Gentry v. East West Partners Club Management Co. , 816 F.3d 228 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2382
JUDITH GENTRY,
Plaintiff - Appellant,
v.
EAST WEST PARTNERS CLUB MANAGEMENT COMPANY, INC.; JAY
MANNER, individually; MAGGIE VALLEY RESORT MANAGEMENT, LLC,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Max O. Cogburn, Jr.,
District Judge. (1:13-cv-00108-MOC-DLH)
Argued: December 10, 2015 Decided: March 4, 2016
Before AGEE, FLOYD, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Floyd wrote the opinion,
in which Judge Agee and Judge Thacker joined.
ARGUED: Glen Coile Shults, Jr., LAW OFFICE OF GLEN C. SHULTS,
Asheville, North Carolina, for Appellant. Matthew J. Gilley,
FORD HARRISON, LLP, Spartanburg, South Carolina; Jonathan
Woodward Yarbrough, CONSTANGY, BROOKS, SMITH & PROPHETE, LLP,
Asheville, North Carolina, for Appellees. ON BRIEF: Jule
Seibels Northup, NORTHUP MCCONNELL & SIZEMORE, PLLC, Asheville,
North Carolina, for Appellant.
FLOYD, Circuit Judge:
After her employment was terminated, Appellant Judith
Gentry sued her former employers for disability discrimination
under the Americans with Disabilities Act (ADA) and for other
violations of state and federal law. A jury found in favor of
Gentry on certain state law claims, for which it awarded her
$20,000 in damages, and in favor of the employers on all other
claims. On appeal, Gentry challenges the district court’s jury
instructions under the ADA and the damages award. Because we
find no reversible error, we affirm the district court.
I.
The following facts were adduced at trial. Prior to her
termination, Gentry was an executive housekeeper at the Maggie
Valley Club and Resort (the Club), supervising a staff of eight
to ten housekeepers at an annual salary of $39,381. The Club is
owned by Appellee Maggie Valley Resort Management, LCC (Maggie
Valley). In September 2008, Maggie Valley hired Appellee East
West Partners Club Management Company, Inc. (East West) to
operate the Club, and in October 2008, East West hired Appellee
Jay Manner as the Club’s general manager.
In July 2007, Gentry fell at work, injuring her left foot
and ankle. She filed for workers’ compensation benefits.
Throughout the next year, Gentry received treatment from Dr.
2
Peter Mangone, who performed surgery on Gentry’s ankle in
October 2008. Gentry returned to work in January 2009 with no
restrictions, though she continued to experience pain and
difficulty walking. In January 2010, Dr. Mangone determined
that, under North Carolina’s workers’ compensation guidelines,
Gentry had a 30 percent permanent physical impairment to her
ankle. He noted that she could perform her full job duties but
might require additional surgery in the future.
Soon thereafter, the Club’s insurance carrier offered to
settle Gentry’s workers’ compensation claim. Gentry declined,
expressing concern that she might be terminated if she accepted,
and instead pursued mediation. In October 2010, insurance
adjuster Brenda Smith called Manner to discuss Gentry’s claim.
The accounts of that conversation vary. According to Smith,
Manner expressed surprise at Gentry’s concerns about being
terminated and described her as a “great worker” who did “a
great job.” J.A. 183. He further indicated that while the Club
was struggling financially and considering layoffs, no
particular individuals had been identified for termination.
Manner, however, generally denied making these statements.
According to Manner, Smith stated that the insurance company
felt extorted by Gentry and that it was only a matter of time
before Gentry filed another claim against the Club. Smith
denied making these statements. Manner then called the
3
principals of Maggie Valley and East West and relayed his
version of the conversation with Smith.
Manner and Gentry met to discuss the upcoming mediation of
her workers’ compensation claim. Gentry testified that Manner
summoned her to his office and sternly interrogated her about
her claim. Manner, however, testified that Gentry voluntarily
approached him to discuss her claim and the ongoing problems
with her foot, and that the meeting was not hostile. Gentry’s
workers’ compensation claim was ultimately settled at mediation
in November 2010.
In December 2010, Gentry was terminated. According to
Appellees, the termination was part of a restructuring plan
designed to cut the Club’s costs. Appellees presented evidence
that the Club had been losing money since its inception and was
particularly hard hit during the recession, operating at a net
loss of approximately $2 million in both 2008 and 2009. In the
spring and summer of 2010, Appellees developed a plan to
eliminate certain managerial positions, including Gentry’s, and
consolidate their responsibilities among fewer managers. The
plan was put into effect in December, when Gentry and two other
department heads were terminated and eight other employees were
either terminated or had their hours reduced. Further layoffs
occurred the following year. At the time of trial, the
housekeeping department had only three full-time equivalent
4
employees and the new housekeeping director, Richard Smith,
performed the duties previously performed by Gentry and two
other employees while continuing to perform some of his prior
maintenance duties. According to Appellees, the restructuring
improved the Club’s financial condition and helped reduce its
losses to approximately $1.5 million in 2011 and $1 million in
2012. Appellees maintained that Gentry’s position was
eliminated solely to reduce costs.
Gentry, however, testified that after her termination, she
met with Maggie Valley executive Ray Hobby, who informed her
that Manner had admitted to terminating Gentry because of the
“issues with [her] ankle” and because she “could be a liability
to the club.” J.A. 137. Gentry also presented the testimony of
Equal Employment Opportunity Commission (EEOC) investigator John
Brigman, who had interviewed Hobby while investigating Gentry’s
EEOC charge. According to Brigman, Hobby confirmed that Manner
had told him that Gentry was “let go due to her disability and
her liability to the club.” J.A. 861. Hobby denied making
these statements and further denied that Manner had made any
such statements to him.
Gentry also presented evidence to undercut Appellees’ cost-
saving rationale, including evidence indicating that Richard
Smith, who had assumed Gentry’s responsibilities, performed only
minimal maintenance duties and that his pay eventually increased
5
to be only $4,000 to $5,000 less than Gentry’s. Gentry also
established that there was no memorialization of the spring and
summer 2010 meetings at which the restructuring plan, including
her termination, was allegedly discussed. Additionally, Maggie
Valley executive Purser McLeod testified that he only learned of
Gentry’s impending termination in the fall of 2010, when Manner
called to inform him of Gentry’s workers’ compensation claim.
No one contended that Gentry was terminated for reasons related
to her work performance; no one at Maggie Valley or East West
had ever criticized or complained about her performance, and
Hobby described her as an “outstanding” employee who “did an
excellent job.” J.A. 209.
Gentry sued Maggie Valley and East West for (1) disability
discrimination under the ADA and North Carolina common law; (2)
sex discrimination under Title VII and North Carolina common
law; and (3) retaliation against Gentry for pursuing a workers’
compensation claim, in violation of North Carolina common law.
She also sued East West and Manner for tortiously interfering
with her employment contract with Maggie Valley. After a
weeklong trial, the jury found East West liable for workers’
compensation retaliation and awarded Gentry $10,000. The jury
also found East West and Manner liable for tortiously
interfering with Gentry’s employment, and awarded separate
damages of $5,000 each against East West and Manner. The jury
6
found in favor of Appellees on all other claims. After the
district court entered judgment, Gentry moved for a new trial,
which the district court denied. This appeal followed.
On appeal, Gentry argues that the district court
incorrectly instructed the jury on the causation standard for
disability discrimination claims under the ADA and on the ADA’s
definitions of disability. She further argues that the district
court erred in refusing to admit evidence of Appellees’
liability insurance and indemnification. Finally, she contends
that she is entitled to a new trial on damages for the claims on
which she prevailed. Each contention is discussed in turn.
II.
We review challenges to jury instructions for abuse of
discretion, bearing in mind that “a trial court has broad
discretion in framing its instructions to a jury.” Volvo
Trademark Holding Aktiebolaget v. Clark Mach. Co., 510 F.3d 474,
484 (4th Cir. 2007). “Instructions will be considered adequate
if construed as a whole, and in light of the whole record, they
adequately informed the jury of the controlling legal principles
without misleading or confusing the jury to the prejudice of the
[objecting] party.” Bunn v. Oldendorff Carriers GmbH & Co. KG,
723 F.3d 454, 468 (4th Cir. 2013) (quotation omitted). “We
review de novo whether the district court’s instructions to the
7
jury were correct statements of law.” Emergency One, Inc. v.
Am. FireEagle, Ltd., 228 F.3d 531, 538 (4th Cir. 2000). “Even
if a jury was erroneously instructed, however, we will not set
aside a resulting verdict unless the erroneous instruction
seriously prejudiced the challenging party’s case.” Bunn, 723
F.3d at 468 (emphasis in original) (quotation omitted).
III.
Title I of the ADA prohibits employers from
“discriminat[ing] against a qualified individual on the basis of
disability in regard to . . . the hiring, advancement, or
discharge of employees.” 42 U.S.C. § 12112(a). The district
court instructed the jury that Gentry had to demonstrate that
her disability was the “but-for” cause of her termination.
Gentry argues that this was in error, as the court should
instead have adopted Title VII’s “motivating factor” causation
standard.
Title VII prohibits employers from “discriminat[ing]
against any individual . . . because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
2(a). The Civil Rights Act of 1991 (1991 Act) amended Title VII
to provide that “an unlawful employment practice is established
when the complaining party demonstrates that race, color,
religion, sex, or national origin was a motivating factor for
8
any employment practice, even though other factors also
motivated the practice.” 42 U.S.C. § 2000e–2(m). The 1991 Act
further provided that if a plaintiff proved a violation under
§ 2000e-2(m) but the defendant demonstrated that it “would have
taken the same action in the absence of the impermissible
motivating factor,” a court may grant the plaintiff declaratory
relief, attorney’s fees and costs, and certain injunctive
relief, but may not award monetary damages or reinstatement.
See id. § 2000e–5(g)(2)(B). 1
In Gross v. FBL Financial Services, Inc., 557 U.S. 167(2009), the Supreme Court considered whether Title VII’s
“motivating factor” standard applied to claims brought under the
Age Discrimination in Employment Act (ADEA), which prohibits
employers from “discriminat[ing] against any individual . . .
1The “motivating factor” standard originated with Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), where “a plurality
of the Court and two Justices concurring in the judgment
determined that once a ‘plaintiff in a Title VII case proves
that [the plaintiff’s membership in a protected class] played a
motivating part in an employment decision, the defendant may
avoid a finding of liability only by proving by a preponderance
of the evidence that it would have made the same decision even
if it had not taken [that factor] into account.’” Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 173-74 (2009) (alterations in
original)(quoting Price Waterhouse, 490 U.S. at 258). The 1991
Act partly codified and partly rejected the Price Waterhouse
framework, and “there is no reason to think that the different
balance articulated by Price Waterhouse somehow survived that
legislation’s passage.” Univ. of Tex. Sw. Med. Ctr. v. Nassar,
——U.S.——, 133 S. Ct. 2517, 2526, 2534 (2013).
9
because of such individual’s age.” 29 U.S.C. § 623(a)(1). The
Court held that it did not, explaining:
Unlike Title VII, the ADEA’s text does not provide
that a plaintiff may establish discrimination by
showing that age was simply a motivating factor.
Moreover, Congress neglected to add such a provision
to the ADEA when it amended Title VII to add §§ 2000e–
2(m) and 2000e–5(g)(2)(B), even though it
contemporaneously amended the ADEA in several ways.
We cannot ignore Congress’ decision to amend
Title VII’s relevant provisions but not make similar
changes to the ADEA. When Congress amends one
statutory provision but not another, it is presumed to
have acted intentionally.
Gross, 557 U.S. at 174 (citation omitted). Examining the
language of the ADEA, the Court concluded that discrimination
“because of” age meant that “age was the ‘reason’ that the
employer decided to act.” Id. at 176. Thus, “a plaintiff must
prove that age was the ‘but-for’ cause of the employer’s adverse
decision.” Id.The Supreme Court’s analysis in Gross dictates the outcome
here. The ADA’s text does not provide that a plaintiff may
establish liability by showing that disability was a motivating
factor in an adverse employment decision. Furthermore, the 1991
Act that added the “motivating factor” standard to Title VII
“contemporaneously amended” provisions of the ADA but did not
add that standard. See Pub. L. No. 102–166, §§ 109, 315. We
conclude that Title VII’s “motivating factor” standard cannot be
read into Title I of the ADA. In reaching this conclusion, we
10
join the Sixth and Seventh Circuits. See Lewis v. Humboldt
Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en banc);
Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir.
2010).
Gentry argues that Gross is not controlling here because
unlike the ADEA, the ADA indirectly incorporates Title VII’s
“motivating factor” standard by reference. Specifically, the
ADA’s “Enforcement” provision states:
The powers, remedies, and procedures set forth in
sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and
2000e-9 of this title shall be the powers, remedies,
and procedures this subchapter provides to the
Commission, to the Attorney General, or to any person
alleging discrimination on the basis of disability in
violation of any provision of this chapter . . . .
42 U.S.C. § 12117(a). However, while this language incorporates
Title VII’s “Enforcement provisions” in § 2000e-5, it does not
incorporate the “Unlawful employment practices” in § 2000e-2,
including § 2000e-2(m), which establishes mixed motive
employment practices as unlawful. See Serwatka, 591 F.3d at 962(“[A]lthough section 12117(a) cross-references the remedies set
forth in section 2000e-5(g)(2)(B) for mixed-motive cases, it
does not cross-reference the provision of Title VII, section
2000e-2(m), which renders employers liable for mixed-motive
employment decisions.” (emphasis in original)).
Gentry notes that § 2000e-5(g)(2)(B) cross-references
§ 2000e-2(m). However, § 2000e-5(g)(2)(B) merely specifies the
11
remedies available when a plaintiff establishes a violation of
§ 2000e-2(m), that is, when a plaintiff establishes that “race,
color, religion, sex, or national origin was a motivating
factor” in an employment action. Section 2000e-5(g)(2)(B)
cannot be read as somehow excising § 2000e-2(m)’s causation
standard from its limited application to claims of race, color,
religion, sex, and national origin discrimination and applying
it to claims under the ADA. See Lewis, 681 F.3d at 320(explaining that § 2000e-5(g)(2)(B) “does not direct judges to
apply the substantive ‘motivating factor’ standard from § 2000e-
2(m); it permits them only to provide a remedy for . . . a
violation under section 2000e-2(m)” (quotation omitted)). Such
a broad reading is particularly inadvisable as Gross instructs
us to hew closely to the text of employment discrimination
statutes. 2,3
2Gentry’s reliance on § 2000e-5(a) is similarly unavailing,
if not more tenuous, as that section does not reference the
“motivating factor” provision but rather broadly provides that
the “Commission is empowered, as hereinafter provided, to
prevent any person from engaging in any unlawful employment
practice as set forth in section 2000e-2.”
3Gentry asks the Court to apply the analysis of Baird ex
rel. Baird v. Rose, 192 F.3d 462 (4th Cir. 1999), an ADA Title
II case that was decided prior to Gross. In Baird, the question
facing the Court was whether to continue applying the “solely on
the basis of” causation standard, derived from the
Rehabilitation Act, to ADA Title II claims. Id. at 468. After
answering that question in the negative, and without the benefit
of Gross, we determined that Title VII’s “motivating factor”
(Continued)
12
Instead, to invoke Title VII’s enforcement provisions, an
ADA plaintiff must allege a violation of the ADA itself—a
violation of “this chapter.” 42 U.S.C. § 12117(a) (emphasis
added). As discussed above, the ADA’s text does not provide
that a violation occurs when an employer acts with mixed
motives. 4
The only remaining question is whether the ADA’s text calls
for a “but-for” causation standard. We hold that it does. The
ADA prohibits discrimination “on the basis of” disability. 42
U.S.C. § 12112(a). We see no “meaningful textual difference”
between this language and the terms “because of,” “by reason
of,” or “based on”—terms that the Supreme Court has explained
connote “but-for” causation. See Univ. of Tex. Sw. Med. Ctr. v.
Nassar, ——U.S.——, 133 S. Ct. 2517, 2527-28 (2013). A “basis” is
“[t]he justification for or reasoning behind something.” Basis,
New Oxford American Dictionary (3d ed. 2010); see also Merriam-
standard should apply based on Title II’s incorporation of Title
VII’s enforcement provisions. See id. at 470. Baird, however,
is not controlling here and in light of the Supreme Court’s
subsequent guidance in Gross, we decline to extend Baird’s
analysis to this case.
4We find the Sixth Circuit’s analysis of the ADA’s
legislative history to be well reasoned, and agree that the
legislative history does not alter our conclusion that the ADA
does not incorporate Title VII’s “motivating factor” standard.
See Lewis, 681 F.3d at 320-21.
13
Webster’s Advanced Learner’s English Dictionary (2008) (defining
“on the basis of” as “according to[,] based on”).
Moreover, legislative history does not suggest that “on the
basis of” was intended to mean something other than but-for
causation. As originally enacted, the ADA prohibited
discrimination “against a qualified individual with a disability
because of the disability of such individual.” Pub. L. No. 101–
336, § 102 (1990). The ADA Amendments Act of 2008 (ADAAA)
changed this language to its present form, prohibiting
discrimination “against a qualified individual on the basis of
disability.” See Pub. L. No. 110-325 § 5 (2008). This was done
to “ensure[] that the emphasis in questions of disability
discrimination is properly on the critical inquiry of whether a
qualified person has been discriminated against on the basis of
disability, and not unduly focused on the preliminary question
of whether a particular person is a ‘person with a disability.’”
154 Cong. Rec. S8840-01 (Sept. 16, 2008) (Senate Statement of
Managers). The legislative history suggests the language was
changed to decrease the emphasis on whether a person is
disabled, not to lower the causation standard. Finally, we note
that the amended language was enacted before Gross and therefore
not in response to Gross’s causation analysis. Accordingly, we
14
conclude that the district court correctly applied a “but-for”
causation standard to Gentry’s ADA claim. 5
IV.
Gentry also challenges the district court’s instructions on
the definitions of disability. The ADA defines disability as
“(A) a physical or mental impairment that substantially limits
one or more major life activities of [an] individual; (B) a
record of such an impairment; or (C) being regarded as having
such an impairment.” 42 U.S.C. § 12102(1). Gentry asserted all
three forms of disability and argues that the court erroneously
instructed the jury on each. She disputes the court’s
definition of “substantially limits” and its instructions on
5 Gentry complains that the district court instructed the
jury that disability had to be “the but-for” cause of her
termination instead of “a but-for” cause. While we agree that
“a but-for” cause is the appropriate formulation, we find no
abuse of discretion in the district court’s instructions. The
Supreme Court has repeatedly used “the but-for” language. See
Gross, 557 U.S. at 177-78 (“A plaintiff must prove . . . that
age was the ‘but-for’ cause of the challenged employer
decision.” (emphasis added)); Nassar, 133 S. Ct. at 2528 (“Title
VII retaliation claims require proof that the desire to
retaliate was the but-for cause of the challenged employment
action.”) (emphasis added). While the district court at one
point misspoke and stated that disability had to be the sole
cause of Gentry’s termination, the court corrected itself by
providing oral and written instructions that disability need not
be the “only or sole cause” of Gentry’s termination. See J.A.
725, 940.
15
“regarded as” and “record of” disability. These arguments are
addressed below.
A.
The district court instructed the jury that “[a]n
impairment substantially limits a major life activity, if it
prevents or significantly restricts a person from performing the
activity, compared to an average person in the general
population.” J.A. 697. Gentry did not object to this
instruction, which was similar to the one she had proposed. 6
On appeal, however, Gentry argues that the “prevents or
significantly restricts” standard is too demanding under the
ADAAA. The ADAAA sought to “reinstat[e] a broad scope of
protection” after the Supreme Court had “created an
inappropriately high level of limitation necessary to obtain
coverage under the ADA.” Pub. L. No. 110–325, § 2(b)(1),(5).
Specifically, the ADAAA rejected the standard enunciated in
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S.
184, 198 (2002), that to be substantially limiting, an
impairment must “prevent[] or severely restrict[]” a major life
6Gentry proposed the instruction: “[a]n impairment
‘substantially limits’ a major life activity if it prevents or
restricts a person from walking, standing, lifting, and bending
compared to the average person in the general population.” J.A.
54.
16
activity. See Pub. L. No. 110–325, § 2(b)(5). The ADAAA
directed the EEOC to revise its regulation defining
“substantially limits” to reflect this broadened understanding
of “disability.” See id. § 2(b)(6). EEOC regulations now
provide that “[a]n impairment need not prevent, or significantly
or severely restrict, the individual from performing a major
life activity in order to be considered substantially limiting.”
29 C.F.R. § 1630.2(j)(ii).
Because Gentry did not object to the district court’s
instruction, we review for plain error. On plain error review,
Gentry must establish (1) that the district court erred; (2)
that the error was plain; and (3) that the error affected her
substantial rights, meaning that “there must be a reasonable
probability that the error affected the outcome of the trial.”
United States v. McDonnell, 792 F.3d 478, 502 (4th Cir. 2015)
(quoting United States v. Marcus, 560 U.S. 258, 262 (2010)).
“The mere possibility that the error affected the outcome of the
trial” does not suffice. Id. Even then, the error “should only
be corrected where not doing so would result in a ‘miscarriage
of justice’ or would otherwise ‘seriously affect[ ] the
fairness, integrity or public reputation of judicial
proceedings.’” United States v. Robinson, 627 F.3d 941, 954
(4th Cir. 2010) (alteration in original) (quoting United States
v. Olano, 507 U.S. 725, 736 (1993)).
17
Even if we assume that the district court’s instruction was
erroneous and that the error was plain, Gentry has not shown
that it affected her substantial rights. Gentry offers little
to suggest that her disability discrimination claims failed
because the jury believed that her impairment did not meet the
district court’s definition of “substantially limits.” She does
not contend that Appellees argued to the jury that the standard
for “disability” was demanding or that Gentry’s impairment was
insufficiently severe. Nor does she demonstrate that the extent
of her impairment was a seriously contested issue at trial.
Moreover, there are ample facts from which the jury could have
found that her termination was not the result of an impairment
to her foot, regardless of how severe. Gentry was not
terminated until more than three years after her injury and more
than two years after her surgery. At no point did her employers
complain about her ability to perform her job duties. In fact,
trial testimony indicated that they, including Manner,
considered her to be an excellent employee. The strongest
evidence Gentry presented of disability discrimination was that
Manner allegedly admitted to Hobby that Gentry was terminated
“due to her disability.” J.A. 161. If the jury credited this
evidence, it is unlikely they would nevertheless find in favor
of Appellees because they believed Gentry’s impairment did not
constitute a disability. On this record, we cannot say there is
18
a “reasonable probability” that the district court’s instruction
affected the outcome of Gentry’s disability discrimination
claims. Finally, Gentry offers no argument as to how failure to
correct the district court’s instruction would result in a
miscarriage of justice or would seriously affect the fairness,
integrity, or public reputation of the judicial proceedings.
Accordingly, we find that Gentry has failed to satisfy the plain
error standard.
B.
Gentry next contends that the district court erred in
instructing the jury on the “regarded as” prong of the
definition of disability. The district court instructed that
“disability . . . discrimination laws are designed to protect
individuals who . . . may be perceived as disabled from being
discriminated against in the workplace” and that “you must
decide whether . . . a perception that [Gentry] was disabled,
was the ‘but for’ reason that [Appellees] . . . terminate[d] her
employment.” J.A. 698-99. The verdict form similarly asked
whether Gentry’s “disability, a record of disability, or a
perception by [Appellees] that [Gentry] had a disability” was
the “but-for” reason for her termination. See J.A. 733-34.
Gentry argues that the court should have instructed that
Gentry satisfied the “regarded as” prong if she was
19
discriminated against “because of an actual or perceived
physical or mental impairment whether or not the impairment
limits or is perceived to limit a major life activity.” See 42
U.S.C. § 12102(3)(A); J.A. 55. Gentry contends that this
language, which was added by the ADAAA, is important because “a
plaintiff no longer needs to show that the employer thought that
the employee had a substantial limitation in a major life
activity;” instead, a plaintiff need only show that adverse
action was taken because of the plaintiff’s impairment, “without
regard to how serious the employer thought that it was.” Br. of
Appellant 41.
Assuming that Gentry properly preserved an objection to the
court’s instruction, we do not see how she was prejudiced by it. 7
The court instructed that Appellees were liable if they
discriminated against Gentry because they perceived her to be
disabled, which conveyed that Gentry did not actually have to be
disabled. Gentry’s primary evidence of disability
discrimination was that Manner allegedly stated that Gentry was
terminated “due to her disability.” See J.A. 161. If the jury
7At trial, Gentry merely stated that “the regarded as
definition was not in there. I was just wondering whether to
include that.” J.A. 723. We question whether this qualifies as
“stating distinctly the matter objected to and the grounds for
the objection,” Fed. R. Civ. P. 51(c), but will assume arguendo
that it does.
20
believed that evidence, the instruction informed the jury that
Gentry’s termination was unlawful. Thus, even if we assume that
the court’s instruction was erroneous, the error did not
seriously prejudice Gentry.
Moreover, the district court acted within its discretion
when it determined that the full “regarded as” instruction
proposed by Gentry was not warranted under the circumstances of
the case. After hearing all of the evidence, and mindful that
the jury would already be grappling with complex and nuanced
instructions on multiple discrimination and related claims under
state and federal law, the court declined to give the full
instruction, stating:
I will not go beyond that. The evidence with regard to
disability is the statement. If they believe the
statement, they are going to get that anyway. If they
can fight their way through the confusion of this
thing to get to the disability claim, you have got a
possibility of winning this. On the rest of this
stuff, you have a hard row to hoe.
J.A. 723.
We find no abuse of discretion and no serious prejudice to
Gentry that warrants vacating the verdict on her disability
discrimination claims.
C.
Finally, Gentry challenges the district court’s instruction
on “record of” disability. EEOC regulations provide that “[a]n
21
individual has a record of a disability if the individual has a
history of, or has been misclassified as having, a mental or
physical impairment that substantially limits one or more major
life activities.” 29 C.F.R. § 1630.2(k)(1). Gentry argues that
the district court improperly shortened this definition by
omitting the “misclassified” clause.
Gentry did not object to the district court’s instruction
below and on appeal she does not explain how the omitted
language applies to her case. We therefore have no basis for
finding that the district court erred or otherwise abused its
discretion.
V.
We move next to Gentry’s challenges to the damages the jury
awarded on her state law claim against East West for workers’
compensation retaliation and on her claims against East West and
Manner for tortious interference with a contract. For these
claims, the jury was instructed that it could award damages for
back pay, front pay, emotional pain and suffering, and nominal
damages. The jury was further instructed that Gentry had to
mitigate her damages using reasonable diligence, which “requires
the employee seek and accept similar employment in the same
locality.” J.A. 710. The court instructed that if Appellees
proved that Gentry failed to mitigate, the jury was to reduce
22
her damages based on what she could have earned using reasonable
diligence. Ultimately, the jury awarded $10,000 against East
West for workers’ compensation retaliation and $5,000 against
East West and Manner each for tortious interference. On appeal,
Gentry argues that the district court erred in denying Gentry’s
motion to introduce evidence of East West’s insurance coverage
and indemnification and in denying her motion for a new trial on
damages.
A.
Gentry argues that the jury’s damages award was tainted by
Appellees’ belaboring of their poor financial condition. Gentry
claims that this “poor mouthing” left the jury with the
impression that a significant judgment would be overly
burdensome, and that she should have been allowed to dispel this
impression by presenting evidence of East West’s liability
insurance and its indemnification agreement with Maggie Valley.
We review evidentiary rulings for abuse of discretion and
“will only overturn an evidentiary ruling that is arbitrary and
irrational.” Noel v. Artson, 641 F.3d 580, 591 (4th Cir. 2011)
(quoting United States v. Cole, 631 F.3d 146, 153 (4th Cir.
2011)). We find no basis for overturning the district court’s
ruling here.
23
While Gentry is correct that Appellees testified at length
about the Club’s financial losses, that evidence was central to
their defense that Gentry was terminated as part of an effort to
reduce the Club’s costs. Although Appellees also presented
evidence of the Club’s financial condition after Gentry’s
termination, that evidence was arguably relevant to demonstrate
that their cost-saving efforts were effective and not
pretextual. Moreover, Gentry points to nothing in the record
indicating that Appellees claimed that they could not pay the
judgment or suggested that the jury should consider their
financial condition in determining the damages to award. 8
Gentry also does not explain how evidence of the Club’s
financial losses would reflect on the ability of East West and
Manner to pay the judgment, as they did not own the Club. 9 The
only “poor mouthing” specific to these entities that Gentry
identifies is that East West lost numerous clients as a result
8
These considerations, as well as the fact that punitive
damages were not at issue here, distinguish this case from those
cited by Gentry. See Lawson v. Towbridge, 153 F.3d 368, 378-80
(7th Cir. 1998); Kemezy v. Peters, 79 F.3d 33, 37 (7th Cir.
1996); Mathie v. Fries, 121 F.3d 808, 816 (2d Cir. 1997); Adkins
v. McClanahan, No. 1:12CV00034, 2013 WL 5202402, at *4 (W.D. Va.
Sept. 16, 2013).
9
The agreement between Maggie Valley and East West in the
record indicates that East West received a fixed management fee
with the potential for a bonus based on the Club’s performance.
See J.A. 781, 798.
24
of the recession, and Manner voluntarily took a pay cut from his
$140,000 salary and had not received a bonus in the two years
prior to trial. The district court did not abuse its discretion
in finding this “poor mouthing” insufficient to open the door to
evidence of East West’s insurance coverage and indemnification. 10
Finally, as the district court noted, the jury was
instructed to award Gentry “fair compensation” for her damages.
See, e.g., J.A. 708. Gentry has not overcome the presumption
that the jury followed the court’s instructions, see McDonnell,
792 F.3d at 503, and did not base its award on Appellees’
ability to pay.
In short, we find no abuse in the district court’s refusal
to admit evidence of East West’s insurance coverage and
indemnification. While such evidence may not have been strictly
prohibited by Federal Rule of Evidence 411, as it was not
offered to show that Appellees “acted negligently or otherwise
wrongfully,” the court was within its discretion to find that
the evidence’s probative value was substantially outweighed by
the danger of unfair prejudice. See Fed. R. Evid. 403; J.A. 79.
10We note that Gentry was in fact permitted to show the
jury the indemnification clause in the contract between Maggie
Valley and East West, though she was not permitted to ask
further questions about the clause’s application. See J.A. 303-
05.
25
B.
Finally, Gentry argues that she is entitled to a new trial
on damages because the jury’s $20,000 award was inadequate.
Gentry’s damages expert, Dr. Richard Bohm, testified that Gentry
incurred back pay damages of $133,093 and front pay damages of
$297,568. Gentry concludes that the jury “apparently found that
Plaintiff failed to mitigate her damages” and reduced her award.
Br. of Appellant 53. She argues that this was against the clear
weight of the evidence, and thus the district court erred in
denying her motion for a new trial. See Cline v. Wal-Mart
Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998) (explaining that
the district court is to grant a new trial where “(1) the
verdict is against the clear weight of the evidence, or (2) is
based upon evidence which is false, or (3) will result in a
miscarriage of justice, even though there may be substantial
evidence which would prevent the direction of a verdict”).
“‘We review for abuse of discretion a district court’s
denial of a motion for new trial,’ and ‘will not reverse such a
decision save in the most exceptional circumstances.’” Bunn,
723 F.3d at 468 (quoting Figg v. Schroeder, 312 F.3d 625, 641
(4th Cir. 2002)). “We commit this decision to the district
court because the district judge is in a position to see and
hear the witnesses and is able to view the case from a
perspective that an appellate court can never match.” Bristol
26
Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 186
(4th Cir. 1994)(quotation omitted). The “crucial inquiry” on
review is “whether an error occurred in the conduct of the trial
that was so grievous as to have rendered the trial unfair.” Id.(quotation omitted).
We find that Gentry has not met her substantial burden of
showing that the district court abused its discretion. Gentry
asks us to infer that the jury reduced her award because of her
failure to mitigate. This, however, is speculative. The jury
was not required to specify the type of damages it awarded nor
the basis for the award. It is possible, for example, that the
jury did not fully credit Dr. Bohm’s testimony regarding
Gentry’s damages, including his assumption that Gentry’s salary
would have steadily increased had she not been terminated.
Appellees presented ample evidence that the Club was cutting
costs, including after Gentry’s termination, and the jury could
infer that Gentry’s salary, which was relatively high among the
Club’s staff, would have decreased.
With respect to mitigation, Gentry presented evidence that
she sought employment from December 2010 to December 2011,
making two contacts per week as required to maintain
unemployment benefits, and sometimes more. Gentry testified
that she limited her search to Haywood County because of family
responsibilities and because she experienced anxiety driving
27
long distances. She obtained a part-time position from March
2011 to December 2011, when she switched to another part-time
position that became full-time in September 2012. Gentry’s
occupational expert testified that Gentry’s job search was
reasonable and that she obtained the best job available in light
of her circumstances. Appellees’ vocational expert testified
that Gentry’s search was inadequate, primarily because Gentry
made an insufficient number of contacts and because she limited
her search to Haywood County when there were more opportunities
at higher salaries in neighboring Buncombe and Jackson Counties.
The jury was not required to accept Gentry’s assertion that
she was restricted to seeking jobs in Haywood County and could
have found that her refusal to seek jobs elsewhere, coupled with
the cessation of her job search efforts after December 2011
despite having only part-time work, did not constitute
“reasonable diligence.” 11
On appeal, Gentry argues that the duty to mitigate “is not
onerous” and does not require “engag[ing] in an additional
commute to search for a high-paying position.” Br. of Appellant
52, 56. She cites several cases in support of these
11We also note that evidence in the record indicated that
Gentry received unemployment benefits after her termination.
See J.A. 372. Per the district court’s instructions, the jury
was permitted to reduce the award on that ground. See J.A. 710.
28
propositions. However, Gentry did not propose any such
instructions to the district court nor did she object to the
instructions that the court gave. See Curley v. Standard Motor
Prods., Inc., 27 F.3d 562, at *2 (4th Cir. 1994) (unpublished
table decision) (affirming denial of motion for a new trial that
was “based primarily on objections which were foreclosed by
[party’s] failure to object to the introduction of evidence, and
[party’s] approval of, or failure to object to the court’s
instructions”); see also Bryant v. Mathis, 278 F.2d 19, 20 (D.C.
Cir. 1960) (affirming denial of motion for a new trial on
damages where plaintiff was entitled to, but did not request,
instruction that lost wages were recoverable notwithstanding
compensation from a collateral source). Under these
circumstances, we affirm the district court’s denial of Gentry’s
motion for a new trial.
VI.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
29