC App. at 126-29. The financial stress caused by his termination prompted Demirelli to worry not only about his own situation but also about providing for his family. Convergys also argues that the award is excessive because Demirelli should have anticipated termination. However, Demirelli testified he was "absolutely stunned" by the termination, particularly because eight days earlier, his supervisor had given him the highest rating possible for punctuality.<13> Tr. I at 156. In any event, if Demirelli had anticipated that Convergys intended to fire him, that would more likely heighten than diminish the emotional distress Demirelli would have felt in view of the fact that he was unable to comply with the policy and Convergys refused to take any action to help him.<14> Convergys also argues that the jury award was excessive when compared with some compensatory damage awards which this Court reversed based on the particular facts of those cases. The very nature of this argument runs counter the this Court's admonition to treat issues regarding remittitur on a highly individualized basis. "[A]wards for pain and suffering are highly subjective and should be committed to the sound discretion of the jury, especially when the jury is being asked to determine injuries not easily calculated in economic terms." Frazier v. Iowa Beef Processors, Inc., 200 F.3d 1190, 1193 (8th Cir. 2000). Therefore, comparisons between one set of facts and another, and between one jury and another, are of limited relevance in assessing the appropriateness of a particular award. In its brief, Convergys cites to decisions which based remittitur on facts clearly distinguishable from those presented in this case. In Delph v. Dr. Pepper Bottling Co. of Paragould, Inc. , 130 F.3d 349 (8th Cir. 1999), this Court reduced the jury's award of $150,000 based on the plaintiff's failure to describe his psychological injury beyond the descriptor "hurt;" in Forshee, 178 F.3d at 531, the compensatory damage award was reversed because the plaintiff was rehired soon after termination, she admitted that she suffered no emotional repercussions after termination, and there were no witnesses to her emotional damage; in Peoples Bank & Trust Co. of Mountain Home v. Globe Int'l Pub. Inc., 978 F.2d 1065, 1070-71 (8th Cir. 1992), a $650,000 compensatory damage award under state law for damages to reputation and emotional distress was reduced where the evidence demonstrated the distress lasted only a few days and caused a temporary loss of "cheerfulness;" and in Avitia v. Metrop. Club of Chicago, Inc., 49 F.2d 1219, 1229 (7th Cir. 1995), a Seventh Circuit FSLA case, that Court awarded remittitur because the plaintiff was re-employed in a comparable job within three weeks of his termination. The reasoning supporting the reduction or elimination of these compensatory damage awards is inapplicable to this case. Here, unlike these cases cited by Convergys, Demirelli and his mother described, in detail, Demirelli's emotional pain and the fact that this pain was fed by his inability to gain subsequent employment. Furthermore, because Demirelli secluded himself as a result of the wrongful termination, a jury could conclude it was reasonable that the only witnesses to Demirelli's psychological damage were himself and his mother. Moreover, Convergys's recitation of cases completely ignores decisions of this Court which have affirmed awards between $100,00 and $165,000 for emotional distress. In Mathieu v. Gopher News Co., 273 F.3d 769, 782-83 (8th Cir.2001), for example, this Court found a $165,000 emotional distress award not excessive where plaintiff in an ADA action was the only witness to testify about his emotional distress. This Court has also upheld comparable amounts of emotional distress damages in cases involving Title VII. See, e.g., Ross v. Douglas County, Nebraska, 234 F.3d 391, 397 (8th Cir.2000) ($100,000 for emotional distress in a race discrimination case ruled not excessive where the plaintiff suffered emotional and physical injuries and was forced to take a lower paying job without health benefits); Kim, 123 F.3d at 1065 ($100,000 for emotional distress upheld where family members corroborated physical signs of distress and humiliation); Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051, 1061-62 (8th Cir.1993) (no abuse of discretion for district court refusing to remit award of $125, 000 for mental anguish and suffering). Thus, to the extent it is relevant, the award in the instant case is within the range established by juries in comparable cases. C. Convergys's Argument That the Jury Must Have Been Influenced by Evidence of Its Net Worth Admitted in Connection With Plaintiffs' Claim for Punitive Damages Ignores the Presumption That the Jury Followed the Court's Instructions Regarding the Evidence to be Considered in Determining Its Compensatory Damage Award Convergys also argue that the district court erred in submitting the plaintiffs' claim for punitive damages to the jury. Because the jury did not award punitive damages and the plaintiffs have not cross-appealed, the propriety of the court's decision to submit the claim to the jury is not before this Court. Convergys's explanation for raising this issue is that it assumes that the jury must have considered the evidence of the company's net worth which was admitted in connection with the claim for punitive damages in assessing compensatory damages. This argument is meritless. A jury is presumed to follow the instructions given. See Weeks v. Angelone, 528 U.S. 225, 234 (2000). In California and Haw. Sugar Co. v. Kansas City Terminal Warehouse Co., 788 F.2d 1331, 1334 (8th Cir. 1996), the jury heard evidence of prejudgment interest but, because no instructions were given on it, the Court held that it must be presumed that the jury did not incorporate prejudgment interest into its general verdict. Similarly, there is no basis for believing that the jury, which was given instructions detailing precisely what evidence should be factored into a compensatory damage award flouted those instructions by giving consideration to Convergys's net worth. D's App. at 525. Thus, Convergys failed to overcome the presumption that the jury in this case followed the instructions given. CONCLUSION For the reasons stated above, the judgment of the district court should be affirmed. Respectfully submitted, RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel SUSAN L.P. STARR Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7038 Washington, D.C. 20507 Certificate of Compliance with Rule 32(a) 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 9,403 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Word Perfect 9 in font size 14 Times New Roman. Susan L.P. Starr Attorney Equal Employment Opportunity Commission Plaintiff-Appellant Dated: November 22, 2006 CERTIFICATE OF SERVICE I hereby certify that two paper copies and one diskette copy of the foregoing brief were sent by first class mail on this the 22nd day of November, 2006, to the following counsel of record: COUNSEL FOR CONVERGYS CUSTOMER MANAGEMENT GROUP, INC. THOMPSON COBURN LLP Mary M. Bonacorsi, Esq. Laura M. Jordan, Esq. One US Bank Plaza St. Louis, MO 63101 COUNSEL FOR AHMET DEMIRELLI Michael Fargas, Esq. 4700 Mexico Road St. Peters, MO 63304 Susan L.P. Starr Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7038 Washington, D.C. 20507 (202) 663-4727 *********************************************************************** <> <1> Demirelli’s work authorization lapsed again on April 4, 2003, more than nine months after he was fired by Convergys. D’s App. at 453. <2> The two charts introduced by Convergys compared all of Demirelli’s tardies from the TKS system, charged and uncharged, with only the charged tardies of other employees as recorded on the Metrix system. EEOC’s App. at 20-21(chart only), 196-217. Accordingly, they exaggerate the number of Demirelli’s tardies compared with the tardies of other employees. <3> For this reason, the 15-minute breaks were too short to permit Demirelli to use the bathroom. EEOC’s App. at 138-39. <4> Convergys states that Demirelli “changed his testimony at trial and for the first time testified that he requested from Mitchell an extended grace period, or that his pay be docked if he was late returning from his meal break.” Br. 7, n.5 (citing to Demirelli’s deposition testimony). However, Demirelli’s deposition testimony was not read at trial, or otherwise placed in the record. Accordingly, this purported inconsistency cannot provide a basis for upsetting the jury’s verdict. In any event, Convergys’s counsel’s characterization of Demirelli’s deposition testimony – that Mitchell’s written account of the April 18 discussion about Demirelli’s late arrivals was accurate – is consistent with Demirelli’s trial testimony that he and Mitchell also discussed meal break tardies in that conversation. EEOC’s App. at 7, 80-85, 139A-39D. <5> There is a discrepancy between Mitchell’s notes summarizing the April 18 meeting and the written warning of the same date as to the number of accumulated tardies. Compare EEOC’s App. at 17 (written warning for 17 tardies) with EEOC’s App. at 18 (notes reflecting 19 tardies). However, it is uncontested that Demirelli was terminated on June 27, 2002, for being charged with at least one additional tardy. EEOC’s App. at 6. <6> Convergys does not address the district court’s denial of its motion for a new trial in its opening brief. Accordingly, it has waived any challenge to this ruling on appeal. See In re MidAmerican Energy Co., 286 F.3d 483, 487 (8th Cir. 2002) (“‘claims not raised in initial brief are waived’”) (citing Sweat v. City of Fort Smith, 265 F.3d 692, 696 (8th Cir. 2001)). <7> Convergys also does not challenge this ruling in its opening brief. <8> As we argued below, the Commission’s position is that punctuality – whether in arriving at work or returning from a break – cannot be an essential function of Demirelli’s job because it is not a job function at all. Only job duties, i.e., specific tasks to be performed, can be essential functions under the ADA. See 29 C.F.R. § 1630.2(n)(1) (essential functions defined as “the fundamental job duties of the employment position the individual with a disability holds or desires”) (emphasis added)). The means of performing particular tasks are not essential functions. The requirement for punctuality in returning from meal breaks that Convergys imposes on its employees is simply a means to get them to perform the underlying tasks associated with the jobs; it is not an essential job function. We recognize that decisions of this Court state that regular attendance can be an essential job function although this Court has not yet ruled on the issue of punctuality. See, e.g., Maziarka v. Mills Fleet Farm, Inc., 245 F.3d 675, 681 (8th Cir. 2001) (regular attendance can be an essential function); Buckles v. First Data Res., Inc., 176 F.3d 1098, 1100-01 (8th Cir. 1999) (same). In any event, the question of whether punctuality can be an essential job function does not need to be resolved in this case because Convergys does not argue that Demirelli could not be punctual with a reasonable accommodation – nor could it on the record in this case. <9> The Commission believes that Egbuna was wrongly decided. See EEOC Directives Transmittal 915.002, June 27, 2002, Rescission of Enforcement Guidance on Remedies Available to Undocumented Workers under Federal Employment Discrimination Laws, available at http://www.eeoc.gov/policy/docs/undoc-rescind.html (noting that the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 138 (2002), confirms the Commission’s longstanding position that “undocumented workers are covered by the federal employment discrimination statutes and . . . it is as illegal for employers to discriminate against them as it is to discriminate against individuals authorized to work”). This Court need not decide whether to follow Egbuna to decide this appeal. <10> Convergys repeats its arguments regarding Demirelli’s immigration status in challenging the award of back pay. Br. at 31-33. For the same reasons, evidence of Demirelli’s work authorization would not have impacted the back pay award because the plaintiffs did not seek reinstatement or relief for damages occurring after April 4, 2003, the date on which Demirelli’s employment authorization lapsed after his termination. D’s App. at 454-56. The Supreme Court’s decision in Hoffman Plastic, on which the company relies, actually undermines its argument. In that case, the Court denied back pay because the plaintiff “was never lawfully entitled to be present or employed in the United States,” distinguishing those facts from Sure-Tan, where the plaintiff was entitled to back pay during the time he was legally authorized to work in the United States. Hoffman Plastic Compounds, 535 U.S. at 146 (citing Sure-Tan v. NLRB, 467 U.S. 883, 891-94 903-04 (1984)). Demirelli was legally authorized to work when he was terminated. A back pay award from the date of his termination until the date his authorization lapsed is consistent with the holding of Hoffman and its policy concerns. Id. (rule serves to discourage violation of immigration laws). Therefore, the district court properly rejected Convergys’s challenge to the back pay award. <11> Despite testimony from the company’s HR manager that “we’ve never made any exception to the attendance policy” (EEOC’s App. at 196-97), there is evidence that policy was followed in a very haphazard manner. The operations manager testified that many tardies committed were not officially charged to employees (EEOC’s App. at 36-41), and Convergys’s records showed that many employees were retained after committing between 21 and 76 official tardies. EEOC’s App. at 10. <12> The facts in this case are clearly distinguishable from the ones before this Court in Maziarka cited by Convergys for the proposition that predictable attendance is an essential job function. In Maziarka, the employee requested unscheduled time off without pay when his medical syndrome flared up, thereby leaving the employer unable to predict his attendance. Maziarka., 245 F.3d at 681. By contrast, in this case Demirelli needed an accommodation to cover him for a few minutes when returning from a break and this could be accomplished through a permanent schedule change rather than the highly unpredictable accommodation requested in Maziarka. Moreover, unlike Maziarka, it is uncontested that the accommodation desired would have created no disruption to Convergys’s business. See also Buckles, 176 F.3d at 1101-02 (8th Cir. 1999) (employer can require employee to come to work at predictable times) and Earl v. Mervyns, Inc., 207 F.3d 1361, 1367 (11th Cir. 2000) (employee admitted that there existed no accommodation which permitted him to arrive punctually or on a consistent basis). <13> In addition, the jury could have found the fact that before coming to work on the day he was terminated Demirelli purchased his first house, added credence to his testimony that he did not anticipate being fired. EEOC App. at 112-15. <14> Convergys’s suggestion that the compensatory damage award is too high because it is seven times the “actual damages” is misplaced. Compensatory damages are actual damages. See MacGregor v. Mallinckrodt, Inc., 373 F.3d 923, 933 (8th Cir. 2004) (actual damages include compensatory damages and economic loss). Indeed, in Title VII cases, the highest compensatory damages often occur in cases where there are no lost wages. See e.g. Rowe v. Hussmann Corp., 381 F.3d 775, 783 (8th Cir. 2004) ($500,000 compensatory damage award for hostile work environment and no backpay where plaintiff was eventually transferred and continued to work for defendant)