UNPUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


BELINDA MUOVICH,                         
                   Plaintiff-Appellee,
                v.
RALEIGH COUNTY BOARD OF
EDUCATION, and Members of the
Raleigh County Board of Education;               No. 02-1090
LOUIS GALL, Member; PAUL
VENNARI, Member; MARGARET
SCOTT, Member; ROSCOE PLUMLEY,
Member; SHERRIE CUSHMAN,
Member,
             Defendants-Appellants.
                                         
           Appeal from the United States District Court
      for the Southern District of West Virginia, at Beckley.
               Robert C. Chambers, District Judge.
                         (CA-98-181-5)

                     Argued: January 23, 2003

                     Decided: February 27, 2003

   Before WILKINSON, MICHAEL, and KING, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

ARGUED: Niall Anthony Paul, SPILMAN, THOMAS & BATTLE,
P.L.L.C., Charleston, West Virginia, for Appellants. John William
2              MUOVICH v. RALEIGH COUNTY BD OF EDUC.
Barrett, BARRETT LAW FIRM, P.L.L.C., Charleston, West Vir-
ginia, for Appellee. ON BRIEF: Eric E. Kinder, SPILMAN,
THOMAS & BATTLE, P.L.L.C., Charleston, West Virginia, for
Appellants. David L. Grubb, THE GRUBB LAW GROUP, Charles-
ton, West Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   The Raleigh County Board of Education appeals a jury verdict in
favor of the plaintiff, Belinda Muovich, on her claim under the West
Virginia Human Rights Act that the Board failed to accommodate her
disability. Finding no reversible error, we affirm.

                                    I.

   Because the defendant appeals from a jury verdict in favor of the
plaintiff, we construe the facts in the light most favorable to the plain-
tiff. See Sales v. Grant, 

, 775 (4th Cir. 1998). Belinda
Muovich, the plaintiff, was a special education teacher employed by
the defendant, the Raleigh County Board of Education (the Board). In
1987 Muovich began working at Coal City Elementary School; once
there, she began having sinus and respiratory problems. She had sinus
surgery in 1989 and 1991, but her condition got much worse when the
school installed a new carpet in late 1991. (Carpet glue irritated
Muovich’s respiratory system.) Muovich asked the principal, Jerry
Redden, to install the carpet during the summer or on a weekend, but
Redden refused this request. She later asked Redden to remove the
carpet from her classroom altogether; Redden refused and told her she
was crazy.

   Other activities in the school also exacerbated Muovich’s condi-
tion. In the fall of 1992 Muovich informed Redden that the glue the
               MUOVICH v. RALEIGH COUNTY BD OF EDUC.                   3
janitors used to repair baseboards bothered her; the custodians, how-
ever, continued to use it. Similarly, Redden refused to allow Muovich
to switch from cafeteria duty to recess duty, even though the bleach
used to clean the cafeteria exacerbated her condition. One of the
school’s janitors also suggested to Redden that Muovich be excused
from cafeteria duty; Redden told the janitor that Muovich was "nuts."
In the fall of 1994 Muovich asked Redden if the school could use a
cleaning product called Odor Ban that was not a respiratory irritant,
but Redden declined to switch.

   In 1995 Muovich made several requests to Redden. She asked that
the janitors flush the bleach used in the toilets, which the school had
been using to combat sewer gas odor, rather than leaving it in the toi-
lets overnight. Second, she again asked to be relieved from supervis-
ing students in the cafeteria. Third, she repeated her request that the
school switch its cleaning products. Finally, she asked that one teach-
ers’ bathroom be made scent-free. Redden refused all of these
requests and told Muovich that the last was "ridiculous."

   In January 1996 Redden told Muovich to get out of his office
because "he was tired of hearing her complaints." Later that month
the school began using a product called Gosh to deal with the sewer
gas problem. Muovich had a bad reaction to the Gosh, and her doctor
wrote a letter to the school suggesting that Gosh be used only spar-
ingly. Redden, however, told a custodian that "he’d be damned if he
would change any cleaning procedures to suit one person." He also
told the janitor to spray Gosh in the air, but to be sure that no one saw
him doing it.

   In April 1996 Muovich stopped teaching because of her poor
health, although she intended to return to school when she felt better.
In June 1997, however, the Board sent her a letter saying she would
be fired if she did not return to work in thirty days. In response,
Muovich sent the Board a letter from her doctor with twenty-nine
requested accommodations, covering the spectrum from a system of
monitoring indoor air quality and preventive maintenance on air
exchange systems to elimination of the use of all chemicals to achieve
a zero risk of irritants in the workplace. The Board did not respond.

 In March 1998 Muovich sued the Board in the Southern District of
West Virginia, claiming a failure to accommodate under the Ameri-
4              MUOVICH v. RALEIGH COUNTY BD OF EDUC.
cans with Disabilities Act (the ADA), 42 U.S.C. § 12101, et seq. She
later amended her complaint to include a failure to accommodate
claim based on West Virginia’s Human Rights Act. See W. Va. Code
§ 5-11-9 (2003). In August 2001 Muovich voluntarily dismissed her
ADA claim, but the district court retained jurisdiction over the sup-
plemental state law claim.

  The district court denied the Board’s motion for summary judg-
ment, and after a six-day trial, a jury found for Muovich. The jury
awarded her $50,000 in compensatory damages, $175,000 in back
pay, and $75,000 for emotional distress. The district court denied the
Board’s motion to set aside the verdict and grant a new trial. The
court also awarded Muovich attorney’s fees and costs of over
$260,000 as well as pre- and post-judgment interest. The Board
appeals, claiming error on several grounds.

                                   II.

   First, the Board raises several claims of error on evidentiary mat-
ters. The Board, however, failed to object at trial to all but two of
these claimed errors. When there was no objection at trial, we review
for plain error. In re Celotex Corp., 

, 630-31 (4th Cir.
1997); see also United States v. France, 

, 207 (4th Cir.
1998). To prevail under a plain error analysis, the Board must demon-
strate that there was an error, the error was plain, the error affected
its substantial rights, and the error "seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings." 

(explaining that civil litigants must at least meet the
standard for plain error applied in criminal cases).

   To succeed in a failure to accommodate claim under the West Vir-
ginia Human Rights Act, Muovich was required to demonstrate that:
(1) she was a qualified person with a disability; (2) the Board was
aware of her disability; (3) she required an accommodation to perform
her job; (4) a reasonable accommodation existed that would have
allowed her to perform her job; (5) the Board knew or should have
known of her needs; and (6) the Board failed to provide the accom-
modation. See Skaggs v. Elk Run Coal Co., 

, 575 (W.
Va. 1996). With the basic structure of a failure to accommodate claim
in mind, we turn to the Board’s claims of error.
               MUOVICH v. RALEIGH COUNTY BD OF EDUC.                    5
   The Board first argues that evidence of actions that led to or exac-
erbated Muovich’s condition is only relevant to the cause of her inju-
ries and is therefore inadmissible in a suit based on a failure to
accommodate claim. The evidence, however, is relevant to the nature
of Muovich’s ailment and the reasons for the particular accommoda-
tions she requested. The Board, for example, cites as error the admis-
sion of evidence that the carpet installation made Muovich ill. But this
evidence is relevant to the point that Muovich asked the school to
accommodate her by installing the carpet while school was not in ses-
sion. We therefore conclude that it was not plain error for the district
court to have admitted evidence about actions taken by the school that
caused or worsened her illness.

   The Board also claims that the district court erred by admitting evi-
dence that students and other teachers had been made sick by the car-
pet installation. This evidence, however, was admissible to show that
the school officials were aware of the problems with the carpet instal-
lation, that Muovich’s requested accommodation was reasonable, and
that school officials were aware of the need for such an accommoda-
tion. The court’s decision to admit this evidence was not plain error.
It was error to admit testimony by certain teachers that they believed
the carpet installation was problematic based on information they
learned from books and televison shows. This testimony, however,
was limited and did not affect the Board’s substantial rights. The
focus of the testimony of these witnesses was on Redden’s response
to their complaints. The admission of the limited amount of third-
hand information, therefore, does not satisfy the elements for plain
error.

   The Board additionally faults the district court for admitting certain
credibility evidence; the Board objected to this testimony and there-
fore preserved this claim. If the district court erred in admitting credi-
bility evidence, we will nevertheless uphold the verdict if the error
was harmless. See Taylor v. Va. Union Univ., 

, 235 (4th
Cir. 1999). The error is harmless unless the jury’s judgment was sub-
stantially swayed by the error. 

witnesses
whether they would be more likely to believe a version of the facts
told by the principal or by Muovich. The admission of this testimony
was erroneous. Nevertheless, we do not believe this substantially
swayed the jury’s judgment. The jury had an opportunity to hear from
6             MUOVICH v. RALEIGH COUNTY BD OF EDUC.
and observe both Muovich and Redden and therefore form their own
views of the credibility of each. Moreover, although this case is in
some ways a dispute between Muovich and Redden, each side pre-
sented multiple witnesses to support its version of the story. As a
result, the outcome of the case did not hinge solely on a determination
of the credibility of these two witnesses. The admission of the testi-
mony about relative admissibility, while error, did not substantially
affect the verdict. The error is therefore harmless.

   Finally, the Board claims that the district court erroneously admit-
ted various pieces of scientific evidence. The Board claims that it was
denied a hearing on scientific evidence pursuant to Daubert v. Merrell
Dow Pharmaceuticals, Inc., 

(1993). Before trial the
Board filed a motion in limine seeking exclusion of evidence about
Multiple Chemical Sensitivity (MCS). However, at the pretrial con-
ference when the Board’s motion would have been considered,
Muovich’s counsel agreed that MCS was not a legitimate diagnosis
and said instead that Muovich had chemical irritant rhinosinusitis
(CIR). Because the argument about MCS was then moot, the court
allowed the Board to renew its objection to testimony about CIR after
it had time to investigate the claim. The Board, however, never
renewed the objection and therefore never requested a Daubert hear-
ing on the admissibility of evidence about CIR. The court is not
required to hold a Daubert hearing if neither party requests one. Cf.
Md. Casualty Co. v. Therm-O-Disc, Inc., 

, 783 (4th Cir.
1998). Accordingly, we do not believe that the district court abused
its discretion in admitting evidence about CIR without holding a Dau-
bert hearing.

   The Board objects to the admission of other scientific evidence at
trial, relying in part on its pretrial motion seeking the exclusion of
evidence about MCS. Because the Board did file a motion in limine
on the admission of MCS — and Muovich seems to have agreed that
this evidence was inadmissible — it may have preserved this objec-
tion. See United States v. Williams, 

, 1325-26 (4th Cir.
1996). The Board, however, does not point to erroneously admitted
evidence of MCS. Instead, it focuses on the admission of evidence
about sick building syndrome. The Board did in fact object to admis-
sion of this evidence and therefore preserved this claim. See 

admission of the evidence was erroneous, however, we cannot
              MUOVICH v. RALEIGH COUNTY BD OF EDUC.                  7
say that the jury’s judgment was substantially swayed by the error.
See 

. Muovich’s argument was that she suf-
fered from CIR, not sick building syndrome, and very little evidence
on sick building syndrome was actually introduced. These brief men-
tions of an ailment that Muovich did not claim to have cannot be said
to have swayed the jury’s decision; the error, if any, is therefore
harmless.

                                 III.

   The Board also complains that the court failed to give two of its
proposed jury instructions. Jury instructions are adequate when the
instructions "construed as a whole, and in light of the whole record,
adequately informed the jury of the controlling legal principles with-
out misleading or confusing the jury to the prejudice of the objecting
party." Spell v. McDaniel, 

, 1395 (4th Cir. 1987).
Moreover, because the Board failed to object before the jury com-
menced deliberations, we review the district court’s refusal of the
Board’s requested instructions for plain error. 

. Because both of the proposed instructions are misleading and
both are arguably incorrect, the district court did not err in refusing
to give these instructions.

   First, the Board says the court should have instructed the jury that
sick building syndrome cannot be the basis for a disability because it
restricts the plaintiff’s ability to work in only one location. As dis-
cussed above, however, Muovich’s case centered on the fact that she
suffered from CIR, not sick building syndrome; discussing a different
ailment in the jury instructions is likely to be confusing. Moreover,
it may be that under West Virginia law a plaintiff can recover if she
is prevented from working in only one particular job. See Stone v. St.
Joseph’s Hosp., 

, 401-06 (W. Va. 2000) (discussing
the shortcomings of a rule that prevents claims by those excluded
from only one job). Because the proposed instruction was irrelevant
and would have been confusing in the circumstances, we do not
decide whether it was a correct statement of West Virginia law. Sec-
ond, the Board requested an instruction explaining that it should pre-
vail if Muovich’s only injuries were those that began when the school
installed the carpet. The district court, however, gave an instruction
that clearly explained the elements of Muovich’s failure to accommo-
8              MUOVICH v. RALEIGH COUNTY BD OF EDUC.
date claim. The Board’s proposed instruction was likely to cause juror
confusion about the elements of Muovich’s claim. We therefore find
no error, much less plain error, in the district court’s refusal to give
these two instructions.

                                  IV.

   The Board challenges the district court’s denial of its summary
judgment motion and seeks a new trial or a judgment as a matter of
law. Because the district court’s denial of the Board’s motion for
summary judgment is unreviewable after the dispute has been decided
on the merits, see Benner v. Nationwide Mutual Ins. Co., 

, 1233 (4th Cir. 1996), we turn immediately to the Board’s
request for a new trial or a judgment as a matter of law.

    The Board did not renew its Rule 50 motion for judgment as a mat-
ter of law at the end of the trial. Its post-trial motion is labeled as a
Rule 59 and Rule 60 motion, seeking a new trial or relief from the
judgment. Nevertheless, we may still consider the sufficiency of the
evidence against the Board. See 

. If the Board
could prevail on this basis, however, the Board’s error in its charac-
terization of its motion would prevent us from entering judgment for
the Board; we would instead remand the case to the district court. See

is called for here because a rational jury
could have found for Muovich. Cf. 

Board’s argu-
ment that it did not have to accommodate Muovich because by the
time of trial she could not work even with an accommodation and
therefore was not a qualified person with a disability. We have previ-
ously concluded that under the ADA, the critical time period is the
time of the adverse employment action, rather than the time of trial.
See EEOC v. Stowe-Pharr Mills, Inc., 

, 379 (4th Cir.
2000). Although the West Virginia Supreme Court of Appeals has not
decided whether the same rule applies to the West Virginia Human
Rights Act, that court’s opinions suggest it is unlikely to adopt a dif-
ferent interpretation. See 

(stressing that the
Human Rights Act should be liberally construed). Moreover, the West
Virginia court has cited federal anti-discrimination law as a guide to
interpreting the state’s law. See 

we decline to
               MUOVICH v. RALEIGH COUNTY BD OF EDUC.                    9
adopt an interpretation of West Virginia law that would allow
employers to fire employees that are currently healthy but have
degenerative illnesses, knowing that by the time the plaintiffs reach
trial, they will be so disabled that they will no longer be qualified per-
sons with a disability. For all of these reasons, we conclude that under
the West Virginia Human Rights Act we should look to the time of
adverse employment action rather than the date of trial in determining
whether Muovich is a qualified individual.

   We also disagree with the Board that Muovich was not disabled
before she left the school because she continued working despite her
illness. We see no reason to penalize a plaintiff who is willing to con-
tinue working, despite substantial discomfort and the risk of worsen-
ing — and possibly permanent — injury, when her employer refuses
to provide a reasonable accommodation. See Casteel v. Consolidation
Coal Co., 

, 308 (W. Va. 1989) (allowing claim for dis-
crimination when the plaintiff continued to work without accommo-
dation despite severe pain).

   Further, we are not persuaded by the Board’s argument that no rea-
sonable accommodation would have allowed Muovich to continue
working. A reasonable jury could have concluded that if the Board
had taken early remedial steps as requested by Muovich—such as
replacing the carpet during the summer or using cleaning products
that were not respiratory irritants—Muovich could have remained in
her position at the school.

                                   V.

   The Board also disputes the size of the district court’s award of
attorney’s fees to Muovich. We will reverse the district court’s deci-
sion on attorney’s fees only if it was clearly wrong. Cf. Johnson v.
Hugo’s Skateway, 

, 1418 (4th Cir. 1992). On appeal
(although not in its motion to the district court), the Board argues that
the award should have been reduced to reflect work done by
Muovich’s attorney on her ADA claim that was later dropped. The
underlying issues in both failure to accommodate claims, however,
are quite similar. We cannot say, therefore, that it was clearly wrong
for the district court to allow attorney’s fees for work on the ADA
10           MUOVICH v. RALEIGH COUNTY BD OF EDUC.
claim, since much of that work was most likely applicable to the
ongoing state law claim.

                               VI.

  Because we find no reversible error, the judgment and the attor-
ney’s fee decision of the district court are

                                                     AFFIRMED.