## The HONORABLE RICHARD H. BATTEY, Chief Judge, United State s 1 

## District Court for the District of South Dakota, sitting by designation. United States Court of Appeals 

### FOR THE EIGHTH CIRCUIT

_____________ No. 96-2835

_____________ Royce Doane, * * Plaintiff-Appellee, * Appeal from the United States * District Court for the v. * District of Nebraska. * City of Omaha, * * Defendant-Appellant. *

_____________ Submitted: February 10, 1997 Filed: June 16, 1997

_____________ Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and BATTEY, District Judge.

1

_____________ HANSEN, Circuit Judge.

## The H onorable Thomas D. Thalken, United States Magistrate Judge for th e 2 

## 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 a gainst the city of Omaha, Nebraska, for discriminating against him on the basis of his disability, in violation of the Americans with Disabilities Ac t (ADA), 42 U.S.C. §§ 12100-213 (1994). A jury fo und in favor of Doane, and the c ity of Omaha appeals the district court's denial of its motion fo r 2 judgment as a matter of law. The city also claims error in the district court's refusal to us e its requested jury instruction and in the remedies awarded. We affirm.

I.
Royce Doane brought this suit against the city of Omaha, claimin g that the city discrim inated against him on account of his disability when it failed to rehire him as a police officer. Doane had been a polic e 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 continue d wor king successfully and competently as a police officer for nine year s aft er the onset of this condition. During those nine years, Doan e performed all the duties required of a police officer and consistentl y 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 po sition and later also worked for a time as a jailor. Doane made several requests for re-

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emp loyment as a police officer, but each was denied on account of hi s blindness in one eye.

Relevant to this suit, Doane applied for re-employment as an Omah a police officer on Aug ust 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 withou t squi nting, correctable to 20/20 using both eyes withou t sq uinting. Applicants must also possess normal colo r perception and have no evidence of irreversible disease which will affect the person's sight.
(Appellan t's App. at 64.) The city asserted that the "using both eyes " language meant that an applicant must have binoc ular vision -- the ability to see out of each eye. The city employed police officer recruits other thanDoane for its training class, which began on November 30, 1992. On July 23, 1993, the ci ty personnel director denied Doane's request for reemployment. The city rejected Doane's application on the basis of Chief of Pol ice Skinner's conclusion that Doane's vision problem was a significant limitatio n. Specifically, Chief Skinner thought that Doane's lack of peripheral vision in one eye would signi ficantly limit his ability to perform as a police officer. Doane f iled a discrimination charge with the Nebraska Equa l Opportunity Commissio n and the United States Equal Employment Opportunity Commission. The Nebraska Equal Opportunity Commission required the city to re-empl oy Doane, but the city personnel director refused to do so

. Consequent ly, 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 s atisfy 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 moti ons and submitted the case to the ju ry. The jury returned a verdict in favor of Doane, awardin g compensatory damages (including neither back nor front pay) in the amount of $50,000. The district court denied the city's post-trial motion fo r judgment as a matter of law or a new trial and a warded Doane $40,000.20 in back pay and $10,874.77 in back pension benefits. Additionally, th e district court ordere d 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 fo r judgmen t as a matter of law, using the same standards as applied by th e district court. Varner v. National Super Markets, Inc. , 94 F.3d 1209, 121 2 (8thCir. 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 w e will not reverse a ju ry's verdict for insufficient evidence unless, after viewing t he evidence in the light most favorable to the verdict, w e conclude that no reasonable juror could have returned a verdict for th e 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 disab ility" fromdiscr imination on the basis of that disability in matters of jo b applications and hiring, among other aspects of employment. 42 U.S.C

. § 12112(a ). To obtain relief under the ADA, a plaintiff must establis h that he is (1) a disabled person within the meaning of the ADA, (2) that he is qualified to pe rform the essential functions of his job either with
or without reasonable accommodation, and (3) that he suffered an adverse employm ent action because of his disability. See Benson v. Northwes t Airli nes, Inc. , 62 F.3d 1108, 1112 (8th Cir. 1995); Wooten v. Farmlan d 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 disabilityas "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 havin g such an impairment." 42 U.S.C. § 12102(2). "Major Life Activities means functi ons 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 subs tantially limited a major life activity include "the nature and severity of the impairment," "the dur ation or expected duration of the impairment," and "the permanent

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or long t erm 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]h e determination of whether an individual has a dis ability is not necessarily based on the name or diagnosis of the impairment the person has, but rathe r
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 substantiall y limiting if it significantly restricts the duration, manner or condition under which an indivi dual can perform a particular major life activity as compare d to the average person in the general population's ability t o perform that same major life activity." 29 C.F.R. Pt. 1630, App

. § 1630.2(j). Additionally, "[t]he determinationof whether the individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating meas ures 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 permi ssible 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 t o glaucoma. See Martin son v. Kinney Shoe Corp. , 104 F.3d 683, 686 n.2 (4th Cir

. 1997) (noting that "both glaucoma and blindness . . . can b e disabilities"). He p resented evidence that the loss of vision in one eye constitutes a 25% disability of the visual system and a 24% whole bod y impairment, according to the American Medical Association. Doane's medica l 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 hi s peripheral vision is limited due to his impairment.
The city argues that Doane's impairm ent 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 medica l experts testified that his brain has learned to work wit h environmental clues to develop his own sense of depth perception using onl y
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 ye ars to make subconscious adjustments to compensate for th e limitation.

We conclude that Doane is an individ ual with a disability within the meaning o f the ADA. His glaucoma caused permanent blindness in one ey e whichsubstantially limits Doane's major life activity of seeing. Th e
manner in which Doane must sense depth and use peripheral vision i s signif icantlydifferent from the manner in which an average, binocula r 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 in clude consideration of mitigating measures. His personal , subconscious adjustme nts 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 pers onis not handicapped if his vision can be corrected to 20/200. " Chandl er 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 conside r each situation on a case bycase basis. Doane's vision impairment stems not merely from overal l poor eyesight but from total blindness in one eye due to glaucoma, which significantly restric ts the manner in which Doane performs the major life activity of seeing. Thus, Doane is a person wit h a disability entitled to the ADA's protection.
In this case, even if Doane's glaucoma did not actually substan tially limit Doane's ability to see, our conclusion wou ld 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 t hat this was the reason he recommended rejecting Doane's employment applica tion. (Appellee's App. at 18-19.) Thus, the ev idence demonstrates that the city perceived Doane as having a disability that substantially limited his ability to see. Th e city cites cases holding that a plaintiff's majo r 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 no t disagree with this statement of law. The principle is simply inapposite in this case where the major life activity affec ted is that of seeing, not working. Likewise, the district court did not e rr by refusing to give the city's requested jury instruction, which explained that an impairmen t preventing an individual from meeting the requirements of one particular jobdoes not substantially limit the individual's major life activity of working.

### 9 B. Qualified for the position

Next, the city argues that Doane was not qualified to perform th e essential functions of the position of a sworn p olice officer. The city's expert testified that binocular vision and peripheral vision are ver y important in a law en forcement situation and that a person with monocular (one-eyed) vision wou ld 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 th e 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 ad ded), an individual must satisfy "the requisite skill, experience , education and other j ob-related requirements of the employment position," and "with or without reasonable accommodation," the individual must be abl e 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 disabilit y does not prevent him from performing the essential functions of the job. He testified to his s pecific qualifications for the job; for instance, he has the necessary educational background, he has a valid motor vehicl e license, he had been a successful police officer for many years, he ha s remained physically f it, and his eyesight is correctable to 20/20. While the medical experts a ll agreed that Doane's peripheral vision is limited, the medical experts also testified that Doane has made adjustments tha t compensate for his limited peripheral vision. D oane 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 fo r nine years before his termination in 1984. A reasonable jury could have concluded that Doane could perform the essential functions of the job, and thu s Doane sufficiently satisfied his burden to demonstrate that he wa s qualified for the job.

The ci ty also argues that Doane did not fulfill the procedura l requirements of the Omaha Municipal Code when a current employee attempts to chang e job positions. The city asserts that because Doane wa s attempting to transfe r to a position with a higher maximum salary, he was req uired to go through an examination process, including a physical an d 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-empl oyment as well as original app ointment. ( See Appellants' Supp. App. at 46.) Memos from cit y officials indicate that Doane's applications to be rehired as a polic e officer were treated as applications for re-employment, and thus were not subject to the proced ural requirements of an original appointment. Also, Doane specifically testified that he was not per mitted 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 plaintif f
was never given the chance to complete these standard preconditions o f employment." (Appellant's Adden. at 25.) The jury had sufficient evidenc e before it from which it could conclude that Doane was qualified, and any techni cal noncompliance with the personnel code does not undermine th e verdict.

### 11 C. Remedies
Following entry of the jury verdict, the district court held a n evidentiary hearing and awarded remedies of backpay and reinstatement. Th e city challenges these remedies, arguing that the remedy in this case shoul d be limited to injunctive relief and should not include reinstatement o r backpay damages.

The AD A provides that the Title VII remedies apply to any perso n al leging 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, declarator y 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 ma y attempt to limit the relief by showing that it would have made the sam e decision, even absent consideration of the impermissible factor. If "the
em ployer proves that it would have made the same decision absen t
cons ideration of the employee's disability, the remedies available ar e limited to a declarat ory judgment, an injunction that does not include an order for reinstatement or for back pay, and some attorney's fees an d costs." Pedigo , 60 F.3d at 1301; see 42 U.S.C. § 2000e-5(g)(2)(B)(i) & (ii).

Becaus e the city failed to prove that it would have taken the sam e action against Doane had it not considered his b lindness in one eye, there is no basis for apply ing section 2000e-5(g)(2)(B) in this case. A person who has been discriminated against is entitled t o the most complete relief possi ble, and there is a strong presumption that persons who have bee n 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.
12 849 F.2d 1143, 1144 (8th Cir. 1988). As always, the goal is to make the vic timwhole. See id. (holding that the district court abused it s discretion in failingto award back pay and front pay based on the salary of the po sition that the victim of discrimination was denied). Th e dis trict court's discretion was not restricted in this case to imposin g injunctive relief.
In determining whether to award rein statement, any current inability to satisfy all bona fide job requirements is a special circumstance that mayrender reinstatement inappropriate. Thomlinson v. City of Omaha , 63 F.3d 786, 790 (8th Ci r. 1995) (a Rehabilitation Act case); see Wooten , 58 F.3d at 385 n.2 (noti ng 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 ord ered the city to allow him to participate in police recruit training. This provided the city with th e opportunity to train Doane and to assess anew his current fitness for the job. Additionally, out of an abundance of caution, the district cour t 3 provid ed the city with an opportunity to present evidence demonstratin g that Do ane was not currently fit for the job. The district court foun d 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 demonst rate that Doane was not qualified. We note that the jury instructions ind icate that Doane properly bore the initial burden to prove that he was a qualified individual

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wit ha disability, and the jury found in his favor. That evidentiar y burden concerning liability is separate, however, from the issue of whethe r reinstatement is an appropriate remedy.

The di strict court shifted the burden on the remedial issue o f whethe r Doane was qualified for reinstatement, relying on Thomlinson v

. City of Omah a . In Thomlinson , the city of Omaha was found to hav e discharged a fire fighter on the basis of discri mination. 63 F.3d at 789. When c onsidering the propriety of the district court's order o f reinst atement, we stated, "When analyzing whether a former employee i s currently qualified for reinstatement, a presumption exists that the forme r employee remains qualified to perform the job. The burden shifts to the employer to prove the absence of current qualifications." Id. Th e district court in the present case applied this presumption to determine that Doane was entitled to reinstatement. The city argues that the Thomlinsonpresumption does not appl y 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 Thomlinsoncase to invoke the sam e presum ption. The record here indicates that Doane had successfull y performed this job in spite of his disability for nine years before hi s discharge, and his vi sual disability was the only reason asserted for his disc harge. Subsequent to his discharge, Doane sought but was denie d reinstatement on seve ral occasions due to his visual disability. Doane's final attempt at reinstatement eight years after his discharge was hi s first opportunity to seek reinstatement under the ADA, and the city offere d
no basis f or 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 se t forth in Thomlinson

.

The city also argues that the back pay award should be reduced i n light of Doane's alle ged failure to mitigate damages. The district court refused to consider the failure-to-mitigate issu e 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 himsel f to a lower paying job at
one point. To the contrary, the record, viewed in the light most favorabl e to Doane, indicates t hat Doane made several requests for re-employment as
a pol ice officer but was denied consideration each time because of hi s blindn ess in one eye. The record also indicates that Doane left th e higher -paying dispatcher job to return to the 911 communications jo b because it was very painful for him to be so closely aligned with police officers yet be denie d 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 di d not abuse its discretion in fashioning an appropriate remedy for the city' s discriminatory refusal to rehire Doane. III.
According ly, we affirm the judgment of the district court. We also overrule the city's motion to strike portions of the record.

### 15 A true copy.

Attest:

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