                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           DEC 11 1998
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    CHARLES W. MASTERSON,

                 Plaintiff-Appellee,

    v.                                              Nos. 98-6025 & 98-6126
                                                   (D.C. No. CIV-96-2112-C)
    YELLOW FREIGHT SYSTEM, INC.,                         (W.D. Okla.)

                 Defendant-Appellant.




                              ORDER AND JUDGMENT         *




Before PORFILIO , BARRETT , and KELLY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The cases are

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      We have consolidated these cases for purposes of disposition. In case

No. 98-6025, defendant-appellant Yellow Freight System, Inc. (Yellow Freight)

appeals from the district court’s orders entering a permanent injunction; denying

Yellow Freight’s motion for judgment as a matter of law; and granting in part and

denying in part Yellow Freight’s motion for stay pending appeal.   1
                                                                       In case No. 98-

6126, Yellow Freight appeals from the district court’s order awarding attorney’s

fees to plaintiff-appellee Charles W. Masterson. We affirm the district court’s

orders denying the motion for judgment as a matter of law and awarding

attorney’s fees to Masterson, but remand to allow the district court to reconsider

its order of injunctive relief.


                                           I.

      Masterson began working as an over-the-road driver for Yellow Freight in

1974. In 1981, he suffered a severe work-related accident resulting in amputation

of his left arm. Over the course of the next several years, he rehabilitated himself

by driving a farm tractor and his own truck. He subsequently passed a




1
       Yellow Freight has not sought a stay pending appeal in this court.  See
generally Fed. R. App. P. 8. Although it appealed from the order denying in part
its motion for stay, it advances no arguments which specifically target the denial
of a stay. The entry of this judgment on the merits makes any claim for a stay
pending appeal moot.

                                           -2-
Department of Transportation (DOT) driving test and was issued a waiver

allowing him to drive trucks using a driving ring and a spinner knob.

      Masterson returned to driving for Yellow Freight in 1988. He drove using

the driving implements and a prosthetic left arm, relying primarily on his right

arm for steering. At the time of trial in this matter, he drove a relay run for

Yellow Freight between Oklahoma City and Albuquerque.        2



       In October or November of 1994, Masterson injured his right shoulder and

had to leave work. He returned to work in mid-November, but re-injured the

shoulder. Dr. David Ellis thereafter gave him a release to work which restricted

him to driving tractors with power steering.

      Yellow Freight refused to dispatch Masterson with the power steering

limitation. Masterson went without work for a number of weeks, which caused

him financial hardship. Dr. Ellis eventually removed his restriction on driving

nonpower steering tractors, at Masterson’s request, so that he could go back to

driving for Yellow Freight. Ellis warned Masterson, however, that if he


2
       The trucks Masterson drives for Yellow Freight have two basic
components: the tractor, where the engine is located and from which the driver
drives the truck, and the trailer, which carries the freight. Trailers may be
attached or detached and switched between tractors. Once a tractor has been
hitched to a trailer, a great deal of exertion is required to steer the truck. The
amount of exertion required is lessened considerably if the tractor is equipped
with power steering. Jimmy Noal, a driver and witness for Masterson at trial,
estimated that the effort required to turn a power steering truck is only ten percent
of that required for a nonpower steering truck.

                                          -3-
continued to drive nonpower steering tractors, he could eventually lose the use of

his right arm. Ellis testified at trial that he was shocked that Yellow Freight was

still dispatching Masterson in trucks without power steering.

      Masterson brought this suit under the Americans with Disabilities Act of

1990, 42 U.S.C. §§ 12101-12213 (ADA), contending that Yellow Freight had

failed to accommodate his disability by supplying him with a truck with power

steering. A jury awarded him damages on his ADA claim, and the district court

entered an injunction requiring Yellow Freight to dispatch him only on power

steering tractors.


                                           II.

       Yellow Freight challenges the district court’s denial of its renewed motion

for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b). In reviewing

the grant or denial of such motions we apply the following standard:

             Judgment as a matter of law is appropriate if during a jury trial
      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. We review a district court’s grant of this motion de
      novo. A court may grant the motion only if the evidence points but
      one way and is susceptible to no reasonable inferences which may
      support the opposing party’s position. On review, we examine the
      evidence in the light most favorable to [the nonmoving party],
      extending to [him] the benefit of all reasonable inferences.

Davis v. United States Postal Serv.   , 142 F.3d 1334, 1339 (10th Cir. 1998)

(citations and quotations omitted).

                                           -4-
       Under 42 U.S.C. § 12112(a), employers are prohibited from discriminating

against qualified individuals with disabilities in connection with their

employment. An employer discriminates when he fails to make “reasonable

accommodations to the known physical or mental limitations of an otherwise

qualified . . . employee.”   Id. § 12112(b)(5)(A). An employee is “qualified” for a

position when, with or without reasonable accommodation (which he must

describe), he can perform the essential functions of the position.       See id.

§ 12111(8); White v. York Int’l Corp. , 45 F.3d 357, 360-61 (10th Cir. 1995).

       Yellow Freight identifies the ability to drive a truck without power steering

as an essential function of the job of relay driver. Yellow Freight contends from

this definition that either Masterson is not “qualified” because he cannot perform

that essential function, or that Masterson’s proposed accommodation is

unreasonable because it would eliminate one of the essential functions of his job.

       The record demonstrates, however, that Masterson can drive a nonpower

steering truck. In fact, he conceded at trial that there are times when he     must

drive a nonpower steering tractor because no power steering tractors are

available. The problem, he claims, is that Yellow Freight often requires him to

drive a nonpower steering tractor even when a power steering tractor is available

and could be switched to his load. We narrow the real point of contention

between the parties, therefore, to whether it is an essential function of


                                             -5-
Masterson’s job to drive a nonpower steering truck      even on occasions when other

power steering tractors are available and could be switched to his load      . Yellow

Freight contends that it is.

       The district court properly instructed the jury that the “essential functions”

of a job are those duties which are “fundamental” to the position.        See 29 C.F.R.

§ 1630.2(n)(1). In reviewing the question of whether there was a legally

sufficient basis for the jury’s determination in Masterson’s favor on the “essential

function” issue, we are mindful that “[i]f we venture to second-guess then we

simply usurp the most critical function of the jury in ADA cases, i.e., the injection

of some indispensable common sense in the determination of what is or is not an

essential function.”   Barber v. Nabors Drilling U.S.A., Inc.   , 130 F.3d 702, 707

(5th Cir. 1997).

       Approximately seventy percent of Yellow Freight’s tractors are equipped

with power steering. Yellow Freight states that because of the time-sensitive

nature of its business, its relay drivers are required to drive whatever tractor

arrives with the inbound trailer, whether or not it has power steering. Its

witnesses testified that switching tractors to accommodate relay drivers causes

unacceptable delays and is therefore not permitted.

       Yellow Freight admits, however, that relay drivers are allowed to switch

tractors if there are mechanical problems with the inbound tractor. Significantly,


                                            -6-
“mechanical problems” include not only gross vehicle malfunctions but also

broken air conditioning.     3
                                 There was testimony that air conditioning swaps are

frequently requested by outgoing drivers and that Yellow Freight approves them

even though they cause delays. There was also testimony that it would take no

more time to switch a tractor for power steering than it would for air

conditioning,   4
                    and that the delay involved would only be a matter of minutes.

      Finally, there was testimony that at least some of Yellow Freight’s

dispatchers pursued a de facto policy of allowing drivers to switch tractors when

the assigned tractor was “too old” or did not have power steering. Yellow Freight

insisted that such swaps were against company policy, but there is little evidence

that its supervisory personnel made any concerted effort to police the practice.

This significantly undercut Yellow Freight’s assertion that switching tractors

causes disastrous delays.

      A reasonable jury could have determined from the testimony presented that

Yellow Freight exaggerated the disruption to its operations which would be

3
       Yellow Freight is obligated by contract to supply its drivers with tractors
with functional air conditioning during the summer months.
4
       Yellow Freight put on testimony that swapping a tractor for Masterson
would cause additional delays because he must take time to attach the implements
which allow him to drive as a handicapped person. While this testimony may
speak volumes about Yellow Freight’s attitude toward Masterson’s disability, it is
irrelevant to the issues here. Yellow Freight does not argue that it is an essential
job function to be able to drive a relay tractor without taking time to attach
assistive devices for the handicapped.

                                             -7-
caused by allowing Masterson to switch to a tractor with power steering. Because

switching for air conditioning was allowed, despite the attendant delays, a jury

could have disbelieved Yellow Freight’s rationale that it was essential that a relay

driver drive whatever tractor was assigned to him. Finally, the jury could have

concluded that the ability to drive a nonpower steering truck when power steering

trucks were available was not an essential function of Masterson’s employment.

      Yellow Freight argues, alternatively, that since Masterson admits that he is

currently capable of driving nonpower steering trucks at least some of the time

using his prosthesis and implements, the jury should have found that he does not

need any further accommodation. We disagree.

      The jury heard testimony from Dr. Ellis, who stated that continued driving

of nonpower steering tractors was likely not only to aggravate Masterson’s

shoulder injuries but would eventually wear out his right shoulder joint. Ellis

further opined that if Masterson’s right arm wore out, he would be unable to

work. 5 A reasonable jury could have concluded from this that the more time



5
       We reject any implication that accommodation is only necessary to
facilitate a disabled person’s present ability to perform his job. In determining
whether an individual has a disability which must be accommodated, the
regulations require consideration of the “permanent or long term impact, or the
expected permanent or long term impact of or resulting from the impairment.” 29
C.F.R. § 1630.2(j)(2)(iii). The expected impact of continuing to drive a
nonpower steering truck on a frequent basis was a perfectly legitimate
consideration for the jury.

                                         -8-
Masterson spent driving nonpower steering trucks, the more likely he was to

permanently injure himself, and that use of the prosthesis and implements alone

therefore was not a sufficient accommodation of his disability.


                                           III.

       Our narrowing of the previous issue spotlights a potential problem with the

district court’s order providing Masterson with injunctive relief. The district

court permanently enjoined Yellow Freight from providing Masterson with any

vehicle other than one equipped with power steering. It further ordered that on

any occasion that Yellow Freight did not provide Masterson with a power steering

tractor, he would not be required to drive but Yellow Freight must pay him as if

he had. Yellow Freight contends that the injunction is overbroad and must be

dissolved.

       As noted, Masterson concedes that he must drive a nonpower steering

tractor on occasions when no power steering tractor is available to be switched.   6



The ability to drive a nonpower steering vehicle on such occasions clearly is an

essential function of his job. This is true even though such occasions may occur



6
       Our task was made more difficult, however, by Masterson’s vacillation
concerning this point. Compare Appellant’s App. Vol. IV at 1012 (requesting, in
post-trial submission concerning injunctive relief, that Masterson be provided
with a power steering vehicle on all trips); with Appellee’s Br. at 12 (“Masterson
has never demanded that he drive power steering vehicles exclusively.”).

                                            -9-
only infrequently.    Cf. Brickers v. Cleveland Bd. of Educ.   , 145 F.3d 846, 849-50

(6th Cir. 1998) (holding that duties performed only occasionally can be essential

to a job); Holbrook v. City of Alpharetta     , 112 F.3d 1522, 1527 (11th Cir. 1997)

(same).

       An employer is not required under the ADA to accommodate an employee’s

disability by eliminating an essential function of his job.    See Smith v. Blue Cross

Blue Shield of Kan., Inc. , 102 F.3d 1075, 1076 (10th Cir. 1996),     cert. denied , 118

S. Ct. 54 (1997). We recognize that the district court was concerned with Yellow

Freight’s willingness to comply with the ADA given the evidence. At the same

time, the injunction may have the unintended effect of relieving Masterson of

having to drive a nonpower steering truck when one with power steering is        truly

unavailable. Plainly, some type of injunctive relief is in order, but the district

court should reconsider whether the injunction could be more narrowly tailored to

prevent future violations of the ADA, the most important factor in deciding the

propriety of the injunctive relief.   See Roe v. Cheyenne Mountain Conference

Resort, Inc. , 124 F.3d 1221, 1230-31 (10th Cir. 1997).

                                             IV.

        In its final issue, Yellow Freight contends that the district court improperly

awarded attorney’s fees to Masterson. We review the district court’s award of

attorney’s fees for abuse of discretion.     See Case v. Unified School Dist. No 233     ,


                                             -10-
157 F.3d 1243, 1249 (10th Cir. 1998). Masterson supported his request for

attorney’s fees with an affidavit containing an attached itemization which listed

the services rendered by his attorney and the billable hours she spent on each

item. Yellow Freight contends that the itemization is inadmissible hearsay and

should have been stricken. It further argues that Masterson’s counsel failed to

substantiate the time she spent by supplying contemporaneous time records.

       We reject Yellow Freight’s hearsay argument. Yellow Freight

mischaracterizes the itemization as a “record of regularly conducted activity,”       see

Fed. R. Evid. 803(6), requiring separate compliance with that hearsay exception

to be admissible. The itemization, however, is not only identified as an

attachment to the affidavit but is clearly an integral part thereof. The affidavit

itself purports to have been made upon personal knowledge. The district court

properly relied on the itemization in making its attorney fee award.

       Masterson requested a total fee award of $91,336.50, representing 341.10

attorney hours at $215 per hour and 60 attorney hours at $300 per hour. In its

response, Yellow Freight contended that Masterson had failed to establish that the

request was based on contemporaneous billing records.        See Case , 157 F.3d at

1250 (noting requirement of meticulous, contemporaneous billing records to

support fee award). Yellow Freight accused counsel of “reconstruct[ing] her

billing records by going through the file and guesstimating the amount of time she


                                           -11-
spent on this case.” Appellant’s App. Vol. IV at 1090. Counsel did not

specifically deny that charge, but “represent[ed] that the submission is a true and

correct accounting of the work performed in the case.”        Id. at 1132. The district

court, finding counsel’s reply “not helpful,”      id. at 1164, and noting that some

entries did not appear to be supported by meticulous, contemporaneous records,

reduced the fee award to $43,740, less than half the amount requested.

       A court may award an attorney’s fee based on a reconstructed record.        See

Anderson v. Secretary of Health & Human Servs.         , 80 F.3d 1500, 1506 (10th Cir.

1996). In such cases, a general reduction of hours to achieve what the district

court determines is a reasonable number may be appropriate.         See id. Although

there was no general reduction in the number of hours in this case, there was a

substantial reduction, and we cannot say that the district court abused its

discretion in making the award it did.




                                            -12-
       The judgments of the United States District Court for the Western District

of Oklahoma are AFFIRMED with the exception of the district court’s order

entering a permanent injunction, which is REMANDED for reconsideration in

light of this order and judgment. Masterson’s motion to dismiss this appeal for

lack of jurisdiction is DENIED.



                                                   Entered for the Court



                                                   James E. Barrett
                                                   Senior Circuit Judge




                                       -13-
