UNPUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


RONALD L. FOORE,                         
                   Plaintiff-Appellee,
                v.                             No. 00-1170
CITY OF RICHMOND, VIRGINIA,
              Defendant-Appellant.
                                         
          Appeal from the United States District Court
        for the Eastern District of Virginia, at Richmond.
                James R. Spencer, District Judge;
          Robert R. Merhige, Jr., Senior District Judge.
                         (CA-96-502-3)

                     Argued: December 6, 2000

                     Decided: March 23, 2001

   Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.



Reversed and remanded by unpublished per curiam opinion.


                             COUNSEL

ARGUED: Beverly Agee Burton, OFFICE OF THE CITY ATTOR-
NEY, Richmond, Virginia, for Appellant. David Raymond Simonsen,
Jr., Richmond, Virginia, for Appellee. ON BRIEF: Keith A. May,
OFFICE OF THE CITY ATTORNEY, Richmond, Virginia, for
Appellant.
2                     FOORE v. CITY OF RICHMOND
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   After Ronald Foore had served as a police officer for the City of
Richmond, Virginia (the City), for over fourteen years, the City
placed him on disability retirement in 1981 when it discovered that
the vision in his right eye fell below the requirements for a police
officer. The City reevaluated Foore’s eligibility to be an officer in
1991, but it again determined that his impaired vision disqualified
him. Foore sued the City in federal district court, claiming that he was
disabled within the meaning of the Americans with Disabilities Act
(ADA) and that he was denied reemployment with the City because
of his disability, in violation of the ADA. At trial the City maintained
that Foore was not disabled because his visual impairment did not
substantially limit any major life activity. The jury returned a verdict
in favor of Foore, and the district court ordered the City to reinstate
Foore as a police sergeant. After considering the City’s appeal, we
hold that Foore does not have a disability within the meaning of the
ADA. Accordingly, we reverse the judgment obtained by Foore and
remand for the district court to enter judgment in favor of the City.*

                                   I.

   Foore began his service with the City as a police cadet in 1964 and
was reclassified as a police officer in 1967. He served as a regular
officer until 1976. From 1976 to 1978 Foore was an acting sergeant,
and he was promoted to sergeant in 1978.

  *We note that the district court did not have the benefit of two recent
(and pertinent) Supreme Court decisions, Albertson’s Inc. v. Kirking-
burg, 

(1999), and Sutton v. United Airlines, Inc., 

(1999), when it tried this case and considered the City’s Rule 50(b)
motion.
                      FOORE v. CITY OF RICHMOND                        3
   In 1974, while he was serving as a police officer, the vision in
Foore’s right eye became impaired. Since then the vision in that eye
has been 20/400, and it is uncorrectable. Although he has monocular
vision and does not have any depth perception, his peripheral vision
is normal. According to his doctor, Foore "can do just about anything
that anyone else can do." For example, he can read and drive, and he
does not have to wear prescription eyeglasses.

   The City did not learn of Foore’s impairment until 1981, when all
officers underwent routine eye examinations. The examination of
Foore led the City to conclude that his vision fell below departmental
requirements. Specifically, he lacked the required vision of not less
than 20/60 in each eye uncorrected or 20/20 in each eye corrected.
The City placed Foore on disability retirement and issued him retire-
ment benefits under the City’s retirement system. Although Foore had
served as a regular officer (and as a sergeant) with the impairment,
it did not affect his performance. The City nevertheless removed him
from his position with the force.

   After he was removed from the police force, Foore held several
jobs. For a period of time he worked as a security specialist for the
City and continued to receive disability benefits. In addition, he
worked as a salesperson, a delivery driver, a basketball official, and
a magistrate. In 1991 the City reevaluated his eligibility for a police
officer position, but it concluded that his vision had not improved.
Although the City declined to rehire Foore as a police officer, it sug-
gested that he contact the Department of Human Resources if he was
interested in pursuing other employment opportunities with the City.
After Foore contacted the Department of Human Resources, he was
considered for several City positions. He had an interview with the
City’s Bureau of Emergency Communications, and the Bureau con-
sidered him for the position of senior communications officer. He was
not hired, however, because the job was eliminated due to budgetary
constraints. After additional attempts to place Foore proved unsuc-
cessful, he withdrew from the City’s job application process.

   Foore sued the City in district court claiming that the City’s refusal
to reemploy him as a police sergeant violated the ADA. Foore argued
that his visual impairment constituted a "disability" under the ADA
and that the City unlawfully discriminated against him on the basis
4                     FOORE v. CITY OF RICHMOND
of his disability. The case was tried to a jury, and the jury awarded
Foore $50,000 in compensatory damages. After the verdict the City
moved for judgment as a matter of law under Fed. R. Civ. P. 50(b).
The district court denied the City’s motion, but reduced the jury
award to $5,000. In ruling on the motion, the district court found that
"the evidence presented at trial supports the jury’s determination that
Foore is disabled within the meaning of the ADA." In addition, the
court ordered the City to admit Foore into its police academy and to
reinstate him as a sergeant. The district court also awarded Foore back
pay, attorneys’ fees, and costs. Foore entered the police academy in
1998 and has been serving as a police sergeant since 1999.

  The City appeals from the district court’s denial of its Rule 50(b)
motion.

                                   II.

   The district court’s denial of the City’s Rule 50(b) motion is
reviewed de novo. See Brice v. Nkaru, 

, 237 (4th Cir.
2000). We must consider the evidence in the light most favorable to
Foore and draw all reasonable inferences in his favor. See 

"compelled to accord the utmost respect to jury ver-
dicts," Price v. City of Charlotte, 

, 1250 (4th Cir. 1996),
we must reverse a jury verdict if it is not supported by substantial evi-
dence, see Benesh v. Amphenol, 

, 502 (4th Cir. 1995).

   The ADA prohibits an employer from discriminating "against a
qualified individual with a disability because of the disability of such
individual in regard to . . . the hiring . . . or discharge of employees."
42 U.S.C. § 12112(a). Thus, the jury’s verdict was proper only if
there is substantial evidence that (1) Foore is disabled; (2) he is quali-
fied for the police officer position; and (3) the City’s failure to rehire
him constitutes unlawful discrimination based on his disability. See
Tyndall v. Nat’l Educ. Ctrs. Inc. of Ca., 

, 212 (4th Cir.
1994).

   The City’s primary contention on appeal is that Foore does not
have a disability within the meaning of the ADA. The ADA defines
the term "disability" as "(A) a physical or mental impairment that sub-
stantially limits one or more of the major life activities of such indi-
                      FOORE v. CITY OF RICHMOND                        5
vidual; (B) a record of such impairment; or (C) being regarded as
having such an impairment." 42 U.S.C. § 12102(2). The EEOC’s reg-
ulations state that the term "major life activities" includes "functions
such as caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working." 29 C.F.R.
§ 1630.2(i).

   Because we agree with the City that Foore failed to prove that he
has a disability under the ADA, we hold that the district court erred
when it refused to grant the City’s motion for judgment as a matter
of law. The evidence adduced at trial demonstrates that Foore’s visual
impairment does not substantially limit any major life activity. In
addition, Foore failed to show that he has a record of a disability or
that the City regarded him as having a disability.

                                   A.

   Foore contends that the record establishes that his monocular
vision substantially limits for him the major life activity of seeing.
Specifically, he says that his visual impairment substantially limits his
ability to see because he does not have any depth perception. Our
inquiry into whether Foore’s visual impairment substantially limits
his ability to see is guided by Albertson’s Inc. v. Kirkingburg, 

(1999). In Albertson’s a trucking company hired the plaintiff
as a driver. After he was hired and had been driving for a period of
time, the plaintiff was administered a vision test, which indicated that
he had 20/200 vision in his left eye. Because the U.S. Department of
Transportation required him to possess 20/40 vision, the trucking
company fired him. See 

plaintiff sued under the
ADA claiming that because he had monocular vision, he was substan-
tially limited in the major life activity of seeing. The Ninth Circuit
agreed with the plaintiff and held that his monocular vision qualified
as a disability because "‘the manner in which [he] sees differs signifi-
cantly from the manner in which most people see’ because, ‘to put it
in the simplest terms [he] sees using only one eye; most people see
using two.’" 

Kirkingburg v. Albertson’s, Inc., 

, 1232 (9th Cir. 1998)). The Supreme Court, however,
rejected the Ninth Circuit’s per se approach. The Court noted that the
ADA only "concerns itself only with limitations that are in fact sub-
stantial." 

therefore held that a court must take into
6                     FOORE v. CITY OF RICHMOND
account an individual’s ability to compensate for the impairment. See

of monocular vision, the Court said that a court should
inquire into whether the individual’s brain has developed mechanisms
to cope with the impairment. See 

acknowl-
edged that a person with monocular vision will "ordinarily" be con-
sidered disabled under the ADA, the Court ruled that a court must
determine the existence of a disability on a "case-by-case basis." 

have followed the Albertson’s instruction and have reviewed
the record to determine whether there is a disability in this case. This
review leads us to conclude that Foore did not establish that he is dis-
abled. The evidence shows that Foore has compensated for his mon-
ocular vision and that the impairment has not substantially limited the
major life activity of seeing. Foore has a full range of peripheral
vision, he can read, and he has a Virginia driver’s license. Foore’s
ophthalmologist, Dr. Guerry, testified that although Foore is legally
blind in his right eye, he "can do just about anything that anyone else
can do using his right eye except for seeing fine detail. He has a tiny
area in the center of his vision where he doesn’t see. That is covered
nicely by his good acuity in the left eye." Dr. Guerry also indicated
that Foore’s brain has developed mechanisms to adjust to the limita-
tions of his right eye. Although Foore does not have any depth per-
ception, he has learned to compensate for this limitation:

    [T]he more time that goes by that [he has] good vision only
    in one eye, the more [he tends] to learn what are called mon-
    ocular clues to decide how far something is away. . . . You
    begin to do these things without thinking, and the human,
    the brain has a great deal of ability to adapt to these kinds
    of things. . . . So the fact that Mr. Foore had lost his acuity,
    or his sharpness of vision for many years, has given him
    plenty of time to adopt to what are called monocular clues,
    and I think there are very few things, as I said, that he can’t
    do.

In concluding that Foore’s 20/400 vision in his right eye has not sub-
stantially limited the major life activity of seeing, we are mindful that
the Supreme Court said in Albertson’s that individuals "with monocu-
lar vision ‘ordinarily’ will meet the Act’s definition of disability."
                      FOORE v. CITY OF RICHMOND                         7

. This is not the ordinary case, however.
The record shows that Foore has overcome his impairment and is not
substantially limited in any way. Foore therefore failed to prove that
his impairment substantially limits the major life activity of seeing.
As a consequence, he does not have a disability under 42 U.S.C.
§ 12102(2)(A).

                                   B.

   Foore further contends that the jury verdict was proper because he
demonstrated that he has a "record" of an impairment that substan-
tially limits the major life activities of seeing and working. See 42
U.S.C. § 12102(2)(B). Under the EEOC’s regulations a plaintiff has
a record of impairment if he "has a history of, or has been misclassi-
fied as having, a mental or physical impairment that substantially lim-
its one or more major life activities." 29 C.F.R. § 1630.2(k). Foore
argues that he has a history of being substantially limited in his ability
to see because he does not have any depth perception. In addition,
Foore claims that he has a record of being substantially limited in his
ability to work because the City "misclassified" him as being unable
to serve as a police officer.

   Contrary to Foore’s assertion, the record is devoid of any evidence
that would establish a history or misclassification of such an impair-
ment. There is no evidence in the record to suggest that Foore’s visual
impairment has ever substantially limited his ability to see. Instead,
as noted above, the evidence at trial demonstrates that his monocular
vision has not limited the major life activity of seeing. In addition,
Foore does not have a record of being substantially limited in the
major life activity of working. To be substantially limited in the major
life activity of working, Foore "must be precluded from more than
one type of job, a specialized job, or a particular job choice." Sutton
v. United Airlines, Inc., 

, 492 (1999). EEOC regulations
state that a plaintiff is substantially limited in the major life activity
of working only when he is "significantly restricted in the ability to
perform either a class of jobs or a broad range of jobs in various
classes as compared to the average person having comparable train-
ing, skills and abilities." 29 U.S.C. § 1630.2(j)(3)(i). Here, the record
shows that the only job Foore has been precluded from undertaking
is the position of police officer for the City of Richmond. Because
8                      FOORE v. CITY OF RICHMOND
Foore has been prohibited from taking a "particular job" as opposed
to "a class of jobs or a broad range of jobs," he does not have a record
of being substantially limited in the major life activity of working
under 42 U.S.C. § 12102(B). See Dale v. Koch, 

, 215 (2d
Cir. 1989) ("Being declared unsuitable for the particular position of
police officer is not a substantial limitation of a major life activity.");
cf. Bridges v. Bossier, 

, 336 (5th Cir. 1996) ("[F]ire-
fighting jobs — including firefighters and associated municipal
paramedics or EMTs who must also serve as backup firefighters —
is too narrow a field to describe a ‘class of jobs’ under § 29 C.F.R.
1630.2(j)(3)(i).").

                                    C.

   Foore finally asserts that he has a disability because the City
regarded him as having an impairment that substantially limits the
major life activity of working. See 42 U.S.C. § 12102(2)(C). An indi-
vidual is regarded as having a disability if "(1) a covered entity mis-
takenly believes that a person has a physical impairment that
substantially limits one or more major life activities, or (2) a covered
entity mistakenly believes that an actual, nonlimiting impairment sub-
stantially limits one or more major life activities." Sutton v. United
Airlines, Inc., 

, 489 (1999). To establish that the City
regarded him as having an impairment that substantially limits his
ability to work, Foore must prove that the City considered him to be
"significantly restricted in the ability to perform either a class of jobs
or a broad range of jobs in various classes as compared to the average
person having comparable training, skills and abilities." 29 U.S.C.
§ 1630.2(j)(3)(i). Foore asserts that the City has disqualified him from
the sergeant position because it believes that his impairment will pre-
vent him from performing the essential functions of the police officer
position. Thus, Foore claims that the City has classified him as being
unable to perform a broad range of police officer jobs.

   Contrary to Foore’s assertion, there is no evidence in the record
that the City regarded Foore as being disabled. Although Foore did
not fulfill the requirements for the police officer position, this fact
alone does not mean that the City regarded Foore as being disabled.
See 

("Standing alone, the allegation that
respondent has a vision requirement in place does not establish a
                      FOORE v. CITY OF RICHMOND                       9
claim that respondent regards petitioners as substantially limited in
the major life activity of working."). Instead, the relevant inquiry is
whether the City regarded him as being unable to "perform a class of
jobs or a broad range of jobs in various classes." 29 C.F.R.
§ 1630.2(j)(3)(i). As noted above, the record demonstrates that the
City has only disqualified him from the specific job of being a police
officer. The position of police officer is simply too narrow of a field
to be considered a "class of jobs." See Dale v. Koch, 

,
215 (2d Cir. 1989) (holding that the particular position of police offi-
cer is not a class of jobs). Foore admitted on cross-examination that
he was ineligible only for the police officer position and that he was
qualified for a number of City jobs. In addition, the City did not
regard him as being unable to perform "a broad range of jobs." His
disqualification from the police force did not prevent Foore from
obtaining other positions with the City. Under the City’s disability
policies, individuals, like Foore, who are removed from the police
force may obtain disability benefits and remain gainfully employed
by the City in another position. In fact, the City hired Foore as a
security specialist while he was receiving disability benefits and
referred him to its Department of Human Resources for assistance in
obtaining another position with the City. Foore was interviewed and
considered for a senior communications officer position in the City’s
Bureau of Emergency Communications, but the position was elimi-
nated for budgetary reasons. Therefore, because the City did not pre-
vent Foore from performing a class of jobs or a broad range of jobs,
the City did not regard Foore as having an impairment that substan-
tially limited the major life activity of working under 42 U.S.C.
§ 12102(2)(C).

                                  III.

   Foore’s interest in continuing to work as a police officer is com-
mendable and worthy of respect. Nevertheless, for the reasons set
forth above, we hold that the jury’s verdict is not supported by sub-
stantial evidence and that the City is entitled to judgment as a matter
of law. We therefore reverse the judgment and remand to the district
court for entry of judgment in favor of the City.

                                         REVERSED AND REMANDED