In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2509

Cheryl A. Gile,

Plaintiff-Appellee,

v.

United Airlines, Inc.,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 94 C 1692--Rebecca R. Pallmeyer, Judge.

Argued January 18, 2000--Decided May 22, 2000



  Before Easterbrook, Kanne and Diane P. Wood, Circuit
Judges.

  Kanne, Circuit Judge. Cheryl Gile worked eight
years for United Airlines, Inc. ("United") before
she began suffering from a cluster of
psychological disorders that made it increasingly
difficult for her to perform her job. Gile
initially had volunteered for night shift duty,
but insomnia and exhaustion from sleep
deprivation were aggravating her psychological
condition. After consultation with a
psychologist, she asked United to accommodate her
condition by reassigning her to a daytime shift,
but United refused Gile’s repeated requests and
suggested that she consider quitting her job
instead. Gile sued under the Americans with
Disabilities Act of 1990 ("ADA"), secs. 42
U.S.C. 12101-12213, for United’s failure to
accommodate her disability and won both
compensatory and punitive damages at trial.
United now appeals the district court’s denial of
judgment as a matter of law on compensatory
damages, the jury instruction barring
consideration of mitigating measures in assessing
disability under the ADA and the denial of
judgment as a matter of law on punitive damages
under the Supreme Court’s decision last term in
Kolstad v. American Dental Ass’n, 

,

(1999). We affirm the judgment for
Gile but reverse the award of punitive damages.

I.   History

  In March 1984, Cheryl Gile began working for
United as a data entry operator in the air
freight department at O’Hare International
Airport in Chicago, Illinois. Her mother had
worked eighteen years for United and recommended
United as an employer, so Gile was excited about
the job. Although United transferred Gile several
times over the next five years between the day
and night shifts, she received good performance
evaluations describing her as a "valuable asset"
and a "very competent, thorough and accurate
employee." In January 1989, at her request, Gile
received a transfer to the night shift, running
from 10 p.m. to 6:30 a.m., and worked nights
without complaint for several years.

  However, when Gile returned to work from
maternity leave in March 1992, she began feeling
chronically depressed and suffered from insomnia
and constant anxiety. She slept only a few hours
a day, struggled to perform mundane household
chores, erupted into spontaneous outbursts of
crying, fell asleep while driving and felt
perpetually fatigued. In June 1992, Gile
initiated semi-weekly consultations about her
psychological condition with Betty Orlandino, a
licensed clinical social worker listed by United
in its catalog of health care providers
recommended to employees.

  Gile told Orlandino that she had been able to
sleep only a few hours a day since returning to
work in March. Gile reported that she "could not
function properly" and was "going crazy."
Orlandino diagnosed Gile with depression and
anxiety disorder because Gile was suffering from
feelings of "hopelessness and helplessness" and
experiencing "fatigue, irritability,
distractibility, [and] difficulty concentrating."
Orlandino noted that Gile’s anticipatory anxiety
over getting enough sleep each night and the
sheer exhaustion from insomnia exacerbated Gile’s
condition, and she instructed Gile to seek
transfer to a daytime shift. Soon afterward, Gile
informed her supervisor James Kinzler that she
was struggling with depression and that she
needed a shift transfer. Although Kinzler
testified at trial that he did not recall this
meeting, Gile said Kinzler told her that he would
let her know about any new openings on the day
shift. Kinzler never spoke to Gile about a
transfer again.

  On August 28, 1992, Gile had an emotional
"breakdown" at work. She started crying
uncontrollably and told supervisor Frank Mancini
that she thought she was losing her mind. Gile
tried resting for a spell then returning to work,
but Mancini allowed her to go home when that did
not alleviate her anxiety attack. Gile called
Orlandino immediately after arriving home and saw
Orlandino on August 31. After consulting a
physician, psychologist and two psychiatric
social workers, Orlandino formally recommended
that Gile be placed on medical leave and given
anti-depressant and anti-anxiety medication.
Orlandino provided Gile a note, which Gile
presented to Mancini a few days later, stating
that Gile was "experiencing a depressive reaction
with anxiety state" and "her present position at
United and the night shift are aggravating her
condition."

  United’s Regional Medical Director Dr. Robert
McGuffin handled Gile’s claim pursuant to his
duties of evaluating the medical condition and
work fitness of United employees at O’Hare
Airport. He telephoned Orlandino, who told him
that Gile’s condition was directly related to
Gile working the night shift. On September 22,
1992, McGuffin met with Gile but did not take her
medical history or conduct a psychological
examination. Gile explained her symptoms and told
McGuffin that she was seeing Orlandino twice
weekly for depression. McGuffin retorted that "if
[she] was that unhappy, [then] why didn’t [she]
just resign and stay home." Gile answered that
she did not want to stay home and that she wanted
to work; she insisted that it "didn’t matter if
it was lateral, didn’t matter if it was a
demotion. [She] would take anything as long as
[she] could be on a regular shift, a regular
daytime shift." McGuffin told her to see him in
a couple of weeks and terminated the fifteen-
minute meeting. McGuffin approved Gile’s request
for medical leave but deemed Gile’s condition a
"nonoccupational illness."

  Three days later, on September 25, 1992, Gile
applied for a "competitive transfer." United
regularly posted new job openings at O’Hare and
invited employees to submit their resumes and
most recent performance evaluations as
"competitive transfer" applications for these
positions. Gile applied for two non-data entry
job openings, one in reservations and one in the
air freight headquarters, but never heard back
about her applications.

  Disappointed by McGuffin’s summary conclusion,
Orlandino sent a letter dated September 29, 1992,
to McGuffin repeating that Gile needed
reassignment to the day shift because Gile’s
problems stemmed directly from her night shift
position. The letter averred that "[a]lthough the
etiology of Mrs. Gile’s condition is non-
occupational as to her job duties, it is directly
related to the shift she had been assigned to."
Therefore, the letter requested that "a change in
shift be considered for Cheryl Gile." McGuffin
testified at trial that he realized "there was
something wrong with [Gile] mentally" and he did
not disagree with the diagnosis of depression and
anxiety or "take issue" with Orlandino’s
assessment. Furthermore, though United challenged
Orlandino’s professional credentials at trial and
in its appellate briefs, neither McGuffin nor any
other United representative ever requested that
Gile be treated or evaluated by another physician
or psychologist.

  When Gile saw McGuffin again on November 2,
1992, Gile reported ongoing "severe, severe
depression" and again "begged him to please help
[her]." Gile said that she would be happy to go
back to work if he would "please just help [her]
get a job that [she] would be working the day
shift." McGuffin huffed that "it sounded like a
personal problem . . . not an illness." McGuffin
explained at trial that he did not expedite
reassignment to the day shift partly because he
was concerned that other employees might expect
or request a transfer out of the night shift as
well. He also thought that a "change in work
schedule more accurately addressed personal and
life and family issues rather than an illness."
McGuffin took no further action other than
telling Gile to seek a nonmedical transfer, which
she had already tried, and issuing Gile a work
release note for continued duty on the night
shift.

  Upon hearing McGuffin’s assessment, Orlandino
called McGuffin to insist that Gile’s night shift
assignment was a "major factor" in Gile’s
condition. McGuffin steadfastly disagreed and
said that "if [Gile] didn’t like it, she could
quit." A few days later, Orlandino faxed McGuffin
a letter recommending that Gile be placed on
temporary disability until January when United
annually rearranged work shift schedules. Gile
gave McGuffin’s work release note to her
supervisor but explained that Orlandino had not
released her to work the night shift. As a
result, United placed Gile on authorized leave
without pay.

  United annually reshuffled its employee shift
assignments and permitted employees each November
to bid according to seniority for shift
reassignments. By the November 1992 bidding, Gile
had accrued sufficient seniority to win an
evening shift, running from 2 p.m. to 10 p.m.,
beginning in January 1993. Gile testified that
she would have been happy to work the evening
shift because it was basically a daytime shift,
however Gile was home on authorized leave at the
time of November bidding and did not place a bid
at all for the 1993 work year.

 Since United had placed Gile on indefinite
authorized leave, Gile was understandably
surprised when she received a termination letter
from United on January 14, 1993, notifying her
that United had terminated her employment for
abandonment of her job. Gile contacted United for
clarification, but United did not respond.
Buffeted by the stress of her apparent
termination, Gile’s psychological condition
worsened, and she began seeing psychiatrist Dr.
Alan Hirsch on Orlandino’s recommendation in
April 1993. Hirsch examined Gile four times over
the next six months and confirmed Orlandino’s
diagnoses of clinical depression and severe
anxiety. During these sessions with Hirsch, Gile
reported loss of self-esteem from her termination
and explained that she had seriously contemplated
suicide. Hirsch prescribed additional medication
and forwarded his diagnoses to United. In
addition, Orlandino continued to lobby United on
several occasions, urging it to reinstate Gile
and permit her to work a daytime shift. United
acknowledges that daytime positions remained open
throughout all the events of this case, even
after November bidding closed.

  After a series of persistent inquiries by
Gile’s lawyer, United contacted Gile on September
23, 1993, and negotiated her return to work in
April 1994. At trial, United explained that it
had mailed the termination letter by mistake and
"unfired" Gile when it unraveled the confusion.
For her part, Gile was "more than happy to come
back" to United. Upon her return, Gile worked the
day shift for two months while another employee
was ill, then worked the evening shift after the
ill employee’s return. Working during the day and
evening served Gile well, just as Orlandino
predicted. Gile testified that "[i]t was
immensely helpful to be back at work," and her
condition "started to stabilize," though it did
not clear up overnight.

  Before her return to work, however, Gile sued
United in the Northern District of Illinois on
March 18, 1994, alleging that United violated the
ADA in failing to accommodate reasonably her
disability by transferring her out of the night
shift. In its defense, United pointed to its
"Reasonable Accommodation Policy," which read in
pertinent part:

In keeping with its commitment to equal
employment opportunity and through implementation
of our Affirmative Action Plan for the Disabled,
United Airlines is obligated to make reasonable
accommodations whenever possible for disabled
applicants and/or employees who are selected for
hire, promotion, job retention or training.

By way of explanation, United has a Reasonable
Accommodation procedure applicable to employees
or applicants with physical or mental work
restrictions. . . .

* * * *

Regulations state: "An employer must make a
reasonable accommodation to the physical and
mental limitations of an employee/applicant,
unless the employer can demonstrate an
accommodation would impose an "undue hardship" on
the Company."

* * * *

The key to this process is to identify the work
restriction(s) and then establish the financial
and productivity loss which may be associated
with an accommodation. In some instances, these
restrictions are insignificant to the performance
of the job being considered. In these cases,
Reasonable Accommodation is achieved with no
significant financial or productivity loss.

* * * *

A. Reasonable Accommodation--Employees
(internal)

Same procedures as for new-hire accommodations.
If the accommodation can be made, proceed
accordingly. If the recommendation is to deny
accommodation, and that decision is upheld by the
Accommodations Committee, the Staff
Representative-Personnel supporting the operation
will work in conjunction with the employment
offices to find alternative job opportunities for
the employee.

At all relevant times, McGuffin and Gile’s
supervisors knew and understood United’s
reasonable accommodation policy.

  After several contentious discovery disputes
during which United refused to produce a number
of documents, the district court granted summary
judgment in favor of United, holding that United
was not required to transfer Gile as a reasonable
accommodation for her disability. Gile appealed
several district court discovery rulings and the
grant of summary judgment, and we reversed and
remanded in Gile v. United Airlines, Inc., 

(7th Cir. 1996). The case proceeded to
trial on February 8, 1999, and a jury granted
judgment for Gile four days later, awarding
$200,000 in compensatory damages and $500,000 in
punitive damages. The district court denied
United’s renewed motions for judgment as a matter
of law, or in the alternative, a new trial, but
limited Gile’s total damages to $300,000 as
required under 42 U.S.C. sec. 1981a(b)(3). United
now appeals the district court’s denial of its
motions for judgment as a matter of law regarding
compensatory damages, denial of United’s
requested jury instruction on consideration of
mitigating measures in assessing Gile’s
disability and denial of United’s motion for
judgment as a matter of law regarding punitive
damages.

II.   Analysis

A. Judgment as a Matter of Law
on Compensatory Damages

  The district court denied all three of United’s
motions under Rule 50 of the Federal Rules of
Civil Procedure for judgment as a matter of law
on liability for compensatory damages, and United
now appeals arguing that (1) there was no legally
sufficient evidentiary basis for a reasonable
jury to find that Gile was a qualified individual
under the ADA; and (2) Gile was solely
responsible for a breakdown in the required
interactive process by failing to avail herself
of the bidding procedures for an employee to
request a shift transfer.

  In appealing a denial of a motion for judgment
as a matter of law after the jury has decided
against it, United assumes a herculean burden. We
reverse only if no rational jury could have found
for the plaintiff, even when viewing the evidence
in the light most favorable to the nonmovant. See
Collins v. Kibort, 

, 335 (7th Cir.
1998). Careful to avoid substituting our judgment
for that of the factfinder at trial, we ascertain
whether there exists sufficient evidence upon
which any rational jury could reach the trial
verdict. See Tincher v. Wal-Mart Stores, Inc.,

, 1129 (7th Cir. 1997). Moreover, we
apply this standard stringently in discrimination
cases, where witness credibility is typically
crucial. See Williams v. Pharmacia, Inc., 

, 948 (7th Cir. 1998). We review this
question de novo. See 

.

  First, United claims that the jury lacked
sufficient evidentiary basis to find that Gile
was a qualified individual with a disability
under the ADA. Specifically, United argues that
Gile did not provide the jury with a reasonable
basis to find that her requested accommodation--a
transfer from the night shift to a daytime shift-
-would have enabled her to perform the essential
functions of her job. The ADA requires
accommodation only for a "qualified individual
with a disability" who can perform her job with
or without reasonable accommodation. See Vollmert
v. Wisconsin Dep’t of Transp., 

, 297
(7th Cir. 1999). The ADA thus mandates that an
employer make reasonable accommodations only if
accommodation would permit the disabled employee
to perform her job, and an employer need not
grant a disabled employee’s request for an
accommodation that would be an "inefficacious
change." Vande Zande v. Wisconsin Dep’t of
Admin., 

, 542 (7th Cir. 1995).

  In Weigel v. Target Stores, 

, 469
(7th Cir. 1997), we affirmed summary judgment for
the defendant and held that the plaintiff failed
to show that she was a qualified individual under
the ADA. The plaintiff, who undisputedly could
not work without accommodation, rested her claim
entirely on a doctor’s affidavit that "there was
a good chance" that she could return to work with
her requested accommodation of extended medical
leave, which the employer had rejected. This bare
assertion without any further explanation was
"simply too conclusory and uninformative to be
given any weight" because "we [were] left totally
in the dark" about the bases for the doctor’s
opinion. 

. The doctor
indicated nothing about the plaintiff’s
condition, past responsivity to treatment or the
reasons that Weigel’s condition would improve
with accommodation. Without any additional
evidence that she could perform her job with
reasonable accommodation, Weigel could not show
that she was a qualified individual under the
ADA.

  Contrary to United’s assertions, however, Gile
presented far more credible evidence about her
condition and the expected effect of a transfer
to a daytime shift than the lone, conclusory
affidavit presented by the plaintiff in Weigel.
Unlike the plaintiff in Weigel, Gile presented an
endless stream of documentation from Orlandino
about her psychological symptoms and the need for
a transfer to a daytime shift. Orlandino
testified that Gile’s anticipatory anxiety over
being able to get enough sleep each night and the
sheer exhaustion from insomnia exacerbated Gile’s
condition. She and Gile explained to McGuffin
that regular daytime work would have stabilized
her sleep patterns and reduced the anxiety and
stress attendant to her psychological conditions.
Although a shift transfer may not have cured
Gile’s condition altogether, a rational jury
easily could conclude that a shift transfer would
have alleviated her symptoms such that Gile could
have performed her job. Indeed, once Gile
returned to work on daytime shifts in April 1994,
Gile’s condition did benefit from the regular
work and sleep schedule. Gile sufficiently
established that she was a qualified individual
with a disability who could have performed her
job with reasonable accommodation.
  Second, United claims that it is entitled to
judgment as a matter of law because, according to
United, Gile obstructed the interactive process
by failing to avail herself of United’s bidding
and competitive transfer procedures. To begin,
United mistakes Gile’s obligation in the
interactive process. In Hendricks-Robinson v.
Excel Corp., 

, 693 (7th Cir. 1998),
we presented the respective obligations of
employer and disabled employee in executing the
accommodation process. The employee first must
start by informing the employer of her
disability. See 

notified United of
her disability and requested accommodation. At
that point, the ADA obligates the employer to
"engage with the employee in an ’interactive
process’ to determine the appropriate
accommodation under the circumstances." Bombard
v. Fort Wayne Newspapers, Inc., 

, 563
(7th Cir. 1996). This step "imposes a duty upon
employers to engage in a flexible, interactive
process with the disabled employee needing
accommodation so that, together, they might
identify the employee’s precise limitations and
discuss accommodation which might enable the
employee to continue working." Hendricks-

(internal citations
omitted); see also Miller v. Illinois Dep’t of
Corrections, 

, 486-87 (7th Cir. 1997)
(holding that the employer must "ascertain
whether he has some job that the employee might
be able to fill."). Although United argues that
Gile’s proposed accommodation would have been
ineffective, United had the affirmative
obligation to seek Gile out and work with her to
craft a reasonable accommodation, if possible,
that would have permitted her return to work. See

; Bultemeyer v. Fort
Wayne Community Sch., 

, 1286 (7th
Cir. 1996).

  It is here that United flunked its obligations
under the ADA. In the face of Gile’s repeated
pleas for a shift transfer, United refused her
request for a modest accommodation, then did
nothing to engage with Gile in determining
alternative accommodations that might permit Gile
to continue working. McGuffin provided no help at
all except to suggest that Gile "just resign and
stay home." United’s only action in the
subsequent months was to terminate Gile in
January--a move that United subsequently
disclaimed. Unlike Weiler v. Household Finance
Corp., 

, 526 (7th Cir. 1996), where
the plaintiff requested a transfer which would
have required either creation of a new position
or bumping another employee, and the defendant
contacted the plaintiff about five available
positions as alternative accommodations, United
made no effort to accommodate Gile.

  However, United contends that it did not
approach Gile and engage in the interactive
process because Gile readily possessed the means
to obtain reasonable accommodation by herself
without United’s help. United concedes that
daytime and evening positions were vacant
throughout the period during which Gile was
requesting a transfer, but notes that Gile was
entitled by seniority to an evening shift
position if she had participated in United’s
November 1992 bidding process. United argues that
Gile should have bid for a transfer in November,
even though she was no longer working and was on
indefinite medical leave, and she would have
received the transfer that she requested. When
Gile failed to bid for one of the vacant daytime
positions, United claims that it could do nothing
more for her. United protests that it would have
constituted prohibited "affirmative action" for
United to have reassigned Gile to a daytime shift
outside the November bidding process, even for
positions that remained open after bidding
closed. We disagree.

  Under the circumstances, the ADA required that
United transfer Gile to a vacant daytime
position. Although the ADA does not obligate
employers to "bump" other employees or create new
positions, sec. 12111(9) of the ADA requires an
employer to reassign a disabled employee to a
vacant position for which the employee is
otherwise qualified. See 

;

; Dalton v.
Subaru-Isuzu Automotive, Inc., 

, 678
(7th Cir. 1998); DePaoli v. Abbott Laboratories,

, 675 (7th Cir. 1998). The employer
is obligated to "identify the full range of
alternative positions for which the individual
satisfies the employer’s legitimate,
nondiscriminatory prerequisites" and consider
"transferring the employee to any of these other
jobs, including those that would represent a
demotion." 

. United is
wrong to say that it constitutes "affirmative
action" to reassign Gile to a vacant position for
which she was entitled by seniority and which
would have accommodated her disability. If United
had reassigned Gile as she requested, the only
preferential treatment of Gile would have been
that, unlike nondisabled employees who were not
on medical leave, she did not have to fulfill the
technical requirement of casting her November
bid.

  Although the ADA does not require the employer
to abandon its legitimate policies regarding job
qualifications and entitlements to company
transfers, United cannot seriously claim that the
procedural requirement of November bidding was
too important for United to bypass when daytime
positions remained vacant after the bidding
process. In Hendricks-Robinson, the defendant’s
policy of posting job openings and insisting that
disabled employees independently learn of and
apply for new positions was insufficient to
satisfy the employer’s duty under the ADA to
investigate the possibility of transferring
disabled employees. 

. Likewise, United failed its duty of
reasonable accommodation because it took no
action other than to reject Gile’s request. By
refusing her request and assuming no further duty
to accommodate because its shift bidding process
was in place, United failed its ADA obligation.

B.   Jury Instruction Under Sutton

  At trial, the district court instructed the
jury that it should assess Gile’s disability
without regard to mitigating measures, namely the
medications that Gile took to treat her
depression and anxiety. A few months after the
trial’s close, the Supreme Court decided Sutton
v. United Airlines, Inc., 

, 

, 2143 (1999), and held that "the
determination of whether an individual is
disabled should be made with reference to
measures that mitigate the individual’s
impairment." Gile admits that the jury
instruction in this case was therefore improper
under the Supreme Court’s subsequent holding in
Sutton, but explains that United could present
scant evidence that this error prejudiced United.
Indeed, to win a new trial based on an incorrect
jury instruction, United must show both that (1)
the instruction inadequately states Seventh
Circuit law; and (2) the error likely confused or
misled the jury causing prejudice to the
appellant. See Doe v. Burnham, 

, 479
(7th Cir. 1993). This is another onerous burden
for United because, even if the jury instruction
was patently incorrect, United still must
establish that it was prejudiced by the improper
instruction. See EEOC v. AIC Security
Investigations, Ltd., 

, 1283 (7th
Cir. 1995). United is correct that the jury
instruction was improper under Sutton, but United
is wrong to say that it made any difference here.

  United went so far to declare in its reply
brief that evidence which Gile proffered to
disprove prejudice is "irrelevant." It is both
relevant and the reason that United loses this
claim on appeal. United alleges only that Gile’s
condition improved under medication, and that the
jury was not given the chance to conclude that
Gile was not disabled when medicated. United does
not demonstrate that substantial harm flowed from
the improper jury instruction, and its
speculation that the jury might have decided the
case differently if given the proper instruction
is insufficient to establish prejudice. In fact,
we doubt that the improper jury instruction
resulted in substantial harm because Gile
suffered significant impairment despite the
medication. Gile began taking medication in
September 1992, and nearly all the relevant
events of the case occurred while Gile was taking
regular medication but still suffering serious
depression and anxiety. The jury instruction was
harmless error.

C.   Punitive Damages

  United moved at the end of trial for judgment
as a matter of law on punitive damages, but the
district court denied United’s motion and the
jury awarded $500,000 to Gile in punitive
damages, later limited in accordance with 42
U.S.C. sec. 1981a. United now appeals, arguing
that the district court’s instruction on punitive
damages violated the Supreme Court’s recent
decision in Kolstad v. American Dental Ass’n, 

, 

(1999). We review de
novo the district court’s denial of motion for
judgment as a matter of law. See 

.

  The district court may award punitive damages
in connection with an ADA claim when the
defendant engaged in a "discriminatory practice
or discriminatory practices with malice or
reckless indifference to the federally protected
rights of an aggrieved individual." See 42 U.S.C.
sec. 1981a(b)(1). In Kolstad, a discrimination
case under Title VII of the Civil Rights Act, 42
U.S.C. secs. 2000e to 2000e-17, the Supreme
Court decided that establishing the requisite
"malice or reckless indifference" depends not on
the egregiousness of the employer’s misconduct,
but instead on the "employer’s knowledge that it
may be acting in violation of federal law."

. Punitive damages are
proper when the employer discriminates "in the
face of a perceived risk that its actions will
violate federal law." 

  It is clear that McGuffin and Gile’s floor
supervisors knew of the ADA and United’s
reasonable accommodation policy, but United did
not act with reckless disregard for Gile’s ADA
rights. Gile’s supervisors deferred to McGuffin’s
evaluation, and McGuffin believed that a shift
transfer would not have accommodated Gile’s
disability. McGuffin in good faith disagreed with
Orlandino that a shift transfer would enable Gile
to work and believed that Gile’s psychological
condition was a nonoccupational, personal problem
which did not trigger any obligation under the
ADA on United’s part. Punitive damages depend not
on the egregiousness of the defendant’s
misconduct, or its callousness in denying
reasonable accommodation, but instead run from a
culpable state of mind regarding whether that
denial of accommodation violates federal law. See

; see also Deters v.
Equifax Credit Info. Servs., 

, 1269
(10th Cir. 2000). United’s failure to accommodate
Gile’s disability amounted to negligence because
it misunderstood Gile’s difficulties, did not
regard her condition a disability and neglected
to pursue Gile in developing an alternative
accommodation. Although United wrongly believed
that Gile was not disabled under the ADA and did
not adequately address her accommodation request,
United did not exhibit the requisite reckless
state of mind regarding whether its treatment of
Gile violated the ADA. The district court should
have granted United’s motion for judgment as a
matter of law regarding punitive damages, and we
will reverse the award of punitive damages,
leaving Gile with a judgment for $200,000 in
compensatory damages.


III.   Conclusion

  For the foregoing reasons, we AFFIRM the judgment
for Cheryl Gile of compensatory damages but REVERSE
the award of punitive damages.



 DIANE P. WOOD, Circuit Judge, concurring in part
and dissenting in part. I agree with the
conclusion of the majority in Parts II.A. and
II.B. of the opinion that United Airlines has
shown no reason to upset the jury’s verdict in
favor of Cheryl Gile on compensatory damages and
that the erroneous instruction about mitigating
measures was harmless error. I would not,
however, reverse the jury’s award of punitive
damages, reduced as it was required to be under
42 U.S.C. sec. 1981a(b)(3) from $500,000 to
$100,000 (which kept the total verdict within the
statutory $300,000 cap). As the majority states,
under Kolstad v. American Dental Ass’n, 

, 

(1999), the requisite malice
or reckless indifference required for a punitive
damage award is present when the employer
discriminates "in the face of a perceived risk
that its actions will violate federal law." 527
U.S. at ___, 119 S.Ct. at 2125.

  The jury was entitled to find, as it did, that
this is precisely what United did, through its
authorized decisionmaker, Regional Medical
Director Dr. Robert McGuffin. McGuffin was
responsible for handling the accommodation
process for United employees whose medical
condition called into question their fitness to
work. He unquestionably knew about United’s ADA
policy, as the majority agrees. The jury did not
believe that McGuffin seriously thought that a
shift transfer would not have accommodated Gile’s
disability, or that his view was formed in good
faith. Instead, he behaved with astonishing
callousness in the face of Gile’s disability,
twice insensitively telling her she should just
quit or resign and dismissing her complaints as
"mere" personal problems in the face of the
extensive medical documentation to the contrary
from a professional United itself recommended. I
do not disagree with the majority that the record
did not compel a finding of malice or reckless
indifference; had Gile filed a proper partial
Rule 50 motion, she would not have been entitled
to judgment as a matter of law on that point. But
on this record the jury was certainly entitled to
find that United had engaged in reckless
behavior.

  I therefore respectfully dissent from Part II.C.
of the opinion, which reverses the jury’s award
of punitive damages.