                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                         Nos. 01-1096/01-1434/01-2150
                                  ___________

Coralyn Anne Brown,                   *
                                      *
            Appellee,                 *
                                      * Appeals from the United States
      v.                              * District Court for the
                                      * Western District of Missouri.
Lester E. Cox Medical Centers, d/b/a  *
Cox Medical Centers South,            *
                                      *
            Appellant.                *
                                 ___________

                            Submitted: December 12, 2001

                                 Filed: April 17, 2002
                                  ___________

Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges.
                         ___________
RILEY, Circuit Judge.

       Coralyn Anne Brown (Brown) prevailed on her claim that her former employer,
Lester E. Cox Medical Centers (Cox), discriminated against her in violation of the
Americans with Disabilities Act of 1990 (ADA). The district court1 denied Cox's
motion for judgment as a matter of law, but granted Cox's motion for a new trial or
remittitur. After Brown avoided a new trial by accepting a remittitur, the district
court awarded Brown attorney fees. Cox appeals, and we affirm.

      1
       The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
I.     BACKGROUND
       Coralyn Anne Brown has been a registered nurse since 1971. In the early
1980s, Brown was diagnosed with "relapsing remitting" multiple sclerosis (MS),
which is characterized by isolated flare-ups sometimes separated by long intervals of
time. Brown experienced symptoms of MS in 1981, late 1984, and early 1985. By
October 1992, Brown reported fatigue and difficulty finding words, which caused her
treating physician to recommend that she take two weeks off of work. Brown took
the time off and returned to work later that month. She did not see her doctor again
until 1994.

      From the 1980s through 1993, Brown worked intermittently for Cox in
Springfield, Missouri. In 1992, Cox rehired Brown and assigned her to work as a
surgical nurse in the operating rooms. During her employment at Cox, Brown
received positive performance reviews in spite of her MS. Two of Brown's
supervisors, Susan Hoover (Hoover) and Phyllis Dew (Dew), both knew that Brown
had MS and gave her good evaluations. Brown received an acceptable performance
review on June 10, 1993, shortly before the occurrence which led to this lawsuit.

      That occurrence took place on July 29, 1993, in one of Cox's operating rooms.
In preparation for a dental surgery, and in accordance with a medication card filled
out by the surgeon, Brown, as the circulating nurse, prepared a local anesthetic
containing adrenaline. The patient, an eighty-five year old woman, was allergic to
adrenaline. A certified nurse anesthetist in the operating room, Jo Shughart
(Shughart), recognized the danger. Shughart was not a Cox employee. After
consulting with the surgeon and the anesthesiologist, Shughart prepared and
administered an anesthetic without adrenaline. Although the surgery then took place
without further incident, Shughart reported the occurrence to Dew. Brown made a
record of the incident by filling out a report.




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       Around the time of the adrenaline incident, Nancy Garrett (Garrett), Cox's
director of surgical services, learned about Brown's MS. One or two weeks after the
surgery, Brown was called to a meeting with Dew and Garrett. At the meeting, Dew
and Garrett discussed the adrenaline incident, as well as more general complaints
about Brown's performance. A statement placed in Brown's personnel file described
the meeting, in part, as follows:

      Several specific incidents were discussed with [Brown], such as
      responding very slowly to the scrub tech's need for supplies and an
      apparent inability to adapt to rapidly changing situations. She also
      seemed to have difficulty organizing her thoughts, remembering things
      and communicating with other personnel in stressful situations.

Dew and Garrett told Brown about another nurse who had MS and who had been
moved out of surgery. An unsigned, undated performance document was also
attached to Brown's already completed June 1993 performance evaluation. In this
document, Dew related her concern "about the effects of [Brown's] health status on
her stamina and on her reaction time."

        Following her meeting with Dew and Garrett, Brown was reassigned to the
sterile supply room, which her fellow nurses called "the dummy room," at least in part
because it contained two dumbwaiter elevators. There, Brown worked as an orderly,
checking expiration dates on medications, replacing expired medications, and
preparing medical supplies for the next day's surgeries. These tasks required an
ability to alphabetize and read dates, but not a nurse's skills or training. Although
Brown did not take a cut in pay or benefits, she was told her job in the supply room
should have come with a loss in pay. Eventually, Garrett told Brown she would have
to find another job. Garrett also said she would tell Brown's prospective employers
– including other employees of Cox if Brown sought another job with Cox – that
Brown was dependable but needed to find another job because of "health reasons."
Brown worked in the supply room for three months.

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      On November 17, 1993, Garrett told Brown she could return to the surgery
room as a circulating nurse. Brown testified she perceived this offer as a threat
because she would be watched and monitored every minute. After this conversation
with Garrett, Brown left Cox.

       At trial, both Brown and her daughter, Becky McClung, testified about the
demoralizing effect that the reassignment had on Brown. Brown testified that the
reassignment "embarrassed" her and caused her to suffer a "hurt ego" and a loss of
self-esteem. Brown also said it was "very hard to work" in the supply room, and co-
workers asked whom she had angered to get herself reassigned there. Brown
presented no evidence that the reassignment caused her to suffer physical symptoms
of distress or forced her to seek psychological treatment.

       Brown filed this lawsuit, and her case went to trial based solely on a claim that
Brown's transfer to the sterile supply room violated the ADA. The jury found in
Brown's favor and awarded her $140,000 in damages for emotional distress. The
district court denied Cox's motion for judgment as a matter of law, but granted its
motion for a new trial or remittitur. Rather than proceed again to trial, Brown
accepted a $90,000 remittitur, and the judgment in her favor was reduced to $50,000.

       Cox filed its notice of appeal of the verdict on January 2, 2001. Brown filed,
and later dismissed, a cross appeal of the district court's refusal to submit punitive
damages to the jury. On February 8, 2001, the district court awarded Brown attorney
fees of $59,489.25 and $6,298.50 in paralegal fees. On April 25, 2001, the district
court awarded $2,483.50 in additional attorney fees. Cox appeals these awards as
well.

      On appeal, Cox challenges the jury's finding of liability and the award of actual
damages. In the alternative, Cox argues that, despite the remittitur, it still deserves
a new trial based on errors in the jury instructions, errors in the admission of certain

                                          -4-
testimony, and unfairly prejudicial comments which Brown's lawyer made during her
closing argument. Finally, Cox challenges the district court's awards of attorney fees
to Brown.

II.    DISCUSSION
       A.     Motion for Judgment as a Matter of Law
       A district court's denial of judgment as a matter of law is reviewed de novo,
using the same standards applied by the district court. See Phillips v. Collings, 256
F.3d 843, 847 (8th Cir. 2001). Under Rule 50, a court should render judgment as a
matter of law when "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."
Fed. R. Civ. P. 50(a)(1). "In making this determination, the court must draw all
reasonable inferences in favor of the nonmoving party without making credibility
assessments or weighing the evidence." Phillips, 256 F.3d at 847 (citing Lytle v.
Household Mfg., Inc., 494 U.S. 545, 554-55 (1990)).

             1.      Liability Under the ADA
       In general, the ADA makes it unlawful for an employer to discriminate against
an employee on the basis of a disability. 42 U.S.C. § 12112(a). Under the ADA, a
disability means "a physical or mental impairment that substantially limits one or
more . . . major life activities" and includes "being regarded as having such an
impairment." 42 U.S.C. § 12102(2)(A) & (C). Brown claims that Cox regarded her
MS as a disability and discriminated against her on that basis.

       To constitute a disability under the ADA, an impairment must affect a "major
life activity." Id. Major life activities are "those basic activities that the average
person in the general population can perform with little or no difficulty." 29 C.F.R.
Pt. 1630, App. The ability to perform cognitive functions on the level of an average
person certainly falls within this category. See Mattice v. Memorial Hosp. of S.
Bend, Inc., 249 F.3d 682, 684 (7th Cir. 2001) (anesthesiologist's claim that he was

                                          -5-
discriminated against because of an inability to perform "cognitive thinking" stated
a claim under the ADA).2 Cox does not dispute that this level of thinking is a major
life activity for purposes of the ADA.

       Cox's strongest argument against the verdict is that it did not regard Brown's
MS as a substantial limit on her ability to think. A "substantial limit" means an
inability or a significant restriction on the ability to perform a major life activity that
the average person in the general population can perform. See 29 C.F.R.
§ 1630.2(j)(1). Cox argues that, while it deemed Brown's performance below the
appropriate standard for a surgical nurse, it did not consider her a below-average
thinker.

       Although there is evidence to support Cox's argument, there is also substantial
evidence in support of the jury's verdict. Although Brown's supervisors professed a
belief that Brown had difficulty dealing with "stressful situations," there was little
evidence to support their belief. In contrast, there was evidence – including the
undated attachment to Brown's performance evaluation – that Brown's supervisors
were using stress as an excuse to get her out of the surgical unit. Brown's supervisors
did not attempt to find her a less stressful nursing position. Instead, they reassigned
Brown to the sterile supply room where her only responsibilities were clerical. As
Garrett eventually made clear, Brown's job in the supply room was only temporary,
and she was expected to look elsewhere for work. Taken together, and viewed in the
light most favorable to Brown, these circumstances rebut Cox's explanation for its
behavior and suggest Cox thought Brown's MS made her unfit for any further



      2
        The regulations implementing the ADA also list as major life activities
"functions such as caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i).
Although Brown claims she was regarded as being substantially limited in her ability
to learn, nothing in the record bears out that claim.

                                           -6-
employment at Cox. This permissible inference supports the jury's finding that Cox
regarded Brown as being disabled under the ADA.

      Cox also challenges the jury's finding that Brown suffered an adverse
employment action. An adverse employment action is one that causes a material
change in the terms or conditions of employment. Duffy v. McPhillips, 276 F.3d 988,
992 (8th Cir. 2002). To be "adverse," an employment action must do more than
merely make an employee unhappy, but it need not always involve termination or
even a decrease in benefits or pay. Phillips, 256 F.3d at 848. Nevertheless, a transfer
from one job to another is not an adverse employment action if it involves only minor
changes in the employee's working conditions with no reduction in pay or benefits.
Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997). The courts should not
become a personnel review board.

       Viewed in the light most favorable to the verdict, the evidence showed a
significant, detrimental change in Brown's working conditions. Brown's supervisors
removed her from a permanent position and placed her in a temporary one.
Considering Garrett's promise to tell prospective employers that Brown needed to
find a new job because of "health reasons," the jury could have found that Brown's
transfer from the operating room to the surgical supply room significantly hurt her
future career prospects. See Cooney v. Union Pac. R.R. Co., 258 F.3d 731, 734 (8th
Cir. 2001). Brown's position in the surgical supply room also prevented her from
using her professional nursing skills. See Fisher v. Pharmacia & Upjohn, 225 F.3d
915, 919-20 (8th Cir. 2000); Collins v. Illinois, 830 F.2d 692, 704 (7th Cir. 1987).
Certainly Brown, and apparently some other Cox employees (and possibly Brown's
supervisors), considered the reassignment to the "dummy room" as a status demotion.
While Brown's new job did not come with a reduction in pay, Brown was told that she
should have received a pay cut based upon the work she was doing. We find these
circumstances, considered as a whole, sufficient to support the jury's finding that
Brown suffered an adverse employment action.

                                         -7-
       Cox's remaining arguments against the jury's finding of liability are without
merit. First, there was sufficient evidence that Brown's reassignment was based on
her supervisors' perception of her ability to think. Second, there was sufficient
evidence that Brown was "otherwise qualified" to work in the operating room. See
42 U.S.C. § 12111(8). Finally, although Brown's reassignment may have been
justified in order to protect the public from a "direct threat" of substantial harm, see
29 C.F.R. 1630.15(b)(2), Cox did not attempt to prove this affirmative defense.

       Cox presents the facts in support of its contentions without fully
acknowledging our review must interpret the facts and draw all reasonable inferences
in favor of Brown, without making credibility assessments or weighing the evidence.
Cox presented a strong defense of its actions and showed evidence of good intentions,
but the jury simply believed Brown and not Cox on the critical issues.

               2.    Damages for Emotional Distress
        The evidence supporting the severity of Brown's emotional distress was hardly
overwhelming. Nevertheless, we have upheld comparable verdicts based on similar
evidence. See Webner v. Titan Distrib., Inc., 267 F.3d 828, 836 (8th Cir. 2001)
(upholding $25,000 in damages where the plaintiff said he was "scared," "frustrated,"
and felt empty and like he lost his best friend); Frazier v. Iowa Beef Processors, Inc.,
200 F.3d 1190, 1193 (8th Cir. 2000) (upholding $40,000 award where plaintiff
testified he felt "empty and lost" and his dignity and self-esteem were taken from him,
and his ex-wife said he was a "broken man"). In this case, both Brown and her
daughter testified about the embarrassment and demoralization Brown suffered as a
result of the reassignment. We find their testimony sufficient to support the $50,000
award Brown received after the remittitur.




                                          -8-
       B.     Motion for a New Trial
       The decision whether to grant a new trial lies within the sound discretion of the
district court. See Phillips, 256 F.3d at 851. Cox argues that the district court should
have granted a new trial because it erred in instructing the jury and in admitting
certain evidence, and because, during her closing argument, Brown's lawyer placed
the ADA within a historical context of other anti-discrimination laws. Having
carefully reviewed the record, we find no abuse of discretion in the district court's
decision to grant remittitur instead of a new trial. In particular, we note that the
challenged comments made by Brown's lawyer in closing were not improper
argument, and Cox did not object to the comments at the time they were made.

       C.    Attorney Fees
       Cox's arguments against the award of attorney fees border on the frivolous.
Cox's main argument is that Brown is ineligible for at least some of the awarded fees
because she refused an offer of judgment prior to trial. Under Rule 68 of the Federal
Rules of Civil Procedure, a plaintiff who declines an offer of judgment and does not
obtain a more favorable judgment may not recover costs, and possibly attorney fees,
for work after the offer. Marek v. Chesny, 473 U.S. 1, 9 (1985). However, Cox's
offer of judgment – $32,500 plus no more than $2,000 in court costs – fell well short
of the actual judgment of $50,000 plus costs and attorney fees. We have reviewed
Cox's remaining arguments with respect to attorney fees and find them similarly
devoid of merit.

       D.    Motions on Appeal
       On appeal, the parties have also filed motions which have been consolidated
with the merits of the case. Cox filed a motion for damages and costs, arguing that
Brown's now-dismissed cross appeal on punitive damages was frivolous. Brown filed
a motion to strike Cox's opening brief. Both of these motions are denied.




                                          -9-
III.   CONCLUSION
       There was a legally sufficient basis for the jury's verdict in favor of Brown on
her claim for damages under the ADA, as well as for the award of damages Brown
received after remittitur. Cox's remaining arguments in support of a new trial and
against the district court's awards of attorney fees are without merit. Accordingly, we
affirm the judgment and attorney fee awards of the district court.

       A true copy.

             Attest:

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




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