EAS~P.H ~i~ ,~t,,T OF LA
2003 JUN-S PM 3: 5~
LO~ETTA G. WlIYTE CLER~
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff

CIVIL ACTION NO.
03-1605

E.I. DU PONT DE NEMOURS & CO. Defendant

COMPLblNT AND J’URY DEMAND’: NOW INTO COURT, through undersigned counsel, comes Plaintiff, the United States Equal Employment Opportunity Commission, and files its Complaint and Jury Demand. Plaintiff respectfully avers as follows:
NATURE OF THE ACTION This is an action under Title I of the Americans with Disabilities Act of 1990 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis

of disability and to provide appropriate relief to Laura Barrios ("Ms. Barrios"), who was

adversely affected by such practices.

JURISDICTION AND VENUE

1.

Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343

and 1345. This action is authorized and instituted pursuant to Section 107(a) of the

Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12117(a), which

incorporates by reference Sections 706(t")(1) and (3) of Title VII of the Civil Rights Act of

1964 ("Title VII"), 42 U.S.C. §§ 2000e-5(f)(1) and (3) and pursuant to Section 102 of the

Civil Rights Act of 1991,42 U.S.C. § 1981a. 2.

The unlawful employment practices alleged herein were committed within the judicial

district of this Court.

PARTIES

3.

Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the

agency of the United States of America charged with the adrninisla’ation, interpretation and

enforcement of Title I of the ADA and is expressly authorized to bring this action by Section

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107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Sections 706(f)(1) and (3) of Title VII, 42 U.S.C. §§ 2000e-5(f)(1) and (3).
4. At all relevant times, Defendant, E.I. du Pont de Nemours & Co. d/b/a DuPont Speciality Chemicals ("Defendant" or "DuPont"), has continuously been a corporation organized under the laws of the State of Delaware doing business within the State of Louisiana, and has continuously had at least 15 employees.
5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce under Section 101(5) of the ADA, 42 U.S.C.§ 12111(5), and Section 101 (7) of the ADA, 42 U.S.C. § 12111 (7), which incorporates by reference Sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h).
6. At all relevant times, Defendant has been a covered entity under Section 101(2) of the ADA, 42 U.S.C. § 12111(2).
STATEMENT OF CLAIMS 7.
At least since March of 1997, Defendant has engaged in conduct in LaPlace, Louisiana which violates the ADA.
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More than thirty (30) days prior to the institution of this lawsuit, Ms. Barrios filed a charge with the Commission alleging violations of Title I of the ADA by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled.
9. Ms. Barrios has at all times relevant been a qualified individual with a disability within the meaning of the ADA.
10. Ms. Barrios has severe scoliosis of the lumbar spine, lumbar disc disease with sciatica, lumbar spinal stenosis with compression neuropathy, neurogenic bladder, cervical spondylosis, previous cervical disc disease with surgical fusion, and reactive depression.
11. Ms. Barrios began working for DuPont as an operator in 1981 and became a lab trainer / operator in or about 1986.
12. In June of 1999, DuPont illegally required Ms. Barrios to take a functional capacity evaluation ("FCE") which was neither job-related nor consistent with business necessity, in violation of the ADA. Ms. Barrios’s being required to undergo this FCE caused her physical
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and emotional harm, and evidenced DuPont’s intent to discriminate against her on the basis of disability.
13. Despite the fact that Ms. Barrios passed the FCE, DuPont used results from it as a pretext to (falsely) declare her physically incapable of performing her job and force her onto short term disability ("STD") and then long term disability ("LTD") leave, upon the exhaustion of which DuPont terminated Ms. Barrios because of her disability, in violation of the ADA.
14. Ms. Barrios was at all times relevant physically capable and willing to perform all essential functions of her position, with or without reasonable accommodation. At no time did Ms. Barrios fail or refuse to perform any function of her job as DuPont requested.
15. These actions by Defendant violated Section 102 of Title I of the ADA, 42 U.S.C. 12112(a), inter alia.
16. The effect of the practices complained of herein has been to deprive Ms. Barrios of equal employment opportunities by denying her a job because of her disability.
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17. The unlawfuI employment practices complained of herein were, and are being, done with malice or with reckless indifference to the federally protected fights of Ms. Barrios.
18. The unlawful practices of Defendant complained of herein have violated the rights of affected persons protected under the ADA.
19. The unlawful employment practices complained of herein were intentional.
20. The unlawful employment practices complained of herein have caused Ms. Barrios to suffer economic injuries, including but not timited to lost wages, as well as nonpecuniary injuries.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant, its officers, successors,
assigns, and all persons in active concert or participation with it, from refusing to accommodate and from illegally terminating individuals who are "disabled" within the meaning of the ADA, and any other employment practice which discriminates on the basis of disability.
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Order Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for qualified individuals with disabilities, and which eradicate the effects of its past and present unlawful employment practices. Co Order Defendant to make whole Ms. Barrios by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices. Order Defendant to reinstate Ms. Barrios or to make her whole by providing her with front pay, in amounts to be determined at trial, to eradicate the effects of Defendant’s unlawful employment practices. Order Defendant to make whole Ms. Barrios by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described above, in amounts to be determined at trial. Order Defendant to make whole Ms. Barrios by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of above, including but not limited to emotional and mental anguish, pain and suffering, humiliation, loss of enjoyment of life, and devastation in amounts to be determined at trial.
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Order Defendant to pay Ms. Barrios punitive damages for its malicious and reckless conduct, as described hereinabove, in amounts to be determined at trial. Grant such further legal or equitable relief as the Court deems necessary and proper in the public interest. Award the Commission its costs of this action.
JURY TRIAL DEMAND In accordance with Rules 38 and 39 of the Federal Rules of Civil Procedure, the Commission hereby requests a jury on all issues raised in the instant Complaint which may be tried by jury.
Respectfully submitted,
GWENDOLYN YOUNG REAMS Associate General Counsel No Bar Roll Number Assigned
K~IT~I T. HILL t Regional Attorney E.D. Bar Roll No. 15200000
DEBRA M. LAWRENCE Supervisory Trial Attorney No Bar Roll Number Assigned -8-

REGISTERED AGENT FOR SERVICE OF PROCESS:
C. T. CORPORATION SYSTEMS 8550 United Plaza Blvd Baton Rouge, Louisiana 70807

Senior Trial Attorney La. Bar Roll No, 20890 EQUAL EMPLOYMENT OPPORTUNITY COlVlMISSlON New Orleans District Office 701 Loyola Avenue Suite 600 New Orleans, LA 70113 Tel: (504) 589-3844 (Hill)
(410) 962-4349 (Lawrence) (504) 589-2663 (Juge) Fax: (504) 589-2805
COUNSEL FOR PLAINTIFF, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff versus
E.I. DU PONT DE NEMOURS & CO. Defendant

§ CIVIL ACTION:

§ SECTION:

§ JUDGE:

§

§

§

§ §

MAG. NUMBER: MAGISTRATE:

03-1605 R VANCE
4 WELLS ROBY

JUDGMENT A jury trial having been conducted in the captioned matter from October 18, 2004, through October 20, 2004; and the jury having returned a verdict on October 20, 2004, in favor of Plaintiff, the United States Equal Employment Opportunity Commission ("Commission" or "EEOC") and against Defendant, E.I. Du Pont de Nemours & Co. ("DuPont"); IT IS ORDERED, DECREED, AND ADJUDGED as follows: 1. DUPONT IS LIABLE for terminating the employment of Laura Barrios because of her disability, in violation ofthe Americans with Disabilities Act of 1990,42 U.S.c. § 12101, et seq. ("ADA");

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2. DUPONT IS LIABLE to Laura Barrios for back pay in the amount of$91,000.00 (ninety-one thousand dollars);
3. DUPONT IS LIABLE to Laura Barrios for front pay in the amount of$200,000.00 (two hundred thousand dollars);
4. The jury's award of punitive damages in the amount of $1 ,000,000.00 (one million dollars) is subject to the applicable statutory limit set forth in the ADA, as incorporated from the Civil Rights Act of 1991,42 U.S.c. § 1981a, and is therefore hereby REDUCED to $300,000.00 (three hundred thousand dollars);
5. DUPONT IS LIABLE to Laura Banios for punitive damages in the amount set forth in the immediately preceding paragraph, to-wit $300,000.00 (three.hundred thousand dollars);
6. The EEOC's claim for emotional damages / mental anguish on behalf of Laura Banios is DISMISSED WITH PREJUDICE;
7. The EEOC's claim that DuPont violated the ADA by subjecting Laura Barrios to an illegal medical examination or inquiry is DISMISSED WITH PREJUDICE;
8. DuPont SHALL PAY THE EEOC ITS REASONABLE COSTS incuned in the prosecution of this matter, as determined by the Clerk of Court following submission by the EEOC of its Notice of Application for Taxation of Costs and its Memorandum of Costs.
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9. The EEOC's prayer for injunctive relief, in the form of Court-ordered training and

an injunction prohibiting DuPont from retaliating against any person who participated in this

litigation, is DENIED.

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SO ORDERED, DECREED, AND ADJUDGED, New Orleans, Louisiana, this ;{,~ day

°0~<2005.

sARAH s. VANCE
UNITED STATES DISTRICT JUDGE

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 347 F.Supp.2d 284 (2004)
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, v.
E.I. DUPONT DE NEMOURS.
No. Civ.A. 03-1605.
United States District Court, E.D. Louisiana.
October 15, 2004.
286 *286 Michelle T. Butler, Gregory T. Juge, Equal Employment Opportunity Commission, New Orleans District Office, New Orleans, LA, for plaintiff.
William David Aaron, Jr., Mark C. Carver, Brian Eugene Sevin, Goins Aaron, P.L.C., New Orleans, LA, for defendant.
ORDER AND REASONS
VANCE, District Judge.
Before the Court are cross-motions for summary judgment. For the following reasons, the Court GRANTS the EEOC's motion in part and DENIES it in part, and the Court DENIES DuPont's motion.
I. BACKGROUND
Laura Barrios is a 56 year-old woman with severe scoliosis of the lumbar spine, lumbar disc disease with sciatica, lumbar spinal stenosis with compression neuropathy, neurogenic bladder, cervical spondylosis, previous cervical disc disease with surgical fusions, and reactive depression. Barrios has considerable difficulty walking. Barrios began to work for DuPont in its LaPlace chemical plant as a lab operator in 1981. In 1986, Barrios became a lab trainer/operator. In March of 1997, DuPont transferred Barrios to the sedentary position of lab clerk under a 287 number of medical restrictions. Specifically, DuPont restricted Barrios from, inter alia, climbing *287 stairs or straight ladders, standing for more than ten minutes at a time, and walking more than 100 feet without rest.
In May of 1999, the DuPont plant physician ordered Barrios to undergo an functional capacity evaluation (FCE). On July 6, 1999, DuPont received the results of the FCE. On July 7, 1999, DuPont restricted Barrios from walking anywhere on the plant site. At that time, she was placed on short-term disability and then on Total and Permanent disability. The EEOC contends that DuPont terminated Barrios because of her disability in walking, in violation of the Americans with Disabilities Act. DuPont responds that the ability to evacuate on one's own by ambulating was an essential function of Barrios's job or a qualification standard required of everyone who worked at the plant. Therefore, DuPont asserts that Barrios's walking restriction meant that she would not be able to safely evacuate the facility in the event of an emergency. Thus, DuPont argues that it was justified in terminating Barrios because she posed a threat to herself and others in her inability to perform the essential job function of evacuating. DuPont contends that it considered accommodating Barrios, but concluded that there was no reasonable way to do so.
The EEOC, on the other hand, submits that evacuating is not an essential function of Barrios's job, and even if it is, Barrios could evacuate safely, either on her own or with accommodations. Therefore, the EEOC argues that Barrios was qualified to do her job and that she was not a direct threat to herself or others.
Finally, the EEOC argues that the FCE that DuPont administered to Barrios violated the ADA because is was not jobrelated. DuPont contends that the FCE was a justified inquiry to determine Barrios's fitness for duty and therefore complied with the ADA. Both parties now seek summary judgment.

II. LEGAL STANDARDS: SUMMARY JUDGMENT AND ADA
A. Summary Judgment
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2551, 91 L.Ed.2d 265 (1986). The court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mack & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir.1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The moving party bears the burden of establishing that there are no genuine issues of material fact. Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1445 (5th Cir. 1993). A factual dispute precludes a grant of summary judgment if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. See Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757 (5th Cir.2001) (citations omitted).
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. Celotex, 477 U.S. at 325, 106 S.Ct. at 2552; Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring 288 to evidence, set out specific facts showing that a *288 genuine issue exists. Celotex, 477 U.S. at 324,106 S.Ct. at 2553.
B. The ADA Framework
The ADA prohibits discrimination against "a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). At the outset, the plaintiff must establish a prima facie case of a violation of the ADA. Specifically, the employee must (1) be disabled within the meaning of the ADA, (2) be "a qualified individual with a disability," and (3) have suffered an adverse employment decision because of her disability. See Hamilton v. Southwestern Bell Telephone Co., 136 F.3d 1047, 1050 (5th Cir.1998).
Once the plaintiff makes a prima facie case, the burden shifts to the employer to show that it did not discriminate on the basis of disability or that it is entitled to an affirmative defense under the ADA. Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 511 (5th Cir.2003); 42 U.S.C. § 12113. Under the ADA:
It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this subchapter.
42 § 12113(a). "The term `qualification standards' may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace." Id. at § 12113(b). An employee is a direct threat if she poses "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." Id. at § 12111(3). The EEOC has interpreted this provision to apply to threats not only to other individuals, but also to the employee herself. 29 C.F.R. § 1630.2(r); see also Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73,122 S.Ct. 2045,153 L.Ed.2d 82 (2002)(concluding that the direct threat to self regulation was a reasonable exercise of the EEOC's authority).
III. THE PRIMA FACIE CASE

A. Prong 1: Was Barrios "Disabled" Under the ADA?

An employee may have a "disability" under the ADA in one of three ways. Specifically, the ADA defines "disability" as:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). The parties do not dispute that Barrios is impaired in walking, and that walking is a major life activity. See 29 C.F.R. 1630.2(i)(listing walking among major life activities). The issue here is whether Barrios was substantially limited in walking or regarded as such.

The ADA does not explicitly define "substantially limits," but the EEOC regulations provide the Court with guidance. "Substantially limits" means:

(i) Unable to perform a major life activity that the average person in the general population can perform; or

(ii) Significantly restricted as to the condition, manner or duration under which an individual can

289

perform a particular *289 major life activity as compared to the condition, manner or duration

under which the average person in the general population can perform the same major life activity.

29 C.F.R. § 1630.2(j)(1). A substantially limiting impairment is determined with reference to (1) the nature and severity of the impairment, (2) its duration or expected duration, (3) its permanent or expected permanent longterm impact. Id. at § 1630.2(j)(2); see also Hamilton, 136 F.3d at 1050 (referencing the regulations). To determine whether an individual is substantially limited in a major life activity, the Court must conduct an individualized inquiry. Sutton v. United Air Lines, Inc., 527 U.S. 471, 483, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999); Lynch v. Lee, 2004 WL 1900463, at *3 (E.D.La. Aug.20, 2004). The Court must then consider how well an average person in the general population can perform the activity. Lynch, 2004 WL 1900463, at *3.

(1) Was Barrios Actually Disabled?

There is no dispute that Barrios's physical conditions, including her severe thoracic and lumbar scoliosis, impair her ability to walk. The issue is whether Barrios's impairment substantially limits her ability to walk. Based on the extensive summary judgment record before the Court, the Court finds that issues of fact preclude summary judgment on the question of whether Barrios was substantially limited in walking. The Court makes this determination in light of the caselaw under the ADA, which requires more than moderate difficulty in walking before a person can be determined to be substantially limited in walking. See Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir.1999)(finding that "[m]oderate difficulty experienced while walking does not rise to the level of a disability"); see also Wynn v. Whitney Holding Corp., 220 F.Supp.2d 582, 589-90 (M.D.La.2002)(noting that "moderate restrictions" on walking do not amount to substantial limitation). For example, walking with a limp or walking slower than others does not necessarily rise to the level of substantial limitation. See, for example, Talk, 165 F.3d at 1025 (finding that walking significantly slower than others and walking with a limp did not constitute a substantial limitation); Stone v. Entergy Svs., Inc., 1995 WL 368473, at *4 (E.D.La. June 20, 1995) (finding that inability to walk briskly and climb stairs did not amount to a substantial limitation on the plaintiffs ability to walk). Additionally, the inability to walk long distances does not necessarily rise to the level of substantial limitation. See Porch v. Dillard's Inc., 2004 WL 1809813, at *5 (N.D.Tx. Aug.12, 2004)(finding that the plaintiff was not substantially limited where the evidence showed only that she was unable to stand all day or walk for long periods of time); Martin v. AIMCO Properties, 2002 WL 1575411, at *2 (N.D.Tx. July 16, 2002) (finding that the

plaintiff was not substantially limited in walking even though she walked with a slight limp and became fatigued at distances).
On the other hand, great difficulty in walking can rise to the level of a substantial limitation. See McGarthy v. Ridge, 2004 WL 1542161, at *4 (N.D.Tx. July 7, 2004) (finding that the plaintiff was substantially limited in walking where she had difficulty walking, even with assistive devices). For example, a person who required the use of a wheelchair was found to be substantially limited in walking. Sapp v. MHI P'ship, 199 F.Supp2d 578, 583 (N.D.Tx.2002). Similarly, the caselaw indicates that a person who uses other assistive devices, such as a cane, 290 can be substantially limited in walking. Cf. McGarthy, 2004 WL 1542161, at *4; Gonzales *290 v. Columbia Hosp. at Medical City Dallas Subsidiary, 2002 WL 31245379, at *3-4 (N.D.Tx. Oct.l, 2002) (finding a material issue of fact as to whether plaintiff was substantially limited in walking when, inter alia, the plaintiff walked with a cane).
Here, Barrios does not use a wheelchair or any other type of assistive device when she walks. (Def.'s Ex. A, Dep. of Barrios at 83.) In addition, Barrios's own testimony is a major obstacle to summary judgment for the EEOC on the "substantially limiting" issue. For example, Barrios stated that she does not experience shortness of breath when she walks short distances. (Def.'s Ex. A, Dep. of Barrios at 124.) She asserts that she has never stopped walking because she got short of breath or experienced chest pains. (Def.'s Ex. A, Dep. of Barrios at 124.) She has never held on to the walls to balance herself. (Def.'s Ex. A, Dep. of Barrios at 125.) In the 18-year period that she worked at DuPont, Barrios stated that she fell only once, and that was when she slipped on her kitchen floor. (Def.'s Ex. A, Dep. of Barrios at 151.)
Moreover, Barrios walks up the stairs of her porch to the entrance of her home without assistance, and she walks around her home. (Def.'s Ex. A, Dep. of Barrios at 100.) When she worked for DuPont, she walked down the hall to the printer and copier every day, many times a day. (Def.'s Ex. A, Dep. of Barrios at 94-5.) She maintains that she could walk a block. (Def.'s Ex. A, Dep. of Barrios at 98.) Barrios testified that during a visit to the DuPont facility in 2003, she was able to walk at least three "city blocks," and she successfully walked an evacuation route that was approximately a quarter of a mile long. (Def.'s Ex. A, Dep. of Barrios at 98-100, 170-71; PL's Tab H, Expert Report of Kuylen at 11 (noting that she evacuated without assistance); Def.'s Ex. B, Dep. of Kuylen at 59, 60; PL's Tab C, Dep. of Ordeneaux at 197-98.) Additionally, Barrios is able to go grocery shopping and run errands. (Def.'s Ex. A, Dep. of Barrios at 103, PL's Tab H, Expert Report of Kuylen at 3.)
Barrios's own doctors indicate that she can walk short distances frequently. (Def.'s Ex. G, Dep. Of Palmer at 18; Def.'s Ex.B, Dep. of Jackson at 67.) Dr. John Jackson, a neurologist who has treated Barrios, sees no reason why Barrios would fall from a neurologic standpoint. (Def.'s Ex. B, Dep. of Jackson at 67) Indeed, "she has good strength in her legs. I've tested that. She has good reflexes." (Def.'s Ex.B, Dep. of Jackson at 67.) The foregoing evidence suggests a level of impairment that falls short of a substantial limitation in walking under the caselaw.
On the other hand, the facts that would clearly support a finding of a substantial limitation in walking come from DuPont's witnesses. The DuPont physicians, Dr. Gene Burns and Dr. Stanislaus St. Martin, opine that Barrios cannot safely walk at all. (See Def.'s Ex. A, Dep. of Barrios at 148; Def.'s Ex. K, Dep. of Burns at 19, 56, 57, 69-70; PL's Tab L, Dep. of St. Martin at 16.) Dr. St. Martin calls Barrios's walking impairment "[m]oderate to severe." (PL's Tab L, Dep. of St. Martin at 17.) Specifically, Dr. St. Martin maintains that Barrios is substantially limited in her ability to walk in comparison to the average person. (PL's Tab L, Dep. of St. Martin at 17.)
DuPont imposed a number of restrictions on Barrios's ability to walk and perform related tasks while at DuPont. Specifically, as of September of 1996, DuPont restricted Barrios from climbing stairs or straight ladders, standing for more than ten minutes at a time, and walking more than 100 feet without rest. (PL's Tab C, Dep. of Ordeneaux 291 at 56; PL's Tab L, Dep. *291 of St. Martin at 25; Def.'s Ex. A, Dep. of Barrios at 141.) Ultimately, DuPont restricted Barrios from walking anywhere on-site in July of 1999. (Def.'s Ex. K, Dep. of Burns at 18.) In explaining the walking restriction, Dr. Burns testified that "we were concerned" about Barrios's "basic walking skills." (Def.'s Ex. K, Dep. of Burns at 30.) In his opinion, Barrios "could not dependably be counted on to walk safely." (Def.'s Ex. K, Dep. of Burns at 57; see also Dep. of Burns at 71-72; PL's Tab F, Aff. of Barrios at 117 (stating that on July 7, 1999, the plant physician told her that she was not safe to take one step on the plant site).)
Because the facts conflict as to the extent that Barrios was limited in her ability to walk, the Court denies summary judgment on the issue of whether she was actually disabled in walking.

(2) Did DuPont Regard Barrios as Disabled in Walking?
An employee may be disabled under the ADA when her employer regards her as having a substantially limiting impairment. 42 U.S.C. § 12102(2)(C). To be "regarded as" disabled, the EEOC must show that (1) Barrios's impairment does not substantially limit her ability to walk, but (2) DuPont, nevertheless, treated her as though her impairment substantially limits her ability to walk. See 29 C.F.R. § 1630.2(0(1);[1]see also Deas v. River West, L.P., 152 F.3d 471, 480 (5th Cir.1998)(determining what the employer's perception of the employee's limitation was, and whether that perception rose to the level of substantial limitation). For example, under the "regarded as" inquiry, an employer who "regards" an employee as substantially limited in walking would misperceive the employee's impairment to cause her great difficulty in her ability to walk. Cf. McGarthy, 2004 WL 1542161, at *4.
As determined, supra, genuine issues of fact preclude summary judgment on the first part of the "regarded as" inquiry, i.e. whether Barrios's impairment does or does not substantially limit her ability to walk. However, the Court finds that no issues of fact exist as to the second part of the "regarded as" inquiry. On the discrete issue of whether DuPont treated Barrios's impairment as a substantial limitation on her ability to walk, the Court concludes that no reasonable juror could find that DuPont did not. Therefore, the Court grants summary judgement to the EEOC on the discrete issue that DuPont 0907 correctly or incorrectly 0907treated Barrios as having an impairment that substantially limited her ability to walk.
The evidence points ineluctably to this conclusion. There is no dispute that Du-Pont plant physicians act on behalf of Du-Pont when they impose medical restrictions on DuPont employees. (PL's Tab C, Dep. of Ordeneaux at 51.) The plant physicians base medical restrictions on the employee's physical condition and the doctors' best medical judgment. (PL's Tab C, Dep. of Ordeneaux at 52, 53; Def.'s Ex. K, Dep. of Burns at 48.) As early as 1996, DuPont plant physician Dr. St. Martin medically restricted Barrios's ability to walk. Specifically, Dr. St. Martin prohibited Barrios from walking more than 100 feet without rest, standing for more than ten minutes at a 292 time, and climbing stairs or straight ladders. (PL's Tab C, Dep. of Ordeneaux at 52, 56; PL's Tab L, Dep. of *292 Dr. St. Martin at 12, 25.) Significantly, Dr. St. Martin thought that Barrios was substantially impaired in her ability to walk compared to an average person. (PL's Tab L, Dep. of St. Martin at 17.) Moreover, Dr. St. Martin thought Barrios should not have been able to work for DuPont in 1996 because of her inability to walk well. (PL's Tab L, Dep. of St. Martin at 16.) In his opinion, she should have retired. (PL's Tab L, Dep. of St. Martin at 27.)
On July 7, 1999, DuPont physician Dr. Burns restricted Barrios from walking anywhere on the plant site. (PL's Tab C, Dep. of Ordeneaux at 31, 47-49; Def.'s Ex. K, Dep. of Burns at 18-19; Def.'s Ex. J, Aff. of Ordeneaux at H4; Def.'s Ex. A, Dep. of Barrios at 148 (noting that Dr. Burns told her that he did not think she could walk on the plant site).) Significantly, the restriction was not limited to rough terrain or sensitive manufacturing areas. Instead, Barrios was restricted from walking onto the plant site, walking in her workspace, and walking away from the plant site. (Def.'s Ex. K, Dep. of Burns at 56, 62-3.) Dr. Burns's notes from July 7, 1999, are telling:
Significant inability with walking noted. Agreed that patient should not walk onto plant site. Significant inability requires neurologist consult soon ... Also need further instruction on body mechanics... Discussed with patient this a.m. importance of followup testing and risks of falls, treatment and nontreatment. Should not be walking around on plant or standing.
(Def.'s Ex. K, Dep. of Burns at 18-19.) Dr. Burns explained that "we were concerned" about Barrios's "basic walking skills." (Def.'s Ex. K, Dep. of Burns at 30.) He believed that based on the new inability revealed in her FCE, Barrios "could not dependably be counted on to walk safely." (Def.'s Ex. K, Dep. of Burns at 57; see also Dep. of Burns at 71-72; PL's Tab F, Aff. of Barrios at 117 (stating that on July 7, 1999, the plant physician told her that she was not safe to take one step on the plant site).) Dr. Burns noted that the therapist who conducted the FCE "did mention marked inability [to walk] and that basically she was a significant risk of falls wherever she was." (Def.'s Ex. K, Dep. of Burns at 26.) Relatedly, Dr. Burns opined that Barrios could stand safely for only "a very brief period of time." (Def.'s Ex. K, Dep. of Burns at 57.) Dr. Burns noted that Barrios would be "fine" working in a wheelchair or a golf cart. (Def.'s Ex. K, Dep. of Burns at 61, 63.) But, he indicated that Barrios might need assistance getting into and out of a wheelchair or a golf cart. Cf. Sapp, 199 F.Supp.2d at 583 (finding that a

plaintiff who uses a wheelchair is substantially limited in walking); cf. also McGarthy, 2004 WL 1542161, at *4 (finding that a plaintiff use walks with difficulty with the use of assistive devices is substantially limited in walking).
In addition to being completely restricted from walking on the premises by Du-Pont, Barrios receives Total and Permanent disability benefits from DuPont. Under the DuPont plan, "Total and Permanent disability means you are totally disabled by injury or disease and presumably are totally and permanently prevented from doing any gainful work, as determined by DuPont." (PL's Tab B, DuPont Discovery Documents at 0258 (emphasis added); see also Def.'s Ex. H, Dep. of Gregg at 42, 43-4, 90, 91-92.) Barrios went on Total and Permanent disability because of her inability to walk. (PL's Tab C, Dep. of Ordeneaux at 21, 22; see also PL's Tab B, DuPont Discovery Response to the EEOC's First Set of Interrogatories 9 (stating that "Barrios ... received a medical 293 retirement for total and *293 permanent disability due, in part, to the inability to walk").) DuPont forwarded Barrios's Total and Permanent disability application materials to its claims administrator, Aetna. (See Def.'s Ex. H, Dep. of Gregg at 35-6 (explaining that "an employee... who has a medical condition where our medical department has said that they have restrictions that are sufficiently limiting that they have the opportunity to apply for the T & P benefits, then our management will assistant [sic] them in an application").) Aetna, in turn, determined that Barrios was eligible for Total and Permanent disability "on Du-Pont's behalf." (Def.'s Ex. H, Dep. of Gregg at 92.) As with the permanent restriction on walking, Barrios's Total and Permanent disability status indicates that DuPont regarded Barrios as disabled. Compare Talk, 165 F.3d at 1025 (finding that because the employer actively sought alternate positions for the employee, the employer did not regard the employee as disabled) with Thompson v. E.I. DuPont de Nemours, 140 F.Supp.2d 764, 772-73 (E.D.Mich.2001) (noting that it would be difficult for DuPont to argue that the employee was not disabled because the employee was on Total and Permanent disability).
Additionally, DuPont and its representatives continually indicated in discovery responses, pleadings, and testimony that Barrios is substantially limited in walking. For example, in its statement of uncontested material facts, DuPont asserts that the FCE established that Barrios has "tremendous difficulty" walking. (Def.'s Statement of Uncontested Material Facts at H40.) DuPont's responses to the EEOC's interrogatories indicate that Barrios is completely disabled and requires the use of a wheelchair:
Interrogatory 9
Identify all persons whom DuPont has, from 1993 to the present, placed on total and permanent disability due to the inability to walk ...
Response to Interrogatory No. 9
[O]ther than Ms. Barrios, no person employed at the DuPont facility in LaPlace, Louisiana, during the relevant time period has received a medical retirement for total and permanent disability due, in part, to the inability to walk.
Interrogatory No. 10
Identify all persons whom DuPont has hired since 1993 who were unable to walk or who used a wheelchair ...
Response to Interrogatory No. 10
[N]o person has been employed at the DuPont facility in LaPlace Louisiana, during the relevant time period who required the use of a wheelchair, except for Ms. Barrios.
Interrogatory No. 11
Identify all persons who have since 1993 unsuccessfully applied to work at Du-Pont and were either unable to walk or used a wheelchair ...
Response to Interrogatory No. 11

No person has sought employment, or been employed at the DuPont facility in LaPlace, Louisiana, during the relevant time period with such restrictions, except for Ms. Barrios.
Interrogatory No. 12
Identify all persons employed by Du-Pont at the subject facility who have, at any time since 1993, become limited (temporarily or permanently) in their ability to walk ...
Response to Interrogatory No. 12
The only employee permanently disabled from walking during the relevant time period was Ms. Barrios.
(PL's Tab B, DuPont Discovery Responses to the EEOC's First Set of Interrogatories 9, 10, 11, 12.) DuPont's 294 response to the *294 EEOC's request for admissions indicates the same:
Request No. 40
As of the time of Laura Barrios's last day of work at DuPont, Defendant had determined that she was incapable of walking on site.
Response
Denied as written. Barrios' [sic ] FCE established that she was incapable of walking.
(PL's Tab B, DuPont Discovery Responses to the EEOC's First Set of Requests for Admissions 40.) Moreover, DuPont and its employees have expressed concerns about Barrios's difficulty walking. (PL's Tab C, Dep. of Ordeneaux at 30, 147 (noting that "[o]ne of the risks that DuPont has talked about at various points is the risk that Laura Barrios might fall and injure herself); PL's Tab E, Dep. of Weidner at 68; PL's Tab B, DuPont Discovery Documents, letter from Weidner to the EEOC at 0007 (stating that "[biased on observations by her immediate supervisor and others, a concern for Ms. Barrios' [sic ] personal safety was again raised due to her instability. Specifically there was a concern of her falling and possibly injuring herself."); Def.'s Ex. J, Aff. of Ordeneaux at ¶ 18 (revealing that DuPont ordered Barrios to take an FCE only "after other employees had noticed Barrios' [sic ] needing to brace herself against the walls as she walked down a hallway"), PL's Tab C, Dep. of Ordeneaux at 25-26 (verifying that Barrios's FCE established that she was incapable of walking).)[2] As with the permanent restriction on walking and her Total and Permanent disability status, the statements of DuPont and its employees indicate that DuPont perceived Barrios's impairment to substantially limit her ability to walk. Cf. Mclnnis v. Alamo Comty. Coll. Dist., 207 F.3d 276, 281-82 (5th Cir. 2000) (finding evidence that the college president referred to the employee's "handicap" and that the district's ADA compliance coordinator could tell from the employee's file that he was either disabled or regarded as disabled sufficient to raise an issue of fact as to whether the employer regarded the employee as disabled).
DuPont's only response to all of this evidence is that it did not intend to make a judgment about Barrios's general ability to walk when it permanently restricted her from walking anywhere on the plant site. Therefore, DuPont contends that it did not regard Barrios as disabled. (See Def.'s Ex. J, Aff. of Ordeneaux at ¶¶ 5-6.) In support of its response, DuPont cites to cases in which courts have held that the employer did not regard the employee as disabled simply because the employer was aware of the employee's impairment or aware of the employee's restrictions from performing a particular task. See Pryor v. Trane Co., 138 F.3d 1024, 1025, 1028 (5th Cir.1998) (noting that the evidence indicated that the employer did not regard the employee as disabled even though the employer knew of the employee's impairment and consequent limitations); Amadio v. Ford Motor Co., 238 F.3d 919, 925 (7th Cir.2001) (noting that employer did not regard employee as disabled simply because it knew he has Hepatitis B); Krocka v. City of Chicago, 203 F.3d 507, 514 (7th Cir.2000) (finding that the employer did not regard the employee as 295 disabled simply *295 because it knew of his depression and placed him in a personnel monitoring program); Harrington v. Rice Lake Weighing Sys., Inc., 122 F.3d 456, 460-61 (7th Cir. 1997) (finding that the employer's awareness of an employee's heavy lifting restrictions following surgery did not show that the employer regarded

the employee as disabled). DuPont's conduct does not fit the paradigm of the cited cases. This is not a case in which the evidence in the record shows only that the employer is aware of its employee's restriction from performing a discrete task, like heavy lifting. Instead, DuPont restricted Barrios from walking anywhere on the plant site, and walking itself is a major life activity. Compare Pryor, 138 F.3d at 1025 (noting that the employee was restricted from the discrete task of continuous, repetitive lifting). Moreover, this is not a case in which the only evidence in the record that could possibly indicate that the employer regarded the employee as disabled consists of the employer's simple knowledge of the employee's impairment. Compare Amadio, 238 F.3d at 925. On the contrary, DuPont knew of Barrios's impairment, DuPont affirmatively restricted her from walking, DuPont facilitated her application for Total and Permanent disability benefits, and Du-Pont repeatedly referred to her as unable to walk or requiring the use of a wheelchair.
Moreover, DuPont begs the question when it contends that it did not regard Barrios as disabled because it did not intend to make a judgment about Barrios's ability to walk in general when it permanently restricted her from walking on the plant site. The question is, did DuPont treat Barrios's walking impairment as substantially limiting? The degree of the impairment that DuPont's doctors found and the nature of the restriction DuPont imposed on Barrios show that DuPont perceived Barrios's impairment to be substantially limiting. As noted, Dr. Burns did not restrict Barrios from walking only on rough terrain, inclines, or near sensitive manufacturing areas. Instead, Dr. Burns restricted Barrios from walking anywhere on-site and he specifically said her impairment extends wherever Barrios is, "at home, at work, wherever." (See Def.'s Ex. K, Dep. of Burns at 69.) Significantly, Barrios's work area is made up of mostly flat, smooth surfaces. (See PL's Tab I, Expert Report of Stein at 9 (noting that Barrios worked in a single-story building with ground level entrances and exits, and the walkway and driveway outside of the building is paved and level).) If Barrios cannot safely walk anywhere on the Du-Pont plant site, then she cannot safely walk. Indeed, Dr. Burns expressly refused to compartmentalize Barrios's workplace restrictions and its implications for her general ability to walk. Instead, he noted that "[t]he workplace isn't in a vacuum." (Def.'s Ex. K, Dep. of Burns at 69.) "This is not just a plant issue." (Def.'s Ex. K, Dep. of Burns at 68-70.) The reason the restriction applied only at work was because that was the only place DuPont had the authority to restrict Barriosnot because DuPont regarded Barrios as ablebodied when she left the plant premises. (See Def.'s Ex. K, Dep. of Burns at 68-70 ("My authority ends, even for a plant physician, ends at the gate. As a safety issue, she really shouldn't be walking around."); PL's Tab C, Dep. of Ordeneaux at 97 ("DuPont is concerned about employees' safety while at work. They can't control my life beyond their property.").)
In light of DuPont's medical restrictions on Barrios, particularly DuPont's wholesale restriction prohibiting Barrios from walking anywhere on its premises, Barrios's Total and Permanent disability status on the DuPont disability 296 plan, and the statements of DuPont in pleadings and *296 discovery, the Court concludes that Dupont0907correctly or incorrectly0907treated Barrios's impairment as a substantial limitation on her ability to walk. Accordingly, the Court grants the EEOC summary judgment on the discrete issue of whether DuPont treated Barrios's impairment as a substantially limitation her ability to walk. As noted supra, whether Barrios's impairment in fact substantially limits her ability to walk is a question for the jury.
B. Prong 2: Was Barrios "Qualified"?
Only "qualified individuals with disabilities" are entitled to protection under the ADA. 42 U.S.C. § 12112(a). A "qualified individual" is an employee who can perform the "essential functions" of her job "with or without reasonable accommodation." 42 U.S.C. § 12111(8). The only "essential function" that DuPont argues that Barrios could not perform was the alleged function of evacuating the facility. (See PL's Tab C, Dep. of Ordeneaux at 29, 44; PL's Tab E, Dep. of Weidner at 94.) As a threshold matter, however, the Court finds that an issue of fact exists as to whether evacuating is an essential function of Barrios's job as a lab clerk.
Duties that are fundamental to the job are its "essential functions." See Kapche v. City of San Antonio, 176 F.3d 840 (5th Cir.1999). In contrast, essential functions do not include "marginal" duties. See 29 C.F.R. § 1630.2(n)(1). Therefore, only duties that are fundamental to Barrios's job of lab clerk are its essential functions. To determine whether a function is essential, the Court should consider "the employer's judgment as to what functions of the job are essential," and the employer's written description of the job if the employer wrote the description "before advertising or interviewing applicants for the job." 42 U.S.C. § 12111(8). See also Giles v. General Electric Co.,

245 F.3d 474, 486 (5th Cir.2001). Additionally, a job function could be essential if "(1) the purpose of the position is the performance of that function, (2) only a limited number of employees are available among whom the performance of that function can be delegated, or (3) an employee is hired because of [her] expertise or ability to perform a specialized function." Kapche, 176 F.3d at 843 (citing 29 C.F.R. 1630.2(n)(2)). The Court may also consider "the amount of time spent on the job performing the function,... the work experience of both past and current employees on the job," and the consequences of not requiring the employee to perform the function. Kapche, 176 F.3d at 843 (citing 29 C.F.R. § 1630.2(n)(3)(iii) and (vi)); 29 C.F.R. § 1630.2(n)(3)(iv).
The EEOC has pointed to significant evidence that evacuating is not an essential job function of a DuPont lab clerk. For example, evacuating is not listed in the lab clerk's job description. (PL's Tab C, Dep. of Ordeneaux at 362; PL's Tab B, DuPont Discovery Documents at 0375.) See Giles, 245 F.3d at 486 (upholding jury verdict because, inter alia, the task that the employee could not perform was likely not essential because it was not included in the job description); Riel v. Electronic Data Sys. Corp., 99 F.3d 678, 683 (5th Cir.1996) (finding an issue of fact existed as to whether a particular task was an essential function of the plaintiffs job because the job description did not include it). Additionally, evacuation is rarely if 0907 ever 0907required. (PL's Tab H, Expert Report of Kuylen at 12 (stating that evacuation is rarely required).) Notably, Barrios never had to evacuate in 18 years at DuPont. (Def.'s Ex. A, Dep. of Barrios at 168; PL's Tab C, Dep. of Ordeneaux at 71, 73, 130, 144.)
297 *297 Moreover, the lab clerk position does not exist to perform the function of evacuating. (PL's Tab C, Dep. of Ordeneaux at 141; Def.'s Ex. D, Dep. of Kuylen at 98; PL's Tab H, Expert Report of Kuylen at 12.) Compare Robertson v. The Neuromedical Center, 161 F.3d 292, 295 (5th Cir.1998) (finding that the duty of a neurologist to analyze tests and bloodwork was an essential function of his job because, inter alia, it was "one of the major reasons why his position existed in the first place"). Barrios was not hired for expertise in evacuating, and evacuation is not highly specialized. (PL's Tab C, Dep. of Ordeneaux at 142; Def.'s Ex. D, Dep. of Kuylen at 99; PL's Tab H, Expert Report of Kuylen at 12.) Additionally, the responsibility of evacuating can be distributed to other employees. (PL's Tab C, Dep. of Ordeneaux at 141.) Compare Robertson, 161 F.3d at 295 (finding that the duty of a neurologist to analyze tests and bloodwork was an essential function of his job because, inter alia, the ability to do so is highly specialized and cannot be distributed to others).
DuPont's witnesses, on the other hand, testified that evacuation is an essential function of the job of a lab clerk, as it is for all other plant employees, because of the nature of its chemical plant operations and the danger of hazardous gas emissions. (See PL's Tab B, DuPont Discovery Responses at 0842 (noting evacuation in the description of job requirements in a letter to Aetna); PL's Tab C, Dep. of Ordeneaux at 129-30, 142 (calling evacuation an "essential function of every position in the company"); PL's Tab D, Dep. of Internicola at 74-5 (testifying that safe evacuation is an essential function of every position).) The Court cannot disregard evidence of DuPont's view of what constitutes the essential functions of the job 0907 especially when the employer's judgment is one of the two factors that the statute requires the Court to consider. See 42 U.S.C. § 12111(8). Therefore, the Court concludes that an issue of fact exists as to whether evacuating is an essential function of the job of a DuPont lab clerk. Consequently, there is an issue of fact as to whether Barrios is "qualified."
C. Prong 3: Did Barrios Suffer an Adverse Employment Action Because of her Disability?
Because an issue of fact exists as to whether Barrios is qualified, the Court denies summary judgment on the issue of whether Barrios suffered an adverse employment action because of her disability.
IV. DUPONT'S AFFIRMATIVE DFENSE
The ADA prohibits an employer from using qualification standards that screen out or tend to screen out a disabled individual or a class of disabled individuals. Equal Employment Opportunity Comm. v. Exxon Corp., 203 F.3d 871, 872 (5th Cir.2000)(citing 42 U.S.C. § 12112(b)(6)). An employer may, however, raise an affirmative defense to a charge of discrimination under the ADA. Specifically, an employer may impose a qualification standard that is jobrelated and consistent with business necessity. 42 U.S.C. § 12113(a).

A qualification standard "may include a requirement that an individual shall not pose a direct threat to the health or safety of herself or others in the workplace. See 42 U.S.C. § 12113(b); Echazabal, 536 U.S. 73, 122 S.Ct. 2045 (concluding that the direct threat to self regulation was a reasonable exercise of the EEOC's authority). Direct threat means "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C. § 12111(3). The determination that an employee poses a direct threat to herself or 298 others "shall be based *298 on an individualized assessment of the person's `present ability to safely perform the essential functions of the job.'" Kapche, 176 F.3d at 844 (quoting 29 C.F.R. § 1630.2(r)). The Court should consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm in assessing whether an employee poses direct threat to herself or others in the workplace. 29 C.F.R. § 1630.2(r).
DuPont asserts that the ability to ambulate in the event of an emergency evacuation is a qualification standard that it imposes on all of its employees at the plant site. (Def.'s Ex. J, Aff. of Ordeneaux at ¶¶ 16, 19.) This is because the risk of a chemical explosion at a chemical manufacturing plant is constant and life-threatening. (Def.'s Ex. J, Aff. of Ordeneaux at ¶ 14.) Additionally, evacuees may have to alter their course of evacuation rapidly depending on the wind direction. (Def.'s Ex. J, Aff. of Ordeneaux at ¶ 10.) DuPont argues that Barrios failed to meet the standard in light of her medical restriction from walking. DuPont concluded that Barrios posed a "direct threat" to herself because she was unable to safely walk on the plant site and thus to evacuate in the event of an emergency.
The Court finds that issues of fact preclude summary judgment to either party on the direct threat defense. As a threshold matter, the Court finds that there is an issue of fact as to whether the ability to evacuate is a qualification standard that DuPont actually applies to all of its employees. Ordeneaux attested in his affidavit that it is, in fact, required of all employees. (Def.'s Ex. J, Aff. of Ordeneaux at ¶ 16.) Nevertheless, there is no identifiable written policy that requires that all employees be able to evacuate. (PL's Tab C, Dep. of Ordeneaux at 15.) Additionally, as early as September of 1996, Dr. St. Martin considered Barrios unable to evacuate because of her walking impairment. (PL's Tab L, Dep. of St. Martin at 29-31.) He appraised DuPont management of his concern. (PL's Tab L, Dep. of St. Martin at 34.) Despite Dr. St. Martin's concern, DuPont employed Barrios for the next two and a half years. This suggests that DuPont did not treat the ability to evacuate as a qualification standard. Moreover, there were several employees at DuPont who were more impaired in their ability to walk than Barrios was at various periods of time. (See PL's Tab C, Dep. of Ordeneaux at 177-84.) Despite their inability to evacuate, DuPont did not disqualify any of those employees from working while they were impaired. (PL's Tab C, Dep. of Ordeneaux at 177-84.) These circumstances also suggest that DuPont did not actually impose the alleged qualification standard.
There is also an issue of fact as to whether Barrios posed a direct threat. (See PL's Tab C, Dep. of Ordeneaux at 131.) For example, Dr. Burns testified that one of his primary concerns was Barrios's ability to evacuate0907especially in the context of a plant that manufactures hazardous chemicals. (Def.'s Ex. K, Dep. of Burns at 70.) On the other hand, based on the experience of the last 18 years, the likelihood that Barrios will ever have to evacuate the DuPont facility is small. (See PL's Tab C, Dep. of Ordeneaux at 69; Def.'s Ex. A, Dep. of Barrios at 168.) The risk that Barrios poses is not imminent. (PL's Tab C, Dep. of Ordeneaux at 133.) Moreover, the evidence conflicts as to whether Barrios can safely evacuate. (Compare Def.'s Ex. A, Dep. of Barrios at 98-100, 170-71; PL's Tab H, Expert Report of Kuylen at 11 (noting that she evacuated without assistance); Def.'s 299 Ex. B, Dep. of Kuylen at 59, 60; PL's Tab C, Dep. of Ordeneaux at 197-98 with Def.'s Ex. K, *299 Dep. of Bums at 30 (explaining that "we were concerned" about Barrios's "basic walking skills"); Def.'s Ex. K, Dep. of Burns at 57 (opining that Barrios "could not dependably be counted on to walk safely"); Dep. of Bums at 71-72.)
Finally, to prevail on its affirmative defense, DuPont must show that any threat Barrios may have posed could not be eliminated by reasonable accommodation. The employee bears the initial burden to notify her employer of her disability and to propose reasonable accommodations. See Taylor v. Principal Financial Group, 93 F.3d 155, 165 (5th Cir.1996) (citing 29 C.F.R. § 1630.9, App. (1995)). Here, DuPont was aware of Barrios's impairment. Once the employee requests an accommodation, the employee and employer share the burden of crafting a reasonable accommodation through a flexible, interactive process. See id; see also 29 C.F.R. § 1630.9. If the employer does not engage in a good faith interactive process, and this intransigence leads to a failure to

reasonably accommodate an employee, the employer violates the ADA. See Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir.1999)(citing Taylor v. Phoenixville School Dist., 174 F.3d 142, 165 (3rd Cir. 1999)).
There are issues of material fact as to whether DuPont considered reasonable accommodations. Ordeneaux testified that DuPont considered, and rejected, the possibility of a wheelchair. (PL's Tab C, Dep. of Ordeneaux at 93.) Ordeneaux also testified that DuPont discussed accommodating Barrios more than once. (See Def.'s Ex. J, Aff. of Ordeneaux at ¶ 17; PL's Tab C, Dep. of Ordeneaux at 94, 228.) On the other hand, Barrios testified that her attempts to find reasonable accommodations fell on deaf ears. (See PL's Tab F, Aff. of Barrios at ¶¶ 10-13.) Additionally, plant manager Joe Internicola has no recollection of any discussions about accommodating Barrios. (PL's Tab D, Dep. of Internicola at 15-16, 26-8, 40-7, 58.) Therefore, an issue of fact exists as to whether Du-Pont tried to reasonably accommodate Barrios such that she did not pose a direct threat to herself.
For the foregoing reasons, the Court denies summary judgment to both parties on the direct threat defense.
V. THE FUNCTIONAL CAPACITY EVALUATION
The EEOC also argues that Du-Pont violated the ADA in ordering Barrios to participate in the FCE. The ADA provides that an employer:
shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
42 U.S.C. § 12112(d)(4)(A). On the other hand, the ADA does not prohibit such exams when they are job-related and consistent with business necessity. Id. at § 12112(d)(4)(B). See also Fuzy v. S & B Engineers & Constructors, Ltd., 332 F.3d 301, 303 (5th Cir.2003)(noting that weight lifting test was job-related and therefore permitted under the ADA); Watson v. City of Miami Beach, 177 F.3d 932, 935 (11th Cir.1999)(finding that police department did not violate ADA when it required officer to undergo fitness for duty examination when he had a history of paranoia and overreaction); Equal Employment Opportunity Comm'n v. Prevo's Family Market, Inc., 135 F.3d 1089, 1094 (6th Cir.1998)(finding that inquiry into employee's HIV status did not violate the ADA where 300 the employee worked in the produce department of a grocery store where employees *300 were prone to cuts). A post-hiring demand for an examination is justified only when there is significant evidence that could cause a reasonable person to doubt whether an employee can perform her jobrelated functions. See Sullivan v. River Valley School Dist, 197 F.3d 804, 811 (6th Cir.1999).
First, the Court must determine whether the FCE is a disability-related inquiry. See Conroy v. New York State Dep't of Correctional Svs., 333 F.3d 88, 96 (2d Cir.2003)(considering whether the inquiry was a disability-related inquiry and therefore within the general prohibition of the ADA). As the FCE probed Barrios's physical ability to, inter alia, walk, stand, and climb, it would reveal the nature and severity of her disability. Therefore, FCE is within the ADA's general prohibition on medical exams that tend to reveal the nature and severity of an individual's disability.
The Court, however, finds that issues of fact exist as to whether DuPont was justified in ordering the FCE. DuPont states that the FCE was ordered because employees reported that Barrios "brac[ed]" the walls as she walked down the hallways. (Def.'s Ex. J, Aff. of Ordeneaux at ¶ 18.) According to DuPont, this raised doubts as to whether Barrios was fit for duty. Barrios, on the other hand, testified that she has never held onto the walls to assist her in walking. (Def.'s Ex. A, Dep. of Barrios at 125.) Therefore, the factual basis for the FCE is in dispute.
Moreover, the Court finds that issues of fact exist as to whether the FCE, as performed, was job-related and consistent with business necessity. According to Barrios, the FCE had nothing to do with her job. (Def.'s Ex. A, Dep. of Barrios at 88.) Her job was sedentary, and the FCE was "a very endurance type physical capacity test." (Def.'s Ex. A, Dep. of Barrios at 88.) Significantly, the FCE tested Barrios's ability to engage in activities from which DuPont had permanently restricted her. (PL's Tab F, Aff. of Barrios at ¶ 5, 6; PL's Tab B, DuPont Discovery Documents at 0383, 0384.) Barrios's job description in her FCE file contains a fax date that is after the date on

which she took the FCE. (PL's Tab B, DuPont Discovery Documents at 0375.) Additionally, the doctor who ordered the FCE cannot recall ever seeing Barrios's job description. (Def.'s Ex. K, Dep. of Burns at 31, 45-46.)
On the other hand, Dr. Burns testified that the FCE was to provide information concerning whether the employee could perform her job duties, including whether the employee could safely evacuate in an emergency. (Def.'s Ex. K, Dep. of Burns at 72.)
Accordingly, the Court denies both parties' motions for summary judgment on the issue of whether the FCE was illegal under the ADA.
VI. CONCLUSION
For the above reasons, the Court GRANTS the EEOC's motion in part and DENIES it in part. Furthermore, the Court DENIES DuPont's motion.
[1] An employee can also be "regarded as" disabled if she has an impairment that substantially limits major life activities only as a result of the attitudes of others toward such an impairment, or if she has no impairment at all but is treated by her employer as though she has a substantially limiting impairment. 29 C.F.R. 1630.2(1)(2) 0907(3).
[2] Shortly before Barrios left DuPont, Donna Negrotto, the plant nurse, suggested that Barrios get a walker. (Def.'s Ex. A, Dep. of Barrios at 79.) According to Barrios, Negrotto told her that a walker "would make it more easily explainable to people why I walked the way I do, that everybody can tell something is wrong with me, that if I had a walker, it would be easier for other people, that a walker would signify something, I guess." (Def.'s Ex. A, Dep. of Barrios at 79; see also 194.)
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 406 F.Supp.2d 645 (2005)
U.S. EQUAL OPPORTUNITY EMPLOYMENT COMMISSION v.
E.I. DU PONT DE NEMOURS & CO.
No. Civ.A.03-1605.
United States District Court, E.D. Louisiana.
June 6, 2005.
646789 *646 *647 *648 *649 Gregory T. Juge, Michelle T. Butler, Equal Employment Opportunity Commission New Orleans District Office, New Orleans, LA, for U.S. Equal Opportunity Employment Commission.
William David Aaron, Jr., Brian Eugene Sevin, Mark C. Carver, Goins Aaron, P.L.C., New Orleans, LA, for E.I. Du Pont De Nemours & Co.
ORDER AND REASONS
VANCE, District Judge.
The defendant moves the Court for renewed judgment as a matter of law or, alternatively, a new trial. The defendant also moves the Court to amend the judgment. For the following reasons, the Court DENIES DuPont's motion.
I. BACKGROUND
Laura Barrios is a 56 year-old woman with severe scoliosis of the lumbar spine, lumbar disc disease with sciatica, lumbar spinal stenosis with compression neuropathy, neurogenic bladder, cervical spondylosis, and previous cervical disc disease with surgical fusions. Barrios has considerable difficulty walking. Barrios began to work for E.I. DuPont de Nemours in its LaPlace chemical plant as a lab operator in 1981. In 1986, Barrios became a lab trainer/operator. In March of 1997, DuPont transferred Barrios to the sedentary position of lab clerk under a number of medical restrictions, such as no standing for more than ten minutes at a time and no walking more than 100 feet without rest.
In May of 1999, the DuPont plant physician ordered Barrios to undergo an functional capacity evaluation (FCE). On July 6, 1999, DuPont received the results of the FCE. On July 7, 1999, DuPont restricted Barrios from walking anywhere on the plant site. At that time, DuPont placed Barrios on short-term disability leave and ultimately discharged her on Total and Permanent disability.
On June 5, 2003, the Equal Employment Opportunity Commission sued DuPont on Barrios's behalf. The EEOC asserted that DuPont forced Barrios to undergo an FCE in violation of the Americans with Disabilities Act, and that DuPont discharged Barrios in violation of the ADA. Before trial, the parties filed cross motions for summary judgment. The Court granted the EEOC's motion for summary judgment in part and denied in part, and the Court denied DuPont's motion in all respects. Specifically, the Court found that DuPont regarded Barrios as disabled 650 under *650 the ADA, but the Court found that issues of fact existed as to whether Barrios was actually disabled under the ADA, whether the ability to evacuate was an essential function of Barrios's job, whether Barrios posed a direct threat to herself or others, and whether DuPont violated the ADA in ordering the FCE.
In October of 2004, the Court held a three-day jury trial in the matter. DuPont moved the Court for judgment as a matter of law at the close of the EEOC's evidence and at the close of all of the evidence. The Court denied both motions, and the case went to the jury. The jury found that DuPont discharged Barrios in violation of the ADA. As a result, the jury awarded Barrios $91,000.00 in back pay, $200,000.00 in front pay, and $1,000,000.00 in

punitive damages. The Court later reduced the punitive damages award to the $300,000.00 statutory cap. The jury did not find that DuPont required Barrios to undergo an FCE in violation of the ADA.
DuPont moves the Court for post-trial relief on several grounds. First, DuPont contends that the Court's jury verdict form was defective. Second, DuPont argues that the Court erred in admitting the testimony of Joan Stein, the EEOC's expert on evacuation of individuals with disabilities. Third, DuPont asserts that the evidence is insufficient to establish that (1) Barrios is disabled from walking, (2) Barrios is disabled from working, (3) Barrios could perform the essential functions of her job, and (4) Barrios was not a direct threat. Finally, DuPont argues that the damages award is incorrect. The Court finds that DuPont's arguments are without merit.
II. DISCUSSION
A. Legal Standards
(1) Judgment as a Matter of Law
The Court will grant judgment as a matter of law under Rule 50 only when the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable jurors could not arrive at a different verdict. Arsement v. Spinnaker Exploration Co., L.L.C., 400 F.3d 238, 248-49 (5th Cir.2005). The Court will consider all of the evidence, and draw factual inferences in favor of the EEOC. DP Solutions, Inc. v. Rollins, Inc., 353 F.3d 421, 427 (5th Cir.2003). The Court, however, leaves credibility determinations, the weighing of the evidence, and the drawing of all legitimate inferences from the facts to the jury. Id. A mere scintilla of evidence, however, "`is insufficient to present a question for the jury'" as "`there must be a conflict in substantial evidence to create a jury question.'" Id. (quoting Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 804 (5th Cir.1997)).
(2) New Trial
Rule 59(a) provides that the Court may grant a new trial "for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Fed. R. Civ. Proc. 59. Therefore, the Court may grant a new trial if it finds that the verdict is against the weight of the evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error was committed in its course. See Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir.1985). When a party moves for a new trial on evidentiary grounds, the Court will not grant a new trial unless "the verdict is against the great weight of the evidence." Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th Cir.1998).
(3) Alter of Amend the Judgment
651 The Court has considerable discretion to grant or to deny a motion to alter or *651 amend the judgment under Rule 59(e). See Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993). The Court, however, must "strike the proper balance between the need for finality and the need to render a just decision on the basis of all the facts." Id. at 355. Courts in this district hold that a moving party must satisfy at least one of the following criteria to prevail on a Rule 59(e) motion: (1) the motion is necessary to correct a manifest error of fact or law; (2) the movant presents newly discovered or previously unavailable evidence; (3) the motion is necessary in order to prevent manifest injustice; or (4) the motion is justified by an intervening change in the controlling law. See Scordill v. Louisville Ladder Group, L.L.C., NO. CIV. A. 02-2565, 2004 WL 1118302, at *3 (E.D.La. May 18, 2004).
B. The Jury Verdict Form
DuPont complains that the jury verdict form was defective because the Court did not submit separate interrogatories on DuPont's direct threat defense and on the elements of punitive damages. Instead, the form asked, "Do you find that DuPont discharged Laura Barrios in violation of the Americans with Disabilities Act?" and "Do you find that DuPont is liable for punitive damages?" At the outset, the EEOC contends that DuPont waived its objection to the form. The Court, however, noted DuPont's objection for the record. (R. at 525.) Accordingly, the Court rejects the EEOC's waiver argument, and the Court will address DuPont's position on the merits.
The Court first instructed the jury to consider whether the EEOC proved the essential elements of its case by a preponderance of the evidence. Specifically, the Court instructed the jury that the EEOC had to prove that (1)

Barrios was disabled under the ADA; (2) that she was qualified to perform her job; and (3) that DuPont discharged her because of her disability. See 42 U.S.C. § 12112(a). See also Hamilton v. Southwestern Bell Telephone Co., 136 F.3d 1047, 1050 (5th Cir.1998). The Court explained to the jury that an employee may be disabled under the ADA in one of three ways. Specifically, the ADA defines "disability" as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). The Court also explained that "substantially limits" means:
(i) Unable to perform a major life activity that the average person in the general population population can perform; or
(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform the same major life activity.
29 C.F.R. § 1630.2(j)(1). The Court instructed the jury to consider (1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent longterm impact, when determining whether Barrios had a substantially limiting impairment. Id. at § 1630.2(j)(2); see also Hamilton, 136 F.3d at 1050 (citing the regulations).
The Court also instructed the jury that Barrios was "qualified" to do her job only if she could perform its essential 652 functions, with or without reasonable accommodation. The Court instructed that the essential *652 functions of a
job are the fundamental duties of the position, and not the marginal duties of the position. 29 C.F.R. § 1630.2(n) (1). Additionally, the Court instructed that a reasonable accommodation is a modification to the work environment or the manner in which the employee customarily performs her job that allows a person with a disability to perform the essential functions of the job. 29 C.F.R. § 1630.2(o). The Court explained that under the ADA, a reasonable accommodation may include, but is not limited to, making existing facilities used by employees readily accessible to and usable by individuals with disabilities, job restructuring, reassignment to a vacant position, acquisition or modification of equipment or devices, and adjustment or modification of policies. Id. The Court further explained that once an employee protected under the ADA has requested a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation in consultation with the employee.
The Court then instructed the jury that if the EEOC established the essential elements of its claim, the jury must consider DuPont's defense that it justifiably discharged Barrios because she was a "direct threat" to her own safety or to the safety of others. The Court explained that an employer may impose a qualification standard that an employee not pose a "direct threat" to her own health and safety or the health and safety of others. 42 U.S.C. § 12113(a)-(b). See also Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 79, 122 S.Ct. 2045, 153 L.Ed.2d 82 (2002). The Court explained that an employee is a direct threat if she creates a significant risk to the health or safety of herself others that cannot be eliminated by reasonable accommodation. 42 U.S.C. § 12111(3). See also Chevron, 536 U.S. at 79, 122 S.Ct. 2045. Like any other qualification standard, the Court explained, a direct threat standard must apply to all employees and not just to employees with disabilities. 29 C.F.R. pt. 1630.2(r) App. The Court instructed the jury that DuPont had the burden to prove its defense by a preponderance of the evidence, and Court further instructed the jury that if DuPont carried its burden, then the jury must find for DuPont.
The Court has broad discretion in the formulation of jury interrogatories. Sikes v. Gaytan, 218 F.3d 491, 494 (5th Cir.2000) (citing Barton's Disposal Serv., Inc. v. Tiger Corp., 886 F.2d 1430, 1434 (5th Cir.1989)). Significantly, DuPont does not argue that the verdict form somehow misstated the law, nor does DuPont argue that the Court's instructions to the jury on the elements of the EEOC's claim or the elements of DuPont's direct threat defense were in error or that the verdict form and the instructions were inconsistent with each other. Indeed, the verdict

form was not misleading and was easy to understand, particularly when the jury considered the verdict form in light of the Court's jury instructions, which the jury was instructed to do. Moreover, DuPont cites no authority to support its argument that separate interrogatories on its direct threat defense were required. On the contrary, the Fifth Circuit has affirmed a district court's decision to combine the issues of liability and affirmative defense into a single interrogatory. Sikes, 218 F.3d at 494 (affirming district court's decision to combine issues of liability and the defense of qualified immunity into a single interrogatory).
Similarly, DuPont complains that the jury verdict form was defective with regard to punitive damages. The Court 653 instructed the jury that it may award punitive damages if the EEOC proved that *653 DuPont intentionally
discriminated against Barrios with malice or reckless indifference to Barrios's federally protected rights. Williams v. Trader Publishing Co., 218 F.3d 481, 487 (5th Cir.2000). The Court explained that this means that DuPont must have discriminated in the face of a perceived risk that its actions will violate federal law. Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 537, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999). The Court also explained that in the punitive damages context, DuPont may not be liable for the discriminatory employment decisions of its managerial agents when those decisions are contrary to DuPont's good-faith efforts to comply with the law. Id. at 545, 119 S.Ct. 2118.
As noted supra, the Court has broad discretion in the formulation of jury interrogatories. Again, DuPont does not argue that the verdict form somehow misstated the law, nor does DuPont argue that the Court's instructions to the jury on punitive damages were in error or that the verdict form and the instructions were inconsistent with each other. Instead, the verdict form along with the Court's jury instructions provided an accurate statement of the law. DuPont cites no authority to support its argument that the Court had a duty to interrogate the jury on the individual elements of a punitive damages claim. Indeed, the Court has no such duty. Accordingly, the Court finds that DuPont's argument that the jury form was defective is without merit.
D. The Testimony of Joan Stein
DuPont argues that it is entitled to judgment as a matter of law or a new trial because it contends that the Court erred in admitting the testimony of Joan Stein, the EEOC's expert on evacuation of individuals with disabilities. First, DuPont complains that Stein was not qualified because she has no formal education in the ADA. DuPont, however, fails to identify the formal ADA education it contends is necessary to such an expert's qualifications.
Second, DuPont complains that Stein is not "accredited as an expert." The Court finds that DuPont fails to show that Stein lacked some necessary type of accreditation. It is true that during its examination of Stein, DuPont pointed out that Stein is not accredited in the ADA or accredited by the International Council of Building Officials. But, Stein testified without contradiction that there is no organization that performs ADA accreditation. (Testimony of Stein at 214.) Moreover, DuPont fails to explain why accreditation by the ICBO is essential to qualify Stein as an expert. Indeed, DuPont fails to explain what the ICBO is. Additionally, DuPont offers no professional opinion that Stein should have had ICBO accreditation in order to be qualified to testify as an expert.
Moreover, the trial evidence demonstrates that Stein was sufficiently qualified to testify as an expert on the basis of her extensive experience. Among other things, Stein has served as the president and CEO of Accessibility Development Associated, Inc., an Americans with Disabilities Act consulting firm, since 1992. (Testimony of Stein at 201.) Her company works with businesses and corporations, educational institutions, and governmental entities to facilitate compliance with the ADA. (Testimony of Stein at 202, 203.) She works with architects and building owners in the design phase of new facilities, and she reviews existing facilities to determine their accessibility and recommend ways to improve accessibility. (Testimony of Stein at 202-06.) Emergency evacuation planning is a part of every facility review Stein conducts, and Stein has conducted more than 800 654 facility reviews herself and has supervised more than 5,000 *654 facility reviews. (Testimony of Stein at 206.) Additionally, Stein has developed approximately 20 emergency evacuation plans for employers and building owners in the last five years. (Testimony of Stein at 207.) Stein has given more than 130 speeches on the ADA and accessibility, and she has given 15 speeches on emergency evacuation and planning. (Testimony of Stein at 210.) Her speeches are approved for continuing education credit for lawyers, architects, engineers, facility managers, real estate agents, and insurance professionals. (Testimony of Stein at 210.) Clearly, Stein's experience qualified her to testify as an expert in emergency evacuation of individuals with disabilities. DuPont had ample opportunity to explore any weaknesses in Stein's expertise and experience on cross-examination. See

Thompson v. Amerada Hess Corp., NO. CIV. A. 96-3265, 1998 WL 274260, at *4 (E.D.La. May 26, 1998) (no error when court heard expert testimony because expert was sufficiently qualified by experience, and opponent had ample opportunity to explore weaknesses on cross-examination).
DuPont also argues that the Court erred in admitting Stein's testimony about her business partner's use of a wheelchair on the basis of relevance. Evidence is relevant if it has any tendency to make any material fact more or less probable than it would be without the evidence. Fed.R.Evid. 401. The Court finds that Stein's testimony as to her partner's ability to evacuate in a wheelchair was relevant because an issue in this case was whether Barrios could safely evacuate in the event that she needed to be accommodated with a wheelchair. Stein's testimony as to how her partner evacuates their office building in the event of an emergency tends to make it more probable that an individual in a wheelchair can safely evacuate.
E. Actual Disability: Walking and Standing
DuPont argues that there was insufficient evidence to support a verdict that Barrios was disabled in walking or standing. As the Court instructed the jury, an individual is disabled, i.e., substantially limited, in walking or standing when she is unable to walk or stand or is significantly limited in the ability to walk or stand compared to an average person in the general population. See 29 C.F.R. § 1630.2(j)(1). See also Hamilton v. Southwestern Bell Telephone Co., 136 F.3d 1047, 1050 (5th Cir.1998).
The jury received substantial evidence from which it could have reasonably concluded that Barrios was substantially limited in walking and/or standing. First, several witnesses testified that Barrios is substantially limited in walking. Specifically, Barrios testified that she is substantially limited in both walking and standing as compared to an average person. (Testimony of Barrios at 531, 534.) Similarly, Barrios's husband, Raymond Barrios, testified that Barrios walks substantially differently from an average person, that she limps, and that she walks at half the speed of an average person. (Testimony of Raymond Barrios at 415-16, see also testimony of Barrios at 533.) Barrios's personal physician, Dr. Christy Montegut, opined that Barrios is substantially limited in walking as compared to an average person, and Dr. Montegut has approved Barrios for handicapped license plates. (Testimony of Montegut at 446, 434-35.) Finally, the DuPont human resources representative, Monk Ordeneaux, stated that, in his opinion, Barrios is substantially limited in walking as compared to an average person. (Testimony of Ordeneaux at 335.) In contrast to the several witnesses who testified that Barrios is 655 substantially limited in walking, no witness testified that *655 she is not substantially limited in walking or standing.
Second, Barrios's impairment not only curtails her mobility to a significant degree, but also it causes her extreme pain every day. (Testimony of Barrios at 101, 188; see also testimony of Montegut at 446 (noting that Barrios's pain is severe).) Barrios has taken medication for several years to combat pain. (Testimony of Barrios at 105, 108-09.) As Dr. Montegut opined, pain can be debilitating, and Barrios's pain prevents her from walking more than a quarter of a mile. (Testimony of Montegut at 446, 438.) Further, as Barrios testified, she is unable to stand for more than ten to fifteen minutes at a time, and if she were to stand for an hour without rest, she would experience severe pain for several days afterwards. (Testimony of Barrios at 534.)
Third, DuPont placed several physical restrictions on Barrios as a result of her impairment. For example, several years earlier, DuPont restricted Barrios from heavy lifting and extended standing. (Testimony of Barrios at 106.) Then, in September of 1996, DuPont restricted Barrios from climbing stairs and straight ladders, standing for more than ten minutes at a time, walking more than 100 feet without stopping to rest, lifting more than 20 pounds, bending, twisting, stooping, and working around moving machinery. (Testimony of Barrios at 114-15.) Although medical restrictions are not dispositive of whether Barrios is substantially limited in walking, the jury could have found them probative of her physical condition. Notably, DuPont considers its restrictions to be based on "medical necessity." (Testimony of Ordeneaux at 245-46.)
Similarly, according to DuPont, it was not safe for Barrios to walk in her office building, which consists of smooth, flat surfaces. (Testimony of Ordeneaux at 265; testimony of Clay at 501.) This is because DuPont considered Barrios to be at risk of falling. (Testimony of Ordeneaux at 266.) The jury could have reasonably concluded that, unlike Barrios, an average person in the general population could walk safely on smooth, flat surfaces. Furthermore, the FCE that DuPont ordered Barrios to undergo revealed that she is significantly unstable while

walking heel to toe and that she uses improper body mechanics. (Testimony of Barrios at 171; testimony of Burns at 392.) Ultimately, the DuPont plant physician who placed the 1996 restrictions on Barrios testified that Barrios's inability to walk is a continuous concern, i.e. "at home, work, or wherever." (Testimony of Burns at 399-400.)
Finally, DuPont repeatedly encouraged Barrios to retire on Total and Permanent disability since 1986 (testimony of Barrios at 102-03; testimony of Raymond Barrios at 403), and DuPont ultimately discharged Barrios on Total and Permanent disability. Under DuPont's Total and Permanent disability policy, "Total and Permanent disability means you are totally disabled by injury or disease and presumably are totally and permanently prevented from doing any gainful work, as determined by DuPont." (Testimony of Ordeneaux at 270; see also Pl.'s Ex. 518 at 258.) Although evidence that DuPont encouraged Barrios to retire on disability and ultimately discharged her on disability is not dispositive of whether she was actually disabled, the jury again could have found it probative of her physical condition. See Gonzales v. Columbia Hosp. at Med. City Dallas Subsidiary, NO. 3:01-CV-1287-P, 2002 WL 31245379, at *3 (N.D.Tex. Oct.1, 2002)(noting that "[w]hile receipt of Social Security Disability benefits are not conclusive proof that [the plaintiff] was disabled, it is indicative of disability").
656 *656 In the face of all of this evidence, DuPont argues that the evidence was insufficient for the jury to have concluded that Barrios was disabled in walking or standing. This is because Barrios does not use assistive devices when she walks. (See testimony of Barrios at 164-65.) Although the use of an assistive device is probative of whether an individual is substantially limited in walking or standing, the use of an assistive device is not the sine qua non of being substantially limited in walking or standing. Thus, the appropriate inquiry is not simply whether Barrios uses an assistive device. Instead, the inquiry is whether Barrios is "[s]ignificantly restricted as to the condition, manner, or duration" in which she can walk or stand as compared to an average person in the general population. 29 C.F.R § 1630.2(j)(1)(ii). Cf. also Toyota Motor Mfg., Kentucky Inc. v. Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002)(noting that Congress intended the existence of a disability to be determined on a case-by-case basis).
DuPont also argues that Barrios is not substantially limited in walking or standing because Barrios has some ability to walk. For example, Barrios can walk a steep levee, albeit with difficulty, on occasion. (Testimony of Barrios at 545; testimony of Raymond Barrios at 421.) Barrios, however, testified that walking a levee on a daily basis would be physically "devastating" to her. (Testimony of Barrios at 536.) DuPont also notes that Barrios can walk up the five steps leading to her house, walk short distances without experiencing shortness of breath, and walk two city blocks without experiencing shortness of breath. (Testimony of Barrios at 165-66.) Evidence that Barrios has some ability to walk, however, does not necessarily establish that Barrios is not substantially limited in walking. Indeed, the jury could have reasonably concluded that Barrios's abilities are substantially restricted compared to an average person. This is because it would be reasonable to conclude that someone who is unable to climb more than five steps at a time regularly, walk more than a short distance without stopping for rest, or walk more than two city blocks without experiencing shortness of breath is significantly limited in walking as compared to an average person.
In light of all of the evidence presented at trial, the Court concludes that there was sufficient evidence to support the jury's conclusion that Barrios is substantially limited in walking or standing. Further, although DuPont relies on several cases to argue that Barrios is not substantially limited in walking or standing, none of the individuals in those cases was as limited as Barrios. See Rossbach v. City of Miami, 371 F.3d 1354, 1359 (11th Cir.2004) (plaintiffs contending that they could not walk for "extended periods of time" were not disabled from walking because evidence of purported disabilities "was couched in vague terms and unaccompanied by any evidence that the described afflictions were any worse than is suffered by many adults"); Penny v. United Parcel Serv., 128 F.3d 408, 415 (6th Cir.1997)(no disability when evidence is only that plaintiff limps on occasion and it sometimes hurts to walk); Kelly v. Drexel Univ., 94 F.3d 102, 106 (3d Cir.1996)(plaintiff not disabled when he could walk a mile, but could not jog and climbed stairs more slowly than he had in the past); Harmon v. Sprint United Mgmt. Corp., 264 F.Supp.2d 964, 969 (D.Kan.2003)(plaintiff not disabled when he could, inter alia, walk one half mile and mow the lawn); Miller v. Airborne Express, NO. 3:98-CV-0217-R, 1999 WL 47242, at *5 (N.D.Tex. Jan.22, 1999)(plaintiff not disabled from standing when he could stand continuously for one half hour); Stone v. Entergy 657 Services, Inc., CIV. A. NO. 94-2669, at *3-4 (E.D.La. *657 June 20, 1995) (plaintiff not disabled from walking when he could not run, had limited endurance, and walked more slowly than others, but his doctor testified that he was not disabled). Therefore, DuPont's argument is without merit.

Accordingly, the Court denies DuPont's motion with respect to whether the jury could have found that Barrios was actually disabled. The Court must uphold the jury's verdict unless there is no legally sufficient evidentiary basis to support it. As the evidence is sufficient to prove that Barrios was actually disabled from walking and/or standing, the Court need not reach DuPont's contention that the evidence was insufficient to support a conclusion that Barrios was disabled from working.[1]
F. Essential Functions
DuPont argues that there is insufficient evidence that Barrios could perform the essential functions of her job. This is because, according to DuPont, Barrios could not walk in the event of an emergency evacuation. As noted supra, the essential functions of a job are the fundamental duties of that position. 29 C.F.R. § 1630.2(n)(1). Marginal duties of a position are not essential functions. Id. A job duty or function may be considered essential because, inter alia, one of the reasons the job exists is to perform that function, or because there are a limited number of employees available among whom the performance of that job function can be distributed, or because the function is highly specialized, and the employee in the position was hired for his or her expertise or ability to perform that particular function. Id. at § 1630.2(n)(2). Evidence of whether a particular function is essential includes, but is not limited to, DuPont's own judgment as to which functions are essential, the existence of written job descriptions prepared before advertising or interviewing applicants for the job, the amount of time an employee spends performing the function on the job, the consequences of not requiring the incumbent to perform the function, the work experience of past incumbents in the job, and/or the current work experience of incumbents in similar jobs. Id. at § 1630.2(n)(3).
The jury could have reasonably concluded from the testimony of the witnesses for both sides that evacuating was not an essential function of the job of a DuPont lab clerk. Indeed, DuPont's human resources representative, Ordeneaux, testified (1) that evacuating is not an essential function of Barrios's job under his interpretation of the ADA, (2) that evacuating is not part of Barrios's job description, and (3) that Barrios performed all of her essential job functions. (Testimony of Ordeneaux at 248-50, 299.) Likewise, vocational rehabilitation expert Douglas Kuylen opined that emergency evacuation "would not be a central function of her job." (Testimony of Kuylen at 374, 375-76.)
In addition to these opinions, the evidence showed that Barrios never had to evacuate, and Barrios's office building never had to evacuate during her 18 years of employment. (Testimony of Barrios at 141, 143; see also testimony of Ordeneaux at 249; testimony of Stein at 225.) Although Pat Murphy, a DuPont security and emergency planning and response employee, testified that the threat of an emergency is ever-present at the 658 DuPont plant and the ability to evacuate is important, he also testified that the likelihood of *658 an emergency actually occurring is improbable. (Testimony of Murphy at 448, 461.) Ultimately, there was sufficient evidence in the record for a jury to reasonably conclude that evacuating was not an essential function of Barrios's job.
Moreover, even if evacuating were an essential function of Barrios's position, there was ample evidence from which the jury could conclude that Barrios could, in fact, evacuate by walking in the event of an emergency. Although Dr. Burns restricted Barrios from walking on the plant site, Barrios demonstrated that she could walk an evacuation route from her old office building to the farthest rally point and back in 2003. (Testimony of Ordeneaux at 290; testimony of Kuylen at 369-70; testimony of Stein at 222.) Barrios did not require assistance during the evacuation, nor did she fall during the evacuation. (Testimony of Ordeneaux at 290; testimony of Kuylen at 370; testimony of Stein at 223.) Although Barrios's ability to walk the evacuation route in 2003 is not dispositive of her ability to walk the evacuation route in 1999, it is probative of her abilities in 1999.[2] Kuylen opined that Barrios could safely evacuate the DuPont plant by walking. (Testimony of Kuylen at 375; see also testimony of Ordeneaux at 292-93 (noting that, although the route that Barrios walked was only one possible route and was over smooth terrain, Barrios can safely evacuate based on what he observed).) Likewise, Joan Stein, an expert in the evacuation of people with disabilities, opined that Barrios can evacuate safely by walking without posing a threat to herself or to others. (Testimony of Stein at 223, 229.)
Not only did the evidence show that Barrios could safely evacuate by walking, but also the evidence showed that Barrios could safely evacuate with accommodation. Ordeneaux testified that DuPont was concerned about

Barrios's ability to evacuate over uneven terrain, and Ordeneaux identified as an area of concern a drainage ditch that is 24 inches deep and 10 to 12 inches wide. Ordeneaux, however, admitted that Barrios could possibly have crossed the ditch in a wheelchair had DuPont placed plywood or metal grates over it, or had fellow employees lifted her over the ditch. (Testimony of Ordeneaux at 277-79.) In the alternative, Barrios could have evacuated with other assistive devices, such as crutches or a walker. (Testimony of Ordeneaux at 287, 294, 290-91; testimony of Stein at 224, 227-29.) There was also evidence that a motorized wheelchair or scooter would have been a reasonable accommodation, even recognizing that DuPont prohibited the use of non-emergency vehicles during emergencies. This is because DuPont's policy is based on the possibility that a vehicle will produce a spark, and motorized wheelchairs and scooters come with spark-free gel batteries. (Testimony of Stein at 119, 229; testimony of Ordeneaux at 280-81; 285.) Additionally, DuPont could have provided Barrios with an escort, or DuPont could have evacuated Barrios on a stretcher. (Testimony of Ordeneaux at 287, 291; testimony of Stein at 227.) Accordingly, the jury could have reasonably concluded that evacuating was not an essential function of Barrios's job, and even if it was, the jury could have reasonably concluded that Barrios could have evacuated with or without accommodation.
G. The Qualification Standard of No Direct Threat
659 DuPont argues that the jury's conclusion that DuPont did not prove that Barrios *659 posed a direct threat is clearly erroneous. As the Court instructed the jury, an employer may require, as a qualification standard, that an employee not pose a direct threat to herself or others. 29 C.F.R. pt. 1630.2(r) App. A direct threat is a significant risk of substantial harm to the health or safety of the individual or other persons that cannot be eliminated by reasonable accommodation. 29 C.F.R. § 1630.2(r). In order to determine whether Barrios was a direct threat, the Court instructed the jury to consider (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm. 29 C.F.R. § 1630.2(r). Furthermore, the determination as to whether a direct threat exists must be based on a specific personal assessment of Barrios's ability to safely perform the essential functions of her job. 29 C.F.R. pt. 1630.2 (r) App. This assessment is based on either a reasonable medical judgment that relies on the most current medical knowledge, or on the best available objective evidence. Id. An employer cannot rely on generalized fears about risks to individuals with disabilities to disqualify an individual with a disability. Id. Likewise, a slightly increased risk or a remote or a speculative risk is not sufficient to amount to a direct threat. Id. DuPont bore the burden to prove its direct threat defense.
The evidence indicated that the likelihood of an emergency evacuation at the DuPont plant is slim, and the risk of substantial harm to Barrios was not imminent. (Testimony of Murphy at 461; testimony of Ordeneaux at 288-89.) Barrios never had to evacuate in her 18 years at DuPont, nor did her building ever have to evacuate while Barrios worked at DuPont. (Testimony of Barrios at 141, 143; see also testimony of Ordeneaux at 249; testimony of Stein at 225.) Moreover, although the testimony at trial indicated that there is a continuous risk of a life-threatening chemical explosion at DuPont (testimony of Ordeneaux at 319, 321; testimony of Murphy at 448, 461; testimony of Kuylen at 376), the evidence showed that Barrios could evacuate safely with or without accommodation in the event of such an emergency. (See Section II.F., supra. See also testimony of Stein at 230 (opining that Barrios did not pose a direct threat to herself in the event of an emergency evacuation).) Accordingly, there was sufficient evidence for the jury to reject DuPont's direct threat defense.
DuPont cites three cases in support of its argument that it proved that Barrios was a direct threat in the event of an emergency evacuation. Those cases, however, are inapposite. First, in Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 122 S.Ct. 2045, 153 L.Ed.2d 82 (2002), the Supreme Court affirmed the EEOC's regulation that gives an employer a defense to a charge of discrimination on the basis of an employee's threat to himself. The employer in the case, a chemical refinery, discharged the plaintiff because exposure to the chemicals at the refinery would exacerbate his liver disease. Id. at 76, 122 S.Ct. 2045. Contrary to DuPont's representation, the case never addressed or even mentioned the ability to evacuate.
In Rios v. Indiana Bayer Corp., 965 F.Supp. 919 (S.D.Tex.1997), the plaintiff, an employee with a prosthetic leg, worked in a chemical plant. The plaintiff's doctor restricted him from, inter alia, working more than eight hours at a time, lifting more than 50 pounds, and climbing ladders. Id. at 920. The plaintiff successfully worked in the chemical plant as a clerk under his restrictions from 1984 to 1994. Id. In 1994, the plaintiff applied for a position

660 as a production technician. Id. *660 Production technicians were required to work rotating 12-hour shifts, carry heavy equipment, and climb ladders. Id. at 923. Production technicians also had special emergency duties, and in the event of an emergency were required to move quickly throughout the unit to fix problems and rescue other personnel. Id. The plaintiff's employer rejected his application because the plaintiff could not perform the functions of a production technician with or without accommodation. Id. at 920. The court found that the plaintiff could not perform the essential functions of the position, and the court noted that the plaintiff could pose a safety threat if he could not quickly evacuate the unit or rescue other personnel. Id. at 924. Significantly, unlike Barrios, the Rios plaintiff applied for a position that required him to perform special emergency duties. In light of the clear differences in the positions at issue, the Court finds that Barrios's situation is simply not analogous to the situation in Rios.
Similarly, Barrios's situation is distinguishable from Wilson v. Phillips Petroleum Co., NO. 2:97-CV-439-J, 1998 WL 874835 (N.D.Tex. Dec.8, 1998). In Wilson, the plaintiff, who suffered from bipolar disorder, worked as a pump engine mechanic at a refinery. One day, she entered a manic episode at work and thought that God told her a bomb had been placed in the refinery and that she had to find it. Id. at *1. After the incident, the employer discharged the plaintiff. Id. at *2. The plaintiff admitted that she could not perform her job during a manic episode, with or without accommodation. Id. She also admitted that she posed a safety threat during a manic episode. Id. The court determined that recognizing emergencies, reacting to emergencies, activating alarm systems, and rescuing other employees were duties of all employees. Id. at *4. Notably, the plaintiff had experienced emergency incidents in the course of her employment requiring her to extinguish fires and rescue others who had been gassed or badly burned. Id. at *1. The court found that the plaintiff would be unable to perform her duties and that she would pose a direct threat if she experienced a manic episode at work. Id. at *4.
Wilson is distinguishable from the present case. First, the nature of the disability is different. Second, the Wilson plaintiff had experienced several emergency situations in the past, and she had been required to take certain actions in response to those emergency situations. Barrios, on the other hand, did not encounter an emergency situation in 18 years at DuPont, and DuPont does not contend that Barrios would be charged with special emergency duties, such as rescuing other personnel and extinguishing fires. Ultimately, it appears that the probability of an emergency occurring at the Wilson plant is greater than the probability of a similar event at DuPont. Furthermore, the Wilson plaintiff admitted that she could not perform her job, even with accommodation. Here, on the other hand, the evidence was sufficient to show that Barrios could both perform her job and evacuate the DuPont facility in the event of an emergency. Wilson, like the two other cases upon which DuPont relies, is simply not analogous.
H. Damages
(1) Back Pay
Back pay is an equitable remedy available to claimants under the ADA. The Court typically decides the availability of equitable relief, such as back pay. See Giles v. Gen. Elec. Co., 245 F.3d 474, 492 (5th Cir.2001) (noting that back pay is equitable); Allison v. Citgo Petroleum Corp., 151 F.3d 402, 423 n. 19 (5th Cir.1998)(noting 661 *661 that back pay is a question for the court, not the jury); Wilson v. Belmont Homes, Inc., 970 F.2d 53, 55 (5th Cir. 1992). Under Federal Rule of Civil Procedure 39(c), however, the parties may consent to a trial by jury on the issue of back pay even though the ADA does not expressly authorize one. See Gloria v. Valley Grain Prods., Inc., 72 F.3d 497, 499 (5th Cir.1996)(noting that the parties consented to a trial by jury in a Title VII action and affirming the jury's award of back pay). Here, the parties requested a trial by jury on all issues, with the exception of front pay. (R. Doc. 70, Pretrial Order at 35.) Therefore, the parties effectively requested a trial by jury on the issue of back pay, and neither disputes that they did for the purposes of this motion. See Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 501 (7th Cir.2000)(finding that the parties impliedly consented to have the jury determine the availability of back pay under the ADA). Under Rule 39(c), the jury's verdict "has the same effect as if trial by jury had been a matter of right." FED. R. CIV. P. 39(c).
The jury awarded Barrios $91,000.00 in back pay. At the time of her discharge, Barrios earned $48,000.00 per year. (Testimony of Barrios at 152.) In the five years since her termination, Barrios earned approximately $28,000.00 per year in benefits. (Testimony of Barrios at 151-52.) This means that the jury awarded Barrios approximately $20,000.00 per year in back pay.

DuPont contends that the award of back pay is either incorrect or excessive because Dr. Montegut testified that Barrios would have been unable to work beginning in June of 2001. (Testimony of Montegut at 440.) But Dr. Montegut later testified that Barrios's back is stable, and her real limitation comes from the pain associated with her impairment. (Testimony of Montegut at 446.) Moreover, Barrios testified that if she could have worked during that time without losing her benefits, she would have. Likewise, Kuylen opined that Barrios was capable of working. (Testimony of Kuylen at 374.) Kuylen based his opinion on a review of Barrios's medical records and an examination of Barrios actually performing the functions of her lab clerk position at DuPont in 2003. (Testimony of Kuylen at 365-68.) Although there is a conflict in the evidence as to whether Barrios could have worked beyond June of 2001, the jury could have reasonably concluded that she could have. Furthermore, the amount of back pay that the jury awarded has a sufficient basis in the evidence. Accordingly, DuPont's objection to the award of back pay is without merit.
(2) Reinstatement and Front Pay
DuPont argues that an award of front pay is inappropriate because, according to DuPont, the EEOC presented no evidence as to whether reinstatement was appropriate. The Court decides the availability of equitable relief such as reinstatement and front pay. See, e.g., Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir.1992) ("Since front pay is an equitable remedy, the district court rather than the jury should determine whether an award of front pay is appropriate, and if so, the amount of the award."); Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869, 870 (5th Cir.1991) (same); Deloach v. Delchamps, Inc., 897 F.2d 815, 823 (5th Cir. 1990) (same); Daigle v. Liberty Life Ins. Co., Civ. A. No. 94-1594, 1995 WL 224418, at *1 (E.D.La.1995) (same). Reinstatement is the preferred remedy for a discriminatory discharge. Julian v. City of Houston, Texas, 314 F.3d 721, 728 (5th Cir.2002). When there is discord or hostility between the parties, however, reinstatement may not be feasible. 662 See Pollard *662 v. E.I. duPont de Nemours & Co., 532 U.S. 843, 850, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001) (noting that hostility may make reinstatement not feasible). When reinstatement is not feasible, front pay is the appropriate remedy. Julian, 314 F.3d at 728.
The Court finds that reinstatement is not a feasible remedy in this case because the relationship between the parties is hostile. For example, Barrios testified that Internicola, the person who made the ultimate decision to discharge her, stated that he did not want to see her "crippled, crooked self going down the hall, hugging the walls anymore." (Testimony of Barrios at 140.) According to both Barrios and her husband, DuPont tried repeatedly to force Barrios out on Total and Permanent disability. DuPont first suggested it in 1986, and continued to "harass" Barrios about retiring on disability for the rest of her tenure at DuPont. (Testimony of Barrios at 102-03; testimony of Raymond Barrios at 403.) When she married Raymond Barrios, DuPont increased the pressure on her to retire on Total and Permanent disability, asserting that she would be entitled to her husband's health benefits. (Testimony of Barrios at 103-04; testimony of Raymond Barrios at 403.)
Moreover, the evidence shows that Barrios suffered an emotional toll as a result of DuPont's discrimination against her. The emotional baggage that Barrios carries as a result of DuPont's discrimination would likely affect her work performance to such an extent that reinstatement is not an adequate remedy. For example, Barrios testified that she has had nightmares about getting fired ever since she left the plant in 1999. (Testimony of Barrios at 196-98.) Before she returned to DuPont for the EEOC site review in 2003, Barrios experienced stress for several weeks, and she had difficulty sleeping for several nights leading up to it. (Testimony of Barrios at 530-31.) Furthermore, the evidence that DuPont recklessly disregarded Barrios's rights under the ADA, discussed in depth below in connection with the punitive damages award, only confirms that reinstatement is not a feasible option. Finally, DuPont maintained throughout the course of the litigation that Barrios is not qualified to work at DuPont. Even though the jury found that Barrios is, in fact, qualified to work at DuPont, DuPont's hostile position, along with all of the other evidence of the relationship between Barrios and DuPont, precludes the Court from imposing a remedy of reinstatement.
Because reinstatement is not feasible, the Court must determine whether Barrios is entitled to front pay. As noted supra, the Court decides the issue of the availability and the amount of front pay damages. The Fifth Circuit has held, however, that a district court may determine the availability and amount of front pay with the assistance of an advisory jury. See, e.g., Julian, 314 F.3d at 728 n. 25 (noting that a district court may determine front pay damages with an advisory jury if it wishes); Rutherford v. Harris County, 197 F.3d 173, 188 (5th Cir.1999) (same);

Allison v. Citgo Petroleum Corp., 151 F.3d 402, 423 n. 19 (5th Cir.1998) (same); see also FED. R. CIV. P. 39(c). Given the speculative nature of front pay damages and that "[t]he courts must employ intelligent guesswork to arrive at the best answer," Reneau, 945 F.2d at 870, the Court submitted the issue of front pay to the jury on an advisory basis. Here, the jury recommended a front pay award of $200,000.00. The Court finds that the jury's award was reasonable, and the Court adopts it.
663 Front pay "compensates the plaintiff for lost income from the date of judgment to the date the plaintiff obtains *663 the position she would have occupied but for the discrimination." Floca v. Homcare Health Svs., Inc., 845 F.2d 108, 112 (5th Cir.1988). As the Court instructed the jury, in determining an award of front pay, relevant factors include how long Barrios worked at DuPont, the permanency of her position, the nature of her work, her age, her physical condition, possible consolidation of jobs, and any other factor that may have impacted her employment relationship with DuPont. Reneau, 945 F.2d at 871.
The first issue that the Court must determine with regard to front pay is the length of time for which Barrios is entitled to compensation. The Court finds that an award of front pay until Barrios reaches age 65 is reasonable, and the Court notes that the jury's award reflects such a determination. This is because Barrios would have remained at DuPont for the rest of her working life. See Burns v. Texas City Refining, Inc., 890 F.2d 747, 753 n. 4 (5th Cir.1989) (noting that the court must find that the plaintiff would have remained at her job for the rest of her working life in order to justify an award of front pay for the rest of the plaintiff's working life). Barrios worked at DuPont for 18 years before DuPont illegally discharged her. Additionally, the work history of other DuPont employees who testified at trial indicates that it is not uncommon for DuPont employees to be career employees. (See testimony of Ordeneaux at 281 (stating that he has worked for DuPont for 35 years); testimony of Raymond Barrios (stating that he worked for DuPont for 30 years); testimony of Internicola at 341 (stating that he worked for DuPont for 23 years).) See Williams v. Pharmacia Opthalmics, Inc., 926 F.Supp. 791, 796 (N.D.Ind.1996) (considering the length of time that other employees worked for the employer). Moreover, Barrios is currently 56 years old. See Mathieu v. Gopher News Co., 273 F.3d 769, 779 (8th Cir.2001)(affirming award of front pay until employee reached 65, indicating that the longer employee worked for his employer, and the older he is at the time of his discharge, the more likely it is that an award of front pay until the end of the employee's working life is reasonable); Davis v. Combustion Eng'g, 742 F.2d 916, 923 (6th Cir.1984)(noting that the older an employee is, the more likely an award of front pay until the end of her working life is reasonable). Barrios's age combined with her tenure at DuPont and the evidence that shows that career employees are not unusual at DuPont indicates that Barrios would have likely remained at DuPont until she reached retirement age.
Additionally, the Court finds that Barrios would not have been subject to termination for poor work performance. This is because Barrios successfully performed her job duties as a lab clerk. (Testimony of Ordeneaux at 248-49.) Moreover, Barrios likely would have continued to work despite her physical impairment. Significantly, Barrios's trial testimony revealed her to be both committed and hard-working. (See, e.g., testimony of Barrios at 137 (describing her efforts to get her job back), 149 (stating that she did not want to be a burden on the government by accepting social security benefits because she could work), 193 (stating that her physical impairment did not prevent her from doing the work she had always done).) In addition, Kuylen opined that Barrios could physically perform her lab clerk position based on her medical records and his observations of Barrios actually performing her job duties. (Testimony of Kuylen at 374, 365-68.) Additionally, although Dr. Montegut questioned whether Barrios would have been able to continue working because of her severe pain, he 664 testified that her back condition is stable. (Testimony *664 of Montegut at 440, 446.) Furthermore, the evidence showed that Barrios has a high tolerance for pain. (Testimony of Barrios at 101 (stating that she has lived with considerable pain for years and has developed a high tolerance for pain as a result); testimony of Raymond Barrios at 416-18 (stating that Barrios has a high threshold for pain and noting that, for example, she chose the undergo a double knee replacement and stayed in the hospital for only five days even though Aetna approved her for 20 days).)
Not only does the Court find it unlikely that Barrios would have stopped working for DuPont due to her impairment, but also the Court finds it unlikely that Barrios would have left DuPont to pursue other opportunities. Barrios testified that there is no other business within her local area where she could work for pay comparable to what she received at DuPont, and DuPont offered nothing to refute Barrios's testimony. (Testimony of Barrios at 150.) Significantly, DuPont treats lab clerks, who essentially function as secretaries, the same in terms of pay and

seniority as lab operators, who are skilled technical industrial operators and whose jobs are significantly more physically demanding. (Testimony of Ordeneaux at 247-48.) See Llampallas v. Mini-Circuits Lab, Inc., No. 93-2053-CIV-ATKINS, 1995 WL 693211, at *3 (S.D.Fla. July 11, 1995)(awarding front pay for 15 years, i.e., for the remainder of the plaintiff's working life, because the plaintiff would be unable to find a job with a comparable salary). Therefore, it is unlikely that Barrios would have left DuPont in pursuit of other opportunities. Accordingly, the Court finds that an award of front pay until Barrios reaches age 65, i.e., an award covering nine years, is reasonable in this case.
Barrios made $48,000.00 per year when DuPont discharged her. There was evidence that Barrios received regular pay increases during her tenure at DuPont. For example, Barrios started at DuPont in 1981 making $8.89 per hour. (Pl.'s Ex. 520.) Within her first five years, Barrios received six step progressions and ultimately made $14.66 per hour in 1985. (Pl.'s Ex. 520.) At 40 hours per week, this comes out to approximately $30,492.00 per year. From 1985 to 1999, when her salary was $48,000.00 per year, Barrios's pay increased by an average of approximately $1,250 per year. (See Pl.'s Ex. 520, 551.) On the basis of this evidence, it was reasonable for the jury to adjust Barrios's front pay award to reflect modest pay increases. (See Pl.'s Ex. 520, 551.)
Additionally, as the Court instructed the jury, future income, such as Barrios's annual disability benefits, must be subtracted from the front pay award. Furthermore, the Court instructed the jury to discount Barrios's front pay award to present value by considering the interest that Barrios could earn on the award if she made a relatively risk-free investment. Ultimately, the jury arrived at an award of $200,000.00. Taking all relevant factors into account, including reduction to present value at a rate of approximately two percent, the jury's figure is reasonable. Accordingly, the Court adopts it.
DuPont argues that the jury's award is excessive because, according to DuPont, the jury awarded Barrios ten years of front pay at $20,000.00 per year, without reducing to present value. DuPont's characterization of the front pay award is incorrect, as the jury's award reflects consideration of the proper factors. Therefore, the Court rejects DuPont's objection to the front pay award.
(3) Mitigation
665 DuPont contends that any award for wage loss is incorrect because, according *665 to DuPont, Barrios failed to mitigate her damages. This is because Barrios did not get another job after DuPont discharged her on Total and Permanent disability. Plaintiffs have a responsibility to exercise reasonable diligence under the circumstances to minimize their damages. Sellers v. Delgado Coll. (Sellers II), 902 F.2d 1189, 1193 (5th Cir.1990). Therefore, plaintiffs have the duty to accept alternative employment that is substantially equivalent to their former job in terms of opportunities, compensation, working conditions, and status. Id. DuPont bore the burden to prove that Barrios failed to mitigate her damages. Id. To meet its burden, DuPont must have shown that substantially equivalent work was available to Barrios and that Barrios did not exercise reasonable efforts to obtain it. Id. If, however, DuPont proved that Barrios did not use reasonable efforts to mitigate her damages, DuPont does not have to show that there was substantially equivalent work available to Barrios. Id.
There is sufficient evidence to show that Barrios mitigated her damages. First, Barrios tried repeatedly to get her job at DuPont back after DuPont illegally discharged her. (Testimony of Barrios at 137-38; testimony of Ordeneaux at 272.) For example, Barrios offered to buy her own wheelchair or golf cart, or even ride a bicycle at work. (Testimony of Barrios at 137.) DuPont refused her requests. (Testimony of Barrios at 137.) Barrios also asked to demonstrate to DuPont that she could, in fact, walk the evacuation route, but DuPont refused her request. (Testimony of Ordeneaux at 272.) Barrios's attempts to get her job back are a form of mitigation. See West v. Nabors Drilling U.S.A., Inc., 330 F.3d 379, 393-94 (5th Cir.2003) (finding that the plaintiff's attempts to be re-hired by his former employer were attempts at mitigation).
In addition to trying to get her job back, Barrios mitigated her damages by accepting disability benefits. Significantly, Barrios testified that there were no opportunities in the LaPlace, Louisiana area in which she could make an amount of money comparable to the amount she was making at DuPont. (Testimony of Barrios at 150.) As noted supra, lab clerks are equivalent in the DuPont hierarchy in terms of pay and seniority to skilled technical industrial operators whose jobs are more physically demanding. (Testimony of Ordeneaux at 247-48.) Barrios's testimony that, as a person in her 50's, she could not have started afresh in a secretarial position with a new

employer in the same area of Louisiana area making close to $50,000.00 per year is not unreasonable. Indeed, the Court notes that before she started at DuPont, Barrios made only $21,000.00 per year. (Pl.'s Ex. 520.) Barrios further explained that if she had taken another job with a lesser salary, she would have been at risk of losing her disability benefits. (Testimony of Barrios at 150.) The outcome of such a situation is that Barrios would have made less money if she sought alternative employment than she would have received on disability benefits. (Testimony of Barrios at 150.) Accordingly, DuPont's argument that Barrios failed to mitigate her damages is not supported by the record. Furthermore, DuPont offered nothing to controvert Barrios's testimony, and James Gregg, a DuPont personnel relations consultant, admitted that Barrios could have lost some of her disability benefits had she sought alternative employment. (Testimony of Gregg at 515, 520-21.)
DuPont notes that the Fifth Circuit stated in Sellers v. Delgado Comm. Coll. (Sellers I), 839 F.2d 1132, 1139 (5th 666 Cir.1988), that if an employer proves that an employee "has not made reasonable efforts to *666 obtain work,"
the employer does not have to show that substantially equivalent work was available to the plaintiff. As the Fifth Circuit has since explained, however, "Sellers did not create . . . a legal threshold for measuring the duty to mitigate injury." Hill v. City of Pontotoc, 993 F.2d 422, 426 (5th Cir.1993). Instead, "[w]hether an injured person has mitigated [her] damages requires a factual assessment of the reasonableness of [her] conduct." Id. at 427; see also Sellers II, 902 F.2d at 1193 ("The reasonableness of a Title VII claimant's diligence `should be evaluated in light of the individual characteristics of the claimant and the job market.'") (quoting Rasimas v. Michigan Dept. of Mental Health, 714 F.2d 614, 624 (6th Cir.1983)).
For example, in Hill v. City of Pontotoc, the plaintiff applied for only two jobs in the two years after he was fired from his job as fire chief: one with an employer that had no openings, and another with an employer that could not hire him because of his participation on an oversight commission. 993 F.2d at 426-27. While the plaintiff was fire chief and after his discharge, he also served as the County Fire Coordinator, earning $500.00 per month. Id. at 427. The plaintiff testified that he applied for no other jobs because alternative employment would cause him to lose his position as County Fire Coordinator. Id. Instead, the plaintiff started his own business. Id. The Fifth Circuit ruled that, despite the plaintiff's failure to persistently pursue alternative employment, he had mitigated his damages because "[s]elf-employment may be a reasonable alternative to seeking other employment for purposes of mitigation." Id.
Barrios's case is akin to the situation in Hill. She explained that she did not seek opportunities with another employer because she would lose her disability benefits and ultimately be worse off than if she simply accepted DuPont's disability benefits and did not seek alternative employment. The Court finds that accepting disability benefits was a reasonable alternative to seeking a position with another employer in light of Barrios's particular circumstances. Accordingly, the Court finds that DuPont did not carry its burden on mitigation.[3]
(4) Punitive Damages
DuPont argues that the evidence is insufficient to support the jury's award of punitive damages. The Court instructed the jury that it was empowered to award punitive damages if it found that DuPont intentionally discriminated against Barrios with malice or reckless indifference to her federally protected rights. Hatley v. Hilton Hotels Corp., 308 F.3d 473, 476 (5th Cir.2002). This means that the employer "must at least discriminate in the face of a perceived risk that its actions will violate" the ADA. Kolstad v. American Dental Ass'n, 527 U.S. 526, 536, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999). DuPont is not liable for the discriminatory employment decisions of its managerial agents when those decisions are contrary to DuPont's good-faith efforts to comply with the law. Hatley, 308 F.3d. at 477.
The Court finds that the jury's award of punitive damages is supported by the evidence. The jury could have reasonably concluded that DuPont intentionally discriminated against Barrios with malice or reckless disregard 667 for her rights under the ADA on the testimony of DuPont's official representative at trial, Ordeneaux. *667 Ordeneaux's testimony established that DuPont is aware of its responsibilities under the ADA. (Testimony of Ordeneaux at 326; see also testimony of Gregg at 512 (stating that it is DuPont's policy to follow the ADA).) And, over the course of the trial, Ordeneaux admitted that (1) Barrios is disabled under the ADA, (2) Barrios performed all of the essential functions of her job, (3) evacuating was not an essential function of Barrios's job, and (4) Barrios could have evacuated the plant with or without accommodation. (Testimony of Ordeneaux at 334-35

(admitting that Barrios's restrictions reflect DuPont's medical opinion of her physical condition and that based on her restrictions, Barrios was substantially limited in, inter alia, walking), 248-49 (admitting that Barrios performed all of the essential functions of her job as a lab clerk), 250 (admitting that evacuating was not an essential function of Barrios's job under the ADA), 292-93 (noting that Barrios could safely evacuate based on what he observed during the EEOC site review), 277-79 (admitting that Barrios could have been accommodated with a wheelchair and metal grates over the ditch), 287, 294, 290-91 (admitting that Barrios could have been accommodated with assistive devices and other accommodations).)
Moreover, the jury could have reasonably concluded that DuPont failed in its duty to reasonably accommodate Barrios even though DuPont was aware of its responsibility to do so under the ADA. Ordeneaux said that DuPont management had conversations about accommodating Barrios before terminating her, but his testimony was vague and devoid of any specifics. (See, e.g., testimony of Ordeneaux at 271 (vaguely stating that DuPont explored "all the options").) Joe Internicola, the ultimate decision-maker, could not recall whether those conversations ever actually occurred. (Testimony of Internicola at 343-44 (admitting that he had no recollection of any conversation about accommodating Barrios), 346-47 (admitting that he could not recall spending any time determining whether Barrios could be accommodated instead of discharged).) Furthermore, Barrios testified that she called DuPont with several ideas for accommodations and even offered to pay for them herself. (Testimony of Barrios at 137-38.) DuPont, however, summarily rejected all of Barrios's suggestions. (Testimony of Ordeneaux at 272-74.)
There was also evidence from which the jury could have concluded that DuPont intentionally tried to prevent Barrios from doing her job, or at least made things more difficult for Barrios, in light of her impairment. For example, at one point DuPont made a change in one of its computer programs. (Testimony of Barrios at 119.) The change necessitated much extra work for the lab clerks. (Testimony of Barrios at 119.) Barrios said that all of the other clerks worked a lot of overtime in an effort to complete their work. (Testimony of Barrios at 119.) DuPont, however, had restricted Barrios from working overtime. As a result, Barrios had eight hours to complete the same amount of work that the other clerks could put in unlimited overtime to complete. (Testimony of Barrios at 119.) Additionally, as a lab clerk, Barrios used a printer frequently. (Testimony of Barrios 119-20.) All of the lab clerks' printers were next to their desks, except Barrios's. (Testimony of Barrios at 119-20.) Barrios's printer was more than 100 feet down the hall. (Testimony of Barrios at 119-20.) This created a difficult situation for Barrios in light of DuPont's restriction prohibiting Barrios from walking more than 100 feet without stopping for rest. The 668 computer department recommended moving Barrios's printer closer to her desk, but DuPont *668 refused. (Testimony of Barrios at 119-20.) The jury could have concluded from the foregoing that DuPont either used Barrios's restrictions to make it more difficult for her to do her job, or that DuPont disregarded the unique issues that Barrios presented. See Hardin v. Caterpillar, Inc., 227 F.3d 268, 271 (5th Cir.2000)(upholding a punitive damage award for pregnancy discrimination in light of evidence that the management was unreceptive to pregnancy and illness claims). Indeed, the jury could have interpreted DuPont's responses to the unique issues Barrios presented as evidence of hostility towards individuals with disabilities. Id. at 273 (noting that the employer's response to absentee claims within the context the pregnant employee presented could have been interpreted as expressing hostility towards pregnant employees).
Additionally, there was ample evidence from which the jury could conclude that DuPont's direct threat defense was a thinly veiled pretext for discrimination. Notably, although DuPont's stated purpose for terminating Barrios was a purported inability to evacuate, DuPont never actually tested Barrios to see whether she could evacuate. (Testimony of Ordeneaux at 272.) Indeed, when Barrios asked for an opportunity to demonstrate that she could evacuate in an effort to get her job back, DuPont refused to let her. (Testimony of Ordenneaux at 272.) In fact, Ordeneaux admitted that Barrios could evacuate. Furthermore, the jury could have concluded that DuPont's purported requirement that all employees be able to walk in the event of an emergency evacuation did not apply to all employees 0907 instead, it applied only to Barrios. This is because there was evidence that other employees who were more mobility-impaired than Barrios were not barred from the plant on the basis of safety and evacuation concerns. (Testimony of Barrios at 145-47, testimony of Ordeneaux at 292-94.) Hines v. Grand Casino of La., L.L.C., 358 F.Supp.2d 533, 546-47 (W.D.La.2005)(affirming the jury's decision to award punitive damages award in a sexual harassment suit because the employer applied company policies inconsistently to the plaintiff and other, similarly situated workers).

The jury could have also considered DuPont's repeated efforts to convince Barrios to retire on disability. In this regard, there was evidence from which the jury could have concluded that DuPont knew that Barrios should not retire on disability, but DuPont pressured her to do it anyway. This is because, in an effort to persuade Barrios to retire on disability, a DuPont doctor commented that Barrios's neurologist was "too ethical" to provide the requisite medical documentation to qualify Barrios for disability benefits, but that perhaps her personal care physician could be convinced to write the necessary letter to DuPont's disability insurance carrier. (Testimony of Barrios at 106.) The jury may have concluded from this evidence that DuPont wished to force out an individual with a disability whether she could work or not 0907 a reprehensible view with respect to individuals with disabilities. Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 942 (5th Cir.1996)(affirming a punitive damages award when the employer's actions demonstrated reprehensible views on race relations). Tellingly, when Internicola made the final decision to terminate Barrios, he admitted that he did not review Barrios's personnel file, her medical file, or her FCE. (Testimony of Internicola at 345-46.) Instead, Internicola admitted that once the plant physician restricted Barrios from walking on the plant site, the final decision was made. (Testimony of Internicola at 349.)
669 The last time Barrios spoke with Ordeneaux about possibly getting her job back *669 was when she received her 18-years of service plaque. (Testimony of Barrios at 140.) According to Barrios, Ordeneaux told her it was a "done deal," and the bottom line was that Joe Internicola said that he did not want to see her "crippled crooked self, going down the hall hugging the walls" anymore. (Testimony of Barrios at 140; but see testimony of Internicola at 351-52 (denying that he made the remark).) The jury could have concluded, on the basis of this evidence, that DuPont discharged Barrios on the basis of animus towards individuals with disabilities. See Patterson, 90 F.3d at 942 (upholding a punitive damages award when the employer used racial epithets). Ultimately, there is ample evidence from which the jury could have concluded that DuPont discriminated against Barrios with both malice and reckless indifference to her rights under the ADA. Accordingly, the Court rejects DuPont's objection to the punitive damages award on this ground.
DuPont argues that it is not liable because Ordeneaux and Gregg testified that DuPont's policy is to follow the law with regard to the ADA. (See testimony of Gregg at 512; testimony of Ordeneaux at 326.) The jury, however, could have rejected Ordeneaux's and Gregg's statements on the basis that they were simply conclusory assertions. There was no evidence that DuPont had a written or publicized employee anti-discrimination policy. There was no evidence of employee training. There was no evidence of an employee discrimination grievance procedure. Compare Hatley, 308 F.3d at 477 (finding that the employer established the good faith defense to punitive damages because the employer had a well-publicized policy forbidding discrimination, gave training to new employees, established a grievance procedure, and initiated an investigation into the plaintiff's complaint), with Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 286 (5th Cir.1999) (finding that evidence that the employer encouraged employees to contact management with grievances did not establish the good faith defense to punitive damages as a matter of law and noting that the employer provided no evidence of any specific anti-discrimination efforts). The evidence was sufficient for the jury to conclude that DuPont did not make good faith efforts to comply with the ADA.
DuPont argues in the alternative that the jury cannot award punitive damages when it does not award compensatory or nominal damages unless the defendant violated the plaintiff's constitutional rights. In this regard, DuPont notes that front pay and back pay are not considered "compensatory" under section 1981a, the civil rights damages provision applicable to the ADA. See 42 U.S.C.1981a(b)(2). Therefore, DuPont contends that Barrios cannot recover punitive damages because she did not receive a compensatory damages award under section 1981a. What appears to be underlying DuPont's argument is the common law policy that prohibits punitive damages when the plaintiff has not suffered any actual harm.
At the outset, nothing in the language of section 1981a limits punitive damages awards to cases in which the plaintiff receives compensatory damages within the meaning of section 1981a. See Provencher v. CVS Pharmacy, 145 F.3d 5, 11 (1st Cir.1998); Hennessy v. Penril Datacomm Networks, 69 F.3d 1344, 1352 (7th Cir. 1995). Moreover, the common law policy is inapplicable in situations in which a civil rights plaintiff has received damages for wage loss. This is because damages for wage loss redress actual harm, even though they are not 670 labeled as "compensatory" under section 1981a. Indeed, the Fifth Circuit has referred to damages for *670 wage loss as compensatory. Rubinstein v. Adm'rs of Tulane Educ. Fund, 218 F.3d 392, 407 (5th Cir.2000).

Furthermore, although the Fifth Circuit has never squarely addressed the issue of whether a civil rights plaintiff can recover punitive damages in the absence of a compensatory damages award within the meaning of section 1981a, it has affirmed a punitive damages award under those circumstances. See Rubinstein, 218 F.3d at 407 (in which the plaintiff received damages for wage loss but no compensatory damages within the meaning of section 1981a). Additionally, every court of appeals that has directly encountered the issue has held that a compensatory damages award is not necessary to sustain a punitive damages award under section 1981a. See Salitros, 306 F.3d at 575; Corti, 304 F.3d at 344; Cush-Crawford v. Adchem Corp., 271 F.3d 352, 359 (2d Cir.2001); W & O, 213 F.3d at 615; Provencher, 145 F.3d at 12; Hennessy, 69 F.3d at 1352. See also Jimenez v. Paw-Paw's Camper City, Inc., NO. CIV. A. 00-1756, 2002 WL 257691, at *10-11 (E.D.La. Feb.22, 2002). Accordingly, the Court holds that "the common law policy prohibiting punitive damages where the plaintiff has not shown any harm is not implicated where the plaintiff has shown wage loss." Salitros v. Chrysler Corp., 306 F.3d 562, 575 (8th Cir.2002). See also Corti v. Storage Tech. Corp., 304 F.3d 336, 344 (4th Cir.2002) (holding that the plaintiff was entitled to punitive damages even though she did not receive "compensatory" damages under section 1981a because she was awarded back pay, which is compensatory in nature); U.S. Equal Employment Opportunity Comm'n v. W & O, Inc., 213 F.3d 600, 615 (11th Cir.2000)(same); Provencher, 145 F.3d at 11-12 (same); Hennessy, 69 F.3d at 1352 (same).
DuPont relies on Louisiana ACORN Fair Housing v. LeBlanc, 211 F.3d 298, 303 (5th Cir.2000), in support of its argument. LeBlanc does not control here for two reasons. First, LeBlanc applies to the Federal Fair Housing Act, not the ADA. Second, the jury in LeBlanc did not award the plaintiff any actual damages. Instead, the jury awarded him only punitive damages. Therefore, LeBlanc is not analogous because the jury in this case awarded Barrios actual damages in the form of wage loss.
DuPont also cites Girard v. Brinker Intern. Payroll Corp., 58 Fed.Appx. 595, 2003 WL 261776, at *1 (5th Cir.2003), in support of its argument. In Girard, however, the plaintiff was entitled to neither compensatory damages nor lost wages. Id. The Fifth Circuit premised the denial of punitive damages on the absence of any actual damages, not the absence of compensatory damages within the meaning of section 1981a. Id. ("[T]here is no basis for the award of lost wages and employment benefits to Girard. Because the award of actual damages cannot be sustained, Girard also loses her punitive damage award."). Therefore, like LeBlanc, Girard is not analogous. Accordingly, DuPont's objection to the punitive damages award on this ground is without merit.
DuPont also argues in the alternative that the punitive damages award is excessive. The jury awarded Barrios $1,000,000.00 in punitive damages, which the Court later reduced under section 1981a to $300,000.00. To determine whether punitive damages are excessive, the Court must consider the degree of reprehensibility of DuPont's conduct, the disparity between the harm Barrios suffered and the punitive damages the jury awarded to her, and the difference between the punitive damages award and the extent of the civil penalties authorized in 671 comparable cases. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418, 123 *671 S.Ct. 1513, 155 L.Ed.2d 585 (2003); Williams v. Kaufman County, 352 F.3d 994, 1015 (5th Cir.2003).
DuPont argues that its conduct was not reprehensible. As noted supra, however, the evidence was sufficient for a jury to conclude that DuPont held reprehensible views with respect to individuals with disabilities, DuPont repeatedly tried to force Barrios out on disability even though it knew she did not qualify for it, DuPont refused to consider accommodating Barrios in lieu of discharging her, and DuPont acted with indifference or hostility to the unique issues Barrios presented. Ultimately, there was sufficient evidence for the jury to conclude that DuPont engaged in a pattern of intentionally discriminatory and malicious conduct. This is sufficient to warrant a punitive damages award of $300,000.00. Compare Rubinstein, 218 F.3d at 408 (reducing punitive damages award when the case involved only a single act of retaliation).
Moreover, the ratio of punitive to actual damages is reasonable. Although the Supreme Court has never set a specific ratio of punitive damages to actual damages that is de facto reasonable, the Court has suggested that a 1:1 ratio may be appropriate when actual damages are substantial. Campbell, 538 U.S. at 425, 123 S.Ct. 1513. Here, Barrios's punitive damages are $300,000.00 and her actual damages are $291,000.00, which is almost a 1:1 ratio. This is a far cry from the ratios of punitive to actual damages that the Supreme Court has found questionable. See id. at 426, 123 S.Ct. 1513 (finding a 145:1 ratio of punitive to actual damages excessive); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 582, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)(finding a 500:1 ratio of

punitive to actual damages excessive). See also Rubinstein, 218 F.3d at 407-09 (reducing a punitive damages award that was 30 times the actual damages award to an award that was ten times the actual damages award). The Court finds that the punitive damages award is not grossly excessive in relation to her actual damages award or in relation to the maximum award that she could have received. Accordingly, the Court rejects DuPont's objection that Barrios's punitive damages award is excessive.
III. CONCLUSION
For the foregoing reasons, the Court DENIES DuPont's motion.
[1] The Court also found on summary judgment that DuPont regarded Barrios as disabled. Therefore, even if the jury found that Barrios was not actually disabled, it still had to consider the rest of the essential elements of the EEOC's case.
[2] The Court notes that Barrios asked to demonstrate that she could walk an evacuation route at the time of her discharge in 1999, but DuPont denied her request. (Testimony of Barrios at 139; testimony of Ordeneaux at 272.)
[3] The jury was instructed on mitigation, and the jury apparently found no failure to mitigate.
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2000E, CLOSED, PROTO
U. S. District Court Eastern District of Louisiana (New Orleans) CIVIL DOCKET FOR CASE #: 2:03-cv-01605-SSV

EEOC v. EI Du Pont Assigned to: Judge Sarah S. Vance Demand: $0 Case in other court: 5th Circurit, 05-30712 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 06/05/2003 Date Terminated: 01/28/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Gregory T. Juge Equal Employment Opportunity Commission 1555 Poydras Street Suite 1900 New Orleans, LA 70112 504-595-2877 Email: gregory.juge@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle T. Butler Equal Employment Opportunity Commission New Orleans District Office 1555 Poydras St. Suite 1900 New Orleans, LA 70112 (504) 595-2872 Email: michelle.butler@eeoc.gov

V.
Defendant
E. I. Du Pont De Nemours & Co. doing business as DuPont Speciality Chemicals

represented by William David Aaron, Jr. Goins Aaron, APLC (New Orleans) 201 St. Charles Avenue Suite 3800 New Orleans, LA 70170 504-569-1800 Email: waaron@goinsaaron.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Eugene Sevin

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Date Filed 06/05/2003 06/05/2003 07/10/2003
08/04/2003
08/25/2003 08/27/2003
09/04/2003
09/04/2003
09/12/2003

Johnson, Johnson, Barrios & Yacoubian
701 Poydras St. Suite 4700 New Orleans, LA 70139-7708 504-528-3001 Email: bes@jjbylaw.com
Mark C. Carver Goins Aaron, APLC (New Orleans) 201 St. Charles Avenue Suite 3800 New Orleans, LA 70170 504-569-1804 Email: mcarver@goinsaaron.com

#

Docket Text

1 COMPLAINT; 1 summons(es) issued (lg) (Entered: 06/06/2003)

Automatic Referral (Utility Event) to Magistrate Judge Karen W. Roby (lg) (Entered: 06/06/2003)

2 Motion by plaintiff EEOC and ORDER for appearance of Michelle T. Butler as additional counsel for same by Judge Sarah S. Vance Date Signed: 7/14/03 (bc) (Entered: 07/14/2003)

3 Motion by defendant EI Du Pont and ORDER extending time to answer pla's complaint until 08/25/03 by Judge Sarah S. Vance Date Signed: 08/06/03 (dmg) (Entered: 08/06/2003)

4 ANSWER by defendant EI Du Pont to complaint by plaintiff EEOC [1-1] (bc) (Entered: 08/25/2003)

5 NOTICE/ORDER that a preliminary conference is scheduled by telephone before courtroom deputy at 10:00 10/16/03 by Clerk (bc) (Entered: 08/27/2003)

6 Preliminary Conference Notice the Preliminary Conference set for 10/16/03 is continued w/o date 10:00 10/16/03 by Clerk (dmg) (Entered: 09/04/2003)

7 MINUTE ENTRY (09/04/03) Preliminary Conference is set for 9:30 9/23/03 in chambers by Magistrate Judge Karen W. Roby (dmg) (Entered: 09/04/2003)

8 MINUTE ENTRY ( 9/12/03 ) the Mag Judge has been notified that all ptys have not consented to proceed to trial bfr Mag pursuant to 28:636(c); therefore, the Rule 16 Scheduling Conference sched for 9:30 9/23/03 is CANCELED by Magistrate Judge Karen W. Roby (bc) (Entered: 09/15/2003)

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10/14/2003 10/15/2003 11/04/2003 11/18/2003 12/18/2003
02/20/2004 07/23/2004
08/02/2004 08/06/2004
08/09/2004 08/09/2004 08/09/2004 08/16/2004 08/17/2004 08/17/2004

9 Statement of Corporate Disclosure filed by defendant EI Du Pont (bc) (Entered: 10/15/2003)
10 NOTICE/ORDER that a preliminary conference is scheduled by telephone before courtroom deputy at 10:45 11/20/03 by Clerk (bc) (Entered: 10/15/2003)
11 MINUTE ENTRY ( 11/3/03 ) ORDERED that the referral of this matter to Magistrate Judge Karen W. Roby pursuant to Local Rule 73.2E is withdrawn by Judge Sarah S. Vance (ca) (Entered: 11/04/2003)
12 NOTICE/ORDER that the preliminary conference set for 11/20/03 is CONT & RESET to be held by telephone before courtroom deputy at 10:30 12/18/03 by Clerk (bc) (Entered: 11/18/2003)
13 MINUTE ENTRY ( 12/18/03): Preliminary Conference held; amendments due 1/19/04 ; pretrial conf set 2:30 10/7/04 ; jury trial set 8:30 10/18/04 ; by Clerk for Judge Sarah S. Vance (bc) (Entered: 12/18/2003)
14 MINUTE ENTRY (2/20/04): a settlement conference is scheduled before magistrate at 2:00 9/17/04; settlement letters due 2 days before conf by Magistrate Judge Karen W. Roby (dmg) (Entered: 02/23/2004)
15 MOTION by dft EI Du Pont for protective order & for exp hearing and ORDER the request for exp relief is denied; motion referred to Magistrate Judge Karen W. Roby to be heard before Mag Judge at 11:00 8/11/04 WITH ORAL ARGUMENT (ca) (Entered: 07/26/2004)
16 MINUTE ENTRY ( 8/2/04 ) dft's motion for protective order & for exp hearing [15-1] is CONTINUED to 11:00 8/18/04 with oral argument by Magistrate Judge Karen W. Roby (lg) (Entered: 08/02/2004)
20 MOTION by defendant EI Du Pont for protective order & request for expedited hrg DENIED - said mtn referred to Magistrate Judge Karen W. Roby to be heard before Mag Judge at 11:00 9/8/04 w/oral argument (bc) (Entered: 08/13/2004)
17 Witness & Exhibit lists by plaintiff EEOC (bc) (Entered: 08/09/2004)
18 Exhibit list by defendant EI Du Pont (bc) (Entered: 08/10/2004)
19 Witness list submitted by defendant EI Du Pont (bc) (Entered: 08/10/2004)
21 MINUTE ENTRY ( 8/13/04 ) denying as moot the dft's motion for protective order & for exp hearing [15-1] by Magistrate Judge Karen W. Roby (bc) (Entered: 08/16/2004)
22 MOTION by plaintiff EEOC in limine to exclude testimony of dft's expert witnesses to be heard before Judge at 10:00 9/1/04 (bc) (Entered: 08/18/2004)
23 MOTION by plaintiff EEOC for partial summary judgment on the issue of liability to be heard before Judge at 10:00 9/1/04 (bc) (Entered:

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08/17/2004 08/20/2004
08/20/2004
08/20/2004
08/24/2004 08/24/2004 08/24/2004
08/24/2004 08/30/2004 09/01/2004 09/07/2004 09/07/2004 09/09/2004

08/18/2004)
24 MOTION by defendant EI Du Pont to extend cutoff dates to be heard before Judge at 10:00 9/1/04 (bc) (Entered: 08/18/2004)
25 MINUTE ENTRY ( 8/19/04 ): the settlement conference sched for 9/17/04 is RESET before magistrate for 9:00 9/29/04 ; settlement letters due by 9/27/04 by Magistrate Judge Karen W. Roby (bc) (Entered: 08/20/2004)
30 Motion by plaintiff EEOC and ORDER that the hrg on dft's motion for protective order [20-1] is CONTINUED to 11:00 9/15/04 w/oral argument by Magistrate Judge Karen W. Roby Date Signed: 8/24/04 (plh) (Entered: 08/25/2004)
31 Motion by defendant EI Du Pont and ORDER setting EEOC's mtn for partial summary judgment on the issue of liability [23-1] & EEOC's mtn in limine to exclude testimony of dft's expert witnesses [22-1] for 10:00 9/22/04 w/oral argument by Judge Sarah S. Vance (bc) (Entered: 08/30/2004)
26 Memo in opposition by plaintiff EEOC to motion to extend cutoff dates [24-1] filed by defendant EI Du Pont (plh) (Entered: 08/24/2004)
27 Memo in opposition by defendant EI Du Pont to motion in limine to exclude testimony of dft's expert witnesses [22-1] filed by plaintiff EEOC (plh) (Entered: 08/25/2004)
28 Request/Statement for Oral Argument by defendant EI Du Pont regarding motion for partial summary judgment on the issue of liability [23-1], motion in limine to exclude testimony of dft's expert witnesses [22-1] by plaintiff EEOC (plh) (Entered: 08/25/2004)
29 Memo in opposition by defendant EI Du Pont to motion for partial summary judgment on the issue of liability [23-1] filed by plaintiff EEOC (plh) (Entered: 08/25/2004)
37 Motion by plaintiff EEOC and ORDER for leave to file their reply memo in response to dft's opp to their mtn for partial sum jgm by Judge Sarah S. Vance Date Signed: 9/9/04 (bc) (Entered: 09/09/2004)
32 Memo in opposition by plaintiff EEOC to motion for protective order [20-1] seeking to prevent the depo of Charles Holliday & James Borel filed by defendant EI Du Pont (bc) (Entered: 09/02/2004)
33 Motion by defendant EI Du Pont and ORDER for leave to file mtn for sum jgm out of time by Judge Sarah S. Vance Date Signed: 9/9/04 (bc) (Entered: 09/09/2004)
34 Request for Oral Argument by defendant EI Du Pont regarding their mtn for sum jgm (bc) (Entered: 09/09/2004)
35 MOTION by defendant EI Du Pont for summary judgment to be heard before Judge at 10:00 9/22/04 (bc) (Entered: 09/09/2004)

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09/09/2004 09/09/2004 09/09/2004 09/13/2004 09/13/2004 09/27/2004 09/28/2004 09/29/2004 10/04/2004 10/04/2004 10/06/2004
10/07/2004 10/08/2004

36 MINUTE ENTRY ( 9/7/04 ) ORDERED that the req [34-1] by DuPont for oral argument on its motion for summary judgment [35-1] is GRANTED; oral argument is set for 10:00 9/22/04; memo in opp due 9/14/04 by Judge Sarah S. Vance (bc) (Entered: 09/09/2004)
38 Reply by plaintiff EEOC to dft's response to their motion for partial summary judgment on the issue of liability [23-1] (bc) (Entered: 09/09/2004)
39 MINUTE ENTRY ( 9/7/04 ) ORDERED that dft's motion to extend cutoff dates [24-1] is DENIED by Judge Sarah S. Vance (bc) (Entered: 09/09/2004)
40 Motion by plaintiff EEOC and ORDER that the hrg on dft's motion for summary judgment [35-1] is continued to 10:00 10/6/04; FURTHER ORDERED that pla's opp to dft's mtn for sum jgm is due 9/28/04 by Judge Sarah S. Vance (plh) (Entered: 09/13/2004)
41 Motion by plaintiff EEOC and ORDERED that hrg of dft's motion for protective order [20-1] is CONT to 11:00 9/22/04 w/oral argument by Magistrate Judge Karen W. Roby (bc) (Entered: 09/17/2004)
42 MINUTE ENTRY ( 9/24/04 ) granting dft EI Du Pont's motion for protective order [20-1] by Magistrate Judge Karen W. Roby (bc) (Entered: 09/27/2004)
43 Memo in opposition by plaintiff EEOC to motion for summary judgment [35-1] filed by defendant EI Du Pont (bc) (Entered: 09/28/2004)
44 MINUTE ENTRY ( 9/29/04 ) settlement conf held this date; ORDERED that another settlement conf is set bfr Mag Judge Roby for 3:00 10/15/04; CLIENTS ARE ORDERED TO ATTEND; position papers due on or bfr 10/13/04 by Magistrate Judge Karen W. Roby (bc) (Entered: 09/29/2004)
48 Motion by defendant EI Du Pont and ORDER for leave to file its suppl memo in opp to EEOC's mtn for partial sum jgm by Judge Sarah S. Vance Date Signed: 10/8/04 (bc) (Entered: 10/08/2004)
50 Motion by defendant EI Du Pont and ORDER for leave to file reply memo in support of its mtn for sum jgm by Judge Sarah S. Vance Date Signed: 10/8/04 (bc) (Entered: 10/08/2004)
45 SMOOTH MINUTES: Reported/Recorded by Toni Tusa; hrg held; Dupont's motion for summary judgment [35-1] is DENIED; EEOC's motion for partial summary judgment on the issue of liability [23-1] & their motion in limine to exclude testimony of dft's expert witnesses [221] is taken under submission; court adjourned by Judge Sarah S. Vance (dmg) (Entered: 10/07/2004)
46 ORDER & REASONS: pla's motion in limine to exclude testimony of dft's expert witnesses [22-1] is GRANTED by Judge Sarah S. Vance (dmg) (Entered: 10/07/2004)
47 MINUTE ENTRY ( 10/7/04 ) Pre-Trial Conference held 10/7/04; jury

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10/08/2004 10/08/2004 10/12/2004
10/13/2004 10/13/2004 10/13/2004 10/13/2004 10/13/2004 10/15/2004 10/18/2004 10/18/2004
10/18/2004

trial shall commence 10/18/04 at 8:30; other trial preparation & deadlines as set forth herein by Judge Sarah S. Vance (bc) (Entered: 10/08/2004)
49 Supplemental memorandum by defendant EI Du Pont in opp to EEOC's [23-1] motion for partial summary judgment on the issue of liability (bc) (Entered: 10/08/2004)
51 Reply Memorandum by defendant EI Du Pont in support of [35-1] its motion for summary judgment (bc) (Entered: 10/08/2004)
52 MINUTE ENTRY ( 10/12/04 ) counsel for DuPont brought to the Court's attention Mag Judge Roby's order for ptys to appear for settlement conf 10/15/04 at 3:00; ptys are to abide by Judge Roby's order unless Judge Roby instructs them otherwise by Judge Sarah S. Vance (bc) (Entered: 10/13/2004)
53 Memo of Law addressing the distinction between essential job functions & qualifications standards filed by plaintiff EEOC (bc) (Entered: 10/13/2004)
54 Memorandum by plaintiff EEOC in opposition to dft's mtn in limine re ADA accessibility guidelines (bc) (Entered: 10/13/2004)
55 Memorandum by plaintiff EEOC in opposition to dft's mtn in limine re EEOC's proposed Exhibit 552 from the official website of the US Census Bureau (bc) (Entered: 10/13/2004)
56 Memorandum by plaintiff EEOC in opposition to dft's mtn in limine re sexual harassment (bc) (Entered: 10/13/2004)
57 Memorandum by plaintiff EEOC in opposition to dft's mtn in limine seeking to exclude evidence that Laura Barrios successfully walked evacuation route (bc) (Entered: 10/13/2004)
58 ORDER & REASONS bfr the court are cross-mtns for sum jgm; the court GRANTS in part & DENIES in part EEOC's mtn [23-1] and DENIES DuPont's mtn as stated herein by Judge Sarah S. Vance (bc) (Entered: 10/15/2004)
59 ORDER & REASONS: dft EI Du Pont moves the court in limine to exclude pla EEOC's proposed Exhibit 552; for reasons herein, the Court denies DuPont's mtn by Judge Sarah S. Vance (bc) (Entered: 10/18/2004)
60 ORDER & REASONS: dft EI Du Pont moves the court to exclude allegations of sexual harassment, evidence re ADA Accessibility Guidelines & evidence that Laura Barrios walked an evacuation route in 12/03; pla EEOC opposes the mtns; for reasons herein, the court GRANTS in part & DENIES in part DuPont's mtn & overrules the EEOC's obj by Judge Sarah S. Vance (bc) (Entered: 10/18/2004)
61 MINUTE ENTRY ( 10/18/04 ) the EEOC moves the court to deem as established specifications of fact made by the court in its 10/15/04 order & reasons, to read them to the jury on the record, & to instruct the jury that it shall take the court's specifications as proved, the EEOC also

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10/18/2004
10/19/2004 10/19/2004 10/19/2004 10/19/2004 10/19/2004 10/19/2004 10/19/2004 10/19/2004 10/19/2004 10/19/2004 10/19/2004
10/20/2004

moves the court to supplement the jury instructions to charge that Laura Barrios is disabled under the ADA; for reasons stated herein, the Court denies the mtns by Judge Sarah S. Vance (bc) (Entered: 10/18/2004)
73 SMOOTH MINUTES: Reported/Recorded by Karen Ibos; jury trial held 8:30 10/18/04; jury sworn on voir dire; witnesses sequestered; exhibits admitted; witnesses sworn & testified; oral mtn by EEOC regarding mtn in limine - DENIED; court adjourned to reconvene at 9:00 10/19/04 by Judge Sarah S. Vance (dmg) (Entered: 10/21/2004)
62 MOTION by plaintiff EEOC pursuant to Rule 56(d) of FRCP re establishment of facts & according conduct of the trial to be heard before Judge (see Doc #61) (bc) (Entered: 10/19/2004)
63 MOTION by plaintiff EEOC to approve suppl jury instruction based on 10/15/04 order & reasons to be heard before Judge (see Doc#61) (bc) (Entered: 10/19/2004)
64 MOTION by defendant EI Du Pont in limine re allegations of sexual harassment to be heard before Judge (see Doc#60) (bc) (Entered: 10/19/2004)
65 MOTION by defendant EI Du Pont in limine re ADA accessibility guidelines to be heard before Judge (see Doc#60) (bc) (Entered: 10/19/2004)
66 MOTION by defendant EI Du Pont in limine re Laura Barrios alleged ability to walk one evacuation route in 12/03 to be heard before Judge (see Doc#60) (bc) (Entered: 10/19/2004)
67 MOTION by defendant EI Du Pont in limine re pla's exhibit #552 to be heard before Judge (see Doc#59) (bc) (Entered: 10/19/2004)
68 Memorandum by plaintiff EEOC of obj re exhibits listed by dft (see Doc#59) (bc) (Entered: 10/19/2004)
69 Response by defendant EI Du Pont to EEOC's obj to exhibits of dft EI Du Pont (see Doc#59) (bc) (Entered: 10/19/2004)
70 PRE-TRIAL UNSIGNED ORDER; PTC held; jury trial set 8:30 10/18/04 (bc) (Entered: 10/19/2004)
71 MINUTE ENTRY ( 10/15/04 ) Settlement conference held this date by Magistrate Judge Karen W. Roby (bc) (Entered: 10/19/2004)
74 SMOOTH MINUTES: Reported/Recorded by Karen Ibos; jury trial cont fron 10/18/04; witnesses sworn & testified; mtn by dft for jgm as matter of law regarding front pay & failure to mitigate - both DENIED; exhibits admitted; court adjourned to reconvene 9:00 10/20/04 by Judge Sarah S. Vance (dmg) (Entered: 10/21/2004)
72 ORDERED that the clerk pay Sweet Olive Cafe the sum of $89.11 for meals for the jury in this matter on 10/20/04 by Judge Sarah S. Vance (bc) (Entered: 10/20/2004)

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10/20/2004
10/20/2004 10/22/2004 10/22/2004 10/22/2004 10/22/2004 10/22/2004 10/22/2004 10/22/2004 10/22/2004 10/22/2004 10/22/2004 10/22/2004 10/22/2004 11/10/2004
11/18/2004
11/18/2004 01/04/2005

75 SMOOTH MINUTES: Reported/Recorded by Karen Ibos; jury trial cont from 10/19/04; witnesses sworn & testified; jury charged; pla's mtn for directed verdict - DENIED; dft's reurged mtn for directed verdict DENIED; jury returns with a verdict & verdict made jgm of the court; counsel to submit jgm in accordance with verdict w/in 10 days; court adjourned by Judge Sarah S. Vance (dmg) (Entered: 10/21/2004)
76 Jury charges read to the jury on 10/20/04 (dmg) (Entered: 10/21/2004)
77 Witness list submitted by defendant EI Du Pont (bc) (Entered: 10/22/2004)
78 Exhibit list by defendant EI Du Pont (bc) (Entered: 10/22/2004)
79 Final Exhibit list by plaintiff EEOC (bc) (Entered: 10/22/2004)
80 Final Witness list submitted by plaintiff EEOC (bc) (Entered: 10/22/2004)
81 Memorandum by defendant EI Du Pont regarding essential functions & qualifications standards (bc) (Entered: 10/22/2004)
82 Pre-Trial Memorandum by defendant EI Du Pont (bc) (Entered: 10/22/2004)
83 Voir Dire questions on behalf of defendant EI Du Pont (bc) (Entered: 10/22/2004)
84 Proposed voir dire question for the Jury by plaintiff EEOC (bc) (Entered: 10/22/2004)
85 Jury charges proposed by defendant EI Du Pont (bc) (Entered: 10/22/2004)
86 Jury interrogatories proposed by defendant EI Du Pont (bc) (Entered: 10/22/2004)
87 Jury interrogatories proposed by plaintiff EEOC (bc) (Entered: 10/22/2004)
88 Proposed Jury instructions by plaintiff EEOC (bc) (Entered: 10/22/2004)
89 MINUTE ENTRY ( 11/10/04 ) the EEOC has submitted a proposed jgm as stated herein; the court orders the ptys to brief whether the equitable relief that the EEOC has req is proper by Judge Sarah S. Vance (bc) (Entered: 11/10/2004)
90 Memorandum by plaintiff EEOC per court order [89-1] re appropriateness of inclusion in final jgm of injunctive relief in the form of ordered training (bc) (Entered: 11/18/2004)
91 Memorandum by defendant EI Du Pont regarding the proposed equitable relief of training on behalf of Dupont (bc) (Entered: 11/22/2004)
92 ORDER& REASONS that the Court declines to impose the EEOC's requested equitable relief; the court orders the EEOC to submit a

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01/21/2005 01/28/2005
02/02/2005
02/11/2005 02/11/2005 02/16/2005 02/16/2005 03/01/2005 03/09/2005 03/09/2005 03/22/2005

proposed jgm consistent w/this order by Judge Sarah S. Vance Date Signed: 1/3/05 (bc) (Entered: 01/04/2005)
93 Court-ordered submission by plaintiff EEOC of proposed judgment (dmg) (Entered: 01/31/2005)
94 JUDGMENT: in favor of pla, EEOC & agst dft, EI DuPont; DuPont is liable to Laura Barrios for back pay in the amount of $91,000, front pay in the amount of $200,000 and punitive damages in the amount of $300,000; EEOC claim for emotional/mental damage is dismissed w/prej; DuPont shall pay the EEOC reasonable costs & EEOC's prayer for inj relief is denied by Judge Sarah S. Vance (CASE CLOSED) (dmg) (Entered: 01/31/2005)
97 Motion by defendant EI Du Pont for stay of proceedings pending disposition of post-trial mtns & to waive supersedeas bond, or in the alter, to set supersedeas bond and ORDERED that the execution of the 1/31/05 jgm is stayed pending final disposition of post-trial mtns & ORDERED that the requirement of a supersedeas bond be waived pending final disposition of post-trial mtns by Judge Sarah S. Vance Date Signed: 2/11/05 (bc) (Entered: 02/15/2005)
95 MOTION by defendant EI Du Pont for jgm as matter of law, alternatively for new trial, amend or alter jgm to be heard before Judge at 10:00 3/2/05 (dmg) (Entered: 02/14/2005)
96 Request/Statement for Oral Argument by defendant EI Du Pont regarding their motion for jgm as matter of law, alternatively for new trial, amend or alter jgm [95-1] (dmg) (Entered: 02/14/2005)
98 ORDER denying as unnecessary dft's req for oral argument [96-1] on its renewed mtn for jgm as a matter of law & alter, for new trial or alter, mtn to amd or alter jgm; the mtn is considered submitted as of 3/2/05 by Judge Sarah S. Vance Date Signed: 2/16/05 (bc) (Entered: 02/17/2005)
99 Motion by plaintiff EEOC and ORDER setting dft's motion for jgm as matter of law, alternatively for new trial, amend or alter jgm [95-1] for hrg at 10:00 3/30/05 W/ORAL ARGUMENT by Judge Sarah S. Vance Date Signed: 2/17/05 (bc) (Entered: 02/18/2005)
100 BILL OF COSTS by Equal Employment Opportunity Commission. (bbc, ) (Entered: 03/06/2005)
Utility: terminate hearing re oral argument of DuPont's post-trial mtn [951](bbc, ) Modified on 3/11/2005 (bbc, ). (Entered: 03/11/2005)
101 ORDERED that oral argument re 95 Motion for New Trial filed by E. I. Du Pont De Nemours & Co. is not necessary for the resolution of the mtn; the Court cancels oral argument sched for 3/30/05. Signed by Judge Sarah S. Vance on 3/9/05.(bbc, ) (Entered: 03/11/2005)
102 RESPONSE/MEMORANDUM in Opposition filed by Equal Employment Opportunity Commission re 95 Motion for judgment as a matter of law; for New Trial; to alter or amend jgm (bbc, ) (Entered:

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03/24/2005 03/29/2005 03/30/2005 03/30/2005 04/05/2005 04/08/2005 04/08/2005 04/25/2005 06/06/2005 06/13/2005 06/16/2005
07/01/2005 07/08/2005 07/08/2005 07/27/2005

03/24/2005)
104 MOTION for Leave to File reply brief by E. I. Du Pont De Nemours & Co.. (bbc, ) (Entered: 03/31/2005)
103 Memorandum in opp by E. I. Du Pont De Nemours & Co. to 100 Bill of Costs. (bbc, ) (Entered: 03/30/2005)
105 ORDER granting 104 Motion for Leave to File reply brief. Signed by Judge Sarah S. Vance on 3/30/05. (bbc, ) (Entered: 03/31/2005)
106 REPLY to Response to Motion filed by E. I. Du Pont De Nemours & Co. re 95 Motion for New Trial. (bbc, ) (Entered: 03/31/2005)
107 MOTION for Leave to File reply brief in support of ntc of application for taxation of costs by Equal Employment Opportunity Commission. (bbc, ) (Entered: 04/11/2005)
108 ORDER granting 107 Motion for Leave to File reply brief re application for taxation of costs. Signed by Judge Sarah S. Vance on 4/8/05. (bbc, ) (Entered: 04/11/2005)
109 Reply Brief by Equal Employment Opportunity Commission in support of ntc of application for 100 Bill of Costs. (bbc, ) (Entered: 04/11/2005)
110 Bill of Costs Taxed in amount of $6,976.87. Signed by Clerk (bbc, ) (Entered: 04/27/2005)
111 ORDER denying 95 Motion for Renewed Jgm as a Matter of Law or, Alter, a New Trial or to Amd Jgm . Signed by Judge Sarah S. Vance on 06/06/2005. (blg, ) (Entered: 06/06/2005)
112 MOTION to Set Supersedeas Bond, MOTION to Waive Supersedeas Bond, MOTION to Stay Proceedings Pending Disposition of Appeal by E. I. Du Pont De Nemours & Co.. (blg, ) (Entered: 06/16/2005)
113 ORDERED that execution of 1/31/05 Jgm is stayed pending final disposition of Appeal; ORDERED that the requirement of Supersedeas bond is waived and Dft is relieved of filing same pending final disposition of Appeal. Signed by Judge Sarah S. Vance on 06/16/05. (blg, ) (Entered: 06/16/2005)
114 NOTICE OF APPEAL by E. I. Du Pont De Nemours & Co. as to 10/15/04 58 Order; 1/31/05 94 Judgment & 6/6/05 111 Order on Motion for New Trial. Filing fee $ 255. (bbc, ) (Entered: 07/07/2005)
116 TRANSCRIPT REQUEST by E. I. Du Pont De Nemours & Co. for proceedings held on 10/18-20/04 re 114 Notice of Appeal. (bbc, ) (Entered: 07/19/2005)
117 TRANSCRIPT REQUEST by E. I. Du Pont De Nemours & Co. for proceedings held on 10/6/04 re 114 Notice of Appeal. (bbc, ) (Entered: 07/19/2005)
118 TRANSCRIPT of jury trial held on 10/18/04 before Judge Sarah S.

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07/27/2005 07/27/2005 12/06/2005 12/14/2005 12/21/2005 01/30/2006 03/29/2006 05/02/2007
05/07/2007

Vance, re 114 Notice of Appeal. Court Reporter: Karen Ibos. (bbc, ) (Entered: 07/27/2005)
119 TRANSCRIPT of trial held on 10/19/04 before Judge Sarah S. Vance, re 114 Notice of Appeal. Court Reporter: Karen Ibos. (bbc, ) (Entered: 07/27/2005)
120 TRANSCRIPT of trial held on 10/20/04 before Judge Sarah S. Vance, re 114 Notice of Appeal. Court Reporter: Karen Ibos. (bbc, ) (Entered: 07/27/2005)
121 TRANSCRIPT of motion hrg held on 10/6/04 before Judge Sarah S. Vance, re 114 Notice of Appeal. Court Reporter: Toni Tusa. (bbc, ) (Entered: 12/06/2005)
122 Transmitted Electronic Copy of Record on Appeal to US Court of Appeals re 114 Notice of Appeal. USCA Case Number 05-30712. (caa, ) (Entered: 12/16/2005)
123 Appeal Record on Loan to Mark C. Carver re 114 Notice of Appeal -. (bbc, ) Modified on 2/3/2006 to correct date of loan (bbc, ). (Entered: 01/24/2006)
124 Appeal Record on Loan re 114 Notice of Appeal Counsel for Dupont forwarded the record to counsel for EEOC (bbc, ) (Entered: 02/08/2006)
125 Letter to Clerk of Court from U.S. Equal Employment Opportunity Commission dated 3/24/06 (gec, ) (Entered: 04/05/2006)
128 USCA JUDGMENT issued as mandate on 5/1/2007 as to 114 Notice of Appeal filed by E. I. Du Pont De Nemours & Co.; ORDERED that the judgment of the District Court is affirmed in part and reversed in part in accordance with the opinion of this Court; USCA Judge name: JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges. (Attachments: # 1 Opinion# 2 Bill of Costs, # 3 Exhibit)(cak, ) (Entered: 05/11/2007)
127 Appeal Record Returned (original exhibits and/or non-electronic documents) from U.S. Court of Appeals: 114 Notice of Appeal (cab) (Entered: 05/08/2007)

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

U. S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

CIVIL DOCKET

VERSUS

NO. 03-1605

E.I. DUPONT DE NEMOURS & CO.

SECTION: R

JURY VERDICT FORM

DO YOU FIND THAT DUPONT DISCHARGED LAURA BARRIOS IN VIOLATION OF THE AMERICANS WITH DISABILITIES ACT?

YES /

No

PROCEED TO QUESTION 2.

DO YOU FIND THAT DUPONT REQUIRED LAURA BARRIOS TO UNDERGO A MEDICAL EXAMINATION IN VIOLATION OF THE AMERICANS WITH DISABILITIES ACT?

YES

No

~//

IF YOU ANSWERED "YES" TO EITHER QUESTION 1 OR QUESTION 2, PROCEED TO QUESTION 3. IF YOU ANSWERED "NO" TO BOTH QUESTION 1 AND QUESTION 2, PROCEED NO FURTHER. SIGN THE JURY FORM AND RETURN TO THE COURTROOM.
WHAT AMOUNT OF DAMAGES, IF ANY, DO YOU FIND THAT DUPONT CAUSED LAURA BARRIOS?

DO YOU FIND THAT DUPONT IS LIABLE FOR PUNITIVE DAMAGES?

YES V’/

NO

IF YOU ANSWERED "YES" TO QUESTION 4, PROCEED TO QUESTION 5. IF YOU ANSWERED "NO, " TO QUESTION 4, DO NOT ANSWER QUESTION 5. SIGN THE JURY FORM AND RETURN TO THE COURTROOM. 5. WHAT AMOUNT OF PUNITIVE DAMAGES IS DUPONT LIABLE FOR?
NEW ORLEANS, LOUISIANA, THIS ~4RDAY OF OCTOBER, 2004.

 
 EEOC OBTAINS $1.29 MILLION JURY VERDICT AGAINST DUPONT FOR DISAB... Page 1 of 3

The U.S. Equal Employment Opportunity Commission

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION New Orleans District Office 701 Loyola Avenue, Suite 600 New Orleans, Louisiana 70113-9939 (504) 589-3842

CONTACT: Manuel Zurita Acting Director New Orleans Distr (504) 301-6165
or
Keith T. Hill Regional Attorney (504) 589-6817 TTY: (504) 589-2958 FAX: (504) 589-2805

EEOC OBTAINS $1.29 MILLION JURY VERDICT AGAINST DUPONT FOR DISABILITY DISCRIMINATION

NEW ORLEANS - In a major legal victory for the U.S. Equal Employment Opportunity Commission (EEOC), a jury in U.S. District Court for the Eastern District of Louisiana has awarded a former veteran employee of E.I. DuPont De Nemours & Co. (DuPont) $1.29 million in an employment discrimination case filed by the EEOC under the Americans with Disabilities Act of 1990 (ADA). DuPont, based in Wilmington, Delware, is an international science and chemical company operating in 70 countries with 55,000 employees worldwide and annual revenue of more than $20 billion.
Following a two and one-half day trial in EEOC v. E. I. Du Pont De Nemours & Co. (Civil Action No. 031605), the jury awarded plaintiff Laura Barrios $1 million in punitive damages, $200,000 in front pay and $91,000 in back pay. Testifying that she was made to feel like half a person and humiliated and embarrassed, Ms. Barrios, an 18-year employee of Dupont prior to her termination and forced placement on disability retirement, said: "All I wanted was to do my job."
EEOC's lawsuit, filed in June 2003, asserted that DuPont violated the ADA when it illegally required Ms. Barrios, who has severe physical impairments, to take a functional capacity exam (FCE) which was neither job-related nor consistent with business necessity. Moreover, the five to six hour test caused Ms. Barrios severe physical and emotional harm.
The FCE tested her performance of rigorous physical tasks such as climbing, standing for hours on end, lifting more than 20 pounds, straight leg lifts, and overhead work. Although Ms. Barrios passed the test - which indicated that she could adequately perform the essential functions of her position - DuPont used the test results as a pretext to (falsely) declare her as a direct threat to herself and others because DuPont ostensibly believed Ms. Barrios could not safely evacuate the plant in case of an emergency. DuPont then forced Ms. Barrios onto short term disability leave and then total permanent disability retirement which terminated her employment.
"The resolution of this case will benefit DuPont's employees, and it will vindicate the public interest," said EEOC General Counsel Eric Dreiband. "The Commission will continue its aggressive prosecution of claims of disability discrimination so that people with disabilities will be included in the workplace and

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will be guaranteed equal employment opportunities. The jury's verdict should signal employers that they should abandon paternalistic and discriminatory ideas about people with disabilities. Employers should engage in dialogue with employees with disabilities so that their employees receive effective and reasonable accommodations."
EEOC Regional Attorney Keith Hill, who led the agency's litigation efforts, said: "The evidence we presented to the jury showed Ms. Barrios was qualified, ready, willing and able to perform her job and could safely evacuate the plant, even though she had substantial physical impairments. A goal of the ADA is to dispel myths, fears, and stereotypes related to one's disability. The message the jury sent to employers with this verdict is that disability does not mean inability."
Ms. Barrios, whose impairments severely limit her major life activities, successfully worked for DuPont from 1981 to 1999. During that time, she held positions as a lab operator, lab trainer, and lab clerk, with her most recent position being that of a secretarial employee – a sedentary job which required minimal physical exertion. At all times relevant, Ms. Barrios performed all of the essential functions of her positions, despite having severe scoliosis of the lumbar spine, lumbar disc disease with sciatica, lumbar spinal stenosis with compression neuropathy, neurogenic bladder, cervical spondylosis, previous cervical disc disease with surgical fusion, and reactive depression.
Gregory Juge, Senior Trial Attorney who tried the case for the Commission said, "The one million dollars in punitive damages awarded by the jury sends a message to DuPont and all employers that this type of illegal treatment of employees with disabilities will not be tolerated. We are pleased that the jury was guided by the evidence and their conscience to serve the interest of justice in this case."
As a result of her physical impairments, Ms. Barrios is substantially limited in walking and experiences severe pain on a chronic basis. She walks with a distinct limp and substantially slower than an average person. Her impairments also affect her ability to lift things; for example, she uses two hands to lift a gallon of milk. Despite these physical impairments, Ms. Barrios was able to perform the essential functions of her job.
Nevertheless, in 1996, a DuPont plant physician placed Ms. Barrios on extensive work restrictions, one of which limited her to eight-hour days, even though there was no medical evidence that Ms. Barrios needed such restrictions. Further, in 1997, DuPont changed Ms. Barrios's job position based on false pretense of attempting to accommodate her. Finally, in 1999, Ms. Barrios was required to take the painful functional capacity test which was not related to her job functions and ultimately resulted in her involuntary termination. DuPont received the results of Ms. Barrios's FCE on July 6, 1999, which rated her as capable of "light" work (more demanding than her sedentary job) but noted "significant instability" while walking heel- to-toe carrying a box of weights back and forth on a 100-foot long line. The very same day, DuPont judged that Ms. Barrios could not safely take one step on its premises. On July 7, 1999, the very next day, DuPont permanently banned her from the site. She never worked for DuPont again.
At trial, the terminating official testified that he decided to end Ms. Barrios's employment based on nothing other than the knowledge that she was restricted from walking anywhere on the site. To justify Ms. Barrios's termination, DuPont asserted that she was a "direct threat" because of being incapable of safely evacuating due to her inability to walk. However, DuPont's Human Resources Manager admitted under oath that Ms. Barrios is not a direct threat and is in fact capable of safely evacuating by walking. Noting that "I have really missed my job," Ms. Barrios said: "I tried to prove to them that I could safely evacuate the plant site, but they would not let me prove it. All I wanted was to do my job."
The ADA protects workers from being terminated because of a disability and prohibits any other employment practice which discriminates on the basis of disability. Further information about the Commission is available on the agency's web site at www.eeoc.gov.

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 Judge Upholds Jury Verdict Against DuPont For $591,000 In Disability Bias Suit by EEOC Page 1 of 2

The U.S. Equal Employment Opportunity Commission

FOR IMMEDIATE RELEASE June 9, 2005

CONTACT: Keith T. Hill Acting District Director New Orleans District Office (504) 589-3842 Gregory T. Juge Senior Trial Attorney (504) 589-2663
TTY: (504) 589-2958

JUDGE UPHOLDS JURY VERDICT AGAINST DUPONT FOR $591,000 IN DISABILITY BIAS
SUIT BY EEOC

‘Malice' and ‘Reckless Indifference' by Company Cited in Court Ruling
NEW ORLEANS – A federal court here has rejected the efforts of E.I. DuPont de Nemours & Co. (DuPont) to overturn an October 2004 jury verdict that found the company liable for maliciously and intentionally discriminating against an employee with a disability, the U.S. Equal Employment Opportunity Commission (EEOC) announced today. The judgment entered by the court orders the Delaware-based science and chemical giant to pay $591,000 to a former employee who was fired due to her disability – including $300,000 in punitive damages, the maximum allowed under the law.
The EEOC's lawsuit against DuPont, filed in June of 2003, charged the company with violating the Americans with Disabilities Act (ADA) when it terminated the employment of Laura Barrios, who has severe physical impairments, due to her alleged inability to walk well enough to evacuate the premises in an emergency. However, at trial, the jury found that Ms. Barrios was able to perform her job without posing an undue threat to herself or others in the workplace.
The jury originally ordered DuPont to pay $1.29 million to Ms. Barrios for illegally firing her with malicious intent. The award included $1,000,000 in punitive damages, $91,000 in lost past wages, and $200,000 in lost future wages. On January 31, 2005, pursuant to legal limits imposed by the ADA, the court reduced the punitive damage award to the highest possible amount of $300,000 (the statutory cap for one individual).
"We are pleased with the jury verdict and court decision in this case," said EEOC General Counsel Eric Dreiband. "Employers need to ensure that their employees do not suffer discrimination based on disability."
In her 60-page opinion dated June 6, 2005, Judge Sarah S. Vance of the United States District Court for the Eastern District of Louisiana found sufficient evidence to uphold all aspects of the jury's verdict. In reference to the punitive damage award, Judge Vance stated, "The jury may have concluded from this evidence that DuPont wished to force out an individual with a disability whether she could work or not – a reprehensible view with respect to individuals with disabilities."
Judge Vance added, "Ultimately, there is ample evidence from which the jury could have concluded that DuPont discriminated against Barrios with both malice and reckless indifference to her rights under the ADA...there was sufficient evidence for the jury to conclude that DuPont engaged in a pattern of intentionally discriminatory and malicious conduct."

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EEOC Senior Trial Attorney Gregory T. Juge, who litigated the case for the EEOC, said, "The hard facts and clear evidence we presented at trial led the jury and Judge Vance to their just determinations. The message to employers is a simple one: disability does not mean inability. Employment decisions must be made based on one's ability to do the job, not on disability-based myths, fears or stereotypes." According to its web site (www.dupont.com), "Founded in 1802, DuPont puts science to work by creating sustainable solutions essential to a better, safer, healthier life for people everywhere. Operating in more than 70 countries, DuPont offers a wide range of innovative products and services for markets including agriculture, nutrition, electronics, communications, safety and protection, home and construction, transportation and apparel." The EEOC is the federal government agency responsible for enforcing the nation's laws prohibiting discrimination in employment based on race, color, sex, religion, national origin, retaliation, age and disability. Further information about the EEOC is available on its web site at www.eeoc.gov.
This page was last modified on June 9, 2005.
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 October 25, 2005 Meeting - Remarks of Andrew J. Imparato

Page 1 of 1

Emergency Preparedness and the Workplace
I begin my testimony with these sobering studies because I believe it is important that the issue of emergency preparedness and the workplace be thought about in this broader context. We don’t want an over-emphasis on emergency preparedness in the workplace to create additional reasons for employers to discriminate against qualified job applicants and workers with disabilities. I am hopeful that EEOC’s work in this area will be very careful to remind employers that their own fears about how a disabled employee would fare in an emergency will rarely if ever be a justification for failing to hire a qualified job applicant or terminating a qualified worker's employment.
EEOC's litigation in EEOC v. DuPont involving a disabled employee who was terminated based on the employer’s fears that she would be unable to evacuate safely in an emergency is a good example of how this issue can play out in a way that harms disabled employees. I commend EEOC for taking this case to trial and reinforcing the fact that a direct threat defense is a narrow defense and not something that an employer will be able to fall back on without compelling evidence of an imminent risk of substantial harm to the worker or others. I would encourage EEOC to pursue and publicize similar cases so that the employer community will be put on notice not to take the increased emphasis on emergency preparedness as a license to discriminate against qualified employees.
Moreover, I would encourage the Commission to consider issuing additional guidance on the limited nature of the direct threat defense, and the danger of employer paternalism with respect to job applicants or workers with disabilities in the aftermath of high-profile disasters. In this guidance, EEOC might want to point out the history of disabled people being excluded from lots of settings because of unfounded fears that they would be a “fire hazard” if they were allowed entrance. Employers should be warned not to exclude workers in the name of emergency preparedness anymore than they would exclude clients or customers on such a basis.

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 480 F.3d 724 (2007)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v.
E.I. DU PONT DE NEMOURS & CO., doing business as DuPont Specialty Chemicals, Defendant-Appellant.
No. 05-30712.
United States Court of Appeals, Fifth Circuit.
March 1, 2007.
72567 *725 *726 *727 Joseph A. Seiner (argued), E.E.O.C., Washington, DC, Gregory Thomas Juge, E.E.O.C., New Orleans, LA, for Plaintiff-Appellee.
Raymond Michael Ripple (argued), Donna L. Goodman, DuPont Legal, Wilmington, DE, Mark C. Carver, Goins Aaron, Baton Rouge, LA, William D. Aaron, Jr., Goins Aaron, New Orleans, LA, for Defendant-Appellant.
Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.
EDITH H. JONES, Chief Judge:
E.I. DuPont de Nemours and Company ("DuPont") appeals the partial grant of summary judgment to the EEOC and its refusal to alter the judgment following a jury verdict awarding Laura Barrios backpay, frontpay, and punitive damages for violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. DuPont argues that Barrios was not disabled under the ADA, that it did not "regard her" as disabled, that she could not perform an essential function of her job, and that the awards of punitive damages and front- and backpay were inappropriate. Finding only the frontpay award to be infirm, we AFFIRM in part and REVERSE in part.
I. BACKGROUND
Laura Barrios began working in 1981 as a lab operator in DuPont's LaPlace, Louisiana, chemical plant. In 1986, she was diagnosed with a number of medical conditions that made it increasingly difficult for her to walk and for which she received continuing medical treatment.
Barrios's position required her to obtain annual physical examinations by DuPont plant physicians. In 1996, the 728 company physicians restricted Barrios from, inter alia, standing for more than ten minutes, *728 walking more
than one hundred feet without resting, working in a stooped position, or working more than eight hours. A year later, DuPont transferred her to the position of lab clerk, a sedentary job that involved copying and filing.
DuPont's examinations culminated in a 1999 functional capacity evaluation ("FCE") because of concerns about Barrios's ability to safely walk at the plant. The FCE was intended to evaluate Barrios's ability to perform the basic functions of her job and to meet certain qualification standards, including the ability to evacuate in the event of an emergency. Because of the hazardous nature of the chemical manufacturing process at the plant, DuPont was concerned about Barrios's ability to evacuate safely. DuPont contends that the ability to evacuate during an emergency is required of all employees, and DuPont routinely conducts emergency response drills.
After the FCE confirmed Barrios's walking impairment, DuPont physicians concluded that she should be medically restricted from walking anywhere at the plant. DuPont believed this restriction left her unable to evacuate in event of an emergency. The company placed Barrios on temporary disability for six months and total and permanent disability thereafter. Barrios's attempt to get her job back was rebuffed by Dupont, even though she demonstrated in 2003 that she could walk an evacuation route without assistance.

The EEOC filed suit against DuPont in June 2003, alleging that DuPont violated the ADA by forcing Barrios to undergo the FCE and by discharging her. DuPont responded that Barrios was terminated because the FCE showed she could not safely evacuate the plant on her own during an emergency. After both parties filed crossmotions for summary judgment, the district court granted the EEOC's motion in part and denied DuPont's motion. The court found that DuPont regarded Barrios as disabled under the ADA, but it found other material issues of fact.
The parties proceeded to trial, and a jury found that Barrios was discharged in violation of the ADA and awarded her $91,000 in backpay, $200,000 in frontpay, and $1,000,000 in punitive damages, which the district court reduced to $300,000.[1] The court denied DuPont's post-judgment motions. DuPont now appeals.
II. DISCUSSION
DuPont argues that the district court erred in granting partial summary judgment to the EEOC and in denying its motions for judgment as a matter of law, new trial, and to amend or alter the judgment because Barrios was not disabled or "regarded as" disabled under the ADA; the awards of back- and frontpay are improper; and the punitive damages award was unsupported. We address each issue in turn.
A. Disability
DuPont appeals both the district court's grant of partial summary judgment to the EEOC on the issue whether DuPont regarded Barrios as substantially limited in the major life activity of walking and the court's failure to determine as a matter of law that Barrios was not disabled. Because the EEOC does not defend the jury's finding that Barrios was actually disabled for ADA purposes, this appellate review must consider whether to sustain the judgment solely on the basis that DuPont regarded Barrios as disabled.
729 This court reviews de novo the district court's grant of summary judgment, utilizing *729 the same criteria as the district court. Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 110 (5th Cir.2005). DuPont will prevail if the evidence demonstrated a genuine issue of material fact.
The ADA's definition of "disability" includes individuals who are "regarded as having such an impairment [that substantially limits one or more of the major life activities]." 42 U.S.C. § 12102(2)(C); see also Rodriguez v. ConAgra Grocery Prods. Co., 436 F.3d 468, 475 (5th Cir.2006). A plaintiff is "regarded as" being disabled if he "(1) has an impairment that is not substantially limiting but which the employer perceives as substantially limiting, (2) has an impairment that is substantially limiting only because of the attitudes of others, or (3) has no impairment but is perceived by the employer as having a substantially limiting impairment." Waldrip v. Gen. Elec. Co., 325 F.3d 652, 657 (5th Cir.2003) (citing Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 508 (5th Cir.2003)); see also Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 2149-50, 144 L.Ed.2d 450 (1999).
In holding that DuPont regarded Barrios as disabled, the district court relied upon the broad restrictions placed on her by DuPont physicians, the total and permanent disability benefits provided to her with DuPont's assistance, and DuPont's pleadings and discovery responses. DuPont admitted in its discovery responses that Barrios was "incapable of walking" and "permanently disabled from walking." DuPont plant physicians placed restrictions on her walking anywhere at the plant site, including on level and paved surfaces, because they considered her "substantially impaired in walking" and because she "could not dependably be counted on to walk safely." The district court cited a large quantity of evidence consistent with its conclusion.
In response, DuPont argues that, rather than having regarded Barrios as entirely disabled from the major life activity of walking, it regarded her as having a medical restriction that prevented her from walking at the plant. Two of this court's decisions, Ray v. Glidden Co., 85 F.3d 227 (5th Cir.1996), and Pryor v. Trane Co., 138 F.3d 1024 (5th Cir.1998), are representative of a long line of cases holding that an employer may regard an employee as impaired or restricted from one position or a narrow range of jobs without regarding him as "disabled."[2]Ray

held that restrictions on heavy lifting did not establish a record of disability or a "regarded as" disability because the inability to perform heavy lifting did not render the employee "substantially limited in the major activities of lifting or working." 85 F.3d at 229. Similarly, in Pryor, the employee could not be regarded as disabled because her work restrictions were limited only to a particular job and not an entire class of jobs. 138 F.3d at 1028.
DuPont's reliance upon Ray and Pryor is misplaced. The evidence demonstrates that DuPont did not regard Barrios as restricted from a narrow range of jobs; rather, DuPont regarded Barrios as restricted from all jobs at the plant, because every employment position requires walking on the plant site. Moreover, DuPont's perception of Barrios's walking impairment was not limited to the plant 0907 Dupont physicians believed her impairment 730 extended to "home, at work, wherever." If *730 company experts believed Barrios could not walk safely even in her own work area, which consisted of level, flat surfaces, then DuPont must also have believed she could not safely walk anywhere. See Rodriguez, 436 F.3d at 477. DuPont was unable to offer evidence that created a genuine issue of material fact that its experts' perceptions of the work restrictions might have been limited to Barrios's ability to walk in her particular position as a lab clerk or only at the DuPont plant.
Therefore, for ADA purposes, DuPont regarded Barrios as substantially limited in the major life activity of walking. See 29 C.F.R § 1630.2(j)(1)(i) (stating that "substantially limits" means "[u]nable to perform a major life activity that the average person in the general population can perform"); Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024-25 (5th Cir.1999) (per curiam) (noting that walking is a major life activity); see also EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 802 (7th Cir.2005) (holding that a "severe difficulty in walking the equivalent of one city block was a substantial limitation compared to the walking most people do daily"). The district court properly granted summary judgment that Barrios was "regarded as" disabled.
B. Sufficiency of Evidence
DuPont next contends that ADA liability cannot attach as a matter of law because Barrios was not qualified for the position of lab clerk, she could not perform the essential function of evacuation, and she constituted a direct safety threat to herself and others. The jury implicitly found otherwise.
DuPont cannot prevail in seeking judgment as a matter of law "unless there is no legally sufficient evidentiary basis for a reasonable jury['s] verdict." Arsement v. Spinnaker Exploration Co., 400 F.3d 238, 248-49 (5th Cir.2005) (quoting FED. R.CIV.P. 50(a)(1)).[3]
The ADA states that a qualified individual with a disability is one who "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Rodriguez, 436 F.3d at 474 (emphasis added) (quoting 42 U.S.C. § 12111(8)). Essential functions are the fundamental duties of the job at issue and do not include the job's "marginal functions." Kapche v. City of San Antonio, 176 F.3d 840, 843 (5th Cir.1999) (citing 29 C.F.R. § 1630.2(n)(1)). When considering whether a function is essential, a court may hear a variety of evidence, including "(1) the employer's judgment as to which functions are essential, (2) written job descriptions prepared before advertising or interviewing applicants for the job, (3) the amount of time spent on the job performing the function, and (4) the work experience of both past and current employees in the job." Id. (citing 29 C.F.R. § 1630.2(n)(3)(i)-(vii)). Appellate review of the jury's determination of the essential functions of Barrios's job is highly deferential. See Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d 702, 707 (5th Cir. 1997).
DuPont asserted that Barrios was incapable of evacuating from the plant in an emergency and that evacuation is 731 an essential function of all workers at a chemical *731 refinery. We do not doubt that safety measures are
extremely important in such workplaces. Nevertheless, Barrios and the EEOC offered contradictory evidence on DuPont's precise points, and the jury was entitled to decide whether to credit Barrios or DuPont. We will not disturb its choice.
DuPont also asserts as an affirmative defense that Barrios posed a direct threat to herself and other employees because she could not safely evacuate. See 42 U.S.C. § 12113(a)-(b). The ADA does not protect an employee who poses a direct threat to the health and safety of herself or others in the workplace. Robertson v. Neuromedical Ctr., 161 F.3d 292, 296 (5th Cir.1998) (per curiam). A direct threat is a "significant risk to the health

or safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C. § 12111(3). The employer must make an "individualized assessment of the individual's present ability to safely perform the essential function of the job." Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 86, 122 S.Ct. 2045, 2053, 153 L.Ed.2d 82 (2002) (quoting 29 C.F.R. § 1630.2(r)); see also Rodriguez, 436 F.3d at 484; Kapche, 304 F.3d at 498.
Here, too, there was sufficient evidence for a reasonable jury to conclude that Barrios was not a direct threat to herself or her co-workers. Despite her medical restriction from walking, Barrios safely ambulated the evacuation route without assistance in 2003, and testimony at trial supported that she could safely evacuate without threatening the safety of others. See Rizzo v. Children's World Learning Ctrs., Inc., 213 F.3d 209, 213 (5th Cir.2000) (en banc) (driver of child care van with hearing impairment not a direct threat); cf. Gonzales v. City of New Braunfels, 176 F.3d 834, 838 (5th Cir.1999) (police officer driving a cruiser "with insulin-dependent diabetes poses a direct threat to the health and safety of others as a matter of law"). The district court did not err in denying DuPont's motion for judgment as a matter of law.
C. Back- and Frontpay Damages
The jury awarded $91,000 backpay from the date of Barrios's separation, July 1999, to the date of judgment in January 2005, and the court awarded frontpay of $200,000, premised on Barrios's ability to work until she became sixty-five and on the infeasibility of reinstatement at DuPont. DuPont challenges both awards.
The jury's determination of the backpay period in this case was not insupportable. See Brunnemann v. Terra Int'l, Inc., 975 F.2d 175, 178 n. 5 (5th Cir.1992) ("the determination of back pay period is a factual matter to be set aside only when clearly erroneous" (citing Matthews v. A-1, Inc., 748 F.2d 975, 978 (5th Cir.1984))). Although Dr. Montegut, Barrios's physician, testified that Barrios was medically unable to work after June 2001, the jury could have relied upon testimony that Barrios had a high pain threshold and could have worked after that date. The jury was in a better position than this court to weigh the evidence concerning the proper date to cut off backpay. See id. Further, assessing the backpay at the modest amount of approximately $20,000 per year over a five-year period was not improper.[4]
732 The same cannot be said of the district court's award of frontpay, which was based on an advisory jury verdict. *732 See Julian v. City of Houston, 314 F.3d 721, 728 n. 25 (5th Cir.2002) (district court may determine frontpay with the assistance of an advisory jury). We review the district court's award of frontpay for abuse of discretion. Id. at 728; see also Giles v. Gen. Elec. Co., 245 F.3d 474, 489 (5th Cir.2001).
"Front pay is awarded to compensate the plaintiff for lost future wages and benefits." Rutherford v. Harris County, 197 F.3d 173, 188 (5th Cir.1999) (quoting Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir.1992)). Although reinstatement is preferred, frontpay may be awarded if reinstatement is not feasible. Id.[5] The key issue before this court is "whether the district court adequately explained why it awarded front pay." Id.
The district court concluded that Barrios was likely to have continued working for DuPont despite her walking impairment. This conclusion was based on testimony that Barrios was hard-working, committed, and had a "high tolerance for pain." Given Barrios's steadily deteriorating medical condition, however, her doctor's repeated statements as time went on that she remained unable to work, and the fact that the trial occurred more than three years after her doctor's first disability determination and five years after the adverse FCE, the court's finding that Barrios could work for nearly ten more years post-judgment defies reality and the record. As she was unable to work in the future, Barrios was not eligible to receive "future wages and benefits." See, e.g., McInnis v. Fairfield Cmtys., Inc., 458 F.3d 1129, 1146 (10th Cir.2006) (frontpay award must not grant plaintiff a windfall). Although the jury's determination of the backpay period was not clearly erroneous, the district court's award of frontpay was an abuse of discretion. Only the backpay award can stand.

D. Punitive Damages
Finally, DuPont challenges the award of punitive damages. It argues that there was no evidence of malice or reckless indifference and that punitive damages are unavailable as a matter of law absent a finding of compensatory damages.
A plaintiff may recover punitive damages if the defendant acted "with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1). The availability of punitive damages turns on the defendant's state of mind, not the nature of the defendant's egregious conduct. Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535, 119 S.Ct. 2118, 2124, 144 L.Ed.2d 494 (1999). The employer "must at least discriminate in the face of a perceived risk that its actions will violate" the ADA. Id. at 536, 119 S.Ct. at 2125. Moreover, the plaintiff must show that the "malfeasing agent served in a `managerial capacity' and committed the wrong while `acting in the scope of employment.'" Rubinstein v. Adm'rs of the Tulane Educ. Fund, 218 F.3d 392, 405 (5th Cir.2000) (citing Kolstad, 527 U.S. at 541, 119 S.Ct. at 2127). However, under the goodfaith exception, "an employer may not be vicariously liable for the discriminatory employment decision of managerial agents where these decisions are contrary to the employer's good-faith efforts to comply with Title VII." Id. (citing Kolstad, 527 U.S. at 545, 119 S.Ct. at 2129) (internal quotation marks omitted).
733 *733 There was sufficient, albeit disputed, evidence to support the jury finding that DuPont intentionally discriminated against Barrios with malice or with reckless disregard for her rights. DuPont was aware of its responsibilities under the ADA. Yet, viewed in the light most favorable to the verdict, DuPont made Barrios's job more difficult. The company placed Barrios's printer over one hundred feet from her desk in spite of her walking difficulties, whereas other lab clerks' printers were adjacent to their desks. DuPont refused to allow Barrios to demonstrate her ability to evacuate before she was terminated 0907 for inability to evacuate. The company spent years trying to convince Barrios to retire on disability. But the crowning evidentiary blow against DuPont is that after Barrios attempted to get her job back, a DuPont supervisor stated that he no longer wanted to see her "crippled crooked self, going down the hall hugging the walls." The supervisor's denial of this remark under oath, like DuPont's rejoinder to other negative evidence, was subject to the jury's credibility assessment. The jury likewise could have rejected DuPont's good-faith defense based on the conclusory assertions by two DuPont employees that they comply with the law. Cf. Hatley v. Hilton Hotels Corp., 308 F.3d 473, 477 (5th Cir.2002) (employer's well-publicized policies, training, grievance procedure, and investigation of plaintiff's complaint were sufficient to sustain good-faith defense).
DuPont alternatively contends that the punitive damages award was impermissible in the absence of compensatory damages; front- and backpay awards are "equitable" remedies, rather than compensatory. Whether this is a correct interpretation of 42 U.S.C. § 1981a is an issue of first impression in our court. We review this legal question de novo. La. ACORN Fair Housing v. LeBlanc, 211 F.3d 298, 301 (5th Cir.2000), cert. denied, 532 U.S. 904, 121 S.Ct. 1225, 149 L.Ed.2d 136 (2001).
The analysis begins with the text of the statute. Doe v. KPMG, LLP, 398 F.3d 686, 688 (5th Cir.2005). Section 1981a(b)(1) authorizes punitive damages if the defendant acts "with malice or with reckless indifference to the federally protected rights of an aggrieved individual." Because subsection (b)(2) states that "[c]ompensatory damages awarded under this section shall not include backpay," DuPont contends that backpay is excluded from compensatory damages. As the district court correctly noted, however, nothing in the text of the statute limits an award of punitive damages to cases in which the plaintiff also receives compensatory damages. See Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1352 (7th Cir.1995); see also Corti v. Storage Tech. Corp., 304 F.3d 336, 342 (4th Cir.2002). Other courts of appeals have uniformly rejected DuPont's assertion and have held that an award of wage loss alone can sustain a statutory award of punitive damages.[6]
734 *734 DuPont relies upon LeBlanc to support its argument that the "equitable" awards of front- and backpay are insufficient to sustain an award of punitive damages. See 211 F.3d 298, 301 (5th Cir.2000). In a Fair Housing Act case in which no compensatory damages were awarded for a statutory violation, this court disallowed a punitive

damages award absent an award of actual damages or a constitutional violation. Id. at 303 & n. 3. DuPont asserted at oral argument that LeBlanc covered all civil rights cases in this circuit.
Although LeBlanc surveyed the landscape concerning punitive damages under various statutes and around the circuits, the case ultimately ruled on their availability (a) under the Fair Housing Act and (b) in a case where no compensatory damages of any sort were awarded. Under Section 1981a, back- and frontpay awards serve a compensatory function, leading courts to conclude that a Fair Housing Act case is not analogous. See Corti, 304 F.3d at 343. Moreover, Barrios's backpay award was issued precisely to remedy her wage loss following illegal termination by DuPont. LeBlanc is thus distinguishable on both the law and the facts. DuPont also overlooks that in Rubinstein v. Administrators of the Tulane Educational Fund, 218 F.3d 392, 407 (5th Cir.2000), this court sustained a punitive damages award where the plaintiff received only compensation damages for lost wages. Consequently, we do not find persuasive DuPont's attempt to characterize wage loss as an exclusively equitable remedy that is insufficient to support an award of punitive damages. See Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210, 218 n. 4, 122 S.Ct. 708, 712, 717 n. 4, 151 L.Ed.2d 635 (2002).
III. CONCLUSION
For the reasons discussed above, we AFFIRM liability and the awards of backpay and punitive damages but REVERSE the award of frontpay.
AFFIRMED IN PART, REVERSED IN PART.
[1] See 42 U.S.C. § 1981a(b)(3)(D).
[2] See, e.g., Blanks v. Sw. Bell Commc'ns, Inc., 310 F.3d 398, 402 (5th Cir.2002); Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir.1999) (per curiam); Deas v. River West, L.P., 152 F.3d 471, 480-81 (5th Cir.1998); Bridges v. City of Bossier, 92 F.3d 329, 334-36 (5th Cir.1996).
[3] Because DuPont's briefs argue only for reversal of the judgment, the company has failed sufficiently to brief and thus waived any claim to a new trial. Another point of confusion is that DuPont argues that the jury was "clearly wrong" in its verdict. Clear error is not the standard for judgment as a matter of law, but we assume that DuPont's argument is meant to be internally consistent.
[4] The backpay award was adjusted for the amount of disability compensation Barrios received from DuPont during this period.
[5] DuPont also challenges the district court's finding that reinstatement was infeasible; however, because the district court's award of frontpay was an abuse of discretion, we do not address this argument.
[6] See Tisdale v. Fed. Express Corp., 415 F.3d 516, 534 (6th Cir.2005) ("Because backpay awards under Title VII serve a similar purpose as compensatory damages awards under the common law, courts have held they may be considered in determining the appropriate size of a punitive damages award."); Salitros v. Chrysler Corp., 306 F.3d 562, 575 (8th Cir. 2002) (award of frontpay is sufficient to sustain the punitive damage award because "the common law policy prohibiting punitive damages where the plaintiff has not shown any harm is not implicated where the plaintiff has shown wage loss"); EEOC v. W&O, Inc., 213 F.3d 600, 615 (11th Cir.2000) ("punitive damages may be appropriate where a plaintiff has received back pay but no compensatory damages"). Although we need not and do not decide or endorse their position, two courts of appeals have even upheld punitive damage awards in the absence of either compensatory damages or backpay. Cush-Crawford v. Adchem Corp., 271 F.3d 352, 359 (2d Cir.2001); Timm v. Progressive Steel Treating, Inc., 137 F.3d 1008, 1010 (7th Cir.1998).
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