                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                  ________________

                                     No. 06-1414
                                  ________________

Robert Wayne Chalfant,                    *
                                          *
             Appellee,                    *
                                          *        Appeal from the United States
      v.                                  *        District Court for the
                                          *        Southern District of Iowa.
Titan Distribution, Inc.; Titan           *
International, Inc.,                      *
                                          *
             Appellants.                  *

                                  ________________

                           Submitted: September 28, 2006
                               Filed: January 22, 2007
                                ________________

Before LOKEN, Chief Judge, SMITH and GRUENDER, Circuit Judges.
                            ________________

GRUENDER, Circuit Judge.


      A jury found that Titan Distribution, Inc. (“Titan”) discriminated against Robert
Wayne Chalfant based on Chalfant’s disability and awarded him $60,000 in back pay
and $100,000 in punitive damages. The district court1 then awarded Chalfant $18,750



      1
       The Honorable Ross A. Walters, Chief United States Magistrate Judge for the
Southern District of Iowa, presiding by consent of the parties pursuant to 28 U.S.C.
§ 636(c).
in front pay and denied Titan’s post-trial motions. Titan appeals. For the reasons
discussed below, we affirm.


I.    BACKGROUND


      Titan, a division of Titan International, Inc., hired Quintak, Inc. to run its tire
mounting and distribution operation. Quintak employees worked at Titan’s building
and used Titan’s equipment. In July 2002, Titan decided to cut costs by terminating
Quintak and hiring its own employees. William Campbell, president of Titan,
announced that Titan would be hiring only a portion of Quintak’s employees. All
Quintak employees who wanted to work at Titan were required to apply for a position
with Titan and have a qualifying physical. Nadis Barucic and Cheryl Luthin oversaw
the application process.


       Chalfant worked for Quintak as a second shift supervisor in the tire and wheel
mounting division. His duties included loading trucks with a forklift. Jerry Williams
was Chalfant’s direct supervisor, and Martin Craig Warren was Williams’s supervisor.
At the time of Quintak’s termination, Chalfant was 56-1/2 years old and had been
working for Quintak for five years. Chalfant had suffered a heart attack in 1992 and
had undergone carpal tunnel surgery and heart by-pass surgery in 1997. He had
arthritis in his back, neck, ankle and hands.


       Chalfant applied at Titan for the same position he had with Quintak, second
shift supervisor in the tire and wheel mounting division. He believed that this position
would have the same duties and responsibilities with Titan as it did with Quintak. In
his application forms, Chalfant stated on a Voluntary Applicant Identification Survey
that he was physically handicapped. He based this conclusion on the fact that he had
numerous physical ailments.

                                           -2-
       The final part of the application process, the physical examination, was
conducted by Dr. Anthony Sciorrota. Dr. Sciorrota determined that Chalfant could
work in his current capacity, including driving a forklift. Dr. Sciorrota also wrote on
the exam record that Chalfant would need to have a functional capacity examination
if he was required to do heavy lifting. Barucic received the exam record, wrote “px
OK for lift driving” on the top of the record and sent it, along with the application, to
Luthin. Chalfant continued working as a second shift supervisor in the tire and wheel
mounting division as an employee of Labor Ready, a temporary work service used by
Titan during the application period.


        At some point after the physical exam, Barucic wrote “not pass px” on top of
Chalfant’s application. Barucic testified that he did not make the decision, but he did
not know who told him to write that note. Luthin, in her deposition testimony, said
that she did not know who decided that Chalfant failed the physical. However, during
trial, Luthin changed her testimony and said that Cheri Holley, corporate counsel,
made the decision in August 2002. At trial, Luthin testified that Barucic gave Holley
the documents and Holley decided that Chalfant did not pass the physical. Holley did
not testify at the trial.


       During the first week of August 2002, Williams told Chalfant that he was
included in a list of Quintak employees to be retained by Titan. On August 8, 2002,
Williams and Warren told Chalfant that he had failed the physical and would not be
hired. Jerry Palmer, the second shift supervisor in the tire distribution division,
assumed the duties of Chalfant’s second shift tire and wheel mounting supervisor
position. By September 30, 2002, Titan had eliminated the entire second shift in the
tire and wheel mounting division.


      After Titan refused to hire him, Chalfant took a job with AMPCO Systems, a
parking ramp management company, within two months. At AMPCO, Chalfant

                                           -3-
performed general service work, walking up to five miles a day and lifting more than
he did as a Quintak employee. His wages were half of what he earned at Quintak.
Once he started working at AMPCO, Chalfant continued his job search by reviewing
newspaper classifieds for other jobs. The day after he accepted his job with AMPCO,
Chalfant received another offer. He declined that job offer because it required
Chalfant to lift 150 pounds and Chalfant did not believe that he could do that type of
lifting.


       Prior to litigation proceedings, Titan maintained that it did not hire Chalfant
because he did not pass the physical. Titan proferred this reason to the Iowa Civil
Rights Commission. In a letter to the Commission, Titan said that Chalfant had a
conditional offer of employment before the physical examination that was withdrawn
after he failed the physical. During litigation, however, Titan claimed that Chalfant
was not hired as a second shift supervisor because the entire second shift was going
to be eliminated.


       Chalfant sued Titan for disability and age discrimination under the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Age Discrimination
in Employment Act, 29 U.S.C. § 621 et seq., respectively, and the parallel provisions
of the Iowa Civil Rights Act, Iowa Code ch. 216. The district court granted Titan’s
motion for summary judgment as to the age discrimination claims and denied Titan’s
motion for summary judgment as to the disability discrimination claims. A jury found
for Chalfant on the disability discrimination claims, awarding $60,000 in back pay and
$100,000 in punitive damages. The district court then awarded $18,750 in front pay.
The district court denied Titan’s motion for judgment as a matter of law, its alternative
motion for a new trial, its motion for remittitur2 and its motion to alter or amend the
front pay award under Fed. R. Civ. P. 59(e). Titan appeals.


      2
       Titan challenged the award of back pay in its motion for judgment as a matter
of law. However, we adopt the district court’s characterization of Titan’s back pay
challenge as a motion for remittitur.
                                           -4-
II.   DISCUSSION


        On appeal, Titan contends that: (i) it is entitled to judgment as a matter of law
or, in the alternative, a new trial because the evidence was insufficient both to support
a verdict that Titan discriminated against Chalfant based on his disability and to allow
the district court to submit the issue of punitive damages to the jury; (ii) the district
court clearly abused its discretion in determining that Chalfant mitigated his damages
to permit an award of back pay; and (iii) the district court abused its discretion in
awarding Chalfant front pay. We address each argument in turn.


      A.     Sufficiency of the Evidence


       Titan argues that it is entitled to judgment as a matter of law or, alternatively,
a new trial because there was insufficient evidence for the jury’s verdict of
discrimination and for the jury to consider the issue of punitive damages. We review
these issues under both standards of review and find that the district court did not err
in denying Titan’s motion for judgment as a matter of law nor did it abuse its
discretion in denying Titan’s motion for a new trial.


             1.            Judgment as a Matter of Law


        “We review de novo the denial of a motion for judgment as a matter of law,
applying the same standard as the district court.” Canny v. Dr. Pepper/Seven-Up
Bottling Group, Inc., 439 F.3d 894, 899 (8th Cir. 2006). Judgment as a matter of law
is granted only if “a party has been fully heard on an issue and there is no legally
sufficient evidentiary basis for a reasonable jury to find for that party on that issue.”
Id. at 899-900 (quoting Fed. R. Civ. P. 50(a)(1)). We grant the nonmoving party all


                                           -5-
reasonable inferences and view the facts in the light most favorable to the nonmoving
party. Id. at 900.


              a.           ADA Discrimination


       A plaintiff alleging discrimination based on a disability under the ADA must
establish a prima facie case.3 The three elements of this prima facie case are (1) that
the plaintiff has “a disability within the meaning of the ADA;” (2) that he is qualified
“to perform the essential functions of the job, with or without reasonable
accommodation;” and (3) that he suffered “an adverse employment action due to a
disability.” Wenzel v. Missouri-Am. Water Co., 404 F.3d 1038, 1040 (8th Cir. 2005).
Titan challenges the sufficiency of the evidence supporting the jury’s finding for
Chalfant on all three elements of the prima facie case.


       With respect to the first element of the prima facie case, the ADA defines
disability in the following three ways: “(A) a physical or mental impairment that
substantially limits one or more of the major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded as having such an impairment.”
42 U.S.C. § 12102(2); Webner v. Titan Distribution, Inc., 267 F.3d 828, 833 (8th Cir.
2001). A person is regarded as disabled if “(1) the employer mistakenly believes that
the employee has an impairment (which would substantially limit one or more major
life activity), or (2) the employer mistakenly believes that an actual impairment
substantially limits one or more major life activity.” Wenzel, 404 F.3d at 1041.




      3
        We use the same analysis for disability discrimination claims brought under
the ADA and the Iowa Civil Rights Act. Mitchell v. Iowa Prot. & Advocacy Servs.,
Inc., 325 F.3d 1011, 1015 (8th Cir. 2003). Therefore, we need not separately analyze
the Iowa Civil Rights Act claim.
                                          -6-
       Major life activities are activities such as “caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”
Conant v. City of Hibbing, 271 F.3d 782, 784 (8th Cir. 2001) (per curiam) (quoting
29 C.F.R. § 1630.2(i)). In order to be regarded as disabled with respect to the major
life activity of working, the employer must mistakenly believe that the actual
impairment substantially limits the employee’s ability to work. A substantial
limitation is present only when the employee is “significantly restricted in the ability
to perform either a class of jobs or a broad range of jobs in various classes.” Id. at
784-85 (quoting 29 C.F.R. § 1630.2(j)(3)(i)). If an employer believes that an
employee is unable to perform “one specific job,” then the employee is not regarded
as disabled. Wenzel, 404 F.3d at 1041.


      Titan regarded Chalfant as disabled because it mistakenly believed that his
physical ailments substantially limited his ability to work in a broad range of jobs.
Chalfant wrote in his application packet that he considered himself physically
handicapped because of his ailments. Titan therefore knew about the ailments. Dr.
Sciorrota, after conducting a physical of Chalfant, wrote that Chalfant could operate
a forklift. He did not find that Chalfant failed the physical, although he did
recommend that Chalfant undergo a functional capacity examination if he was
required to do heavy lifting.


       Titan argues that, at most, it only believed that Chalfant was incapable of
performing the duties of the sole position of second shift supervisor in the tire and
wheel mounting division. Chalfant only applied for that position, and Titan declined
to hire Chalfant for that one position. If Titan did not believe that Chalfant was
substantially limited in his ability to perform either a class of jobs or a broad range of
jobs in various classes, Titan argues that Chalfant cannot show that he was regarded
as disabled by Titan.



                                           -7-
       Giving all reasonable inferences to the jury’s verdict in favor of Chalfant, we
find sufficient evidence for a reasonable jury to conclude that Titan believed
Chalfant’s impairments substantially restricted his ability to work in a class of jobs or
a broad range of jobs in various classes. While Chalfant only applied for the second
shift supervisor position, that position did not require unique or strenuous lifting.
Titan employees testified that there was no lifting requirement, or even a job
description, for the second shift supervisor position. Chalfant also testified that he had
not been required to do any heavy lifting when he was the second shift supervisor for
Quintak and Labor Ready. In the absence of any job description by Titan, Chalfant’s
vocational expert relied on the occupational literature’s classification of a second shift
supervisor and testified that if Titan believed Chalfant was unable to perform the
duties of a second shift supervisor, a job that is classified as having light to medium
strength demands, Chalfant would have been prevented from performing 70 percent
of the jobs in the Dictionary of Occupational Titles. Thus, there was sufficient
evidence from which a reasonable jury could have found that Titan did not believe
that a person with Chalfant’s medical impairments could work in a class of jobs or a
broad range of jobs in various classes. Therefore, the jury could have reasonably
found that Titan regarded Chalfant as disabled.


        As to the second element of the prima facie case, there must be sufficient
evidence for a reasonable jury to find that a person was qualified to perform the
essential functions of the job. These essential functions are the “fundamental job
duties.” Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 786 (8th Cir. 2004)
(quotation omitted). While Chalfant must present evidence that he is qualified, Titan
must first identify the fundamental job duties. Evidence that can be used to identify
job duties includes:


      (1) the employer’s judgment as to which functions are essential; (2)
      written job descriptions prepared before advertising or interviewing
      applicants for the job; (3) the amount of time spent on the job performing

                                           -8-
      the function; (4) the consequences of not requiring the incumbent to
      perform the function; and (5) the current work experience of incumbents
      in similar jobs.

Id. (quoting Heaser v. The Toro Co., 247 F.3d 826, 831 (8th Cir. 2001)).


       Titan first argues that it cannot identify the fundamental job duties of the
position of a second shift supervisor in the tire and wheel mounting division because
that position did not exist after September 30, 2002. However, this argument fails
because there was an available position at the time Titan decided not to hire Chalfant
for the position. Titan had not announced the elimination of the position, the position
was still on the organizational chart, and Chalfant actually applied for the position
pursuant to Titan’s invitation.


       Titan then shifts its defense, claiming that the supervisor position requires
significant walking and heavy lifting at times. Palmer, the second shift supervisor
who assumed Chalfant’s duties, testified that he had to walk more in his position after
Titan replaced Quintak. Chalfant’s doctor, Dr. Jeffrey Schoon, testified that Chalfant
could not lift more than five pounds or walk more than one-half mile in one day. With
this evidence, Titan argues that Chalfant would not have been able to meet the
requirements of the second shift supervisor position.


        Chalfant presented evidence that he performed the essential job functions of his
position as second shift supervisor with Quintak. Chalfant testified that, as a
supervisor, he was in charge of “keeping the work force moving and getting the
product out the door.” He also testified that he was required to drive a forklift and
occasionally lift tires. Chalfant then presented evidence that he successfully
completed the supervisor position duties at Titan as a Labor Ready employee during
the first week of August, before he was told that he would not be hired. Furthermore,

                                          -9-
the jury heard evidence concerning Chalfant’s new position at AMPCO. In that
position, Chalfant testified that he walked over five miles each day. Chalfant argued
that he offered Dr. Schoon’s testimony to prove his arthritis and not to address his
ability to perform his job. Chalfant’s vocational expert considered Chalfant’s
limitations and testified that he would be able to perform the supervisor position as
described by Titan. The jury heard the evidence of both parties, and that evidence was
sufficient for a reasonable jury to determine that Chalfant was able to perform the
essential functions of the second shift supervisor position.


       The third element of the prima facie case requires a showing that the person
suffered an adverse employment action due to the disability. The refusal to hire a
person is an adverse action. 42 U.S.C. § 12112(a) (“No covered entity shall
discriminate against a qualified individual with a disability because of the disability
of such individual in regard to . . . the hiring . . . of employees.”) An adverse action
by itself is not sufficient for a successful claim under the ADA. Instead, there must
be a “specific link” between the discrimination and the adverse action to prove that
the discrimination motivated the adverse action. Simpson v. Des Moines Water
Works, 425 F.3d 538, 542 (8th Cir. 2005). In other words, the disability must be a
motivating factor in the employer’s decision for the adverse action. Id.


       Titan argues that Chalfant did not present sufficient evidence to establish a
specific link between Chalfant’s alleged disability and the adverse action of refusing
to hire him. The position is no longer in existence, and Campbell testified that he
made the decision to terminate the second shift at the beginning of 2002. Therefore,
Chalfant allegedly was not hired because there was not an available position, not
because of Chalfant’s disability. However, Titan did not eliminate the position until
after Titan chose not to hire Chalfant. Titan accepted Chalfant’s application for the
position, had him take a physical exam, marked the exam results as passing and then
marked the results as not passing before it decided not to hire him.

                                          -10-
        Although Chalfant did not actually fail, Titan told Chalfant that he could not
work at Titan because he failed the physical exam. Titan even provided this reason
for not hiring Chalfant to the Iowa Civil Rights Commission. It was not until the
litigation proceedings that Titan claimed that the reason Chalfant was not hired was
that the position had been eliminated. On these facts, a reasonable jury could decide
that there was a specific link between the disability discrimination and Titan’s
decision not to hire Chalfant.


              b.           Punitive Damages


       In employment discrimination cases, punitive damages are appropriate when
the “complaining party demonstrates that the respondent engaged in a discriminatory
practice or discriminatory practices with malice or with reckless indifference to the
federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1); see
Ollie v. Titan Tire Corp., 336 F.3d 680, 688 (8th Cir. 2003). To be liable for punitive
damages, it is not sufficient that the employer simply knows that it is discriminating
against an employee. Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535 (1999). The
employer must also know that it “may be acting in violation of federal law.” Id.


       Titan argues that there was insufficient evidence for the district court to submit
the issue of punitive damages to the jury. Viewing the evidence most favorably to
Chalfant, we find sufficient evidence to show that Titan acted with malice or reckless
indifference in its decision not to hire Chalfant. Campbell testified that he and Holley
knew that disability discrimination was illegal under federal and state laws. Titan also
had knowledge of the federal disability discrimination laws because it had been a
defendant in two federal disability discrimination cases that were ultimately appealed
to our circuit. See Ollie, 336 F.3d at 680; Webner, 267 F.3d at 828.




                                          -11-
       Along with this strong evidence of Titan’s familiarity with disability
discrimination laws at the time it made the decision, Titan’s inconsistent behavior at
the time of the decision and its inability to explain its behavior could lead a reasonable
jury to infer that Titan knew it might be acting in violation of federal law. In short
order, Titan accepted that Chalfant passed his physical, notified him that he would be
hired, changed the results of his physical to “failed” and notified him that he would
not be hired. Until Luthin’s sudden memory improvement at trial, no one at Titan
could say who made the decision to alter the outcome of the physical examination
from “pass” to “fail,” and no one from Titan ever explained the impetus for that
change. Instead, each person simply denied that he or she had any involvement at all
in the decision not to hire Chalfant. A reasonable jury could infer that this unusual
decision-making process occurred because Titan was aware at the time it decided not
to hire Chalfant that it “may [have been] acting in violation of federal law.” Kolstad,
527 U.S. at 535. Therefore, there was sufficient evidence to support the submission
of the issue of punitive damages to the jury.


             2.            New Trial


       We review a district court’s denial of a motion for a new trial for an abuse of
discretion. Foster v. Time Warner Entm’t Co., 250 F.3d 1189, 1197 (8th Cir. 2001).
The district court has the “sound discretion” to grant a new trial, and we will not
reverse its decision unless there is a “clear showing of abuse of discretion.” Watson
v. O’Neill, 365 F.3d 609, 614 (8th Cir. 2004). However, we will reverse the district
court’s determination when the outcome is “against the great weight of the evidence
so as to constitute a miscarriage of justice.” Foster, 250 F.3d at 1197. Applying this
standard of review, we do not find that the jury’s findings of disability discrimination
and punitive damages were against the great weight of the evidence so as to constitute
a miscarriage of justice. Therefore, the district court did not abuse its discretion in
denying Titan’s alternative motion for a new trial.

                                           -12-
      B.     Back Pay


        We review a district court’s denial of a motion for remittitur regarding back
pay for clear abuse of discretion. Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 496
(8th Cir. 2002). When an employer makes a discriminatory employment decision
against an individual, that individual has a duty to look for another position to mitigate
his damages. Canny, 439 F.3d at 904-05. The individual is not required to “go into
another line of work, accept a demotion, or take a demeaning position.” Id. (citing
Hartley v. Dillard’s, Inc., 310 F.3d 1054, 1061 (8th Cir. 2002)). Also, the individual’s
efforts do not have to “be successful but must represent an honest effort to find
substantially equivalent work.” Hartley, 310 F.3d at 1061. The employer has the
burden to prove that the individual did not mitigate his damages. Id.


       Titan argues that Chalfant did not properly mitigate his damages and that his
back pay award should be reduced. The district court, however, determined that the
jury could reasonably find that Titan did not meet its burden of proving that Chalfant
failed to mitigate his damages. The record shows that Chalfant sought and accepted
other employment within two months. He began working at AMPCO Systems, and
he then continued his job search by looking at newspaper classifieds. Chalfant also
turned down another job after he started working at AMPCO because that other job
required lifting up to 150 pounds and Chalfant did not believe he could satisfy that
requirement. Titan relies on testimony from Chalfant’s and Titan’s vocational experts
that Chalfant would have been able to find a better paying job. There was also
testimony from Chalfant’s vocational expert, though, that at Chalfant’s age it would
be difficult to find a similar paying job. With this evidence, we cannot say the district
court clearly abused its discretion in concluding that the jury could reasonably find
that Chalfant mitigated his damages. See id. at 1062 (awarding back pay to the




                                           -13-
plaintiff because he was close to retirement age and had a difficult time finding a
comparable job).4


      C.     Front Pay


       We review a district court’s decision to award a plaintiff front pay for abuse of
discretion. Ollie, 336 F.3d at 687. Front pay “make[s] a party whole when
reinstatement is impractical or impossible.” Id. (quotation omitted). The purpose of
front pay is to address the equitable needs of the employee, including his ability to
find another position with a similar salary. Id.


        Titan and Chalfant agreed that reinstatement was not practical. While Chalfant
sought an award of front pay that would compensate him for six years, the district
court determined that front pay should cover only one year. The district court
awarded Chalfant $18,750, representing the difference between Chalfant’s wages and
health insurance benefits at AMPCO and what they would have been at Titan for the
one-year period. The district court reasoned that Chalfant should be able to find
employment similar to the Titan position within one year. Titan argues that the
district court erred in providing this award because Chalfant did not attempt to find
a comparable job. The district court, however, properly considered evidence that
Chalfant continued to seek employment comparable to that at Titan by reviewing
newspaper classifieds. Based on this evidence, the court did not abuse its discretion
in its decision to award front pay.5


      4
      We need not otherwise determine whether the amount of back pay awarded is
appropriate because Titan’s appeal only seeks to reduce the award based on its
argument that Chalfant did not mitigate his damages.
      5
       We need not determine whether the amount of front pay is appropriate because
Titan does not challenge the amount of the district court’s award. Instead, Titan only
                                          -14-
III.   CONCLUSION


       Accordingly, we affirm the judgment of the district court.

                       ______________________________




appeals the district court’s decision to award front pay.
                                         -15-
