Case: 19-12924   Date Filed: 06/18/2020   Page: 1 of 8



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-12924
                        Non-Argument Calendar
                      ________________________

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



TERRY LEE SCOTT,

                                                           Plaintiff-Appellant,

                                  versus

POSTMASTER GENERAL UNITED STATES POSTAL SERVICE,

                                                          Defendant-Appellee.

                      ________________________

               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 post-

judgment 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, 

, 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., 

,


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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., 

, 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.

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.”
 

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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