                       United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    ___________

                               Nos. 05-4181/06-2287
                                   ___________

Jake Pittari,                            *
                                         *
                Appellee,                *
                                         * Appeals from the United States
       v.                                * District Court for the
                                         * Western District of Arkansas.
American Eagle Airlines, Inc.,           *
                                         *
                Appellant.               *
                                    ___________

                              Submitted: September 29, 2006
                                 Filed: November 9, 2006
                                  ___________

Before RILEY and COLLOTON, Circuit Judges, and KYLE,1 District Judge.
                           ___________

RILEY, Circuit Judge.

       American Eagle Airlines, Inc. (American Eagle), appeals from a jury verdict in
favor of Jake Pittari (Pittari) on his claim under the Americans with Disabilities Act
of 1990 (ADA), 42 U.S.C. §§ 12101-12213. American Eagle argues Pittari failed to
prove unlawful discrimination and his claim is preempted by the Railway Labor Act
(RLA), 45 U.S.C. §§ 151-188. American Eagle also appeals the district court’s denial
of its motion for post-offer costs, and the district court’s award of attorney fees and
costs to Pittari. Following our thorough review of the record, we vacate the jury’s

       1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, sitting by designation.
verdict, and we reverse the district court’s award of attorney fees and costs to Pittari
and its denial of post-offer costs to American Eagle. We remand to the district court
to determine the amount of American Eagle’s post-offer costs.

I.      BACKGROUND
        A.     Factual Background
        American Eagle, a commercial airline carrier regulated by the Federal Aviation
Administration (FAA) and the Department of Transportation (DOT), employs Pittari
as a flight attendant. Because flight attendants are responsible for the safety of airline
passengers and must think clearly and quickly in emergency situations, the FAA
classifies this position as a “safety sensitive position.” A safety sensitive position
features job functions that may impact the safety of the public, an employee’s co-
workers, or the employee. The essential functions of a flight attendant position
include being able to: handle and provide effective leadership in emergency situations;
assess situations quickly; deal with disorderly, sick, or injured passengers; determine
whether to initiate emergency procedures; memorize the location of emergency
equipment; methodically apply emergency procedures; and evacuate passengers from
an aircraft rapidly.

       In June 2002, Pittari informed American Eagle’s Medical Department (Medical)
by letter he was taking the medication Neurontin. Dr. Rosalyn B. Beaty (Dr. Beaty),
a Medical staff physician, acknowledged receiving Pittari’s letter, but took no action
to prohibit Pittari from working as a flight attendant.

      In April 2003, Pittari submitted a request for intermittent leave under the
Family and Medical Leave Act (FMLA) to obtain treatment for depression and
anxiety. American Eagle policy mandates disclosure of all medications taken by
employees in order for Medical to determine whether a flight attendant is fit for duty.
In compliance with this policy, Dr. William McCollum (Dr. McCollum), Pittari’s
physician, informed American Eagle of Pittari’s medications, which included

                                           -2-
Neurontin, Baclofen, and Provigil. Medical became concerned these medications,
specifically Neurontin and Baclofen, could impair Pittari’s cognitive ability to perform
the safety-sensitive duties of Pittari’s position as a flight attendant.

       Based on its concerns about Pittari’s possible cognitive impairment, American
Eagle arranged for Pittari to take a MicroCog screening test2 (MicroCog) on June 5,
2003. Dr. Anne-Marie Moreault (Dr. Moreault), an independent psychologist,
reviewed Pittari’s computer-generated MicroCog results. In Dr. Moreault’s opinion,
the test indicated a below-average ability to think, process information, and reason
generally and abstractly. Additionally, the test revealed stress, fatigue, or anxiousness
might further compromise Pittari’s reaction time. Dr. Moreault also concluded
Pittari’s problem-solving skills might prove challenging, particularly during
emergency situations.

        On June 11, 2003, after reviewing Pittari’s MicroCog results, Medical placed
Pittari on temporary work restriction from safety-sensitive duties. Both Dr.
McCollum and Pittari agreed, as of June 19, 2003, based upon the MicroCog results,
American Eagle had legitimate concerns about allowing Pittari to work as a flight
attendant. Pittari understood if his cognitive abilities improved, American Eagle
would return him to his former position. Despite being restricted from working as a
flight attendant, Pittari was capable of performing other roles, such as gate agent,
ticket agent, and baggage handler, or other duties, such as directing passengers in need
of assistance, or performing administrative or secretarial computer work. However,
Pittari never worked in these capacities.



      2
        A MicroCog is administered via computer to the testee and measures the
testee’s cognitive functions, such as attention, mental control, reasoning, response
time, and information processing speed and accuracy. American Eagle requires flight
attendants who are taking certain medications or who present concerns regarding their
cognitive abilities to take a MicroCog.

                                          -3-
        On July 21, 2003, Dr. McCollum notified American Eagle by letter he had
changed Pittari’s medications and Pittari was ready to be retested. On July 29, 2003,
Pittari took a second MicroCog, the results of which indicated little or no change from
the initial test. After the second MicroCog, Dr. Moreault recommended a more
complete assessment to ensure Pittari could work as a flight attendant. On August 27
and 28, 2003, Pittari underwent a neuropsychological evaluation, performed by Dr.
Gene Chambers (Dr. Chambers). On October 6, 2003, at Pittari’s request, Dr.
Chambers sent Medical a letter stating although Pittari suffered a cognitive
impairment that was the result of a closed-head trauma Pittari incurred while working
for American Eagle, Pittari currently had the mental capacity to perform as a flight
attendant, particularly because he had performed the job repetitively in the past.
However, because Medical was still concerned about Pittari’s response to potential
unique emergency situations (rather than repetitive functions), Medical maintained
Pittari’s job restrictions and requested a copy of Dr. Chambers’s neuropsychological
assessment of Pittari.

        On October 31, 2003, Medical received Dr. Chambers’s report, which indicated
Pittari had a mild to moderate range of impairment, resulting in low processing speed
and problem-solving deficits, as well as impaired mental flexibility, judgment, and
mental efficiency.      Medical did not believe the report’s assessment and
recommendations correlated with Dr. Chambers’s earlier letter, and therefore declined
to remove Pittari’s work restriction.

       In December 2003, in accordance with the collective bargaining agreement
between American Eagle and the Association of Flight Attendants, Pittari requested
a binding third-party medical evaluation. On January 21 and 30, 2004, Dr. Ronald E.
McInroe (Dr. McInroe), a clinical neuropsychologist, evaluated Pittari and concluded
Pittari was fit for duty as a flight attendant. In Dr. McInroe’s opinion, Pittari’s
cognitive function had improved since Dr. Chambers’s evaluation. Dr. McInroe
concluded either Pittari’s medications were controlling his condition or Pittari no

                                         -4-
longer needed the medications. In a letter dated February 18, 2004, Dr. McInroe
opined Pittari was able to perform the essential functions of a flight attendant and he
was fit for duty as of January 30, 2004. Medical released Pittari to return to work as
a flight attendant on February 20, 2004, after receiving Dr. McInroe’s report and
letter.

       B.     Procedural Background
       In August 2004, Pittari brought suit against American Eagle, alleging violations
of the Arkansas Civil Rights Act of 1993 (ACRA), Ark. Code Ann. §§ 16-123-101 to
16-123-108; the ADA, 42 U.S.C. §§ 12101 to 12213; and the FMLA, 29 U.S.C.
§§ 2601 to 2654. After American Eagle moved for summary judgment on all of
Pittari’s claims, Pittari conceded his ACRA claim should be dismissed. With regard
to Pittari’s remaining claims, the district court denied American Eagle’s summary
judgment motion.

       Approximately four months before trial, American Eagle made an offer of
judgment pursuant to Federal Rule of Civil Procedure 68 in the amount of $5,497.50,
inclusive of prejudgment interest, attorney fees, and costs. Pittari did not accept the
offer of judgment.

       Following a jury trial, the jury returned a verdict in Pittari’s favor on the ADA
claim and in American Eagle’s favor on the FMLA claim. The jury awarded Pittari
$2,000 in actual damages and $1 in compensatory damages. After the district court
entered judgment on the jury’s verdict, Pittari moved to recover his attorney fees and
costs, and American Eagle filed an application for costs under Rule 68. The district
court denied American Eagle’s application and granted Pittari’s motion, awarding
Pittari $24,000 in attorney fees and $5,906.06 in costs, including $3,000 in expert
witness fees. This appeal followed.




                                          -5-
II.    DISCUSSION
       A.     Preemption of ADA Claim
       American Eagle first contends Pittari’s ADA claim should have been dismissed
for lack of subject matter jurisdiction because the claim is preempted by the RLA. A
decision on preemption of federal law under the RLA is a question of subject matter
jurisdiction, see Bloemer v. Nw. Airlines, Inc., 401 F.3d 935, 938-39 (8th Cir. 2005),
which this court reviews de novo, see Jenisio v. Ozark Airlines, Inc. Retirement Plan,
187 F.3d 970, 972 (8th Cir. 1999).

       To promote stability in labor-management relations, Congress passed the RLA,
which establishes a mandatory arbitral regime for “minor” disputes. 45 U.S.C. § 184;
Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994). Minor disputes are
“controversies arising out of the application or interpretation of the collective
bargaining agreement, and therefore, complete preemption applies to disputes
involving duties and rights created or defined by the collective bargaining agreement.”
Gore v. Trans World Airlines, 210 F.3d 944, 949 (8th Cir. 2000). “Courts can resolve
questions of federal . . . law involving labor claims only if the issues do not require
the court to construe the collective bargaining agreement.” Deneen v. Nw. Airlines,
Inc., 132 F.3d 431, 439 (8th Cir. 1998) (citing Lingle v. Norge Div. of Magic Chef,
Inc., 486 U.S. 399, 411 (1988)).

      In support of its preemption argument, American Eagle contends the collective
bargaining agreement between American Eagle and the Association of Flight
Attendants sets forth standards and procedures for determining whether a flight
attendant should be removed from flying status due to an impairment. It further
argues Pittari’s ADA claim is dependent on an interpretation of the collective
bargaining agreement and thus preempted by the RLA.

       The district court rejected American Eagle’s preemption argument, concluding
Pittari’s ADA claim arises independent of the collective bargaining agreement and

                                         -6-
derives from federal law. We agree. By asserting an ADA discrimination claim,
Pittari seeks to enforce a federal statutory right, not a contractual right embodied in
the collective bargaining agreement. See, e.g., Fenney v. Dakota, Minn. & E. R.R.
Co., 327 F.3d 707, 718 (8th Cir. 2003); Benson v. Nw. Airlines, Inc., 62 F.3d 1108,
1115 (8th Cir. 1995). Indeed, Pittari’s ADA claim can be resolved without any
reference to the collective bargaining agreement. “The ADA provides a more
extensive and broader ground for relief, specifically oriented towards the elimination
of discriminatory employment practices, and, thus, is not preempted by the [RLA].”
Fenney, 327 F.3d at 718 (internal quotation omitted). Because federal law, not the
collective bargaining agreement, is the source of Pittari’s discrimination claim, the
RLA does not preempt the claim. See Deneen, 132 F.3d at 439.

       B.    Motion for Judgment as a Matter of Law on ADA Claim
       American Eagle asserts the district court erred by denying its motion for
judgment as a matter of law, arguing Pittari failed to offer sufficient evidence showing
American Eagle regarded Pittari as disabled. We review de novo the district court’s
denial of a motion for judgment as a matter of law, viewing the evidence in the light
most favorable to Pittari, the prevailing party. See Knutson v. Ag Processing, Inc.,
394 F.3d 1047, 1050 (8th Cir. 2005) (citation omitted). In doing so, we examine
whether sufficient evidence exists to support the jury’s verdict. Ollie v. Titan Tire
Corp., 336 F.3d 680, 685 (8th Cir. 2003) (citation omitted). We will uphold the jury’s
verdict unless we conclude a reasonable jury could not have found for Pittari. See
Knutson, 394 F.3d at 1050 (citation omitted).

       The ADA prohibits discrimination “against a qualified individual with a
disability.” 42 U.S.C. § 12112(a). To establish a prima facie case of discrimination
under the ADA, a plaintiff must demonstrate (1) his condition qualifies as a disability
within the meaning of the ADA; (2) he is qualified to perform the essential functions
of the job, with or without reasonable accommodation; and (3) he has suffered an
adverse employment action due to his disability. Samuels v. Ks. City Mo. Sch. Dist.,

                                          -7-
437 F.3d 797, 801 (8th Cir. 2006) (citation omitted). Being “regarded as” having a
physical or mental impairment that substantially limits one or more of an individual’s
major life activities qualifies as a disability under the ADA. 42 U.S.C. § 12102(2)(C).
The Supreme Court has defined two ways in which an individual may fall within this
statutory definition: (1) the employer mistakenly believes the individual has an
impairment that substantially limits one or more major life activities, or (2) the
employer mistakenly believes an actual, non-limiting impairment substantially limits
one or more of the individual’s major life activities. Sutton v. United Air Lines, Inc.,
527 U.S. 471, 489 (1999). The case at bar presents the second scenario: whether
American Eagle believed Pittari had a substantially limiting impairment when, in fact,
the impairment was not so limiting.

       As an initial matter, Pittari contends the major life activity for the jury’s
consideration was his “cognitive abilities,” arguing the district court instructed the
jury to consider “whether American Eagle unlawfully discriminated against Pittari
because of an alleged defect in his cognitive skills.” Such an argument is wholly
contradicted by a reading of Pittari’s complaint3 and the jury instructions,4 both of
which indicate the major life activity for the jury’s consideration was “working.”
Pittari’s argument on this point mistakenly conflates the major life activity at issue




      3
       Pittari’s complaint alleged American Eagle withheld Pittari from duty based
on American Eagle’s “stereotypical attitude that [Pittari] would be unable to discharge
his duties as a flight attendant because of his physical and mental impairments.”
      4
       Jury Instruction Number 10 stated the first element of Pittari’s prima facie case
on the ADA claim was whether American Eagle regarded Pittari’s “alleged cognitive
impairment as substantially limiting [Pittari’s] ability to work.” Similarly, Jury
Instruction Number 12 stated several factors for the jury to consider in “determining
whether [Pittari’s] impairment substantially limits [his] ability to work.” Finally, Jury
Instruction Number 13 informed the jury “the inability to perform a single, particular
job does not constitute a substantial limitation in the major life activity of working.”

                                          -8-
with the impairment he suffered. We therefore consider whether American Eagle
regarded Pittari as disabled in the major life activity of working.5

       “[F]inding a plaintiff is substantially limited in working requires a showing that
his overall employment opportunities are limited.” Breitkreutz v. Cambrex Charles
City, Inc., 450 F.3d 780, 784 (8th Cir. 2006) (internal quotation omitted). “[T]he
statutory phrase ‘substantially limits’ requires, at a minimum, [Pittari show he is]
unable to work in a broad class of jobs.” Sutton, 527 U.S. at 491. “The inability to
perform a single, particular job does not constitute a substantial limitation in the major
life activity of working.” 29 C.F.R. §1630.2(j)(3)(i); e.g., Murphy v. United Parcel
Serv., Inc., 527 U.S. 516, 523 (1999) (“[T]o be regarded as substantially limited in the
major life activity of working, one must be regarded as precluded from more than a
particular job.”). Instead, Pittari must show, in light of his expertise, background, and
job expectations, he has suffered a significant reduction in meaningful employment
opportunities due to his impairment. See Cooper v. Olin Corp., Winchester Div., 246
F.3d 1083, 1089 (8th Cir. 2001).

        Pittari failed to meet this burden. “An impairment that disqualifies a person
from only a narrow range of jobs is not considered a substantially limiting one.”
Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir. 1995) (quotation omitted).
Although American Eagle restricted Pittari from performing safety-sensitive duties,
Pittari admitted he could have worked in other capacities with American Eagle. Pittari
testified at trial he could have performed the role of a gate agent, ticket agent, or


      5
        Although the Supreme Court has reserved judgment on and questioned whether
working is properly considered a “major life activity” under the ADA, see Toyota
Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 200 (2002), and Sutton, 527 U.S. at
492, our court on occasion has considered it so, see Nuzum v. Ozark Auto. Distrib.,
Inc., 432 F.3d 839, 844 (8th Cir. 2005). Given our precedent as well as the parties’
acceptance that the term “major life activity” includes working, this court assumes,
without deciding, working falls within this definition.

                                           -9-
baggage handler, or could have performed other duties, such as directing passengers
who needed assistance, or performing administrative or secretarial computer work.
Such evidence refutes Pittari’s assertion he suffered a significant reduction in
meaningful employment opportunities. If American Eagle regarded Pittari as
temporarily unable to perform “one particular job,” no violation of the ADA occurred.
See Wenzel v. Mo.-Am. Water Co., 404 F.3d 1038, 1041 (8th Cir. 2005).

       As an additional basis for overturning the jury’s verdict, we find the evidence
demonstrates American Eagle did not regard Pittari’s impairment as substantially
limiting. “In determining whether a person is substantially limited in a major life
activity, we consider (1) the nature and severity of the impairment, (2) its duration or
anticipated duration, and (3) its actual or expected long-term impact.” Samuels, 437
F.3d at 802 (citation omitted); see, e.g., 29 C.F.R. § 1630.2(j)(2)(i)–(iii). Under the
ADA, a temporary impairment with little or no long-term impact does not constitute
a disability. 29 C.F.R. § 1630.2(j)(2)(ii)–(iii). Rather, “[t]he impairment’s impact
must . . . be permanent or long term.” Williams, 534 U.S. at 198.

        Guided by these considerations, we note Pittari agreed Medical had legitimate
concerns about Pittari’s cognitive functions based upon the first MicroCog test results.
Pittari understood his cognitive functions could be reevaluated if his medications or
medical condition changed. Indeed, Medical allowed Pittari to take another MicroCog
after Medical was notified Dr. McCollum had altered Pittari’s medications. Pittari
also recognized a successful neuropsychological exam would enable him to return to
his flight attendant position. A review of Medical’s documentation of Pittari’s
restriction indicates Medical deemed the restriction only temporary in nature. While
Pittari disputes whether American Eagle or Medical ever explicitly informed him the
restrictions were merely temporary, our review of the record convinces us American
Eagle did not regard Pittari’s impairment as more than a temporary condition. Pittari
offers no evidence to the contrary.



                                         -10-
       Furthermore, we repeatedly have recognized “the provision addressing
perceived disabilities is intended to combat the effects of archaic attitudes, erroneous
perceptions, and myths that work to the disadvantage of persons with or regarded as
having disabilities.” Breitkreutz, 450 F.3d at 784 (quoting Brunko v. Mercy Hosp.,
260 F.3d 939, 942 (8th Cir. 2001)); see, e.g., Wooten, 58 F.3d at 385 (citing Sch. Bd.
of Nassau County, Fl. v. Arline, 480 U.S. 273, 279, 285 (1987)). Restrictions based
upon the recommendations of physicians are not based upon myths or stereotypes
about the disabled and thus do not demonstrate a perception of disability. Breitkreutz,
450 F.3d at 784. In this case, the decision to temporarily restrict Pittari from safety-
sensitive duties was based upon the results of two MicroCog screening tests and upon
the recommendations of Dr. Moreault, the independent psychologist who interpreted
Pittari’s MicroCogs.

      On the record before us, there is insufficient evidence to indicate American
Eagle regarded Pittari as disabled in the major life activity of working. We therefore
reverse the district court’s denial of American Eagle’s motion for judgment as a matter
of law.

       C.      Recovery of Fees and Costs
       American Eagle next argues the district court abused its discretion by awarding
Pittari his attorney fees and costs, see Salitros v. Chrysler Corp., 306 F.3d 562, 576
(8th Cir. 2002) (stating standard of review is abuse of discretion), and erred by
refusing to award American Eagle its own post-offer costs pursuant to Rule 68, see
Perkins v. U.S. W. Comm., 138 F.3d 336, 338 (8th Cir. 1998) (stating standard of
review is de novo). Because we reverse the district court’s denial of American
Eagle’s motion for judgment as a matter of law, the basis for the district court’s ruling
on these issues no longer exists. We therefore reverse the district court’s order
awarding Pittari recovery of his fees and costs and denying American Eagle its post-
offer costs.



                                          -11-
        First, with regard to Pittari’s recovery of attorney fees and expert witness fees,
under our holding today, Pittari is no longer the prevailing party. Thus, he cannot
recover his fees or costs under the ADA. See 42 U.S.C. § 12205 (permitting the court,
in its discretion, to award attorney fees, litigation expenses, and costs to the prevailing
party).

       Second, American Eagle is entitled to its post-offer costs pursuant to Rule 68.
Under Rule 68, if a plaintiff rejects a defendant’s offer of judgment, and if the
judgment finally obtained by the plaintiff is not more favorable than the offer, the
plaintiff must pay the costs incurred by the defendant after the offer was made.
Perkins, 138 F.3d at 338; see, e.g., O’Brien v. City of Greers Ferry, 873 F.2d 1115,
1120 (8th Cir. 1989) (holding “a plaintiff who refuses an offer of judgment under Rule
68 and later fails to receive a more favorable judgment must pay the defendant’s post-
offer costs”). Before trial, American Eagle made Pittari an offer of judgment in the
amount of $5,497.50, which Pittari did not accept. Under Rule 68, because Pittari
rejected American Eagle’s offer of judgment and failed to receive a more favorable
judgment, Pittari must now pay American Eagle’s post-offer costs. Because the
district court is in a better position to calculate American Eagle’s post-offer costs, we
remand this matter to the district court to determine the amount of American Eagle’s
recovery.

III.   CONCLUSION
       Because Pittari did not meet his burden of showing that American Eagle
regarded Pittari as disabled in the major life activity of working, we reverse the district
court’s denial of American Eagle’s motion for judgment as a matter of law. We also
reverse the district court’s award of attorney fees and costs to Pittari and its denial of
post-offer costs to American Eagle. We therefore remand this matter to the district
court to determine the amount of American Eagle’s post-offer costs and to enter
judgment in accordance with this opinion.
                         ______________________________

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