[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11963

Non-Argument Calendar

____________________

TIMETHIA BROWN, 

Plaintiff-AppelleeCross Appellant,

versus

ADVANCED CONCEPT INNOVATIONS, LLC, 

Defendant-AppellantCross Appellee.

____________________

Appeals from the United States District Court

for the Middle District of Florida

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2 Opinion of the Court 21-11963

D.C. Docket No. 8:19-cv-02888-TPB-AAS

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Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges.

PER CURIAM:

Timethia Brown was working as a customer service representative for Advanced Concept Innovations, LLC (“ACI”), a contract packing and manufacturing company, when she became pregnant. Her pregnancy was complicated by hyperemesis gravidarum, a condition characterized by nausea and severe vomiting, 

and by changes in saliva, including ptyalism, or excessive saliva. As 

a result, she was forced to take and exhaust her FMLA1 leave during her pregnancy. Yet Brown found that she could prevent vomiting by spitting regularly and not swallowing saliva. 

To manage her medical condition when she returned to 

work, Brown brought a cup with her to spit saliva into. On the 

morning of her return, ACI management told her she could not use 

a spit cup if she wanted to continue working there, citing sanitation 

and cleanliness requirements for its production area, where no 

more than 20% of Brown’s job occurred. The rest of her job was 

1 The Family and Medical Leave Act (“FMLA”) entitles eligible employees to 

take up to twelve weeks of unpaid leave per year for serious health conditions, 

among other reasons. See 29 U.S.C. § 2612(a)(1). Upon returning from FMLA 

leave, the employee is entitled to be restored to her former position or to an 

“equivalent position with equivalent employment benefits, pay, and other 

terms and conditions of employment.” 29 U.S.C. § 2614(a)(1).

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in ACI’s administrative area, where use of a spit cup was not prohibited. Brown said she could still work and do her primarily clerical job, but ACI did not offer or discuss any accommodations to 

retain her. As a result, her employment was terminated. Brown 

sued, claiming in part that ACI violated the Florida Civil Rights Act 

(“FCRA”) by refusing to provide her with a reasonable accommodation. ACI removed the case to federal district court.

The district court held a jury trial lasting two days. After 

Brown put on all her evidence, ACI moved for judgment as a matter of law. The court took the matter under advisement, and ACI 

called several witnesses in its defense. 

The jury found ACI liable for violating the FCRA. It found 

that a reasonable accommodation existed that would have allowed 

Brown to perform the essential functions of the job and would not 

have imposed an undue hardship on ACI’s business. And it determined that ACI failed to provide a reasonable accommodation or 

engage in good-faith efforts to accommodate Brown. The jury 

awarded $34,440 for lost wages and benefits, $10,000 for emotional 

pain and mental anguish, and $50,000 in punitive damages.

After the verdict, ACI renewed its motion for judgment as a 

matter of law and alternatively moved for a new trial on the FCRA

claim. It also requested that the award of punitive damages be set 

aside. The court denied ACI’s challenge to the verdict on the 

FCRA claim, concluding that it was adequately supported by the 

trial evidence. But the court granted relief from punitive damages

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because, in its view, no reasonable jury could have found that ACI 

acted with the requisite malice or reckless indifference.

ACI appeals the denial of its motions for judgment as a matter of law or, alternatively, for a new trial on Brown’s failure-toaccommodate claim. Brown cross-appeals the order setting aside 

the punitive-damages award. 

I.

We start with the FCRA failure-to-accommodate claim. We 

review de novo a district court’s decision to grant or deny judgment as a matter of law, construing the evidence in the light most 

favorable to the non-moving party. Pickett v. Tyson Fresh Meats, 

Inc., 420 F.3d 1272, 1278 (11th Cir. 2005); Carruthers v. BSA Advertising, Inc., 357 F.3d 1213, 1215 (11th Cir. 2004). A district court 

should grant judgment as a matter of law only when the plaintiff 

“presents no legally sufficient evidentiary basis for a reasonable 

jury to find for [her] on a material element of [her] cause of action.” 

Pickett, 420 F.3d at 1278. 

We review the denial of a motion for a new trial for an abuse 

of discretion. Ard v. Sw. Forest Indus., 849 F.2d 517, 520 (11th Cir. 

1988). District courts may grant a motion for a new trial “if the 

verdict is against the great, not just the greater, weight of the evidence.” Id. “This rule does not, however, grant a license to the trial 

judge merely to substitute his judgment for that of the jury on 

questions of fact.” Id.

A. 

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An employer violates the FCRA if it fails “to make reasonable accommodation for an otherwise qualified disabled employee.” 

D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1225–26 (11th Cir. 

2005) (citing 42 U.S.C. § 12112(b)); see D’Onofrio v. Costco Wholesale Corp., 964 F.3d 1014, 1021 (11th Cir. 2020) (“Given the parallel 

structure of the statutes, this Court analyzes state-law disability discrimination claims under the FCRA using the same framework as 

it does for claims made under the federal Americans with Disabilities Act (ADA).”). An otherwise “qualified individual” is someone 

“able to perform the essential functions of the employment position that [s]he holds or seeks with or without reasonable accommodation.” D’Angelo, 422 F.3d at 1226.

Reasonable accommodations may include job restructuring, 

modified work schedules, or reassignment to a vacant position. 42 

U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(2). “The plaintiff bears 

the burden of identifying an accommodation, and of demonstrating that the accommodation allows him to perform the job’s essential functions.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255-

56 (11th Cir. 2001).

“Essential functions are the fundamental job duties of a position that an individual with a disability is actually required to perform.” Holly v. Clairson Indus., 492 F.3d 1247, 1257 (11th Cir. 

2007) (quotation marks omitted). A job function may be considered essential when “the position exists to perform that function,” 

there are few employees “available among whom the performance 

of that job function can be distributed,” or the function is “highly 

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specialized.” 29 C.F.R. § 1630.2(n)(2). Evidence of whether a function is essential includes the employer’s judgment as to which functions are essential, written job descriptions, the amount of time 

spent performing the function, the consequences of not requiring 

the individual to perform the function, the experience of those who 

previously held the job, and the experience of those currently in 

similar jobs. Id. § 1630.2(n)(3). 

Even if an employer failed to provide a reasonable accommodation, the employer may still avoid liability by showing “that 

the accommodation would impose an undue hardship on the operation of [its] business.” 42 U.S.C. § 12112(b)(5)(A). 

B. 

ACI argues that Brown failed to prove that a “reasonable accommodation existed that would have allowed her to perform the 

essential elements of the Quality Control Document Reviewer position.” It cites evidence showing that, upon her return from 

FMLA leave, Brown had been transferred from her position as a 

Customer Service Representative to a new position as a Quality 

Control Document Reviewer, which likewise required time on the 

production floor as an essential duty. Because Brown’s evidence 

related solely to the old position, in ACI’s view, it was insufficient 

to show that a reasonable accommodation existed for the new position or to contradict ACI’s evidence regarding the essential functions of the new position.

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Here, viewing the evidence in the light most favorable to 

Brown, a reasonable jury could have determined that Brown was 

entitled to relief under the FCRA. We assume without deciding 

that, because of sanitary and cleanliness requirements in the production area, ACI could prohibit Brown from having a spit cup in 

the production area without violating the FCRA. But an ACI witness admitted that a spit cup would not interfere with Brown’s duties in the administrative area, and Brown sought an accommodation that would relieve her of her production-area duties. Because 

an employer is not required to change the essential functions of a 

position as an accommodation, Lucas, 257 F.3d at 1260, the question is whether “reasonable jurors could differ as to whether [physical presence in the production area] is an essential function,” Samson v. Fed. Express Corp., 746 F.3d 1196, 1202 (11th Cir. 2014). We 

conclude that they could. 

To start, a reasonable jury could have found that being in

the production area was not an essential function of Brown’s old 

customer service position. Brown and ACI witnesses testified that 

the old position was primarily clerical and involved no more than 

20% of her time in the production area. That testimony is consistent with ACI’s job description for the position, which does not 

list being in the production area among the job’s “Essential Duties 

and Responsibilities.” Brown also testified that the customer service team had a “buddy system” that involved sharing productionarea duties, and that she could still do the job’s essential functions 

from her desk in the administrative area. 

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While ACI presented contrary evidence, the jury was entitled to resolve any factual disputes in Brown’s favor. So if being in 

the production area was not an essential function, the jury reasonably could have found that a reasonable accommodation included 

restructuring of the position to exclude those duties. See Lewis, 

257 F.3d at 1260 (“[T]he ADA may require an employer to restructure a particular job by altering or eliminating some of its marginal 

functions.”). And Gomez confirmed in her testimony that Brown 

could use a spit cup in the administrative area without issue.

Even assuming the new document-review position is our 

guidepost, a reasonable jury could have drawn similar conclusions 

about that position as well. The jury received evidence of ACI’s 

job description for the new document-review position, which outlined the job’s “Primary Responsibilit[ies].” See Lucas, 257 F.3d at 

1258 (“[I]f an employer has prepared a written description for the 

job, this description shall be considered evidence of the essential 

functions of the job.” (cleaned up)). Although the listed duties for 

the new position included routine interaction with the quality control or manufacturing groups, they did not specifically require time 

in the production area, and the bulk of the duties involved document review, which seemingly could be done in the administrative 

area. 

ACI points out that a separate section of the job description 

regarding “Physical Demands” indicated that “walking to and from 

the production area is required.” But a jury would not be required 

to conclude from this statement alone that physical presence in the 

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production area was essential to the job. That the job as originally 

conceived included a function—here, time in the production 

area—does not alone make the function essential. Otherwise no 

“job restructuring” could ever be a reasonable accommodation. 

See 42 U.S.C. § 12111(9)(B). 

Plus, the jury had before it more than just the job description. It also heard testimony about the new position from ACI 

managers Matthew Muller, the President of Administration, and 

Yorky Gomez, the President of Operations and part-owner of the 

company. These witnesses described the job largely in administrative or clerical terms—“get[ting] in the nitty-gritty of the documents”—and indicated that it was broadly equivalent to Brown’s

old position and comparable in terms of its production-area duties. 

See 29 C.F.R. § 1630.2(n)(vii) (evidence of whether a job function 

is essential includes “[t]he current work experience of incumbents 

in similar jobs”). 

The evidence also indicates that, in the new position, Brown 

would have been working with employees in the quality-control 

group. And ACI’s witnesses did not dispute that there were employees “available among whom the performance of [the production-area duties] can be distributed.” 29 C.F.R. § 1630.2(n)(2)(ii). 

Rather, their testimony focused on the burdens to other employees 

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and the company of “dumping 20 percent of her work on these 

other employees.”2 

Considered as a whole, we believe that the trial evidence 

provided a legally sufficient evidentiary basis for the jury to find 

that physical presence in the production area was not an essential 

function of either the old customer-service position or the new document-review position. See Pickett, 420 F.3d at 1278. And ACI 

does not challenge the sufficiency of the evidence to support the 

jury’s finding that providing a reasonable accommodation to 

Brown would not have imposed an undue hardship on the company’s operations. See 42 U.S.C. § 12112(b)(5)(A); see also id.

§ 12111(10)(A); 29 C.F.R. § 1630.2(p). So, any challenge to that 

finding has been abandoned. Sapuppo v. Allstate Floridian Ins. Co., 

739 F.3d 678, 680 (11th Cir. 2014) (issues not raised on appeal are 

abandoned). 

Because the evidence was legally sufficient to sustain the 

jury’s verdict against ACI on Brown’s failure-to-accommodate 

claim, the district court also did not abuse its discretion by denying 

a new trial based on the weight of the evidence. The jury’s findings 

were supported by the evidence, so it was within the court’s discretion not to disturb them. See Ard, 849 F.2d at 520.

2 Notably, Gomez did not address the possibility of redistributing job duties 

from other employees to Brown to balance out the workloads. 

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For these reasons, we affirm the judgment against ACI on 

Brown’s failure-to-accommodate claim under the FCRA. 

II.

Next, we consider Brown’s cross-appeal of the district 

court’s decision to grant judgment as a matter of law and set aside 

the punitive damages award of $50,000. 

A.

Punitive damages are available in employment-discrimination cases under the ADA. 42 U.S.C. § 1981a(a)(2). To recover punitive damages, the complaining party must show that the employer engaged in discrimination “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Id. § 1981a(b)(1). 

This standard means “that the employer must at least discriminate in the face of a perceived risk that its actions will violate 

federal law to be liable in punitive damages.” U.S. Equal Emp’t Opportunity Comm’n v. W&O, Inc., 213 F.3d 600, 611 (11th Cir. 2000) 

(quotation marks omitted); see Kolstad v. Am. Dental Ass’n, 527 

U.S. 526, 534–35 (1999) (explaining that these terms “focus on the 

actor’s state of mind” and “pertain to the employer’s knowledge 

that it may be acting in violation of federal law”). But “lack of ill 

will” by management “is not sufficient, in and of itself, to bar punitive damages.” W&O, 213 F.3d at 611. 

No showing of malice has been made, so we focus on reckless indifference. “A jury may find reckless indifference where the 

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employer does not admit that it knew that its actions were wrong. 

However, mere negligence as to the civil rights of employees is not 

enough to justify punitive damages.” Id. (citations omitted). 

B. 

Here, sufficient evidence supports the jury’s award of punitive damages, so we vacate the district court’s grant of judgment as 

a matter of law and reinstate the verdict. We begin by noting that 

ACI does not dispute that its managers were aware of the company’s obligations to provide a reasonable accommodation. For 

instance, ACI previously had accommodated a pregnant woman 

with a similar, though milder, ptyalism condition.

The trial evidence supports a finding that ACI made no attempt to provide a reasonable accommodation.3 When Brown returned to work from FMLA leave and requested an accommodation to manage her pregnancy-related medical condition, ACI 

made no effort to identify or make a reasonable accommodation 

that would permit her to perform the essential functions of the job. 

It did not even offer her the accommodation it had previously 

given a pregnant employee with a similar condition, despite claims 

at trial that Brown was a valued employee whom ACI wanted to 

retain. ACI simply told her there was no place for her, even though 

3 ADA regulations generally require employers to engage in an “interactive 

process” to determine reasonable accommodations once an accommodation 

has been requested. See Gaston v. Bellingrath Gardens & Homes, Inc., 167 

F.3d 1361, 1364 (11th Cir. 1999); 29 C.F.R. § 1630.2(o)(3). 

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a reasonable accommodation was available. It then created documentation falsely suggesting that Brown had voluntarily resigned, 

rather than been terminated for not being able to perform the duties of the position. See Doc. 88-3 at 2 (“We are sorry you elected 

not to stay and work yesterday.”). Although a close call, we believe 

that the jury was presented with sufficient evidence to support a 

finding that ACI acted with reckless indifference to the civil rights 

of an employee with a manageable medical condition who was 

ready and willing to perform the essential functions of the job. 

The district court also relied on ACI’s prior favorable treatment of Brown to justify setting aside the punitive-damages award. 

But the jury reasonably could have concluded that ACI’s generosity to Brown in the past did not excuse its failure to comply with 

civil-rights law in this instance. That ACI generally liked Brown 

does not preclude the possibility that it acted with reckless indifference to her civil rights. Cf. W&O, 213 F.3d at 611 (“[T]o the extent 

that W&O’s argument depends solely on the fact that its management acted out of the desire to benefit the pregnant women in its 

employ, it is clear that its managers’ and owners’ alleged lack of ill 

will is not sufficient, in and of itself, to bar punitive damages.”). 

IV.

For these reasons, in the main appeal, we affirm the denial 

of ACI’s motion for judgment as a matter of law or a new trial on 

Brown’s failure-to-accommodate claim. In the cross-appeal, we vacate the grant of ACI’s motion for judgment as a matter of law on 

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damages award.4 We remand for further proceedings consistent 

with this opinion.

 AFFIRMED IN PART; VACATED AND REMANDED IN 

PART.

4 The district court may consider ACI’s alternative request for remittitur of 

punitive damages on remand. 

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