                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2221
                                   ___________

Thomas M. Finan,                       *
                                       *
      Appellee,                        *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Missouri.
Good Earth Tools, Inc.; Ballast Tools, *
Inc.,                                  *
                                       *
      Appellant.                       *
                                  ___________

                             Submitted: April 14, 2009
                                 Filed: May 19, 2009
                                 ___________

Before RILEY, BENTON, and SHEPHERD, Circuit Judges.
                            ___________

BENTON, Circuit Judge.

       Thomas M. Finan sued his former employers, Good Earth Tools, Inc. and
Ballast Tools Inc. (Good Earth) in district court,1 alleging his termination violated
Title I of the Americans with Disabilities Act, 42 U.S.C. § 12112(a). The jury
returned a verdict in favor of Finan. Good Earth appeals. Having jurisdiction under
28 U.S.C. § 1291, this court affirms.



      1
        The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
                                          I.

       Good Earth employed Finan as a traveling salesperson from 1996 to 2004. He
traveled by car throughout the country and into Canada. In October 2001, a customer
advised Good Earth that there was “something wrong” with Finan. Good Earth told
him to be medically evaluated. Finan’s doctor did not find a medical condition. He
returned to work. In December, Finan drooled at a sales meeting, the result of an
apparent seizure. Good Earth instructed him to return home and refrain from
contacting any customers.

      In March 2002, Finan had a meeting with a Good Earth owner, who later
claimed Finan had a seizure during the meeting. In April, Finan’s doctor informed
Good Earth that there were no obstacles to Finan returning to work. Finan and the
Good Earth owner met in May; the owner claims Finan had two “episodes” during the
meeting. In August, a neurologist concluded that Finan did not have any brain
dysfunction that would prevent him from working. Good Earth sent Finan to a
company-selected neurologist who was unable to determine whether Finan was having
seizures.

      Finan returned to work in October 2002. In February 2003, Good Earth placed
him on administrative leave, citing recent seizures, and ceased paying his base salary.
Good Earth again instructed him to see the company-selected neurologist, who
diagnosed Finan with complex partial seizure disorder in March. Finan’s personal
doctor concluded he had epilepsy, but with proper medication, his seizures should be
controlled. Finan’s doctor explained that he could return to work immediately and
would be able to drive again once seizure-free for six months. Finan applied for, and
began receiving, benefits under a private long-term disability policy.

        In June 2003, Good Earth reinstated Finan’s base pay, allowing him to make
calls from home, but not travel. In October, he was once again permitted to drive and

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make outside sales calls. The next month, Good Earth placed him on probation for
meager sales performance compared to other salespersons. In early February 2004,
Good Earth terminated his employment, citing poor sales, and failure to comply with
company procedures for taking vacation.

       Following his termination, Finan applied for Social Security disability benefits.
The Social Security Administration found that Finan’s epilepsy itself was not
disabling, and that he “was not disabled prior to February 9, 2004,” but was disabled
after that date.

     A jury found that Good Earth terminated Finan due to a perceived disability,
awarding him $410,000 in back pay and $65,000 in damages.

                                          II.

      Good Earth argues that the district court erred in denying its motion for
judgment as a matter of law. This court reviews a denial of a motion for judgment as
a matter of law de novo, applying the same standards as the district court. Craig
Outdoor Adver., Inc. v. Viacom Outdoor, Inc., 528 F.3d 1001, 1027 (8th Cir. 2008).
Judgment as a matter of law following a jury verdict is appropriate only when the
evidence is entirely insufficient to support a verdict. Id.

       To obtain relief under the ADA, Finan was required to show that he was a
disabled person within the meaning of the ADA, was qualified to perform the essential
functions of his job, and suffered an adverse employment action because of his
disability. See Kosmicki v. Burlington N. & Santa Fe Ry. Co., 545 F.3d 649, 651
(8th Cir. 2008). The ADA defines a disability, with respect to an individual, as: “(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). At trial, Finan

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proceeded under the “regarded as” theory – that he was able to work, but he was
terminated because Good Earth regarded him as disabled.

       Good Earth primarily argues that Finan’s regarded-as claim fails because he
was not qualified to perform the essential functions of his job. “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.” Chalfant v. Titan Distribution, Inc., 475 F.3d 982, 989 (8th Cir.
2007). Good Earth claims it did believe that Finan’s condition substantially limited
his ability to work, but that its belief was not mistaken. Whether Finan was able to
perform the essential functions of his job at the time of his discharge is a question of
fact. Finan presented evidence at trial that he was fit to drive and perform the other
essential functions of the job of traveling salesperson, without accommodation. Good
Earth’s contrary evidence was apparently not believed by the jury. The evidence was
sufficient for a reasonable jury to conclude that Finan was able to perform the
essential functions of his job.

      Good Earth emphasizes Finan’s receipt of private and Social Security disability
benefits, asserting that his receipt of benefits conclusively proves he was incapable of
working. When Finan applied for benefits under his private long-term disability
policy in April 2003, he met the policy’s requirements: a “disability or sickness,” a
doctor’s care, and at least a 20 percent decrease of income. This does not prove that
Finan was disabled under the ADA.

      An ADA plaintiff must proffer a sufficient explanation for the apparent
contradiction arising out of an earlier Social Security disability claim. Cleveland v.
Policy Mgmt. Sys. Corp., 526 U.S. 765, 806-07 (1999). First, the Social Security
Administration did not find that Finan was incapable of performing the essential
functions of his job at Good Earth. Rather, the Administration determined that
considering his age, education, work experience, and residual functional capacity,

                                          -4-
there are not a significant number of jobs in the national economy that he could
perform. Additionally, Finan’s medical condition changed over time. The
Administration found that although he was disabled for Social Security purposes after
February 9, 2004, he was not disabled prior to his termination. Finan sufficiently
explained any apparent contradiction between his Social Security and ADA claims.

       Next, Good Earth asserts that the district court erred in allowing Finan to
introduce evidence that he was not given a reasonable accommodation while he was
disabled, because the evidence served only to make Good Earth appear hostile toward
people with disabilities. This court reviews the evidentiary rulings of a district court
for abuse of discretion, and reverses only when an improper evidentiary ruling affects
the substantial rights of the defendant, or the error had more than a slight influence on
the verdict. United States v. Elbert, 561 F.3d 771, 775 (8th Cir. 2009). Good Earth
is correct that an employee who is “regarded as disabled” is not entitled to a
reasonable accommodation. See Weber v. Strippit, Inc., 186 F.3d 907, 917 (8th Cir.
1999). However, Good Earth vigorously contends that Finan was not “regarded as
disabled,” but actually disabled at the time he requested the reasonable
accommodations. Good Earth’s responses to his requests for accommodation are
probative as to whether Good Earth harbored animosity toward Finan due to his
epilepsy. See Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 834 (8th Cir.
2000) (“Failing to provide an employee with reasonable accommodations can tend to
prove that the employer also acted adversely against the employee because of the
individual’s disability.”). Good Earth fails to indicate how any prejudice resulting
from admission of this evidence outweighs its probative value. See Fed. R. Evid.
403. Further, contrary to Good Earth’s assertion, the amount of reasonable-
accommodation evidence presented to the jury was limited. Good Earth proffers that
it objected repeatedly to the introduction of reasonable-accommodation evidence,
citing 15 portions of the trial transcript. Of those, testimony touching upon
accommodations was allowed twice. The district court did not abuse its discretion in
allowing Finan’s introduction of reasonable-accommodation evidence.

                                          -5-
       Good Earth claims that the verdict should be reversed because Finan attempted
to mislead the district court in an attempt to obtain appointed counsel by submitting
an in forma pauperis affidavit. A district court has discretion to dismiss a case with
prejudice where a plaintiff has in bad faith filed a false affidavit of poverty.
Romesburg v. Trickey, 908 F.2d 258, 260 (8th Cir. 1990). The affidavit in question
was filed in an associated case Finan originally maintained with his wife. The district
court did not find that Finan filed the affidavit in bad faith. Finan moved to withdraw
as a plaintiff in that case and then filed an amended financial affidavit on his wife’s
behalf. Good Earth has not identified any falsehoods in the amended financial
affidavit. The district court did not err in refusing to reverse the jury’s verdict on this
ground.

       Finally, Good Earth argues that Finan is not entitled to back pay because he was
unable to perform the essential functions of his job. Again, the jury specifically found
that Finan was qualified to perform the essential functions of his job at the time he
was discharged. Therefore, the award of back pay was appropriate.

                                           III.

      The judgment of the district court is affirmed.
                     ______________________________




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