                     United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT


                              _____________

                               No. 96-2835
                              _____________

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


                              _____________

                     Submitted:   February 10, 1997

                                Filed: June 16, 1997
                              _____________

Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and
      BATTEY,1 District Judge.
                               _____________


HANSEN, Circuit Judge.




     1
        The HONORABLE RICHARD H. BATTEY, Chief Judge, United States
District Court for the District of South Dakota, sitting by designation.
      Royce Doane, a former Omaha police officer, brought this suit against
the city of Omaha, Nebraska, for discriminating against him on the basis
of his disability, in violation of the Americans with Disabilities Act
(ADA), 42 U.S.C. §§ 12100-213 (1994). A jury found in favor of Doane, and
the city of Omaha appeals the district court's2 denial of its motion for
judgment as a matter of law. The city also claims error in the district
court's refusal to use its requested jury instruction and in the remedies
awarded. We affirm.

                                         I.

      Royce Doane brought this suit against the city of Omaha, claiming
that the city discriminated against him on account of his disability when
it failed to rehire him as a police officer. Doane had been a police
officer in Omaha from June 30, 1973, until June 2, 1984. Two years into
his employment, in 1975, Doane lost vision in one eye due to glaucoma.
With glasses, his overall vision is corrected to 20/20, though he actually
is seeing out of only one eye. He reported the blindness to his immediate
command officer and took some medical leave for treatment, but he continued
working successfully and competently as a police officer for nine years
after the onset of this condition.        During those nine years, Doane
performed all the duties required of a police officer and consistently
attained qualification as an expert in the use of firearms.

      In 1984, Doane was asked to undergo an eye examination, after which
he was advised that his career was over. Doane was given a choice between
resigning with a small pension or applying for a 911 communications job.
Doane took the 911 position and later also worked for a time as a jailor.
Doane made several requests for re-




      2
        The Honorable Thomas D. Thalken, United States Magistrate Judge for the
District of Nebraska, presiding over the case by the consent of the parties. 28 U.S.C.
§ 636(c).
                                          2
employment as a police officer, but each was denied on account of his
blindness in one eye.

      Relevant to this suit, Doane applied for re-employment as an Omaha
police officer on August 12, 1992. The job notice to which Doane replied
listed vision as a special requirement of the job and stated the following:


      Vision must be not less than 20/200 using both eyes without
      squinting, correctable to 20/20 using both eyes without
      squinting.    Applicants must also possess normal color
      perception and have no evidence of irreversible disease which
      will affect the person's sight.


(Appellant's App. at 64.)      The city asserted that the "using both eyes"
language meant that an applicant must have binocular vision -- the ability
to see out of each eye.     The city employed police officer recruits other
than Doane for its training class, which began on November 30, 1992.              On
July 23, 1993, the city personnel director denied Doane's request for re-
employment.    The city rejected Doane's application on the basis of Chief
of   Police   Skinner's   conclusion   that   Doane's   vision   problem    was   a
significant limitation.    Specifically, Chief Skinner thought that Doane's
lack of peripheral vision in one eye would significantly limit his ability
to perform as a police officer.
      Doane   filed   a   discrimination   charge   with   the   Nebraska   Equal
Opportunity Commission and the United States Equal Employment Opportunity
Commission.    The Nebraska Equal Opportunity Commission required the city
to re-employ Doane, but the city personnel director refused to do so.
Consequently, Doane brought this ADA suit, which was tried to a jury.
Doane's medical experts testified that binocular vision is not




                                       3
required to satisfy the vision standard set forth in the 1992 job notice
and that Doane's visual abilities sufficiently satisfy the requirements of
that notice.


     The city made an oral motion for judgment as a matter of law at the
close of the plaintiff's evidence and renewed its motion at the close of
the case.   The district court overruled the motions and submitted the case
to the jury.      The jury returned a verdict in favor of Doane, awarding
compensatory damages (including neither back nor front pay) in the amount
of $50,000.    The district court denied the city's post-trial motion for
judgment as a matter of law or a new trial and awarded Doane $40,000.20 in
back pay and $10,874.77 in back pension benefits.         Additionally, the
district court ordered reinstatement by requiring the city to allow Doane
to enter police recruit training.     The city appeals.



                                     II.
     We review de novo the district court's denial of a motion for
judgment as a matter of law, using the same standards as applied by the
district court.    Varner v. National Super Markets, Inc., 94 F.3d 1209, 1212
(8th Cir. 1996), cert. denied, 117 S. Ct. 946 (1997).      We view all facts
and resolve any conflicts in favor of the jury verdict, giving Doane the
benefit of all reasonable inferences.      Id.   "It is well settled that we
will not reverse a jury's verdict for insufficient evidence unless, after
viewing the evidence in the light most favorable to the verdict, we
conclude that no reasonable juror could have returned a verdict for the
non-moving party."    Ryther v. KARE 11, 108 F.3d 832,




                                      4
836 (8th Cir. 1997) (en banc), petition for cert. filed, 65 USLW 3694 (U.S.
Apr. 4, 1997) (No. 96-1571).


     The ADA generally protects "a qualified individual with a disability"
from discrimination on the basis of that disability in matters of job
applications and hiring, among other aspects of employment.       42 U.S.C.
§ 12112(a).   To obtain relief under the ADA, a plaintiff must establish
that he is (1) a disabled person within the meaning of the ADA, (2) that
he is qualified to perform the essential functions of his job either with
or without reasonable accommodation, and (3) that he suffered an adverse
employment action because of his disability.       See Benson v. Northwest
Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995); Wooten v. Farmland
Foods, 58 F.3d 382, 385 (8th Cir. 1995).


               A.   Disabled within the meaning of the ADA
     The city contends that in spite of Doane's blindness in one eye, he
is not a disabled person within the meaning of the ADA.      The ADA defines
disability as "a physical or mental impairment that substantially limits
one or more of the major life activities of [an] individual," or having "a
record of such an impairment," or when an individual is "regarded as having
such an impairment."   42 U.S.C. § 12102(2).   "Major Life Activities means
functions such as caring for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working."     29 C.F.R.
§ 1630.2(i) (emphasis added).   Factors to consider in determining whether
a disability has substantially limited a major life activity include "the
nature and severity of the impairment," "the duration or expected duration
of the impairment," and "the permanent




                                     5
or long term impact of or resulting from the impairment.           29 C.F.R.
§ 1630.2(j)(2).    See Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d
1311, 1319 (8th Cir. 1996).
     The agency's interpretive guidance on the ADA explains that "[t]he
determination of whether an individual has a disability is not necessarily
based on the name or diagnosis of the impairment the person has, but rather
on the effect of that impairment on the life of the individual."   29 C.F.R.
pt. 1630, appendix § 1630.2(j).           "[A]n impairment is substantially
limiting if it significantly restricts the duration, manner or condition
under which an individual can perform a particular major life activity as
compared to the average person in the general population's ability to
perform     that same major life activity."      29 C.F.R. Pt. 1630, App.
§ 1630.2(j).    Additionally, "[t]he determination of whether the individual
is substantially limited in a major life activity must be made on a case
by case basis, without regard to mitigating measures such as medicines, or
assistive or prosthetic devices."         Id.   See also Harris v. H & W
Contracting Co., 102 F.3d 516, 520-21 (11th Cir. 1996) (holding that the
ADA interpretive guidelines are based on a permissible construction of the
statute); Sicard v. City of Sioux City, 950 F. Supp. 1420, 1428-39 (N.D.
Iowa 1996) (same).
     Doane experiences total permanent blindness in one eye due to
glaucoma.    See Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 n.2 (4th
Cir. 1997) (noting that "both glaucoma and blindness . . . can be
disabilities").   He presented evidence that the loss of vision in one eye
constitutes a 25% disability of the visual system and a 24% whole body
impairment, according to the American Medical Association.   Doane's medical
experts testified that Doane's blindness in one eye substantially limits
his major life activity of seeing.     The evidence demonstrated that Doane
cannot sense depth in




                                      6
the same manner as persons with binocular (two-eyed) vision, and his
peripheral vision is limited due to his impairment.


      The city argues that Doane's impairment does not substantially limit
the major life activity of seeing because Doane has learned to adapt and
accommodate himself to his impairment.        Doane's corrected vision is 20/20.
His medical experts testified that his brain has learned to work with
environmental clues to develop his own sense of depth perception using only
one eye and that he has learned to compensate for his loss of peripheral
vision by adjusting his head position.         His doctor expressed the opinion
that Doane is able to function normally because his brain has learned over
the   years   to    make   subconscious   adjustments   to   compensate    for   the
limitation.


      We conclude that Doane is an individual with a disability within the
meaning of the ADA.        His glaucoma caused permanent blindness in one eye
which substantially limits Doane's major life activity of seeing.                The
manner in which Doane must sense depth and use peripheral vision is
significantly different from the manner in which an average, binocular
person performs the same visual activity.       Doane's brain has mitigated the
effects of his impairment, but our analysis of whether he is disabled does
not   include      consideration   of   mitigating   measures.    His     personal,
subconscious adjustments to the impairment do not take him outside of the
protective provisions of the ADA.


      The city urges us to follow the Fifth Circuit's holding that "a
person is not handicapped if his vision can be corrected to 20/200."
Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir. 1993), cert.
denied, 511 U.S. 1011 (1994).       Because Doane's




                                          7
vision is correctable to 20/20, the city argues, he is not a person with
a disability within the meaning of the ADA.    We decline to apply the Fifth
Circuit's holding in this case.   We must consider each situation on a case
by case basis.    Doane's vision impairment stems not merely from overall
poor eyesight but from total blindness in one eye due to glaucoma, which
significantly restricts the manner in which Doane performs the major life
activity of seeing.   Thus, Doane is a person with a disability entitled to
the ADA's protection.


     In this case, even if Doane's glaucoma did not actually substantially
limit Doane's ability to see, our conclusion would be the same.   The ADA's
definition of disability includes persons who are perceived as having an
impairment that substantially limits a major life activity.       42 U.S.C.
§ 12102(2)(C).    Police Chief Skinner testified that he perceived Doane's
visual problem as a significant limitation and that this was the reason he
recommended rejecting Doane's employment application.   (Appellee's App. at
18-19.)    Thus, the evidence demonstrates that the city perceived Doane as
having a disability that substantially limited his ability to see.      The
city cites cases holding that a plaintiff's major life activity of working
is not substantially limited by an inability to perform a single job.   See,
e.g., Wooten, 58 F.3d at 386; Chandler, 2 F.3d at 1391-93; Welsh v. City
of Tulsa, Okla., 977 F.2d 1415, 1417-19 (10th Cir. 1992).         We do not
disagree with this statement of law.      The principle is simply inapposite
in this case where the major life activity affected is that of seeing, not
working.   Likewise, the district court did not err by refusing to give the
city's requested jury instruction, which explained that an impairment
preventing an individual from meeting the requirements of one particular
job does not substantially limit the individual's major life activity of
working.




                                      8
                        B.   Qualified for the position


      Next, the city argues that Doane was not qualified to perform the
essential functions of the position of a sworn police officer.        The city's
expert testified that binocular vision and peripheral vision are very
important in a law enforcement situation and that a person with monocular
(one-eyed) vision would have a lower reaction time, rendering that person
a danger to himself, fellow officers, and the public.         All of the medical
experts agree that Doane's peripheral vision is limited.


      As noted above, a plaintiff bears the burden to demonstrate not only
that he is disabled, but also that he is qualified for the job.            To be a
"qualified individual with a disability," 42 U.S.C. § 12112(a) (emphasis
added), an individual must satisfy "the requisite skill, experience,
education and other job-related requirements of the employment position,"
and "with or without reasonable accommodation," the individual must be able
to   perform   "the   essential   functions   of   the   position."   29   C.F.R.
§ 1630.2(m).
      In this case, Doane made the requisite showing that his disability
does not prevent him from performing the essential functions of the job.
He testified to his specific qualifications for the job; for instance, he
has the necessary educational background, he has a valid motor vehicle
license, he had been a successful police officer for many years, he has
remained physically fit, and his eyesight is correctable to 20/20.          While
the medical experts all agreed that Doane's peripheral vision is limited,
the medical experts also testified that Doane has made adjustments that
compensate for his limited peripheral vision.       Doane demonstrated that the
city's job description does




                                        9
not specifically require binocular vision and that he had satisfactorily
performed the essential functions of the job in spite of his disability for
nine years before his termination in 1984.     A reasonable jury could have
concluded that Doane could perform the essential functions of the job, and
thus Doane sufficiently satisfied his burden to demonstrate that he was
qualified for the job.


      The city also argues that Doane did not fulfill the procedural
requirements of the Omaha Municipal Code when a current employee attempts
to   change job positions.      The city asserts that because Doane was
attempting to transfer to a position with a higher maximum salary, he was
required to go through an examination process, including a physical and
mental examination and a personal interview, as any applicant seeking an
original appointment.    This argument is without merit.   The Municipal Code
provides that vacancies may be filled by re-employment as well as original
appointment.     (See Appellants' Supp. App. at 46.)        Memos from city
officials indicate that Doane's applications to be rehired as a police
officer were treated as applications for re-employment, and thus were not
subject to the procedural requirements of an original appointment.      Also,
Doane specifically testified that he was not permitted to try to engage in
any of the testing requirements.       We agree with the district court's
assessment:    "Due to the discrimination of the city of Omaha, the plaintiff
was never given the chance to complete these standard preconditions of
employment."   (Appellant's Adden. at 25.)   The jury had sufficient evidence
before it from which it could conclude that Doane was qualified, and any
technical noncompliance with the personnel code does not undermine the
verdict.




                                      10
                                      C.     Remedies


        Following entry of the jury verdict, the district court held an
evidentiary hearing and awarded remedies of backpay and reinstatement.                    The
city challenges these remedies, arguing that the remedy in this case should
be limited to injunctive relief and should not include reinstatement or
backpay damages.


        The ADA provides that the Title VII remedies apply to any person
alleging    discrimination       on   the    basis    of    a   disability.      42   U.S.C.
§ 12117(a).     Once a plaintiff proves that an unlawful motive played some
part in the employment decision, see 42 U.S.C. § 2000e-2(m), the plaintiff
is   entitled   to   relief,     including         compensatory     damages,    declaratory
judgment, and injunctive relief.            Id. § 2000e-5(g)(2)(B); Pedigo v. P.A.M.
Transport, Inc., 60 F.3d 1300, 1301 (8th Cir. 1995).                      The defendant may
attempt to limit the relief by showing that it would have made the same
decision, even absent consideration of the impermissible factor.                      If "the
employer    proves   that   it    would      have    made   the    same    decision   absent
consideration of the employee's disability, the remedies available are
limited to a declaratory judgment, an injunction that does not include an
order for reinstatement or for back pay, and some attorney's fees and
costs."    Pedigo, 60 F.3d at 1301; see 42 U.S.C. § 2000e-5(g)(2)(B)(i) &
(ii).


        Because the city failed to prove that it would have taken the same
action against Doane had it not considered his blindness in one eye, there
is no basis for applying section 2000e-5(g)(2)(B) in this case.                     A person
who has been discriminated against is entitled to the most complete relief
possible, and there is a strong presumption that persons who have been
discriminated against are entitled to back pay.                   King v. Staley,




                                              11
849 F.2d 1143, 1144 (8th Cir. 1988).        As always, the goal is to make the
victim whole.        See id. (holding that the district court abused its
discretion in failing to award back pay and front pay based on the salary
of the position that the victim of discrimination was denied).               The
district court's discretion was not restricted in this case to imposing
injunctive relief.


        In determining whether to award reinstatement, any current inability
to satisfy all bona fide job requirements is a special circumstance that
may render reinstatement inappropriate.       Thomlinson v. City of Omaha, 63
F.3d 786, 790 (8th Cir. 1995) (a Rehabilitation Act case); see Wooten, 58
F.3d at 385 n.2 (noting that cases interpreting the Rehabilitation Act of
1973 are instructive in ADA analysis).       Because Doane had been out of the
police force for a number of years, the district court did not reinstate
Doane as a sworn, on-duty police officer but ordered the city to allow him
to participate in police recruit training.      This provided the city with the
opportunity to train Doane and to assess anew his current fitness for the
job.3       Additionally, out of an abundance of caution, the district court
provided the city with an opportunity to present evidence demonstrating
that Doane was not currently fit for the job.        The district court found
that the city presented no evidence other than Doane's vision disability
to indicate that he was unfit for the job.


        The city now argues that the district court erred by shifting to it
the burden to demonstrate that Doane was not qualified.        We note that the
jury instructions indicate that Doane properly bore the initial burden to
prove that he was a qualified individual




        3
       We were informed at oral argument that Doane had been sworn in as an Omaha
police officer two days before.
                                       12
with a disability, and the jury found in his favor.           That evidentiary
burden concerning liability is separate, however, from the issue of whether
reinstatement is an appropriate remedy.


       The district court shifted the burden on the remedial issue of
whether Doane was qualified for reinstatement, relying on Thomlinson v.
City of Omaha.       In Thomlinson, the city of Omaha was found to have
discharged a fire fighter on the basis of discrimination.       63 F.3d at 789.
When   considering   the   propriety   of   the   district   court's   order    of
reinstatement, we stated, "When analyzing whether a former employee is
currently qualified for reinstatement, a presumption exists that the former
employee remains qualified to perform the job.        The burden shifts to the
employer to prove the absence of current qualifications."              Id.     The
district court in the present case applied this presumption to determine
that Doane was entitled to reinstatement.
       The city argues that the Thomlinson presumption does not apply
because this is not a wrongful discharge case.      We disagree.   The wrongful
refusal to rehire situation of Doane's case is sufficiently analogous to
the wrongful discharge situation of the     Thomlinson case to invoke the same
presumption.     The record here indicates that Doane had successfully
performed this job in spite of his disability for nine years before his
discharge, and his visual disability was the only reason asserted for his
discharge.     Subsequent to his discharge, Doane sought but was denied
reinstatement on several occasions due to his visual disability.         Doane's
final attempt at reinstatement eight years after his discharge was his
first opportunity to seek reinstatement under the ADA, and the city offered
no basis for refusing to hire Doane other than his visual disability.
Given these circumstances, we conclude that the district court did not err
by requiring




                                       13
the city in this wrongful refusal to rehire case to demonstrate that Doane
was not qualified for reinstatement, in accordance with the presumption set
forth in Thomlinson.


     The city also argues that the back pay award should be reduced in
light of Doane's alleged failure to mitigate damages.      The district court
refused to consider the failure-to-mitigate issue because the city did not
raise the issue at trial.     Even if the issue had been raised earlier,
however, the city would not prevail.       The city asserts that Doane failed
to mitigate damages because he applied only once for re-employment as a
police officer and he voluntarily demoted himself to a lower paying job at
one point.   To the contrary, the record, viewed in the light most favorable
to Doane, indicates that Doane made several requests for re-employment as
a police officer but was denied consideration each time because of his
blindness in one eye.     The record also indicates that Doane left the
higher-paying dispatcher job to return to the 911 communications job
because it was very painful for him to be so closely aligned with police
officers yet be denied the opportunity to be one again.      Thus, the record
would support a finding that Doane did not fail to mitigate damages.


     For the foregoing reasons, we conclude that the district court did
not abuse its discretion in fashioning an appropriate remedy for the city's
discriminatory refusal to rehire Doane.
                                    III.


     Accordingly, we affirm the judgment of the district court.       We also
overrule the city's motion to strike portions of the record.




                                     14
A true copy.


     Attest:


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




                             15
