Page

Table of Authorities................................................................................................... iv

Statement of Jurisdiction............................................................................................ 1

Statement of the Issues............................................................................................... 1

Statement of the Case................................................................................................. 3

A. Factual Background................................................................................. 3

1. Reina’s Work History......................................................................... 3

2. End of Reina’s Employment.............................................................. 7

B. District Court Proceedings.................................................................... 13

1. Denial of Walmart’s Motion for Summary Judgment................. 13

2. Jury Trial............................................................................................. 14

3. Denial of Walmart’s Motion for Judgment as a Matter of Law.. 16

4. Denial of Walmart’s Motion for a New Trial................................ 17

5. Denial of the EEOC’s Motion for Injunctive Relief...................... 18

Summary of Argument............................................................................................ 20

Standard of Review................................................................................................... 23

Argument................................................................................................................... 25

I. This Court should affirm the final judgment in favor of the EEOC....... 25

A. The district court correctly rejected Walmart’s contention that a permanent, full-time job coach is, per se, an unreasonable accommodation......................................................................................... 26

1. A permanent, full-time personal assistant can be a reasonable accommodation................................................................................. 27

2. Walmart’s arguments to the contrary are unpersuasive............. 31

B. The jury reasonably found that Reina could perform all essential functions

of his position with reasonable accommodation................................. 33

1. Steering Traditional Carts................................................................ 35

a. The jury reasonably could have found that Reina, himself, could

steer with a reasonable accommodation................................ 36

b. The jury reasonably could have found that physically steering carts

was one way of avoiding hazards in the parking lot, but was not an essential function in and of itself................................ 39

2. Retrieving Motorized Carts............................................................. 41

3. Answering Customer Questions..................................................... 43

C. The district court acted within its discretion in trying liability and damages together..................................................................................... 45

D. Walmart’s argument that the EEOC’s legal theory was “novel” provides no basis for upsetting the jury’s well-supported finding that Walmart acted with the mental state required for an award of punitive damages—malice or reckless indifference............................ 48

II. The district court abused its discretion by refusing to award any injunctive relief............................................................................................................................. 56

A. The district court committed legal error by focusing on whether Walmart

had engaged in a pattern or practice of discrimination and whether current employees harbor discriminatory animus.............................. 57

B. The district court abused its discretion in analyzing the particular relief the EEOC sought.............................................................................. 62

1. “Obey the Law” Provisions............................................................. 62

2. Consideration of Job Coach Where Needed................................. 65

3. Accommodation Checklist and Training....................................... 66

Conclusion................................................................................................................. 68

Certificate of Compliance

Short Appendix

Certificate of Service

TABLE OF AUTHORITIES

Page(s)

Cases

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)................................................. 56

Bartee v. Michelin N. Am., Inc., 374 F.3d 906 (10th Cir. 2004)............................... 40

Berry v. Deloney, 28 F.3d 604 (7th Cir. 1994)..................................................... 45, 47

Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131 (2d Cir. 1995)....................... 30, 39

Bruso v. United Airlines, Inc., 239 F.3d 848 (7th Cir. 2001)........................ 52, 61, 68

Chavez v. Ill. State Police, 251 F.3d 612 (7th Cir. 2001)........................................... 24

Cochrum v. Old Ben Coal Co., 102 F.3d 908 (7th Cir. 1996).................................... 30

Conners v. Wilkie, 984 F.3d 1255 (7th Cir. 2021)..................................................... 34

EEOC v. AutoZone, Inc., 707 F.3d 824 (7th Cir. 2013)... 24, 50, 57, 59-61, 63-64, 67

EEOC v. Boh Bros. Constr. Co., 731 F.3d 444 (5th Cir. 2013) (en banc).......... 50, 54

EEOC v. Dollar Gen. Corp., 252 F. Supp. 2d 277 (M.D.N.C. 2003)....................... 32

EEOC v. Flambeau, Inc., 846 F.3d 941 (7th Cir. 2017)........................... 24, 49, 54-55

EEOC v. Gurnee Inn Corp., 914 F.2d 815 (7th Cir. 1990)............................ 24, 60, 64

EEOC v. Hertz Corp., No. 96-72421, 1998 WL 5694 (E.D. Mich. Jan. 6, 1998).... 32

EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1997)........................ 57, 64

EEOC v. Ind. Bell Tel. Co., 256 F.3d 516 (7th Cir. 2001) (en banc)........................ 50

EEOC v. Sears, Roebuck & Co., 417 F.3d 789 (7th Cir. 2005).................................. 37

EEOC v. United Airlines, Inc., 693 F.3d 760 (7th Cir. 2012)............................. 28, 29

EEOC v. Wal-Mart Stores East, LP, No. 1:17-cv-00070-WCG (E.D. Wis.)

(filed Jan. 18, 2017).................................................................................................... 62

Emmel v. Coca-Cola Bottling Co. of Chi., 95 F.3d 627 (7th Cir. 1996)............... 23, 24

Ericsson Inc. v. TCL Comm’n Tech. Holdings Ltd., No. 21-1130 (S. Ct.)

(cert petition filed Feb. 11, 2021)............................................................................. 26

Exby-Stolley v. Bd. of Cnty. Comm’rs, 979 F.3d 784 (10th Cir. 2020) (en banc).... 58

Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944 (8th Cir. 1999)........................... 30

Gaddy v. Abex Corp., 884 F.2d 312 (7th Cir. 1989).................................................. 63

Gilbert v. Frank, 949 F.2d 637 (2d Cir. 1991)........................................................... 30

Gile v. United Airlines, Inc., 213 F.3d 365 (7th Cir. 2000)................................. 23, 54

Hall v. Gary Cmty. Sch. Corp., 298 F.3d 672 (7th Cir. 2002)................................... 23

Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923 (2016).............................. 50, 51

Hansen v. Henderson, 233 F.3d 521 (7th Cir. 2000)................................................. 30

Haschmann v. Time Warner Ent. Co., 151 F.3d 591 (7th Cir. 1998)....................... 26

Hemmings v. Tidyman’s Inc., 285 F.3d 1174 (9th Cir. 2002)................................... 50

Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999)............... 58

Houseman v. U.S. Aviation Underwriters, 171 F.3d 1117 (7th Cir. 1999).............. 24

Houskins v. Sheahan, 549 F.3d 480 (7th Cir. 2008)............................................ 45, 46

Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am.

v. Johnson Controls, Inc., 499 U.S. 187 (1991)........................................................... 59

Kauffman v. Petersen Health Care VII, LLC, 769 F.3d 958 (7th Cir. 2014) 25, 41, 42, 45

Keith v. Cnty. of Oakland, 703 F.3d 918 (6th Cir. 2013).......................................... 40

Kleiber v. Honda of Am. Mfg., Inc., 420 F. Supp. 2d 809 (S.D. Ohio 2006)............ 32

Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862 (6th Cir. 2007)............................ 32

Kolstad v. Am. Dental Ass’n, 527 U.S. 526 (1999)............................................... 49-50

Kotaska v. Fed. Express Corp., 966 F.3d 624 (7th Cir. 2020).............................. 35, 42

Lenker v. Methodist Hosp., 210 F.3d 792 (7th Cir. 2000)......................................... 59

Majors v. Gen. Elec. Co., 714 F.3d 527 (7th Cir. 2013)....................................... 25, 29

Martinson v. Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997)............................... 30

McLaughlin v. State Farm Mut. Auto. Ins. Co., 30 F.3d 861 (7th Cir. 1994).... 46, 47

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986)............................................. 27

Mimms v. CVS Pharmacy, Inc., 889 F.3d 865 (7th Cir. 2018)................................. 26

Peters v. City of Mauston, 311 F.3d 835 (7th Cir. 2002).......................................... 29

Power v. Summers, 226 F.3d 815 (7th Cir. 2000)..................................................... 64

Roe v. Cheyenne Mountain Conf. Resort, Inc., 124 F.3d 1221 (10th Cir. 1997)...... 65

Searls v. Johns Hopkins Hosp., 158 F. Supp. 3d 427 (D. Md. 2016)........................ 39

Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017)...................... 33

Shell v. Smith, 789 F.3d 715 (7th Cir. 2015)........................................... 34, 35, 41, 42

Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019 (7th Cir. 1997)............................ 30

Skerski v. Time Warner Cable Co., 257 F.3d 273 (3d Cir. 2001)............................... 40

Solomon v. Vilsack, 763 F.3d 1 (D.C. Cir. 2014)....................................................... 33

Tonyan v. Dunham’s Athleisure Corp., 966 F.3d 681 (7th Cir. 2020)...................... 34

United States v. Friedman, 971 F.3d 700 (7th Cir. 2020)......................................... 44

US Airways, Inc. v. Barnett, 535 U.S. 391 (2002)......................................... 28, 29, 53

Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538 (7th Cir. 1995)......................... 29

Vargas v. DeJoy, 980 F.3d 1184 (7th Cir. 2020)................................................... 42-43

Wedemeyer v. CSX Transp., Inc., 850 F.3d 889 (7th Cir. 2017)............................... 52

Weeks v. Angelone, 528 U.S. 225 (2000).................................................................... 47

Whitehead v. Bond, 680 F.3d 919 (7th Cir. 2012)..................................................... 23

Withers v. Johnson, 763 F.3d 998 (8th Cir. 2014)..................................................... 58

Statutes

28 U.S.C. § 1291............................................................................................................ 1

28 U.S.C. § 1331............................................................................................................ 1

42 U.S.C. § 1981a(a)(2).............................................................................................. 16

42 U.S.C.§ 1981a(b)(1)......................................................................................... 17, 49

42 U.S.C. § 1981a(b)(3)(D)........................................................................................ 16

Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq...................... 1

§ 12101(b)(1)................................................................................................... 25

§ 12111(8)...................................................................................... 25, 33, 34, 36

§ 12111(9)...................................................................................... 25, 27, 31, 39

§ 12112(a)........................................................................................................ 25

§ 12112(b)(5)(A)....................................................................................... 25, 53

§ 12117(a).............................................................................................. 1, 56, 62

Rehabilitation Act of 1973, 29 U.S.C. § 794............................................................ 30

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

§ 2000e-5(b).................................................................................................... 62

§ 2000e-5(f)................................................................................................. 1, 62

§ 2000e-5(g)(1).................................................................................... 56, 57, 63

Regulations and Rules

29 C.F.R. § 1630.2(n)............................................................................................ 34, 42

29 C.F.R. § 1630.2(o)............................................................................................ 25, 54

56 Fed. Reg. 35726 (July 26, 1991)........................................................................... 27

Fed. R. App. P. 4(a)..................................................................................................... 1

Fed. R. Civ. P. 42(b)................................................................................................... 45

Fed R. Civ. P. 50......................................................................................... 1, 24, 26, 43

Fed. R. Civ. P. 59.................................................................................................... 1, 24

Administrative Materials

Chai R. Feldblum & Victoria A. Lipnic, Report of the Co-Chairs of the EEOC

Select Task Force on the Study of Harassment in the Workplace (June 2016), https://www.eeoc.gov/select-task-force-study-harassment
-workplace#_Toc453686306..................................................................................... 67

EEOC, A Technical Assistance Manual on the Employment Provisions

(Title I) of the Americans with Disabilities Act (Jan. 1, 1992), https://www.eeoc.gov/laws/guidance/technical-assistance-manual-employment-provisions-title-i-americans-disabilities-act.................................. 40

EEOC Enforcement Guidance on the Americans with Disabilities Act

and Psychiatric Disabilities, 1997 WL 34622315 (Mar. 25, 1997)........................ 28

EEOC Interpretive Guidance on Title I of the ADA, 29 C.F.R. pt. 1630, app... 27

§ 1630.2(o)....................................................................................................... 27

§ 1630.9............................................................................................................ 27

EEOC, Persons with Intellectual Disabilities in the Workplace and the ADA (May 15, 2013), https://www.eeoc.gov/laws/guidance/persons-intellectual-disabilities-workplace-and-ada............................................................................... 28

STATEMENT OF JURISDICTION [1]

This case arises under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 et seq. The district court had jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. § 2000e-5(f)(1), (3)). On March 31, 2020, after the Equal Employment Opportunity Commission (“EEOC”) had prevailed at trial, the district court denied the EEOC’s motion for injunctive relief. (EEOC.SA.1) The court entered judgment on April 3, 2020. (SA.32) On May 1, 2020, Defendants, Wal-Mart Stores, Inc., and Wal-Mart Stores East, L.P. (collectively, “Walmart”), filed timely motions for judgment as a matter of law and for a new trial under Federal Rules of Civil Procedure 50 and 59. (R.231) The district court denied these motions on November 25, 2020. (SA.31) Walmart filed a timely notice of appeal on December 18, 2020 (R.246), and the EEOC filed a timely notice of cross-appeal on January 22, 2021 (R.252). See Fed. R. App. P. 4(a)(1)(B), 4(a)(3), 4(a)(4)(A). This Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

Walmart employed Paul Reina as a cart attendant for sixteen-and-a half years. As an accommodation for Reina’s disabilities, including vision and hearing impairments, Walmart allowed Reina to work with a full-time job coach who was free of charge to Walmart. After a new manager arrived, Walmart suspended Reina and demanded that he submit a new accommodation request. Walmart failed to act on his request for eight months, at which point it stated that it would not take him back. A jury concluded that Walmart violated the ADA by denying Reina a reasonable accommodation and ending his employment because of his disabilities. The questions presented are:

1. Did the district court correctly hold that a permanent, full-time job coach is not an unreasonable accommodation per se?

2. Did the district court properly conclude that it was reasonable for the jury to find that Reina was able to perform the essential functions of his job with reasonable accommodation?

3. Did the district court act within its discretion in trying liability and damages together?

4. Did the district court properly reject Walmart’s contention that the EEOC’s purportedly novel legal theory required it to set aside the jury’s finding that Walmart acted with malice or reckless indifference to Reina’s rights, the mental state required for an award of punitive damages?

5. Did the district court abuse its discretion by refusing to award any injunctive relief?

STATEMENT OF THE CASE

A. Factual Background

1. Reina’s Work History

Paul Reina, a former cart attendant for Walmart in Beloit, Wisconsin, is deaf, legally blind, and intellectually impaired. He also has an anxiety disorder and is on the autism spectrum. (App.96; EEOC.App.88; R.205 at 61) Reina communicates through a mixture of “home sign” gestures and a “very few words” of American Sign Language. (App.14; EEOC.App.9)

Reina began working as a cart attendant in 1998. He explained at the outset that he could not work without assistance, and Walmart agreed to let him work with an aide. (EEOC.App.99) Reina’s family hired and trained individuals to serve as Reina’s “eyes and ears.” (EEOC.App.52) The aides—also called “job coaches”—were fingerprinted, underwent background checks, and were continuously monitored for disqualifying convictions or substantiated claims of abuse against clients. (EEOC.App.13, 24-26) Medicaid, not Walmart, paid their wages. (App.100; EEOC.App.13)

Walmart’s job description states that the essential functions of a cart attendant’s job are, inter alia: (1) maintaining availability of and organizing shopping carts; (2) helping customers transport items; (3) loading merchandise into customer vehicles; and (4) providing customer service by, e.g., acknowledging the customer, assisting with purchasing decisions, locating merchandise, and promoting products and services. (App.242) Walmart considers customer service an essential job function for all of its employees, and each job description contains identical customer-service requirements. (EEOC.App.68, 71-72, 82; App.175-76) Walmart also stations “greeters” at its front doors whose primary function is to greet people and answer customer questions. (EEOC.App.6, 53-54, 82)

Ninety-five percent of a cart attendant’s job is collecting carts in the parking lot and bringing them to the bay at the front of the store. (EEOC.App.36) The overwhelming majority of these carts are traditional. Customers who use motorized carts almost always return them to the building by themselves, and a motorized cart is abandoned in the parking lot only once or twice a month. (App.53) During Reina’s employment, he was the only cart attendant on duty for the first two hours of the day. (App.19, 58) After that, other cart attendants were available to retrieve motorized carts on the rare occasions when it was necessary to do so. (App.19)

Reina’s job coaches helped him locate traditional carts and determined the best route for bringing them back to the bay. (App.20-21) They pointed to stray carts 50-100 yards away, and Reina collected them independently. (App.14, 21, 40-41, 164; EEOC.App.20, 22) Reina nested the carts together and then pushed up to twelve carts back to the bay at once. (EEOC.App.14, 20) He could not operate the mechanical cart caddy that other cart attendants sometimes used, but Walmart did not require cart attendants to use this equipment. (EEOC.App.47)

Normally, when Reina pushed a long row of carts, the job coach stood in the front and put one finger on the carts to steer. (App.38-39, 41-42, 98) “[Reina] could steer the carts himself,” his primary job coach, Matthew Coppernoll, testified, “but he couldn’t see oncoming hazards.” (App.72) Coppernoll explained that they did not always work in this configuration. He recounted, for example, a time when Reina “independently” pushed a line of carts while Coppernoll moved other carts alongside him with the motorized cart caddy. Coppernoll explained that he had no “physical role in steering the train of carts [Reina] was pushing.” (App.58-59; R. 202 at 83) A manager who saw this exclaimed, “Now that’s what I call efficiency!” (App.58-59) Margaret Polizzi, Reina’s foster aunt and occasional job coach, testified that sometimes Reina would independently collect carts on one side of the aisle while she pushed carts on the other. (App.20)

Reina’s foster mother, Roseann Slaght, usually used her finger to help steer when she served as Reina’s job coach, but other times she directed Reina through signs and gestures. (App.98) She alerted him to oncoming hazards by holding up her hand, or by signing “car.” (App.97-98) She helped him steer by signing “stop,” “go,” “right,” or “left.” (App.97-98) Likewise, Polizzi explained that Reina “was able to do the job with very minimal intervention from me, no hand or anything like that. I could gesture and sign to him . . . .” (App.16)

Reina waved at customers and assisted them in the parking lot. (App.110) He regularly helped people load purchases into their cars, and he collected empty carts from elderly customers so they would not have to walk back to the bay to return them. (App.43, 109; EEOC.App.5) Typically, the only question customers had for Reina was where they could find a cart, which he answered by gesturing. (App.37) Customers told Polizzi that seeing Reina work made them feel proud of Walmart. (EEOC.App.4) Even though Reina did not talk directly with some customers, she said, he “was the best steward of Walmart’s parking lot they ever had.” (EEOC.App.4)

For sixteen-and-a-half years, Reina received uniformly positive performance reviews. (App.51-52) Supervisors wrote, for instance, that he “has been a great cart attendant” (Pl. Ex. 5 (2002)), “consistently stays productive and keeps up on an adequate supply of carts” (Pl. Ex. 9 (2006)), “does a good job keeping the cart corral full consistently” (Pl. Ex. 14 (2011)), and “knows his expectations and does his job well” (Pl. Ex. 17 (2014)). Although two assistant managers testified that they based their performance reviews on Reina’s and Coppernoll’s joint work, they acknowledged that they did not write their evaluations in terms of “Paul and Matt” even though that option was available. (App.197, 211; EEOC.App.70, 73-75) One of the assistant managers testified that, in her view, it would have been futile to indicate how Reina could improve because she did not believe he could understand. (EEOC.App.73-74)

In 2012, a customer reported that Reina and Coppernoll were fighting in the parking lot. (App.181) Co-manager Leah Wampole Stroh called the police (App.211), who investigated and determined that the complaint was unfounded. (EEOC.App.66-67) As Coppernoll explained and as Slaght confirmed, the best way to calm Reina down when he suffered an anxiety attack was to contain him with a firm hug and communicate with him through sign language. From a distance, Slaght told the investigating officer, that might look like an altercation. (App.61-62, 114-15; EEOC.App.21) The officer, who had some experience with special education, reviewed video of the incident and then told Slaght, “It is exactly what you said.” (App.115-16) He reported back to Stroh that her concern was unfounded. (EEOC.App.66-67) Nonetheless, Stroh contacted the human resources department, said that she remained worried about “the perception that is given off when Paul is having these episodes,” and asked whether there was anything she should do to “protect the image of the store.” (EEOC.App.112)

2. End of Reina’s Employment

In June 2015, Jeffrey Scheuerell took over as store manager. (R.203 at 85) On his first day of work, Stroh entered his office and claimed that Reina and Coppernoll were “fighting in the parking lot” and that someone was getting “beat up.” (EEOC.App.91) The district court stated that there was no admissible evidence that any such altercation actually took place. (EEOC.App.91) Stroh herself did not witness the purported incident, and no one reviewed video from the parking lot, asked Coppernoll or Reina about it, or interviewed potential witnesses. Nor did anyone follow Walmart’s “violence in the workplace” policy or call the police. (EEOC.App.66, 78, 94)

Scheuerell and market human resources manager Julie Repka nonetheless went to the parking lot and surreptitiously observed Reina working with Coppernoll. (EEOC.App.76, 81) Although Slaght testified that Reina disliked touch (App.116), Scheuerell testified that he saw Reina holding onto Coppernoll’s belt as Coppernoll pushed a row of carts. (EEOC.App.76)

Scheuerell phoned Slaght and asked her to come in for a meeting. (App.118) He never mentioned the purported fight in the parking lot. (R.202 at 33; R.208 at 43) Scheuerell told Slaght and Coppernoll that he had seen Coppernoll performing ninety to ninety-five percent of Reina’s job. (App.64) Coppernoll—who had health issues (EEOC.App.8, 12)—testified that he was “flabbergasted” to hear Scheuerell say this because he was “physically incapable of doing that type of manual labor.” (App.64) He told Scheuerell, “I couldn’t do Paul’s job. That’s too hard of work for me. Paul’s doing his job.” (App.65) Scheuerell responded, “You can just be quiet because you’re lucky I’m even allowing you in this meeting.” (App.65)

Scheuerell told Slaght, “I have no paperwork here on your son saying he has a disability and deserves an accommodation.” (App.120) In fact, the 1999 authorization for Reina to work with a job aide was in his personnel file. (EEOC.App.30, 99) Nonetheless, Scheuerell told Slaght that Reina’s doctor must fill out a new form. (App.121) This demand was contrary to Walmart’s policy, which prohibits managers from asking for medical information when an employee’s disability “is known or otherwise obvious.” (EEOC.App.103) The policy also specifies that an employee need not complete a new request form each time he seeks the same accommodation. (EEOC.App.60-61) Slaght told Scheuerell, “This is a violation of his ADA rights,” and Scheuerell responded, “I’m an expert on disability law.” (App.121)

Scheuerell suspended Reina with only two weeks of pay (in addition to one week of accrued paid leave). (App.134) He testified that he did this at someone else’s direction—presumably someone from human resources. (EEOC.App.77) Reina never returned to work at Walmart, and thus received no pay after early July 2015. (EEOC.App.23)

After a delay because Reina’s doctor was out of town (App.122-23), Dr. Susan Lowinski completed the accommodation form. She listed Reina’s diagnoses as “deaf mutism, developmental delay, visual loss, [and] anxiety state.” She recommended that Walmart accommodate Reina with a “job coach to do seeing [and] hearing.” (App.241) Slaght returned this form to Scheuerell in mid-July, and Scheuerell accepted it without seeking further clarification. (App.124) Slaght asked Scheuerell when Reina could resume work. Scheuerell replied, “Don’t call me; I’ll call you.” (App.124) Slaght told him, “I understand you need a little time, but this really feels like you’re trying to get rid of my kid.” (EEOC.App.51)

When Slaght had not heard from Scheuerell after one week, she used Walmart’s internal web portal to submit a message on Reina’s behalf to the employee helpline. She explained that Reina “need[ed] help” and “fe[lt] like [he was] being discriminated against.” (App.128) Walmart never responded and, within a couple of days, revoked Reina’s access to the online system. (App.128) A caseworker for a disability rights advocacy organization left three voicemails for Scheuerell between June 22 and July 21. (EEOC.App.100-01) Scheuerell never returned the calls. (EEOC.App.27)

Walmart’s reasonable accommodation policy contained detailed procedures for responding to an accommodation request. It required Scheuerell to forward Reina’s request to Repka at human resources within twenty-four hours, and Repka to request additional medical information, if necessary, within three days. (EEOC.App.103) If she did not immediately grant Reina’s requested accommodation, Repka had to engage in an interactive process with Reina and consider alternative accommodations. (EEOC.App.103-04) If she concluded that Reina could not perform the essential functions of the job with or without reasonable accommodation, she had twenty-four hours in which to notify Walmart’s Accommodations Service Center (“Accommodations Center”), a specialized department reviewing accommodation requests nationwide. (EEOC.App.106) The Accommodations Center was required to consider Repka’s determination expeditiously and communicate a final decision to her within three days (EEOC.App.108), which Repka had to convey to Reina within thirty days after he had made his request, or within fifteen days if no additional medical information was needed, (EEOC.App.109).

None of this happened. Repka testified that, with her knowledge, Scheuerell sent Reina’s accommodation request directly to the Accommodations Center rather than to her. (EEOC.App.30-33) Repka was responsible for ensuring that employees complied with Walmart’s policies and the ADA (EEOC.App.92-93), and she knew that the Accommodations Center was supposed to contact her within three days. However, she did not remember this happening. (EEOC.App.31-32) Neither Repka nor anyone else engaged Reina in an interactive process to determine whether an accommodation would allow Reina to return to work. (EEOC.App.81-82, 92) No one explored, for example, whether Reina’s job coaches could have warned him about hazards solely through signs and gestures. (EEOC.App.81-82, 92) Had anyone requested this, Coppernoll and Polizzi testified, they would have changed their practices. (EEOC.App.10-11, 15)

Contrary to Walmart’s policy, Reina’s request languished unaddressed for eight months, until March 2016. (App.244) By that point, Reina had filed an administrative charge with the EEOC. (Plaintiff’s Ex. 47) During a meeting held in connection with that charge, Walmart’s attorney told Slaght that Walmart did not want Reina back. (App.130-31)

Following this meeting, Walmart sent Reina a letter—written by its legal department (EEOC.App.81)—asserting that “[o]n or about mid to late July 2015, we received your [accommodation form] and expressed a desire for clarification.” (App.244) But Slaght testified that “no one,” including Scheuerell, asked her for clarification at that time. (App.133; EEOC.App.51) Reginald Coffin, the Accommodations Center examiner assigned to Reina’s claim, testified that he had never requested clarification, even though his typical practice was to do so within twenty-four hours. (EEOC.App.41-42) And Scheuerell confirmed that he never called Dr. Lowinski with questions, even though her phone number was on the form she completed. (EEOC.App.79-80)

Walmart’s letter said, “[W]e have been unable to complete our review of your request because we do not have all of the necessary information.” The letter claimed that “[i]t is incredibly important that we partner with you to address your request for accommodation.” (App.244) Accordingly, Walmart wrote, Reina needed to have Dr. Lowinski explain how a job coach would enable him to perform the essential functions of his job. The letter added that Walmart would “close[] or den[y]” Reina’s request if it did not hear back from him within fifteen days. (App.244) Slaght never responded to Walmart’s letter because Walmart had just told her that it would not let Reina return to work. (App.130-32)

Walmart did not discipline Scheuerell or Repka for how they handled Reina’s accommodation request. (EEOC.App.82-83, 95-96) To the contrary, Walmart gave Repka additional responsibility; her territory expanded from eleven stores in 2015 to twenty-two stores in 2020. (EEOC.App.89) Scheuerell left Walmart shortly after the trial. (R.219 at 1) Coffin remains in the same position at the Accommodations Center that he held during the events at issue. (EEOC.App.40)

B. District Court Proceedings

The EEOC sued Walmart, alleging that it violated the ADA by not allowing Reina to use his job coach as a reasonable accommodation, and by ending his employment because of his disabilities.

1. Denial of Walmart’s Motion for Summary Judgment

The district court denied Walmart’s motion for summary judgment. (SA.33) As relevant here, Walmart had argued that although temporary job coaches may sometimes qualify as reasonable accommodations, permanent job coaches are categorically unreasonable. Criticizing the reasoning of the handful of district court decisions on which Walmart relied, the district court explained that this Court has not adopted the per se rule Walmart sought. (SA.48-50) Instead, when addressing whether assistance by another person is reasonable, this and other courts of appeals have “focuse[d] on the type and amount of assistance provided” and evaluated whether the assistant was performing essential functions for the employee. (SA.50-52) Here, the court explained, “factual questions remain about both the essential functions of Reina’s position and the amount of assistance Reina needed to perform those functions.” (SA.52)

The case was reassigned from a judge on senior status to a new judge, who denied reconsideration. (App.270-71)

2. Jury Trial

At trial, the EEOC presented evidence that Reina had successfully performed his job for sixteen-and-a-half years. (App.51-52) Both parties introduced evidence regarding which job functions were essential and which were marginal, and the extent to which the job coaches did the work. The jury heard, for example, Scheuerell’s assertion that Coppernoll was doing Reina’s job for him, and Coppernoll’s denials. (App.64-65) The jury also heard about the many ways in which Walmart violated its own policies with respect to Reina’s accommodation request. (EEOC.App.31-33, 95, 102-11)

Finally, the jury heard about how Reina’s employment ended: Walmart suspended him in June 2015 (EEOC.App.23); Scheuerell told Slaght, “Don’t call me; I’ll call you,” and then never called (App.124); Walmart ignored Reina’s written discrimination complaint and suspended his online access (App.128); and Walmart did not communicate with Reina until a March 2016 meeting, when its lawyer told Slaght that Walmart would never let Reina return to work. (App.130-31) Following that meeting, the jury heard, Walmart sent Reina a letter falsely claiming that it had asked him for additional information the previous July and was still waiting for his response. (App.133, 244; EEOC.App.41-42, 51, 79-80)

Walmart did not object to the jury instruction defining the statutory term “essential functions.” That instruction stated in relevant part:

Not all [job] functions are “essential.” Essential functions are a job’s fundamental duties. In deciding whether a function is essential, you may consider a number of factors, including the reasons the job exists, the number of employees Walmart has to do that kind of work, the degree of specialization that the job requires, Walmart’s judgment about what is required, and the consequences of not requiring an employee to satisfy that function. You may consider the amount of job time spent on a function, but some functions may be essential even if they do not take a great deal of time.

(R.208 at 79-80) (emphasis added).

The jury returned a verdict for the EEOC on both claims, finding that Walmart denied Reina a reasonable accommodation and ended his employment because of his disabilities. The jury awarded $200,000 in compensatory damages and $5,000,000 in punitive damages (R.197), although the district court subsequently reduced the punitive damages award to $100,000 to comply with a statutory cap. See 42 U.S.C. § 1981a(a)(2), (b)(3)(D). (EEOC.SA.15-16)[2]

3. Denial of Walmart’s Motion for Judgment as a Matter of Law

The district court denied Walmart’s motion for judgment as a matter of law. (SA.31) Walmart had argued in relevant part that no reasonable jury could have found that Reina was qualified to perform three assertedly essential functions of his job: driving motorized shopping carts, steering traditional carts, and answering customer questions. (R.232 at 6-17) The court disagreed. (SA.4, 6-12) It explained that the evidence was sufficient for a reasonable jury to find that (1) driving motorized carts and answering customer questions were marginal, infrequent functions that could be performed by other employees when necessary (SA.8, 11); and (2) “steering a line of carts is not in itself an essential function of Reina’s job, but rather one method by which Reina could perform the essential function of cart retrieval.” (SA.9) “Alternatively,” the court determined, “a rational jury could conclude . . . that having a job coach to provide Reina assistance by keeping him focused or acting as his eyes and ears to avoid hazards [was] a reasonable accommodation.” (SA.10)

Walmart also sought to upset the jury’s finding that Walmart acted with “malice” or “reckless indifference,” the mental state required for an award of punitive damages, 42 U.S.C. § 1981a(b)(1). According to Walmart, the EEOC’s theory that a permanent, full-time job coach can be a reasonable accommodation was novel, and that novelty precluded the jury from finding against the company on the mental-state issue. (R.232 at 23-26) Rejecting Walmart’s argument, the district court explained that failure to provide a reasonable accommodation is not a novel theory. “[T]he issue turns not on the distinction between permanent and temporary job coaching, but rather on the type and amount of assistance provided by the job coach and the abilities of the employee in question.” (SA.18)

4. Denial of Walmart’s Motion for a New Trial

The district court denied Walmart’s motion for a new trial. The court rejected Walmart’s contention that the jury’s verdict was against the manifest weight of the evidence for the same reasons it denied Walmart’s motion for judgment as a matter of law. (SA.20)

The court also affirmed its pre-trial ruling that the efficiency of trying liability and damages together outweighed any potential prejudice to Walmart. (SA.22-23) Walmart complained after trial that “[w]itness after witness for the EEOC testified at how horribly distraught Mr. Reina was after being taken off the schedule at Walmart.” (R.232 at 33) (By contrast, elsewhere in the same brief, in seeking remittitur of compensatory damages, Walmart said the evidence showed “only that Mr. Reina . . . experienced some level of additional anxiety beyond his baseline, after the events at issue here.” (R.232 at 41)) The district court explained that if emotional testimony were sufficient to mandate bifurcation, “it would require the court to bifurcate any case involving a plaintiff with substantial damages. Walmart cites no authority for such a far-reaching conclusion.” (SA.23)

5. Denial of the EEOC’s Motion for Injunctive Relief

The district court denied the EEOC’s request for a three-year injunction that would have barred Walmart from engaging in certain types of disability discrimination, required Walmart to consider job coaches as a reasonable accommodation in particular circumstances, and mandated the use of an accommodation checklist and additional ADA training for specific employees. (EEOC.SA.11-15; see also R.213.2-5)

The district court agreed with Walmart that “there is little risk that similar violations will occur in the future because Scheuerell is no longer with Walmart and there is no evidence that anyone in leadership at the Beloit store (including Repka, who still remains employed with Walmart) harbors any type of discriminatory animus against persons with disabilities.” (EEOC.SA.13) The court also noted that “the actions complained of in this lawsuit occurred more than four years ago and there have been no similar ADA claims filed in this court since that time.” (EEOC.SA.13)

Turning to the specific relief the EEOC sought, the district court held that the EEOC’s request for an order barring Walmart from violating the ADA in specified ways, such as by unlawfully denying individuals with developmental or cognitive disabilities reasonable accommodations, simply sought to have Walmart “obey the law” and had no geographical limitations. (EEOC.SA.14) “These type of requests” the court said, “are generally disfavored as being overly broad and vague.” (EEOC.SA.14) The court did not, however, evaluate whether that “general[]” rule applied to the facts of this particular case.

The district court also denied the EEOC’s request that the court order Walmart to “consider” providing individuals with developmental or cognitive disabilities a job coach as a reasonable accommodation “where needed” to permit such individuals to perform the essential functions of their jobs, “where it does not impose an undue hardship.” (EEOC.SA.12) Apparently construing the provision to require Walmart to consider a job coach for all individuals with developmental or cognitive disabilities, the district court concluded that it would inappropriately fail to take account of “an employee’s specific circumstances.” (EEOC.SA.14)

The court also rejected the proposed checklist and training requirements. The court stated, “Walmart has policies and procedures regarding disability discrimination and accommodations, operates a separate department devoted to accommodation requests, and provides management training.” (EEOC.SA.14) “Although two individual managers in this case did not follow Walmart’s procedures,” the court said, “there is no evidence of widespread neglect or a pattern and practice of Walmart managers failing to follow the company’s internal procedures.” (EEOC.SA.14-15)

SUMMARY OF ARGUMENT

Paul Reina successfully worked for Walmart as a cart attendant for sixteen-and-a-half years with the accommodation of a Medicaid-paid job coach, who acted as Reina’s eyes and ears in the parking lot. Walmart abruptly suspended him, required him to submit a new accommodation request, sat on his request for eight months, and then said it did not want him to return. After a four-day trial, a jury found that Walmart unlawfully denied Reina a reasonable accommodation and ended his employment because of his disabilities. Walmart’s attacks on the jury’s verdict are without merit.

First, Walmart is wrong that a permanent, full-time job coach is per se an unreasonable accommodation. Under the statute, regulations, this Court’s case law, and EEOC guidance, whether such an assistant is a reasonable accommodation depends on the specific facts—here, the facts bearing on whether Reina’s job coach, rather than Reina, had to perform some of the job’s essential functions.

Second, the jury reasonably disagreed with Walmart’s contention that Reina could not perform all “essential functions” of his job with reasonable accommodation. At bottom, Walmart’s argument is based on an inaccurate description of the evidence that omits virtually all of the facts that are favorable to the EEOC. Walmart falsely claims that disputed facts were “undisputed” and ignores the jury’s role in assessing credibility and weighing the evidence, including evidence that Reina successfully served as a cart attendant for sixteen-and-a-half years. The jury could reasonably conclude that two of the functions Walmart focuses on—managing motorized shopping carts and answering customer questions—were marginal and infrequent functions that could easily be performed by other employees. Sufficient evidence also supported the conclusion that Reina could perform the third function at issue—steering traditional shopping carts—with the reasonable accommodation of a job coach acting as his eyes and ears, and that, in any event, steering itself is not an essential function but simply one means of avoiding hazards in the parking lot.

Third, the district court did not abuse its discretion by following the default rule of trying liability and damages together. The court reasonably determined that witnesses and evidence regarding liability and damages would substantially overlap, and that the efficiency of trying liability and damages together outweighed any potential prejudice to Walmart. The court specifically warned the jury not to be swayed by emotions, a consideration that further supports upholding the court’s denial of bifurcation.

Fourth, Walmart’s contention that the EEOC’s legal theory was novel provides no basis for upsetting the jury’s finding that Walmart acted with the mental state required for an award of punitive damages—malice or reckless indifference to Reina’s ADA rights. The relevant question is whether Walmart’s decisionmakers in fact acted with malice or reckless indifference. Even if the EEOC had relied on a novel theory of liability, Walmart points to no evidence that the decisionmakers believed that the law permitted their actions, much less any evidence that would compel a jury to rule for Walmart on this issue and discount all other contrary evidence in the record, none of which Walmart even mentions. In any event, Walmart is incorrect that the EEOC’s theory was novel. The EEOC alleged that Walmart violated the ADA by failing to provide a reasonable accommodation and ending Reina’s employment because of his disabilities. These are well-established causes of action. That the accommodation at issue was a permanent, full-time job coach does not render the EEOC’s theory novel, as the reasonableness of that accommodation is a fact-specific question.

This Court should affirm the district court’s judgment in all respects save one: it should vacate the denial of the EEOC’s request for injunctive relief. In denying that relief, the district court applied incorrect legal standards, evaluating whether Walmart had engaged in a pattern or practice of discrimination and whether current employees harbor any discriminatory animus. The court instead should have examined whether the accommodation-related violations could possibly persist in the future, and there is substantial evidentiary support for an affirmative answer to that question. The court also abused its discretion in evaluating the particular relief the EEOC sought, including by failing to determine whether the EEOC’s requested “obey the law” injunction was sufficiently tailored to Walmart’s violations.

STANDARD OF REVIEW

This Court reviews the denial of a motion for judgment of a matter of law de novo, but with deference to the jury’s interpretation of the facts. Hall v. Gary Cmty. Sch. Corp., 298 F.3d 672, 675 (7th Cir. 2002). Once a jury has ruled against it, the movant “assumes a herculean burden” of showing that “no rational jury could have found for [the nonmovant], even when viewing the evidence in the light most favorable to the nonmovant.” Gile v. United Airlines, Inc., 213 F.3d 365, 372 (7th Cir. 2000). The Court is “particularly careful in employment discrimination cases to avoid supplanting [its] view of the credibility or weight of the evidence for that of both the jury (in its verdict) and the judge (in not interfering with the verdict).” Emmel v. Coca-Cola Bottling Co. of Chi., 95 F.3d 627, 630 (7th Cir. 1996).

Denial of a motion for a new trial is reviewed for “clear abuse of discretion.” Id. at 636. This “extremely deferential” standard permits reversal “only when the record shows that the jury’s verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks [the Court’s] conscience.” Whitehead v. Bond, 680 F.3d 919, 928, 929 (7th Cir. 2012) (citations omitted). A district court may set aside a jury’s verdict as against the “manifest weight of the evidence” only if “no rational jury could have rendered the verdict.” Id. at 928. The district court “cannot grant a new trial just because it believes the jury got it wrong.” Id.

Where, as here, a defendant seeks to set aside an award of punitive damages under Federal Rules of Civil Procedure 50 and 59, the foregoing standards apply. See, e.g., EEOC v. AutoZone, Inc., 707 F.3d 824, 834-35 (7th Cir. 2013) (Rule 50); Emmel, 95 F.3d at 636 (Rule 59). To the extent that Walmart suggests otherwise, it is incorrect, and its citation of authority does not support its assertion. (See Opening Br. 17 (citing EEOC v. Flambeau, Inc., 846 F.3d 941, 947-48 (7th Cir. 2017)))

This Court reviews the refusal to bifurcate a trial for “clear” abuse of discretion. Houseman v. U.S. Aviation Underwriters, 171 F.3d 1117, 1121 (7th Cir. 1999). Review is deferential because “the district court is in a far better position to assess and attempt to reconcile the competing interests of each party, judicial economy, and unfair prejudice.” Id. at 1128.

The Court reviews the denial of an injunction for abuse of discretion. EEOC v. Gurnee Inn Corp., 914 F.2d 815, 817 (7th Cir. 1990). This standard permits reversal if the court committed legal error or assessed the evidence in a clearly erroneous manner. Chavez v. Ill. State Police, 251 F.3d 612, 628-29 (7th Cir. 2001).

ARGUMENT [3]

I. This Court should affirm the final judgment in favor of the EEOC.

Congress enacted the ADA for the express purpose of “provid[ing] a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). To that end, the ADA prohibits employers from discriminating on the basis of disability against “qualified” individuals, defined as individuals who can perform the “essential functions” of a job with or without “reasonable accommodation.” Id. §§ 12112(a), 12111(8). An employer engages in proscribed “discrimination” by, inter alia, failing to provide “reasonable” accommodations to “otherwise qualified individual[s]” in the absence of undue hardship. Id. § 12112(b)(5)(A).

Reasonable accommodations are modifications to the work environment or to the way in which things are customarily done. See id. § 12111(9); 29 C.F.R. § 1630.2(o). Employers need not reallocate essential job functions as a reasonable accommodation, Majors v. Gen. Elec. Co., 714 F.3d 527, 534 (7th Cir. 2013), but they may have to reallocate marginal ones, Kauffman v. Petersen Health Care VII, LLC, 769 F.3d 958, 963 (7th Cir. 2014).

Here, the jury found that Walmart violated the ADA by not allowing Reina to continue working with a permanent job coach as a reasonable accommodation. For the following reasons, Walmart’s attacks on the jury’s verdict and resulting district court judgment are without merit.

A. The district court correctly rejected Walmart’s contention that a permanent, full-time job coach is, per se, an unreasonable accommodation.

Walmart argues that a permanent, full-time job coach is per se unreasonable, even though this Court has explained that “[t]he reasonableness of a requested accommodation is a question of fact.” Haschmann v. Time Warner Ent. Co., 151 F.3d 591, 601 (7th Cir. 1998). According to Walmart, such an accommodation is always unreasonable, even when someone else is paying, even when the job coach refrains from performing any essential functions of the position, and regardless of the type and amount of assistance the job coach provides.[4] (Opening Br. 35-40) This is not the law.

1. A permanent, full-time personal assistant can be a reasonable accommodation.

There is no per se rule that an accommodation is unreasonable merely because it takes the form of another person permanently assisting the individual with a disability—especially where, as here, the employer does not pay the other person. To the contrary, the ADA expressly contemplates the use of personal assistants, listing “the provision of qualified readers or interpreters, and other similar accommodations” as potential reasonable accommodations. 42 U.S.C. § 12111(9). Another type of “personal assistant” who may sometimes be reasonable is “a page turner for an employee with no hands.” EEOC Interpretive Guidance on Title I of the ADA, 29 C.F.R. pt. 1630, app. § 1630.2(o).[5] The statute does not specify that personal assistants must be temporary or part-time to be deemed reasonable, and it provides no basis for treating “job coaches” differently from any other personal assistant.

As the EEOC’s interpretive guidance explains, “[w]hether a particular form of assistance would be required as a reasonable accommodation must be determined on an individualized, case by case basis.” Id. § 1630.9. Thus, “providing” a “temporary” job coach to assist with training is one “example” of a reasonable accommodation. Id. (not addressing whether a permanent job coach might be reasonable). An employer “also may be required to allow a job coach paid by a public or private social service agency to accompany the employee at the job site as a reasonable accommodation”—precisely the accommodation at issue here. EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, 1997 WL 34622315, at *13 (Mar. 25, 1997) (emphasis added). The EEOC’s enforcement guidance does not specify that an employer must “allow” a job coach only on a temporary basis.[6] (SA.48, 50; App.270-71 (district court’s discussions of guidance))

As with other accommodations, whether a permanent job coach or other personal assistant is “reasonable” turns on the application of the law to the facts of each case. Thus, the first question is whether the proposed accommodation would be reasonable “ordinarily or in the run of cases.” US Airways, Inc. v. Barnett, 535 U.S. 391, 402 (2002) (favorably citing decisions examining whether an accommodation is feasible or plausible); EEOC v. United Airlines, Inc., 693 F.3d 760, 762 (7th Cir. 2012).[7] Under this Court’s precedent, this question may involve a cost/benefit analysis. Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 542-43 (7th Cir. 1995). Even when an accommodation would not ordinarily be reasonable, fact-specific circumstances may render it reasonable in a given case. See Barnett, 535 U.S. at 394 (even though it is normally not a reasonable accommodation to reassign an employee in violation of a seniority system, it might be reasonable under “special circumstances”); EEOC v. United Airlines, 693 F.3d at 763 (Barnett “was careful to point out that it was not creating a per se exception for seniority systems”). The fact that Medicaid—not Walmart—paid for Reina’s job coach could be significant in evaluating reasonableness at both potential stages of the inquiry. (App.100; EEOC.App.13)

As the district court recognized (SA.18-19, 51; App.270-71), this Court has consistently analyzed whether a permanent assistant is a reasonable accommodation on a fact-specific basis. In Majors v. General Electric Co., for instance, heavy lifting was an essential function of the job. The only accommodation the employee proposed was to have a material handler lift heavy objects for her. This Court held, “To have another employee perform a position’s essential function, and to a certain extent perform the job for the employee, is not a reasonable accommodation.” 714 F.3d at 534. The Court said the same in Peters v. City of Mauston, 311 F.3d 835 (7th Cir. 2002), where the employee requested that someone else do the essential function of heavy lifting for him. Id. at 845. The question is always whether, under the particular facts, the assistant would perform an essential function of the job. See Hansen v. Henderson, 233 F.3d 521, 523-24 (7th Cir. 2000); Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1022 (7th Cir. 1997); Cochrum v. Old Ben Coal Co., 102 F.3d 908, 912 (7th Cir. 1996).

Other circuits likewise evaluate the reasonableness of a permanent assistant on a fact-specific basis. See, e.g., Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 950 (8th Cir. 1999); Martinson v. Kinney Shoe Corp., 104 F.3d 683, 687 (4th Cir. 1997); Gilbert v. Frank, 949 F.2d 637, 644 (2d Cir. 1991). In Borkowski v. Valley Central School District, 63 F.3d 131 (2d Cir. 1995),[8] which Walmart does not cite, the Second Circuit recognized the possibility that a permanent aide might be a reasonable accommodation for a library teacher whose disabilities made it difficult for her to manage her students. Vacating an award of summary judgment for the school district, the court noted there was a factual question regarding whether classroom management was an essential function of a library teacher’s job. The court held that a permanent aide could be a reasonable accommodation if either (1) classroom management was not an essential function of the library teacher position; or (2) classroom management was an essential function, but the aide would allow the plaintiff, herself, to perform that function. Id. at 140-42.

Thus, neither this nor any other circuit court has adopted the per se rule that Walmart seeks.

2. Walmart’s arguments to the contrary are unpersuasive.

Walmart implicitly acknowledges that employers may have to provide permanent, full-time readers or interpreters to individuals with vision or hearing impairments, but suggests—without any support—that “readers and interpreters are a special category of accommodation.” (Opening Br. 40) To the contrary, the ADA defines “reasonable accommodation” as including “the provision of qualified readers or interpreters, and other similar accommodations.” 42 U.S.C. § 12111(9)(B) (emphasis added). Thus, the statute makes clear that readers and interpreters are not unique.

Walmart also argues that “[a] full-time job coach puts the employer in the position of hiring one employee to do one job, and then having to have two people on each shift.” (Opening Br. 38) Having two people, Walmart reasons, violates the ADA’s intent to allow people with disabilities “the opportunity to compete on an equal basis.” Id. But this is nonsensical. A key purpose of the statute is to correct the inequality of requiring a deaf and legally blind employee to compete unassisted with people who can hear and see. Moreover, Walmart’s argument would preclude readers and interpreters, reasonable accommodations that the ADA specifically authorizes. 42 U.S.C. § 12111(9).

Walmart argues, misleadingly, that the EEOC’s own guidance recognizes “job coaches” as only temporary accommodations. (Opening Br. 38) This argument fails for the reasons discussed above on pages 27-28. Moreover, it is disingenuous for Walmart to focus narrowly on language about “job coaches,” rather than on the broader question whether personal assistants can be reasonable. In 1999, Walmart itself envisioned that Reina would work with a permanent, full-time assistant, whom it called an “aide,” not a “job coach.” (EEOC.App.99) Whether that person is a reasonable accommodation depends not on the label, but on whether the assistant performed the essential functions of Reina’s job.

Walmart also relies on a handful of non-binding district court decisions rejecting permanent, full-time job coaches as a matter of law. (Opening Br. 38-40 (citing Kleiber v. Honda of Am. Mfg., Inc., 420 F. Supp. 2d 809 (S.D. Ohio 2006); EEOC v. Dollar Gen. Corp., 252 F. Supp. 2d 277, 291-92 (M.D.N.C. 2003); EEOC v. Hertz Corp., No. 96-72421,

1998 WL 5694, at *5 (E.D. Mich. Jan. 6, 1998))) As the district court correctly observed (SA.50), these cases cannot overcome the statutory and regulatory analysis above, or the overwhelming and consistent appellate authority to the contrary. Moreover, Walmart does not mention that one of those decisions—Kleiber—was appealed to the Sixth Circuit. The Sixth Circuit affirmed on other grounds but, in dicta, considered the plaintiff’s request for a job transfer and a permanent job coach to assist him in the new job. The court observed, “The ADA countenances such a request for an ‘accommodation within an accommodation.’” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 870 & n.3 (6th Cir. 2007).

Finally, Walmart argues that this Court should adopt a per se rule regarding permanent job coaches because it has deemed long-term medical leave to be an unreasonable accommodation as a matter of law. (Opening Br. 37) In so holding, this Court reasoned that “[a]n employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.” Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 479 (7th Cir. 2017). This is a different situation from an individual who can work, like Reina. Significantly, Walmart points to no other example where this Court has held that a particular accommodation is categorically unreasonable. See Solomon v. Vilsack, 763 F.3d 1, 10 (D.C. Cir. 2014) (“[I]t is rare that any particular type of accommodation will be categorically unreasonable as a matter of law.”).

B. The jury reasonably found that Reina could perform all essential functions of his position with reasonable accommodation.

Walmart also contends that it is entitled to judgment as a matter of law or a new trial because no rational jury could have found—as the jury found here—that Reina was “qualified” within the meaning of the ADA, 42 U.S.C. § 12111(8). According to Walmart, the evidence was so one-sided that reasonable jurors could only have determined that, even with a reasonable accommodation, Reina was incapable of performing three assertedly “essential” job functions: steering traditional shopping carts; managing motorized carts; and answering customer questions. (Opening Br. 18-35) The district court properly rejected Walmart’s contention, holding that it was reasonable for the jury to conclude that not all of the functions were essential, and that Reina could perform all of the functions that were essential with a reasonable accommodation. (SA.8, 9-11, 20)

A job function is “essential” if it is “fundamental”—for instance if “the reason the position exists is to perform the function” or there are a “limited number of employees available among whom the performance of th[e] job function can be distributed.”

29 C.F.R. § 1630.2(n)(1)-(2); Shell v. Smith, 789 F.3d 715, 717 (7th Cir. 2015). Evidence of whether a function is essential includes the “amount of time spent on the job performing the function” and the “consequences of not requiring the [employee] to perform the function.” 29 C.F.R. § 1630.2(n)(3). Although factfinders should “consider[]” the employer’s judgment regarding which job functions are essential, including judgments reflected in any preexisting job description, 42 U.S.C. § 12111(8);

29 C.F.R. § 1630.2(n)(3), it is well settled that courts are not required to “defer” to the employer’s view, contrary to Walmart’s assertions (Opening Br. 14, 21). Conners v. Wilkie, 984 F.3d 1255, 1261-62 (7th Cir. 2021); Tonyan v. Dunham’s Athleisure Corp.,

966 F.3d 681, 687-88 (7th Cir. 2020); Shell, 789 F.3d at 718. The district court instructed the jury—without objection by Walmart—in accordance with these standards. (R.208 at 79-80)

In assessing Walmart’s arguments, it is significant that Walmart allowed Reina to work as a cart attendant with a permanent job coach for sixteen-and-a-half years and gave him uniformly positive performance evaluations during that time. (App.51-52) An employer’s “actual practice[]” of not requiring an employee to perform a particular job function—while not dispositive—can “suggest” that the function is not essential. Shell, 789 F.3d at 718-21 (factual issue whether driving a bus was essential function where, inter alia, plaintiff held the job for twelve years without ever driving one); see also Kotaska v. Fed. Express Corp., 966 F.3d 624, 632 (7th Cir. 2020) (“A factfinder can reasonably infer that a job function is not essential if an employee who cannot perform the function nevertheless succeeded at the job for a long period.”). Actual practice is especially persuasive where, as here, the employer knew from the outset that the employee could not perform every stated function of the job. See Shell, 789 F.3d at 721. Thus, Reina’s sixteen-and-a-half years are not “legally irrelevant,” as Walmart claims. (Opening Br. 27)

The district court properly concluded that, under these standards and on this record, the jury reasonably found that Reina was qualified.

1. Steering Traditional Carts

Walmart does not dispute that, with the accommodation of a job coach, Reina was capable of successfully retrieving, organizing, and managing traditional shopping carts. Walmart nonetheless argues that “steering” is an essential function of being a cart attendant, and that Reina could not perform this function even with reasonable accommodation. Walmart is wrong on both counts. Thus, this Court may affirm the district court’s ruling regarding steering on either of two independent grounds.

a. The jury reasonably could have found that Reina, himself, could steer with a reasonable accommodation.

1. Assuming arguendo that steering was an essential function of Reina’s position, the relevant question under the ADA is whether Reina was capable of steering with reasonable accommodation, not whether his job coaches sometimes, or even often, steered for him. See 42 U.S.C. § 12111(8) (someone who “can perform” the essential functions of a position, with or without reasonable accommodation, is “qualified individual”). A reasonable jury could find that, so long as his job coach alerted him to oncoming hazards by walking alongside him, signing, or gesturing, Reina could steer. (SA.9)

Coppernoll, one of Reina’s job coaches, recounted an instance when Reina “independently” pushed a line of carts while Coppernoll operated the motorized cart caddy alongside him. (App.58-59; R. 202 at 83) Coppernoll explained that Reina “had complete control” over his carts and that he (Coppernoll) had no “physical role in steering the train of carts [Reina] was pushing.” (EEOC.App.22) Polizzi, another job coach who worked with Reina, testified that sometimes Reina would independently collect carts on one side of the aisle while she pushed carts on the other. (App.20) Walmart dismisses this evidence as showing only that Reina could push carts in a straight line (Opening Br. 25-26), but the district court properly recognized that a jury could reasonably interpret the evidence differently. (SA.9)

Moreover, Reina’s job coaches sometimes used signs and gestures to help him avoid traffic and other hazards in the parking lot. (App.16, 97-98) Slaght, Reina’s foster mother and occasional job coach, sometimes alerted Reina to oncoming hazards by holding up her hand or by signing “car.” (App.97-98) She also helped him steer by signing “stop,” “go,” “right,” or “left.” Id. Polizzi explained that Reina “was able to do the job with very minimal intervention from me, no hand or anything like that. I could gesture and sign to him . . . .” (App.16)

Polizzi and Coppernoll both testified that they would have followed Walmart’s directions, had Walmart given them any. (EEOC.App.10-11, 15) Thus, if Walmart had told them not to touch the carts, they would have helped Reina steer exclusively by walking next to him, signing, and/or gesturing. An assistant manager stated that she never asked Reina to change how he worked because she did not believe he was capable of understanding. (EEOC.App.73-74) This is a textbook example of discrimination. See EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 804-05 (7th Cir. 2005) (ADA “obligates an employer to engage in the interactive process precisely for the purpose of allowing both parties to act upon information instead of assumptions”).

As the district court held, the foregoing evidence is sufficient for the jury to conclude that Reina was capable of steering with reasonable accommodation—“a job coach [to keep] him focused or act[] as his eyes and ears to avoid hazards.” (SA.10)

2. In addition, a reasonable jury could find that even when Reina’s job coach physically pointed a line of carts in the proper direction, it was Reina, not the job coach, who was performing the function of steering. Polizzi testified that she used a single finger to direct the carts (EEOC.App.11; App.38-39), and Coppernoll emphasized that his steering work was “easy” and not “strenuous,” (App.54-55). Given the minimal nature of their assistance, the jury could have reasonably found that the job coaches were again simply providing a reasonable accommodation of serving as Reina’s “eyes and ears.”

The jury could reach this conclusion even though Coppernoll testified that it was “necessary” for him to steer the lines of carts as Reina pushed them. (App.71) Walmart takes that testimony out of context. (Opening Br. 24) Immediately following the exchange upon which Walmart relies, Coppernoll clarified that Reina “could steer the carts himself, but he couldn’t see oncoming hazards.” (App.72 (emphasis added)) He also said, “If [Reina’s] way in the rear . . . and I’m in front, I couldn’t very well touch him [as a mode of communication].” (App.71) Thus, a jury could reasonably conclude that the statement on which Walmart relies pertained only to situations in which Coppernoll was at the front of a line of carts. As discussed above, Coppernoll also testified that Reina steered a line of carts without any physical assistance when he and Reina worked in parallel. See supra p.5. A reasonable jury was not required to interpret Coppernoll’s testimony—or to weigh the remaining evidence—in the manner Walmart prefers.

3. Walmart makes one final argument: that having a job coach act as Reina’s “eyes and ears” meant that the job coach, not Reina, was the person avoiding hazards in the parking lot. (Opening Br. 26-27) By that logic, a “qualified reader”—an accommodation specifically mentioned in the ADA, 42 U.S.C. § 12111(9)(B)—would be the person performing an essential function as well. The Second Circuit has expressly rejected this proposition, noting that “[w]hat matters to that individual’s job is not the ability to read per se, but rather the ability to take in, process, and act on information.” Borkowski, 63 F.3d at 141. Like an employee using a qualified reader, Reina could “take in, process, and act on information” provided by his job coach. In that manner, Reina was the person avoiding hazards in the parking lot. See id.; see also Searls v. Johns Hopkins Hosp., 158 F. Supp. 3d 427, 437 (D. Md. 2016) (nurse who sought to use sign language interpreter to “hear” patients would perform essential function of communication by applying her own medical expertise when responding).

b. The jury reasonably could have found that physically steering carts was one way of avoiding hazards in the parking lot, but was not an essential function in and of itself.

The jury had an independent basis for rejecting Walmart’s contention that Reina was unqualified because of asserted deficiencies in his ability to steer traditional shopping carts. As the district court properly held, the jury reasonably could have concluded that “steering a line of carts is not in itself an essential function of Reina’s job, but rather one method by which Reina could perform the essential function of cart retrieval.” (SA.9)

Walmart claims that steering was an essential function because cart attendants must avoid hazards in the parking lot. (Opening Br. 25-26) However, the “essential function requirement focuses on the desired result rather than the means of accomplishing it.” Skerski v. Time Warner Cable Co., 257 F.3d 273, 280 (3d Cir. 2001) (quoting 136 Cong. Rec. 11,451 (1990)); see also Keith v. Cnty. of Oakland, 703 F.3d 918 (6th Cir. 2013) (essential function was effective communication—not hearing and speaking); Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 914-15 (10th Cir. 2004) (walking was not essential function when golf cart could be used instead); see generally EEOC, A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act, ch. 2, §§ 2.3(a)(3)(b), 2.3(b) (Jan. 1, 1992), https://www.eeoc.gov/laws/guidance/technical-assistance-manual-employment-provisions-title-i-americans-disabilities-act. A reasonable jury could find that there were alternative ways to bring the carts safely back to the bay.

One method by which a cart attendant may transport a line of carts in Walmart’s parking lot is by pushing and steering them himself. However, Walmart allows cart attendants to use a mechanical cart caddy instead. (EEOC.App.20, 73) Walmart offers no reason why cart attendants may steer with the assistance of a machine, but not with the assistance of a job coach. A reasonable jury could find that there is no meaningful distinction between these two methods. As the district court said when finalizing the jury instructions, “As long as you can get them back to the barn, you’re fine. You could use supernatural powers and levitate them to the barn and I’m sure Walmart would have no objection to that.” (EEOC.App.97)

2. Retrieving Motorized Carts

The district court properly held that a reasonable jury could find that retrieving motorized carts was “a marginal, infrequent function [of a cart attendant’s job that] could be performed by someone else when necessary.” (SA.8) This Court has held that a job function is not essential “if it [is] so small a part [of a job] that it c[an] be reassigned to other employees at a negligible cost to the employer.” Kauffman, 769 F.3d at 962; see also Shell, 789 F.3d at 719 (not essential for mechanic’s helper to drive bus because, inter alia, reassignment would not burden employer).[9] Although the factfinder should consider an employer’s job description in determining whether a function is essential, relevant factors also include the infrequency with which a task is done, the number of employees available to perform the function, and the consequences of excusing one individual from performing the task. 29 C.F.R. § 1630.2(n)(2)(ii), (3)(i)-(iv). The district court instructed the jury accordingly. (R.208 at 79-80)

Here, evidence showed that customers who used motorized carts almost always returned them to the building by themselves; such carts were abandoned in the parking lot only once or twice a month. (App.53) After the first two hours of Reina’s work day, when he was the only cart attendant on duty (App.19, 58), there were other cart attendants who could bring the motorized carts back to the building. There is no evidence that this short delay was a problem. As in Kauffman and Shell, the jury could have reasonably found that managing motorized carts was a marginal function because it occupied a small amount of time and could easily be reassigned to another employee.

Walmart is mistaken that there is no material distinction between the facts of this case and the facts of Kotaska, 966 F.3d 624, and Vargas v. DeJoy, 980 F.3d 1184 (7th Cir. 2020). (Opening Br. 30-31) In Kotaska, the “core function” of a package handler’s job was “to lift packages weighing up to 75 pounds independently.” 966 F.3d at 631. The plaintiff, who could not lift more than fifteen pounds overhead, “was the only handler at the Cary facility.” Id. (emphasis added). Thus, if she did not lift packages, no one would. In Vargas, the plaintiff was a mail carrier who could not carry heavy loads and packages. If he did not carry heavy loads, the mail would not get delivered. 980 F.3d at 1189. By contrast, the consequence of excusing Reina from retrieving motorized carts would be, at most, a two-hour delay in retrieving motorized carts once or twice a month.

3. Answering Customer Questions

Walmart next contends that Reina was not qualified for his job because he could not perform the assertedly “essential function” of answering “basic customer service questions.” (Opening Br. 32-35) The district court properly held that the jury could reasonably find that “answering customer[s’] questions was a non-essential or marginal function of Reina’s job” that “could be performed by another employee if necessary.” (SA.11)

Walmart’s job descriptions included the same boilerplate customer-service elements for every employee. (EEOC.App.68) Thus, everyone was tasked with “provid[ing] customer service by acknowledging the customer, identifying customer needs, assisting with purchasing decisions, locating merchandise, resolving customer issues and concerns, and promoting products and services.” (App.242) In denying Walmart’s Rule 50(a) motion, the district court noted, “[S]ome of those functions and capabilities of the cart pusher are so generic that there’s no way you can reasonably think that promoting Walmart products and services is actually an essential function of the cart pusher [job] . . . . I don’t think anybody could reasonably think that literally every element in there is an essential function of the job.” (EEOC.App.84)

A reasonable jury could agree and conclude that not every element was essential for every employee. Relying on its common sense, United States v. Friedman, 971 F.3d 700, 714 (7th Cir. 2020), the jury could find that an employee such as Reina, who worked outside the store, could hardly be expected to help locate merchandise or promote products and services. Supporting this conclusion, Polizzi testified that when customers asked for something in the parking lot, they typically wanted a cart to lean on as they walked into the store. Reina successfully pointed them in the right direction. (App.37) No one ever asked Reina for assistance purchasing something (App.111-12), and Polizzi never saw a cart attendant give such assistance. (EEOC.App.6) Customers with product-related questions asked the “greeter” at the front door, whose primary function was to answer such inquiries. (EEOC.App.6, 53-54, 82)

Reina provided customer service in other manners. His performance evaluations praised him for being “friendly” and “courteous.” (Pl. Ex. 17 (2014); Pl. Ex. 14 (2011)) He regularly helped people load purchases into their cars, and he collected empty carts from elderly customers so they would not have to walk back to the bay to return them. (App.43, 76, 109; EEOC.App.5) Customers told Polizzi that seeing Reina work made them feel proud of Walmart. (EEOC.App.4) A reasonable jury could conclude that Reina did carry out all of the customer-service functions that were essential to a cart attendant’s job. See, e.g., Kauffman, 769 F.3d at 962. Based on his performance evaluations, it would appear that Walmart agreed. (See Pl. Ex. 17 (2014) (“Paul knows his expectations and does his job well.”))

C. The district court acted within its discretion in trying liability and damages together.

The default rule is that liability and damages are tried together. A district court “may” bifurcate a trial “[f]or convenience, to avoid prejudice, or to expedite and economize.” Fed. R. Civ. P. 42(b). However, the EEOC is unaware of any case in which this Court has reversed a district court’s refusal to bifurcate.

The district court did not clearly abuse its discretion here by concluding that “the efficiency of trying liability and damages together outweighed any potential prejudice to Walmart.” (SA.22-23) The court reasonably determined that the same witnesses would be testifying regarding liability and damages, and some of the evidence—for instance, Walmart’s failure to follow its own reasonable accommodation policies—was relevant to both issues. (App.264, 266-67) Walmart does not dispute the existence of this overlap, which amply supports the district court’s decision not to bifurcate. See Houskins v. Sheahan, 549 F.3d 480, 495-96 (7th Cir. 2008) (not abuse of discretion to deny motion to sever, in part because of the “overlap in the facts, evidence, and witnesses required” for claims against both defendants); Berry v. Deloney, 28 F.3d 604, 609-10 (7th Cir. 1994) (not abuse of discretion to deny request to bifurcate liability and damages proceedings, in part because same witnesses would testify for both issues); see also McLaughlin v. State Farm Mut. Auto. Ins. Co., 30 F.3d 861, 871 (7th Cir. 1994) (not abuse of discretion to deny bifurcation; where evidence “overlaps substantially, the normal procedure is to try compensatory and punitive damage claims together with appropriate instructions”).

Citing a total of six pages of testimony by two witnesses, Walmart argues that it was prejudiced by “substantial” evidence of the emotional impact of Walmart’s actions on Reina.[10] (Opening Br. 42) The district court correctly observed that Walmart’s argument “would require the court to bifurcate any case involving a plaintiff with substantial damages[,] [but] Walmart cites no authority for such a far-reaching conclusion.” (SA.23) Walmart baldly asserts that this is “neither an ordinary case nor an ordinary employee” (Opening Br. 44), but identifies no reason for treating this case differently from any other case involving evidence of substantial damages, much less for concluding that the district court’s contrary conclusion was a clear abuse of discretion.

In any event, the district court specifically warned the jury not to be swayed by emotions, a consideration that supports upholding the court’s denial of bifurcation. See Houskins, 549 F.3d at 496 (upholding denial of motion to sever, in part because of jury instruction to consider each defendant separately); McLaughlin, 30 F.3d at 871 (upholding refusal to bifurcate compensatory and punitive damages claims based, in part, on instructions regarding differing standards); Berry, 28 F.3d at 609-10 (upholding refusal to bifurcate liability and damages proceedings based, in part, on instruction for jury to consider certain evidence only in connection with damages). Specifically, the district court instructed the jury, “You should not concern yourselves with whether Walmart’s actions were wise, reasonable, or fair. Rather, your concern is only whether the EEOC has proved that Walmart violated the ADA.” (R.208 at 78) This Court must presume that the jury followed its instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000).

Contrary to Walmart’s unsupported speculation, the jury’s large punitive damages award does not indicate that the jury relied on emotion rather than facts in finding Walmart liable. (Opening Br. 43) The district court instructed the jury that “the purposes of punitive damages are to punish a defendant for its conduct and to serve as a warning to the defendant and others not to engage in similar conduct in the future.” (R.208 at 85) The court also instructed the jury, “Do not add to the damage award or subtract anything from it because of sympathy to one side or because of hostility to one side.” (R.208 at 84) Presuming, as it must, that the jury followed these instructions, this Court must conclude that the jury awarded $5,000,000 in punitive damages because it believed that this amount was appropriate under the governing legal standards, and that sympathy for Reina played no role in the calculation. (R.208 at 85)

In short, the jury found Walmart liable based on its assessment of conflicting evidence and witness credibility. The district court did not clearly abuse its discretion by concluding that bifurcation would not have made a difference.

Finally, Walmart argues that the district court improperly denied it judgment as a matter of law or a new trial with respect to punitive damages. According to Walmart, the question whether a full-time job coach can ever be a “reasonable” accommodation is unsettled, and the EEOC’s theory of liability was therefore novel. It follows, Walmart says, that the company necessarily did not act with malice or reckless indifference to Reina’s ADA rights, the mental state required for an award of punitive damages. (Opening Br. 45-46) Under Walmart’s theory, uncertainty in the law precludes a finding of malice or reckless indifference, even if other types of evidence support such a finding, and even if such uncertainty played no role whatsoever in an employer’s challenged decisions. As explained below, that is not the law and, in any event, the EEOC’s theory was not novel. This Court may thus affirm the district court’s ruling regarding punitive damages on multiple independent grounds.

1. Employers may be liable for punitive damages under the ADA if they act with “malice or . . . reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1). What matters is “the employer’s knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination.” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535 (1999). “The terms ‘malice’ and ‘reckless’ ultimately focus on the actor’s state of mind.” Id.; see also Flambeau, 846 F.3d at 947.

Sometimes, even when an employer discriminates, the relevant actors do not act with malice or reckless indifference to the employee’s federally protected rights. “In some instances,” the Supreme Court has explained, “the employer may simply be unaware of the relevant federal prohibition. There will be cases, moreover, in which the employer discriminates with the distinct belief that its discrimination is lawful. The underlying theory of discrimination may be novel or otherwise poorly recognized, or an employer may reasonably believe that its discrimination satisfies a bona fide occupational qualification defense or other statutory exception to liability.” Kolstad, 527 U.S. at 536-37.

Walmart misreads Kolstad to provide a free-standing defense to punitive damages whenever a plaintiff’s theory of discrimination is novel. (Opening Br. 44-45) This interpretation ignores Kolstad’s focus on an employer’s subjective “belief.” Kolstad, 527 U.S. at 537; see also id. at 535-36 (explaining that the inquiry centers on the relevant actor’s “state of mind” or “mental state” and describing the pertinent standard as a “subjective” one). Employers discriminate through individuals, and it is the decisionmaker’s belief that is relevant. Cf. Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1932-33 (2016) (rejecting “objective recklessness” standard for enhanced damages in patent-infringement context and citing Kolstad and other authorities for the proposition that “[c]ulpability is generally measured against the knowledge of the actor at the time of the challenged conduct”); AutoZone, 707 F.3d at 835 (plaintiff must show malice or reckless indifference by “the relevant individuals”); EEOC v. Ind. Bell Tel. Co., 256 F.3d 516, 528 (7th Cir. 2001) (en banc) (evidence showing “why the defendant acted as it did” is relevant to “malice” or “reckless indifference” (emphasis added)).

The novelty of an underlying legal theory is one reason a decisionmaker may subjectively believe that his discrimination is lawful. Kolstad, 527 U.S. at 537. But even if a legal theory is novel, an employer can still act with malice or reckless indifference to an employee’s rights if the novelty of the theory is not the actual basis for the decisionmaker’s action. See Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1198 (9th Cir. 2002) (“[I]f the plaintiff relied upon a novel theory of discrimination, the evidence might not support a conclusion that the defendant acted with the awareness that it might violate the law.” (emphasis added)); EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 468 (5th Cir. 2013) (en banc) (“[P]unitive damages may not be appropriate where the underlying theory of discrimination is novel.” (emphasis added)).

Here, Walmart points to no evidence that any relevant decisionmaker personally believed that the law on permanent, full-time job coaches was unsettled. More significantly, Walmart identifies no evidence that any decisionmaker suspended Reina without pay or ignored his accommodation request for over eight months based on a belief that the law permitted Walmart to deny Reina’s requested accommodation. Indeed, if Walmart truly believed that the ADA allowed it to deny Reina’s requested accommodation, it is hard to see why it waited over eight months to respond in any way to Reina’s request. On this record, therefore, whether the EEOC’s legal theory was “novel” is wholly irrelevant to assessing the mental-state element of the punitive damages claim. See Halo Elecs., 136 S. Ct. at 1933 (“Nothing . . . suggests that we should look to facts that the defendant neither knew nor had reason to know at the time he acted.”).

2. Walmart’s argument fails for an independent reason: it ignores the procedural posture of this case. After considering extensive evidence in the record, none of which Walmart even mentions, the jury concluded that Walmart acted with malice or reckless indifference to Reina’s ADA rights. Even if Walmart had pointed to evidence showing that relevant decisionmakers acted based on a belief that the law was unsettled and permitted them to act as they did, Walmart does not argue that a reasonable jury would be required to (1) credit that evidence; (2) discount the evidence upon which the jury actually relied; and (3) find in Walmart’s favor on the mental-state issue.

Walmart has forfeited any such argument by not raising it in its opening brief, and thus we do not address it in any detail. See Wedemeyer v. CSX Transp., Inc., 850 F.3d 889, 897 (7th Cir. 2017). We note in passing, however, that ample evidence supports the jury’s finding that Walmart acted with malice or reckless indifference to Reina’s ADA rights, including evidence that Walmart officials “knew of or were familiar with” the ADA and Walmart’s “policies for implementing” that law. Bruso v. United Airlines, Inc., 239 F.3d 848, 858 (7th Cir. 2001). As just one example, the record makes clear that not only was market human resources manager Repka familiar with the ADA and Walmart’s ADA policies, she was responsible for ensuring that other employees complied with them. (EEOC.App.92-93) Evidence that Walmart employees “lied, either to the plaintiff or to the jury, in order to cover up their discriminatory actions” also supports the jury’s mental-state finding. Bruso, 239 F.3d at 858 (such evidence is relevant to the mental-state issue). For instance, Repka and store manager Scheuerell asserted that they witnessed Coppernoll pushing a row of carts for Reina when they conducted their surveillance in June 2015. (App.64) But the jury could reasonably disbelieve them, given Coppernoll’s denial and his testimony that he was physically incapable of performing that labor. (App.64-65; EEOC.App.76; R.208 at 27-28); see also supra pp.9-10, 12 (describing evidence that would support a finding that Walmart falsely claimed in a March 2016 letter to Reina that it had requested clarification of his accommodation request in July 2015).

3. In any event, Walmart is incorrect that there was any novelty to the EEOC’s theory of liability. The EEOC sued Walmart for failing to provide Reina a reasonable accommodation and ending his employment because of his disabilities. As Walmart knows, the ADA requires employers, in the absence of undue hardship, to provide reasonable accommodations. 42 U.S.C. § 12112(b)(5)(A). The district court properly concluded that there is nothing novel about suing employers for their failure to do so. (SA.18)

Walmart asserts that, although an employer’s obligation to provide reasonable accommodation is clear, it was unclear whether a permanent job coach could ever qualify as a reasonable accommodation. (Opening Br. 45) This argument fails for the reasons discussed supra on pages 26-33, including because it ignores the fact-specific nature of reasonable accommodations. As the district court correctly recognized (SA.19), what is reasonable in one situation might not be in another. There are no hard-and-fast rules, and even accommodations that are normally not reasonable may be required under “special circumstances.” Barnett, 535 U.S. at 394. Under Walmart’s logic, every proposed accommodation would be “novel” unless a court has already approved it for another employee, under a similar set of facts.

Moreover, even if it was unclear whether a permanent job coach could ever be a reasonable accommodation, there was no question about Walmart’s obligation to engage in an “interactive process” with Reina to determine how to respond to his accommodation request. Gile, 213 F.3d at 373. Walmart breached this obligation when it failed to respond to Reina for more than eight months after he requested reauthorization of his accommodation (App.244), and then told Slaght that Walmart would never take him back. (App.130-31) As Walmart knows, and its accommodation policy explicitly requires (EEOC.App.103-04, 107-08), an employer must search for an alternative accommodation if it rejects the accommodation an employee requests. 29 C.F.R. § 1630.2(o)(3). This did not happen.

4. Far from supporting Walmart’s position, Flambeau, 846 F.3d 941, supports the EEOC’s. This Court did not hold in Flambeau “that when the defendant’s liability in a case turns on a theory of the ADA that is legally unsettled, punitive damages are unavailable.” (Opening Br. 45) To the contrary, Flambeau turned on a fact-specific analysis of whether the relevant actors acted with “reckless indifference” based on uncertainty in the law. The Court held that they did not, because they repeatedly consulted with the employer’s attorneys and deliberately sought to act in compliance with the law. 846 F.3d at 948. “[The decisionmaker’s] repeated consultations with an attorney regarding [the employee’s] federally protected rights are inconsistent with reckless indifference to those rights, absent some reason to doubt he provided the attorney with all relevant information,” the Court held. Id; accord Boh Bros., 731 F.3d at 468 (employer did not act with malice or reckless indifference to employee’s rights where “the uncontroverted evidence show[ed] that neither [of the decisionmakers] subjectively understood that male-on-male sexual harassment, based on something other than sexual desire, was sufficient to violate federal law”).

Moreover, Flambeau involved a theory of liability that truly was novel, unlike the theory of liability here. The employer in Flambeau adopted an employee wellness program and required its employees, as a condition of receiving employer-subsidized health insurance, to provide personal health information. 846 F.3d at 944. The EEOC argued that this requirement violated the ADA’s prohibition on involuntary medical examinations. Id. (citing 42 U.S.C. § 12112(d)(4)). The employer responded that the prohibition did not apply pursuant to a statutory “safe harbor” provision applicable to certain insurance plans. Id. (citing 42 U.S.C. § 12201(c)(2)). As the Court observed, the statute’s plain text did not answer this question, the EEOC had not yet promulgated the relevant regulations, and the only case law was adverse to the EEOC. Id. at 947. This uncertainty is not present with respect to an employer’s obligation to provide a reasonable accommodation, even when the accommodation an employee seeks is a permanent job coach. See supra pp.28-33. Indeed, Flambeau specifically pointed to an employer’s “dismissive” approach to an employee’s accommodation request as an example of an action that constitutes a “well-understood violation[] of the ADA.” 836 F.3d at 947 (citing AutoZone, 707 F.3d at 835-36).

II. The district court abused its discretion by refusing to award any injunctive relief.

Under the ADA, if a court finds that an employer has “intentionally engaged in . . . an unlawful employment practice,” it may “enjoin the [employer] from engaging in such unlawful employment practice” and order “any other equitable relief as the court deems appropriate.” 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. § 2000e-5(g)(1)). Courts exercising this equitable authority must do so in light of the important objectives of the statute, including preventing future discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 416 (1975).

The jury found that Walmart committed serious violations of Reina’s ADA rights—so serious that the jury determined that Walmart should be liable for $5,000,000 in punitive damages. The evidence in this case showed, among other things, that multiple Walmart officials decided it was appropriate to suspend Reina without pay while processing his request to retain the accommodation he had successfully used for sixteen-and-a-half years. And additional officials—including officials in Walmart’s nationwide Accommodations Center—decided it was appropriate to sit on that accommodation request for eight months without taking any action.

Notwithstanding Walmart’s flagrant violations of the ADA, and the absence of any evidence that the company has changed its ways, the district court concluded that there was no need to award any injunctive relief against Walmart. The court abused its discretion, including by applying incorrect legal standards.

A. The district court committed legal error by focusing on whether Walmart had engaged in a pattern or practice of discrimination and whether current employees harbor discriminatory animus.

This Court has held that an injunction is appropriate under 42 U.S.C. § 2000e-5(g)(1) if the employer’s illegal conduct “could possibly persist in the future.” AutoZone, 707 F.3d at 840. Unless the employer satisfies its burden of showing that what happened to the claimant is “somehow different from the norm,” a finding that the employer discriminated against one individual is sufficient to support injunctive relief protecting others from similar conduct. Id. at 840-41 (citation omitted). The EEOC need not show that the employer engaged in a pattern or practice of discrimination. Id. at 842; EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1578 (7th Cir. 1997).

The district court denied an injunction in part because “there is no evidence of widespread neglect or a pattern and practice of Walmart managers failing to follow the company’s internal procedures.” (EEOC.SA.14-15) This Court has repeatedly rejected this reasoning. What matters is only the possibility of recurrence, not whether the employer previously engaged in widespread neglect or a pattern or practice of discrimination. AutoZone, 707 F.3d at 842 (“[I]njunctive relief addressed . . . generally to ‘the type of discrimination proven by a particular plaintiff’ does not require ‘evidence of a pattern or practice of similar conduct,’ but it does require the court to assess whether the proven ‘discriminatory conduct could possibly persist in the future.’” (quoting Ilona of Hungary, 108 F.3d at 1578)). Relying on this incorrect standard was an abuse of the court’s discretion and is, standing alone, sufficient grounds for reversal.

Elsewhere in the opinion, the district court committed a second legal error that independently warrants reversal. The court agreed with Walmart that “there is little risk that similar violations will occur in the future” because store manager Scheuerell is no longer with Walmart and “there is no evidence that anyone in leadership at the Beloit store (including [market human resources manager] Repka, who remains employed with Walmart) harbors any type of discriminatory animus against persons with disabilities.” (EEOC.SA.13)

The court erred in placing weight on whether current Walmart managers harbor “discriminatory animus” against individuals with disabilities—and in assuming that the lack of such animus makes future violations of the ADA unlikely. An employer does not violate the ADA only when it harbors “discriminatory animus.” To the contrary, “an employer’s ‘failure to offer a reasonable accommodation to an otherwise qualified disabled employee is unlawful discrimination,’ irrespective of whether the employer harbored invidious intent (or discriminatory animus) toward the employee when the employer failed to act.” Exby-Stolley v. Bd. of Cnty. Comm’rs, 979 F.3d 784, 797 (10th Cir. 2020) (en banc) (citation omitted), cert. petition filed, No. 20-1357 (S. Ct.); see also Withers v. Johnson, 763 F.3d 998, 1003 (8th Cir. 2014) (same); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999) (same); cf. Lenker v. Methodist Hosp., 210 F.3d 792, 799 (7th Cir. 2000) (similar).^{^[11]}

The district court itself made a similar point when denying Walmart’s post-trial motions. The court explained: “Scheuerell and Repka may well have believed that Reina was not qualified because he had to rely on his job coach to perform his job for him. But the belief that a disabled employee is incapable of work does not insulate an employer from liability. To the contrary, that belief is a hallmark of disability discrimination.” (SA.15)

The legal question the district court should have answered instead was whether Walmart’s illegal conduct in processing Reina’s accommodation request—and making related employment decisions about Reina, including suspending him—could “possibly persist in the future.” AutoZone, 707 F.3d at 840. Had it evaluated that legal question, it would have found substantial support for an affirmative answer because multiple employees involved in the discrimination against Reina remain on the payroll at Walmart, and Walmart has not pointed to any changes in its policies or practices that are likely to prevent similar discrimination in the future. See AutoZone, 707 F.3d at 844 (affirming injunctive relief even though “many of the [relevant managers] in this case no longer work at AutoZone” because “the passage of time and changes in management personnel do not guarantee the enforcement of AutoZone’s anti-discrimination procedures”); Gurnee Inn, 914 F.2d at 817 (affirming injunctive relief in harassment case despite harasser’s termination because the discrimination also resulted from employer’s “continued toleration of that behavior”).

Significantly, Scheuerell did not act alone. He testified that someone else—presumably someone in the human resources department—directed him to suspend Reina without pay. (EEOC.App.77; App.134) Repka remains in charge of ensuring that the Beloit store follows Walmart’s policies, even though she personally contributed to the failures surrounding Reina’s accommodation request. See supra p.10-11. Far from counseling or disciplining her, Walmart has doubled the number of stores in her territory. (EEOC.App.89) There is no evidence that Walmart took corrective action against Coffin, the Accommodations Center examiner assigned to Reina’s claim, or anyone else in the Accommodations Center, even though the Accommodations Center did not reach a timely determination on Reina’s request, and Coffin never communicated with Repka about it. (EEOC.App.32)

Walmart has claimed that its existing ADA policies make it unlikely that it will violate the ADA in the future (R.217 at 18-19), but it presented no evidence that those policies have changed since the events at issue in this case. They did not prevent the ADA violations at issue here, and so it is hard to see how they make future violations unlikely. See AutoZone, 707 F.3d at 844 (affirming injunctive relief in part because of “systemic failure to properly implement AutoZone’s established procedures”).

These facts are much like the ones that led this Court to reverse the denial of an injunction in Bruso, 239 F.3d 848. In that case, the plaintiff prevailed on a claim that his employer, United Airlines, retaliated against him for reporting sexual harassment to the company. Id. at 852. This Court noted that two of the individuals who were most involved in the retaliation continued to work for United. Id. at 864. It acknowledged that United had formal policies for reporting and addressing harassment, but observed that the employees in question had ignored them. Id. “Contrary to what the district court thought,” the Court said, “it is of every moment that United’s reporting policies are not 100% effective: if United’s upper echelon of management felt free to ignore United’s policies in the past, there is no reason to believe that those same members of management will abide by them in the future.” Id. Concluding that future retaliation was “possible,” this Court held that the failure to issue an injunction was an abuse of discretion. Id. at 864-65.

The same is true here. Repka is now responsible for ensuring ADA compliance at twenty-two stores (EEOC.App.89, 92-93), the Accommodations Center continues to handle reasonable accommodation requests nationwide, and there is no evidence that any Walmart policies have been revamped. Accordingly, it is entirely possible that discrimination could recur.[12]

B. The district court abused its discretion in analyzing the particular relief the EEOC sought.

In addition to these overarching errors, the district court abused its discretion in several narrow respects when evaluating the particular injunctive relief the EEOC sought. This Court may therefore reverse on multiple independent grounds.

1. “Obey the Law” Provisions

In analyzing the EEOC’s request for a three-year injunction barring Walmart from violating the ADA in specified ways, the district court observed that the EEOC sought to require Walmart employees nationwide to “obey the law.” (EEOC.SA.14) The court rejected the request in a single sentence: “These type of [‘obey the law’] requests are generally disfavored as being overly broad and vague.” (EEOC.SA.14)

The district court committed legal error because it engaged in no analysis as to whether that “general[]” objection applies here. It is well established that when “obey the law” injunctions are tailored to the unlawful conduct that occurred in a given case, they are well within the court’s authority. That conclusion follows directly from the statutory text, which provides that where, as here, an employer has intentionally engaged in an “unlawful employment practice,” courts may enjoin the employer from engaging in “such unlawful employment practice.” 42 U.S.C. § 2000e-5(g)(1). Similarly, this Court has held that equitable principles permit injunctions prohibiting “the violation established in the litigation or similar conduct reasonably related to the violation.” AutoZone, 707 F.3d at 841; cf. Gaddy v. Abex Corp., 884 F.2d 312, 318 (7th Cir. 1989) (vacating injunction prohibiting retaliation because plaintiff never alleged that employer had retaliated against her).

The district court thus should have analyzed whether the particular “obey the law” injunction the EEOC sought was sufficiently tailored to the facts of this case, but it never conducted that analysis. Here, the EEOC requested, inter alia, an injunction forbidding Walmart from unlawfully denying individuals with developmental or cognitive disabilities reasonable accommodations. (EEOC.SA.12) That injunction is plainly tailored to the particular violation that occurred here. And although the district court was correct that the injunction would have no geographical limitation (EEOC.SA.13), Walmart’s Accommodations Center—which had significant responsibility for processing Reina’s accommodation request—operates nationally. (R.31 at 1) Accordingly, it is appropriate for the relief to have a national scope.

This Court has routinely upheld similar “obey the law” provisions addressed to “the type of discrimination proven by a particular plaintiff” when there is reason to believe that an employer might not otherwise comply with the law. AutoZone, 707 F.3d at 842-43 (quoting Ilona of Hungary, 108 F.3d at 1578). In AutoZone, this Court upheld an injunction requiring the employer to “make reasonable accommodations to the known physical limitations” of disabled employees within the Central District of Illinois because, even after eight years, there was no evidence that the employer was enforcing its ADA policy. Id. at 844. In Ilona of Hungary, the Court upheld an order enjoining an employer from “discriminat[ing] on the basis of religion” because the individuals who had discriminated remained the primary decisionmakers, and their actions suggested a likelihood of future violations. 108 F.3d at 1578-79. And in Gurnee Inn, the Court upheld an injunction barring sex discrimination because the employer had tolerated past sexual harassment and did not have an anti-discrimination policy or a complaint procedure. 914 F.2d at 816-17.

We note that “obey the law” injunctions are valuable tools for preventing future discrimination, even though they require an employer to do no more than it would have to do anyway. Importantly, tailored “obey the law” injunctions “add contempt to the other sanctions” available for violating the law and constitute “proper relief . . . to prevent the defendant from repeating his violation in slightly different form.” Power v. Summers, 226 F.3d 815, 819 (7th Cir. 2000); see also AutoZone, 707 F.3d at 841. Because the district court did not conduct the tailoring analysis that is appropriate when a plaintiff requests an “obey the law” injunction, this Court should vacate and remand to provide the district court with an opportunity to do so.

2. Consideration of Job Coach Where Needed

The district court also abused its discretion by not ordering Walmart to “consider” the provision of a job coach as a reasonable accommodation “where needed” to permit an employee with developmental or cognitive disabilities to perform the essential functions of his job and “where it does not impose an undue hardship on Walmart.” (EEOC.SA.12, 14) This request for relief (which would last for three years) stems directly from the facts of this case. Walmart continues strenuously to insist that, as a matter of law, a permanent job coach can never be a reasonable accommodation. Thus, there is every reason to believe that, unless ordered otherwise, Walmart will not consider a permanent job coach as an accommodation under any circumstance. See Roe v. Cheyenne Mountain Conf. Resort, Inc., 124 F.3d 1221, 1231 (10th Cir. 1997) (reversing denial of injunction where “defiant hostility to amending the Policy indicated ‘some cognizable danger of recurrent violation’”).

Significantly, the district court did not disagree that this relief is tailored to the facts of this case—and did not object to it on that basis. Instead, the court rejected the provision on the ground that it would require Walmart to consider a job coach for all employees with cognitive or developmental disabilities, a result the court found problematic because it would not take account of “an employee’s specific circumstances.” (EEOC.SA.14.) Contrary to the district court’s interpretation of the proposed provision, however, the injunction would mandate that Walmart “consider” a job coach for such individuals only “where needed” to perform the essential functions of the job, and only “where it [would not] impose an undue hardship.” (EEOC.SA.12). The provision thus would take account of relevant circumstances.

3. Accommodation Checklist and Training

Finally, the district court abused its discretion in rejecting the EEOC’s request for a three-year injunction requiring Walmart to use a checklist setting forth accommodation procedures, and provide additional ADA training for particular employees. (EEOC.SA.12-15; see also R.213 at 2-4). The court reasoned that the checklist and training were “overly broad” and “app[arently] redundant” with “systems Walmart already has in place.” (EEOC.SA.14) The court was wrong on both counts.

First, the court did not explain why the requested relief is overly broad—and it is hard to see how it could have reached such a conclusion. The checklist would be limited to reasonable accommodation procedures, the very procedures that Walmart failed to follow in this case. (R.213 at 2-3) The training—at least four hours of live training over the course of three years—is likewise tailored to the facts of this case, as it would cover the ADA with “special emphasis on reasonable accommodation,” including job coaches, and the “duty to engage in an interactive process.” (R.213 at 4)

The district court also abused its discretion in rejecting the checklist and training because of “app[arent] redundan[cies]” with “systems Walmart already has in place.” (EEOC.SA.14) The court noted Walmart’s existing “policies and procedures regarding disability discrimination” and “management training” (EEOC.SA.14), but both were in place at the time of the events at issue in this case (EEOC.App.30-33), and did nothing to prevent the discrimination against Reina. Indeed, Scheuerell, Repka, and Coffin sat through multiple computer-based trainings (R.190 at 5; EEOC.App.92; R.203 at 82-83), yet they contributed to the ADA violations here.[13] Having policies and procedures (and being minimally trained on them) is very different from actually implementing those policies. See AutoZone, 707 F.3d at 843 (noting distinction between having an anti-discrimination policy and enforcing it).

The district court also based its redundancy conclusion on the fact that Walmart has a specialized department—the Accommodations Center—to address reasonable accommodation requests. (EEOC.SA.14) However, the Accommodations Center was part of the problem. Far from acting expeditiously, as Walmart’s policy required, the Accommodations Center did not even contact Reina for eight months, let alone reach a decision regarding his accommodation request. (App.244)

Here, as in Bruso, it is of “every moment” that Walmart’s existing policies, computer-based training, and specialized accommodation department failed to prevent the discrimination against Reina. Bruso, 239 F.3d at 864 (reversing denial of injunction). As this Court held in Bruso, those failures counsel in favor of additional injunctive relief—relief such as the checklist and live training that the EEOC proposed here.

CONCLUSION

For the foregoing reasons, this Court should vacate the district court’s denial of injunctive relief and remand for further proceedings on the EEOC’s motion. The Court should affirm the district court’s judgment in all other respects.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIfer s. goldstein

Associate General Counsel

SYDNEY A.R. FOSTER

Assistant General Counsel

/s/ Gail S. Coleman

GAIL S. COLEMAN

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. N.E., Fifth Floor

Washington, D.C. 20507

(202) 921-2920

gail.coleman@eeoc.gov

April 15, 2021

[1] Consistent with Walmart’s abbreviations, “R.___” refers to entries on the district court’s docket, “SA.___” refers to the short appendix attached to Walmart’s brief, and “App.___” refers to Walmart’s separate appendix.

The short appendix attached to this brief is designated “EEOC.SA.___.” The EEOC’s supplemental appendix is designated “EEOC.App.___.”

[2] The court also awarded a total of $122,941.46 for back pay, front pay, prejudgment interest, and tax consequences. (EEOC.SA.1)

[3] Pertinent statutory and regulatory provisions are reproduced in the short appendix attached to this brief.

[4] Walmart is correct that it did not forfeit this legal argument by not adequately raising it under Federal Rule of Civil Procedure 50. Under this Court’s precedent, it did not have to do so after losing on the issue at summary judgment. Mimms v. CVS Pharmacy, Inc., 889 F.3d 865, 869 (7th Cir. 2018). However, a certiorari petition challenging the validity of this rule is pending before the Supreme Court in Ericsson Inc. v. TCL Communication Technology Holdings Ltd., No. 20-1130 (cert. petition filed Feb. 11, 2021).

[5] This Court need not decide the level of deference due to the EEOC’s interpretive guidance, which was promulgated after notice and comment, 56 Fed. Reg. 35726 (July 26, 1991). At a minimum, that and other EEOC guidance “constitute[] a body of experienced and informed judgment to which courts and litigants may properly resort.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (citation omitted).

[6] See also EEOC, Persons with Intellectual Disabilities in the Workplace and the ADA, at question 8 (May 15, 2013), https://www.eeoc.gov/laws/guidance/persons-intellectual-disabilities-workplace-and-ada (noting that employees with intellectual disabilities may need a “job coach” as a “reasonable accommodation,” without specifying that job coach must be temporary or part-time).

[7] If a plaintiff makes this showing, the burden shifts to the employer to demonstrate that the accommodation, although ordinarily reasonable, constitutes an undue hardship under the facts of the case. Barnett, 535 U.S. at 402. On appeal, Walmart does not argue that allowing Reina to use a job coach would cause an undue hardship.

[8] Borkowski analyzed “reasonable accommodation” under the Rehabilitation Act, 29 U.S.C. § 794, not the ADA, but the applicable standards are the same. See 63 F.3d at 136-37.

[9] Walmart seeks to distinguish Kauffman on the ground that the task in question there—transporting patients by wheelchair—had “presumably” been reassigned to, among others, “‘orderlies whose primary duty’ was transporting such patients.” (Opening Br. 32 (quoting Kauffman, 769 F.3d at 964)) As Walmart’s own description of Kauffman makes clear, however, Kauffman’s essential-function analysis did not turn on the identity of the employees to whom the task was reassigned. 769 F.3d at 961-62.

Walmart similarly seeks to escape the holding of Shell by contending that “the job description in that case only used tentative ‘may’ language, and the employee had himself completed the relevant essential function.” (Opening Br. 32) But Shell said that the employer’s “actual practice[]” of reassigning the task of driving a bus was “more important[]” than the job description. 789 F.3d at 718. Moreover, contrary to Walmart’s assertion, the employee in Shell never drove a bus during his twelve years on the job. Id. at 719-20.

[10] In seeking a remittitur of compensatory damages in district court, Walmart downplayed this evidence, characterizing it as showing “only that Mr. Reina, a deeply sympathetic individual, experienced some level of additional anxiety beyond his baseline.” (R.232 at 48)

[11] And to the extent that the court used “discriminatory animus” to mean antipathy towards individual with disabilities, an employer may violate even the disparate-treatment provisions of the ADA in the absence of such animus, so long as the employer’s actions were motivated by disability. Cf. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 199, 206-07 (1991) (employer discriminates because of sex within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), if it excludes fertile women from certain jobs because of concerns for health of potential fetus, notwithstanding “absence of a malevolent motive”).

[12] The district court noted that no lawsuit involving the Beloit store has been filed in the Western District of Wisconsin for the past four years (EEOC.SA.13), but not all employees who experience discrimination file lawsuits (and not all even file EEOC charges, which are prerequisites to ADA suits and are generally confidential, see 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. § 2000e-5(b), (f)(1))). Thus, the absence of recent lawsuits from Beloit does not prove that Walmart is complying with the law. Moreover, the EEOC is currently litigating claims that Walmart violated the ADA in nearby stores. See, e.g., EEOC v. Wal-Mart Stores East, LP, No. 1:17-cv-00070-WCG (E.D. Wis.) (filed Jan. 18, 2017) (trial scheduled for July 2021) (alleging failure to accommodate and termination of individual with Down Syndrome).

[13] In contrast to the computer-based ADA training Walmart currently uses, the injunction would require that Walmart provide live training (including by video link). (R.213 at 3) An EEOC task force report has determined that “[l]ive trainers who are dynamic, engaging, and have full command of the subject matter are most likely to deliver effective training.” Chai R. Feldblum & Victoria A. Lipnic, Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace, pt. 3(C) (June 2016), https://www.eeoc.gov/select-task-force-study-harassment-workplace#_Toc453686306.