Whitbeck, Beverly A. v. Vital Signs Inc

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 24, 1998 Decided November 20, 1998

No. 97-7206

Beverly A. Whitbeck,

Appellant

v.

Vital Signs, Inc.,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 95cv01011)

Michael G. Kane argued the cause for appellant. With him

on the briefs were Vicki G. Golden and David R. Cashdan.

Pamela J. Moore argued the cause for appellee. With her

on the brief was Paul J. Kennedy.

Before: Edwards, Chief Judge, Rogers and Tatel, Circuit

Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: In this appeal from a jury verdict in

favor of an employer in a disability discrimination suit, we

once again face the question of whether and to what extent

the employer may rely on the employee's application for and

receipt of disability insurance benefits. Although we held in

a previous case that the receipt of such benefits does not bar

the employee's claim as a matter of law, we find that where,

as in this case, the benefits applications contain information

relevant to issues at trial, they may be admitted into evi-

dence.

I

This is not the first time this litigation has come before us.

See Whitbeck v. Vital Signs, Inc., 116 F.3d 588 (D.C. Cir.

1997) ("Whitbeck I"). Although we described the factual

background of this dispute in some detail in our earlier

opinion, we revisit those facts again as they relate to the

issues before us here.

Appellant Beverly Whitbeck began working as a sales

representative for Vital Signs, Inc., a medical equipment

manufacturer, in 1992. Because of her outstanding sales

performance for another medical equipment company, Vital

Signs guaranteed Whitbeck a salary of at least $84,000 for

her first year. Diagnosed five months later with a severe

spinal cord tumor, Whitbeck underwent surgery, returning

home after several weeks of hospitalization and rehabilitation.

Although unable to move around without a walker or a

wheelchair, Whitbeck began working from home almost im-

mediately, initiating as much client contact as she could over

the telephone. As she grew stronger, she gradually in-

creased her workload. With the help of a driver she hired

and paid, Whitbeck started making sales calls again in July

1993. She soon outfitted her car with hand controls and a

wheelchair rack, enabling her to transport herself to her

customers on her own. By early 1994, Whitbeck no longer

needed a wheelchair and was able to make sales calls with the

aid of a cane.

In the spring of 1994, Whitbeck began to have difficulty

walking long distances. Her neurologist discovered that her

tumor had regrown. He informed her that her problems with

walking were not likely to improve and that she might

develop total paraplegia. He recommended that she consider

purchasing a motorized cart for making sales calls in the field.

A few days later Whitbeck met with a salesperson from a

motorized cart manufacturer to explore that possibility.

On April 28, Whitbeck had a conversation with her supervi-

sor, Sherry Henricks, about the possibility of using a motor-

ized cart at work. At trial, Whitbeck and Henricks offered

conflicting versions of what they said to each other during

that conversation. According to Henricks, Whitbeck was

distraught that her tumor had regrown and said that she

would not use a motorized cart to make sales calls because

she "couldn't see herself" doing that. Henricks testified that

Whitbeck explained that she had decided instead to retire on

long-term disability. According to Whitbeck's version of the

conversation, Henricks flatly refused her request for permis-

sion to use a motorized cart, telling her that "it wasn't ... a

good idea" because "it wouldn't look right." Whitbeck testi-

fied that it was Henricks who suggested that she retire on

long-term disability, and that Henricks even asked her if she

could begin to advertise the availability of her position imme-

diately.

Shortly after the April 28 conversation, Whitbeck stopped

working altogether, and Vital Signs removed her from the

payroll. Whitbeck then applied for and began receiving both

residual and short-term disability benefits from her private

insurer. She also applied for long-term disability benefits

through Vital Signs's carrier, Mutual of Omaha. Finding her

ineligible because her condition arose less than a year after

she began working at Vital Signs, Mutual of Omaha denied

her claim. Whitbeck also applied for and began receiving

Social Security disability benefits. Vital Signs officially ter-

minated her in November 1994.

Whitbeck filed suit in the Superior Court for the District of

Columbia, alleging that Vital Signs had discriminated against

her because of her disability in violation of the District of

Columbia Human Rights Act, D.C. Code Ann. ss 1-2501 to

1-2557 (1992) (amended 1994). Vital Signs removed the case

to the United States District Court for the District of Colum-

bia based on diversity of citizenship. With the parties' con-

sent, the matter was referred to a magistrate judge. As we

explained in Whitbeck I, District of Columbia courts deter-

mine the elements of a prima facie case of disability discrimi-

nation under the Human Rights Act based on cases decided

under analogous federal antidiscrimination laws. See Whit-

beck I, 116 F.3d at 591. Thus, Whitbeck's claim required her

to demonstrate that Vital Signs refused reasonably to accom-

modate her disability, and that she could have performed the

essential functions of her job had she been so accommodated.

See Americans with Disabilities Act, 42 U.S.C. ss 12111(8),

12112 (1994).

The magistrate judge granted summary judgment for Vital

Signs, holding that Whitbeck's receipt of disability insurance

benefits precluded her as a matter of law from demonstrating

that she could have performed the functions of her job with

accommodation. See Whitbeck v. Vital Signs, Inc., 934

F. Supp. 9, 14-15 (D.D.C. 1996). We reversed, holding that

because the insurance carriers made no inquiry into whether

Whitbeck could have performed her job with reasonable

accommodation, her application for and receipt of disability

benefits did not bar her discrimination claim. See Whitbeck

I, 116 F.3d at 591-92. Following a three-day trial on remand,

the jury returned a verdict for Vital Signs.

Whitbeck appeals, asserting various evidentiary errors.

We review a trial court's evidentiary rulings for abuse of

discretion. See United States v. Smart, 98 F.3d 1379, 1386

(D.C. Cir. 1996). Even if we find error, we will not reverse

an otherwise valid judgment unless appellant demonstrates

that such error affected her "substantial rights." Fed. R. Civ.

P. 61; Herbert v. Nat'l Academy of Sciences, 974 F.2d 192,

200 (D.C. Cir. 1992).

II

Relying on Whitbeck I and its companion case, Swanks v.

WMATA, 116 F.3d 582 (D.C. Cir. 1997), Whitbeck first

challenges the magistrate judge's admission into evidence of

her applications for disability insurance benefits. In Whit-

beck I, we held that because the insurers' disability determi-

nations did not take into account whether she could perform

the essential functions of her job with reasonable accommo-

dation--the critical issue in a disability discrimination suit--

the mere fact that Whitbeck had applied for and received

private disability insurance benefits did not bar her subse-

quent disability discrimination claim as a matter of law. See

Whitbeck I, 116 F.3d at 591-92. We reached the same

conclusion in Swanks with respect to the receipt of Social

Security disability benefits. See Swanks, 116 F.3d at 584-87.

Whitbeck argues that under the logic of these opinions her

benefits applications had no relevance to her case because

they made it no more likely that she would have been unable

to do her job if Vital Signs had accommodated her.

We agree with Whitbeck that the simple fact that she

applied for and received disability insurance benefits is not at

all probative, as a matter of fact, of whether she can perform

her job with accommodation. Although the fact that she

applied for and received benefits obviously relates to whether

she has a disability--a fact never contested by plaintiffs in

disability discrimination cases--it has nothing to do with the

question of reasonable accommodation. Reasonable accom-

modation assumes the presence of a disability and turns on

matters such as job restructuring, modification of work sched-

ules, and acquisition of assistive devices. See 42 U.S.C.

s 12111(9). Accordingly, Vital Signs could not have used the

mere fact that Whitbeck had applied for benefits to establish

that she was so disabled that she could not perform her job

even with reasonable accommodation.

Whitbeck's argument, however, fails to distinguish between

the act of applying for benefits and the information con-

tained in the applications. As we stated in Swanks, an

application for disability benefits would certainly be relevant

if the claimant represented in it that she could not do her job

even with accommodation. Swanks, 116 F.3d at 587. In this

case, for example, the neurologist's statement to Mutual of

Omaha, in which he answered "no" to the question whether

Whitbeck's job could be "modified to allow for handling with

impairment," was clearly relevant to her claim that she could

perform her job with accommodation.

Whitbeck's argument also disregards the relevance of her

application for long-term disability benefits to Vital Signs's

alternative theory of defense. In addition to arguing that

Whitbeck could not perform the essential functions of her job,

Vital Signs contended, relying on Henricks's version of the

April 28 conversation, that Whitbeck never even requested an

accommodation and chose instead to try to retire on long-

term disability. Toward that end, Vital Signs sought to prove

that Whitbeck believed that she was eligible to receive about

$45,000 per year in long-term benefits from Vital Signs's

insurance carrier. Vital Signs argued that because these

benefits were to be calculated as a function of Whitbeck's

earnings over the previous twelve months, and because that

number was decreasing steadily--she no longer received a

guaranteed salary and her disability made it difficult for her

to earn commissions--Whitbeck decided to retire immediately

rather than watch the amount of her benefits entitlement

wither away while she struggled to restore her earnings to

their former level. According to Vital Signs, when Whitbeck

later learned that she had been denied long-term disability

benefits, she fabricated her story that Henricks had refused

her request for permission to use a motorized cart. Viewed

in light of this theory, Whitbeck's benefits applications cer-

tainly contained relevant information. They revealed, for

example, that Whitbeck had been unable to work full time

since July 1993, that her lack of "stamina" and "endurance"

prevented her from spending a full day making sales calls,

and that she did not know when she could resume working

full time. All of this information was probative of whether

Whitbeck had a financial incentive to retire of her own

volition, and thus whether she had actually asked Henricks

for an accommodation.

Indeed, given Vital Signs's argument that Whitbeck never

asked for an accommodation, neither Whitbeck I nor Swanks

prohibited Vital Signs from introducing even her act of apply-

ing for disability benefits. After all, in order to prove its

theory that the unexpected denial of long-term disability

benefits precipitated her alleged lie about the conversation

with Henricks, Vital Signs needed to demonstrate that Whit-

beck had actually applied for such benefits.

Whitbeck argues that even if the applications were rele-

vant, the magistrate judge still should have excluded them as

unduly prejudicial. See Fed. R. Evid. 403. This argument,

however, rests on the assumption that Vital Signs offered the

applications only to show that she was unable to do her job.

But because Vital Signs also offered the applications to

establish that Whitbeck never actually requested an accom-

modation, and because Whitbeck failed to demonstrate that

any unfair prejudice that might have flowed from their admis-

sion substantially outweighed their relevance for that addi-

tional purpose, the magistrate judge did not abuse his discre-

tion in admitting the applications.

As Whitbeck points out, admitting the applications without

an explanatory instruction ran the risk that the jury would

make the same mistake that the magistrate judge originally

made on summary judgment: The jury might conclude from

the mere fact that she had applied for and received benefits

that she could not perform the functions of her job even if

reasonably accommodated. An instruction might have ex-

plained to the jury the difference between obtaining disability

benefits and prevailing in a disability suit, emphasizing that

both can be pursued simultaneously because the former takes

no account of the possibility of accommodation. An instruc-

tion also might have explained that both the act of applying

and the information revealed in the application forms could be

relevant to issues other than the possibility of accommoda-

tion.

Whitbeck, however, did not request such a limiting instruc-

tion at the time that Vital Signs introduced her benefits

applications. Instead, she proposed the following instruction

at the end of the trial, which the magistrate judge rejected:

I specifically instruct you that the application for and the

receipt by Ms. Whitbeck of disability benefits is not at all

inconsistent with her claim that she could perform her

job with a motorized scooter.

Whitbeck evidently based this instruction on our statement in

Whitbeck I that "Whitbeck's receipt of disability benefits is

thus not at all inconsistent with her claim that she could

perform her job with reasonable accommodation." Whitbeck

I, 116 F.3d at 591 (citing Swanks, 116 F.3d at 586). But that

statement spoke only to the act of receiving benefits. As we

explained earlier, the simple fact that Whitbeck applied for

and received benefits is not at all probative of whether she

could perform her job with accommodation, see supra at 5,

the only question at issue on summary judgment in Whitbeck

I. Here, Whitbeck's proposed instruction added the words

"the application for" to our language from Whitbeck I, thus

introducing ambiguity as to whether the instruction referred

just to the act of applying for benefits or also to information

contained in the applications. The jury could have interpret-

ed the proposed instruction to mean that in determining

whether Whitbeck could have done her job with accommoda-

tion, it could not consider evidence contained in the applica-

tions such as her neurologist's statement that her job could

not be modified to accommodate her disability. The proposed

instruction might also have led the jury to believe that it

could not consider the applications and information they

contained for other purposes, such as determining whether

the denial of long-term benefits might have motivated Whit-

beck to lie about her conversation with Henricks. Because

the magistrate judge was under no obligation to give a

misleading instruction, see Joy v. Bell Helicopter Textron,

Inc., 999 F.2d 549, 557 (D.C. Cir. 1993), he did not err in

rejecting Whitbeck's. Moreover, even assuming that the

potential for prejudice gave the magistrate judge some obli-

gation to rectify the flaws in her proposed instruction, the

failure to do so in this case was harmless because Vital Signs

never suggested at trial that the mere fact that Whiteck

applied for benefits was inconsistent with her discrimination

claim.

III

Whitbeck next argues that the magistrate judge erred in

refusing to allow her to testify about why she never com-

plained to Henricks's supervisor after Henricks allegedly

denied her request to use a motorized cart. Whitbeck sought

to explain to the jury that she had not gone to Henricks's

supervisor because she feared his reaction. To bolster this

explanation, she wished to testify that Henricks had previous-

ly told her that Henricks's supervisor had targeted Whit-

beck's sales territory for elimination. The magistrate judge

refused to allow Whitbeck to recount Henricks's out-of-court

statement, ruling that the testimony was hearsay. Whitbeck

now urges (as she did to the magistrate judge) that she

offered Henricks's statement not for its truth, but only to

demonstrate her state of mind.

We have no doubt that the magistrate judge erred in

excluding this testimony. At trial, Vital Signs elicited testi-

mony from numerous witnesses that Whitbeck was extraordi-

narily headstrong--not "the type of person to take no for an

answer and just walk away if she wanted something." Tr.

10/28/97 at 107. Vital Signs's theory, as it eventually ex-

plained to the jury in closing, was that Whitbeck's failure to

complain to anybody else at Vital Signs after Henricks sup-

posedly denied her request for an accommodation made that

story unbelievable; someone "with Beverly Whitbeck's get-

up-and-go and desire and ambition and motivation," Vital

Signs told the jury, "would [not] have walked away and

[would have] gone to someone else." Tr. 10/29/97 at 83. It

was therefore understandable that during her redirect exami-

nation, by which time Vital Signs had already introduced

testimony about her assertiveness, Whitbeck tried to explain

her failure to appeal Henricks's alleged decision by establish-

ing that she thought talking to Henricks's supervisor would

do more harm than good. Because Henricks's statement

regarding her supervisor's intentions with respect to Whit-

beck's sales territory would have explained Whitbeck's state

of mind when she decided against going to him, the statement

was relevant for this non-hearsay purpose. See United States

v. Baird, 29 F.3d 647, 653 (D.C. Cir. 1994). Indeed, that

Whitbeck had not offered Henricks's statement for its truth is

clear from the fact that the underlying question of the

supervisor's intentions regarding Whitbeck's territory was

entirely irrelevant to her case. Whitbeck's lawyer more than

adequately conveyed the purpose of the proffered testimony

at a bench conference: "[I]t's not hearsay in that we're not

admitting it for the truth.... It has to do with what her

state of mind was and why she was not assertive in going to

[Henricks's supervisor]." Tr. 10/28/97 at 85-86.

The magistrate judge's error, however, was harmless be-

cause the rebuttal evidence Whitbeck sought to introduce was

only minimally probative of why she kept quiet. For one

thing, Henricks's statement suggesting that her supervisor

had considered eliminating Whitbeck's territory occurred

months before the April 28 conversation in which Henricks

allegedly forbad Whitbeck from using a motorized cart; as

such, it amounted to relatively weak state-of-mind evidence.

Moreover, nothing in Whitbeck's proffered testimony would

have explained why she failed to tell anyone else at Vital

Signs--such as colleagues, human resources officers, or man-

agement other than Henricks's supervisor--that Henricks

had denied her request for an accommodation. Indeed, in a

subsequent letter to the CEO of Vital Signs proposing to

return to work on a part-time basis, Whitbeck never even

hinted that Henricks had refused to accommodate her disabil-

ity. Given the evidence of these other omissions, we cannot

say that the magistrate judge's erroneous exclusion of Hen-

ricks's statement affected Whitbeck's "substantial rights."

Fed. R. Civ. P. 61.

IV

We turn finally to Whitbeck's contention that the

magistrate judge erred in refusing to allow two of her

witnesses--her neighbor and sister-in-law--to testify about

statements that she allegedly made to them regarding the

disputed conversation with Henricks. According to the mag-

istrate judge, the proffered testimony was hearsay. Whit-

beck argues (as she did to the magistrate judge) that her

statements to her neighbor and sister-in-law describing her

conversation with Henricks qualified as non-hearsay under

the "prior consistent statement" provision of Federal Rule of

Evidence 801(d)(1)(B). Rule 801(d)(1)(B) provides that out-

of-court statements are not hearsay if they are "consistent

with the declarant's testimony and ... offered to rebut an

express or implied charge against the declarant of recent

fabrication." Because such statements are only admissible to

rebut a specific allegation of motive for fabrication--not to

bolster the declarant's general credibility--the statements

must have occurred before the alleged motive originated. See

Tome v. United States, 513 U.S. 150, 156-160 (1995).

We think that the proffered testimony satisfied the require-

ments of Rule 801(d)(1)(B). Because Vital Signs directly

challenged Whitbeck's credibility by introducing evidence

from which the jury could infer that she fabricated her

account of the conversation with Henricks, Whitbeck sought

to rehabilitate herself by introducing evidence that shortly

after the conversation she told her neighbor and her sister-in-

law what Henricks had said. These statements were admissi-

ble because she made them months before learning that she

would not receive long-term disability benefits, the event that

Vital Signs claimed furnished her motive to lie.

Once again, the magistrate judge's error was harmless.

Given the substantial rehabilitative testimony that Whitbeck

actually elicited from these and other witnesses, the marginal

value of the excluded statements would have been slight.

The neighbor testified that Whitbeck seemed "upset" and

"physically shaken" by her conversation with Henricks, and

that Whitbeck was "confused" and "wasn't sure exactly what

to do because of what [Henricks] had said to her." Tr.

10/28/97 at 103-04. The sister-in-law testified that after the

conversation Whitbeck appeared "depressed" and that "her

personality totally changed." Id. at 112. She also testified

that Whitbeck had "[d]efinitely not" told her that she wanted

to retire from Vital Signs on long-term disability. Id. at 113.

And the motorized cart salesman testified that Whitbeck told

him that she could not buy a cart from him because "they

didn't go for the idea of using the [cart] to get to work." Tr.

10/27/97 at 19. Because Whitbeck could have relied on all of

this testimony to rebut Vital Signs's allegation that she lied

about what Henricks said to her, the magistrate judge's error

was harmless.

V

The verdict in favor of Vital Signs is affirmed.

So ordered.