The HONORABLE RICHARD H. BATTEY, Chief Judge, United States

1

District Court for the District of South Dakota, sitting by designation. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-2835

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Royce Doane, *

*

Plaintiff-Appellee, * Appeal from the United States

* District Court for the

v. * District of Nebraska.

*

City of Omaha, *

*

Defendant-Appellant. *

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Submitted: February 10, 1997

 Filed: June 16, 1997 

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Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and 

BATTEY, District Judge. 1

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HANSEN, Circuit Judge.
The Honorable Thomas D. Thalken, United States Magistrate Judge for the

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District of Nebraska, presiding over the case by the consent of the parties. 28 U.S.C.

§ 636(c).

2

Royce Doane, a former Omaha police officer, brought this suit against

the city of Omaha, Nebraska, for discriminating against him on the basis

of his disability, in violation of the Americans with Disabilities Act

(ADA), 42 U.S.C. §§ 12100-213 (1994). A jury found in favor of Doane, and

the city of Omaha appeals the district court's denial of its motion for

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judgment as a matter of law. The city also claims error in the district

court's refusal to use its requested jury instruction and in the remedies

awarded. We affirm.

I.

Royce Doane brought this suit against the city of Omaha, claiming

that the city discriminated against him on account of his disability when

it failed to rehire him as a police officer. Doane had been a police

officer in Omaha from June 30, 1973, until June 2, 1984. Two years into

his employment, in 1975, Doane lost vision in one eye due to glaucoma.

With glasses, his overall vision is corrected to 20/20, though he actually

is seeing out of only one eye. He reported the blindness to his immediate

command officer and took some medical leave for treatment, but he continued

working successfully and competently as a police officer for nine years

after the onset of this condition. During those nine years, Doane

performed all the duties required of a police officer and consistently

attained qualification as an expert in the use of firearms. 

In 1984, Doane was asked to undergo an eye examination, after which

he was advised that his career was over. Doane was given a choice between

resigning with a small pension or applying for a 911 communications job.

Doane took the 911 position and later also worked for a time as a jailor.

Doane made several requests for re-
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employment as a police officer, but each was denied on account of his

blindness in one eye. 

Relevant to this suit, Doane applied for re-employment as an Omaha

police officer on August 12, 1992. The job notice to which Doane replied

listed vision as a special requirement of the job and stated the following:

Vision must be not less than 20/200 using both eyes without

squinting, correctable to 20/20 using both eyes without

squinting. Applicants must also possess normal color

perception and have no evidence of irreversible disease which

will affect the person's sight.

(Appellant's App. at 64.) The city asserted that the "using both eyes"

language meant that an applicant must have binocular vision -- the ability

to see out of each eye. The city employed police officer recruits other

than Doane for its training class, which began on November 30, 1992. On

July 23, 1993, the city personnel director denied Doane's request for reemployment. The city rejected Doane's application on the basis of Chief

of Police Skinner's conclusion that Doane's vision problem was a

significant limitation. Specifically, Chief Skinner thought that Doane's

lack of peripheral vision in one eye would significantly limit his ability

to perform as a police officer. 

Doane filed a discrimination charge with the Nebraska Equal

Opportunity Commission and the United States Equal Employment Opportunity

Commission. The Nebraska Equal Opportunity Commission required the city

to re-employ Doane, but the city personnel director refused to do so.

Consequently, Doane brought this ADA suit, which was tried to a jury.

Doane's medical experts testified that binocular vision is not 
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required to satisfy the vision standard set forth in the 1992 job notice

and that Doane's visual abilities sufficiently satisfy the requirements of

that notice. 

The city made an oral motion for judgment as a matter of law at the

close of the plaintiff's evidence and renewed its motion at the close of

the case. The district court overruled the motions and submitted the case

to the jury. The jury returned a verdict in favor of Doane, awarding

compensatory damages (including neither back nor front pay) in the amount

of $50,000. The district court denied the city's post-trial motion for

judgment as a matter of law or a new trial and awarded Doane $40,000.20 in

back pay and $10,874.77 in back pension benefits. Additionally, the

district court ordered reinstatement by requiring the city to allow Doane

to enter police recruit training. The city appeals. 

II.

We review de novo the district court's denial of a motion for

judgment as a matter of law, using the same standards as applied by the

district court. Varner v. National Super Markets, Inc., 94 F.3d 1209, 1212

(8th Cir. 1996), cert. denied, 117 S. Ct. 946 (1997). We view all facts

and resolve any conflicts in favor of the jury verdict, giving Doane the

benefit of all reasonable inferences. Id. "It is well settled that we

will not reverse a jury's verdict for insufficient evidence unless, after

viewing the evidence in the light most favorable to the verdict, we

conclude that no reasonable juror could have returned a verdict for the

non-moving party." Ryther v. KARE 11, 108 F.3d 832, 
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836 (8th Cir. 1997) (en banc), petition for cert. filed, 65 USLW 3694 (U.S.

Apr. 4, 1997) (No. 96-1571). 

The ADA generally protects "a qualified individual with a disability"

from discrimination on the basis of that disability in matters of job

applications and hiring, among other aspects of employment. 42 U.S.C.

§ 12112(a). To obtain relief under the ADA, a plaintiff must establish

that he is (1) a disabled person within the meaning of the ADA, (2) that

he is qualified to perform the essential functions of his job either with

or without reasonable accommodation, and (3) that he suffered an adverse

employment action because of his disability. See Benson v. Northwest

Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995); Wooten v. Farmland

Foods, 58 F.3d 382, 385 (8th Cir. 1995). 

A. Disabled within the meaning of the ADA

The city contends that in spite of Doane's blindness in one eye, he

is not a disabled person within the meaning of the ADA. The ADA defines

disability as "a physical or mental impairment that substantially limits

one or more of the major life activities of [an] individual," or having "a

record of such an impairment," or when an individual is "regarded as having

such an impairment." 42 U.S.C. § 12102(2). "Major Life Activities means

functions such as caring for oneself, performing manual tasks, walking,

seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R.

§ 1630.2(i) (emphasis added). Factors to consider in determining whether

a disability has substantially limited a major life activity include "the

nature and severity of the impairment," "the duration or expected duration

of the impairment," and "the permanent 
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or long term impact of or resulting from the impairment. 29 C.F.R.

§ 1630.2(j)(2). See Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d

1311, 1319 (8th Cir. 1996). 

The agency's interpretive guidance on the ADA explains that "[t]he

determination of whether an individual has a disability is not necessarily

based on the name or diagnosis of the impairment the person has, but rather

on the effect of that impairment on the life of the individual." 29 C.F.R.

pt. 1630, appendix § 1630.2(j). "[A]n impairment is substantially

limiting if it significantly restricts the duration, manner or condition

under which an individual can perform a particular major life activity as

compared to the average person in the general population's ability to

perform that same major life activity." 29 C.F.R. Pt. 1630, App.

§ 1630.2(j). Additionally, "[t]he determination of whether the individual

is substantially limited in a major life activity must be made on a case

by case basis, without regard to mitigating measures such as medicines, or

assistive or prosthetic devices." Id. See also Harris v. H & W

Contracting Co., 102 F.3d 516, 520-21 (11th Cir. 1996) (holding that the

ADA interpretive guidelines are based on a permissible construction of the

statute); Sicard v. City of Sioux City, 950 F. Supp. 1420, 1428-39 (N.D.

Iowa 1996) (same). 

Doane experiences total permanent blindness in one eye due to

glaucoma. See Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 n.2 (4th

Cir. 1997) (noting that "both glaucoma and blindness . . . can be

disabilities"). He presented evidence that the loss of vision in one eye

constitutes a 25% disability of the visual system and a 24% whole body

impairment, according to the American Medical Association. Doane's medical

experts testified that Doane's blindness in one eye substantially limits

his major life activity of seeing. The evidence demonstrated that Doane

cannot sense depth in 
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the same manner as persons with binocular (two-eyed) vision, and his

peripheral vision is limited due to his impairment.

The city argues that Doane's impairment does not substantially limit

the major life activity of seeing because Doane has learned to adapt and

accommodate himself to his impairment. Doane's corrected vision is 20/20.

His medical experts testified that his brain has learned to work with

environmental clues to develop his own sense of depth perception using only

one eye and that he has learned to compensate for his loss of peripheral

vision by adjusting his head position. His doctor expressed the opinion

that Doane is able to function normally because his brain has learned over

the years to make subconscious adjustments to compensate for the

limitation. 

We conclude that Doane is an individual with a disability within the

meaning of the ADA. His glaucoma caused permanent blindness in one eye

which substantially limits Doane's major life activity of seeing. The

manner in which Doane must sense depth and use peripheral vision is

significantly different from the manner in which an average, binocular

person performs the same visual activity. Doane's brain has mitigated the

effects of his impairment, but our analysis of whether he is disabled does

not include consideration of mitigating measures. His personal,

subconscious adjustments to the impairment do not take him outside of the

protective provisions of the ADA. 

The city urges us to follow the Fifth Circuit's holding that "a

person is not handicapped if his vision can be corrected to 20/200."

Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir. 1993), cert.

denied, 511 U.S. 1011 (1994). Because Doane's 
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vision is correctable to 20/20, the city argues, he is not a person with

a disability within the meaning of the ADA. We decline to apply the Fifth

Circuit's holding in this case. We must consider each situation on a case

by case basis. Doane's vision impairment stems not merely from overall

poor eyesight but from total blindness in one eye due to glaucoma, which

significantly restricts the manner in which Doane performs the major life

activity of seeing. Thus, Doane is a person with a disability entitled to

the ADA's protection.

In this case, even if Doane's glaucoma did not actually substantially

limit Doane's ability to see, our conclusion would be the same. The ADA's

definition of disability includes persons who are perceived as having an

impairment that substantially limits a major life activity. 42 U.S.C.

§ 12102(2)(C). Police Chief Skinner testified that he perceived Doane's

visual problem as a significant limitation and that this was the reason he

recommended rejecting Doane's employment application. (Appellee's App. at

18-19.) Thus, the evidence demonstrates that the city perceived Doane as

having a disability that substantially limited his ability to see. The

city cites cases holding that a plaintiff's major life activity of working

is not substantially limited by an inability to perform a single job. See,

e.g., Wooten, 58 F.3d at 386; Chandler, 2 F.3d at 1391-93; Welsh v. City

of Tulsa, Okla., 977 F.2d 1415, 1417-19 (10th Cir. 1992). We do not

disagree with this statement of law. The principle is simply inapposite

in this case where the major life activity affected is that of seeing, not

working. Likewise, the district court did not err by refusing to give the

city's requested jury instruction, which explained that an impairment

preventing an individual from meeting the requirements of one particular

job does not substantially limit the individual's major life activity of

working.
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B. Qualified for the position

Next, the city argues that Doane was not qualified to perform the

essential functions of the position of a sworn police officer. The city's

expert testified that binocular vision and peripheral vision are very

important in a law enforcement situation and that a person with monocular

(one-eyed) vision would have a lower reaction time, rendering that person

a danger to himself, fellow officers, and the public. All of the medical

experts agree that Doane's peripheral vision is limited. 

As noted above, a plaintiff bears the burden to demonstrate not only

that he is disabled, but also that he is qualified for the job. To be a

"qualified individual with a disability," 42 U.S.C. § 12112(a) (emphasis

added), an individual must satisfy "the requisite skill, experience,

education and other job-related requirements of the employment position,"

and "with or without reasonable accommodation," the individual must be able

to perform "the essential functions of the position." 29 C.F.R.

§ 1630.2(m). 

In this case, Doane made the requisite showing that his disability

does not prevent him from performing the essential functions of the job.

He testified to his specific qualifications for the job; for instance, he

has the necessary educational background, he has a valid motor vehicle

license, he had been a successful police officer for many years, he has

remained physically fit, and his eyesight is correctable to 20/20. While

the medical experts all agreed that Doane's peripheral vision is limited,

the medical experts also testified that Doane has made adjustments that

compensate for his limited peripheral vision. Doane demonstrated that the

city's job description does 
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not specifically require binocular vision and that he had satisfactorily

performed the essential functions of the job in spite of his disability for

nine years before his termination in 1984. A reasonable jury could have

concluded that Doane could perform the essential functions of the job, and

thus Doane sufficiently satisfied his burden to demonstrate that he was

qualified for the job. 

The city also argues that Doane did not fulfill the procedural

requirements of the Omaha Municipal Code when a current employee attempts

to change job positions. The city asserts that because Doane was

attempting to transfer to a position with a higher maximum salary, he was

required to go through an examination process, including a physical and

mental examination and a personal interview, as any applicant seeking an

original appointment. This argument is without merit. The Municipal Code

provides that vacancies may be filled by re-employment as well as original

appointment. (See Appellants' Supp. App. at 46.) Memos from city

officials indicate that Doane's applications to be rehired as a police

officer were treated as applications for re-employment, and thus were not

subject to the procedural requirements of an original appointment. Also,

Doane specifically testified that he was not permitted to try to engage in

any of the testing requirements. We agree with the district court's

assessment: "Due to the discrimination of the city of Omaha, the plaintiff

was never given the chance to complete these standard preconditions of

employment." (Appellant's Adden. at 25.) The jury had sufficient evidence

before it from which it could conclude that Doane was qualified, and any

technical noncompliance with the personnel code does not undermine the

verdict.
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C. Remedies

Following entry of the jury verdict, the district court held an

evidentiary hearing and awarded remedies of backpay and reinstatement. The

city challenges these remedies, arguing that the remedy in this case should

be limited to injunctive relief and should not include reinstatement or

backpay damages. 

The ADA provides that the Title VII remedies apply to any person

alleging discrimination on the basis of a disability. 42 U.S.C.

§ 12117(a). Once a plaintiff proves that an unlawful motive played some

part in the employment decision, see 42 U.S.C. § 2000e-2(m), the plaintiff

is entitled to relief, including compensatory damages, declaratory

judgment, and injunctive relief. Id. § 2000e-5(g)(2)(B); Pedigo v. P.A.M.

Transport, Inc., 60 F.3d 1300, 1301 (8th Cir. 1995). The defendant may

attempt to limit the relief by showing that it would have made the same

decision, even absent consideration of the impermissible factor. If "the

employer proves that it would have made the same decision absent

consideration of the employee's disability, the remedies available are

limited to a declaratory judgment, an injunction that does not include an

order for reinstatement or for back pay, and some attorney's fees and

costs." Pedigo, 60 F.3d at 1301; see 42 U.S.C. § 2000e-5(g)(2)(B)(i) &

(ii). 

Because the city failed to prove that it would have taken the same

action against Doane had it not considered his blindness in one eye, there

is no basis for applying section 2000e-5(g)(2)(B) in this case. A person

who has been discriminated against is entitled to the most complete relief

possible, and there is a strong presumption that persons who have been

discriminated against are entitled to back pay. King v. Staley, 
We were informed at oral argument that Doane had been sworn in as an Omaha 3

police officer two days before. 

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849 F.2d 1143, 1144 (8th Cir. 1988). As always, the goal is to make the

victim whole. See id. (holding that the district court abused its

discretion in failing to award back pay and front pay based on the salary

of the position that the victim of discrimination was denied). The

district court's discretion was not restricted in this case to imposing

injunctive relief. 

In determining whether to award reinstatement, any current inability

to satisfy all bona fide job requirements is a special circumstance that

may render reinstatement inappropriate. Thomlinson v. City of Omaha, 63

F.3d 786, 790 (8th Cir. 1995) (a Rehabilitation Act case); see Wooten, 58

F.3d at 385 n.2 (noting that cases interpreting the Rehabilitation Act of

1973 are instructive in ADA analysis). Because Doane had been out of the

police force for a number of years, the district court did not reinstate

Doane as a sworn, on-duty police officer but ordered the city to allow him

to participate in police recruit training. This provided the city with the

opportunity to train Doane and to assess anew his current fitness for the

job. Additionally, out of an abundance of caution, the district court

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provided the city with an opportunity to present evidence demonstrating

that Doane was not currently fit for the job. The district court found

that the city presented no evidence other than Doane's vision disability

to indicate that he was unfit for the job. 

The city now argues that the district court erred by shifting to it

the burden to demonstrate that Doane was not qualified. We note that the

jury instructions indicate that Doane properly bore the initial burden to

prove that he was a qualified individual 
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with a disability, and the jury found in his favor. That evidentiary

burden concerning liability is separate, however, from the issue of whether

reinstatement is an appropriate remedy. 

The district court shifted the burden on the remedial issue of

whether Doane was qualified for reinstatement, relying on Thomlinson v.

City of Omaha. In Thomlinson, the city of Omaha was found to have

discharged a fire fighter on the basis of discrimination. 63 F.3d at 789.

When considering the propriety of the district court's order of

reinstatement, we stated, "When analyzing whether a former employee is

currently qualified for reinstatement, a presumption exists that the former

employee remains qualified to perform the job. The burden shifts to the

employer to prove the absence of current qualifications." Id. The

district court in the present case applied this presumption to determine

that Doane was entitled to reinstatement. 

The city argues that the Thomlinson presumption does not apply

because this is not a wrongful discharge case. We disagree. The wrongful

refusal to rehire situation of Doane's case is sufficiently analogous to

the wrongful discharge situation of the Thomlinson case to invoke the same

presumption. The record here indicates that Doane had successfully

performed this job in spite of his disability for nine years before his

discharge, and his visual disability was the only reason asserted for his

discharge. Subsequent to his discharge, Doane sought but was denied

reinstatement on several occasions due to his visual disability. Doane's

final attempt at reinstatement eight years after his discharge was his

first opportunity to seek reinstatement under the ADA, and the city offered

no basis for refusing to hire Doane other than his visual disability.

Given these circumstances, we conclude that the district court did not err

by requiring 
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the city in this wrongful refusal to rehire case to demonstrate that Doane

was not qualified for reinstatement, in accordance with the presumption set

forth in Thomlinson. 

The city also argues that the back pay award should be reduced in

light of Doane's alleged failure to mitigate damages. The district court

refused to consider the failure-to-mitigate issue because the city did not

raise the issue at trial. Even if the issue had been raised earlier,

however, the city would not prevail. The city asserts that Doane failed

to mitigate damages because he applied only once for re-employment as a

police officer and he voluntarily demoted himself to a lower paying job at

one point. To the contrary, the record, viewed in the light most favorable

to Doane, indicates that Doane made several requests for re-employment as

a police officer but was denied consideration each time because of his

blindness in one eye. The record also indicates that Doane left the

higher-paying dispatcher job to return to the 911 communications job

because it was very painful for him to be so closely aligned with police

officers yet be denied the opportunity to be one again. Thus, the record

would support a finding that Doane did not fail to mitigate damages. 

For the foregoing reasons, we conclude that the district court did

not abuse its discretion in fashioning an appropriate remedy for the city's

discriminatory refusal to rehire Doane. 

III.

Accordingly, we affirm the judgment of the district court. We also

overrule the city's motion to strike portions of the record. 
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.