Equal Employment Opportunity Commission v. Drivers Management, LLC; Werner Enterprises, Inc.

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-2286
___________________________
Equal Employment Opportunity Commission
Plaintiff - Appellee
v.
Drivers Management, LLC; Werner Enterprises, Inc.
Defendants - Appellants
____________
Appeal from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: May 14, 2025
Filed: July 10, 2025
____________
Before COLLOTON, Chief Judge, SMITH and SHEPHERD, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
The Equal Employment Opportunity Commission (EEOC) sued Drivers
Management and Werner Enterprises (collectively, Werner) on behalf of Victor
Robinson, a deaf individual, under the Americans with Disabilities Act (ADA). The
jury found in favor of the EEOC, awarding Robinson both compensatory and

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punitive damages. After the ensuing bench trial on equitable relief, the district court1
awarded Robinson backpay, reduced the punitive and compensatory damages award
to comply with the statutory cap, ordered injunctive relief, and granted the EEOC’s
motion for prejudgment interest. Werner appeals multiple aspects of the
proceedings, arguing that the district court erred when it granted a directed verdict
on the issue of causation; granted summary judgment in favor of Robinson on
Werner’s affirmative defenses; made several adverse evidentiary rulings against
Werner; denied Werner’s motions for judgment as a matter of law; granted the
EEOC injunctive relief; and authorized an award of prejudgment interest. Having
jurisdiction under 28 U.S.C. § 1291 and discerning no error, we affirm.
I.
We recite the facts “in [the] light most favorable to the jury’s verdict.” See
Inacom Corp. v. Sears, Roebuck & Co., 254 F.3d 683, 689 (8th Cir. 2001). Federal
regulations require all drivers to meet specific hearing requirements in order to
obtain a Commercial Driver’s License (CDL). 49 C.F.R. § 391.41(b)(11) (2022).
The regulations, however, also allow an individual to obtain a medical variance from
the Federal Motor Carrier Safety Administration (FMCSA) in order to obtain a CDL.
Id. § 391.41(a)(3)(ii). Thus, an individual who is deaf, but “obtain[s] from FMCSA
a medical variance from the physical qualification standards” is able to obtain a CDL
and is deemed physically qualified to drive a commercial vehicle under federal law.
Id.
Victor Robinson is a deaf individual who obtained his FMCSA variance in
2015. After receiving the paperwork documenting his medical clearance, Robinson
enrolled in Roadmaster, a driver training school owned by Werner. Through
Roadmaster, Robinson received over-the-road training from a trainer with the
assistance of an interpreter, who communicated with Robinson from the backseat of
1 The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.

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the vehicle throughout the process. After successfully completing the Roadmaster
program, Robinson obtained his CDL.
Robinson applied to Werner for an over-the-road truck-driver position before
finishing his Roadmaster training. Because Robinson had fewer than six months of
experience driving a commercial truck, Werner policy obligated Robinson to go
through the “placement driver program” before becoming a solo driver. This
program required new hires without the requisite six months of experience to drive
throughout the country for four to six weeks with a trainer, delivering customer
orders while receiving contemporaneous corrections and instructions while driving.
According to Werner, this training program required all trainees to be able to engage
in verbal communications with their trainers, as any other method of communication
would result in unsafe distractions from the road.
After submitting his application, Robinson received an email from Erin
Marsh, a recruiting manager, informing him that his application had been
preapproved and that he should contact Werner to discuss further opportunities.
Robinson then called2 Marsh, who spoke with him “about the job, the orientation,
providing interpreting services,” and other general matters. About a week later,
Marsh emailed Robinson again, asking him to call that afternoon to speak with
Werner’s Vice President of Safety and Compliance, Jamie Hamm. Marsh
participated in the call, introducing Robinson to Hamm. Hamm proceeded to inquire
as to Robinson’s ability to safely operate a truck and the previous accommodations
he had received regarding over-the-road training in Roadmaster school. Hamm
testified that, in preparation for the call with Robinson, she researched potential
accommodations that Werner could provide to safely train Robinson while he
participated in the placement driver program. However, Hamm had no
documentation of her research, and an investigator for the Nebraska Equal
Opportunity Commission, Lance Knapp, testified that, when he asked Hamm if she
2 These calls were made assisted by a “relay service,” meaning an interpreter
was present with Robinson and relayed information between him and the other party.

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had conducted research into potential accommodations prior to speaking with
Robinson, Hamm said she had not done so. After discussing Robinson’s previous
accommodations, Hamm told Robinson, “No, I’m sorry, we can’t hire you because
of your deafness” and ended the call.
The EEOC then brought suit on behalf of Robinson, alleging that Werner
violated the ADA when it failed to hire Robinson because of his deafness and need
for a reasonable accommodation. The case proceeded through discovery, after
which both parties moved for summary judgment. Relevant here, the district court
partially granted the EEOC’s motion, dismissing Werner’s direct threat affirmative
defense, through which Werner asserted that all deaf drivers posed a direct threat to
others on the road because of their condition. The district court noted that Werner
had failed to individualize the direct threat analysis as to Robinson, precluding
Werner from establishing that defense as a matter of law. The district court also
dismissed Werner’s undue hardship defense because Werner expressly disclaimed
any financial burden imposed by accommodating Robinson and did not point to any
reason why accommodating Robinson would fundamentally alter its entire business,
not just the training program.
The parties filed pre-trial motions in limine, which the district court partially
granted and partially denied. Relevant here, the district court partially granted the
EEOC’s motion to exclude evidence of Robinson’s subsequent driving history,
which included several accidents, finding that the probative value of this evidence
was outweighed by “the risk of confusing the issues, undue delay, and wasting time.”
The district court clarified, however, that Werner was free to inquire about any issues
or accidents, if any, that occurred while Robinson was in training at other places of
employment. Next, the district court denied without prejudice Werner’s motion to
exclude discriminatory comments made by Marsh and Werner’s recruiters about
deaf applicants, allowing Werner to re-assert its arguments at trial; these objections
were subsequently overruled. Finally, the district court denied Werner’s motion to
exclude evidence of other trucking companies’ policies regarding hearing impaired

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drivers, finding this evidence directly relevant as to whether Werner’s act of denying
Robinson an accommodation was reasonable.
This case then went to a jury trial. Both parties timely moved for judgment
as a matter of law. Werner argued that it was entitled to judgment as a matter of law
because Robinson was not qualified for the position and there was no evidence of
intentional discrimination sufficient to submit the issue of punitive damages to the
jury; the district court denied the motion in full. The EEOC argued that Werner
admitted that it did not hire Robinson because he was deaf; therefore, the jury could
only find in its favor on the issue of causation. The district court granted the EEOC’s
motion because “[a]ll of Werner’s explanations” for its failure to hire Robinson
“[we]re premised on [his] deafness.” The case was then submitted to the jury, which
found that Werner failed to hire and failed to accommodate Robinson in violation of
the ADA. It awarded Robinson $75,000 in compensatory damages and $36,000,000
in punitive damages. The district court subsequently reduced the punitive damages
award to $300,000, the statutory maximum. See 42 U.S.C. § 1981a(b)(3)(D).
After the jury verdict, the case continued to a bench trial to determine
applicable equitable relief. The district court held that, because the EEOC had
proven that Werner discriminated against Robinson by a preponderance of the
evidence, Robinson was entitled to backpay. Over Werner’s objection, the district
court then directed the EEOC to submit additional evidence detailing the
calculations for a prejudgment interest award, stating that the EEOC had not waived
the right to collect such interest. The district court later awarded prejudgment
interest in the amount of roughly $11,000. Finally, the district court concluded
injunctive relief was appropriate given the finding of intentional discrimination. The
injunction requires Werner to “keep a record” of any deaf truck driver applications
with FMCSA exemptions and “report those records to the EEOC . . . no less
frequently than every six months . . . for a period of three years.” The district court
noted that this injunction “will not harm Werner so long as Werner complies with
federal law” and that “[t]he reports may even enable Werner to avoid future lawsuits
by demonstrating its good faith efforts to comply with the ADA.”

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Werner then filed a renewed motion for judgment as a matter of law and also
moved for a new trial, which the district court denied. First, Werner challenged the
decision to grant the EEOC’s motion for a directed verdict on causation. The district
court stated that, contrary to Werner’s assertions, Werner refused to hire Robinson
“because he was deaf, not because of a collateral ‘consequence’ of his deafness.”
Because each reason for Robinson’s non-hire “just describ[ed] his deafness with
more words” rather than “identifying a ‘consequence’ of it,” the EEOC was entitled
to a directed verdict on causation. Werner next argued that several evidentiary
rulings merited a new trial, specifically the decision to admit emails between Marsh
and other recruiters demonstrating animus towards deaf applicants and the decision
to exclude evidence of Robinson’s post-training driving history. The district court
stated that emails between Marsh and her subordinates were properly admitted
because the evidence at trial demonstrated that Marsh was part of the
decisionmaking process for Robinson’s application and that she had a discriminatory
animus towards deaf applicants. Moreover, Marsh was given the opportunity to
testify to clarify these comments before the jury. Additionally, evidence of
Robinson’s subsequent job performance was properly excluded because that
evidence “had little relevance to the safety of a deaf driver communicating with
another person in the cab of a truck while training.” Next, Werner reasserted its
position that Robinson was not qualified for the truck driver position because it was
not obligated to accept Robinson’s FMCSA waiver based on safety concerns. The
district court rejected this argument as Robinson was physically qualified under 49
C.F.R. § 391.41(a)(3)(ii) based on his FMCSA waiver and the EEOC presented
evidence that the “simultaneous communication” element of the placement driver
program was not an essential function of the job. Finally, Werner challenged the
decision to submit the issue of punitive damages to the jury. The district court noted
that the EEOC had supplied several evidentiary bases supporting the jury’s finding
of malicious or reckless indifference aside from Marsh’s discriminatory emails,
including Hamm’s familiarity with anti-discrimination laws, Knapp’s testimony
discrediting Hamm’s claim that she investigated possible accommodations, and
Robinson’s testimony describing his call with Marsh and Hamm. Werner now
appeals.

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II.
Werner first challenges the district court’s decision to enter a directed verdict
on the issue of causation. “We review the grant of a motion for directed verdict de
novo, applying the same standard used by the district court, which is Fed[eral ]R[ule
of ]Civ[il ]P[rocedure] 50.” Randall v. Federated Retail Holdings, Inc., 429 F.3d
784, 787 (8th Cir. 2005). Under this rule, “a judgment as a matter of law is
appropriate ‘if during a trial by jury a party has been heard on an issue and there is
no legally sufficient evidentiary basis for a reasonable jury to find for that party on
that issue.’” Id. (quoting Fed. R. Civ. P. 50(a)(1)).
The ADA prohibits employers from discriminating against employees “on the
basis of disability.” 42 U.S.C. § 12112. “To establish a prima facie case under the
ADA, [the EEOC] was required to show that [Robinson] was disabled ‘within the
meaning of the ADA, was qualified to perform the essential functions of [the] job,
and suffered an adverse employment action because of his disability.’” See Knutson
v. Schwan’s Home Serv., Inc., 711 F.3d 911, 913 (8th Cir. 2013) (citation omitted).
In almost all employment discrimination cases, a plaintiff relies on the burden
shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to
establish an inference of discrimination for purposes of causation. See, e.g., Huber
v. Westar Foods, Inc., 139 F.4th 615, 623 (8th Cir. 2025) (en banc); McCullough v.
Univ. of Ark. for Med. Scis., 559 F.3d 855, 861 (8th Cir. 2009); Thomas v. First
Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997). Here, however, there was
direct evidence of discrimination, so the district court entered a partial directed
verdict on the issue of causation. “Direct evidence of discrimination ‘is evidence
“showing a specific link between the alleged discriminatory animus and the
challenged decision, sufficient to support a finding . . . that an illegitimate criterion
actually motivated” the adverse employment action.’” Othman v. City of Country
Club Hills, 671 F.3d 672, 675 (8th Cir. 2012) (citations omitted). Direct evidence
“most often comprises remarks by decisionmakers that reflect, without inference, a
discriminatory bias.” McCullough, 559 F.3d at 861.

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Our review of the record confirms that there was no evidence from which a
jury could conclude that Robinson was rejected for any reason aside from his
deafness given the direct evidence of discrimination proffered by the EEOC. Vice
President of Safety and Compliance Hamm ended Robinson’s employment
interview by stating, “No, I’m sorry, we can’t hire you because of your deafness.”
Additionally, Werner stated in a sworn interrogatory that its “position [wa]s that a
deaf student driver could not safely complete the over-the-road training portion of
Werner’s student driver program.” This evidence alone clearly creates “a specific
link between the [alleged] discriminatory animus and the challenged decision”:
Werner would not hire any deaf applicant, including Robinson. See Thomas, 111
F.3d at 66 (alteration in original) (citation omitted). Werner’s theory of the case was
that Robinson was not qualified for the truck driver position because he was deaf,
and, as the district court noted, Werner provided no other reason as to why it did not
hire Robinson. Because Werner “admit[ted] that the disability played a prominent
part in the decision” and was “defend[ing] its decision on the ground that the plaintiff
[wa]s not otherwise qualified for the position, with or without reasonable
accommodation,” the district court properly entered a directed verdict in favor of the
EEOC on the issue of causation. See Davidson v. Am. Online, Inc., 337 F.3d 1179,
1189 (10th Cir. 2003) (citation omitted).
Werner disagrees with this conclusion, arguing that there is a distinction
between not hiring Robinson because he was deaf and not hiring Robinson as a
consequence of his deafness. But this case is different from those in which we have
upheld an adverse employment action taken against an employee based on a
consequence of his or her disability. See, e.g., Huber, 139 F.4th at 627 (collecting
cases and affirming employer’s termination of employee who it believed violated
company attendance policy because of a diabetic episode); Harris v. Polk County,
103 F.3d 696, 697 (8th Cir. 1996) (upholding employer’s refusal to rehire an
employee because she had a criminal record when employee argued that her criminal
record was caused by her since-resolved mental illness). Here, there is no
meaningful difference between taking an adverse action “because of the job
performance consequences of a disability . . . rather than the disability itself” because

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all of the alleged “consequences” describe Robinson’s disability. Cf. Mole v.
Buckhorn Rubber Prods., Inc., 165 F.3d 1212, 1219 n.3 (8th Cir. 1999). Werner
argued below that it did not hire Robinson because he could not “safely engage in
contemporaneous communications with his trainer while driving, without diverting
his eyes from the road.” R. Doc. 356, at 5 (emphasis added). But, as the district
court noted, “that’s just describing his deafness with more words, not identifying a
‘consequence’ of it.” This case is unlike those in which an individual has a disability
but is terminated for other performance deficiencies like a lack of motivation, poor
attitude, or data entry errors. See, e.g., Mole, 165 F.3d at 1219 n.3; Huber, 2025 WL
1537926, at *8. Werner argued that it did not hire Robinson specifically because he
was deaf and that his deafness made him unqualified for the position. While the
issue of Robinson’s qualifications was a question for the jury, Werner’s reason for
failing to hire him was not. Werner did not hire Robinson because he was deaf, and
we therefore discern no error by the district court in entering a directed verdict on
the issue of causation.
III.
Werner next argues that the district court erred by granting summary judgment
on its undue hardship and direct threat affirmative defenses. “This Court reviews
the district court’s grant of summary judgment de novo.” Satcher v. Univ. of Ark.
at Pine Bluff Bd. of Trs., 558 F.3d 731, 734 (8th Cir. 2009).
A.
Werner first challenges the grant of summary judgment on its undue hardship
defense. The ADA exempts employers from making a reasonable accommodation
for an employee if the employer “can demonstrate that the accommodation would
impose an undue hardship on the operation of the business.” 42 U.S.C.
§ 12112(b)(5)(A). An “undue hardship” means “an action requiring significant
difficulty or expense” in light of:

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(i) the nature and cost of the accommodation needed . . . ;
(ii) the overall financial resources of the facility or facilities
involved . . . or the impact otherwise of such accommodation
upon the operation of the facility;
(iii) the overall financial resources of the covered entity; . . . ; and
(iv) the type of operation or operations of the covered entity, . . . ; the
geographic separateness, administrative, or fiscal relationship of
the facility or facilities in question to the covered entity.
Id. § 12111(10)(A)-(B). Once the plaintiff has demonstrated that a proposed
accommodation is reasonable on its face “in the run of cases,” the employer “must
show special (typically case-specific) circumstances that demonstrate undue
hardship in the particular circumstances.” U.S. Airways, Inc. v. Barnett, 535 U.S.
391, 402 (2002). Werner, however, produced virtually no evidence before the
district court about how providing non-verbal cues would fundamentally alter its
business, not just the training program, nor did it cite any financial burden it would
incur by accommodating Robinson. Instead, Werner proffered the conclusory
statement that any accommodation would fundamentally change the training
program because a trainer could not provide “instantaneous” safety training. As the
district court noted, it is unclear how nonverbal communication during training
fundamentally alters the ability of a “trucking company” to “carr[y] goods in
interstate commerce,” Werner’s primary purpose. Moreover, Werner simply did not
meet its burden of establishing a genuine dispute regarding “a significant difficulty
or expense,” offering no economic evidence and instead arguing that the EEOC
failed to offer an accommodation that Werner deemed safe. See 42 U.S.C.
§ 12111(10)(A). Cf. Gardea v. JBS USA, LLC, 915 F.3d 537, 542-43 (8th Cir. 2019)
(upholding grant of summary judgment on undue hardship when proposed
accommodation was “utterly impractical” and required the employer “to extensively
change its practices and work environment”). But Werner had the burden to prove
this affirmative defense; its failure to provide any evidence as to how the
accommodation would affect its business as a whole is fatal to its challenge on
appeal. Because Werner failed to demonstrate a genuine dispute of fact on its
affirmative defense of undue hardship, the district court properly granted summary
judgment in favor of the EEOC.

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B.
Werner’s challenge to the grant of summary judgment on its direct threat
affirmative defense is likewise without merit. “A ‘direct threat’ is defined as ‘a
significant risk to the health or safety of others that cannot be eliminated by
reasonable accommodation.’” EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561, 571
(8th Cir. 2007) (quoting 42 U.S.C. § 12111(3)). “The Supreme Court requires an
individualized direct threat analysis that relies on the ‘best current medical or other
objective evidence’ in order to ‘protect disabled individuals from discrimination
based on prejudice, stereotypes, or unfounded fear.’” Id. (citation omitted).
“Specific factors to be considered include (1) the duration of risk, (2) the nature and
severity of the potential harm, (3) the likelihood that the potential harm will occur,
and (4) the imminence of the potential harm.” Id.; 29 C.F.R. § 1630.2(r). The
employer bears the burden of proof. Wal-Mart, 477 F.3d at 571.
Here, Werner failed to offer sufficient evidence in support of its direct threat
defense. The only person who allegedly inquired into whether Robinson’s disability
constituted a direct threat was Hamm, but it is undisputed that she did not conduct
the required “individualized direct threat analysis.” See id. Hamm stated that she
called relevant trucker associations and asked if they had research on road tests with
hearing impaired individuals, but she has no notes from these calls, no record of any
analysis, and no evidence of any discussion about Robinson individually in light of
his prior training as a commercial driver. Even viewing the facts in the light most
favorable to Werner, it is undisputed that Werner did not conduct the individualized
analysis necessary to prove this affirmative defense: Hamm just made a few general
calls to back up her “prejudice, stereotypes, [and] unfounded fear” of allowing a deaf
individual to drive a Werner truck. See id. (citation omitted). As the district court
stated, “Werner’s assessment of . . . Robinson wasn’t bespoke—it was off-the-rack.”
This one-size-fits-all approach is insufficient to create a genuine dispute of material
fact as to Werner’s direct threat defense, and we discern no error by the district court
as to this issue.

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IV.
Werner also challenges several evidentiary rulings on the basis of relevance
and prejudice. “We review the district court’s evidentiary rulings . . . for clear and
prejudicial abuse of discretion.” Coterel v. Dorel Juv. Grp., Inc., 827 F.3d 804, 807
(8th Cir. 2016). “We will not disturb the jury’s verdict unless . . . ‘the error[s]
prejudicially influenced the outcome of the trial.’” Id. (second alteration in original)
(citation omitted). Relevant evidence is that which tends to make a fact of
consequence more or less probable than it would be without the evidence. Fed. R.
Evid. 401. Relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. Fed. R. Evid. 403. “Unfair prejudice
means an undue tendency to suggest decision on an improper basis, including
evidence which is so inflammatory on its face as to divert the jury’s attention from
the material issues in the trial.” United States v. Richardson, 40 F.4th 858, 867 (8th
Cir. 2022) (citation omitted).
A.
Werner first argues that the district court abused its discretion by admitting
“stray remarks by non-decisionmakers” that occurred two years after the decision
was made to reject Robinson. Werner claims that these discriminatory comments
made by members of the recruiting department, including recruiting manager Marsh,
were irrelevant and that the evidence was unfairly prejudicial. See Arraleh v. County
of Ramsey, 461 F.3d 967, 975 (8th Cir. 2006) (distinguishing between “stray
remarks in the workplace” and comments demonstrating discriminatory animus).
The comments in question were made to Marsh, who was a manager of student
and driver recruiting at the time, by members of Werner’s recruiting department.
The EEOC introduced several emails after Marsh claimed not to know anybody at
Werner who had ever discriminated against deaf drivers. On one occasion, a Werner
employee sent Marsh a link to an article detailing how a deaf man obtained a truck
driving job, to which Marsh responded, “This scares me to death.” In another

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instance, Marsh was communicating with another recruiting manager, Jen Williams,
at work via instant messaging. Williams told Marsh, “[I]’m on hold with a deaf
guy.. wtf,” and proceeded to make several comments regarding this deaf applicant,
including, “[others] must be trying to find him.. you know yelling his name.. but he
can’t hear them” and “marco . . . nobody can here [sic] polo” to which Marsh
responded, “lmao . . . omg.”
While “stray remarks, standing alone, may not give rise to an inference of
discrimination, such remarks are not irrelevant.” Fisher v. Pharmacia & Upjohn,
225 F.3d 915, 922 (8th Cir. 2000). Such comments are especially relevant here,
where Werner admitted it did not hire Robinson because of his disability and the
EEOC sought to prove Werner was motivated by animus, not safety, in failing to
hire Robinson. Additionally, the EEOC produced other evidence which, together
with these comments, would allow the jury to find that Werner intentionally
discriminated against Robinson for purposes of punitive damages. See id. at 923
(noting that these types of discriminatory comments “constitute circumstantial
evidence that, when considered together with other evidence,” may allow a jury to
infer intentional discrimination). Finally, the EEOC was not using the comments to
prove pretext sufficient to satisfy the McDonnell Douglas framework; the EEOC had
direct evidence of discrimination, and these comments were not utilized to raise an
inference of discrimination “standing alone.” See Bevan v. Honeywell, Inc., 118
F.3d 603, 610 (8th Cir. 1997). While the emails were circulated two years after
Robinson’s rejection, Marsh held the same position she held at the time of
Robinson’s application, and, as the district court stated, these discriminatory
comments were directly relevant to Werner’s longstanding “decision[]making [and]
attitude” towards deaf applicants. These comments provided “additional threads of
evidence” for the jury that were directly relevant to animus. See id. (citation
omitted).
Werner also argues that, even if the comments were relevant, they still should
have been excluded because their probative value was substantially outweighed by
the danger of unfair prejudice. See Fed. R. Evid. 403. But “[d]amaging evidence is

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always prejudicial; the question is whether the evidence is unfairly prejudicial.”
United States v. Tyerman, 701 F.3d 552, 563 (8th Cir. 2012). We discern no abuse
of discretion here, as “the district court [wa]s in a better position than we to . . . make
the subtle balancing required by [Rule] 403.” Hogan v. Am. Tel. & Tel. Co., 812
F.2d 409, 411 n.2 (8th Cir. 1987) (per curiam). Not only was the evidence not unfair
on its own, the district court also allowed Marsh to testify about these comments and
attempt to clarify to the jury that the comments did not reflect Werner’s values, and
her testimony offset any potential unfairness. The district court “is given a great
deal of discretion” when ruling on Rule 403 challenges, and we find no prejudicial
abuse of discretion on this basis. See United States v. Witschner, 624 F.2d 840, 846
(8th Cir. 1980).
B.
Werner next claims that the district court abused its discretion by admitting
evidence of other trucking companies’ accommodations for deaf drivers. It claims
that other companies’ policies were irrelevant to Werner’s refusal to train deaf
drivers as “Werner is not bound by the safety decisions of other companies.” Werner
points to a Seventh Circuit case for the proposition that it “is entitled to determine
how much risk is too great for it to be willing to take” when rejecting applicants.
See EEOC v. Schneider Nat., Inc., 481 F.3d 507, 510 (7th Cir. 2007) (emphasis
omitted). But the EEOC was not utilizing this evidence to prove that Werner had to
adopt the same accommodations as other companies, the EEOC was using this
evidence merely to prove that Werner could do so and refused. Moreover, the cited
statement in Schneider was made in the context of applying a standard that has since
been abrogated and analyzed whether a company was liable for regarding an
employee as disabled based on its mistaken belief. Id. at 509 (citing Sutton v. United
Air Lines, Inc., 527 U.S. 471, 489-91(1999)), abrogated by ADA Amendments Act
of 2008, Pub. L. No. 110-325, § 2(a)(4), 122 Stat. 3553 (2008)). The evidence of
other companies’ policies and their ability to train deaf drivers safely was directly
relevant to whether Robinson’s proposed accommodation was reasonable. The
district court did not abuse its discretion by admitting this evidence.

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C.
Finally, Werner argues that the district court abused its discretion by
excluding evidence under Federal Rule of Evidence 403 of Robinson’s subsequent
driving record while he was employed by other trucking companies. As the EEOC
correctly points out, all of Werner’s arguments on appeal rely on “the same
prejudicial assumption[s]” the district court sought to keep from the jury: “that any
subsequent accidents were due to Robinson’s [lack of] verbal training—i.e., his
being deaf.” The issue at trial was whether Robinson’s training without verbal cues
was a reasonable accommodation; his subsequent accident history while driving
alone was not relevant to this issue, as the district court properly recognized.
Werner’s own evidence proved that Robinson’s post-training history had no bearing
on the analysis, as Werner admitted at trial that it employed experienced deaf drivers
who did not need its training. Moreover, “[i]n determining whether proffered
evidence is misleading or confusing, the [district] court is given a great deal of
discretion.” Witschner, 624 F.2d at 846. We find no abuse of discretion here, as the
district court clearly and adequately explained that any probative value of the
evidence was outweighed by the risk of confusing the issues, undue delay, and
wasting time. See United States v. Condon, 720 F.3d 748, 756-57 (8th Cir. 2013)
(affirming district court when it adequately considered and explained its concerns in
excluding evidence under 403). Additionally, the district court allowed Werner to
inquire on cross examination about any training accidents on Robinson’s record,
further demonstrating the careful consideration it gave to the balancing analysis.
The district court therefore did not abuse its discretion by excluding direct evidence
of Robinson’s subsequent driving record.
V.
Werner also argues that the district court erred by denying its motion for
judgment as a matter of law, arguing that there was insufficient evidence for the jury
to conclude that Robinson was qualified for the truck driver position or that Werner
acted with malice or reckless indifference towards Robinson. “We review these

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sufficiency claims de novo using the same standards as the district court, that is, ‘the
evidence is viewed in the light most favorable to the prevailing party and the court
[cannot] weigh or evaluate the evidence or consider questions of credibility.’”
Townsend v. Bayer Corp., 774 F.3d 446, 456 (8th Cir. 2014) (citation omitted).
A.
Werner argues that the district court erred in submitting the EEOC’s
discrimination claims to the jury because Robinson was not qualified for the truck
driver position as a matter of law. Federal regulations state that a person is
physically qualified to drive a commercial motor vehicle if that person satisfies
specific hearing requirements. See 49 C.F.R. § 391.41(b)(11). However, this
chapter also provides that a person is physically qualified to drive said vehicle if
“[t]hat person meets the physical qualification standards” or “obtained from FMCSA
a medical variance from the physical qualification standards in [§ 391.41(b)].” Id.
§ 391.41(a)(3)(i)-(ii). It is undisputed that Robinson had the requisite waiver from
FMCSA when he applied for the position with Werner. Werner claims that, despite
Robinson’s qualification, it was not required to accept the FMCSA waiver under
Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999).
In Kirkingburg, the Supreme Court held that an individual was not qualified
to drive a vehicle despite his procurement of an experimental waiver for his disability
based on his weak vision. Id. at 577-78. Importantly, the waiver at issue “did not
purport to modify the substantive content of the general . . . regulation in any way”
and was not contained in the Code of Federal Regulations at the time. Id. at 576.
The vision waiver “was simply an experiment with safety . . . resting on a hypothesis
whose confirmation or refutation in practice would provide a factual basis for
reconsidering the existing standards” in § 391.41(b). Id. Because the waiver was
not mentioned in the federal regulations and did not carry the force of law, “[n]othing
in the waiver regulation . . . required an employer of commercial drivers to accept
the hypothesis and participate in the Government’s experiment” by hiring legally

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deficient individuals. Id. at 577. Thus, the Kirkingburg employee’s claim failed
because the employee was not qualified for the position.
These regulations have now been amended, however, and the waiver
programs that modify commercial driver’s licenses are contained in 49 C.F.R.
§ 391.41(a), carrying the full force of law. The program is no longer “experimental,”
and a person is physically qualified to drive if they either (1) have the requisite
hearing as dictated by federal standards or (2) are deemed a safe driver despite the
lack of hearing by obtaining a waiver from the FMCSA. See id.
§ 391.41(a)(3)(i)-(ii). As the district court correctly stated:
Werner isn’t opting out of an experimental program waiving federal
safety regulations, as in [Kirkingburg]. Rather, Werner is trying to opt
out of an established program operating within federal safety
regulations. If Werner wants to challenge the wisdom of the current
federal regulatory regime, there are procedures for that. But the
regulations as they stand provide Werner with no safe harbor for
disability discrimination.
Werner’s claim that Robinson was unqualified as a matter of law fails, as Robinson
possessed a valid hearing waiver at the time he applied for the truck driver position,
making him physically qualified under 49 C.F.R. § 391.41(a)(3).
Werner next claims that there is insufficient evidence that Robinson was
physically qualified as a matter of law because eliminating the essential function of
contemporaneous communication with the trainer during driver training is not a
reasonable accommodation. Werner’s “essential function” argument fails because
“[t]he essential function requirement focuses on the desired result,”—here, safe
driving—“rather than the means of accomplishing it.” See Skerski v. Time Warner
Cable Co., 257 F.3d 273, 280 (3d Cir. 2001) (citation omitted). Werner’s citation to
Higgins v. Union Pacific Railroad Co., 931 F.3d 664, 671-72 (8th Cir. 2019)
(citation omitted), is inapposite, as Robinson’s accommodation allowed him to
safely complete the job; the employee in Higgins asked for an accommodation that

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“amount[ed] to an ‘unlimited absentee policy,’” which has been long held to be
unreasonable as a matter of law.
Here, Robinson’s accommodation did not eliminate the essential function of
safe driving, as the jury inherently found the accommodation safe by determining it
was reasonable and finding in favor of Robinson. The jury heard from two EEOC
experts on how it was safe to accommodate a deaf individual while training using
hand signals, as diverting one’s eyes from the road for a brief time was equivalent
to the time spent checking a mirror or changing the radio. Several trucking
companies testified that they used these types of accommodations safely in their own
training programs. Robinson’s own testimony supported the safety of using hand
signals to communicate, as that was the accommodation he received while training
to receive his CDL. Werner reviews the evidence in the light most favorable to itself,
not the verdict, and, while Werner disagrees, we conclude that the evidence was
sufficient to support the jury’s finding that Robinson was qualified.
B.
Werner also argues that the district court erred by submitting the issue of
punitive damages to the jury “because there was no evidence of malice or reckless
indifference to Robinson’s federally protected rights.” “In employment
discrimination cases, punitive damages are appropriate when the ‘complaining party
demonstrates that the respondent engaged in a discriminatory practice or
discriminatory practices with malice or with reckless indifference to the federally
protected rights of an aggrieved individual.’” Chalfant v. Titan Distrib., Inc., 475
F.3d 982, 991 (8th Cir. 2007) (quoting 42 U.S.C. § 1981a(b)(1)). “To be liable for
punitive damages, it is not sufficient that the employer simply knows that it is
discriminating against an employee.” Id. The employer must also know that “it may
be acting in violation of federal law.” Kolstad v. Am. Dental Ass’n, 527 U.S. 526,
535 (1999).

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Werner primarily relies on this Court’s decision in Canny v. Dr.
Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894 (8th Cir. 2006), to support its
argument that it did not act with malice and instead was focused on safety concerns.
In Canny, this Court reversed a jury’s punitive damages award when an employer
did not accommodate an employee who had become blind, citing safety concerns
under OSHA. Id. at 899, 903. We have since addressed this decision and explained
that punitive damages were not warranted in Canny because “there was no evidence
that the employer was aware that it may have been violating the ADA. On the
contrary, the employer thought its actions were required by other federal
regulations.” EEOC v. Siouxland Oral Maxillofacial Surgery Assocs., LLP, 578
F.3d 921, 927 (8th Cir. 2009). Because the employer in Canny “reasonably
perceived itself caught between federal regulations under [OSHA] and federal law
under the ADA,” it made only a “culpable, but not malicious or reckless, decision
based upon safety concerns.” 439 F.3d at 903.
Unlike the employer in Canny, Werner makes no argument that some other
federal law required it to reject previously untrained deaf drivers. Werner argues
that Marsh’s unsavory emails between recruiters are not enough to support a finding
of malice or reckless indifference, but that was not the only evidence supporting
punitive damages. Robinson presented sufficient evidence of malice at trial,
including: Marsh’s discriminatory commentary with recruiters and her involvement
with Robinson’s application; Hamm’s testimony about her familiarity with anti-
discrimination laws, her alleged inquiry into accommodations, and her failure to
record any information about this accommodation research; testimony from Knapp
contradicting Hamm’s testimony that she researched accommodations at all; and
Robinson’s testimony that Hamm told her he was not hiring him because he was
deaf, despite his application being pre-approved. While Werner “offers one
reasonable interpretation of the evidence presented at trial, . . . the jury evidently did
not accept it.” See Siouxland, 578 F.3d at 926. Like in Siouxland, Werner “points
to no case in which [this Court] held that punitive damages were inappropriate as a
matter of law where, as here, evidence was presented to the jury that a managerial
employee engaged in discrimination while knowing that federal law prohibited such

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discrimination.” See id. Viewing the evidence in the light most favorable to the
verdict, the district court did not err in submitting the issue of punitive damages to
the jury.
VI.
Finally, Werner challenges the district court’s equitable awards of injunctive
relief and prejudgment interest. “The decision to grant or deny permanent injunctive
relief is an act of equitable discretion by the district court, reviewable on appeal for
abuse of discretion.” eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006).
Likewise, “[t]he decision whether to award prejudgment interest is within the district
court’s discretion and we will reverse that decision only for abuse of discretion.”
Smith v. World Ins. Co., 38 F.3d 1456, 1467 (8th Cir. 1994).
A.
After it has been determined that an employer has “intentionally engaged
in . . . an unlawful employment practice,” the district court “may enjoin [the
employer] from engaging in such unlawful employment practice, and order such
affirmative action as may be appropriate, which may include . . . equitable relief.” 42
U.S.C. § 2000e-5(g)(1). “District courts have broad discretion to issue an injunction
once discrimination has been established.” Briscoe v. Fred’s Dollar Store, Inc., 24
F.3d 1026, 1028 (8th Cir. 1994). After a party demonstrates success on the merits
of a discrimination claim, “the court must balance three factors to determine if
injunctive relief is appropriate: (1) the threat of irreparable harm to the moving party,
(2) the harm to be suffered by the nonmoving party if the court grants the injunction,
and (3) the public interest at stake.” Wedow v. City of Kansas City, 442 F.3d 661,
676 (8th Cir. 2006). While its discretion is broad, the district court should fashion
an injunction no “broader than necessary to remedy the underlying wrong.” EEOC
v. HBE Corp., 135 F.3d 543, 557 (8th Cir. 1998).

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The district court did not abuse its discretion by imposing injunctive relief.
The injunction mandates that Werner report records of deaf applicants to the EEOC
every six months (at a minimum) for three years and that it retain records regarding
such applications. The district court noted that the requirements “will not harm
Werner so long as Werner complies with federal law” by not blatantly discriminating
against deaf applicants. It also found that these requirements may “enable Werner
to avoid future lawsuits by demonstrating its good faith efforts to comply with the
ADA.” Given Werner’s intentional discrimination, lack of good faith, and previous
lack of record-keeping for deaf applicants, the injunction serves the public by
requiring Werner to report deaf applicants directly rather than allowing Werner to
wait until a victim of discrimination approaches the EEOC. Especially in light of
the cap on damages, which reduced the jury award by more than 99%, the injunction
might actually deter Werner from future discrimination. In short, the harm to Werner
is outweighed by the public interest in eliminating discrimination and the threat of
irreparable harm to deaf applicants, and we find no abuse of discretion by the district
court on this basis.
B.
As for prejudgment interest, Werner’s only argument on appeal is that the
EEOC waived the issue by failing to raise it before trial. An award of prejudgment
interest is appropriate “when the damage award does not otherwise make the plaintiff
whole.” Smith, 38 F.3d at 1467. This award is authorized by Federal Rule of Civil
Procedure 54(c), which gives the district court broad authority to “grant the relief to
which each party is entitled, even if the party has not demanded that relief in its
pleadings.” Prejudgment interest therefore constitutes “equitable relief,” an award
of which “make[s people] whole for injuries suffered on account of unlawful
employment discrimination” in accordance with the “clear purpose” of Title VII.
Winbush v. Iowa By Glenwood State Hosp., 66 F.3d 1471, 1483 (8th Cir. 1995)
(citation omitted).

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Additionally, an award of prejudgment interest is permissible despite its lack
of inclusion in a pretrial brief because “the finding of liability [at trial] placed the
defendants on notice that they would ultimately face monetary damages,” including
interest. Id. This Court has previously allowed a party to request prejudgment
interest for the first time posttrial because the award is equitable, accounting for
“compensation for the inability to use the money between the time of the
compensable injury and the time that the award is paid.” See Leonard v. Sw. Bell
Corp. Disability Income Plan, 408 F.3d 528, 533 (8th Cir. 2005). Other Circuits also
allow an award of prejudgment interest even if it was not requested in a pretrial brief.
See, e.g., Rathborne Land Co. v. Ascent Energy, Inc., 610 F.3d 249, 262 (5th Cir.
2010) (declining to rule that a “failure to specifically request pre[]judgment
damages . . . pre[]trial . . . bars a judge from awarding them in his final judgment”
because such a ruling “would undermine” Rule 54(c)); RK Co. v. See, 622 F.3d 846,
853 (7th Cir. 2010) (“[A] failure to request prejudgment interest . . . pretrial . . . does
not result in a waiver.”); Rocket Jewelry Box, Inc. v. Quality Int’l Packaging, Ltd.,
90 F. App’x 543, 547 (Fed. Cir. 2004) (“[W]hether or not [the prevailing party] had
specifically requested it, the district court could grant the proper relief, including
prejudgment interest . . . .”). Werner’s argument that the EEOC waived
prejudgment interest by failing to request it in the pretrial brief is therefore without
merit. The district court adequately granted the EEOC the relief to which it was
entitled, even though it “ha[d] not demanded that relief in its pleadings.” See Fed.
R. Civ. P. 54(c). The district court did not abuse its discretion by awarding
prejudgment interest.3
VII.
For the foregoing reasons, we affirm the judgment of the district court.
______________________________
3 We decline to address Werner’s request for an advisory opinion regarding
the jury instructions pertaining to the failure-to-accommodate claim, as Werner does
not seek reversal on this basis.

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