                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                              ________________________ ELEVENTH CIRCUIT
                                                                         AUGUST 27, 2009
                                    No. 08-16533                        THOMAS K. KAHN
                              ________________________                      CLERK


                          D. C. Docket No. 06-01093-CV-W-N

EDDIE J. HAYNES,


                                                                          Plaintiff-Appellee,

                                            versus


CITY OF MONTGOMERY, ALABAMA,

                                                                      Defendant-Appellant.


                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Alabama
                            _________________________

                                     (August 27, 2009)

Before CARNES and PRYOR, Circuit Judges, and DOWD,* District Judge.

PER CURIAM:

*
  Honorable David D. Dowd Jr., United States District Judge for the Northern District of Ohio,
sitting by designation.
       The main question presented by this appeal is whether there was sufficient

evidence for the jury to find that the City of Montgomery violated the Americans

with Disabilities Act of 1990. 42 U.S.C. §§ 12101 et seq. After he was placed on

involuntary leave and then terminated by the City from his position of firefighter,

Eddie J. Haynes filed a complaint that the City had violated the Disability Act. At

trial, the jury found for Haynes and awarded him $90,000 for back pay and

$270,000 for emotional pain and mental anguish. The district court denied the

motions of the City for a new trial or remittitur and for judgment as a matter of

law.

       The City argues that the evidence was insufficient for the jury to find that

the City regarded Haynes as disabled and to find that Haynes’s perceived disability

motivated the City to terminate Haynes’s employment, but we disagree. Sufficient

evidence established that the City perceived Haynes as substantially limited from

performing a broad range of jobs, including that of firefighter, because of his

prescription medication. The notes and testimony of the doctor hired by the City to

perform evaluations of firefighters established that the doctor would not have

cleared Haynes to work in any safety-sensitive position or drive a vehicle of any

kind, including a fire truck. Sufficient evidence also established that perception

prompted the City to terminate Haynes’s employment, not the desire of the City to



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ensure the safety of Haynes, other firefighters, and the public. The City relied on

the doctor’s evaluation of Haynes in deciding not to return Haynes to duty, and the

doctor admitted that other firefighters who were taking similar medication were not

terminated or placed on leave. Because Haynes’s regarded as disabled claim was

an independent basis for the jury’s verdict, we need not address the argument of

the City that the evidence was insufficient for the jury to find against the City on

its business necessity defense to Haynes’s claim about qualifications standards.

      The City also argues that it is entitled to a judgment as a matter of law

because Haynes failed to mitigate his damages, but the City waived this argument

when it failed to raise it in its motion for a judgment as a matter of law. Even if the

argument were not waived, the jury was instructed about Haynes’s duty to

mitigate, and the evidence was sufficient for the jury to find in favor of Haynes.

      The City also argues that the district court abused its discretion when it

denied remittitur or a new trial because the jury award was excessive, it was

prejudiced by Haynes’s closing argument, and the jury instructions were

erroneous. We disagree. First, neither the award of $90,000 for back pay nor

$270,000 for emotional pain and mental anguish was “so large as to shock the

conscience.” Sykes v. McDowell, 786 F.2d 1098, 1105 (11th Cir. 1986) (internal

quotation marks omitted). Second, Haynes’s closing argument was based on a



                                           3
reasonable inference from the record, and the City has not established that the

argument, even if improper, was prejudicial. Third, the City argues that three

modifications to the pattern jury instructions misled the jury, but none of the

modifications failed to reflect accurately the law “in such a way that we are left

with a substantial and ineradicable doubt as to whether the jury was properly

guided in its deliberations.” Cleveland v. Home Shopping Network, Inc., 369 F.3d

1189, 1196 (11th Cir. 2004) (internal quotation marks omitted).

      The judgment of the district court is AFFIRMED.




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