                               UNITED STATES COURT OF APPEALS
                                        TENTH CIRCUIT
                                Byron White United States Courthouse
                                         1823 Stout Street
                                      Denver, Colorado 80257
                                          (303) 844-3157
Patrick J. Fisher, Jr.
        Clerk

                                             March 15, 2001


        TO:      ALL RECIPIENTS OF THE ORDER AND JUDGMENT

        RE:      Nos. 98-1150 and 98-1348, Hall v. Claussen
                 2001 WL 219088
                 Filed on March 6, 2001

               On page one of the order and judgment, the case number for the cross-appeal should
        read 98-1348, not 98-1384. A corrected copy of page one is attached.

                                                        Sincerely,
                                                        Patrick Fisher, Clerk of Court

                                                        By:
                                                              Keith Nelson
                                                              Deputy Clerk




        encl.
                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit

                      UNITED STATES COURT OF APPEALS                          MAR 6 2001

                                   TENTH CIRCUIT                         PATRICK FISHER
                                                                                   Clerk


 ROLAND HALL,

      Plaintiff-Appellee/Cross-Appellant,              Nos. 98-1150, 98-1348
 v.
                                                    (D. C. No. 96-WY-1724-WD)
 RIECKE CLAUSSEN, Mesa County                                (D. Colo.)
 Sheriff,

      Defendant-Appellant/Cross-Appellee.


                             ORDER AND JUDGMENT*



Before BRORBY, McWILLIAMS, and HENRY, Circuit Judges.



       Roland Hall filed this action alleging that his former employer, Mesa County,

Colorado Sheriff Riecke Claussen, violated the Americans with Disabilities Act (ADA),

42 U.S.C. §§ 12101-12213, by discriminating against him on the basis of a urological

condition and a psychological disorder (claustrophobia). Mr. Hall asserted that Sheriff

Claussen refused to select him for two positions because of his urological condition.

Then, he alleged, Sheriff Claussen failed to reasonably accommodate the urological

       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
condition and the claustrophobia by refusing to transfer him to a vacant investigator

position and requiring him to work in the county detention facility instead. Finally, Mr.

Hall maintained, Sheriff Claussen terminated his employment on the basis of his

disabilities.

       The district court concluded that Mr. Hall’s claustrophobia was not a disability

covered by the ADA. However, it submitted the claims regarding Mr. Hall’s urological

condition to a jury, which found that Sheriff Claussen had violated the ADA. The jury

also awarded Mr. Hall $85,000 in compensatory damages and $225,000 in damages for

loss of future earnings. The court granted Mr. Hall’s motion for costs, although in an

amount significantly less than he requested.

       On appeal, Sheriff Claussen advances the following arguments: (1) the district

court erred in submitting to the jury the question of whether Mr. Hall’s urological

condition constituted a disability under the ADA; (2) the district court erred in instructing

the jury on Sheriff Claussen’s duty to reasonably accommodate Mr. Hall’s urological

condition; (3) there is insufficient evidence to support the jury finding that Mr. Hall was

disabled under the ADA; (4) there is insufficient evidence to support the jury finding that

Sheriff Claussen failed to reasonably accommodate Mr. Hall by refusing to reassign him

to a vacant position as an investigator; (5) Mr. Hall failed to establish that he was

terminated because of his disability; (6) Sheriff Claussen was prejudiced by the district

 court’s improper admission of several items of evidence; and (7) the district court erred


                                               2
in failing to impose the $100,000 damages cap established by 42 U.S.C. § 1981a(b)(3).

In a cross-appeal, Mr. Hall challenges the district court’s award of a reduced amount of

costs.

         For the reasons set forth below, we conclude that the district court did not err in

instructing the jury and that the evidence is sufficient to support the jury’s findings that

Sheriff Claussen violated the ADA. As to the damages issue, we conclude that cap set

forth in 42 U.S.C. § 1981a(b)(3) does not apply to the $225,000 award to Mr. Hall

because it constitutes front pay. However, we agree with Sheriff Claussen that the

district court erred in submitting the issue of front pay to the jury. We therefore vacate

the $225,000 award and remand the case to the district court for independent

consideration of an award of front pay.

         As to Mr. Hall’s cross-appeal, we conclude that the district court erred in

interpreting the applicable statutes governing expert witness fees in ADA cases.

Therefore, we also remand the case to the district court for further consideration of an

award of those costs. However, as to the other costs requested by Mr. Hall, we affirm the

district court’s decision.




                                     I. BACKGROUND


                                               3
       Mr. Hall worked as a deputy sheriff in Mesa County, Colorado from 1979 through

1986 and from 1991 until 1995. During the latter period, he served as a patrol officer.

In May 1994, he began to experience prostate problems. Urination became frequent

(approximately every thirty to forty five minutes) and painful. After a physician

diagnosed Mr. Hall as suffering from prostatitis and benign prostate hyperplasia, the

Sheriff’s Department placed Mr. Hall on medical leave.

       Mr. Hall remained on medical leave until August 1994. When he returned to

work, the Sheriff’s Department temporarily assigned him to the investigations division.

Mr. Hall introduced testimony indicating that, in spite of his prostate condition, he was

able to perform all the functions of the investigator’s job, including field work and

stakeouts.

       While assigned to the investigations division, Mr. Hall sought several jobs within

the Department. In February 1995, he applied for a patrol sergeant position, and, in

April, he applied for one of three investigator’s positions. Mr. Hall submitted to

examinations and interviews, but Sheriff Claussen selected him for neither job. At trial,

Sheriff Claussen explained that these positions would have constituted promotions from

Mr. Hall’s job as a patrol deputy.

       Mr. Hall then applied for a position in courthouse services, where he would have

been required to guard prisoners during judicial proceedings. Sheriff Claussen also

rejected that application, concluding that, in light of Mr. Hall’s need for frequent access


                                             4
to a restroom, he was not qualified for the job.

       In late April 1995, Mr. Hall’s supervisors informed him that, in August of that

year, he would be assigned to a position in the county’s detention facility. Mr. Hall

objected to the assignment, and, on May 15, 1995, he sent a memorandum to Sheriff

Claussen and other supervisory personnel stating that his urological condition prevented

him from performing the duties of a patrol officer. He added that he could not perform

the duties of position in the detention facility because he suffered from claustrophobia.

Mr. Hall also expressed disappointment over his failure to obtain the positions for which

he had applied and stated that he met the qualifications for each job.

       On June 12, 1995, Mr. Hall sent Sheriff Claussen and his supervisors a second

letter. Again he objected to reassignment to the detention facility, and he requested an

assignment to one of two positions in the investigations division: a position that had

been vacated by Ted Hartman or an investigator’s position that was scheduled to be

created on August 15, 1995.

       Following the receipt of Mr. Hall’s second letter, Department supervisors

discussed with Mr. Hall the possibility of working as a service technician and a records

clerk. Because both positions would have involved reductions in pay, Mr. Hall indicated

that he was not interested. Mr. Hall then received a notice of a vacancy in community

corrections. However, by the time that Mr. Hall received the notice, the stated

application deadline had passed. Moreover, the hiring for the position was done by


                                             5
county personnel outside the Sheriff’s Department.

       Mr. Hall continued to work in the investigations division through the summer.

However, on August 15, 1995, he failed to report to his assigned position in the

detention facility. Sheriff Claussen treated Mr. Hall’s failure to report as a voluntary

resignation of his position.

       In July 1996, Mr. Hall filed the instant action, alleging violations of the ADA and

the Age Discrimination in Employment Act, 29 U.S.C., §§ 621-634. The district court

granted summary judgment to Sheriff Claussen on Mr. Hall’s ADEA claim. On the

ADA claims, the district court concluded that Mr. Hall’s claustrophobia was not a

protected disability under the ADA, but it concluded that the case should proceed to trial

on the theory that Mr. Hall’s urological condition was such a disability.

       Before the jury, Mr. Hall asserted three violations of the ADA. First, he argued

that Sheriff Claussen had discriminated against him on the basis of his urological

condition in refusing to hire him for the patrol sergeant and investigator positions in

February and April 1995. Second, he alleged that Sheriff Claussen had failed to

reasonably accommodate his disability by reassigning him to a vacant position that he

could perform, such as the positions in the investigations division that he requested in his

June 1995 letter. Finally, Mr. Hall maintained that Sheriff Claussen terminated his

employment in August 1995 because of his disability.

       Following the presentation of the evidence, the district court addressed the


                                             6
following special interrogatories to the jury: (1) “Do you find that the plaintiff . . . was

an individual with a disability as defined in the court’s instructions?” (2) “Do you find

that the plaintiff . . . was ‘otherwise qualified,’ that is, with or without reasonable

accommodation he was able to perform the essential functions of the position that he

held or desired?” (3) “Do you find that plaintiff[’s] . . . disability was a motivating factor

in the Defendant’s decision to terminate his employment, or in Defendant’s decision to

deny him a transfer or promotion” (4) “Do you find that Plaintiff . . . sustained damages

as a direct result of Sheriff Claussen’s discrimination?” Aplt’s App. vol. I, at 121. The

jury answered each of these questions affirmatively.

       The special interrogatories then addressed Sheriff Claussen’s efforts to

accommodate Mr. Hall’s disability. They asked whether the sheriff had “attempt[ed] in

good faith to accommodate the disability of the plaintiff” and whether such

accommodation “would have caused the Defendant undue hardship.” Id. The jury

answered both of these interrogatories negatively. It awarded $225,000 “as damages for

future earnings” and $85,000 as “compensatory damages.” Id.

       In a post-verdict motion, Mr. Hall sought an award of costs.1 The district court

granted the motion, but for a substantially reduced amount.




       1
         Mr. Hall also sought and obtained an award of attorneys’ fees. However, that
award is not at issue in this appeal.

                                               7
                                     II. DISCUSSION

       On appeal, Sheriff Claussen challenges the district court’s disposition of each of

Mr. Hall’s ADA claims on a variety of grounds. He argues that the district court erred in

submitting certain issues regarding Mr. Hall’s alleged disability to the jury and that it

erroneously instructed the jury on certain aspects of the ADA claims. He further

contends that in light of deficiencies in the evidence presented to the jury—particularly

as to Mr. Hall’s claim that Sheriff Claussen violated the ADA by failing to reassign him

to a vacant position—the district court erred in denying his motion for judgment as a

matter of law. Sheriff Claussen also argues that the district court erred in admitting

certain categories of evidence and that the prejudicial effect of this evidence warrants a

new trial. Because Sheriff Claussen’s arguments address the requirements for

establishing an ADA violation, we begin with an overview of the ADA provisions at

issue. Then we turn to the specific arguments raised by Sheriff Claussen in this appeal.




                         A. Elements of Mr. Hall’s ADA Claims

       The ADA protects employees from discrimination on the basis of disability. See

42 U.S.C. § 12112(a). It defines a disability as “a physical or mental impairment that

substantially limits one or more of [an individual’s] major life activities”; “a record of

such impairment”; or “being regarded as having such an impairment.” 42 U.S.C. §


                                              8
12102(2).

       In light of this definition, the determination of whether an individual is protected

by the ADA generally involves three inquiries: (1) determining whether the individual

has an impairment; (2) identifying the activities the individual alleges to be affected by

the impairment and determining whether they constitute “ major life activities” under the

ADA; and (3) determining whether the impairment substantially limits the major life

activity. Doyal v. Oklahoma Heart, Inc., 213 F.3d 492, 495 (10th Cir. 2000) (citing

Bragdon v. Abbott, 524 U.S. 624 (1998)).

       If these inquiries establish that an individual has a protected disability, then he

may prove an ADA discrimination claim by establishing two additional elements. First,

he must demonstrate that he is qualified, with or without reasonable accommodation, to

perform the essential functions of the job he held or desired. Second, he must prove that

the employer discriminated against him on the basis of his disability. Taylor v. Pepsi-

Cola Co., 196 F.3d 1106, 1109 (10th Cir. 1999).

       In a recent en banc decision, this circuit has addressed the issue of reasonable

accommodation to a job that an employee desires. See Smith v. Midland Brake, Inc., 180

F.3d 1154 (10th Cir. 1999) (en banc). There, we held that, under the ADA, “a ‘qualified

individual with a disability’ includes a disabled employee who desires and can perform

with or without reasonable accommodation an available reassignment job within the

company, though unable to perform his existing job.” Smith, 180 F.3d at 1161.


                                              9
       In light of our holding in Smith, an employer’s refusal to reassign an employee to

a vacant, funded position (that is within the company and for which he is qualified) may

engender an ADA claim for failure to reasonably accommodate him. In order to prevail

on such a claim, the employee must establish that: (1) he has a disability, as defined by

the ADA; (2) accommodation within the employee’s existing job cannot reasonably be

accomplished; (3) the employee requested accommodation by reassignment, which the

employee may identify or which the employee may request the employer to identify

through an interactive process; (4) the employee was qualified to perform the vacant job;

and (5) the employee suffered injury. Taylor, 196 F.3d at 1110; Smith, 180 F.3d at 1179.

       It should be noted, however, that there are significant limitations upon an

employer’s duty to reasonably accommodate a disabled employee through reassignment.

As we explained in Smith, an employee must ordinarily initiate an interactive process

with the employer by providing notice of his disability and any resulting limitations and

expressing a desire for reassignment. Then, “both parties have an obligation to proceed

in a reasonably interactive manner to determine whether the employee would be

qualified, with or without reasonable accommodations, for another job within the

company and, if so, to identify an appropriate reassignment opportunity if any is

reasonably available.” Smith, 180 F.3d at 1172 (emphasis added).

       Moreover, the duty to reassign is limited to existing jobs within the company; “[i]t

is not reasonable to require an employer to create a new job for the purpose of


                                            10
reassigning an employee to that job.” Id. at 1174. Also, the job in question must be

vacant, although in this context “vacant” means not only positions that are currently

vacant but also those positions that the employer reasonably expects will become vacant

in the fairly immediate future. Id. at 1175. The disabled employee’s right to

reassignment does not entitle him to a promotion, and the position to which the employee

is reassigned may be chosen by the employer rather than the employee. See id. at 1177

(“The ADA does not entitle an employee to a free-ranging or perpetual right to a new

position within the company.”). Thus, if the employee rejects an offer of reassignment

that is consistent with an employer’s duties of reasonable accommodation under the

ADA, the employer is not required to offer additional reassignment.

       Finally, the employer is not required to violate important business policies that

would make it unreasonable to reassign an employee to a particular job. In Smith, we

cited “a well-entrenched seniority system” as an example of such a policy. Id. at 1176.




        B. Submission to the Jury of Questions Concerning Mr. Hall’s Disability

       Sheriff Claussen contends that the district court committed reversible error by

instructing the jury on one part of the ADA definition of a “disability”—what constitutes

a major life activity. According to Sheriff Claussen, this issue is a legal one that should

have been determined by the court rather than the jury. Whether an issue is one of law


                                             11
for the court to determine is itself a question of law that we consider de novo. United

States v. Jackson, 213 F.3d 1269, 1285 (10th Cir. 2000).

       Sheriff Claussen’s argument is based on our decision in Poindexter v. Atchison,

Topeka & Santa Fe Railway Co., 168 F.3d 1228 (l0th Cir.1999). There, the plaintiff

alleged that panic attacks that prevented her from traveling from her home to her

workplace constituted an ADA-protected disability. We reversed a jury verdict for the

plaintiff because the trial court “neither found nor precisely articulated an impairment

and major life activity that the impairment may have affected.” Poindexter, 168 F.3d at

1231. Thus, the jury had no guidance as to what constituted major life activities, and we

were unable to discern on appeal what possible major life activities had led the jury to

find for the plaintiff. We based our ruling on the Supreme Court’s decision in Bragdon

v. Abbott, 524 U.S. 624 (1998). See Poindexter, 168 F.3d at 1230 (“Thus, the Court in

Bragdon makes clear that whether a claimed affliction constitutes an impairment under

the ADA and whether the identified endeavor constitutes a major life activity are

determinations of law for the court to decide.”).

       The instant case is distinguishable from Poindexter in important respects. Here,

the court’s instructions provided the jury with specific examples of major life activities.

See Aplt’s App. vol. I, at 101 (defining disability as “a physical or mental impairment

that substantially limits one of the major life activities of life, such as caring for oneself,

performing manual tasks, walking, seeing, hearing speaking, breathing, learning, or


                                               12
working”) (emphasis added). These examples are taken from ADA and Rehabilitation

Act regulations, see 45 C.F.R. § 84.3(j)(2)(ii); 28 C.F.R. § 41.31(b)(2), and Sheriff

Claussen does not argue that any of the specific examples are improper or misleading

descriptions of major life activities under the ADA. Moreover, at trial Mr. Hall offered

evidence that his urological condition substantially limited one of the major life activities

listed in the instructions—working. He testified as to his difficulties in performing the

responsibilities of a patrol officer and contended that his condition would also limit the

performance of his duties in the detention facility.

       Thus, unlike the jury in Poindexter, the jury here received specific guidance “as to

which endeavors it could properly consider as major activities in reaching its decision.”

Poindexter, 168 F.3d at 1231. Moreover, in contrast to Poindexter, the record here is not

ambiguous as to the major life activity alleged to be limited by the plaintiff’s disability.

See id. at 1232 (noting that, “on the record before us, we cannot ascertain whether [the

plaintiff] sufficiently presented the legal issues during the trial to the district court for the

required analysis”). Because the district court properly informed the jury that working

was a major life activity and because the trial record supports the inference that the jury

relied on Mr. Hall’s limitations in performing that activity in finding that he was

disabled, we discern no error in the district court’s approach.




                                               13
                       C. Jury Instruction on Preferential Treatment

       Sheriff Claussen argues that the district court erred in refusing to give a proposed

jury instruction stating that the ADA does not require employers to give disabled

employees preferential treatment in hiring and promotion decisions. We review the

district court’s failure to give a particular instruction for an abuse of discretion. See

United States v. Voss, 82 F.3d 1521, 1529 (10th Cir.1996). In determining whether the

court properly exercised that discretion, we examine the instructions as a whole, asking

whether they sufficiently cover the issues in the case and focus on the facts presented by

the evidence. Id.

       Our review of the instructions indicates that, although the district court did not

give the instruction proposed by Sheriff Claussen, it informed the jury of the correct legal

principles concerning Mr. Hall’s ADA claims. The instructions state that an employer is

required to reasonably accommodate a disabled employee, that reasonable

accommodation includes reassignment to a vacant position, and that an employer is not

required to provide a reasonable accommodation that would impose an undue hardship

on the employer. Aplt’s App. vol. I, at 109. The instructions further state that the

accommodation provided need not be “the ‘best accommodation possible,’ so long as it

is sufficient to meet the job related needs of the individual being accommodated.” Id.

They also inform the jury that “[a]n employer is not required to promote a disabled

employee as an accommodation, nor must an employer reassign the employee to an


                                              14
occupied position nor must the employer create a new position to accommodate the

disabled worker.” Id. at 112. Accordingly, the court’s instructions comport with the

applicable principles regarding an employer’s duty to reassign a disabled employee to a

vacant position. See Smith, 180 F.3d at 1170-78 (discussing the scope of an employer’s

duty to reassign and concluding that an employer is not required to create a new position

or promote the disabled employee in order to reasonably accommodate him).

       Moreover, in light of our decision in Smith, the instruction proposed by Sheriff

Claussen is not an accurate statement of the law. As we noted in Smith, there are

instances in which a disabled employee who is qualified for a vacant position is entitled

to reassignment even though he may not be able to establish that he is the most qualified

person whom the employer could have selected. See Smith, 180 F.3d at 1167 (noting

that, “[i]f a disabled employee had only a right to require the employer to consider his

application for reassignment but had no right to reassignment itself . . . then this promise

within the ADA would be empty”). Sheriff Claussen’s proposed instruction does not

adequately inform the jury of this principle.

       In light of court’s proper explanation of the scope of the duty to reassign, we are

also not persuaded by Sheriff Claussen’s contention that a statement in Mr. Hall’s

attorney’s closing argument, combined with the court’s refusal to give the proposed

instruction, unfairly prejudiced his defense. Sheriff Claussen cites the attorney’s

statement that “the test is not whether [Mr. Hall] was the most qualified but whether he


                                                15
was qualified. He wasn’t the most qualified but that’s not what the law requires.” Aplt’s

Br. at 48-49 (quoting Aplt’s App. vol. II, at 498-99). However, after Sheriff Claussen

objected, the court informed the jury that it should apply the law as stated in the jury

instructions rather than as stated by the lawyers. Because those jury instructions, taken as

a whole, properly explained the scope of an employer’s duties to a disabled employee, we

conclude that the district court did not abuse its discretion in failing to give the requested

instruction.



               D. Evidence that Mr. Hall was a qualified person with a disability

       Sheriff Claussen contends that the district court erred in denying his motion for

judgment as a matter of law on the grounds that Mr. Hall failed to introduce sufficient

evidence to demonstrate that he was a “qualified person with a disability” under the

ADA. He argues that Mr. Hall’s evidence was deficient in two respects: (1) he failed to

demonstrate that he was substantially impaired in a major life activity; and (2) he failed

to demonstrate that he was qualified to perform the essential functions of his job as a

patrol officer. Here, we engage in de novo review, applying the same standards as the

district court pursuant to Fed. R. Civ. P. 50. Judgment as a matter of law is appropriate

“only if the evidence points but one way and is susceptible to no reasonable inferences

which may support the opposing party’s position.” Finley v. United States, 82 F.3d 966,

968 (10th Cir.1997) (quotation marks and citation omitted). We construe the record in


                                              16
the light most favorable to Mr. Hall, the nonmoving party. See id.



1. Impairment of major life activity (working).

       The first of these challenges—to Mr. Hall’s evidence that he suffered an

impairment of a major life activity—is based upon the principle that “‘[t]he inability to

perform a single, particular job does not constitute a substantial limitation in the major

life activity of working.’” Sutton v. United Air Lines, Inc., 130 F.3d 893, 904 (10th

Cir.1997) (quoting 29 C.F.R. § 1630.2(j)(3)(i)). Instead, “in order [t]o demonstrate that

an impairment ‘substantially limits’ the major life activity of working, an individual must

show significant[ ] restrict[ion] in the ability to perform either a class of jobs or a broad

range of jobs in various classes as compared to the average person having comparable

training, skills and abilities.” Bolton v. Scrivner, Inc., 36 F.3d 939, 942-43 (10th

Cir.1994) (quoting 29 C.F.R. § 1630.2(j)(3)(i)).

       EEOC regulations provide definitions of the relevant terms. They state that a

“class of jobs” includes “[t]he job from which the individual has been disqualified

because of an impairment, and the number and types of jobs utilizing similar training,

knowledge, skills or abilities.” 29 C.F.R. § 1630.2(j)(3)(ii)(B). A broad range of jobs

includes “[t]he job from which the individual has been disqualified because of an

impairment, and the number and types of other jobs not utilizing similar training,

knowledge, skills or abilities.” 29 C.F.R. § 1630.2(j)(3)(ii)(C); see also Bolton,


                                              17
36 F.3d at 942 (discussing definitions).

       The regulations also list three factors that “should be considered” in determining

whether an impairment substantially limits a major life activity and three factors that

“may be considered” in making that determination. The three factors that should be

considered are: “[t]he nature and severity of the impairment”; (ii) “[t]he duration or

expected duration of the impairment”; and (iii) “[t]he permanent or long term impact, or

the expected permanent or long term impact of or resulting from the impairment.” 29

C.F.R. § 1630.2(j)(2). The three additional factors that “may be considered” are: (1)

“[t]he geographical area to which the individual has reasonable access”; (2) “[t]he job

from which the individual has been disqualified because of an impairment, and the

number and types of jobs utilizing similar training, knowledge, skills or abilities, within

that geographical area, from which the individual is also disqualified because of the

impairment”; and (3) “[t]he job from which the individual has been disqualified because

of an impairment, and the number and types of other jobs not utilizing similar training,

knowledge, skills or abilities, within that geographical area, from which the individual is

also disqualified because of the impairment.” 29 C.F.R. § 1630.2(j)(3)(ii).

       Here, Sheriff Claussen himself argued that Mr. Hall’s disability significantly

restricted his ability to perform several jobs in law enforcement. In particular, Sheriff

Claussen contended that Mr. Hall’s disability rendered him unqualified for the position

of patrol officer and presented evidence in support of that contention. When Mr. Hall


                                             18
inquired about a position in courthouse services, Sheriff Claussen informed him that his

need to make frequent visits to the bathroom disqualified him from consideration for that

position. Additionally, Sheriff Claussen contended that Mr. Hall could not perform the

regular duties required of an investigator, although Mr. Hall did offer evidence to rebut

that contention. According to a May 18, 1995 memorandum from Captain Gardner to

Mr. Hall, the Sheriff’s Department’s view was that Mr. Hall “cannot be placed in any

position of employment where [he] [did] not have immediate access to toilet facilities.”

Aple’s App. vol. II, at 381.

       Mr. Hall also presented evidence to the jury regarding the severity, duration, and

impact of his impairment. In June 1994, the physician who examined him concluded

that he was suffering from chronic prostatitis that had been aggravated by the stress and

activity level involved in a patrol deputy’s job. That physician recommended long-term

antibiotic therapy and reduced physical activity. Over a year later, a second physician

examined Mr. Hall and concluded that he had “a urological problem that [was]

responsible for him needing to void very frequently and it comes on rather

precipitously.” Id. at 392. Accordingly, this physician concluded that “there [was] a

substantial need to have . . . immediate access to a restroom facility.” Id. The same

physician examined Mr. Hall during the following month. He reported to the Sheriff’s

Department that Mr. Hall continued to suffer from “rather precipitous urinary urgency

over which he has no control.” Id. at 394. He characterized Mr. Hall’s problems as


                                            19
“very legitimate and very unusual.” Id.

       Viewing the record in the light most favorable to Mr. Hall, we conclude that the

evidence is sufficient to support his contention that his urological condition substantially

impaired the major life activity of working, as that term is defined under the ADA.

Based on Sheriff Claussen’s own arguments, a jury could have reasonably concluded that

there was a broad range of jobs in law enforcement that could not be performed

adequately if one required frequent and immediate access to a bathroom, as Mr. Hall did.

Thus, the district court properly denied Sheriff Claussen’s motion for judgment as a

matter of law on this basis.



2. Ability to perform patrol officer duties

       Sheriff Claussen also contends that Mr. Hall failed to establish that he was

capable of performing the duties of a patrol officer. As a result, he contends, the jury

could not have reasonably inferred that he was “a qualified person with a disability”

under 42 U.S.C. § 12111(8).

       Sheriff Claussen advanced this argument prior to the issuance of our en banc

opinion in Smith, and his position is foreclosed by our ruling there. See Smith, 180 F.3d

at 1170-78. Following Smith, an employee may establish that he is a qualified

individual with a disability if he is qualified to perform “with or without reasonable

accommodation an available reassignment job within the company, though unable to


                                              20
perform his or her existing job.” Id. at 1161. Thus, a jury could infer that Mr. Hall was

“a qualified individual with a disability” not only if he was qualified to perform the

patrol officer position in which he had served in the past but also if he was qualified to

perform a vacant position to which he requested reassignment. See id. Here, Mr. Hall

requested reassignment to an investigator’s position.

       As the district court noted in denying Sheriff Claussen’s motion for judgment as a

matter of law, the evidence was disputed as to whether Mr. Hall could adequately

perform the investigator’s job. However, a reasonable jury could have accepted Mr.

Hall’s evidence on this point, finding him to be a qualified individual with a disability

because he could perform an investigator’s job but not a patrol officer’s. Accordingly,

the district court properly rejected Sheriff Claussen’s argument that Mr. Hall was not a

qualified individual with a disability.2



                          E. Reasonable Accommodation Claim

       Sheriff Claussen challenges the district court’s disposition of Mr. Hall’s

reasonable accommodation claim on two grounds. First, he contends that both the patrol

sergeant and investigator positions would have constituted promotions for Mr. Hall



       2
        As discussed below, there were also factual disputes about whether there was an
opening in the investigations division and whether such a position would have constituted
a promotion for Mr. Hall. However, a reasonable jury could have accepted Mr. Hall’s
evidence on both of those points.

                                             21
(from his prior job as a patrol officer), and that, as a result, the Sheriff’s Department was

not required to reasonably accommodate him by promoting him to one of those positions.

Second, Sheriff Claussen contends that Mr. Hall unreasonably refused reassignment to a

number of positions —as an officer in the detention facility, a service technician in the

records division, a clerk in the records department, and as a community corrections

officer. In light of Mr. Hall’s refusal of these positions, Sheriff Claussen maintains, Mr.

Hall is foreclosed from asserting a failure-to-reassign claim under the ADA. Because

Sheriff Claussen raised these issues in a motion for judgment as a matter of law, we

engage in de novo review of the court’s decision, applying the same standards under Fed.

R. Civ. P. 50. See Finley, 82 F.3d at 968. Sheriff Claussen’s arguments require us to

apply the principles regarding ADA failure-to-reassign claims that we set forth in Smith,

180 F.3d at 1160-80.

       Pursuant to Smith, we note that it was not until May 1995, at the earliest, that Mr.

Hall’s complaints could have been reasonably interpreted as a request for reassignment

as a reasonable accommodation under the ADA. Prior to that time, he had notified the

Sheriff’s Department of his urological condition, and the Department had responded by

placing him on a temporary light duty assignment in the investigations division.

However, Mr. Hall had not informed the Department that he was requesting permanent

reassignment because he could no longer perform the duties of the patrol officer’s job.

Thus, when Mr. Hall applied for the patrol sergeant and investigator positions in


                                             22
February and April 1995, the Department properly viewed his applications as requests to

be hired for other jobs but not as requests to be reasonably accommodated by

reassignment to a vacant position, as required by the ADA. Although Mr. Hall was

certainly entitled to challenge the Department’s failure to select Mr. Hall for either of

these positions—by arguing that the Department did not select him because of his

disability— these decisions are not implicated in Mr. Hall’s failure-to-reassign claim.

       Instead, the failure-to-reassign claim implicates the Sheriff Department’s actions

after Mr. Hall requested reassignment. We therefore assess Sheriff Claussen’s challenges

to the district court’s denial of his motion for judgment as a matter of law on his failure-

to-reassign claim by considering the evidence presented regarding the period from May

1995 until the termination of his employment in August 1995.



1. Positions Constituting Promotions

       In Smith, we concluded that, in satisfying its duty to reasonably accommodate a

disabled employee through reassignment, an employer is not required to consider

positions that are promotions. 180 F.3d at 1176-77. Here, Sheriff Claussen contends

that this limitation on the duty to offer reassignment is applicable because the

investigator position that Mr. Hall sought in May 1995 constituted a promotion.

       From the record provided to us by counsel, the evidence on this point appears

conflicting. On the one hand, Sheriff Claussen testified on direct examination that the


                                             23
position of criminal investigator constituted a promotion from patrol deputy. See Aplt’s

App. vol. II, at 454-455. However, on cross examination, Sheriff Claussen explained

that there were different kinds of investigators: “core investigators” (who did receive

higher pay than patrol officers) and “rotational positions,” filled by patrol officers who

rotated through the investigations division and did not receive higher pay. See Aple’s

App. vol. II, at 320. Moreover, as to four positions in the investigations division that the

Department filled in 1995, Sheriff Claussen stated that he did not believe that they were

“core positions.” Id. at 320-21. He also stated that the investigator positions for which

Mr. Hall applied paid the same as the position in the detention facility. See id. at 326.

       The evidence also appears conflicting as to whether such a “rotational position”

was actually available after Mr. Hall sought reassignment in May 1995. Under Smith,

the vacant positions to which an employer must consider reassignment include “not only

positions that are at the moment vacant but also . . . positions that the employer

reasonably anticipates will become vacant in the fairly immediate future.” Smith, 180

F.3d at 1175. As to this issue, Sheriff Claussen’s testimony on direct examination

indicates that, at the time of Mr. Hall’s request for reassignment, the three investigator

positions for which Mr. Hall had applied in April 1995 had already been filled.

Moreover, Sheriff Claussen points to testimony that a fourth investigator position (one

held by Ted Hartman) did not become available until September 1995, when he

terminated Mr. Hartman’s employment. See Aplt’s Reply Br. at 12. However, Mr. Hall


                                             24
refers to testimony on cross-examination in which Sheriff Claussen appears to

acknowledge that there was a “rotational position” that was filled around August 1995.

See Aple’s App. vol. II, at 320. Moreover, testimony from Captain Gardner on cross-

examination indicated that there was yet another opening in 1995 for an investigator in

the narcotics unit. See id. at 348-49.

       Viewing this evidence in the light most favorable to Mr. Hall, a reasonable jury

could conclude that, after Mr. Hall’s May 1995 request, there was a position in the

investigations division to which Mr. Hall could have been reassigned without being

promoted. Thus, the district court did not err in denying Sheriff Claussen’s motion for

judgment as a matter of law on that issue.




2. Refusal of Reassignment Offers

       Sheriff Claussen also invokes Mr. Hall’s refusal of the offers of reassignment to

positions as a service technician, records clerk, community corrections officer, and

detentions officer. Because Mr. Hall either did not express an interest in these positions

or, in the case of the detentions position, refused to report to the job, Sheriff Claussen

maintains that he cannot now pursue a claim for breach of the duty to reasonably

accommodate his disability.

       Under Smith, an employer must first consider lateral moves to positions that are


                                             25
regarded as equivalent. Smith, 180 F.3d at 1177. Only if there are no such positions

available may an employer consider positions that constitute a demotion. Moreover, the

duty to reassign under the ADA is limited to jobs “within the company.” Id. at 1174

(emphasis added). Those limitations on an employer’s duty to reassign foreclose Sheriff

Claussen’s challenges based on the first three positions. In particular, it is

uncontroverted that reassigning Mr. Hall to the service technician and records clerk jobs

would have required him to have accepted reductions in pay. Thus, if a lateral position

was available, Sheriff Claussen could not have satisfied his duty to reassign by offering

Mr. Hall a position involving a reduction in pay. As to the community corrections

position, it is uncontroverted that the hiring for that position was done outside the

Sheriff’s Department. Thus, informing Mr. Hall of a position available outside the

Department was also insufficient to satisfy its duty to reasonably accommodate him

through reassignment.3

       That leaves the position in the detentions facility. As to that position, Sheriff

Claussen argues that, because the district court ruled that Mr. Hall’s claustrophobia did

not constitute a disability under the ADA, the Department was not required to reasonably

accommodate it. Thus, according to Sheriff Claussen, when Mr. Hall refused to report to

the detentions facility because of his claustrophobia, the Department’s duty to reasonably




      Mr. Hall also testified that the Department did not notify him of the vacancy in
       3

community corrections until after the posted deadline had passed.

                                             26
accommodate him ended. See Smith, 180 F.3d at 1177 (stating that once an employer

has offered a reassignment that comports with the ADA, “its duties have been

discharged”).4

       Sheriff Claussen’s argument requires us to consider the evidence presented to the

jury concerning whether he acted reasonably under the circumstances. “Everything that

an employer must do in terms of a reassignment is modified by the adjective

[‘]reasonable[’], just as that term modifies any other accommodation required by the

employer under the ADA.” Id. at 1171. In assessing a claim for breach of the duty to

reassign, the question is what is reasonable under particular circumstances. Id. “What is

‘reasonable’ . . . has a heavy factual component.” Id. at 1178.

       In the context of alleged breaches of an employer’s duty to reassign, several

circuits have concluded that the nature of the vacant position offered to the disabled

employee may raise fact questions about the reasonableness of the employer’s offer. For

example, in Rehling v. City of Chicago, 207 F.3d 1009, 1014-15 (7th Cir. 2000), the

court concluded that, even though a disabled police officer was not entitled to

reassignment to a particular division, the employer’s failure to honor the request for a

particular reassignment could be relevant to the determination of whether the employer

had acted reasonably. Similarly, in Norville v. Staten Island University Hospital, 196


       4
         As noted above, the district court ruled that Mr. Hall’s claustrophobia did not
constitute a disability under the ADA. Mr. Hall has not challenged that ruling, and we
therefore accept it for purposes of this appeal.

                                             27
F.3d 89, 98-101 (2d Cir. 1999), the court concluded that there were factual disputes as to

whether the positions offered by the employer were not “comparable” because they

involved either a significant cut in salary or benefits or a significant loss of seniority.

The Second Circuit’s definition of a position that would not be “comparable” is worth

noting: “a position that would involve a significant diminution in salary, benefits,

seniority or other advantages that she possessed in her former job.” Id. at 99 (emphasis

added).

       The parties have not identified, nor have we found, any decisions that address the

particular question that confronts us here: whether a disorder such as Mr. Hall’s

claustrophobia, one that the court has ruled is not a disability protected by the ADA, may

nevertheless be relevant, in certain limited circumstances, in determining whether an

employer has acted reasonably in satisfying its duty to offer reassignment. In our view,

the decisions of the Seventh and Second Circuits in Rehling and Norville, as well as our

analysis in Smith, suggest that such a disorder may be relevant when: (1) an employee

has a disability as defined by the ADA and accommodation within his existing job cannot

be reasonably accomplished; (2) the employee has another disorder that is not protected

by the ADA but that nevertheless renders him unqualified for certain vacant positions

within the company; (3) the employee requests reassignment; (4) the employer has more

than one vacant position; and (5) rather than offering reassignment to a vacant position

for which the employee is qualified, the employer only offers reassignment to a position


                                              28
that the employee is not qualified to perform because of his unprotected disorder. In that

limited situation, an employer’s refusal to offer reassignment to a vacant position for

which the disabled employee is qualified may raise a factual question as to whether the

employer’s conduct was reasonable.

       Here, there is evidence in the record to support Mr. Hall’s contention that he

suffered from claustrophobia and that this disorder, if untreated, rendered him

unqualified for the job in the detention facility. In particular, on June 1, 1995, Mr. Hall’s

physician wrote a letter to the Department stating that “[h]istorically, [Mr. Hall] has had

significant difficulties working in the jail environment because of a rather marked

claustrophobia” and requesting reconsideration of the proposed reassignment. Aple. App

vol. II, at 374. Moreover, at trial Mr. Hall offered expert testimony from a psychiatrist

who had evaluated him. The psychiatrist stated that Mr. Hall suffered from a moderate to

severe type of claustrophobia involving a fear of closed spaces without ready access to

escape. He reported that in such situations, Mr. Hall experienced rapid breathing and a

rapid heart rate and that these symptoms had appeared in situations such as going to

movies and attending his children’s plays. According to the psychiatrist, Mr. Hall’s

claustrophobia could be treated with an exposure-based method, one in which there was

a gradual exposure to the feared situation until the patient could master it. However, one

could not “just throw a person into the most feared situation and expect the person to

function competently in that circumstance.” Aple’s App. vol. I, at 154. Thus, the failure


                                             29
to report to a job such as the one in the detentions facility was consistent with the

psychiatrist’s diagnosis of Mr. Hall.

       Significantly, Sheriff Claussen does not challenge the psychiatrist’s conclusion

that Mr. Hall could not competently perform the duties of the detentions facility position

if he was “just throw[n] into [it].” See id. Moreover, there is evidence in that record

indicating that the Department followed such a course of action: requiring Mr. Hall to

report to the detentions facility in August 1995 and immediately terminating his

employment when he did not appear. This evidence, combined with the evidence

indicating that there was a vacant position in the investigations division that did not

trigger Mr. Hall’s claustrophobia and that Sheriff Claussen did not offer to Mr. Hall, was

sufficient for the jury to conclude that Sheriff Claussen did not reasonably accommodate

Mr. Hall in the manner required by the ADA. Therefore, the district court properly

denied Sheriff Claussen’s motion for judgment as a matter of law on this issue.



                 F. Evidence of Discrimination in Termination Decision

       Sheriff Claussen argues that the district court erred in denying his motion for

judgment as a matter of law because Mr. Hall offered insufficient evidence for a

reasonable jury to conclude that he was terminated because of his disability. He notes

that, prior to trial, the district court granted summary judgment on Mr. Hall’s age

discrimination claim on that basis, concluding that Sheriff Claussen had met his burden


                                             30
of advancing a legitimate basis for the termination of his employment and that Mr. Hall

had failed to offer evidence that the real reason for his termination was his age.

       Under the ADA, in order to establish a prima facie case of discrimination in the

termination of employment a plaintiff must show that: (1) he is a disabled person under

the ADA; (2) he is qualified, with or without reasonable accommodation, to perform the

essential functions of the job; and (3) the employer terminated him because of his

disability. White v. York Int’l Corp., 45 F.3d 357, 360-61 (10th Cir.1995). If an ADA

plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a

legitimate, nondiscriminatory reason for its action. See Hardy v. S.F. Phosphates Ltd.,

185 F.3d 1076, 1079 (10th Cir. 1999). If it does so, the burden returns to the plaintiff to

present evidence that the proffered reason is not worthy of belief. See id. at 1079-80.

       Under this standard, we are not convinced by Sheriff Claussen’s argument that

there was insufficient evidence to support Mr. Hall’s claim that he was terminated

because of his disability. The fact that there was insufficient evidence of age

discrimination does not establish that Sheriff Claussen complied with the ADA in

terminating Mr. Hall’s employment. Moreover, as noted above, the record contains

evidence from which a reasonable jury could conclude the following: that, when

informed of Mr. Hall’s urological condition, Sheriff Claussen refused Mr. Hall’s request

for reassignment to a vacant investigator position that Mr. Hall was qualified to perform;

that, rather than making that reassignment, Sheriff Claussen required Mr. Hall to report


                                              31
to a vacant position that he was not qualified to perform because of a disorder

(claustrophobia) that, although legitimate, had been determined not to be covered by the

ADA; and that, when Mr. Hall failed to report to the new position, Sheriff Claussen

terminated his employment. The record thus supports the inference that the reason

offered by Sheriff Claussen for terminating Mr. Hall’s employment—his failure to report

for the detention facility position—was a pretext for discrimination on the basis of his

urological condition. See Kells v. Sinclair Buick-GMC Truck, 210 F.3d 827, 834 (8th

Cir. 2000) (concluding that “failing to provide an employee with reasonable

accommodations can tend to prove that the employer also acted adversely against the

employee because of the individual’s disability”). Accordingly, Sheriff Claussen is not

entitled to judgment as a matter of law.



                                G.. Evidentiary Objections

       Sheriff Claussen advances several challenges to the district court’s evidentiary

rulings, arguing that it improperly admitted evidence that prejudiced the jury. We review

the district court’s rulings for an abuse of discretion. See Cartier v. Jackson, 59 F.3d

1046, 1049 (10th Cir. 1995). We will not disturb the district court’s determination

absent a distinct showing it was based on a clearly erroneous finding of fact or an

erroneous conclusion of law or manifests a clear error of judgment. See Lyons v.

Jefferson Bank & Trust, 994 F.2d 716, 727 (10th Cir. 1993) (quoting Cooter & Gell v.


                                             32
Hartmarx Corp., 496 U.S. 384, 405 (1990)). “In order to reverse a district court

judgment on account of an evidentiary ruling, [plaintiff] must make a clear showing [ ]he

suffered prejudice, and the ruling was inconsistent with substantial justice or affected

[his] substantial rights.” Coletti v. Cudd Pressure Control, 165 F.3d 767, 773 (10th Cir.

1999) (quotations omitted).



1. Applications for positions before May 1995

       Sheriff Claussen contends that the district court erred in allowing Mr. Hall to

present evidence concerning the Department’s decision to hire other individuals for the

patrol sergeant and investigator positions in February and April 1995. He maintains that,

because Mr. Hall did not inform the Department of his disability until May 1995, the

Department did not know that he was seeking protection under the ADA until that time

and that, as a result, its prior hiring decisions are not relevant to Mr. Hall’s claims.

       Sheriff Claussen’s argument ignores the fact that Mr. Hall asserted several distinct

challenges to the Department’s employment practices. As noted above, he not only

challenged the termination of his employment in August 1995 but also asserted that it

was because of his disability that Sheriff Claussen did not select him for the patrol

sergeant and investigator positions for which he applied. Although it is true that at the

time he applied for these positions, Mr. Hall had not formally requested reassignment as

a reasonable accommodation under the ADA, that fact does not establish that Sheriff


                                              33
Claussen did not then know that he had a disability. In fact, in the summer of 1994, Mr.

Hall had been evaluated by a physician who diagnosed a urological condition and who

notified the Department of his findings. In response to those findings, the Department

had placed Mr. Hall on light duty. Indeed, the parties stipulated at trial that “Mr. Hall

was regarded by Sheriff Clausen as having a medically documented urological condition

during the 1994-1995 time frame.” Aplt’s App. vol. II, at 496; Aple’s App. vol. II, at

370.

       Under the ADA, an impairment that substantially limits a major life activity may

constitute a disability if it is “expected to persist on a long-term basis because its

anticipated duration was indefinite, unknowable, or was expected to be at least several

months.” Aldrich v. Boeing, 146 F.3d 1265, 1270 (10th Cir. 1998). The evidence in the

record is sufficient for a reasonable jury to conclude that, in February and April 1995,

Sheriff Claussen knew that Mr. Hall’s urological condition constituted a disability.

Thus, the district court did not err in admitting evidence regarding the Department’s

decision to hire other individuals for the patrol sergeant and investigator positions.



2. Mr. Hall’s Claustrophobia

       Sheriff Claussen argues that the district court erred in admitting evidence of Mr.

Hall’s claustrophobia because that disorder is not protected by the ADA. This argument

is foreclosed by our ruling that Mr. Hall’s claustrophobia, even if it was not a protected


                                              34
disability under the ADA, was nevertheless relevant to the determination of whether

Sheriff Claussen failed to reasonably accommodate Mr. Hall by reassigning him to the

position in the detention facility rather than by reassigning him to a vacant investigator

position. Thus, the district court properly admitted this evidence.



3. Discrimination Against Other Employees

       Sheriff Claussen argues that the district court erred in allowing testimony that

three other Sheriff’s Department employees suffered disability discrimination. This court

has stated that “[a]s a general rule, the testimony of other employees about their treatment

by the defendant is relevant to the issue of the employer’s discriminatory intent.” Spulak

v. K-Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990). However, the plaintiff must

demonstrate the relevance of evidence regarding other employees by showing that the

evidence can “‘logically or reasonably be tied to the decision to terminate [the

plaintiff].’” Id. at 1156 (quoting Schrand v. Federal Pac. Elec. Co., 851 F.2d 152, 156

(6th Cir. 1988)). Even if the evidence is relevant, the trial court may still exclude it if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion

of the issues, or undue delay. Curtis v. Oklahoma City Public Schools, 147 F.3d 1200,

1217 (10th Cir. 1998).

       Here, the first of these other instances of alleged discrimination involved a

witness’s testimony that he overheard statements by Sheriff’s Department supervisors


                                              35
that they had to get rid of an employee with physical impairments. A second employee

testified that the Sheriff’s Department did not assist him in efforts to keep his job in spite

of his physical problems. After hearing this testimony, the court gave a limiting

instruction explaining to the jury that evidence of discrimination against this employee

did not directly prove any elements of Mr. Hall’s claims but rather had been offered to

show that the reasons provided by Sheriff Claussen to justify his actions were pretextual.

Finally, a third employee testified that he thought the Department terminated his

employment because of his age and his weight. The record provided to us by Sheriiff

Claussen does not indicate that he objected to the third employee’s testimony.

       In our view, the district court did not abuse its discretion in admitting testimony as

to the first two employees. Because these instances of alleged discrimination were

sufficiently similar to those alleged by Mr. Hall, it was proper to allow the jury to

consider them. Although the discrimination alleged by the third employee is of

questionable relevance to Mr. Hall’s ADA claims, it was not plain error for the district

court to have admitted it. See Polys v. Trans-Colorado Airlines, Inc., 941 F.2d 1404,

1408 (10th Cir. 1991) (noting that, in the absence of a contemporaneous objection to the

admission of evidence, we review only for plain errors—those that “seriously affect the

fairness, integrity or public reputation of judicial proceedings”) (internal citations and

quotations omitted). More importantly, Sheriff Claussen has failed to demonstrate that

the admission of any of this evidence affected the result of the trial.


                                              36
4. Improper Impeachment of Captain Gardner

       Sheriff Claussen objects to the district court’s allowing Mr. Hall to ask a witness

(Lieutenant Don Williams) on direct examination about the reputation for untruthfulness

of Captain William Gardner, a Sheriff’s Department supervisor. At the time of the direct

examination, Captain Gardner had not yet testified. Sheriff Claussen invokes our

decision in Creekmore v. Crossno, 259 F.2d 697, 698-99 (10th Cir. 1958). There, we

held that the district court erred in allowing one witness to testify about a second

witness’s poor reputation for truthfulness before the second witness had testified. See id.

at 698. (“The difficulty is that the impeaching evidence was received before the witness

had testified. The credibility of [the second witness] was neither relevant nor material

until he testified as to some material fact.”).

       In denying Sheriff Claussen’s motion for a new trial, the district court concluded

that it had been improper to admit the evidence about Captain Gardner’s reputation

before he had testified. However, the court further concluded that the evidence did not

prejudice Sheriff Claussen. It noted that it had afforded Sheriff Claussen ample

opportunity to challenge Lieutenant Williams’s testimony about Captain Gardner through

cross-examination of Lieutenant Williams and direct examination of Captain Gardner.

       We agree with the district court’s ultimate conclusion on this issue. Sheriff

Claussen has failed to establish that the impeachment of Captain Gardner through


                                                  37
Lieutenant Williams prejudiced his substantial rights.



5. Evidence Regarding Constructive Discharge

       In a final evidentiary challenge, Sheriff Claussen contends that the district court

erred in admitting evidence regarding Mr. Hall’s allegations of constructive discharge.

He notes that Mr. Hall did not specifically allege a constructive discharge in his

complaint.

       Sheriff Claussen’s argument is not supported by the record. As he acknowledges,

Mr. Hall did allege that the termination of his employment violated the ADA and that

Sheriff Claussen had failed to reasonably accommodate him. Although Mr. Hall’s

complaint did not use the phrase “constructive discharge,” Sheriff Claussen had

sufficient notice that Mr. Hall was challenging the circumstances surrounding the

termination of his employment. The evidence concerning the termination of Mr. Hall’s

employment was relevant to Mr. Hall’s ADA claims, and the district court did not err in

admitting it.



                       H. 42 U.S.C. § 1981a(b)(3) Damages Cap

       After the jury returned its verdict, Sheriff Claussen filed a motion for

reconsideration, arguing that the award of “damages for future earnings,” see Aplt’s App.




                                             38
vol. I, at 121, should be reduced pursuant to 42 U.S.C. § 1981a(b)(3).5 As to entities that

employ more than 100 but fewer than 201 employees, that statute provides:

                The sum of the amount of compensatory damages awarded
                under this section for future pecuniary losses, emotional pain,
                suffering, inconvenience, mental anguish, loss of enjoyment of
                life, and other nonpecuniary losses, and the amount of punitive
                damages awarded under this section . . . shall not exceed . . .
                $100,000.

42 U.S.C. § 1981a(b)(3). The parties stipulated that Sheriff Claussen employed between

100 and 201 employees. See Aplt’s App. vol. I, at 180 (District Court Order on

Defendant’s Motion to Reconsider, filed April 29, 1998, noting the parties’ stipulation).

Thus, Sheriff Claussen asserted that the jury’s award of these damages should be reduced

to $100,000.6

       The district court rejected Sheriff Claussen’s argument. It reasoned that

§1981a(3)’s limitation on damage awards for “future nonpecuniary losses” did not apply

to awards of front pay because such awards were authorized by another statute, 42 U.S.C.


       5
        As noted above, the district court also awarded Mr. Hall $66,395 in lost back
pay. Sheriff Claussen did not seek a reduction in this award pursuant to the § 1981a(3)
cap on damages. Back pay awards are excluded from that damages cap. See 42 U.S.C. §
1981a(b)(2).
       6
         In his appellate brief, Mr. Hall advances the alternative theory that it was Mesa
County, Colorado as a whole (with 450 employees), rather than the Sheriff’s Office, that
was his employer. Because we conclude that the § 1981a(3) damages cap is not
applicable to awards of front pay, consideration of that argument is not necessary to the
resolution of this appeal. In any event, the case proceeded to trial on the theory that it
was the Sheriff’s Department that was Mr. Hall’s employer, and Mr. Hall has offered
insufficient evidence to indicate that his actual employer was the County.

                                              39
§ 2000e-5(g), which authorizes awards of “other equitable relief.”

       Sheriff Claussen now challenges that ruling. In the alternative, he contends that

the award of front pay should have been decided by the court rather than by the jury.

Because the district court’s interpretation of the applicable statutes involves questions of

law, we engage in de novo review. Medlock v Ortho Biotech., Inc., 164 F.3d 545, 549

(10th Cir. 1999).

       The district court’s reading of the statute is supported by our decision in

Medlock. There, we noted that 42 U.S.C. § 1981a(b)(2) expressly excludes certain forms

of relief from the damages cap. “These exclusions include ‘backpay, interest on

backpay, or any other type of relief authorized under section 706(g) of the Civil Rights

Act of 1964 [ 42 U.S.C. § 2000e-5(g) ].’” Medlock, 164 F.3d at 556 (quoting 42 U.S.C.

§ 1981a(b)(2)). One remedy authorized by § 706(g) of the Civil Rights Act (42 U.S.C. §

2000e-5(g)) is “other equitable relief” that “the court may grant if deemed appropriate.”

Front pay, we concluded in Medlock, constitutes “other equitable relief.” Other circuits

have reached the same conclusion. See Kramer v. Logan County School Dist. No. R-1,

157 F.3d 620, 626 (8th Cir. 1998) (concluding that “front pay is an equitable remedy

excluded from the statutory limit on compensatory damages provided for §

1981a(b)(3)”); Williams v. Pharmacia, Inc., 137 F.3d 944, 953-54 (7th Cir. 1998)

(distinguishing an award of front pay from an award of damages for a loss of future

earnings and noting that the latter compensated the plaintiff “for a lifetime of diminished


                                             40
earnings resulting from the reputational harms she suffered as a result of [the

defendant’s] discrimination”); see also 5 Larson, Employment Discrimination § 93.03, at

93-11 (“[T]he sweeping exemption for ‘any other type of relief authorized under section

706(g)’ of Title VII will likely compel the courts to exclude traditional front pay from the

definition of ‘future pecuniary loss.’”); Christy W. Showalter, Front Pay Under the

Damages Caps of the Civil Rights Act of 1991: Legal Remedy or Equitable Relief, 30 U.

Mem. L. Rev. 887, 919 (2000) (concluding that, “[b]ased . . . on the statutory

interpretation and legislative history of the Civil Rights Act of 1991, the policy

guidelines of the EEOC, and the judicial treatment of front pay as an equitable remedy

under the Civil Rights Act of 1964, front pay should be treated as equitable relief

authorized by section 706(g) and, thus, excluded from the damage caps outlined in §

1981a(b)(3)”). But see Hudson v. Reno, 130 F.3d 1193, 1203 (6th Cir. 1997) (stating

that “‘front pay’, by both its definition and purpose in the law, is a ‘future pecuniary loss’

[under §1981a(b)(3)] because it is a monetary award for the salary that the employee

would have received but for the discrimination”).

       Nevertheless, we agree with Sheriff Claussen that awards of front pay must be

made by the court rather than by a jury. In McCue v. Kansas Department of Human

Resources, 165 F.3d 784, 792 (10th Cir. 1999), we vacated a jury award of front pay on a

Title VII retaliation claim, concluding that such an award did not constitute damages for

“future pecuniary losses” under § 1981a(b)(3). We reasoned that, prior to the passage of


                                             41
section 1981a, we had held that front pay was an equitable remedy available under 42

U.S.C. § 2000e-5(g) because it constituted “other equitable relief.” McCue, 165 F.3d at

792 (citing EEOC v. General Lines, Inc., 865 F.2d 1555, 1561 (10th Cir.1989)).

Because front pay was available as “other equitable relief” when Congress passed 42

U.S.C. § 1981a, front pay was not included in the damages for “future pecuniary losses”

that Congress authorized juries to award under 42 U.S.C. § 1981a.

       In his appellate brief, Mr. Hall defends the district court’s imposition of the front

pay award. He notes that the district court adopted the jury’s award in a separate order

and judgment adjudicating Sheriff Claussen’s post-trial motion for judgment as a matter

of law. See Aplt’s App. vol. I, at 126-40. According to Mr. Hall, it was not an abuse of

discretion for the district court to adopt the jury’s front pay award as its own.

       We are not persuaded by Mr. Hall’s argument. Determining front pay requires the

district court to predict future events and consider “many complicated and interlocking

factors.” Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442, 1458 (10th Cir. 1997). A

front pay award must identify an end date, Davoll v. Webb, 194 F.3d 1116, 1142 (10th

Cir. 1999), and the court must provide an explanation of that date that indicates that it is

based on more than “mere guesswork.” Carter v. Sedgwick County, Kan., 929 F.2d

1501, 1505 (10th Cir. 1991). We have identified many factors that are relevant to the

court’s determination of an appropriate amount: work life expectancy, salary and

benefits when the plaintiff’s employment was terminated, potential increases in salary


                                              42
that the plaintiff could have received, the availability of other work opportunities, the

period that it would take the plaintiff to become reemployed, and the discounting of the

award to net present value. Id. at 1143. See also McCue, 165 F.3d at 792 (stating that

“‘[b]ecause of the potential for windfall, . . . [the award of front pay] must be tempered’”

and that “[t]he district court is best-equipped to equitably determine the proper amount

for this award”) (quoting Duke v. Uniroyal Inc., 928 F.2d 1413, 1424 (4th Cir.1991)).

       Here, the court’s instructions informed the jury that it could award damages for

“future pecuniary losses” and that it should reduce the award to take into account the

expenses that the plaintiff would have incurred in making future earnings as well as the

interest that the plaintiff could earn on the award. See Aplt’s App. vol. I, at 113-14.

However, there is no indication that the jury was informed of the other factors that must

be considered in making a front pay award, and, more importantly, there is no indication

that the district court itself considered those factors before approving the award.

       From our review of the record, we conclude that the jury’s award of $225,000 “as

damages for future earnings,” see Aplt’s App. vol. I, at 12, represents an award of front

pay. See James v. Sears, Roebuck & Co., 21 F.3d 989, 997 (10th Cir. 1994) (stating that

“[f]ront pay refers to the award of money as compensation for the future loss of

earnings”); Medlock, 165 F.3d at 555 n.8 (concluding that a verdict form’s reference to

“future damages”signified front pay only); Aple’s Br. at 55 (characterizing the $225,000

damages award as representing earnings that Mr. Hall “would have received as deputy


                                             43
sheriff”). Because the determination of front pay is for the court rather than for the jury

and because the record does not indicate that the district court considered the appropriate

factors before entering the award, we conclude that the $225,000 award of future

earnings should be vacated and the case should be remanded to the district court for a

determination of the proper amount of front pay under the standards noted above. As we

have observed, the $100,000 damages cap set forth in 42 U.S.C. § 1981a(3) will not be

applicable to any subsequent award of front pay.



                      I. Award of Costs (Mr. Hall’s Cross-Appeal)

       In a post-trial motion, Mr. Hall sought to recover $27,592.92 in costs as the

prevailing party. The court clerk concluded that Mr. Hall was entitled to an award of

only $2,675.08. Mr. Hall appealed that ruling to the district court, which awarded him

only an additional $567.80. In his cross-appeal, Mr. Hall challenges the district court’s

decision on two grounds, arguing that it erred in analyzing the applicable statutes

governing the award of expert witness fees and that the court erred in refusing to award

other costs. We review the district court’s decision to award costs for an abuse of

discretion. Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1198 (10th Cir. 2000).

However, we review de novo the district court’s interpretation of the statutes underlying

its decision. See Neustrom v. Union Pac. R.R., 156 F.3d 1057, 1067 (10th Cir.1998).




                                             44
1. The denial of expert witness fees

       In his post-trial motion, Mr. Hall sought over $14,092.02 in expert witness fees.

The district court found this amount grossly excessive, concluding that under 28 U.S.C.

§§1920 and 1821(b), witness fees are recoverable only in the amount of $40 per day for

each witness.

       Mr. Hall acknowledges that, in Crawford Fitting Co. v. J.T. Gibbons Inc., 482

U.S. 437 (1987), the Supreme Court held that expert witness fees were not recoverable

beyond the per diem limits set by §§ 1821 and 1920. However, Mr. Hall notes that the

court stated that these per diem limits are applicable “absent explicit statutory or

contractual authorization.” Id. at 445

       Here, Mr. Hall argues, there is such statutory authorization for the recovery of

expert witness fees beyond the per diem amounts. In particular, he invokes the

provisions of the ADA that incorporate the expansive remedies of Title VII of the Civil

Rights Act of 1991. Mr. Hall notes that 42 U.S.C. § 12205 states that a prevailing party

may recover “a reasonable attorneys fee, including litigation expenses and costs.”

Section 12217 of the ADA provides plaintiffs in ADA cases with “[t]he powers,

remedies, and procedures set forth in” certain sections of the Civil Rights Act, including

42 U.S.C. § 2000e-5. See 42 U.S.C. § 12117. Finally, § 2000e-5 states that “[i]n any

action or proceeding under this title, the court, in its discretion, may allow the prevailing

party, other than the Commission or the United States, a reasonable attorneys fee


                                             45
(including expert fees) as part of the costs.” 42 U.S.C. § 2000e-5(k) (emphasis added).

Thus, Mr. Hall maintains, this provision, incorporated by reference into the ADA,

provides the express statutory authorization necessary to award expert witness fees

beyond the per diem amounts set forth in the generally applicable cost statutes.

       Mr. Hall’s argument is supported by the history of § 2000e-5(k). In the Civil

Rights Act of 1991, Pub.L. 102-166, 105 Stat. 1072, Congress amended 42 U.S.C. §

2000e-5(k) in response to a prior decision that had held that expert fees were not

recoverable as part of an attorneys fees award under 42 U.S.C. § 1988. Landgraf v. USI

Film Prods., Inc., 511 U.S. 244, 251 (1994) (citing West Va. Univ. Hosps., Inc. v.

Casey, 499 U.S. 83 (1991)). This circuit has noted that the legislative history of the 1991

Act indicates that Congress intended the civil rights laws to be broadly construed,

particularly in light of the fact that recent Supreme Court decisions had “‘deviat[ed]

repeatedly from this principle and giv[en] unduly narrow constructions to civil rights

statutes.’” Gudenkauf v. Stauffer Communications, Inc., 158 F. 3d 1074, 1079 (10th Cir.

1998) (quoting H.R.Rep No. 102-40(I) at 87-88 (1991), reprinted in 1991 U.S.C.C.A.N.

at 625-26)). We further observed that “‘the legislative history is replete with references

to Congress’s intention that civil rights laws are to be broadly construed consistent with

their remedial purpose.’” Id. at 1079.

       In light of that history, we agree with those courts that have concluded that 42

U.S.C. § 2000e-5(k) provides express statutory authority for an award of expert witness


                                            46
fees in excess of the per diem amounts set forth in 28 U.S.C. § 1821. See O’Rourke v.

City of Providence, 77 F. Supp.2d 258, 271 (D.R.I. 1999) (“[T]he amendment [to §

2000e-5(k)] makes clear that expert witness fees in excess of § 1821 witness costs are

recoverable in Title VII cases.”); Benson v. Northwest Airlines, Inc., 1997 WL 122997,

No. 4-97-581, at *6 (D.Minn. 1997) (stating that “the plain language of § 2000e-5(k)

permits an award for expert fees greater than the limits under § 1821”). Accordingly, §

2000e-5(k) authorizes an award of costs for expert witness fees in excess of those

awarded to Mr. Hall under § 1821.

       Because the district court erroneously applied the § 1821 limits to Mr. Hall’s

request to recover expert witness fees, we will vacate the court’s denial of that request

and remand the case to the district court for consideration of an award of expert fees to

Mr. Hall pursuant to 42 U.S.C. § 2000e-5(k).



2. Denial of other costs

       Mr. Hall also challenges the district court's denial of other requested costs. He

focuses on: (1) depositions allegedly relevant to the district court’s summary judgment

ruling (depositions of Lt. Miller, Captain Gardner, Undersheriff Wooley, and Captain

Wagner), (2) fees for various witnesses whom Mr. Hall subpoenaed but did not call to

testify and whom Sheriff Claussen did call to testify; (3) costs for preparing trial exhibits;

(4) the costs of medical reports; and (5) other litigation costs, including travel, hotel,


                                              47
meals, photocopying, and long distance charges.

       In light of the district court’s familiarity with the litigation, we vest it with

considerable discretion in determining the appropriate amount of costs to be awarded.

Here, our review of the record indicates that the district court made no legal errors and

properly exercised its judgment based on its knowledge of the case. Therefore, we will

affirm its decision to award these other costs in reduced amounts.



                                     III. CONCLUSION

       Because a correctly-instructed jury heard sufficient evidence to support Mr. Hall’s

ADA claims, we conclude that the district court properly denied Sheriff Claussen’s

motions for judgment as a matter of law and for a new trial. However, the district court

erred in submitting the consideration of front pay to the jury and in concluding that Mr.

Hall’s request to recover expert witness fees was limited to the per diem amounts set

forth in 28 U.S.C. § 1821.

       Accordingly, we AFFIRM the judgment in favor of Mr. Hall and against Sheriff

Claussen on Mr. Hall’s ADA claims. We VACATE the judgment in favor of Mr. Hall to

recover $225,000 in future earnings, and we VACATE the district court’s order

awarding costs to Mr. Hall insofar as it limits his recovery of expert witness fees to the

per diem amounts set forth in 28 U.S.C. § 1821. We AFFIRM the district court’s award

of costs to Mr. Hall in other respects. We REMAND the case to the district court for


                                               48
further proceedings consistent with this opinion.



                                  Entered for the Court,



                                  Robert H. Henry
                                  United States Circuit Judge



      .




                                            49
