## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 13 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHARLES ROBERTS,Plaintiff-Appellee/CrossAppellant, v. PROGRESSIVE INDEPENDENCE, INC., an Oklahoma corporation, SHARON JOHNSON, in her capacity as Executive Director of Progressive Independence, and JOHNNY HOBAUGH, MELVIN HALL, GLENN HARING, ROBERT VANHOOZER, and ERVIN KEITH, in their capacity as members of the Board of Directors of Progressive Independence, Inc.,Defendants-Appellants/CrossAppellees. Nos. 98-6062, 98-6098

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CIV-96-1850-L)
Douglas A. Rice (Gladys E. Cherry with him on the b riefs) of Derryberry, Quigley, Solomon & Naifeh, Oklahoma City, Oklahoma, for Plaintiff-Appellee/ Cross-Appellant. George M. Emerson of Riggs, Abney, Neal, Turpen, Orbison, & Lewis, Oklahoma City, Oklahoma, for Defendants-Appellants/Cross-App ellees.* Honorable Frank Magill, Senior United States Circui t Judge for the Eighth

Circuit, sitting by designation. - 2 - Before SEYMOUR , Chief Judge, MAGILL * andEBEL, Circuit Judges.

EBEL , Circuit Judge.

Charles Roberts brought two claims against Progress ive Independence, Inc., and its director and board members (collectively, “ PI”), under the Rehabilitation Act (“Act”): (1) wrongful termination; and (2) fail ure to provide reasonable accommodation for a trip to a business conference i n Miami, Florida. The district court granted PI summary judgment on the wrongful t ermination claim, and a jury awarded Roberts $85,000 under the reasonable accomm odation claim. PI appeals, and Roberts cross-appeals. We affirm in part, reve rse in part, and remand.

BACKGROUND

Roberts is a thirty-three year old man with cerebra l palsy. Because of his disability, Roberts must use a motorized wheelchairand requires assistance in meeting his daily needs. Such assistance includes lifting Roberts in and out of his wheelchair, feeding and dressing him, and aiding hi m in using the bathroom and1 Anita Hensley, another PI employee, would be travel ing with Roberts;

however, she would not be responsible for any of hi s attendant care. - 3 - maintaining personal hygiene. To meet these needs, Roberts uses the services of personal care attendants (“PCAs”) for approximatelysix hours per day. PI qualifies as an independent living center under the Rehabilitation Act. It offers services to, and advocates training for, the disabled. It is funded through federal and state programs, and at the relevant tim e employed five persons, all of whom were disabled. Sharon Johnson is the executiv e director of PI; the remaining defendants are members of PI’s board of d irectors. Roberts began working for PI in January of 1995 as an assistive technology assistant. On the morning of April 24, 1996, Johns on informed Roberts that he would be required to attend a conference sponsored by the National Industries for the Severely Handicapped Conference, which was to b e held in Miami, Florida, from April 27 through May 1, 1996. Johnson asked R oberts to prepare a memorandum detailing his needs for the trip. 1 Later in the day, Roberts submitted to Johnson a me morandum detailing the following needs: Personal Care 1. External catheter applied daily This is my main concern. If it is not applied appropriately accidents will occur. The attendant should be highly used to applying this assistive technolog y.2 There is conflicting testimony on this point. Acco rding to Roberts, he only

came into Johnson’s office because he was advised t hat “someone wanted my birthday and social security number.” Roberts gave that information over a speaker phone without knowing to whom he was talkin g, and then immediately left Johnson’s office. However, Johnson testified that the VNA also queried Roberts about his disability, and that Johnson revi ewed Robert’s memo with the VNA before the conversation terminated and Roberts left. - 4 - Sterility and proper cleaning procedures should be implemented for cross infection control. 2. Dressing/undressing. 3. Total shower assistance/shower chair 4. Apply pacemaker antenna/change batteries 5. Assistance with cleaning after bowel movements 6. Get out proper medication (I can take it myself ) 7. Feeding at meals 8. Transportation 9. Charging chair 10. Shaving/teeth brushing Wheelchair Information: I have contacted Veazey, my vendor. Airlines do no t allow chairs on board that they are aware. They usually disassembl e chairs and crate them. Damage usually occurs so insurance should be considered. After reviewing this memo, Johnson suggested two ho urs of attendant care each morning and two hours each evening, which Robe rts agreed was satisfactory. While Roberts was in Johnson’s office, she spoke wi th the Visiting Nurses Association (VNA) in Florida. 2 Johnson indicated to the VNA that she would finalize plans the next day while on the plane (viatelephone) or once she was in Miami.- 5 -

Later in the day, Roberts tried to find out more ab out the details of his care, but was advised by Johnson that she did not have any time for questions or comments. Lacking additional information about his care, Roberts grew anxious that evening, and decided that the best way to ensu re adequate care was to take his own PCA with him on the trip. To that end, Rob erts arranged for Pat Collins, his PCA, to accompany him, making airline reservati ons for her on his flight to Miami. The next morning, April 25, Roberts presented Johns on an additional memo regarding his trip. The memo stated, in pertinent part: From all formal information in this 24 hours it is obvious from any person with a disability I have not received person al peace of mind that this will meet my standards. I cannot feel co mfortably safe with a strange attendant performing the necessary tasks. I have arranged for my personal care attendant, who is familiar wit h my own needs, to attend to me during these conference days. Time did not permit you to allow me the opportunity to discuss this wit h you after my memo dated April 24th regarding my requirements forthe trip. I attempted to do so but you indicated that you do no t have time for questions. Although we did discuss the Miami attendant to be w ith me two hours in the morning and two hours in the evening t o ensure that my safety and personal needs will be met satisfactoril y throughout the day I feel more attendant care is needed. My indep endent skills have proven that several experiences with me are necessa ry before an attendant gives adequate minimum care. I am respectfully requesting that funds allocated t owards the Home Health Agency in Miami be reallocated to Patricia C ollins. This can be done after May 1, 1996.- 6 -

After reading the memo, Johnson either told Roberts that it was unacceptable, or that PI would not be paying for Ro berts’ attendant to fly. In any event, Roberts testified that Johnson told him that“you can go on my terms or be terminated,” and he responded, “I guess I am termin ated.” Roberts then went to a nearby business. Johnson fo und him and Roberts testified that she told him, “[Y]ou need to give me the keys to the office or come back.” Roberts gave Johnson the keys. Later that day, Roberts returned to PI’s offices with his parents to retrieve his personal b elongings. Roberts filed a formal grievance with PI that was h eard by a committee composed of certain PI board members. The committe e found that the accommodations Johnson offered were sufficient, den ied Roberts’ grievance, and found that he was not terminated or constructively discharged, but rather resigned. Roberts appealed to the full board, whic h upheld the decision and declined to reinstate him. Roberts then filed a complaint in federal district court. He alleged two causes of action under § 504 of the Rehabilitation Act, 29 U.S.C. § 794: (1) failure of PI to provide reasonable accommodation f or the Florida trip; and (2) unlawful termination because of Roberts’ inability to make the trip under the terms and conditions required by PI.- 7 -

Subsequently, PI moved for summary judgment. The c ourt granted summary judgment on the termination claim, because Roberts could not establish that his termination “was based solelyon his disability,” as required under the Act. However, the court denied summary judgment on the reasonable accommodation claim, finding there were “genuine is sues of material fact with respect to the reasonableness of the accommodations offered by Johnson.” Roberts then filed an application for reconsiderati on or rehearing of the court’s order on summary judgment, which the court considered along with PI’s motion for judgment on the pleadings. The court de nied both motions. With respect to PI’s motion, the court rejected PI’s con tention that the granting of summary judgment on the wrongful termination claim rendered the reasonable accommodation claim moot. The reasonable accommodation claim was tried to a j ury. Before the verdict, both sides moved for judgment as a matter of law under Fed. R. Civ. P. 50. The court denied the motions, and the jury sub sequently returned a verdict in favor of Roberts for $85,000 in compensatory damage s. PI then renewed its Rule 50 motion for judgment as a matter of law or, in th e alternative, remittitur. PI interaliareasserted that the court’s granting of summary ju dgment on the termination claim made the reasonable accommodation claim moot, and also- 8 -

argued that there was insufficient evidence to supp ort the jury’s liability determination. The court denied the motion. PI appeals from the jury verdict rendered in favor of Roberts, and from the district court’s denial of PI’s motion for judgmentas a matter of law or remittitur. Roberts cross-appeals from the court’s entry of sum mary judgment in favor of PI on the wrongful termination claim. Both sides also appeal the district court’s denial of various requested jury instructions.

DISCUSSION

The district court had jurisdiction under 28 U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. § 1291. We address, in turn, the issues of reasonable accommodation, wrongful termination, jury instructions, and remittitur.

I. Reasonable Accommodation

PI argues that the district court’s grant of summary judgment in its favor on Roberts’ wrongful termination claim rendered his re asonable accommodation claim moot, and hence entitled him to judgment as amatter of law on the- 9 -

reasonable accommodation claim. PI raised this arg ument in a motion for judgment on the pleadings filed after summary judgm ent, and renewed it in motions for judgment as a matter of law before and after the verdict. The district court denied the motions. “We review the district court’s denial of a renewal motion for judgment as a matter of law de novo, applying the same standard s as the district court. We must affirm if, viewing the record in the light mos t favorable to [the non-movant], there is evidence upon which the jury could properl y return a verdict for [the nonmovant].” Harolds Stores, Inc. v. Dillard Dep’t St ores, Inc. , 82 F.3d 1533, 1546 (10th Cir. 1996) (citation omitted). In conducting our review, “[w]e do not weigh the evidence, pass on the credibility of witnesses, or substitute our own conclusions for that of the jury. However, we mustenter judgment as a matter of law in favor of the moving party if ‘there is no le gally sufficient evidentiary basis . . . with respect to a claim or defense . . . under the controlling law.’” Id. (citation omitted) (quoting Fed. R. Civ. P. 50(a)). PI argues that it was entitled to judgment as a matter of law because: “1) PI had no obligation to provide reasonable accommodati ons for a job to be performed on April 27, 1996, when Roberts was no lo nger employed [as of April 27]; and, 2) PI is not required to provide reasonab le accommodations to Roberts on or before April 25, 1996 [the date Roberts was t erminated], because the3 The duty to make reasonable accommodation under § 5 04 of the

Rehabilitation Act is explicitly stated in the Just ice Department regulation implementing § 504 of the Act: A recipient [of federal financial assistance] shall make reasonable accommodationto the known physical or mental limitations of an otherwise qualified handicapped applicant or employ ee unless the recipient can demonstrate that the accommodation wo uld impose an undue hardship on the operation of its program. 28 C.F.R. § 41.53 (emphasis added); see Smith v. Midland Brake, Inc. , No. 96- 3018, 1999 WL 387498, at *25 n.4 (10th Cir. June 14 , 1999) (en banc). The Justice Department, pursuant to an executive order, took over responsibility for implementing and enforcing § 504, and its regulatio ns remain in force today. See Bragdon v. Abbott , 118 S. Ct. 2196, 2203 (1998). Additionally, § 504(d) provides that “[t]he standar ds used to determine whether this section has been violated . . . shall be the standards applied under title I of the Americans with Disabilities Act . . . .” Tile I of the ADA defines discrimination to include: not making reasonable accommodations to the known p hysical or mental limitations of an otherwise qualified indivi dual with a (continued...) - 10 - accommodations were not yet needed to perform the j ob functions on April 27,
1996.” We disagree with PI’s logic and conclusion. PI’s f ormer employee argument (argument 1) and future accommodations arg ument (argument 2) are flawed because both rest on the premise that an emp loyer need provide reasonable accommodation under the Act only at the momentsuch accommodation is needed, and that employment relations can be broken down in to discrete and isolated time references without considering the reality that eve nts are interconnected. 3 This3 (...continued)

disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. 42 U.S.C. § 12112(b)(5)(A). This provision of the ADA is “directly analogous” to 28 C.F.R. § 41.53. See Smith , 1999 WL 387498, at *25 n.4.

4 Although all these cases except McDonaldinterpret the duty to reasonably accommodate under the ADA rather than the Rehabilit ation Act, “[c]ases decided under section 504 of the Rehabilitation Act are . . . applicable to cases brought under the ADA and vice versa.” Woodman v. Runyon , 132 F.3d 1330, 1339 n.8 (10th Cir. 1997). - 11 - premise runs contrary to logic and our precedent, w hich refers to the term “reasonable accommodation” as “those accommodations which presently, or in the near future , enable the employee to perform the essential func tions of his job.” Hudson v. MCI Telecoms. Corp. , 87 F.3d 1167, 1169 (10th Cir. 1996) (emphasis added) (citing Myers v. Hose , 50 F.3d 278, 283 (4th Cir. 1995)); accordDuckett v. Dunlop Tire Corp. , 120 F.3d 1222, 1226 (11th Cir. 1997) (quoting Mye rs ); Rogers v. International Marine Terminals, Inc. , 87 F.3d 755, 760 (5th Cir. 1996) (quoting Myers ); McDonald v. Commonwealth of Penn. , 62 F.3d 92, 97 (3d Cir. 1995) (quoting Myers ). 4 Moreover, under PI’s reasoning, an employer could escape liability for failure to provide reasonable accommodation by terminating employment before the exact moment accommodation is needed. This absurd result vitiates PI’s interpretation of the duty to make “reasonable accommodation.”5 As discussed infraPart II, we believe that there was a genuine issue of

material fact as to whether the termination was law ful, and that it was error to grant summary judgment to PI on that issue. - 12 - Therefore, the district court did not err in denyin g judgment as a matter of law on the reasonable accommodation claim even thou gh it found Roberts’ termination lawful. Regardless of whether the term ination was lawful, 5 PI had a duty to reasonably accommodate Roberts for the Flor ida trip while he was still an employee. The trip was only two days away when Rob erts was terminated, and hence was within the “near future” for which PI had to provide reasonable accommodation. PI additionally claims entitlement to judgment as amatter of law because “the jury must speculate about the reasonableness o f the accommodations,” as the accommodations were still being developed at the ti me Roberts was terminated on April 25, and would not be finalized until Johnson was on the plane later that day or in Miami—two days before Roberts was to arrive. We believe there was sufficient evidence upon which the jury could properly return a verdict for Roberts. While Johns on had not planned or finalized all the accommodations for Roberts’ trip, she had d etermined that he would receive four hours of attendant care per day—two in the morning and two in the evening. In fact, Johnson locked in that aspect of accommodation without any flexibility, demanding that Roberts “go on [Johnson ’s] terms or be terminated.”- 13 -

The evidence also revealed that Roberts told Johnso n in his follow-up memo that he needed more than those four hours of care, and f rom someone experienced with assisting him, in order to ensure his safety a nd personal needs. Roberts was also being forced to commit to an arduous and poten tially dangerous trip with inadequate planning and substantial uncertainties. Viewing the record in the light most favorable to Roberts, we conclude that the jury properly could find PI did not make reasonable accommodation for the trip. Accordingly, we affirm the district court’s denial of PI’s motion for judgment as a matter of law.

II. Wrongful Termination In his cross-appeal, Roberts contends that the district court erred in granting summary judgment for PI on the wrongful te rmination claim on the ground that he failed to establish his termination was based solely on his disability. We agree with Roberts.

We review the grant of summary judgment de novo, us ing the same standard applied by the district court. Summa ry judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavit s, if any, show that there is no genuine issue as to any material fact a nd that the moving party is entitled to a judgment as a matter of law. ” Fed. R. Civ. P. 56(c). When applying this standard, we examine the factual record and reasonable inferences therefrom in the light mo st favorable to the party opposing summary judgment.- 14 -

Universal Money Ctrs. v. AT&T , 22 F3d 1527, 1529 (10th Cir. 1994). Section 504 of the Rehabilitation Act provides that“[n]o otherwise qualified individual with a disability . . . shall, solelyby reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or ac tivity receiving Federal financial assistance.” 29 U.S.C. § 794(a) (emphasi s added). Thus, in cases arising under § 504 of the Rehabilitation Act, a plaintiff may establish a prima facie case of discrimination by s howing (1) he is a disabled person; (2) he was otherwise qualified ap art from his handicap, i.e., with or without reasonable accommod ation, he could perform the job's essential functions; and (3) he was terminated under circumstances which give rise to an inference that his rejection was based solelyon his disability. Williams v. Widnall , 79 F.3d 1003, 1005 (10th Cir. 1996) (emphasis add ed). Relying on Williams , the district court concluded at summary judgment that Roberts “cannot establish that his termination ‘was based solelyon his disability’” because Roberts was discharged for his misconduct of refusing to go to Miami rather than his disability. We disagree w ith that conclusion. Roberts’ wrongful termination claim depends entirel y on whether PI offered him reasonable accommodation for the Florida trip. If PI failed to offer reasonable accommodation for the trip, Roberts cann ot be faulted under the circumstances for refusing to attend. On the otherhand, if PI offered Roberts reasonable accommodation, then Roberts’ refusal to go on the trip was not- 15 -

protected under the Act, and consequently PI did no t wrongfully terminate Roberts for his refusal. Viewed most favorably to Roberts, the evidence at summary judgment—including the amount of attendant care Roberts was to receive in Florida, and the uncertainty in plans he was required to accept—could support the conclusion that Roberts’ refusal to go on the trip was solelybecause PI failed to offer reasonable accommodation to him in connection with the trip. Under that interpretation, Roberts’ termination was solely because of his disability and, therefore, wrongful under the Act. Given the evidence at summary judgment, the distric t court properly found that there were genuine issues of material fact reg arding whether the accommodations PI offered Roberts were reasonable. Given the disputes of material fact regarding reasonable accommodation, t he district court also should have found genuine issues of material fact regardin g the wrongful termination claim. Thus, we reverse its grant of summary judgm ent for PI on Roberts’ wrongful termination claim.

III. Requested Jury Instructions

“The admission or exclusion of a particular jury in struction is within the sound discretion of the trial court. We review the trial court’s conclusions on- 16 -

legal issues de novo, however, and need not defer t o its decisions on questions of law.” Okland Oil Co. v. Conoco, Inc. , 144 F.3d 1308, 1324 (10th Cir. 1998).

A. Good Faith Efforts Instruction PI appeals the district court’s denial of its propo sed good faith efforts instruction pursuant to 42 U.S.C. § 1981a(a)(3). P I presented this issue by making timely objections below. However, we find n o error in the district court’s refusal to give such an instruction. Section 1981a provides compensatory and punitive damages for actions brought under § 706 or § 717 of Title VII of the Ci vil Rights Act of 1964 against entities who engaged in unlawful intentional discri mination under 29 U.S.C. § 791 (§ 501 of the Rehabilitation Act), or § 42 U.S. C. § 12112 (§ 102 of the ADA). See 42 U.S.C. § 1981a(a)(2). Notably, § 1981a(a)(2) d oes not provide6 In fact, there is no explicit Congressional provisi on for a private right of

action for a violation of § 504 of the Rehabilitati on Act. Although 29 U.S.C. § 794a(a)(2) provides that “[t]he remedies, procedure s, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2 000d et seq.] shall be available to any person aggrieved by any act or fai lure to act . . . under section 794 of this title,” id. , “Title VI of the Civil Rights Act, like § 504 of the Rehabilitation Act, is silent on the availability o f a private cause of action and private remedies,” Moreno v. Consolidated Rail Corp

. , 99 F.3d 782, 788 (6th Cir. 1996) (en banc). However, courts have held that a private right of action exists under § 504. See Pushkin v. Regents of the Univ. of Colorado , 658 F.2d 1372, 1380 (10th Cir. 1981); Moreno , 99 F.3d at 789. - 17 - damages for violations of 29 U.S.C. § 794 (§ 504 of the Rehabilitation Act). 6 In addition, § 1981a(a)(3) provides:

In cases where a discriminatory practice involves t he provision of a reasonable accommodation pursuant to section 1 02(b)(5) of the Americans with Disabilities Act of 1990 [42 U.S.C.A . § 12112(b)(5)] or regulations implementing section 791 of Title 29, damages may not be awarded under this section where the covered entity demonstrates good faith efforts , in consultation with the person with the disability who has informed the covered entity that accommodation is needed, to identify and make a rea sonable accommodation that would provide such individual wi th an equally effective opportunity and would not cause an undue hardship on the operation of the business. Id. (emphasis added). The district court properly denied PI’s request fora good faith efforts instruction. By its express terms, § 1981a(a)(3)’s good faith efforts exception applies to § 102(b)(5) of the ADA and regulations i mplementing 29 U.S.C. § 791. Section 1981a(a)(3) does not list § 29 U.S.C. § 794 —under which Roberts brought suit—as a provision to which the good faithefforts exception applies.- 18 -

This is unsurprising, as § 794 is not included amon g the provisions for which § 1981a(a)(2) permits the recovery of compensatory an d punitive damages. Congress did not write § 794 into the damages schem e of § 1981a, and we refuse to do so through creative statutory construction. Cf. Williams , 79 F.3d at 1005-06 (refusing to apply exemption of 29 U.S.C. § 706(8)( C)(v) to actions brought under 29 U.S.C. § 791, when § 706(8)(C)(v) expressl y applies to 29 U.S.C. §§ 793 & § 794). Furthermore, as we explained in Will iams , “it would be perverse to any rule of statutory interpretation to extend aspecific exclusion limited to two expressly named sections to a third unnamed section .” Williams , 79 F.3d at 1006 (quoting Crewe v. United States Office of Personnel Management , 834 F.2d 140, 142 (8th Cir. 1987)). Accordingly, we affirm the d istrict court’s refusal to provide a good faith efforts instruction pursuant t o § 1981a(a)(3) for Roberts’ action under § 504 of the Rehabilitation Act.

B. Punitive Damages Instruction Roberts asserts that the district court erred in de nying his request for a punitive damages instruction, claiming that PI “act ed with malice or reckless indifference to Roberts’ protected rights.” Howeve r, the district court ruled against giving the instruction, concluding “that th ere’s not sufficient evidence in this case to allow the punitive damages issue to go to the jury.” Without deciding- 19 -

whether punitive damages are available under § 504, compare Moreno v. Consolidated Rail Corp. , 99 F.3d 782, 789 (6th Cir. 1996) (en banc) (punit ive damages unavailable under § 504) withPandazides v. Virginia Bd. of Educ. , 13 F.3d 823, 830 (4th Cir. 1994) (§ 504 provides “full panoply of damages”), we find no error in the district court’s refusal to gi ve the instruction because of insufficient evidence. This insufficiency preclude s a punitive damages instruction even if such damages were available under § 504.

IV. Remittitur PI additionally contends that the district court er red as a matter of law in failing to reduce the jury’s award on the reasonabl e accommodation claim from $85,000 to $50,000 pursuant to a damages cap in 42 U.S.C. § 1981a(b)(3). PI also contends that the district court erred in deny ing its request for remittitur because there was no evidence to support the jury’s award of $85,000. We reject both arguments. With regard to the first argument, we do not believ e the district court erred as a matter of law in failing to apply the damages cap. Section 1981a(b)(3) establishes damages caps for “compensatory damages awarded under this section ,” including a $50,000 cap “in the case of a respon dent who has more than 14 or fewer than 101 employees.” 42 U.S.C. § 1981a (b)(3) (emphasis added).- 20 -

For the same reason we affirmed the district court’ s denial of the good faith efforts instruction, we affirm its refusal to reduc e the jury’s award pursuant to § 1981a(b)(3): the plain language of § 1981a (the sec tion for which § 1981a(b)(3) provides a damages cap) applies to damages under 29 U.S.C. § 791 but not 29 U.S.C. § 794. See Moreno v. Consolidated Rail Corp. , 63 F.3d 1404, 1415 (6th Cir.) (“[I]n the Civil Rights Act of 1991, 42 U.S. C. § 1981a, Congress placed caps on damages for causes of action brought pursuant to section 501 [29 U.S.C. § 791], but not section 504, of the Rehabilitation Act of 1973 . . . .”), rev’d en banc on other grounds , 99 F.3d 782 (1996). We also uphold the district court’s denial of remittitur despite PI’s claim that there was insufficient evidence to support the jury award of $85,000 for PI’s failure to reasonably accommodate Roberts. “The tr ial court’s denial of a motion for remittitur is entitled to considerable deferenc e on appeal. We will not disturb this determination absent a gross abuse of discreti on.” Sheets v. Salt Lake County , 45 F.3d 1383, 1390 (10th Cir. 1995). We will fin d such abuse only if “the jury award is so excessive . . . as to shock t he conscience and to raise an irresistible inference that passion, prejudice, cor ruption or another improper cause invaded the trial.” Id. (quotations omitted). We believe there was sufficient evidence to supportthe jury award. Although PI “fails to understand Roberts’ claim fordamages from a failure to- 21 -

accommodate that never materialized,” we have concl uded that PI had a duty reasonably to accommodate Roberts on the trip while he was still an employee, and that there was sufficient evidence to enable a jury to find that PI failed reasonably to accommodate Roberts in connection wit h the planned trip to Florida. As for evidence of damages, Roberts testi fied that the events of April 24th and 25th—which would encompass both the failur e to reasonably accommodate and the termination—led to subsequent p ain and suffering on his part. Additionally, Roberts’ doctor testified that , when he examined Roberts on October 23 of the same year, Roberts had developed abdominal problems and stress for many months as a result of “being affect ed with his work relationship”—in particular both the inadequate acc ommodations and the termination. Given this evidence that PI’s failure to reasonably accommodate contributed in part to Roberts’ subsequent physical and emotional troubles, the jury’s award does not shock our conscience, and we affirm the district court’s denial of remittitur. However, we hold that Roberts will not be entitled to any additional damages for pain and suffering on his wrongful term ination claim. As Roberts’ doctor testified, and as Roberts’ counsel acknowled ged at oral argument, Roberts’ physical and emotional damages from both the failur e to accommodate and the termination were inextricably linked. Thus, with r espect to pain and suffering- 22 -

damages, we believe the jury award for the reasonab le accommodation claim is coextensive with any award Roberts might receive fo r his wrongful termination claim. On remand, therefore, if Roberts were to pr evail on the wrongful termination claim, he will not be entitled to recov er additional damages for physical and emotional harm, as such damages would duplicate the jury award for the reasonable accommodation claim. Of course, Rob erts would be entitled to damages arising solely from the termination, such a s front pay and back pay. We are confident those damages would not be duplicativ e because the district court specifically instructed the jury not to consider “a ny damages that you find arise solely as a result of [plaintiff’s] termination,” s uch as “wages and benefits.”

CONCLUSION

We AFFIRM the district court’s denial of PI’s motio n for judgment as a matter of law on Roberts’ reasonable accommodation claim. We REVERSE the district court’s grant of summary judgment for PI o n Roberts’ wrongful termination claim. We AFFIRM the district court’s refusal to instruct the jury on the good faith efforts defense and on punitive dama ges. We AFFIRM the district court’s denial of remittitur. We REMAND for furthe r proceedings on Roberts’ wrongful termination claim consistent with this opi nion.