accommodation to its totally deaf employee after an eight day evidentiary trial the jury said it did not our position is the court supposed judgment order setting aside the verdict and granting judgment motions with regard to the motions of the matter of law the district court failed to view the evidence in the light most favorable to mr annan freo and failed to even discuss the evidence from which a reasonable jury could have ruled in her favor and as i will discuss in more detail with regard to the motion for new trial the ruling is contrary to a long line of cases holding that absent any other trial errors where the evidence is disputed a ruling granting a new trial based on the great weight of the evidence almost always has been found to invade the province of the jury and must be reversed turning to the judgment as a matter of law because we we have to prevail there before we get to the new trial issue the court's order was based on this view of the evidence court viewed the v r r video record bowed interpreter a reasonable accommodation and then found that because she didn't necessarily want to use it she obstructed the use of the b r r and therefore casco must prevail with regard to the other alternative accommodation the three manager communication team which had been initially implemented at the recommendation of a center for the hearing and communication the court found that was not required so that cosco was permitted to discontinue that why was that order reversible error and i think to answer their question you have to look at the evidence supporting  was it is a clear from the evidence in this case that she repeatedly her lap on the b r i n refused to use it that she refused to attend the meetings that they said that were recommended  there were it's this is where she didn't want to use the v r i but with then later agreed to use it and there were instances where she hung it up because from her testimony  perry was obstructing the the proper use of the v r i but i think it's important to remember that the v r r i was only used in a disciplinary setting it's not what she asked for so i think the you can start with the premise that the v r a is reasonable i think in a vacuum it looks like a good tool to use for somebody who is deaf but what did she ask for when here regionally reached out to casco and said i care to communicate with my manager he refuses to cart to me he mumbles he walks away and smirks it be that had nothing to do with this with a disciplinary session that had to do with on going day by day work and what she asked for was training in what school called deaf culture she wanted the managers to understand more about a deaf person because mr packard never had a deaf in for he and any limited training he had had been more than twenty years ago so so yes she occasionally didn't want to use it in that disciplinary setting but that's not really what it was brought in for it was brought in by cosco because they thought it might help with communication but did mr peck ever sit down with her and say christine here is this place seeing this could really help us learn i've never used it you've never used it let's sit down but training it means nothing if it's not implemented your honor and yes there was training and they were given the information they needed but they did put it into practice and i think the the most stark evidence of that that shortly after the training session which was just a couple hours long a new manager came on the scene mr holiday he too had never had a deaf employee and no one from cosco not a jar not mr pa it is an ongoing obligation and it's not like mr howard a showed up two years down the road he can't he came to the store a month after they had had this training and yet no one showed him the power point that the death center had provided to use for training purposes you know why wasn't he wasn't he already familiar with the culture and had no difficulty communicating that she had no difficulty communicating with  initially they had no trouble communicating and he had a deaf relative and they tried to portray that as if he understood deaf culture but when every single time he wrote her up for some alleged misconduct in the workplace it was for behavior that was the civically described by the center for dr williams at the center for hearing as typical very typical of a deaf person's communication style in other words she spoke wildly she used a lot of gestures and body language she sometimes with bang on furniture to make a point those were precisely the things that he wrote her up for and she denied repeatedly that she was behaving incorrectly she was merely trying to communicate and where those instances happened the v c r i wasn't there the v c r i sat and gathered dust from january august they never even attempted to use it a little hack was never even played on it and by the time she was written up for these kinds of things and got to the to the e c n sessions which were all clustered in about a one month period where we are right there were there was testimony at the trial that would respond to the we are a she repeatedly hung up on it and refused to use it that presumes r i would have been a reasonable accommodation to to improve conversation or communication between her and her managers and it had never proven to be that but remember by the time she got to the sessions where she didn't want to use it she was already basically adjudicated guilty they had already written her up and decided to impose some kind of  lease at the very least a record of misconduct if not discipline so it's too late at that point because the accommodation needs to occur in the workplace not in the disciplinary meeting or what would have been accommodations well there are there was one actually that the center for hearing recommended which was assign a three person manager communication team so those people can be her go to managers and minimize the number of people that she has to communicate with and they didn't and there was and was there testimony at the trial that she specifically requested that as recommended by dr williams that particular accommodation was not what she requested but it was it was to facilitate their understanding in their accommodation for deaf culture and this and all this policy  marcus let me ask you the question this way as i understand it your argument is that she asked for training and she asked for a live  interpreters and she didn't get what she was asked for is that the thrust of your claim i think that the thrust of my claim is that the judge did not view the evidence in the light most favorable to her but i'm not asking that question what is it that she asked for that she did not get i want to go back to the question the judge bush asked you i understood you didn't say that she asked for a training that there was a poor hour a training session for all of them including notably mr ak is that not true it was a session but it was not implemented the things that were taught in the training were not implemented in so the training is meaningless and must be let me just let me just stop you so the training session was fine they just didn't live up to what they should have learned and did not learn from it right correct correct ok and then the occasions on those occasions they were called a criminal act to meaning i think it's very telling that the reason they had a live interpreter at the terminations session was because mr powers said we wanted to make sure he understood and the centers for hearing recommended a live onsite interpreter for performance evaluations and he didn't have one of those for any of those other e c n performance evaluations here's a key piece of evidence that the from which a jury could have ruled in her favor three different people in addition to mr annan freo agreed in their testimony that the v c r i alone was not enough dr williams agreed to that even mr pack agreed to that and mr powers agreed to that that's key if that if a jury latched on to that they could find that even though cosco put a v r i n they didn't use it for six or eight months and then they only use it in disciplinary sessions when a reasonable jury could find that not reasonable to remember the jury was not asked to decide if the v r a alone was reasonable they were asked to decide if what cosco did overall was reasonable and from the from the outset the the evidence was highly disputed here i'm not even getting to my new trial argument which i'd like to get to  and in that instance the reasonable inferences should have been in her favor with regard to the new trial the key thing here is that the depth of the evidence was disputed and there's it's true that a judge can weigh the evidence on a motion for a new trial but not where it's disputed every single case reverses when the only basis for a new trial is that the judge disagrees with the jury's assessment of disputed evidence and for both those reasons both the judgment as a matter of law and the conditional grant of a new trial were legal and factual error and should be reversed thank you m pretty important that we we recognize upfront to this case involves a very very narrow issue there is only one essential job function at issue here and that is missed on a frio is communications on the job and there's only one aspect of that job function that required an accommodation and that is her communications with mr pac by ms donofrio is own admission and indeed by her insistence throughout the trial she had no problems communicating with anyone from mr x she said he mumbled so she couldn't read his lips and costco took multiple measures in an effort to resolve this problem and chief among them was the v r i machine and as the briefs explain this v r r machine provides a live interpreter at the push of a button now by any objective measure this alone allowed and mr pac to communicate verbally it eliminated any lip reading issues and it allowed for ms donofrio sign language to be professionally interpreted and translated into spoken english and vice versa cosco provided other accommodations as well but again by any objective measure the v r a machine alone allowed ms donofrio to fully perform her essential job function of communicating particularly with the only person with whom she had trouble now i mention the v r i but costco did much more even though it didn't have to intuition to the v r a machine costco did four things st it provided in person interpreters when needed there is no evidence that ms donofrio was ever deprived of an in person interpreter when she requested or otherwise needed one and indeed the jury was instructed that costco provided this accommodation after it was suggested the jury wasn't entitled to the part that judge bush did in done up rielle ever asked for an in person interpreter continuously on the is very few meetings and the reason that the v c r i was put there was so that it would be available on an ad hoc basis and so accommodation that costco provided in addition to the fear i was that it had mr pak and every other manager in her chain of command at the time undergo training on deaf culture as as we've already discussed and ms don't freo testified that this training was very effective that it was very nice and that the instructor dr shannon williams did a good job the rd thing that cosco did was to offer ongoing mediation sessions among ms donna freo dr williams and mr pac but ms donofrio declined to take advantage of this by refusing to meet with mr pac and so any suggestion that the training was not him ploy mentored needs to be taken with a grain of salt because there were attempts made at least as say at least between ms donna freo and mr pac the only person that she had a problem communicating with and then for those whose job it was than if it's clear from the testimony at the trial that cosco provided accommodations in this radio the question is whether or not those accommodations are reasonable and whether or not that's within the province of the jury to determine whether those accommodations were reasonable and that's putting unusual or district court that us that a jury verdict especially one like this where she was awarded seven hundred fifty thousand dollars in compensatory damages and twenty five thousand dollars all to comply with its obligations under the floor civil rights act link will provide interpreter at every counseling session i will concede that this is an unusual case in many ways your honor but the the reason that the jury could not reasonably so conclude is because this is the reasonable tennis standard is an objective one and we have to decide objectively whether the accommodation hall allows the employee to perform an essential job function and here's an important point when answering this question it's irrelevant whether an employer or an employee or anyone determine that more might be needed to make a reasonable determination yes but but again that this is a this is an objective standard and in this particular case which i concede i unusual the only question was keeping in mind the very narrow accommodation that was that issue here that is helping ms donofrio to communicate with mr pac the question is did was a v r i machine reasonable reasonable a reasonable accommodation to help her do that and i think i think it's almost self evident in fact i think it is self evident that a machine that allows a deaf person to talk to a hearing person through with a sign language interpreter who's right there it is is absolutely reasonable remember the problem that she had was that she couldn't read his lips and that was the problem that was the only problem of your eye machine on any objective measure when a fair measure does away with that problem and so i think that in this particular case the jury could not reasonably conclude that a fear arrived machine was was not a reasonable accommodation and of course let's not forget there were other measures taken as well i don't think that that costco had to take these other measures but they went ahead and did it because that's the kind of company they are but again the v r a machine itself was  reasonable by itself and you know we hear if we look at all three of these they testified to subjective forward looking beliefs and one of the questions focused on what was at issue here which is the narrow accommodation that was required with mr pac you know i as i said before i don't think that i think the law says that to the extent there is subjective witness testimony about what the what the employer judge judge locke cited it in his in his opinion but you know let's take a look at what these three witnesses actually said mr powers let's take him st he testified to ms donofrio complained to him about two problems number one was her communications with mr pac but number two was this notion that costco in general didn't understand the culture four pages later he was asked a question about his initial expectations before the parties had even met at the center for the deaf and that question was very broadly stated and it did not focus on what we are concerned with today that is missed on a friels problem communicating with mr pac mr power was asked you were not quote you were not expecting at that point in time when you set up that meeting at the center for the deaf culture that of your own machine was the sole exclusive answer to the communications problems that christine was experiencing at costco this question is a couple of features that really limit its usefulness for the present purposes st it asked what mr powers subjectively believed before the meeting at the center for the deaf even happened he was never asked what he thought afterwards after having seen of your eye in action and he was never asked specifically whether the v o r i would help with ms donofrio was communications with mr pac and again it  is self evident that a translator which is something that the regulations specifically contemplated for this situation did the job it took care of the problem the lip reading problem mr packard presents a similar situation he testified that the purpose of the meeting at the center for the deaf was twofold to meet quote to meet with christina and her concerns and also for costco and as with mr powers mr pac was asked only what he subjectively believed at the time of that meeting and as with mr powers mr packs questions i didn't ask about ms donna friels communications problems with him mr pac but were always phrased broadly enough to encompass her contention that cosco needed to understand culture and by the way understanding deaf culture is not required by the eighty eight or the florida civil rights act it's think of think of religious discrimination cases where somebody of a particular religion needs some time off for needs permission to wear a religious article you may have to give them that extra time you may have to give them that permission to to wear their religious article but there is no requirement that you steep yourself in the rigors of that religion and deaf the deaf culture training the only person who it could could co nceivably have applied to here was mr pack n he underwent that training and as i said before ms ms donofrio said that it was very effective as for this notion that it had to be ongoing training well i think i think that that's you know that creates an impossible barrier because just which again was there any evidence of any other this kind of pre i did not introduce any evidence of any other way to communicate via technology not via technology no ok so her contention is that there should have been  honest interpreter instead of the technology as i understand it but my but i also understand basing your argument that she only asked for an onsite interpreter on three or possibly  occasions yes and there's no evidence that she was ever deprived of an onsite interpreter when either she asked for it or when she otherwise needed in fact there is some testimony on that from here with me a nd while i pull it up again as i said before the jury was instructed the defendant agreed to and it did provide thank you defendant agreed to and did provide onsite interpreters for groups last department meetings after the suggestion was raised in the march  two thousand and thirteen training at the center for the deaf so in other words the jury was specifically instructed that cosco did exactly what ms dona freo asked and despite what ms donofrio argues on appeal the jury wasn't entitled to deviate from this instruction and so the inquiry should stop right there but you know in addition to judge bush alan holliday testified without contradiction there whenever he had an employee meeting mr packwood arrange for an onsite interpreter ms donofrio herself testified that she requested the interpreter for the termination meeting and one was brought in mr pack corroborated what  holliday said he testified without contradiction that he hired an onsite interpreter whenever ms donofrio was in a meeting with other employees steve powers likewise testified without contradiction that if there was a quote big group meeting unquote then cosco would bring in an interpreter if ms don't freo required one or asked for one mr pac testified without contradiction that ms donofrio never requested an onsite interpreter for her counseling sessions there is no evidence that ms donofrio ever attended a meeting with mr pak which was the the main person she had trouble with the only person she had trouble communicating with in which three or more people were talking and if mr pak wasn't there ms donofrio had no need for an interpreter of any kind because she didn't have trouble communicating with anyone else i would like to also point out i've already i've already pointed out that the deaf culture training wasn't required under the f c c or a but in addition to that the the three manager team wasn't required because again a reasonable accommodation is required only if it helps the employee to achieve or to to perform an essential job function and here the only essential job function is firing line if i may finish this one sense here are team that actually didn't help or do that it actually diminished that essential job function and eventual as the record shows she used the three manager team to avoid mr pac yes your honor i need to set my timer arrives per se sufficient in every circumstance though that premise is flawed the other thing that he argued at length was that the only communication problem he had was with mr pac and certainly that's what started the process and that was her national complaint but a page eleven of the order on appeal the court the district court said that the problem quote at least to some extent went beyond through went beyond mr pac i don't need to quote it more fully but cosco once once they knew she had a communication problem with management they had an obligation to address that in a reasonable fashion and they didn't just take mr pesky call this is the judge marcus just one question did she ever indicate that she had any communication problem with any marriage you're a sick syria other than the back well there certainly were problems with mr howard a he's the one actually who wrote her up repeatedly after never having been trained at all on know where those communication problems or where they just you know problems in terms of his management i think it was his misunderstanding that when he spoke wildly that she was this behaving  it somehow inappropriate in the workplace he didn't understand he nobody ever explained to him deaf people speak loudly they just or they do things  our yes for all the reasons if one looks at the standard of review here it guides his decision there were disputed facts and the judge erred in substituting his view of the facts for the jury this case should be