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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

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No. 05-1869

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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* [UNPUBLISHED]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. *

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Submitted: December 16, 2005

Filed: December 22, 2005

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Before WOLLMAN, LAY, and RILEY, Circuit Judges.

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PER CURIAM.

Amber Walker appeals the district court’s1

 denial of her motion for a new trial.

The district court ruled that the jury’s verdict 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.
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I. Procedural and Factual Background

In March 2002, Amber Walker initiated an employment discrimination claim

against her former employer, Fred Nesbit Distributing 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 discriminated against her on the basis of her

pregnancy pursuant to the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e2(a), as defined and codified by § 2000e(k). A jury trial was held in November 2004,

during which Walker sought to demonstrate that Nesbit had a policy of

accommodating employees who were injured 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 changed the policy in the fall of 2001 for

economic reasons. Walker claimed that Nesbit’s “policy change” 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, contending 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 verdict was against the clear weight of the

evidence.” Walker now appeals to this court, 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 back 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 she was pregnant. Despite being pregnant,

Walker continued to perform all the requirements of her job. 
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In April 2002, Walker requested either to be reassigned to light duty or to have

an assistant accompany her to do the required heavy lifting during deliveries. Nesbit

refused this request, citing a policy change made 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 employee handbook or commit it to writing. In lieu

of reassigning Walker to light duty or providing someone to assist with heavy lifting,

Nesbit told Walker she was entitled to twelve weeks of unpaid leave under the Family

and Medical Leave Act (“FMLA”). Shortly thereafter, Walker again requested

accommodation, providing Nesbit with a physician’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 pregnancy 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 August 21, 2002. Her eighteen weeks of unpaid leave ended

on August 27, 2002, six days after her child was born. Two days later, on August 29,

2002, Nesbit terminated Walker because she did not return to work. Nesbit told

Walker she was free to reapply for her old job 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 denial 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 miscarriage 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 different inferences or conclusions or because judges feel that other
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results are more reasonable.’” 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 reasonable men can differ in evaluating credible

evidence, a new trial on the ground of weight of the evidence should not be granted.”

White, 961 F.2d at 781. “When the basis of the 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) (internal quotation and citation omitted).

B. Analysis

In evaluating Walker’s argument, we first note that Walker had the ultimate

burden of proof in her claim that Nesbit intentionally discriminated against her

because she was pregnant. Texas Dept. 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 discrimination is that she was

subjected to different, more adverse employment actions or conditions

than similarly situated male employees. 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 role in [Nesbit’s] decision to refuse
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accommodation, light duty or reassignment, 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 verdict 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 forth in the jury instruction “needed to be

answered in the affirmative for Walker to be successful in her suit.” Thus, given the

verdict in favor of Nesbit, it follows that the 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 also possible that the jury concluded that

neither criteria had been met.

On appeal, Walker presents two arguments. First, she contends that she

presented uncontroverted evidence that Nesbit accommodated similarly situated

employees–i.e., male delivery truck drivers–when they experienced off-the-job

injuries or engaged in off-the-job activities that rendered them 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 resigns, he or she may “reapply as a sales

trainee.” Walker presented evidence that at least one male truck driver (who was
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terminated by Nesbit after losing his license 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 practice, 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 with 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. Another truck driver, Mark Miller testified that in August

2000, after breaking his 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 establish 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 change in the employee handbook or reduce it

to writing. Walker asserts Nesbit’s actions were “insufficient to effect a change in its

practice/policy of accommodation” and that the company’s inaction supports her

claim that the “policy change” argument was a pretext for denying her accommodation

because she was pregnant. According to Walker, Nesbit’s failure to make the policy

change more explicit “gives rise to a powerful inference of unlawful

discrimination”–and which, when considered in light of the evidence she presented

regarding accommodations given to male drivers, establishes no reasonable jury could

have concluded that Nesbit did not discriminate against her on the basis of pregnancy.

We first turn to Walker’s claim regarding Nesbit’s policy of allowing male

drivers who have lost their licenses due to OWI convictions to resign and reapply for
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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 license due to OWI convictions

were not similarly situated to Walker because they were not “similar in their ability

or inability to work” as required by the Pregnancy Discrimination Act, 42

U.S.C. § 2000e(k). The district court observed 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 requirement 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 terminated 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 court stated that “there is

no question that drivers injured off the job who could not fulfill the lifting

requirements are similarly situated to [Walker].” However, the district court then

stated that whether Nesbit’s disparate treatment of Walker was motivated by

pregnancy discrimination presented a fact question for the jury. The district court

concluded that, based on the evidence presented, 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 for employees injured off the job prior to

the fall of 2001. However, the company provided 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.
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Nesbit’s human resources director testified 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 that a reasonable jury could have found that

Nesbit’s decision to deny Walker accommodation 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 effect. 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 September 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 drivers injured off the job was motivated by

economic reasons rather than Walker’s pregnancy. Accordingly, we hold the district

court did not abuse its discretion in concluding that a reasonable jury could have

believed that Nesbit had implemented 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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