[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-12924

Non-Argument Calendar

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D.C. Docket No. 8:14-cv-01620-VMC-TGW

TERRY LEE SCOTT, 

 Plaintiff-Appellant,

 versus

POSTMASTER GENERAL UNITED STATES POSTAL SERVICE, 

 Defendant-Appellee.

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Appeal from the United States District Court

for the Middle District of Florida

________________________

(June 18, 2020)

Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Terry Scott appeals the district court’s denial of her oral motion for a 

directed verdict and her motion for judgment as a matter of law (“JMOL”), or in 

the alternative, for a new trial, in favor of the Postmaster General of the United 

States Postal Service (“USPS”), in an employment discrimination lawsuit filed 

pursuant to the Rehabilitation Act of 1973 (the “Rehabilitation Act”). Scott argues 

on appeal that the district court erred in denying her motion for a directed 

verdict/JMOL and abused its discretion in denying her motion for a new trial 

because: (1) there was insufficient evidence to support the jury’s verdict, and (2) 

the USPS failed to affirmatively assert an undue hardship defense. We address 

each argument in turn.

I.

Scott first argues that the district court erred in failing to grant her postjudgment motion for JMOL because no reasonable jury could find other than that 

USPS had a reasonable accommodation available for Scott and retaliated against 

her (on account of her protected activity) by failing to provide such 

accommodation. We review a district court’s decision regarding a Fed. R. Civ. P. 

50(a) motion for JMOL de novo, considering all the evidence in the light most 

favorable to the non-moving party. Abel v. Dubberly, 210 F.3d 1334, 1337 (11th 

Cir. 2000). We review the denial of a Rule 59(a) motion for a new trial for an 

abuse of discretion. McGinnis v. Am. Home Mortg. Servicing, Inc., 817 F.3d 1241, 

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1255 (11th Cir. 2016). We consider a motion for JMOL and a motion for new trial 

together, although the standards of review are different. Dudley v. Wal-Mart 

Stores, Inc., 166 F.3d 1317, 1320 n.3 (11th Cir. 1999). In Dudley, we found that:

A judgment as a matter of law will be granted where a party has been 

fully heard on an issue and there is no legally sufficient evidentiary 

basis for a reasonable jury to find for that party [and a] motion for a 

new trial may be granted if the district court judge believes the verdict 

rendered by the jury was contrary to the great weight of the evidence. 

Because a less stringent standard applies to a motion for a new trial 

than to a motion for judgment as a matter of law, failure to meet the 

former standard is fatal to the latter.

Id. (quotation marks and citations omitted).

Federal Rule of Appellate Procedure 10(b)(2) provides that “[i]f the 

appellant intends to urge on appeal that a finding or conclusion is unsupported by 

the evidence or is contrary to the evidence, the appellant must include in the record 

a transcript of all evidence relevant to that finding or conclusion.” We “must 

affirm the district court when an appellant fails to provide all the evidence that the 

trial court had before it when making various contested evidentiary rulings.” 

Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002). An appellant “must 

provide trial transcripts in the appellate record to enable [us] to review challenges 

to sufficiency of the evidence.” Id.

Here, Scott failed to provide a trial transcript for appellate review. Thus, we 

are unable to consider whether the district court erred in denying her motion for 

JMOL or abused its discretion when it denied her motion for a new trial based on 

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its determination that the jury’s verdict was supported by the evidence presented at 

trial. Notably, even if the trial exhibits Scott provided showed evidence in her 

favor, the relevant legal standard is not whether any evidence supports her 

argument—it is whether a legally sufficient evidentiary basis exists for a 

reasonable jury to find in favor of USPS. Dudley, 166 F.3d at 1320 n.3. Because 

Scott did not provide the trial transcripts necessary to make that determination, we

must affirm the district court. See Loren, 309 F.3d at 1304; see also Fed. R. App. 

P. 10(b)(2).

As to Scott’s arguments regarding violations of the collective bargaining 

agreement (“CBA”), there was no viable claim under the CBA in this case—as she 

admitted in her response to USPS’s motion to dismiss—much less a CBA claim 

presented at trial. Further, Scott was not laid off or subjected to a reduction in 

force—she lost the bid for the position she wanted in 030 and was not capable of 

performing the residual bid positions. Thus, her arguments regarding CBA 

violations fail. Accordingly, we affirm as to this issue.

II.

Second, Scott argues that undue hardship is an affirmative defense which the 

USPS failed to plead and failed to present to the jury, and in the absence of a 

showing that it would have been an undue hardship for USPS to accommodate 

Scott, she was entitled to judgment as a matter of law. In reviewing the denial of a 

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motion for JMOL, we “consider whether such sufficient conflicts exist in the 

evidence to necessitate submitting the matter to the jury or whether the evidence is 

so weighted in favor of one side that that party is entitled to succeed in his or her 

position as a matter of law.” Abel, 210 F.3d at 1337. The non-moving party must 

put forth more than a mere scintilla of evidence suggesting that reasonable minds 

could reach differing verdicts. Id. “[A] motion for judgment as a matter of law 

will be denied only if reasonable and fair-minded persons in the exercise of 

impartial judgment might reach different conclusions.” Id. (quotation marks 

omitted). We have the authority to affirm on any other adequate grounds. Id. at 

1338. 

Title I of the Americans with Disabilities Act (“ADA”) prevents covered 

private employers from discriminating against a qualified individual with a 

disability regarding the discharge of employees. See 42 U.S.C. § 12112(a). To 

establish a prima facie case of disability discrimination under Title I of the ADA, a 

plaintiff must prove that she: (1) was disabled within the meaning of the Act; 

(2) was otherwise a qualified individual for the position; and (3) was subjected to 

unlawful discrimination because of her disability. See Cash v. Smith, 231 F.3d 

1301, 1305 (11th Cir. 2000). 

The Rehabilitation Act protects certain individuals from discrimination on 

the basis of a disability. 29 U.S.C. § 794(a). To establish a claim under the 

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Rehabilitation Act, a plaintiff must have been discriminated against by or excluded 

from a program or activity that receives federal financial assistance. See id.;

Lussier v. Dugger, 904 F.2d 661, 664 (11th Cir. 1990). The standards under Title I 

of the ADA apply to Rehabilitation Act claims. See 29 U.S.C. § 794(d); see also 

Holbrook v. City of Alpharetta, 112 F.3d 1522, 1526 n.2 (11th Cir. 1997). 

“A person with a disability is otherwise qualified if he is able to perform the 

essential functions of the job in question with or without a reasonable 

accommodation.” Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th Cir. 2017)

(quotation marks omitted). Under 42 U.S.C. § 12111(9)(B), a reasonable 

accommodation may include, among other things, “job restructuring, part-time or 

modified work schedules, reassignment to a vacant position, [or] acquisition or 

modification of equipment or devices.” 

An employer must provide a reasonable accommodation for an employee 

with a known disability unless such an accommodation would result in undue 

hardship to the employer. Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 

2000). An accommodation is reasonable, however, only if it allows the employee 

to perform the essential functions of the job. Id. Moreover, “[t]he burden of 

identifying an accommodation that would allow a qualified employee to perform 

the essential functions of her job rests with that employee, as does the ultimate 

burden of persuasion with respect to showing that such accommodation is 

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reasonable.” Id. at 1367. If a plaintiff cannot prove that an accommodation is 

reasonable, the employer does not have to investigate a reasonable accommodation 

or show undue hardship. Id. Further, even if a disabled employee is qualified for 

and capable of performing another existing position, the employer is not required 

to reassign the employee if there is no vacancy. Lucas v. W.W. Grainger, Inc., 257 

F.3d 1249, 1257 (11th Cir. 2001). 

In U.S. Airways, Inc. v. Barnett, the Supreme Court stated that, typically, an 

employee fails to prove that a proposed accommodation is reasonable where the 

employer can show that the proposed accommodation violates seniority rights 

under a CBA. See 535 U.S. 391, 402-03 (2002). It held that this analysis is part of 

the employee’s burden of proving that a reasonable accommodation existed, rather 

than the employer’s burden of establishing undue hardship. Id. at 405-06. It held 

that an employee must first establish that her proposed accommodation—where 

such accommodation would require an exception to the employer’s seniority 

policy—constitutes a reasonable accommodation. See id. 

Here, Scott’s argument that USPS is liable as a matter of law is legally 

incorrect. USPS was not required to affirmatively assert undue hardship before 

Scott proved that there was a reasonable accommodation that USPS could give her. 

See Lucas, 257 F.3d at 1257; Earl, 207 F.3d at 1365. The jury found that Scott 

failed to show that there was an available position that could accommodate her or 

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that any other reasonable accommodation existed. Further, Barnett does not 

support Scott’s argument, because there appeared to be testimony at trial that the 

accommodation requested by Scott was not possible without conflicting with the 

CBA’s seniority rules. See Barnett, 535 U.S. at 405-06. Thus, Scott failed to meet 

her burden that would have triggered USPS’s requirement to show undue hardship. 

And, as noted above, a claim under the CBA was not presented at trial. Thus, her 

argument that USPS’s failure to accommodate her violated the CBA provides no 

basis for relief from the judgment. Accordingly, USPS is not liable as a matter of 

law. 

III.

For the foregoing reasons, we affirm the district court’s denials of Scott’s 

motions for JMOL and a new trial.

AFFIRMED.

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