EEOC v. E. I. du Pont De Nemours & Co. (5th Cir.) Brief as appellee Mar. 24, 2006 Case No. 05-30712 __________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff/Appellee, v. E. I. DU PONT DE NEMOURS & CO. Defendant/Appellant. ________________________________________________________ On Appeal from the United States District Court For the Eastern District of Louisiana, No. 03-1605, The Honorable Sarah S. Vance, Presiding _________________________________________________________ Brief of the U.S. Equal Employment Opportunity Commission as Appellee _________________________________________________________ JAMES L. LEE JOSEPH A. SEINER Deputy General Counsel Attorney U.S. EQUAL EMPLOYMENT VINCENT J. BLACKWOOD OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 1801 L Street, N.W., Room 7018 CAROLYN L. WHEELER Washington, DC 20507 Assistant General Counsel (202) 663-4772 STATEMENT IN SUPPORT OF ORAL ARGUMENT Pursuant to 5th Cir. R. 28.2.4, the Equal Employment Opportunity Commission ("EEOC" or "Commission") states that it believes that oral argument is not necessary in this case. The Commission notes that the district court's summary judgment and judgment as a matter of law decisions are unassailable. The district court's decisions in this matter are extensive, thorough, and accurately set forth the law on all of the issues raised by DuPont's appeal. Thus, the Commission believes that the district court's well-reasoned opinions, combined with the briefs of the parties, are sufficient for this Court to appropriately resolve this appeal. TABLE OF CONTENTS Page TABLE OF CONTENTS ......................................... ii TABLE OF AUTHORITIES ........................................ iv STATEMENT OF JURISDICTION .................................. 1 STATEMENT OF ISSUES FOR REVIEW ................................. 1 STATEMENT OF THE CASE ...................................... 1 STATEMENT OF FACTS ............................................. 2 DISTRICT COURT DECISIONS ...................................... 6 A. Summary Judgment ................................... 6 B. Judgment as a Matter of Law ......................... 8 SUMMARY OF THE ARGUMENT ..................................... 10 STATEMENT OF THE STANDARD OF REVIEW ........................... 12 ARGUMENT ..................................................... 14 I. The District Court Properly Determined on Summary Judgment that DuPont Regarded Barrios as Disabled . 14 II. Barrios can Perform the Essential Job Functions .... 21 A. "Evacuating" is not an Essential Job Function .. 21 B. Barrios Could Evacuate ...................... 27 C. Barrios was not a Direct Threat ............... 29 D. DuPont's Untimely Business Necessity Defense Fails 36 III. The District Court Properly Awarded Backpay ........ 38 IV. The District Court Properly Awarded Frontpay ........ 40 V. The Jury's Punitive Damage Award was Appropriate .... 46 VI. The District Court Properly Considered Backpay and Frontpay in Awarding Punitive Damages ................ 54 CONCLUSION .................................................... 61 CERTIFICATE OF COMPLIANCE ADDENDUM Girard v. Brinker Int'l Payroll Corp., 2003 WL 261776 (5th Cir. 2003) (unpublished) CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Barber v. Nabors Drilling U.S.A., 130 F.3d 702 (5th Cir. 1997) . . . . . . .21, 24 Black v. J.I. Case, 22 F.3d 568 (5th Cir. 1994) . . . . . . 36 Black v. Roadway Express, 297 F.3d 445 (6th Cir. 2002) . . . . . . 21 Bragdon v. Abbott, 524 U.S. 624 (1999) . . . . . . 29-31 Branham v. Snow, 392 F.3d 896 (7th Cir. 2004) . . . . . . .30, 33 Brunnemann v. Terra International, 975 F.2d 175 (5th Cir. 1992) . . . . . . 38 Bruso v. United Airlines, 239 F.3d 848 (7th Cir. 2001) . . . . . . 52 Chevron USA v. Echazabal, 536 U.S. 73 (2002) . . . . . . . 31-32 Corti v. Storage Tech., 304 F.3d 336 (4th Cir. 2002) . . . . . . 56 Cripe v. City of San Jose, 261 F.3d 877 (9th Cir. 2001) . . . . . . . 24-25 Cush-Crawford v. Adchem, 271 F.3d 352 (2d Cir. 2001) . . . . . . 59 Daigle v. Liberty Life Insurance, 70 F.3d 394 (5th Cir. 1995) . . . . . . 36 Davey v. Lockheed Martin, 301 F.3d 1204 (10th Cir. 2002) . . . . . 53 Davis v. Combustion Engineering, 742 F.2d 916 (6th Cir. 1984) . . . . . . 43 Deane v. Pocono Med. Ctr, 142 F.3d 138 (3d Cir. 1998) . . . . . . 22 Deffenbaugh-Williams v. Wal-Mart, 156 F.3d 581 (5th Cir. 1998), vacated at Williams v. Wal-Mart, 169 F.3d 215 (5th Cir. 1999) and reinstated in pertinent part at Williams v. Wal-Mart, 182 F.3d 333 (5th Cir. 1999) . . . . . . 56 Deffenbaugh-Williams v. Wal-Mart, 188 F.3d 278 (5th Cir. 1999).. . . . . . 51, 52, 53, 54, 56, 60 Deloach v. Delchamps, 897 F.2d 815 (5th Cir. 1990) . . . . . . 43 EEOC v. Delight Wholesale, 973 F.2d 664 (8th Cir. 1992) . . . . . . 39 EEOC v. Exxon, 203 F.3d 871 (5th Cir. 2000) . . . . 30, 37 EEOC v. Sears, Roebuck & Co., 417 F.3d 789 (7th Cir. 2005) . . . . 20, 27 EEOC v. W & O, 213 F.3d 600 (11th Cir. 2000) . . . . . . . . . . . .59 EEOC v. Wal-Mart, 187 F.3d 1241 (10th Cir. 1999) . . . . . . 50, 51, 55 Flowers v. S. Reg'l Physician Services, 247 F.3d 229 (5th Cir. 2001) . . . . . . . . . . . 13 Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) . . . . . 45 Gagliardo v. Connaught Labs., 311 F.3d 565 (3d Cir. 2002) . . . . . . 49 Giles v. General Electric, 245 F.3d 474 (5th Cir. 2001) . . . . . . . 13, 44, 46 Gillen v. Fallon Ambulance Service, 283 F.3d 11 (1st Cir. 2002) . . . . . . 27 Girard v. Brinker Int'l Payroll Corp., 2003 WL 261776 (5th Cir. 2003) (unpublished) . . . . . .57 Green v. Administrators of the Tulane Educ. Fund, 284 F.3d 642 (5th Cir. 2002) . . . . . .40, 41 Hamlin v. Charter Township of Flint, 165 F.3d 426 (6th Cir. 1999) . . . . . . .29, 30 Hardin v. Caterpillar, 227 F.3d 268 (5th Cir. 2000) . . . . . . . . .47 Hargrave v. Vermont, 340 F.3d 27 (2d Cir. 2003) . . . . . . . 30 Hennessy v. Penril Datacomm Networks, 69 F.3d 1344 (7th Cir.1995) . . . . . . 59 Hill v. City of Pontotoc, 993 F.2d 422 (5th Cir. 1993) . . . . . . 44 Hutton v. Elf Atochem N. America, 273 F.3d 884 (9th Cir. 2001) . . . . . . 30 In the Matter of: COHO Resources, 345 F.3d 338 (5th Cir. 2003) . . . . . . 37 Kapche v. City of San Antonio, 304 F.3d 493 (5th Cir. 2002) . . . . . . . 29, 31, 32 Kiphart v. Saturn Corp., 251 F.3d 573 (6th Cir. 2001) . . . . . . . . . . . 24 Kolstad v. American Dental Association, 527 U.S. 526 (1999) . . . . . .47, 53 Louisiana Acorn Fair Housing v. LeBlanc, 211 F.3d 298 (5th Cir. 2000) . . . . . . 57 Lovejoy-Wilson v. NOCO Motor Fuel, 263 F.3d 208 (2d Cir. 2001) . . . . .29-31 MacGregor v. Mallinckrodt, 373 F.3d 923 (8th Cir. 2004) . . . . . . 52 Mathieu v. Gopher News, 273 F.3d 769 (8th Cir. 2001) . . . . . . 43 National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) . . . . . . . . . . .59 Otting v. J.C. Penney, 223 F.3d 704 (8th Cir. 2000) . . . . . . 50 Pegues v. Mississippi State Employment Service, 899 F.2d 1449 (5th Cir. 1990) . . . . . 38 Pollard v. E.I. DuPont de Nemours, 532 U.S. 843 (2001) . . . . . .41, 60 Provencher v. CVS Pharmacy, 145 F.3d 5 (1st Cir. 1998), abrogated on other grounds by National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). . . . . . 58 Quint v. A.E. Staley Manufacturing, 172 F.3d 1 (1st Cir. 1999) . . . . . . . 51 Reneau v. Wayne Griffin & Sons, 945 F.2d 869 (5th Cir. 1991) . . . . . . 42 Riel v. Electronic Data System, 99 F.3d 678 (5th Cir. 1996) . . . . . . .22, 24 Rivera v. Union Pacific R.R. Co., 378 F.3d 502, 506 (5th Cir. 2004) . . . . 13 Rizzo v. Children's World Learning Ctrs., 213 F.3d 209 (5th Cir. 2000) . . . . . . .30, 33 Ross v. Marshall, 426 F.3d 745 (5th Cir. 2005) . . . . . . 14 Rubinstein v. Administrators of the Tulane Educat'l Fund, 218 F.3d 392 (5th Cir. 2000) . . . . . . . . . . . . . . . . .47, 52, 55, 60 Rutherford v. Harris County, 197 F.3d 173 (5th Cir. 1999). . . . . . .40 Salitros v. Chrysler Corp., 306 F.3d 562 (8th Cir. 2002) . . . . . . 57 School Board of Nassau County v. Arline, 480 U.S. 273 (1987) . . . . . .29, 35 Skerski v. Time Warner Cable, 257 F.3d 273 (3d Cir. 2001) . . . . . . 24 Sutton v. United Air Lines, 527 U.S. 471 (1999) . . . . . .14, 20 Talk v. Delta Airlines, 165 F.3d 1021 (5th Cir. 1999) . . . . . .15, 20 Thomas v. City of New Orleans, 687 F.2d 80 (5th Cir. 1982) . . . . . . . . .13 Timm v. Progressive Steel Treating, 137 F.3d 1008 (7th Cir. 1998) . . . . . 59 Tisdale v. Federal Express, 415 F.3d 516 (6th Cir. 2005) . . . . . . 58 Waco International v. KHK Scaffolding, 278 F.3d 523 (5th Cir. 2002) . . . . . . 12 West v. Nabors Drilling U.S.A., 330 F.3d 379 (5th Cir. 2003) . . . . . . 45 Williams v. Trader Publishing, 218 F.3d 481 (5th Cir. 2000) . . . . . . 13 Zimmermann v. Associates First Capital, 251 F.3d 376 (2d Cir. 2001) . . . . .52-53 FEDERAL STATUTES AND REGULATIONS 29 C.F.R. § 1630.2 . . . . . . . . . . . .14, 15, 22, 29, 31 29 C.F.R. pt. 1630 App. § 1630.2 . . . . . . . . . . . . .22 42 U.S.C. § 1981a . . . . . . . . . . . 46, 47, 54, 56, 60 The Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq . . . . . . . . . . . .passim OTHER AUTHORITY H.R. Rep. No. 102-40 . . . . . . . . . . . . . . . . . . .60 STATEMENT OF JURISDICTION The Commission incorporates by reference the appellant's statement of subject matter jurisdiction. DuPont Brief ("DupontBr") 1. STATEMENT OF ISSUES FOR REVIEW 1. Whether the district court properly determined on summary judgment that DuPont regarded Barrios as disabled. 2. Whether there is sufficient evidence to support the jury's verdict that Barrios was a qualified individual who could perform the essential job functions. 3. Whether there was sufficient evidence to support the jury's backpay award. 4. Whether the district court abused its discretion in awarding frontpay. 5. Whether there is sufficient evidence to support the jury's punitive damage award. 6. Whether the district court properly awarded punitive damages in the absence of compensatory damages where Barrios suffered significant wage loss. STATEMENT OF THE CASE On June 5, 2003, the EEOC filed a complaint under the ADA on Barrios' behalf alleging that she was improperly terminated. Record Document ("DI") 1. On October 15, 2004, the district court granted partial summary judgment in the EEOC's favor, holding that the company regarded Barrios as substantially limited in walking. DI58 at 24; Record Excerpt ("RE") Tab3 at 24. The court permitted the issues of whether Barrios was a qualified individual, was actually disabled, or was a direct threat to go to the jury. Id. at 37. After a three-day trial held on October 18-20, 2004, the jury concluded that Barrios was terminated because of her disability and awarded $91,000 in backpay, $200,000 in frontpay, and $1 million in punitive damages. RE Tab4; DI75; Trial Transcript ("TT") 605-06.<1> The district court subsequently reduced the punitive damage award to the $300,000 statutory cap and entered judgment. RE Tab5; DI94; TT608. On February 11, 2005, DuPont filed a motion for Judgment as a Matter of Law (JMOL), or in the alternative for a new trial or to amend the judgment, on numerous grounds (DI95), which were rejected by the district court. RE Tab6; DI111 ("Order"). DuPont filed a timely notice of appeal. RE Tab2; DI114. STATEMENT OF FACTS Laura Barrios has severe scoliosis, degenerative disc disease and neurogenic bladder. TT100. As a result of these conditions, Barrios experiences considerable pain on a daily basis. TT101, 188. Barrios began working at DuPont on May 26, 1981 as an industrial operator. TT99. When Barrios learned of her scoliosis in 1986, she immediately informed DuPont. TT101. Shortly thereafter, Barrios was encouraged to go on total and permanent disability ("T&P"), and she "was harassed at frequent intervals about taking the retirement" throughout her employment. TT101-03. Indeed, when Barrios was married in 1988, the company "tried to persuade [her] to leave" because she could be covered by her husband's insurance. TT103-04. And, in 1996, a DuPont physician speculated whether a certain doctor was "too ethical" to prepare the necessary paperwork for Barrios to be placed on permanent leave. TT105-06. In 1996, after undergoing a company physical, Barrios was placed on a number of medical restrictions. TT105-07, 114- 15. These restrictions included "no climbing stairs or straight ladders, no overhead work, no standing more than ten minutes at one time, unable to walk more than 100 feet without stopping for rest, not to work longer than eight hours, not to lift more than 20 pounds, no bending, no twisting or to work in a stoop position. Unable to wear scuba or air line mask respirator, not to work around moving machinery, unable to drive on plant, needs transportation to and from work site, unable to ride a bicycle and not able to work emergency response except in office capacity." TT114-15. In March, 1997, Dupont transferred Barrios to a lab clerk position which was a sedentary job that involved typing, circulation, printing, copying and filing. TT116, 181-82, 262. DuPont permitted other lab clerks to work overtime on projects but restricted Barrios from doing so "in the interest of [her] health." TT119. The company also allowed all of the other lab clerks to keep a printer by their offices, but placed Barrios' printer more then a hundred feet away and restricted her from walking more than a hundred feet without rest. TT114, 119-20. In May, 1999, the plant physician ordered Barrios to undergo a functional capacity evaluation ("FCE"). TT120-22. Despite the fact that Barrios held a sedentary position, the FCE required that she perform a scissors kick, bend repeatedly, kneel, crawl on the floor, stack boxes, carry a box with different weights added, climb a ladder, and walk heel to toe. TT126-28. Not only did the FCE test Barrios' physical capabilities to perform functions outside her job requirements – it also forced her to violate several of the restrictions placed on her by the company. TT127-28. DuPont received the results of the FCE on July 6, 1999. TT132. After reviewing these results, the plant physician placed a restriction on Barrios of "no walking while on plant." TT471-72. The following day Barrios was told by her supervisor that because of the FCE results there was no longer a position for her at the company and she "was to leave the plant immediately." TT133. According to expert testimony, however, the FCE report "would indicate that Barrios is capable of performing at a more physical and more physically demanding level than would be demanded of a sedentary occupation." TT373-74. The plant manager who ultimately made the determination to discharge Barrios testified that he relied only on the plant physician's walking restriction, and did not consider Barrios' personnel file, medical file, or FCE. TT345-46, 349. Barrios was placed on temporary disability for six months, and put on total and permanent disability thereafter. TT148-50, 171, 176. Despite receiving T&P benefits, Barrios told "every person that I dealt with from the first person who took the claim" that "there were much more serious people out there that needed benefits, I was capable of working and I did not want it." TT149. Barrios later learned that she was being terminated because it was perceived that she could not evacuate from the plant in the event of an emergency, despite the fact that individuals with temporary disabilities who were "more mobility impaired than Ms. Barrios" were never sent home or discharged. TT139, 145-47, 249-50, 292-94. Barrios contacted a Dupont human resources ("HR") official "multiple time[s]" in an attempt to get her job back, but was rejected. TT139. Additionally, Barrios offered to demonstrate that she was capable of walking the evacuation route, but she was not permitted to make this showing. TT139-40, 172. She was simply told that "it's a done deal, take your T&P, enjoy the rest of your life." TT140. She was further advised by an HR official that the plant manager would not give Barrios her position back, because "he was tired of seeing [her] cripple crooked self going down the hall hugging the walls." Id. In December, 2003, with the assistance of the EEOC, Barrios demonstrated her ability to walk the farthest evacuation route. TT144. Barrios did not receive any help walking the route and did not use any type of assistive device. Id. After reaching the evacuation point, Barrios walked all of the way back, for a total distance of approximately 2,128 feet. TT144, 370. As the district court noted, the evidence at trial showed that Barrios could evacuate safely by walking. Order24- 25. To the extent DuPont was concerned about a drainage ditch or uneven terrain that Barrios might encounter while evacuating, Barrios testified that "I could get over a levee. I'd cross the road, jump a ditch and cross a levee right in front of my own house." TT535. Indeed, while on the job site, Barrios never fell down once in eighteen years while walking. TT141. DISTRICT COURT DECISIONS A. Summary Judgment. On October 15, 2004, the district court granted partial summary judgment in the EEOC's favor, holding that the company regarded Barrios as substantially limited in walking. RE Tab3 at 24; DI58 at 24. The court pointed to the statements made by the company in its interrogatory and admission responses that categorically indicated that it perceived that Barrios was unable to walk. Id. at 18- 19. See, e.g., DI23 (EEOC's Summary Judgment Memorandum ("EEOC-SJM"), Tab A), Response to Interrogatory No. 12, DuPont's Discovery Responses to the EEOC's First Set of Interrogatories ("The only employee permanently disabled from walking during the relevant time period was Ms. Barrios."). The court also pointed to the deposition testimony of Dupont's plant physicians who testified as to Barrios' inability to walk. RE Tab3 at 14-15, 23; DI58 at 14-15, 23. See, e.g., EEOC-SJM, Tab L, Dr. St. Martin Deposition at 17 (testifying that he considered Barrios substantially impaired in walking). The court also noted that DuPont placed Barrios on T&P disability which meant that the company considered her "‘totally disabled by injury or disease'" RE Tab3 at 16-17; DI58 at 16-17. Considering all of this evidence, the court held that, "[i]n light of DuPont's medical restrictions on Barrios, particularly DuPont's wholesale restriction prohibiting Barrios from walking anywhere on its premises, Barrios's Total and Permanent disability status on the DuPont disability plan, and the statements of DuPont in pleadings and discovery, the Court concludes that Dupont - - correctly or incorrectly - - treated Barrios's impairment as a substantial limitation on her ability to walk." Id. at 24. B. Judgment as a Matter of Law. After a three-day trial, the jury concluded that Barrios was terminated because of her disability, and awarded $91,000 in backpay, $200,000 in frontpay, and $1 million in punitive damages (later reduced to the statutory cap). TT605-06; RE Tab4. DuPont subsequently moved for JMOL on numerous grounds (or in the alternative for a new trial or to amend the judgment), including: (1) Barrios could not perform the essential functions of her job and was not qualified; (2) Barrios posed a direct threat because she could not evacuate; and (3) no backpay, frontpay, or punitive damages should have been awarded, and alternatively that these awards were excessive. DI95. The district court rejected each of these arguments in an extensive sixty-page opinion. First, the court held that there was sufficient evidence to support a jury determination that Barrios could perform the essential functions of her job. Order22-26. The court reasoned that there was sufficient evidence for the jury to conclude that "evacuating was not an essential function of the job of a DuPont lab clerk," where DuPont's HR representative testified that it was not, Barrios' job description did not include evacuation, and an expert testified that evacuation was not a central job function. Id. at 23. Additionally, the court noted that there was no evidence that Barrios was ever required to evacuate, that the building in which Barrios worked was never evacuated during her eighteen years of employment, and that a Dupont emergency planning and response employee testified that the possibility of an emergency was improbable. Id. The court noted that even if evacuating were an essential function of the job, there was sufficient evidence for a reasonable jury to conclude that Barrios could indeed evacuate. Id. at 24. Second, the court concluded that there was sufficient evidence to support the jury's determination that Barrios was not a direct threat. Id. at 26-28. The court stated that "the likelihood of an emergency evacuation at the DuPont plant is slim, and the risk of substantial harm to Barrios was not imminent." Id. at 27. Additionally, the court noted that there was substantial evidence showing that Barrios could evacuate if necessary. Id. at 27-28. Third, the court rejected DuPont's arguments that the amount of the jury award was improper. Id. at 31-60. The court concluded that the jury's $91,000 backpay award was appropriate in light of Barrios' prior pay and the benefits she was currently receiving from the company. Id. at 31-33. The court further determined that the jury's frontpay award should be adopted because reinstatement was not feasible, and the $200,000 award was appropriate given Barrios' working life expectancy and pay history. Id. at 33-42. The court rejected Dupont's argument that Barrios had failed to mitigate her damages, because she repeatedly sought to get her job back with the company, and she accepted disability benefits. Id. at 42–46. The court further found that the $300,000 punitive damage award was appropriate where the testimony revealed that Dupont was "aware of its responsibilities under the ADA," that DuPont intentionally sought to "prevent Barrios from doing her job," that the company frequently attempted to convince her to go on disability benefits, and that the plant manager stated "that he did not want to see her ‘crippled crooked self, going down the hall hugging the walls.'" Id. at 46-53. The court further found that the punitive to actual damages ratio was appropriate (almost 1 to 1), and that a compensatory damage award is not necessary to receive a punitive damage award, particularly where other actual damages have been awarded. Id. at 54-59. SUMMARY OF THE ARGUMENT There can be no question that DuPont regarded Barrios as disabled, as the company perceived that she was substantially limited in walking. The company conceded in its discovery responses that it believed Barrios was "permanently disabled from walking," and DuPont's plant physicians testified that they believed Barrios was substantially impaired in walking and that her impairment extended beyond the worksite to "home, at work, wherever." DuPont also placed Barrios on T&P disability which meant that the company considered her "totally disabled by injury or disease." The district court therefore properly entered summary judgment in the Commission's favor on the issue of whether DuPont perceived that Barrios was disabled. There was also sufficient evidence to uphold the jury's determination that Barrios could perform the essential functions of her job and was not a direct threat to herself or others. DuPont did not establish its claim that "evacuating" was an essential job function, and even if it had, Barrios demonstrated her ability to walk the farthest evacuation route. Additionally, the likelihood of an emergency at the plant was remote, and the risk of substantial harm was not imminent. Indeed, the evidence at trial showed that the building in which Barrios worked had not been evacuated in eighteen years, that those with more significant temporary mobility restrictions were not sent home, and that the plant opened its doors to the community to visit on "family day" once a year. Given the improbability of an emergency occurring, and Barrios' demonstrated ability to evacuate if an incident did occur, there was sufficient evidence to support the jury's determination that Barrios could perform the essential job functions and was not a direct threat. Finally, the award of damages was entirely proper. Barrios was entitled to the jury's backpay award in light of the company's illegal discrimination. The evidence also demonstrated that the jury's frontpay award was appropriate given the number of years until Barrios' retirement, her physical ability to continue working, her pay history at DuPont, and the fact that reinstatement was not feasible. And, the jury's punitive damage award, reduced from $1 million to the statutory cap of $300,000, was supported by DuPont's knowledge of its responsibilities under the ADA, and its reckless disregard for Barrios' rights. Indeed, the evidence showed that DuPont intentionally sought to keep Barrios from performing her job, frequently attempted to convince her to go on disability benefits, and that the plant manager stated "that he did not want to see her ‘crippled crooked self, going down the hall hugging the walls.'" Such openly discriminatory conduct clearly supports the jury's award. STATEMENT OF THE STANDARD OF REVIEW The EEOC accepts DuPont's statement of the standard of review, but supplements it by noting that this Court should afford great deference to the factual findings of the jury. See Waco Int'l v. KHK Scaffolding, 278 F.3d 523, 528 (5th Cir. 2002) ("Review of factual findings underlying a jury verdict is deferential: Unless the evidence is of such quality and weight that reasonable and impartial jurors could not arrive at such a verdict, the findings of the jury must be upheld.") (citation and quotation omitted); Flowers v. S. Reg'l Physician Servs., 247 F.3d 229, 235 (5th Cir. 2001) ("our standard of review with respect to a jury verdict is especially deferential . . . . As such, judgment as a matter of law should not be granted unless the facts and inferences point so strongly and overwhelmingly in the movant's favor that reasonable jurors could not reach a contrary conclusion.") (quotations and citations omitted); Rivera v. Union Pacific R.R. Co., 378 F.3d 502, 506 (5th Cir. 2004) ("denial [of a motion for a new trial] will be affirmed unless there is a clear showing of an absolute absence of evidence to support the jury's verdict.") (citation and quotation omitted). The EEOC also notes that this Court should review whether the evidence was sufficient to support the jury's determination on the issue of punitive damages and backpay (backpay was submitted to the jury by the consent of the parties). See Williams v. Trader Publ'g, 218 F.3d 481, 484 (5th Cir. 2000) ("if the evidence is sufficient to uphold a jury verdict under Title VII, the appellate court should affirm both the verdict and the award of damages"); Thomas v. City of New Orleans, 687 F.2d 80, 84 (5th Cir. 1982). The district court's award of frontpay is reviewed for an abuse of discretion. See Giles v. General Electric, 245 F.3d 474, 489 (5th Cir. 2001). Finally, the EEOC notes that a district court abuses its discretion in considering a motion to alter or amend where it bases its decision on a "clearly erroneous assessment of the evidence." Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005) (emphasis added); compare DuPontBr13 (omitting word "clearly"). And, "[a] motion to alter or amend judgment must clearly establish either a manifest error of law or fact or must present newly discovered evidence." Ross, 426 F.3d at 763 (citation and quotation omitted). ARGUMENT I. The District Court Properly Determined on Summary Judgment that DuPont Regarded Barrios as Disabled. An employee is covered by the ADA where the employer regards that employee as disabled. See 42 U.S.C. § 12102(2)(C). In Sutton v. United Air Lines, 527 U.S. 471, 489 (1999), the Supreme Court held that an individual is regarded as disabled where a defendant "believes that an actual, nonlimiting impairment substantially limits one or more major life activities." See also 29 C.F.R. § 1630.2(l)(1) (an individual will be "regarded as" having a disability if the individual "[h]as a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation"). In this case, it is undisputed that Barrios' severe scoliosis and other conditions constitute an actual impairment. The EEOC also showed that DuPont believed that Barrios' impairment substantially limited a major life activity – her ability to walk. See 29 C.F.R. § 1630.2(i) (the phrase "major life activities" means "functions such as . . . walking"); see also Talk v. Delta Airlines, 165 F.3d 1021, 1024-25 (5th Cir. 1999) (treating walking as a major life activity). The district court properly determined on summary judgment that DuPont regarded Barrios as substantially limited in the major life activity of walking. RE Tab3 at 12-24; DI58 at 12-24. DuPont's admissions in its discovery responses alone are sufficient to uphold the district court's ruling. In response to the Commission's request for admission, DuPont stated: Request No. 40 As of the time of Laura Barrios's last day of work at DuPont, Defendant had determined that she was incapable of walking on site. Response Denied as written. Barrios' FCE established that she was incapable of walking. DI23, EEOC-SJM, Tab A, Response to Request for Admission No. 40, DuPont's Discovery Responses to the EEOC's First Set of Requests for Admissions. Dupont's responses to the EEOC's interrogatories are equally telling as to the company's admitted perception of Barrios' ability to walk: Interrogatory No. 12 Identify all persons employed by DuPont at the subject facility who have, at any time since 1993, become limited (temporarily or permanently) in their ability to walk. . . Response to Interrogatory No. 12 The only employee permanently disabled from walking during the relevant time period was Ms. Barrios. Interrogatory No. 11 Identify all persons who have since 1993 unsuccessfully applied to work at DuPont and were either unable to walk or used a wheelchair. . . Response to Interrogatory No. 11 No person has sought employment, or been employed at the DuPont facility in LaPlace, Louisiana, during the relevant time period with such restrictions, except for Ms. Barrios. DI23, EEOC-SJM, Tab A, Response to Interrogatory No. 12, DuPont's Discovery Responses to the EEOC's First Set of Interrogatories. In its discovery responses, then, DuPont conceded that it believed Barrios was "incapable of walking," and "permanently disabled from walking." These admissions are broad in scope and not limited to walking on DuPont's premises. Though these admissions are sufficient in themselves to support the district court's judgment that the company regarded Barrios as disabled, the testimony of DuPont's own doctors further "point[] ineluctably to this conclusion." RE Tab3 at 14; DI58 at 14. It is clear that "[w]hen a plant physician makes a determination with regard to the medical restriction of an employee at Dupont, [he is] empowered to act on behalf of Dupont." DI23, EEOC-SJM, Tab C at 51 (Ordeneaux Deposition). DuPont plant physician Dr. St. Martin indicated that he considered Barrios "to be substantially impaired in walking" as compared "to an average person" and restricted her from "standing more than ten minutes," or "walk[ing] more than 100 feet without stopping for rest" and climbing stairs. DI23, EEOC-SJM, Tab L at 17, 24-25. St. Martin further testified that it was his opinion in 1996 that Barrios should not be permitted to work in the plant "because of [her] inability to ambulate very well." (Id. at 15-16). Additionally, DuPont physician Dr. Burns restricted Barrios from walking onto the plant site. RE Tab3 at 15; DI58 at 15 (district court citing Burns Deposition at 18-19, 56, 62-63). As the district court correctly recognized, this restriction "was not limited to rough terrain or sensitive manufacturing areas. Instead, Barrios was restricted from walking onto the plant site, walking in her workspace, and walking away from the plant site." RE Tab3 at 15; DI58 at 15 (citing Burns Deposition at 56, 62-63). Thus, the area in which Barrios was precluded from walking by DuPont included ground that was "paved and level." DI23, EEOC-SJM, Tab I, Stein Expert Report at 9. Indeed, Burns believed that Barrios "[s]hould not be walking around on [the] plant or standing." RE Tab3 at 15; DI58 at 15 (district court citing Burns Deposition at 18-19). Burns testified that "we were concerned" about Barrios' "basic walking skills," that Barrios "could not dependably be counted on to walk safely," and that she could only stand for "a very brief period of time." Id. at 15-16 (citing Burns Deposition at 30, 57). And, Burns noted that the therapist who had conducted the FCE had mentioned that Barrios had a "marked inability" to walk and "was a significant risk of falls wherever she was." Id. at 16 (citing Burns Deposition at 26). See also DI23, EEOC-SJM, Tab B, DuPont HR Superintendent Weidner letter to EEOC at 0007 ("[b]ased on observations by her immediate supervisor and others, a concern for Ms. Barrios' personal safety was again raised due to her instability. Specifically there was a concern of her falling and possibly injuring herself."); DI35, DuPont summary judgment motion, Tab F at 155 (Weidner conceding that Barrios was discharged because "she was unable to walk and therefore couldn't evacuate"). Finally, in addition to DuPont's admissions during discovery and the testimony of its own physicians, Barrios receives total and permanent (T&P) disability from Dupont. Under its plan, Dupont defines T&P disability as meaning that "you are totally disabled by injury or disease and presumably are totally and permanently prevented from doing any gainful work, as determined by DuPont." DI23, EEOC-SJM, Tab B at 0258. As the DuPont HR representative acknowledged, it was his "understanding" that Barrios went on T&P "because of her inability to walk." DI23, EEOC-SJM, Tab C at 21-22. See also DI23, EEOC- SJM, Tab A, Response to Interrogatory No. 9, DuPont's Discovery Responses to the EEOC's First Set of Interrogatories (stating that medical retirement for total and permanent disability was "due, in part, to [Barrios'] inability to walk"). Barrios' receipt of benefits under this plan thus further demonstrates that the company perceived that she was unable to walk. Nothing in the company's admissions or employee testimony suggests that DuPont's perception of Barrios' walking difficulties was limited only to the plant, as DuPont argues. DuPontBr23-25.<2> As the district court acknowledged, "DuPont knew of Barrios's impairment, DuPont affirmatively restricted her from walking, DuPont facilitated her application for Total and Permanent disability benefits, and DuPont repeatedly referred to her as unable to walk or requiring the use of a wheelchair [in its discovery admissions]." RE Tab3 at 22; DI58 at 22. Indeed, the company's plant physician refused to limit his concerns over Barrios' ability to walk to the plant, stating that her inability to walk would be a concern regardless of where she was, "at home, at work, wherever." RE Tab3 at 23; DI58 at 23 (district court citing Burns Deposition at 69). The plant physician further emphasized that "[t]he workplace isn't in a vacuum," and that "[t]his is not just a plant issue." Id. at 23-24 (citing Burns Deposition at 68-70). The doctor's restriction only applied to the workplace because his authority "ends at the [DuPont] gate." Id. at 24 (citing Burns Deposition at 68-70). But "[a]s a safety issue, she really shouldn't be walking around." Id. Based on this clear, uncontroverted evidence that the company perceived that Barrios was unable to walk, the district court properly concluded that the company regarded her as substantially limited in walking. See, e.g., EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005) ("severe difficulty in walking the equivalent of one city block" can constitute "a substantial limitation compared to the walking most people do daily"); 29 C.F.R. pt. 1630 App. § 1630.2(j) ("an individual who, because of an impairment, can only walk for very brief periods of time would be substantially limited in the major life activity of walking").<3> And, DuPont's perception of Barrios' limitation (i.e. a complete inability to walk) far exceeds those of other plaintiffs whom courts have held not to be substantially limited in walking. See, e.g., Talk, 165 F.3d at 1025 (plaintiff not disabled where she maintains full mobility although she walks slowly and with a limp); Black v. Roadway Express, 297 F.3d 445, 451 (6th Cir. 2002) (plaintiff not disabled where he can walk two miles and walks for exercise). There can thus be no question that the district court properly determined that DuPont regarded Barrios as substantially limited in walking.<4> II. Barrios can Perform the Essential Job Functions. A. "Evacuating" is not an Essential Job Function. As the district court properly held, there was sufficient evidence for a reasonable jury to conclude that evacuating was not an essential function of Barrios' lab clerk position. Order22-26. "A highly deferential standard is especially appropriate with regard to the jury's determination of what the essential functions of the job are, since the evidence. . . most often consists of post hoc descriptions of what the employee was expected to do and what he actually did, which necessarily requires the jury to judge the credibility of witnesses and the veracity of their testimony." Barber v. Nabors Drilling U.S.A., 130 F.3d 702, 707 (5th Cir. 1997). Essential functions are the "fundamental" (not "marginal") duties of the job the employee performs. See 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(n); Riel v. Electronic Data Sys., 99 F.3d 678, 682 (5th Cir. 1996). Whether a particular task is essential "is a factual determination that must be made on a case-by-case basis." 29 C.F.R. pt. 1630 App. § 1630.2(n). Relevant factors include "the employer's judgment," a "written" job description, the provisions of a collective bargaining agreement, the number of persons available to assist or perform the function, the amount of time actually spent performing the function, the consequences of not requiring the employee to perform the function and the experience of past and current employees in performing the function. 29 C.F.R. § 1630.2(n); Riel, 99 F.3d at 682-83. No single factor is dispositive, and "all relevant evidence should be considered." 29 C.F.R. pt. 1630 App. § 1630.2(n). See, e.g., Deane v. Pocono Med. Ctr., 142 F.3d 138, 148 (3d Cir. 1998) ("declin[ing]" to give "conclusive effect" to job description and employer's judgment). At trial, the only job function that DuPont contended Barrios could not perform is that of "evacuating" the premises during an emergency. However, there was more than sufficient evidence for the jury to conclude that "evacuating" was not an essential function of Barrios' job. Floyd Ordeneaux, DuPont's HR official (and current HR manager), testified clearly on this issue: Q. In terms of the ADA, as a human resources official responsible for interpreting the term "essential job function[,]" was evacuation an essential function of Ms. Barrios' position as a lab clerk? . . . The Witness: It is not an essential function. TT240, 250. Ordeneaux further conceded that evacuation was not included in the written job description of a lab clerk. TT299; EEOC Trial Exhibit 527 at 91 (written lab clerk job description); EEOC Trial Exhibit 521 at 0375 (same); EEOC Trial Exhibit 536 at 0375 (same). Rather, Barrios' duties as lab clerk largely involved typing, circulation, printing, copying and filing. (Id.; TT116, 181-82, 262) (Barrios and Ordeneaux testimony). Vocational rehabilitation expert Douglas Kuylen further supported the testimony of the DuPont HR manager, stating that "[m]y opinion would be that [evacuating] would not be a central function of [Barrios'] job." TT374. And, the "evacuation" job function is rarely performed at DuPont; the building in which Barrios worked was not evacuated during the eighteen years that she worked there. TT249 (Ordeneaux testimony). See also TT448, 461 (DuPont security and emergency planning and response employee testified that likelihood of emergency occurring was not probable). Given the expert testimony that evacuating was not an essential function of a lab clerk job, the fact that the written lab clerk job description does not include evacuation as a job function, the concession at trial by the defendant's HR manager that evacuating was not an essential function, and the fact that the building was not evacuated once in eighteen years, there was more than sufficient evidence for the jury to conclude that evacuating was not an essential function of Barrios' job. See Riel, 99 F.3d at 683 (material issue of fact for jury where, among other evidence, employer did not include purported "essential function" on written job description); Barber, 130 F.3d at 707-10 ("it is at least as likely that the jury found" that the employer's purported "emergency functions" were "marginal rather than essential"); Kiphart v. Saturn Corp., 251 F.3d 573, 585-86 (6th Cir. 2001) (trial testimony and job descriptions suggesting that "full task rotation" was not central to work at plant were "sufficient evidence to allow a reasonable jury to conclude [that this requirement] was not an essential job function."); Skerski v. Time Warner Cable, 257 F.3d 273, 279-83 (3d Cir. 2001) ("ability to perform as an installer technician for more than three years without climbing might lead a reasonable juror to infer that [plaintiff's] inability to climb had no adverse consequences for his employer, a factor that is relevant to determining what is an essential function"); Cripe v. City of San Jose, 261 F.3d 877, 888 (9th Cir. 2001) (police department's "contention that all specialized-duty and patrol officers must be capable of making forcible arrests in the event of emergencies that require the Department to deploy all of its officers is entirely unpersuasive"). Moreover, the evidence at trial showed that DuPont could not have believed evacuation was an essential job function, because it did not require it of all of its employees. See, e.g., Cripe, 261 F.3d at 889 n.13 (noting that the fact an employer excused some non-disabled employees from a job requirement "cast significant doubt" on its importance). DuPont's HR manager testified that over the past ten years approximately six to twelve DuPont employees were temporarily injured and had "assistive devices" to help them walk. TT292. These individuals were "more mobility impaired than Ms. Barrios." TT293 (emphasis added). Yet, these individuals were not sent home from the plant, were not required to undergo an FCE exam, and were not terminated from their positions. TT293-94. See also TT145-47 (Barrios confirming that others who were "temporarily unable to walk" – including individual with broken leg on crutches for six weeks to two months – were not terminated or required to undergo FCE). Finally, Dupont maintains that "[w]ith respect to chemical refineries and the like, essential functions of the job, even for clerical workers, are recognizing emergencies, reacting appropriately to emergencies, activating alarm systems, or rescuing employees and evacuating the facility. . . Barrios was not able to perform these essential functions of the job" DuPontBr25-26. DuPont did not argue below that any of these emergency functions, other than evacuation, constituted an essential function of Barrios' job, and its argument is therefore waived. See, e.g., DI95, JMOL motion at 6-7 (arguing that Barrios "cannot perform the essential function of her job, or meet the qualification standard, that she be able to safely evacuate"); TT594 and DI76 at 14 (jury instructions) ("DuPont asserts that it applied a qualification standard that an employee must be able to evacuate in the event of an emergency"). Because this argument was not advanced below DuPont is unable to provide any record citation supporting an argument that these are essential functions of Barrios' job or to reconcile its current argument with the fact that these functions are conspicuously absent from Barrios' written job description. EEOC Trial Exhibits 521 at 0375, 527 at 91, 536 at 0375 (written job description). Indeed, DuPont points to no record citation suggesting that Barrios is incapable of performing these other emergency functions. DuPont's resort to these generalized "scare tactics" about Barrios' supposed ineffectiveness during a hypothetical emergency at the plant without providing any record support for its argument cannot substitute for the evidence actually presented to the jury, including the testimony of its own HR manager that Barrios performed all of her essential job functions while she was a lab clerk at DuPont. TT248-49. B. Barrios Could Evacuate. Additionally, even assuming that evacuating was an essential function of Barrios' job, there was sufficient evidence for the jury to conclude that she would have been able to evacuate if an emergency had arisen. As the district court noted, Barrios demonstrated her ability to evacuate by safely walking the farthest evacuation route in 2003 – with no assistance (or assistive device) and without falling down. Order24; TT290 (Ordeneaux testimony); TT369-70 (Kuylen testimony); TT222 (Stein testimony). Barrios not only completed this route; once she reached the evacuation point, she turned around and walked all the way back, thus walking approximately 2,128 feet. TT144 (Barrios testimony); TT370 (Kuylen testimony). Though Barrios made this demonstration after her termination, she testified that her condition was not any better in 2003 than it was in 1999. TT530-31. Cf. Sears, Roebuck & Co., 233 F.3d at 438 (finding present ability to walk relevant to issue of whether plaintiff disabled while employed by defendant); Gillen v. Fallon Ambulance Serv., 283 F.3d 11, 31 (1st Cir. 2002) (summary judgment evidence, which included plaintiff's subsequent successful performance in similar position for different employer, would support a jury finding plaintiff qualified). Additionally, as the district court properly noted, "Barrios asked to demonstrate that she could walk an evacuation route at the time of her discharge in 1999, but DuPont denied her request." Order24 n.2 (citing Barrios TT139; Ordeneaux TT272). Indeed, Barrios testified that while on the job site she never fell down once in eighteen years while walking. TT141. Moreover, to the extent that DuPont worries that Barrios could not "traverse rough terrain, open ditches and levees" (DuPontBr37), Barrios specifically testified that "I could get over a levee. I'd cross the road, jump a ditch and cross a levee right in front of my own house." TT535. The expert testimony provides further basis for upholding the jury's determination. Douglas Kuylen, a vocational rehabilitation expert, observed Barrios evacuate from the plant. TT369-70. When asked whether Barrios could safely have evacuated when she was discharged, Kuylen testified: I do have an opinion and I think that within herself she can walk the route, that is she is capable of walking the route. . . I watched her do it, I observed her walking the route and, yes, she was able to walk the route. She walked the entire route unassisted and then she walked the return, the return route as well. TT375. Similarly, Joan Stein, an expert with regard to the evacuation of persons with disabilities, also observed Barrios walk to the farthest rallying point. TT222. Stein testified that if asked in 1999 whether Barrios could evacuate by walking, she would have responded that Barrios "was safe in evacuating and didn't pose any threat to herself or others." TT223. There can simply be no serious dispute that Barrios could have evacuated if necessary. At a minimum, there was sufficient evidence for the jury to conclude that Barrios was capable of evacuation. C. Barrios was not a Direct Threat. Once a prima facie showing of qualifications has been made, the appropriate defense for an individual safety concern is "direct threat." See Kapche v. City of San Antonio, 304 F.3d 493, 494 (5th Cir. 2002); Hamlin v. Charter Twp. of Flint, 165 F.3d 426, 431 (6th Cir. 1999). An employee who poses a direct threat to the health or safety of others in the workplace is not entitled to the ADA's protections. See, e.g., Bragdon v. Abbott, 524 U.S. 624, 648 (1999); Hamlin,165 F.3d at 431 (citing 42 U.S.C. § 12113(b)). A "direct threat" means "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." 29 C.F.R. § 1630.2(r); see also 42 U.S.C. § 12111(3); Lovejoy-Wilson v. NOCO Motor Fuel, 263 F.3d 208, 220 (2d Cir. 2001) (quoting regulation). Inclusion of the direct threat provision in the ADA arose from the recognition in School Board of Nassau County v. Arline, 480 U.S. 273, 287 (1987), of "the importance of prohibiting discrimination against individuals with disabilities while protecting others from significant health and safety risks" Bragdon, 524 U.S. at 649. See also EEOC v. Exxon, 203 F.3d 871, 873-74 (5th Cir. 2000) (setting forth history of direct threat provision). To protect disabled persons from discrimination based on "prejudice, stereotypes, or unfounded fear" (Lovejoy-Wilson, 263 F.3d at 220) (citation and quotation omitted), however, the legal standard for establishing a direct threat defense is demanding.<5> The key inquiry is not "whether a risk exists, but whether it is significant." Bragdon, 524 U.S. at 649. Thus, an employer such as DuPont may not deny an employment opportunity to an individual with a disability merely because of a "speculative or remote" risk; there must instead be a "high probability" of "substantial harm." Lovejoy-Wilson, 263 F.3d at 220 (citing Hamlin, 165 F.3d at 432). Moreover, before excluding an individual such as Barrios from the workplace because she poses a "direct threat," an employer such as DuPont must conduct an "‘individualized assessment of the individual's present ability to safely perform the essential functions of [her] job.'" Chevron USA v. Echazabal, 536 U.S. 73, 86 (2002) (quoting 29 C.F.R. § 1630.2(r)); Kapche, 304 F.3d at 498-99. In making this assessment, an employer's subjective belief, even if maintained in good faith, would not relieve it of liability. Bragdon, 524 U.S. at 649. Rather, a determination that the individual poses a direct threat must be based on a "‘reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence.'" Echazabal, 536 U.S. at 86 (quoting with approval 29 C.F.R. § 1630.2(r)); Kapche, 304 F.3d at 498-99 (quoting regulation). Factors relevant to this determination include "(1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm." 29 C.F.R. § 1630.2(r)); see Echazabal, 536 U.S. at 86; Lovejoy-Wilson, 263 F.3d at 220. In rendering a verdict that Barrios was not a direct threat to herself or others, the jury was properly instructed on the four factors listed above as well as the meaning of the defense. TT594-96, 605; DI76 at 13-15 (jury instructions). In its post-trial decision, the district court correctly upheld the jury's decision, noting that the risk of an incident at the plant was "slim" and "not imminent," and that Barrios had demonstrated her ability to evacuate if an emergency situation arose. Order26-31. Indeed, DuPont's HR manager conceded that the risk of harm was not imminent. TT288-89. And, while Barrios' building had not been evacuated once in eighteen years, the facts established that Barrios was able to evacuate if necessary. Barrios demonstrated this by walking the farthest evacuation route with no assistance (or assistive device) and without falling down. TT290 (Ordeneaux testimony); TT369-70 (Kuylen testimony); TT222 (Stein testimony). Moreover, DuPont's HR manager agreed that Barrios was not a direct threat at the time she demonstrated her ability to evacuate. TT290-91. And, an expert testified that Barrios "was safe in evacuating and didn't pose any threat to herself or others." TT223, 229-30.<6> DuPont's reliance on the plant physician's walking restriction as the reason Barrios allegedly posed a direct threat misses the mark. DuPontBr32-33. The plant physician based this restriction entirely on the FCE, and never observed Barrios walk a significant distance. TT385-87. And, the jury could have concluded that the FCE report itself did not support a "no walking" restriction, as this report does not recommend such a restriction. EEOC Trial Exhibit 536 (FCE); TT373 (expert testifying that FCE report "would indicate that Barrios is capable of performing at a more physical and more physically demanding level than would be demanded of a sedentary occupation"). A reasonable jury therefore could have found that Barrios, who never fell once in eighteen years while walking at the plant and demonstrated her ability to walk over two thousand feet, should never have been restricted from walking, and was more than capable of evacuating in the unlikely event of an emergency. Order24. Thus, in rejecting DuPont's defense, the jury properly determined that Barrios did not present a substantial risk of harm to herself or others. See, e.g., Rizzo, 213 F.3d at 213 (sufficient evidence to support jury finding hearing- impaired plaintiff did not pose a direct threat to the safety of children in her care while driving a child care center's van); Branham v. Snow, 392 F.3d 896, 907-08 (7th Cir. 2004) (even though plaintiff suffered from diabetes which could potentially lead to "incapacitation, confusion, coma and death," question whether plaintiff could perform duties of IRS criminal investigator was for jury).<7> Not only does DuPont fail to satisfy the elements of the direct threat defense, the jury heard evidence that the safety concerns DuPont gave as the reason for Barrios' termination were not consistently applied. DuPont argues that the consequences of an emergency at the plant could be so severe that it would "give[] rise for the need to safely and quickly evacuate." DuPontBr33. Yet, the jury heard testimony that the company took no measures to protect those who suffered from temporary medical conditions that more greatly restricted their mobility than Barrios' condition restricted hers. Indeed, while these individuals were "more mobility impaired than Ms. Barrios," they were not sent home from the plant. TT292-94. And, though DuPont now emphasizes the "constant and overwhelming type of threat posed by the nature of the facility," DuPontBr36, the jury heard testimony that the company held a "family day" once a year where the company "open[s] up the plant for a tour where the whole family, grandparents, [and even] children" can visit. TT422 (Raymond Barrios testimony). See also TT422-23 (noting that Ms. Barrios volunteered to be a tour guide for family day where she showed "everybody" "the different parts of the building"). The reason DuPont held Barrios to a higher standard for evacuating than it did the rest of its employees, or even the children in the community, is simple – DuPont is using this explanation to rationalize its illegal discrimination against Barrios on the basis of her disability, and the jury correctly rejected the company's defense. Order50 ("there was ample evidence from which the jury could conclude that Dupont's direct threat defense was a thinly veiled pretext for discrimination"). DuPont's bias against Barrios is evidenced through its repeated attempts over the years to persuade her to leave the company and its speculation as to whether a certain doctor was "too ethical" to prepare the necessary paperwork for Barrios to be placed on permanent leave. TT101-06. And, this bias is further manifested by the fact that Barrios was not permitted to demonstrate her ability to evacuate, and that she successfully walked the escape route when the EEOC finally intervened. This bias is based on the myths and stereotypes that disability legislation was designed to prevent. See Arline, 480 U.S. at 284. This Court should thus reject DuPont's use of scare tactics, and uphold the jury's finding (and district court's subsequent decision) that Barrios did not present a direct threat to anyone in the company. Finally, in support of its purported direct threat defense, DuPont improperly relies heavily on summary judgment evidence. See DuPontBr32-37 (citing to Barrios deposition (DuPontBr36), Jackson deposition (DuPontBr37), Palmer deposition (DuPontBr37), and affidavit of Monk Ordeneaux (DuPontBr32, 33, 34, 35, 36), which are exhibits A, B, G and J to DuPont's summary judgment motion (DI35)). This summary judgment testimony was not formally introduced at trial or presented to the jury, as demonstrated by DuPont's failure to provide citations to the trial record. DuPont's failure to distinguish between summary judgment evidence and trial testimony underscores its refusal to recognize that a jury has resolved this case in Barrios' favor, and that testimony never presented to the jury cannot be considered by this Court in reviewing the denial of DuPont's JMOL motion. See Daigle v. Liberty Life Ins., 70 F.3d 394, 397 (5th Cir. 1995) ("Once trial begins, summary judgment motions effectively become moot. . . Thus, in reviewing the case at bar, this Court will focus on the evidence before the jury at trial on the merits as opposed to the evidence before the judge during pretrial activities") (internal citation omitted); Black v. J.I. Case, 22 F.3d 568, 572 & 572 n.6 (5th Cir. 1994) ("It makes no sense whatever to reverse a judgment on the verdict where the trial evidence was sufficient merely because at summary judgment it was not" and plaintiffs erroneously "hope that we will reverse based on the embryonic facts that existed before trial, as opposed to the fleshed-out facts developed at trial"). D. DuPont's Untimely Business Necessity Defense Fails Interwoven with its discussion of the direct threat defense, Dupont maintains – for the first time on appeal – that the company should also prevail on the business necessity defense. DuPontBr26-30. DuPont never argued this theory to the jury or in its post-trial motion and this Court should therefore not entertain DuPont's belated attempt to introduce this theory into the case. See, e.g., In the Matter of: COHO Resources, 345 F.3d 338, 346 n.29 (5th Cir. 2003) ("We emphasize that, in general, we do not consider issues raised for the first time on appeal except in extraordinary circumstances.") (quotations and citation omitted). Nonetheless, the evidence presented at trial was insufficient to establish that DuPont could prove this defense under the standard set forth by this Court in Exxon, 203 F.3d at 874-85. In Exxon, this Court held that where there is an across-the-board safety qualification standard, the "employer need not proceed under the direct threat provision. . . but rather may defend the standard as a business necessity." Id. at 875. This Court concluded that in evaluating whether a standard can be justified by business necessity the "magnitude of possible harm" should be considered "as well as the probability of occurrence." Id. Thus, "the probability of the occurrence is discounted by the magnitude of its consequences." Id. As already noted above, the DuPont HR manager conceded at trial that the risk of harm was not imminent. TT288-89. Moreover, this alleged across-the-board standard was not applied to those who were more mobility impaired than Barrios. And, most importantly, Barrios established that she was not disqualified by such a standard by demonstrating her ability to evacuate. Thus, had DuPont actually presented this defense to the jury, there was more than sufficient evidence for the jury to reject it. III. The District Court Properly Awarded Backpay The district court properly affirmed the jury's $91,000 backpay award, and there is sufficient evidence in the record to support this award.<8> Order 31-33. Cf. Pegues v. Mississippi State Employment Serv., 899 F.2d 1449, 1457 (5th Cir. 1990) ("once a plaintiff establishes a violation of [Title VII], the instances wherein [a backpay] award is not granted are exceedingly rare") (internal quotation omitted). Barrios was entitled to approximately five years of backpay, as she was illegally terminated in July, 1999, and judgment was entered on January 31, 2005. See, e.g., Brunnemann v. Terra Int'l, 975 F.2d 175, 178 n.5 (5th Cir. 1992) (approving backpay award from termination date until judgment). Barrios earned approximately $48,000 per year at the time of her termination, and received about $28,000 per year in disability and pension benefits after her discharge as an offset to this lost salary. TT151-52. Thus, the jury properly awarded Barrios approximately $20,000 a year in backpay over this five-year period. Order32-33. DuPont argues that backpay should be limited because Barrios' personal physician questioned Barrios' ability to work after June, 2001, because of pain caused by her condition. DuPontBr58. However, this physician also indicated that Barrios' back condition was stable. TT440-41, 446 (Montegut testimony). Additionally, the trial testimony demonstrated that Barrios had lived with significant pain for years and had developed a high threshold for pain as a result. TT101, 416-18; Order39-40. Indeed, Barrios' husband testified that she stayed in the hospital for only five days after double knee replacement surgery even though she had been authorized to stay for at least twenty days. TT417-18. At a minimum, then, there was sufficient evidence for the jury to conclude that Barrios would have been able to successfully perform her job functions had she not been illegally terminated by DuPont. Finally, defendant argues (for the first time on appeal) that the backpay award is excessive because "the EEOC waited almost four years to bring suit against DuPont." DuPontBr58. As DuPont failed to properly preserve this argument below, it should be deemed waived. Not surprisingly, DuPont also fails to provide any legal support for its argument. Indeed, backpay should not be limited in this manner. See EEOC v. Delight Wholesale, 973 F.2d 664, 669-70 (8th Cir. 1992) ("[Defendant] maintains that the district court should have reduced or eliminated the back pay award due to EEOC's three and one-half year delay in bringing suit. . . . In the circumstances, it was not abuse of discretion for the court then to conclude that [plaintiff] should not be deprived of make-whole compensation due to EEOC's delay."). Moreover, DuPont has not argued that it was prejudiced by this delay, or demonstrated that the Commission was not actively pursuing an investigation, conciliation and litigation. Thus, the district court properly found sufficient evidence to support the jury's backpay award. IV. The District Court Properly Awarded Frontpay. The district court properly adopted the jury's $200,000 frontpay award. A court may award frontpay for "lost future wages and benefits" where reinstatement "is not feasible." Green v. Adm'rs of the Tulane Educ. Fund, 284 F.3d 642, 658 (5th Cir. 2002) (internal quotations and citations omitted). "The dispositive question on appeal . . . is whether the district court adequately explained why it awarded front pay." Rutherford v. Harris County, 197 F.3d 173, 188 (5th Cir. 1999). The district court clearly explained why the jury's award was appropriate in this case, and acted well within its broad discretion of formulating equitable relief. Order33-46. The district court properly found that reinstatement was not feasible because of the hostility between the parties. Id. at 34. See, e.g., Pollard v. E.I. DuPont de Nemours, 532 U.S. 843, 850 (2001) (noting that animosity may make reinstatement impossible); Green, 284 F.3d at 658 (noting that the district court "determined that reinstatement was not feasible" because of "discord between the parties"). As the court noted, Barrios was already advised by human resources that the plant manager would not allow her to return to her position because "he was tired of seeing [her] cripple crooked self going down the hall hugging the walls." Order34; TT140.<9> Additionally, beginning around 1986, and continuing throughout her employment, the company harassed Barrios in an effort to persuade her to retire on T&P disability. TT101-03, 403. DuPont even questioned whether a certain doctor was "too ethical" to prepare the necessary paperwork for Barrios to be placed on permanent leave. TT105-06. Most importantly, DuPont has maintained throughout this litigation – and argues on appeal – that Barrios was not qualified to work in her position as a lab clerk. See, e.g., DuPontBr25-37. This evidence demonstrates that – as to Barrios – DuPont is a hostile employer uninterested in having her as an employee. As reinstatement was not a viable remedy, the court properly presented the issue of frontpay to the jury and adopted its findings. Order36-46. The court instructed the jury that it should consider the length of Barrios' employment, the permanency of her position, the nature of the work, her age and physical condition, the possible consolidation of jobs, and any other factors that could impact the employment relationship. TT597-99; DI76 at 17-19. See Reneau v. Wayne Griffin & Sons, 945 F.2d 869, 870-71 (5th Cir. 1991) (enumerating factors to consider in frontpay calculation). In its decision, the court noted that Barrios had worked for the company for eighteen years before her illegal termination, and that the history of other employees suggested that it is not uncommon for an employee to work for DuPont for his entire career. Order37-38. Given that Barrios was fifty-six years old at the time of the court's decision, and was successfully performing her job duties at the time of her discharge, it is likely that she would have stayed with the company for the rest of her working life had the illegal discrimination not occurred. Order38-40. Additionally, the trial testimony showed that Barrios was likely to continue working until her retirement age, as she was "both committed and hard-working." Order39. Barrios attempted to get her job back after she was terminated, indicated that she did not want to take the place of someone more deserving of benefits, and testified that she "was more than capable of doing [her] job at DuPont." Id.; TT137-40, 149, 193. And, after reviewing her medical records and actually observing her perform her job functions, a vocational expert testified that Barrios "is capable of performing" her job duties. TT365-68, 374.<10> Given the extremely limited opportunities for comparable work in the area, it is unlikely that Barrios would have left before retirement for a position at another company. Order40. The district court was thus well within its discretion in concluding that Barrios would have worked until the age of 65 had she not been illegally terminated. See, e.g., Mathieu v. Gopher News, 273 F.3d 769, 779 (8th Cir. 2001) (approving eight year frontpay award until the age of sixty-five and indicating that length of service and proximity to retirement age are appropriate considerations); Davis v. Combustion Eng'g, 742 F.2d 916, 923 (6th Cir. 1984) (noting that court may properly consider how close an employee is until retirement age in awarding frontpay). The amount of the frontpay award is also proper. Because of the "speculative character" of calculating frontpay, this Court has given the district courts "wide latitude in its determination." Deloach v. Delchamps, 897 F.2d 815, 822 (5th Cir. 1990). The district court's calculations fall well within this latitude. Order40-42. At the time of her discharge, Barrios made $48,000 per year and had received regular pay raises over her career. EEOC Trial Exhibits 520 (Personnel Records) and 551 (Tax Documents); TT152. See Order41 (noting that Barrios averaged a $1,250 yearly pay raise between 1985 and 1999 at DuPont). Barrios also testified that she received approximately $28,000 a year in T&P benefits and pension, which would offset some of this award. TT151. Factoring in "modest" pay increases, and reducing the award to present value (as the jury was instructed to do, TT597-98, DI76 at 17), the jury's advisory verdict is entirely appropriate. Order41-42. Notably, DuPont does not challenge the court's actual calculation or offer a substitute formulation for damages; it simply attacks the award broadly as inappropriate. DuPontBr52-57. The district court also properly concluded that DuPont failed to carry its burden of demonstrating that Barrios did not mitigate her damages. Order42-46. See Giles v. General Electric, 245 F.3d 474, 489-90 (5th Cir. 2001) (defendant failed to establish failure to mitigate future damages). Mitigation is a fact intensive inquiry that requires an "assessment of the reasonableness of [the employee's] conduct." Hill v. City of Pontotoc, 993 F.2d 422, 427 (5th Cir. 1993). A plaintiff is only required to take work that is "substantially equivalent" to the lost job. See Ford Motor Co. v. EEOC, 458 U.S. 219, 231-32 (1982). DuPont's conclusory argument does not even begin to assess the reasonableness of Barrios' conduct, and does not show that it met its heavy burden of demonstrating a failure to mitigate. DuPontBr57. Indeed, the evidence demonstrated that Barrios had mitigated her damages. As the district court noted, Barrios made repeated attempts to get her job back with the company after her termination. Order43; TT137-40, 272. These efforts were rebuffed by DuPont. Id. An attempt to get one's job back after an illegal discharge is a form of mitigation. See West v. Nabors Drilling U.S.A., 330 F.3d 379, 393-94 (5th Cir. 2003) ("We hold that the jury could reasonably have found that [plaintiff] mitigated his damages by seeking employment with [defendant]."). Beyond her attempt at reemployment, Barrios testified that there were no opportunities in the local area where she could make a comparable amount to what she earned at DuPont. TT150. Despite the position's being largely secretarial in nature, a lab clerk at DuPont is well paid and earns the same as an industrial operator – a position that "is much more physically demanding." TT247-48 (Ordeneaux testimony). Thus, "Barrios's testimony that, as a person in her 50's, she could not have started afresh in a secretarial position with a new employer in the same area of Louisiana. . . making close to $50,000.00 per year is not unreasonable." Order44. And, Barrios also mitigated her damages by accepting disability benefits. Order43-44. Barrios testified that had she taken another job that paid less, she could have lost these benefits, placing her in a situation where she actually received less money by taking other employment. TT150. Indeed, DuPont conceded that Barrios could have lost some of her disability benefits if she obtained another job. TT515-16, 520-21. DuPont has therefore not met its burden here, as the evidence at trial clearly showed that Barrios did not fail to mitigate her damages after DuPont illegally terminated her, and the district court did not err in adopting the jury's recommendation on this issue. Cf. Giles, 245 F.3d at 490 ("the evidence of [plaintiff's] failure to mitigate may have been sufficient to allow the court to deny front pay, it was insufficient to require it to do so"). V. The Jury's Punitive Damage Award was Appropriate The Civil Rights Act of 1991 provides that an individual who proves intentional discrimination in violation of the ADA may recover compensatory and punitive damages in addition to equitable relief. See 42 U.S.C. § 1981a(a)-(b). The statute provides that punitive damages may be awarded "if the [plaintiff] demonstrates that the [defendant] engaged in a discriminatory practice . . . with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1). In Kolstad v. American Dental Association, 527 U.S. 526 (1999), the Supreme Court discussed the appropriate standard for punitive damages. The Court held that liability for punitive damages turns on the defendant's state of mind, not on the nature of the defendant's discriminatory conduct. Id. at 535. All that a plaintiff need prove to be eligible for punitive damages, the Court held, is that the employer "discriminate[d] in the face of a perceived risk that its actions [would] violate federal law." Id. at 536. In meeting this threshold, the "plaintiff must impute liability" to the employer. Id. at 539-40. Additionally, the Court carved out a defense for employers where they "engage in good faith efforts to comply with Title VII." Id. at 544. Interpreting Kolstad, this Court has held that a plaintiff can obtain punitive damages where the discriminatory act "was committed by a managerial agent acting within the scope of employment" and "the bad act complained of was committed with malice or with reckless indifference to the complainant's federal rights." Rubinstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392, 406 (5th Cir. 2000). See also Hardin v. Caterpillar, 227 F.3d 268, 270 (5th Cir. 2000). After Kolstad, there is no requirement that plaintiffs "make an additional showing of egregiousness." Rubinstein, 218 F.3d at 406. DuPont argues that the jury should not have awarded punitive damages, as DuPont did not act maliciously or with reckless indifference to Barrios' rights, and the company's "policies fostered an interactive dialogue, with ever-present opportunities to revisit problems." DuPontBr38-41. The evidence at trial painted a far different picture, as demonstrated by the district court's detailed opinion upholding the jury's punitive damage award. Order46-54. Indeed, the evidence at trial clearly demonstrated that DuPont's actions were either malicious or performed with reckless indifference to Barrios' rights under the ADA: When she attempted to get her job back, Barrios was told by DuPont's human resource official (and current HR manager) that it was a "done deal" and that the plant manager "was tired of seeing [her] cripple crooked self going down the hall hugging the walls." TT140 (Barrios testimony). The company deliberately sought to make it impossible for Barrios to perform her job by (1) permitting other lab clerks to work overtime on projects but restricting Barrios from doing so; and (2) allowing all of the other lab clerks to keep a printer by their desks, but placing Barrios' printer more then a hundred feet away (rejecting the computer department's recommendation of moving the printer closer) and restricting her from walking more than a hundred feet without rest. TT114, 119-20 (Barrios testimony). DuPont employees made repeated efforts to persuade Barrios to take disability retirement, despite her desire to continue working. A DuPont physician even speculated whether a certain doctor was "too ethical" to prepare the necessary paperwork for Barrios to be placed on permanent leave. TT101-06 (Barrios testimony). Even though Dupont terminated Barrios because she could not evacuate, the company never tested her ability to do so, and rejected Barrios' request to prove that she could evacuate. TT272 (Ordeneaux testimony). Despite maintaining that it had a strict evacuation policy in discharging Barrios, DuPont failed to enforce this policy as to those with temporary disabilities. TT145-47 (Barrios); TT292-94 (Ordeneaux). The plant manager who made the determination to discharge Barrios testified that he relied only on the plant physician's walking restriction, and did not consider Barrios' personnel file, medical file, or FCE. TT345-46, 349. Additionally, it was clear from the testimony of DuPont's HR manager that the company believed that Barrios was disabled under the ADA, that Barrios was able to perform her essential job functions, that evacuating was not an essential function, and that Barrios was able to evacuate from the plant. See TT334-35, 248-50, TT290-93; Order47-48. And, the company stated at trial that its policy was "to comply with the ADA," thus acknowledging its responsibilities under this law. See TT512, 521 (Gregg testimony). See also TT256 (Ordeneaux testifying that it was his job to understand ADA). Based on these admissions, the jury could reasonably have inferred that the company's reason for Barrios' discharge was pretextual and that its actions were taken with the knowledge that the company was intentionally violating the ADA. See, e.g., Gagliardo v. Connaught Labs., 311 F.3d 565, 573 (3d Cir. 2002) (plaintiff "demonstrated that [defendant] was aware of her federal disability rights, as [the human resource representative] testified she was familiar with the ADA and responsible for ensuring [defendant] followed the ADA"); EEOC v. Wal-Mart, 187 F.3d 1241, 1246 (10th Cir. 1999) ("reasonable jury could have concluded that [defendant] intentionally discriminated against [plaintiff] in the face of a perceived risk that its action would violate federal law" where manager "testified that he was familiar with the accommodation requirements of the ADA and its prohibition against discrimination and retaliation in the workplace"); Otting v. J.C. Penney, 223 F.3d 704, 711-12 (8th Cir. 2000) ("sufficient evidence was presented to support the jury's determination that [defendant] acted with malice or reckless indifference to [plaintiff's] federally protected rights under the ADA," including evidence that personnel manager did not properly seek to accommodate plaintiff and testified that "he was aware that federal law imposed upon him" a duty to accommodate). DuPont has waived any argument that the alleged discriminatory acts were not perpetrated by managerial employees acting within the scope of their employment by failing to raise this argument in its brief. DuPontBr38-41. Indeed, DuPont conceded below that Ordeneaux (the HR representative) and the plant manager were acting as "its managerial agents" for purposes of potential punitive damage liability. See DI95 (JMOL motion) at 15. Nonetheless, such an argument would fail because management played the primary role in the discrimination against Barrios. As set forth above, the discriminatory actions were taken by individuals at all levels of the company, including the plant manager, the current HR manager, and a plant physician. See, e.g., Deffenbaugh-Williams v. Wal-Mart, 188 F.3d 278, 285 (5th Cir. 1999) ("sufficient evidence to survive JMOL exists that [district manager] was a requisite ‘managerial agent'" for purposes of imputing liability under Kolstad); Wal-Mart, 187 F.3d at 1247 (assistant manager who had "independent authority to suspend her subordinates" and could "make hiring and firing recommendations" was a manager "for purposes of vicarious liability."). DuPont has also waived any argument as to the excessiveness of the punitive damage award, as the company fails to challenge the amount of the award and argues only that the jury should not have awarded punitive damages at all. DuPontBr38-41. Nonetheless, given DuPont's reckless disregard for Barrios' rights, there can be no question that the punitive damage award – already reduced from $1 million to $300,000 by statutory mandate – was appropriate, particularly here where the company "engaged in a pattern of intentionally discriminatory and malicious conduct" as set forth above. Order46-54, 57-59. The size of the jury's award alone is sufficient to support the propriety of the court's order. See Quint v. A.E. Staley Mfg., 172 F.3d 1, 15 (1st Cir. 1999) ("the $420,000 punitive damages award alone afforded ample support for the $300,000 damages award approved by the district court"). And, the almost 1:1 ratio of punitive damages to actual damages ($300,000 in punitive damages; $291,000 in backpay and frontpay) defeats any suggestion that the punitive damage award was excessive. See Rubinstein, 218 F.3d at 407-09 (ten to one ratio of punitive to actual damages appropriate in employment discrimination case); Deffenbaugh-Williams, 188 F.3d at 286 (ordering district court to enter $75,000 punitive damage award where $19,000 in actual damages awarded). Additionally, DuPont's argument that the company should escape liability from punitive damages because of its "good-faith efforts to comply with the law" must fail. DuPontBr40. Initially, DuPont incorrectly asserts that the plaintiff has the burden of proof on this issue. DuPontBr41. See Deffenbaugh-Williams, 188 F.3d at 286 (the evidence elicited by defendant "does not suffice to establish, as a matter of law, [defendant's] good faith in requiring its managers to obey Title VII"). Accord MacGregor v. Mallinckrodt, 373 F.3d 923, 931 (8th Cir. 2004); Zimmermann v. Assocs. First Capital, 251 F.3d 376, 385 (2d Cir. 2001); Bruso v. United Airlines, 239 F.3d 848, 858 (7th Cir. 2001). DuPont failed to meet its burden here. The company presented no evidence at trial that it enforced an anti-discrimination policy or attempted to educate its employees about disability discrimination in any way. Rather, DuPont's only evidence in this regard was its conclusory statements that the company's policy was simply to follow the law. TT256, 326, 512, 521. (Ordeneaux and Gregg testimony). Such evidence is insufficient to prove this defense. Deffenbaugh-Williams, 188 F.3d at 286 (defendant's "only evidence" was that defendant "encourages employees to contact higher management with grievances. Plainly, such evidence does not suffice to establish, as a matter of law, [defendant's] good faith in requiring its managers to obey Title VII."); Davey v. Lockheed Martin, 301 F.3d 1204, 1209 (10th Cir. 2002) ("at a minimum, an employer must at least adopt anti-discrimination policies and make a good faith effort to educate its employees about these policies and [the statute's] prohibitions"); Zimmermann, 251 F.3d at 385 (the Kolstad defense "requires an employer to establish both that it had an antidiscrimination policy and made good faith effort to enforce it"). As the district court properly noted, "[t]here was no evidence that DuPont had a written or publicized employee anti-discrimination policy. There was no evidence of employee training. There was no evidence of an employee discrimination grievance procedure." Order53. At a minimum, then, the jury's determination that DuPont did not act in good faith was a reasonable finding that should not be disturbed. See Deffenbaugh-Williams, 188 F.3d at 286 ("For JMOL purposes, the evidence of [defendant's] antidiscrimination good faith was certainly not so overwhelming that reasonable jurors could not conclude otherwise"). VI. The District Court Properly Considered Backpay and Frontpay in Awarding Punitive Damages. DuPont erroneously argues that punitive damages are inappropriate in this case because it maintains that no compensatory damages were awarded. DuPontBr41-52. DuPont's argument is based on the flawed premise that because the $91,000 backpay award and $200,000 frontpay award are not denominated as compensatory damages the awards do not constitute a remedy for actual harm. DuPont maintains that under 42 U.S.C. § 1981a, backpay and frontpay are equitable remedies which cannot "form a basis for punitive damages." Id. DuPont argues that the common law principle that equitable remedies cannot be used as a basis for awarding punitive damages "traces its lineage back to the earliest period of the Republic and indeed prior to the Separation back to the High Court of Chancery of Great Britain." Id. at 49. Fortunately, this Court need not go back that far to resolve this issue; instead, it need only look to the text of section 1981a – the damages provision for Title VII and the ADA – which does not require that a plaintiff recover compensatory damages to establish a claim for punitive damages.<11> And, DuPont's argument ignores the simple fact that wage loss is an actual harm that can form the basis for an award of punitive damages. DuPont's argument is contrary to the law of this and other circuits, and the district court properly rejected it. Order54-57. Indeed, this Court has approved punitive damages in Title VII cases where the only actual harm to the plaintiffs was wage loss. In Rubinstein, this Court approved an award of punitive damages of $25,000 to a Title VII plaintiff where the jury had awarded nothing for emotional damages and $2500 in lost wages and benefits. 218 F.3d at 407-09. In awarding punitive damages, this Court specifically addressed whether the jury had erred in failing to award "compensatory emotional damages," and was therefore plainly aware of the absence of emotional damages when resolving the punitive damages issue. Id. at 409. Additionally, this Court indicated that the lost pay was compensatory in nature, stating that plaintiff was awarded "compensatory damages for lost wages and benefits." Id. at 407. Similarly, in Deffenbaugh-Williams, this Court awarded $75,000 in punitive damages to a Title VII plaintiff where the jury had awarded "$19,000 [in] compensatory damages." 188 F.3d at 281, 286. Again, this Court based its punitive damage award on plaintiff's $19,000 in lost wages, which this Court referred to as compensatory in nature. Id.; see Deffenbaugh-Williams v. Wal- Mart, 156 F.3d 581, 591 (5th Cir. 1998) (earlier decision which explained that "the jury awarded [plaintiff] $19,000 to compensate her for lost-earnings between her termination (January 1994) and the trial (July 1996)."), vacated at Williams v. Wal-Mart, 169 F.3d 215 (5th Cir. 1999) and reinstated in pertinent part at Williams v. Wal-Mart, 182 F.3d 333 (5th Cir. 1999). In Corti v. Storage Tech., 304 F.3d 336 (4th Cir. 2002), the Fourth Circuit recently considered and flatly rejected the exact arguments made by DuPont here, and held that "because the district court awarded [plaintiff] back pay based on the jury's finding of liability, we find no error in allowing the punitive damages award to stand [in a Title VII case]." Id. at 341-42. The Court explained that because 42 U.S.C. § 1981a does not require compensatory damages for a punitive damage claim, the common law rule does not apply: Our holding is in accord with opinions of the First, Seventh and Eleventh Circuits. . . These circuits have recognized, as we do, that nothing in the plain language of § 1981a conditions an award of punitive damages on an underlying award of compensatory damages. . . Unlike compensatory damages at common law, compensatory damages under § 1981a are defined to omit back pay, which is the most obvious economic damage in a wrongful discharge case. . . The omission occurs under the 1991 Act to prevent double recovery. . . We believe that the award of back pay clearly establishes that [plaintiff] suffered injury. Because back pay awards serve a similar purpose as compensatory damage awards, the familiar tort mantra that punitive damages may not be assessed in the absence of compensatory damages will not aid [defendant] in this case. . . In Title VII cases, a jury's punitive damage award will stand even in the absence of compensatory damages if back pay has been awarded. Id. at 342-43 (internal quotations and citations omitted). The Fourth Circuit also rejected the defendant's argument that the Court should look to an FHA case on this issue, stating that this statute, "unlike Title VII, does not contain a provision for an award of back pay. We find that a loss of income due to discrimination amounts to ‘actionable harm.'" Id. at 342.<12> Similarly, in Salitros v. Chrysler Corp., 306 F.3d 562 (8th Cir. 2002), the Eighth Circuit held that it "need not decide whether an award of punitives could stand without any award of compensatory or nominal damages, because the award of front pay in this case serves the purpose of compensating [plaintiff] for economic losses resulting from" the unlawful action. Id. at 575. Thus, the Court agreed with the other circuits on this issue that "the common law policy prohibiting punitive damages where the plaintiff has not shown any harm is not implicated where the plaintiff has shown wage loss." Id. And, the numerous other appellate courts to address this issue have reached the same result, despite DuPont's unsupported assertion that "the federal courts have had a difficult time fashioning an appropriate answer." DuPontBr43. See Tisdale v. Federal Express, 415 F.3d 516, 525, 534-35 (6th Cir. 2005) (upholding $100,000 punitive damage award where $15,000 in backpay and no emotional damages awarded and stating, "[e]very court of appeals which has addressed the issue has upheld the punitive damages awards. . . . In sum, we agree with the reasoning of our sister circuits and conclude that there is no reason to condition punitive damages on the award of actual or nominal compensatory damages"); Provencher v. CVS Pharmacy, 145 F.3d 5, 12 (1st Cir. 1998) ("We see no reason to allow punitive damages only where the jury enters an award for compensatory damages and not where the judge enters an award for back pay, given that injury to the plaintiff is redressed in both instances."), abrogated on other grounds by National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002); EEOC v. W & O, 213 F.3d 600, 615 (11th Cir. 2000) (finding "that punitive damages may be appropriate where a plaintiff has received back pay but no compensatory damages. . . In addition to the fact that § 1981a includes no language limiting the right to punitive damages to cases where the plaintiff receives compensatory damages. . . we agree with the First and Seventh Circuits that ‘in redressing an injury suffered by the plaintiff, back pay awards serve a similar purpose as compensatory damages awards.'") (citations omitted); Hennessy v. Penril Datacomm Networks, 69 F.3d 1344, 1352 (7th Cir.1995) ("considering the trial court's award of back pay, the jury's consideration of the issue of punitive damages was appropriate, even though it did not award compensatory damages."). Indeed, though this Court need not go as far in this case, at least two appellate courts have awarded punitive damages in Title VII cases where no actual damages were awarded. See Cush-Crawford v. Adchem, 271 F.3d 352, 357-59 (2d Cir. 2001); Timm v. Progressive Steel Treating, 137 F.3d 1008, 1010 (7th Cir. 1998). Thus, DuPont asks this Court to go out on its own in creating a circuit split, against the sound reasoning of the numerous other circuits to address this issue, as well as this Court's own decisions in Rubinstein<13> and Deffenbaugh-Williams. This Court should decline DuPont's invitation to do so.<14> CONCLUSION The district court's well reasoned, thorough opinions in this matter demonstrate that DuPont openly and illegally discriminated against Barrios. This Court should therefore affirm the district court decisions and the jury finding of liability and granting make-whole relief. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ____________________________ JOSEPH A. SEINER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4772 joseph.seiner@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 13,892 words. See Fed. R. App. 32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced Times New Roman type for text and 14-point Times New Roman type for footnotes. See Fed. R. App. P. 32(a)(5). _____________________ JOSEPH A. SEINER March 24, 2006 ADDENDUM Girard v. Brinker Int'l Payroll Corp., 2003 WL 261776 (5th Cir. 2003) (unpublished) CERTIFICATE OF SERVICE I, Joseph A. Seiner, hereby certify that on the 24th day of March, 2006, I caused: (1) copies of the attached brief; and (2) a diskette containing the brief in an Adobe Acrobat PDF format to be sent via federal express mail to: Clerk of Court Raymond Ripple Mark C. Carver U.S. Court of Appeals Donna Goodman William David Aaron, Jr., for the Fifth Circuit DuPont Legal Goins Aaron, P.L.C. 600 Camp Street Suite D-7012 1010 Common St. New Orleans, LA 70130 1007 Market Street Suite 2600 Wilmington, DE 19898 New Orleans, LA 70112 __________________________ JOSEPH A. SEINER Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4772 March 24, 2006 ******************************************************************************** <> <1> The trial transcript is consecutively paginated at DI118-DI120. <2> DuPont improperly refers to trial testimony in arguing that the district court’s summary judgment decision was erroneous. DuPontBr24-25 (citing Gregg trial testimony). Obviously, such testimony was not before the district court, and should be disregarded by this Court in considering this issue. <3> See Sutton, 527 U.S. at 491-93 (analyzing regarded as claim based on standards for actual disability). <4> Even now on appeal, DuPont’s statements indicate the company’s clear belief that Barrios is unable to walk. DuPont notes that it presented evidence that Barrios “was medically restricted from walking on the DuPont site.” DuPontBr10, 32. At trial DuPont’s HR official conceded that the building in which Barrios worked included “mostly what is a smooth, flat area.” TT264. Thus, DuPont still stands behind its belief that Barrios is unable to walk on smooth, flat surfaces. <5> The jury was instructed that the defendant had the burden to establish the direct threat defense, and the defendant did not object. See TT595. This Court has upheld an instruction placing the burden of proof on the employer to establish the direct threat defense where the defendant did not object. See Rizzo v. Children’s World Learning Ctrs., 213 F.3d 209, 213 (5th Cir. 2000) (en banc). Other appellate courts have determined that the defendant carries this burden of proof. See Hargrave v. Vermont, 340 F.3d 27, 35 (2d Cir. 2003); Hutton v. Elf Atochem N. Am., 273 F.3d 884, 893 (9th Cir. 2001); Branham v. Snow, 392 F.3d 896, 907 (7th Cir. 2004). Irrespective of where the burden of proof lies, however, the facts in this particular case clearly demonstrate that Barrios was not a direct threat. <6> By not originally permitting Barrios to walk the evacuation route, DuPont failed to perform the type of “individualized assessment” required by the Supreme Court and this Court. See Echazabal, 536 U.S. at 86; Kapche, 304 F.3d at 498-99. <7> As the district court properly noted, the two district court cases relied upon by DuPont regarding evacuation requirements, one of which is unpublished, are simply not analogous to this case and easily distinguishable. Order28-31; DuPontBr31-32. <8> The parties consented to a jury trial on the backpay issue. Order31. <9> The plant manager was subsequently promoted by the company. TT350. <10> DuPont argues that frontpay should be limited because Barrios’ personal physician questioned Barrios’ ability to work after June, 2001, because of pain caused by her condition. DuPontBr55. This argument should be rejected for the same reason discussed in relation to the backpay award. See supra at 39. <11> Punitive damages are derived from the same statutory section under the ADA and Title VII, and the analysis under these statutes is therefore the same, See, e.g., Wal-Mart, 187 F.3d at 1245 n.2. <12> DuPont’s reliance on an FHA case for the proposition that compensatory damages are necessary for a punitive damage claim is similarly unpersuasive. See Louisiana Acorn Fair Housing v. LeBlanc, 211 F.3d 298 (5th Cir. 2000). As the district court noted, LeBlanc only applies to the FHA and does not implicate the ADA, which has its own damages provision. Order56-57. And, the plaintiff in LeBlanc was awarded only punitive damages and did not receive any other remedies for actual harm. LeBlanc, 211 F.3d at 300. In this case, unlike the plaintiff in LeBlanc, Barrios suffered significant actual damages in the form of wage loss. DuPont’s citation (DuPontBr44) to Girard v. Brinker Int’l Payroll Corp., 2003 WL 261776 (5th Cir. 2003) (unpublished) (attached pursuant to 5th Cir. R. 47.5.4) is equally unavailing, and in fact, that decision supports the Commission’s arguments here. <13> DuPont attempts to downplay Rubinstein’s significance by arguing that this decision “pre-dates” Pollard, 532 U.S. at 854, where the Supreme Court held that frontpay is not subject to the statutory caps of the Civil Rights Act of 1991. DuPontBr51. However, Pollard in no way addresses the issue of whether compensatory damages are necessary for punitive damages. Additionally, the decisions of the Fourth, Sixth, and Eighth Circuits set forth above (which are not mentioned in DuPont’s brief) all post-date Pollard and squarely reject DuPont’s asserted position. <14> Though there is no ambiguity in section 1981a, DuPont cites a passage in the legislative history which states that “plaintiffs must first prove intentional discrimination, then must prove actual injury or loss arising therefrom to recover compensatory damages, and must meet an even higher standard. . . to recover punitive damages.” DuPontBr52 (citing H.R. Rep. No. 102-40, pt. I at 72 (1991)). Nothing in this passage suggests that compensatory damages are required to receive punitive damages, or that wage loss is not sufficient to form the basis for a punitive damage award. At worst, this passage is entirely ambiguous on this issue.