1 The Honorable Robert W. Pratt, United States District Court Judge for the Southern District of Iowa. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-1869

___________ Amber Walker, *
* Plaintiff-Appellant, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Fred Nesbit Distributing Co., * * [UNPUBLISHED] Defendant-Appellee. *

___________ Submitted: December 16, 2005 Filed: December 22, 2005

___________ Before WOLLMAN, LAY, and RILEY, Circuit Judges.

___________ PER CURIAM. Amber Walker appeals the district court’s 1 denial of her motion for a new trial. The district court ruled that the jury’s ve rdict that Walker’s former employer did not discriminate against her on the basis of her pregnancy was supported by the clear weight of the evidence. We affirm.-2- I. Procedural and Factual Background

In March 2002, Amber Walker initiated an employment discrimination claim against her former employer, Fred Nesbit Di stributing Company (“Nesbit”). In June 2004, Nesbit filed a motion for summary judgment, which the district court granted in part and denied in part, holding that genuine issues of material fact existed regarding Walker’s claims that Nesbit disc riminated against her on the basis of her pregnancy pursuant to the Pregnancy Disc rimination Act of 1978, 42 U.S.C. § 2000e2(a), as defined and codifiedby § 2000e(k). A jury tria l was held in November 2004, during which Walker sought to demonstrate that Nesbit had a policy of accommodating employees who were injure d off the job by providing light duty or reassignment. Although Nesbit admitted it had once administered such a policy, the company presented evidence that it had ch anged the policy in the fall of 2001 for economic reasons. Walker claimed that Nesbit’s “policy ch ange” argument was pretextual and that, in fact , the company had refused to accommodate her because she was pregnant. The jury returned a verdict in favor of Nesbit. Walker then filed a motion for a new trial, cont ending that the jury’s verdict was not supported by the clear weight of the evidence. The district court denied Walker’s motion, stating“there is nothing in the record to indicate the ve rdict was against the clear weight of the evidence.” Walker now appeals to this c ourt, arguing the district court abused its discretion in denying a new trial.

Walker was employed by Nesbit as a beer truck driver in May 2000. Her duties consisted of delivering products, rotating b ack stock, stocking shelves, building and maintaining displays, and picking up old and damaged products. Her job description required that she be able to lift more than fifty pounds. In January 2002, Walker notified her supervisor at Nesbit that sh e was pregnant. Despite being pregnant, Walker continued to perform all the requirements of her job.-3- In April 2002, Walker requested either to be reassigned to light duty or to have an assistant accompany her to do the require d heavy lifting during deliveries. Nesbit refused this request, citing a policy changemade in the fall of 2001 that allowed employees to be reassigned to light duty only if they were injured on the job. Nesbit did not add this new policy to the employ ee handbook or commit it to writing. In lieu of reassigning Walker to light duty or provi ding someone to assist with heavy lifting, Nesbit told Walker she was entitled to twel ve weeks of unpaid leave under the Family and Medical Leave Act (“FMLA”). Shortly thereafter, Walker again requested accommodation, providing Nesbit with a physic ian’s work restriction stating she could no longer lift more than twenty pounds and was limited to working no more than eight hours a day, forty hours per week. Nesbit denied Walker’s request and told her that, because the remainder of her pre gnancy was longer than the twelve weeks of unpaid leave she would receive under FMLA, the company would provide an additional six weeks of unpaid leave. Walker was placed on unpaid leave on May 1, 2002. She gave birth on Augus t 21, 2002. Her eighteen w eeks of unpaid leave ended on August 27, 2002, six days af ter her child was born. Tw o days later, on August 29, 2002, Nesbit terminated Walk er because she did not return to work. Nesbit told Walker she was free to reapply for her old j ob when she was able to return to work. Walker never reapplied for her old job.

II. Analysis

A. Standard of Review

This court reviews a district court’s de nial of a motion for a new trial under an abuse of discretion standard. A district court will reverse only “if the evidence weighs heavily enough against the verdict that a mi scarriage of justice may have occurred.” United States v. Walker , 393 F.3d 842, 848 (8th Cir. 2005). The district court “is not ‘free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn differe nt inferences or conclusions or because judges feel that other-4- results are more reasonabl e.’” White v. Pence , 961 F.2d 776, 780 (8th Cir. 1992) (quoting Fireman’s Fund Ins. Co. v. Aalco Wrecking Co. , 466 F.2d 179, 186 (8th Cir. 1972)). Accordingly, “where reasonabl e men can differ in evaluating credible evidence, a new trial on the ground of weightof the evidence should not be granted.” White , 961 F.2d at 781. “When the basis of th e motion for a new trial is that the jury’s verdict is against the weight of the evidence, the district court’s denial of the motion is virtually unassailable on appeal.” Wash Solutions, Inc. v. PDQ Mfg., Inc. , 395 F.3d 888, 892 (8th Cir. 2005) (inter nal quotation and citation omitted).

B. Analysis

In evaluating Walker’s argument, we fi rst note that Walker had the ultimate burden of proof in her claim that Nesbit intentionally discriminated against her because she was pregnant. Texas De pt. of Cmty. Affairs v. Burdine , 450 U.S. 248, 253 (1981). After the close of evidence, the trial court instructed the jury as follows:

[Walker’s] claim of pregnancy di scrimination is that she was subjected to different, more adverse employment actions or conditions than similarly situated male empl oyees. Specifically, that she was denied accommodation, light duty (a driver’s assistant) or a reassignment.

Your verdict must be for [Walker] on her pregnancy discrimination claim if all of the following elements have been proved by the greater weight of the evidence:

First , [Walker] was subjected to different, more adverse employment actions or conditions than similarly situated male employees; and

Second , [Walker’s] pregnancy was a motivating factor in [Nesbit’s] employment decisions. Pregnancy was a “motivating factor” if [Walker’s] pregnancy played a rolein [Nesbit’s] decision to refuse-5- accommodation, light duty or reassignm ent, to [Walker]. However, it does not require that [Walker’s] pregnancy was the only reason for [Nesbit’s] employment decisions.

If either of the above elements has not been proved by the greater weight of the evidence, your verdic t must be for [Nesbit] and you need not proceed further in considering this claim. The court also instructed the jury that “[y] ou may not return a verdict for [Walker] just because you might disagree with [Nesbit’s] decisions or believe [those decisions] to be harsh or unreasonable. An employer is entitled to make its own subjective personnel decisions for any reasons that are not discriminatory.”

As the district court observed in its memorandum opinion denying Walker’s motion for a new trial, both elements set fo rth in the jury instruction “needed to be answered in the affirmative fo r Walker to be successful inher suit.” Thus, given the verdict in favor of Nesbit, it follows that th e jury concluded either 1) that Walker was not subjected to different, more adverse employment actions or conditions than similarly situated male employees, or 2) that pregnancy was not a motivating factor in Nesbit’s employment decisions. It is al so possible that the jury concluded that neither criteria had been met.

On appeal, Walker presents two argumen ts. First, she contends that she presented uncontroverted evidence thatNesbit accommodated similarly situated employees–i.e., male delivery truck driv ers–when they experienced off-the-job injuries or engaged in off-the-job activities that rendered th em unable to perform their duties. Walker asserts Nesbit accommodates two categories of male drivers. The first category consists of drivers who lose their Commercial Drivers Licenses (“CDL”) due to operating while intoxicated (“OWI” ) convictions. Walker points out that Nesbit has a written policy providing that a driver who loses his or her CDL “will be terminated.” If, however, the driver re signs, he or she may “reapply as a sales trainee.” Walker presented evidence that at least one male truck driver (who was-6- terminated by Nesbit after losing his li cense as a result of an off-the-job OWI conviction) was rehired by Nesbit as a sales trainee. Walker argues that this establishes that Nesbit, by policy and pr actice, accommodates truck drivers who can no longer perform their truck driving duties due to off-the -job conduct. The second category of similarly situated male drivers Walker identifies consists of drivers who are injured off the job and then are provided w ith an assistant to help with their duties while they recover. Walker presented evidence that truck driver James Sassatelli received help with his lifting duties for two days to a week after he returned from knee surgery in February 2001. A nother truck driver, Mark Mille r testified that in August 2000, after breaking hi s leg off the job, Nesbit accommodated him with a “driver trainee” for seven or eight days to assist with lifting. A third truck driver, Charles Starmer, testified that in September 2001 Nesbit provided a “driver’s trainee” to ride along and assist him with lifting for five to six weeks after breaking his foot. Walker asserts that these three examples estab lish that Nesbit has a policy of accommodating drivers who, due to off-the-job injuries, are temporarily unable to fulfill all their duties.

The second argument Walker presents on appeal involves Nesbit’s admission that it did not include its 2001 policy ch ange in the employee handbook or reduce it to writing. Walker asserts Nesbit’s actions we re “insufficient to effect a change in its practice/policy of accommodation” and that the company’s inaction supports her claim that the “policy cha nge” argument was a pretext for denying her accommodation because she was pregnant. According to Wa lker, Nesbit’s failure to make the policy change more explicit “gives rise to a powerful inference of unlawful discrimination”–and which, when consideredin light of the evidence she presented regarding accommodations given to male drivers, establis hes no reasonable jury could have concluded that Nesbit di d not discriminate against he r on the basis of pregnancy.

We first turn to Walker’s claim re garding Nesbit’s policy of allowing male drivers who have lost their licenses due to OWI convictions to resign and reapply for-7- sales trainee positions. Walker argues this policy establishes that Nesbit’s refusal to accommodate her was motivated by pregnancy discrimination. The district court concluded that male truck drivers who had lost their li cense due to OWI convictions were not similarly situated to Walker b ecause they were not “similar in their ability or inability to work” as required by the Pregnancy Discri mination Act, 42 U.S.C. § 2000e(k). The district court observe d that, unlike a driver terminated due to the loss of his or her CDL, Walker was not terminated with the possibility of being rehired in a different position. Rather, she was given eighteen weeks of unpaid leave from her job as a truck driver. Further, her inability to work stemmed from her inability to meet the fifty-pound lifting require ment of her job, not the loss of her CDL. Given the difference between a male driver who is terminated due to the loss of his license and a female driver given eighteen months of unpaid leave due to an inability to meet the lifting requirement, we hold the district court did not abuse its discretion in concluding that a reasonable jury could have found that Walker was not similarly situated to male drivers terminat ed by Nesbit due to the loss of their CDLs.

Next we turn to Walker’s argument that she was similarly situated to male truck drivers who, due to off-the-job injuries, could not fulfill the lifting requirement but were accommodated by Nesbit with assistants. The district c ourt stated that “there is no question that drivers injured off th e job who could not fulfill the lifting requirements are similarly situated to [Wal ker].” However, the district court then stated that whether Nesbit’s disparate treatment of Walker was motivated by pregnancy discrimination presen ted a fact question for the jury. The district court concluded that, based on the evidence pr esented, a reasonable jury could have concluded that Nesbit’s disparate treatment of Walker was not motivated by pregnancy discrimination. Specifically, the district court observed that Nesbit admitted it allowed light duty assignments fo r employees injured off the job prior to the fall of 2001. However, the company pr ovided evidence that the company changed its policy of providing accommodation for off-the-job injuries as a result of truck driver Charles Starmer’s need for assistance in September and October of 2001.-8- Nesbit’s human resources director testifie d that he made the policy change because it did not make “economic sense” to pay two people to do the job of one. Thus, although Nesbit accommodated drivers by providing light duty assignments following off-the-job injuries before the fall of 2001, Starmer was the last person to receive accommodation for an off-the-job injury. We therefore hold that the district court did not abuse its discretion when it concluded th at a reasonable jury could have found that Nesbit’s decision to deny Walker accommodati on was the result of the company’s fall 2001 policy change rather than the result of discrimination against Walker on the basis of pregnancy.

Finally, we address Walker’s argument that Nesbit did not take adequate action to put its new accommodation policy into eff ect. Walker points out that none of the changes Nesbit made were reduced to writing and that the company handbook was not amended. As the district court observed, however, “the question before the jury was not whether Nesbit should have put the Se ptember 2001 policy change in writing, but whether a ‘discriminatory animus [laid] behind the defendant’s neutral explanations’” (quoting Roxas v. Presentation Coll. , 90 F.3d 310, 316 (8th Cir. 1996)). Here, the jury apparently concluded that Nesbit was truthful in its statement that its decision to change its policy of accommodating driver s injured off the job was motivated by economic reasons rather than Walker’s pre gnancy. Accordingly, we hold the district court did not abuse its discretion in conc luding that a reasonable jury could have believed that Nesbit had im plemented its new accommodation policy in the fall of 2001, despite not committing the new policy to writing.

For the foregoing reasons, the district court’s denial of Walker’s motion for a new trial is affirmed.

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