## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-2874

___________ Equal Employment Opportunity * Commission, * * Appellee, * * Ahmet Yigit Demirelli, * * Intervenor - Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Convergys Customer Management * Group, Inc., * * Appellant. *

___________ Submitted: March 15, 2007 Filed: July 6, 2007

___________ Before MELLOY, SMITH, and BENTON, Circuit Judges.

___________ SMITH, Circuit Judge.Plaintiff Equal Employment Opportunity Commission (EEOC) and plaintiffintervenor Ahmet Yigit Demirelli sought re lief against Demirelli's former employer, Convergys Customer Management Group, Inc. ("Convergys"), alleging that Convergys failed to accommodateDemirelli's disability in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(a). A jury found for the plaintiffs,1 The Honorable Charles A. Shaw, United St ates District Judge for the Eastern District of Missouri.
-2- awarding Demirelli lost wages and compen satory damages. The district court 1 denied Convergys's motions for judgment as a matter of law and for remittur. Convergys appeals. We affirm.

I. Background Convergys provides customer-service assi stance on behalf of corporate clients. In January 2001, Convergys hired Demire lli as a call representative. Demirelli, confined to a wheelchair due to a rare condition commonly known as brittle bone disease, answered telephone calls fro m customers of Convergys's clients.

To keep its call stations consistently attended, Convergys maintains a strict tardy policy. Convergys penalizes employees who are more than three minutes late either reporting for work at the company's call center or returning from their 30- minute lunch break. Employees with 14 or mo re violations in a single year could be disciplined. Potential sanctions range from a written warning to termination of employment.

For the first year of his employment, Demirelli often reported for work and returned from lunch late. Reco rds show that Demirelli was late reporting for work 37 times and late returning fro m lunch 65 times—far in exce ss of Convergys's 14 tardy allowance. Demirelli's tardin ess reporting to work stemme d from the lack of adequate handicapped parking at Convergys's call center. The call center's large parking area only had two van-accessible, handicapped parking spaces—spaces large enough for a special-needs van to operate a ramp or mo torized lift. These two spaces were usually occupied when Demirelli arrived, thus causing him to either wait for the space to become unoccupied or find an alternative parking space.-3- Demirelli made unsuccessful efforts to reduce his tardiness for work. Specifically, Demirelli tried arriving at work earlier—at one point arriving nearly an hour early— however, the two parking spot s were still usually occupied. Demirelli then began parking at a nearby movie theat er, but traveling via wheelchair from the theater's parking lot to the call cente r took over 10 minutes and caused Demirelli considerable physical pain. Finally, De mirelli requested different hours hoping that one of the two special-needs parking spaces might be available at a later hour. But even during a later work-shift, the two special-needs spots were still occasionally occupied.

Demirelli's condition and the layout of C onvergys's call center hampered an ontime lunch return. Convergys's call center is a maze of hundreds of cubicles where individual call representatives answer cust omer calls. Cubicles are not assigned to specific call representatives; when call repres entatives report for work or return from lunch, they claim the first cubicle that th ey can find. Most employees simply look over the top of the rows of cubicles to find an available workstation. However, this option was not available to the wheelchair-confinedDemirelli. He was forced to examine each workstation. This time-consuming ex ercise was exacerbated by narrow aisles, making it difficult for Demirelli to navigate obstacles such as stray chairs or chatting colleagues. His search was further complicat ed by the fact that not every workstation was fully operational; occasionally, a workst ation would be available but missing a headset or other necessary equipment.

Initially, Demirelli's supervisor reserved a workstation for him. However, after a few months, Demirelli's supervisor was replaced. His new supervisor refused to reserve a workstation for him. A few months before his termination, Demirelli began seating himself at workstations reserved fo r training. His supervisors expressed their displeasure with him sitting there but di d not require him to move. When his supervisors approached him to discuss his tardies, Demirelli explained that he was having problems finding a parking space and a wo rkstation. He asked that he be given2 Convergys also argues, citing Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184 (4th Cir. 1998) (en banc), that Demirelli, a Turkish immigrant, was an unauthorized immigrant worker and thus not entitled to relief under the ADA. The record is clear, however, that for the peri od that Demirelli claims damages, he was authorized by the Department of Homeland S ecurity to work in the United States. We therefore reject Convergys's claims without deciding whether unauthorized workers are entitled to relief under the ADA.
-4- "a grace period"—a few extra minutes to re turn from lunch to work. Convergys denied this request. On June 27, 2002, Conver gys terminated Demirelli's employment.

Demirelli filed a timely claim with the EEOC, which in turn brought this enforcement action pursuant to its authority under 42 U.S.C. §§ 2000e-5(f)(1) and (3). Demirelli intervened as a plaintiff pursu ant to § 2000e-5(f)(1). The matter proceeded to trial, and a jury found for the plai ntiffs, awarding Demirelli $14,265.22 in lost wages and $100,000 in other compensatory damages.

II . Discussion Convergys appeals the district court's denial of its motion for judgment as a matter of law, averring that it cannot be held liable for failure to accommodate Demirelli because he did not request a sp ecific, reasonable accommodation. In the alternative, Convergys avers that Demirelli's proposed accommodations were unreasonable. 2Convergys also challenges the award and amount of compensatory damages.

A. Judgment as a Matter of Law We review de novo the denial of a mo tion for judgment as a matter of law. Henderson v. Simmons Foods, Inc. , 217 F.3d 612, 615 (8th Cir. 2000). In order to prevail on a claim of discriminati on under the ADA, Demirelli must prove, inter alia , that he was qualified to perfo rm the essential functions of his job, with or without accommodation. Land v. Washington County, Minn. , 243 F.3d 1093, 1095 (8th Cir.-5- 2001). Determination of whether a disabled employee is qualified to perform an essential function of the job is a two-foldinquiry, asking: (1) whether the employee meets the necessary prerequisites for the j ob, such as education, experience, and training and (2) whether the employee can perform the essential job functions, with or without reasonable accommodation. Id

.

1. The Interactive Process Convergys avers that, as a matter of la w, an employer cannot be held liable for failing to accommodate a di sabled employee who has not requested a specific, reasonable accommodation. Similarly, Convergys avers that the district court erred when it declined to instructthe jury that Demirelli was required to request a specific accommodation. We hold that the district court did not err.

Our case law has established a sharedresponsibility between employers and employees to resolve accommodation requests. A disabled employee must initiate the accommodation-seeking process by making hi s employer aware of the need for an accommodation. Cannice v. Norwest Bank Iowa N.A. , 189 F.3d 723, 726 (8th Cir. 1999). Additionally, the employee must provide relevant details of his disability and, if not obvious, the reason that his disability requires an accommodation. Miller v. Nat'l Cas. Co. , 61 F.3d 627, 630 (8th Cir. 1995).

Once the employer is made aware of th e legitimate need for an accommodation, the employer must "make a reasonable effort to determine the appropriate accommodation." Cannice , 189 F.3d at 727 (internal c itation and quotation omitted). "This means that the employer should first analyze the relevant job and the specific limitations imposed by the disability and then, in consultation with the individual, identify potential effective accommodations." Id; see also Fjellestad v. Pizza Hut of Am., Inc. , 188 F.3d 944, 954 (8th Cir. 1999) (stating that employers are required to "make a good faith effort to seek accomm odations"). This division of responsibility is "only logical, as an employee will typically have better access to information-6- concerning his limitations and abilities whereas an employer will typically have better access to information regarding possible altern ative duties or positions available to the disabled employee." Rizzo v. Children's World Learning Ctr., Inc. , 173 F.3d 254, 266 (5th Cir. 1999).

Demirelli testified at trial that herequested an accommodation because of limitations created by his wheelchair, thus meeting his initial burden. The record does not show, however, that Convergys fulf illed its obligation to explore possible accommodations for Demirelli's disability. Infact, the record evidence shows that Demirelli assumed Convergys's respons ibility by offering several potential accommodations, including a few extra minutes to return from lunch. Demirelli thus exceeded what disabled employ ees at the initial stage of the interactive process must do. Convergys's argument thus attempts to place the entire responsibility of fashioning an accommodation upon Demirelli.

Convergys points to Kratzer v. Rockwell Collins, Inc ., 398 F.3d 1040 (8th Cir. 2005), to support its proposition that a disabled employee must request a specific reasonable accommodation. In that case, Kr atzer, a disabled employee, needed to prove her proficiency with f our-different types of machines in order to receive a promotion. Id. at 1044. However, her disability pr evented her from sitting in front of the machines for the full amount of time n ecessary to demonstrate her proficiency. Id. Both Kratzer and her employe r started the interactive process to find a reasonable accommodation that would allow Kratzer to use the machines and demonstrate her proficiency. Id . at 1045. As a part of this inte ractive process, Kratzer agreed to undergo a medical evaluation that would provide her employer with information necessary to fashion a proper accommodation. Id . However, Kratzer did not provide the necessary medical information. Id . After being denied the promotion, Kratzer sued, alleging that her employer failed to accommodate her disability. We held that Kratzer failed to fulfill her responsibility in the interactive proce ss when she failed to provide information necessary for he r employer to fashion an appropriate3 Although an assigned parking place and workspace are other potential accommodations, the parties, at trial and oral argument, relied upon Demirelli's request for extra time as the reasonabl e accommodation that Convergys should have provided. Therefore, it is the onl y accommodation that we consider.
-7- accommodation. Id . ("The breakdown in the interactiv e process was due to her failure to provide an updated evaluation, not Rockwell's refusal to provide an accommodation."). In the present case, ther e is no dispute that Demirelli provided Convergys with all of the information rele vant to his disability and the disability's affect on his job performance.

We hold that Demirelli was not requi red to more specifically request accommodation. Accordingly, the districtcourt did not err by denying Convergys's motion for judgment as a matter of law. Similarly, the district court did not err by declining to instruct the jury that Demirelli was required to request a specific accommodation.

2. Reasonable Accommodation Convergys avers that any accommodation that provided Demirelli with extra time was unreasonable because it required C onvergys to eliminate the essential punctuality requirement. We disagree. There is no precise test for what constitutes a reasonable accommodation, but an accommodation is unreasonable if it requires the employer to eliminate an essential function of the job. Buckles v. First Data Res., Inc. , 176 F.3d 1098, 1102 (8th Cir. 1999); Dropinski v. Douglas County, Neb ., 298 F.3d 704, 709 (8th Cir. 2002). Whether an accommodation is reasonable is a question of fact to be decided by a jury. Fjellestad , 188 F.3d at 957; Jankowski Lee & Assoc. v. Cisneros , 91 F.3d 891, 896 (7th Cir. 1996).

The district court determined that punctu ality is an essential job function. In order to fulfil this essential job function, the record evidence is clear that Demirelli requested an extra 15 minutes to return from his lunch break. 3 Viewing the evidence-8- in a light most favorable to the jury verdic t, we believe that an extra 15 minutes is a reasonable accommodation. First, Conver gys puts forth no evidence showing that extending Demirelli's lunch break by 15 mi nutes would eliminate its punctuality requirement. An additional 15 minutes w ould merely create a different time for Demirelli to return from his lunch break. C ontrary to Convergys's assertion, this modified work schedule would not creat e an open-ended schedule where Demirelli would be free to return from lunch at hi s pleasure or at unpredictable times. Second, the record evidence also shows that by granting Demirelli an extra 15 minutes, 62 of Demirelli's 65 lunch tardies would have been eliminated. Lastly, the ADA itself recognizes extra time as a reasonable accommodation. "[R]easonable accommodation may include . . . job restructuring; part-time or modified work schedules ." 42 U.S.C. § 12111(9)(B) (emphasis added); see also 29 C.F.R. § 1630.2.

Accordingly, we believe that there is sufficient evidence to support the jury's conclusion that the accommodations proposed by Demirelli were reasonable.

B. Damages Convergys avers that the district court erred by permitting the jury to award Demirelli $100,000 in compensatory damages and erred by denying its motion for remittur.

1. Compensatory Damages A plaintiff may seek compensatory damages under the ADA for emotional distress. Foster v. Time Wa rner Entm't Co. , 250 F.3d 1189, 1196 (8th Cir. 2001) (internal citations and quotations omitte d). While compensatory damages for emotional distress must be supported by comp etent evidence of genuine injury, a jury may award such damages based so lely upon a plaintiff's testimony. Moysis v. DTG Datanet , 278 F.3d 819, 828 (8th Cir. 2002); Hammond v. Northland Counseling Ctr., Inc. , 218 F.3d 886, 893 (8th Cir. 2000). Howe ver, an employer can avoid paying compensatory damages if the employer show s that it acted in good faith, working "in-9- consultation with the person with the disab ility who has informed the [employer] that accommodation is needed, to identify and make a reasonable accommodation . . . ." 42 U.S.C. § 1981a(a)(3).

The record evidence show s that Demirelli suffered significant emotional injuries as a result of his wrongful termination. Demirelli testified that the termination caused him severe depression and anxiety. That, as a result of the depression, he became isolated, ashamed, and gained a si gnificant amount of weight. Convergys does not dispute this evidence but merely argues that it acted in good faith.

Whether Convergys acted in good faith is a question for the jury in which Convergys bears the burden of proof. Landrum v. Moats , 576 F.2d 1320, 1329 (8th Cir. 1978). "[T]he failure of an employer to engage in an interactive process to determine whether reasonabl e accommodations are possible is prima facie evidence that the employer may be acting in bad faith." Fjellestad , 188 F.3d at 952. As we have already concluded that Convergys failed to e ngage in the interactive process, we also conclude that a reasonable jury could find that Convergys did not act in good faith to make a reasonable accommodation. Prudent management decisions and common courtesy among co-workers may well have a voided this claim in its entirety but it cannot now be avoided by factual assertions reasonably re solved to the contrary by the jury.

2. Remittur We review the denial of remittur fo r abuse of discretion and "will grant a remittur only in cases where the jury's award is so grossly excessive as to shock the court's conscience." Duty v. Norton-Alcoa Proppants , 293 F.3d 481, 496 (8th Cir. 2002) (internal quotation and citation omitted) . "Our scope of review over a damage award is extremely narrow." Peoples Bank and Trust Co. of Mountain Home v. Globe Intern. Pub., Inc. , 978 F.2d 1065, 1070 (8th Cir. 1992). "We review this award with-10- a keen sense of respect for th e latitude given to juries." Kucia v. Southeast Ark. Comm. Action Corp ., 284 F.3d 944, 948 (8th Cir. 2002).

We vest with the jury the responsib ility of quantifying emotional damages because the jury has the "benefit of obser vation of plaintiff in considering and determining a fair allowance for he r emotional distress and humiliation." Block v. R.H. Macy & Co., Inc. , 712 F.2d 1241, 1245 (8 thCir. 1983). "[I]t is well settled that awards for pain and suffering are highly subjec tive and should be committed to the sound discretion of the jury, especially when the ju ry is being asked to determine injuries not easily calculated in economic terms." Frazier v. Iowa Beef Processors, Inc. , 200 F.3d 1190, 1193 (8th Cir. 2000).

Convergys offers no convincing evidence that the jury's award of $100,000 for emotional damages shocks the conscience. Based upon the record evidence, we cannot say that the district court abused its discretion by denying Convergys's motion for a remittur.

III. Conclusion After a careful review of the record, the judgment of the district court is affirmed.

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