UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2031
TAMMY L. CALEF,
Plaintiff – Appellee,
v.
FEDEX GROUND PACKAGING SYSTEM, INCORPORATED,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:06-cv-00047-IMK-JSK)
Argued: May 14, 2009 Decided: August 27, 2009
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished opinion. Judge King wrote the opinion,
in which Judge Michael and Judge Gregory joined.
ARGUED: John J. Myers, ECKERT, SEAMANS, CHERIN & MELLOTT,
Pittsburgh, Pennsylvania, for Appellant. Georgia Lee Gates, LAW
OFFICES OF RON L. TUCKER, Fairmont, West Virginia, for Appellee.
ON BRIEF: Christina I. Kepplinger, ECKERT, SEAMANS, CHERIN &
MELLOTT, Pittsburgh, Pennsylvania, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
KING, Circuit Judge:
Tammy L. Calef asserted and pursued a disability
discrimination claim under the West Virginia Human Rights Act,
W. Va. Code §§ 5-11-1 to -21 (the “WVHRA”), against her
employer, FedEx Ground Packaging System, Incorporated (“FedEx”).
In early 2008, at the conclusion of a trial in the Northern
District of West Virginia, the jury returned a verdict in favor
of Calef. Thereafter, the district court awarded her more than
$1.2 million in damages, prejudgment interest, attorney fees,
and litigation expenses. In this appeal, FedEx raises nearly
twenty contentions of error, seeking to have the judgment
reversed. As explained below, we reject each of these
contentions and affirm.
I.
A.
According to the trial evidence, Calef had been an employee
of FedEx and its predecessors in Clarksburg, West Virginia,
since 1994. 1 On January 23, 2004, Calef was laterally
transferred between positions — from Dock Service Manager to
1
Our statement of the facts summarizes the evidence on the
disability discrimination claim in the light most favorable to
Calef, as the prevailing party. See ABT Bldg. Prods. Corp. v.
Nat’l Union Fire Ins. Co. of Pittsburgh, 472 F.3d 99, 113 (4th
Cir. 2006).
2
Package and Delivery (“P&D”) Service Manager — at the Clarksburg
home delivery terminal. In her new role as P&D Service Manager,
Calef was responsible for overseeing the work of the independent
contractors who delivered packages for FedEx. 2 The work week at
the terminal ran from Tuesday to Saturday.
Calef’s first day as P&D Service Manager was scheduled for
Tuesday, January 27, 2004. The prior Saturday, Calef injured
her left hand while playing volleyball. Calef visited a doctor
on Monday and, believing her injury was nonserious, reported for
work on Tuesday. Upon arrival at the Clarksburg terminal that
morning, she showed her hand injury to Dock Service Manager
Chris Davis, with whom she had just switched positions. Calef’s
immediate supervisor, Terminal Manager Kyle Ryan, was aware of
Calef’s hand injury by at least Thursday, January 29. Each day
from January 27 to 29, Calef planned to engage in nonphysical
P&D Service Manager duties, such as ride-alongs with delivery
2
Specific duties of the P&D Service Manager, as outlined in
a January 23, 2004 performance expectation plan provided to
Calef by FedEx, included the following: riding twice a week
with contractors, completing related reports, and reviewing the
reports with the contractors involved; timely completing
accident reports and post-accident rides; completing an audit of
each contractor once every quarter, reviewing the audits with
the contractors, and submitting related reports to the FedEx
Terminal Manager; completing daily van service audits for all
drivers and reviewing the results with the Terminal Manager; and
“other duties and functions as assigned by Senior Management.”
J.A. 1560. (Citations herein to “J.A. __” refer to the contents
of the Joint Appendix filed by the parties in this appeal.)
3
drivers, but she was instead scheduled by upper-level
supervisors to drive a van and deliver packages. On January 29,
with her hand injury having worsened, Calef returned to the
doctor and was fitted with a finger splint. Despite the
increased severity of her injury, FedEx continued to assign
Calef to delivery duties.
Around February 6, 2004 — as she was preparing for yet
another day of delivering packages — Calef was approached by
Steve Hickman, FedEx’s Regional Human Resources Manager.
Hickman asked Calef if she had been “sending out resumes” and
expressed an assumption that she was “looking for another job.”
J.A. 1085. When Calef responded that she was not seeking
another job and was “planning on retiring with FedEx,” Hickman
offered Calef a three-month severance package to entice her to
resign. Id. Calef refused the offer, prompting Hickman to
sweeten the deal with “medical till the end of the year.” Id.
Calef yet rejected Hickman’s offer, at which point he told her
that “this is just between you and me.” Id. Troubled by this
exchange with Hickman, Calef sought an explanation from Ryan.
Ryan acknowledged that he already knew from Hickman about the
offer, which left Calef confused because “[Hickman was] saying
it’s just between you and me but he had already discussed it
with [Ryan].” Id. at 1086. For the week thereafter, Ryan sent
4
daily notes to Hickman, documenting problems with Calef’s
performance that were unrelated to her hand injury.
On Friday, February 13, 2004, Calef was assigned a delivery
route with more than seventy stops. That day or the next, with
her injured hand throbbing, Calef went to Ryan and told him that
“[m]y hand cannot do this.” J.A. 1091-92. Ryan, following
company protocol, requested a doctor’s excuse. On Monday,
February 16 — in compliance with Ryan’s request — Calef visited
and obtained excuses from both her doctor and her chiropractor.
Calef’s doctor wrote that Calef had “[l]imited use of [her left]
hand” and that she should not “lift[] [more than] 20 lbs.” until
March 1. Id. at 1785. The chiropractor implied that Calef’s
injury had been prolonged by improper use of her hand, writing
that “[d]ue to repeated extension of the second and third
metacarpal, the pain . . . has not decreased.” Id. at 1786. He
further concluded that Calef was “limited on her ability to
drive,” and that “[l]imiting the amount of driving would greatly
improve her condition whereas driving frequently could cause her
condition to worsen.” Id. Significantly, neither the doctor
nor the chiropractor suggested that Calef could not, or even
should not, work. Calef presented the two excuses to Ryan on
Tuesday, February 17, and was permitted to perform non-delivery
P&D Service Manager duties on February 17 and 18.
5
After complying with FedEx’s directive to again deliver
packages on Thursday, February 19, 2004, Calef’s hand became
“green, swollen, throbbing.” J.A. 1094. She was unable to
sleep that night because of the pain, and she called Davis the
next morning to inform him that she would be unable to deliver
packages that day. Calef reported for work that morning and
then left for an afternoon doctor’s appointment, during which
the doctor placed Calef’s hand in a half-cast to immobilize her
injury. The doctor again wrote a note to FedEx, recommending
“[n]o use [of Calef’s left] Arm” until March 20. Id. at 1787.
Upon returning to work after her doctor’s appointment, Calef
completed two handwritten reports. Although she is left-handed,
Calef managed to complete the reports with her right hand. The
next day, Calef rode with and trained a new driver.
Having not missed a single work day because of her January
24, 2004 hand injury, Calef again reported to work on Tuesday,
February 24. That day, as she was preparing to leave on a ride-
along with a temporary driver, Calef was abruptly summoned back
to the terminal — Hickman was on the phone and wished to speak
with her. Hickman ordered Calef to “go home,” file a claim for
short-term disability benefits, and stay away from work until
either he or Ryan called with additional instructions. J.A.
1101. Calef was stunned by these commands, maintaining that she
was “fulfilling everything” expected of her as a P&D Service
6
Manager. Id. Hickman’s own notes of the call reflect that
Calef “questioned why she was being sent home,” and that Hickman
responded by asserting “that the Company needed to assess her
ability to do her job based on the restrictions imposed by her
doctors.” Id. at 1521.
Hickman partially filled out — but never completed — a
“Reasonable Accommodation Checklist” to determine whether Calef
had a “disability that may need to be reasonably accommodated.”
J.A. 1522. The author of the checklist was a FedEx equal
employment opportunity (“EEO”) official, Carolyn Lyle, who had
been promoted to Senior Manager of Diversity and EEO by the time
Hickman ordered Calef to take disability leave. According to
Lyle, Hickman violated FedEx’s reasonable accommodation process
by failing to explore whether Calef could remain on the job with
accommodation. For example, while Calef had suggested ways that
she could continue to work with her injured hand, “her
suggestions weren’t discussed as to whether or not they were
reasonable.” Id. at 996. Lyle’s trial testimony indicated that
Hickman prematurely stopped the reasonable accommodation process
and arbitrarily required Calef to go on leave.
After leaving the Clarksburg terminal on February 24, 2004,
Calef dutifully complied with Hickman’s instructions by applying
for short-term disability benefits. But Calef’s position had
not changed — she informed the benefits plan administrator that
7
“FedEx [was] the one . . . doing this,” and that “[she] was
doing [her] job” and “did not ask for [disability leave].” J.A.
1102. Calef was approved for short-term disability benefits on
March 8.
Though Hickman and Ryan made no attempt to follow up with
her, Calef repeatedly contacted Ryan between mid-March and early
May 2004. On those occasions when she reached Ryan, Calef
expressed her desire to return to work. On May 11, Hickman
advised Ryan that Calef was “not to return to work without first
submitting a full release from her doctor.” J.A. 1524 (emphasis
added). That same day, Hickman sent a letter to Calef in which
he acknowledged that Calef’s doctor had estimated a return-to-
work date of May 23, but also suggested that Calef might be
eligible for long-term disability benefits once her short-term
benefits expired after twenty-six weeks. Id. at 1525. Unable
to obtain a “full” release because of the ongoing twenty-pound
lifting restriction — and thus unable to return to work — Calef
applied and was approved for long-term disability benefits.
Meanwhile, Calef “contacted everybody [she] knew” within
FedEx to inquire about how she could return to work at the
Clarksburg home delivery terminal and whether there were any job
openings at other FedEx facilities. J.A. 1113. After “hitting
walls everywhere,” Calef contacted Lyle, who at the time was
still FedEx’s Senior Manager of Diversity and EEO. Id. at 1115.
8
Lyle agreed to investigate the situation, but she left FedEx
before her inquiry was complete. FedEx referred the matter to
other human resources officials, but Calef was informed by email
on January 18, 2006, that FedEx was “unable to assist [her] in
reviewing employment opportunities” absent a medical release
relating to the twenty-pound lifting restriction. Id. at 1609.
By that time, as a result of physical therapy, Calef was
approved by her doctors to lift up to fifteen pounds — short of
FedEx’s requirement for her return to work.
Calef’s efforts to find employment had not been limited to
FedEx. Indeed, Calef — a forty-something single mother who had
enjoyed a $50,000 FedEx salary (plus incentive pay and benefits)
— found herself forced to survive on finite disability benefits
equaling only a fraction of her salary. She applied for a
plethora of jobs, and was finally hired by an Old Navy clothing
store as a part-time customer service representative. As other
sources of income, Calef continued to run a company that she
founded in 1992 to teach volleyball to girls. She even covered
volleyball games for a local newspaper, made purses to sell, and
took a “hardship withdrawal” from a FedEx retirement account.
In 2006, Calef was accepted to law school, from which she was
expected to earn her juris doctor degree in May 2009. While
attending law school, Calef subsisted largely on student loans,
but also held part-time positions as a student representative
9
for a law book publisher and as a law firm intern. By the time
of trial, Calef had earned only $5817, excluding disability
benefits, since being forced by FedEx to take disability leave.
She had an offer of post-law school employment, conditioned on
her being admitted to practice as a lawyer, at an annual salary
of $42,000.
Calef described her treatment by FedEx as being akin to “a
divorce.” J.A. 1142. At trial — years after she was forced by
FedEx to take disability leave — she described the experience as
follows:
Imagine being in a family for almost ten years and
then they tell you they don’t want you anymore. I
loved my job. I loved working for FedEx. I had made
a determination that this is [where] I was going to
retire . . . . I saw FedEx employees more than I saw
my family and I did everything that they wanted me to
do and [then] I’m injured. I’m still doing my job
[but] they’re telling me go home. Go home until you
hear back from us and then they don’t call. . . .
And that’s it. The door closed.
Id. at 1141-43.
B.
On February 17, 2006, Calef filed suit against FedEx in the
Circuit Court of Harrison County, West Virginia, asserting her
disability discrimination claim under the WVHRA. FedEx removed
10
the case to the Northern District of West Virginia, invoking
diversity jurisdiction under 28 U.S.C. § 1332. 3
The jury trial on the disability discrimination claim was
conducted over four days in January 2008. At the close of
Calef’s case-in-chief, FedEx moved, pursuant to Federal Rule of
Civil Procedure 50, for judgment as a matter of law. The
district court denied the motion, and the case proceeded to the
jury. The jury found for Calef on the disability discrimination
claim, awarding her a total sum of $808,328 in back pay, front
pay, and damages for emotional distress, humiliation, and
embarrassment. See Calef v. FedEx Ground Package Sys., Inc.,
No. 1:06-cv-00047 (N.D. W. Va. Jan. 9, 2008) (the “Judgment
Order”). 4
Post-trial, FedEx renewed its Rule 50 motion for judgment
as a matter of law, and alternatively moved under Rule 59 for a
new trial. Calef also persisted, seeking prejudgment interest,
attorney fees, and litigation expenses. By order of August 14,
2008, the district court denied FedEx’s request for judgment as
3
Calef also asserted a WVHRA sex discrimination claim
against FedEx, based on a pre-injury demotion she had received
in October 2003. Prior to trial, the district court awarded
summary judgment to FedEx on the sex discrimination claim,
because it was time-barred. The court then barred discussion of
the sex discrimination claim at trial.
4
The Judgment Order is found at J.A. 194-98.
11
a matter of law or a new trial. See Calef v. FedEx Ground
Package Sys., Inc., No. 1:06-cv-00047 (N.D. W. Va. Aug. 14,
2008) (the “Post-trial Order”). 5 The court ruled in its Post-
trial Order that Calef was entitled to the full amount of
damages specified by the jury. Thereafter, by separate orders,
the court awarded Calef $106,286 in prejudgment interest,
$273,596 in attorney fees, and $33,731 in litigation expenses.
The total award to Calef was $1,221,941.
FedEx timely noted this appeal, and we possess jurisdiction
pursuant to 28 U.S.C. § 1291.
II.
Before turning to our assessment of FedEx’s more narrow
appellate contentions, we find it helpful to paint a broader
picture of the applicable principles of West Virginia law, as
well as Calef’s theory of disability discrimination and its
presentation to the jury. Notably, our focus is on the WVHRA,
which those familiar with federal discrimination law will
recognize as often corresponding with — but sometimes straying
from — the Americans with Disabilities Act (the “ADA”). See
Stone v. St. Joseph’s Hosp. of Parkersburg, 538 S.E.2d 389, 404
(W. Va. 2000) (“[T]he West Virginia Human Rights Act, as created
5
The Post-trial Order is found at J.A. 433-95.
12
by our Legislature and as applied by our courts and
administrative agencies, represents an independent approach to
the law of disability discrimination that is not mechanically
tied to federal disability discrimination jurisprudence.”).
A.
Under the WVHRA, it is unlawful “[f]or any employer to
discriminate against an individual with respect to compensation,
hire, tenure, terms, conditions or privileges of employment if
the individual is able and competent to perform the services
required even if such individual is blind or disabled.” W. Va.
Code § 5-11-9(1). “The term ‘disability’ means,” inter alia,
“[a] mental or physical impairment which substantially limits
one or more of such person’s major life activities,” including
“caring for one’s self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning and working,” or
“[b]eing regarded as having such an impairment.” Id. § 5-11-
3(m)(1), (3). The Supreme Court of Appeals of West Virginia has
recognized that the prohibition against disability
discrimination “extends, of course, to the denial of employment
opportunities based on vocationally irrelevant disabilities and,
thus, embraces the traditional employment discrimination
theor[y] of disparate treatment.” Skaggs v. Elk Run Coal Co.,
479 S.E.2d 561, 573 (W. Va. 1996). The state supreme court has
also “inferred that [the WVHRA] imposes [a] duty of reasonable
13
accommodation,” i.e., “an affirmative obligation [on employers]
to provide reasonable accommodation for disabled individuals.”
Id. at 574.
In its Stone decision, rendered in 2000, the state supreme
court addressed a disability discrimination claim similar in
many respects to Calef’s claim. Stone, a paramedic on an
ambulance crew, had made two reports in one month to his
employer, St. Joseph’s Hospital, of on-the-job back strains; one
of the reports indicated that Stone was taking a narcotic-type
pain medication. See Stone, 538 S.E.2d at 393. After reviewing
these reports, several Hospital officials met and decided to
indefinitely remove Stone from his paramedic duties pending an
independent medical examination, and to reassign him for the
interim period to an office position as a dispatcher. Id. The
Hospital later explained that the transfer decision was
predicated on concerns, inter alia, that Stone’s condition could
worsen, and that his back problem and use of a narcotic-type
pain medication could endanger Stone, his co-workers, his
patients, and the public. Id. Stone “strongly objected” to his
reassignment as a dispatcher, contending that he was able to
safely perform his paramedic duties without limitation — a view
backed by four doctors. Id. The Hospital refused to reverse
its transfer decision, however, and Stone was forced to work as
a dispatcher for several months, until he underwent the
14
independent medical examination and was cleared to return to
paramedic duties. Id. at 394. In the meantime, Stone had
asserted a WVHRA “regarded as” disability discrimination claim
against the Hospital, on which a jury ultimately found in
Stone’s favor.
On appeal to the state supreme court, the Hospital
contended that Stone had failed to present sufficient evidence
to support his theory that he was a qualified disabled person,
that is, that the Hospital regarded him as having a physical
impairment that substantially limited the major life activity of
working. See Stone, 538 S.E.2d at 406. This was so, according
to the Hospital, because it “only ‘suspected’ the possibility of
Mr. Stone having a problem that limited his ability to safely
perform the ‘single job’ of ambulance paramedic.” Id. The
court rejected the Hospital’s contention, however, explaining
that “[d]espite what the Hospital said about their subjective
view of Mr. Stone, the jury was entitled to look at what the
Hospital did.” Id. And, as the court observed, the trial
evidence reflected that “[t]he Hospital treated Mr. Stone . . .
as a person who should not be entrusted with the duties of his
regular job.” Id. The court concluded that, in the
circumstances,
[t]he limitations or restrictions that the Hospital
regarded as appropriate for Mr. Stone were certainly
of sufficient magnitude and breadth — taking him off
15
all of his regular duties and prohibiting him from
driving, providing patient care, lifting, and carrying
— for a jury to conclude that Mr. Stone was treated as
being substantially limited in his major life activity
of working.
Id. Importantly, the court observed that the Hospital could not
be shielded from liability under the WVHRA based on evidence
that Stone believed personal animus against him — unrelated to
any perceived disability — played a part in the decision to
reassign him. Id. at 407 n.25. The court explained that the
WVHRA “protects persons who are discriminatorily treated as
having a substantially limiting impairment,” and that “[t]his
component of the Act’s prohibitions is an objective test that
does not focus on the subjective motivation behind the behavior
in question, but on the behavior itself.” Id.
Although the state supreme court concluded that Stone was a
qualified disabled person under the WVHRA, the court accepted
the Hospital’s position that its decision to reassign Stone from
paramedic to dispatcher duties was nonetheless permissible. See
Stone, 538 S.E.2d at 407. In so doing, the court observed that
“the law recognizes the right of an employer to take reasonable
job-related precautions in a fashion that is consistent with the
duty of reasonable accommodation, while inquiring or obtaining
medical information about an employee’s fitness for duty.” Id.
The court concluded that Stone could not prove disability
discrimination, because he merely had been subjected to “a
16
temporary transfer to another job at the same rate of pay, and
with no long-term or permanent job detriment, pending the
outcome of a medical examination that was facially justified.”
Id. at 408. Accordingly, the court directed entry of judgment
for the Hospital. Id.
B.
For obvious reasons, Calef relies on Stone for the
proposition that, at the time FedEx forced her to take
disability leave, she was a qualified disabled person under the
WVHRA. That is, Calef contends that FedEx regarded her — just
as St. Joseph’s Hospital regarded Stone — to be substantially
limited by a physical impairment in the major life activity of
working. Indeed, Stone and Calef were each objectively “treated
. . . as a person who should not be entrusted with the duties of
his [or her] regular job.” Stone, 538 S.E.2d at 406. Each
claimed, however, to be “able and competent to perform the
services required,” W. Va. Code § 5-11-9(1), even without
accommodation. Where Stone’s and Calef’s cases diverge is the
alleged act of discrimination — that is, the alleged adverse
employment action — at issue. While Stone was merely reassigned
to a “light-duty” position at the same rate of pay and with no
job detriment while awaiting the results of an independent
medical examination, Stone, 538 S.E.2d at 397, Calef was forced
to “go home” and apply for disability benefits, J.A. 1101, with
17
no sincere effort made by FedEx to evaluate her condition or to
return her to work. In Calef’s words, FedEx directed her to
“[g]o home until you hear back from us and then they [didn’t]
call. . . . And that’s it. The door closed.” Id. at 1142-43.
In submitting Calef’s “regarded as” disability
discrimination claim to the jury, the district court deemed it
appropriate to require the jury to answer special
interrogatories in keeping with West Virginia’s burden-shifting
evidentiary regime — a regime similar to that adopted for proof
of federal discrimination claims in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Skaggs, 479 S.E.2d at 582
(recognizing that burden-shifting regime requires plaintiff to
establish prima facie case of discrimination, employer to
articulate “legitimate, nondiscriminatory reason for its
actions,” and plaintiff to prove that proffered reason is “mere
pretext”). The special interrogatories initially required the
jury to make findings on the elements of Calef’s prima facie
case, by asking, inter alia, the following: whether FedEx
“regarded [Calef] as disabled on February 24, 2004”; whether
Calef, on that date, “was able and competent to perform the
essential functions of the job of [P&D] Service[] Manager”; and
whether FedEx “took an adverse employment action against . . .
Calef.” Judgment Order 1-3 (Interrogatory Nos. 1-2, 5). Each
18
of these interrogatories was answered in favor of Calef. 6
Accordingly, the jury proceeded to Interrogatory No. 6, which
asked, “Do you find that [FedEx] articulated a legitimate, non-
discriminatory reason for taking its adverse employment action
against . . . Calef?” Id. at 3. Because the jury answered
“No,” it was directed to enter a verdict in favor of Calef. Id.
If the jury had answered “Yes,” it would have been obliged to
answer Interrogatory No. 7, which asked whether FedEx’s
“articulated reason for its adverse employment action against
. . . Calef[] was a pretext for unlawful disability
discrimination.” Id.
In summary, the jury found that Calef proved a prima facie
case of disability discrimination and that FedEx failed to
articulate a legitimate, nondiscriminatory reason for its
adverse employment action. Thus, the jury entered a verdict for
Calef without reaching the issue of whether FedEx’s articulated
reason was a pretext for discrimination.
6
If the jury had found that Calef was not able and
competent to perform the essential functions of her job, it
would have been directed to assess whether she could have
performed those functions with reasonable accommodation and
whether FedEx provided such accommodation. See Judgment Order 2
(Interrogatory Nos. 3-4).
19
III.
As previously noted, FedEx raises nearly twenty contentions
of error in this appeal. Because a discussion of all those
contentions would be unwieldy — and because the district court
has already engaged in a careful and thorough assessment of each
— we focus herein on only the most compelling of FedEx’s
arguments. As for the other contentions, we are satisfied to
rely on the sound judgment of the district court without further
comment.
A.
We begin with FedEx’s contention that the evidence was
insufficient to support the jury’s finding that FedEx regarded
Calef as disabled. FedEx presented this contention in its
unsuccessful motion, made pursuant to Federal Rule of Civil
Procedure 50, for judgment as a matter of law. We review de
novo a district court’s denial of a Rule 50 motion, viewing the
evidence in the light most favorable to the prevailing party and
assessing whether there was a legally sufficient evidentiary
basis for a reasonable jury to find for that party. See FDIC v.
Bakkebo, 506 F.3d 286, 294 (4th Cir. 2007). FedEx asserts two
independent grounds to set aside the jury’s “regarded as”
finding, which we address in turn.
20
1.
First, FedEx maintains that “the jury could not reasonably
have found that [FedEx] regarded [Calef] as having anything but
a temporary impairment,” which cannot amount to a disability
under the WVHRA. Br. of Appellant 24. In making this
assertion, FedEx relies on a provision of the West Virginia Code
of State Rules defining what it means for a physical impairment
to substantially limit a major life activity and, thus,
constitute a disability. This provision specifies that
“[s]ubstantially limits does not include or mean minor temporary
ailments or injuries,” such as “colds or flu, or sprains or
minor injuries.” W. Va. Code R. § 77-1-2.5.3; see also Hoops v.
Elk Run Coal Co., 95 F. Supp. 2d 612, 618 (S.D. W. Va. 2000)
(relying on Code of State Rules definition for conclusion that
car accident injuries — including eleven stitches removed one
week later and some bruises — were not substantially limiting or
perceived as such). Significantly, however, the Code of State
Rules excludes only minor temporary impairments from the
definition of disability — it does not preclude all temporary
impairments from ever being deemed disabling. And, indeed, the
Supreme Court of Appeals of West Virginia has explicitly
recognized, in its 1999 Haynes v. Rhone-Poulenc, Inc. decision,
that a temporary impairment can constitute a disability
protected under the WVHRA. See 521 S.E.2d 331 (W. Va. 1999).
21
In Haynes, the state supreme court held that the WVHRA
protects “a person who has a disability and is temporarily
unable to perform the requirements of the person’s job due to
[the] disability, with or without accommodation.” Haynes, 521
S.E.2d at 344. In such circumstances, the court ruled, the
employer may be required to provide the disabled employee a
temporary leave of absence as a reasonable accommodation. Id.
Importantly for Calef, the Haynes court recognized that the
employee may be temporarily unable to work because of a
disability resulting from a temporary impairment. Haynes, a
chemical laboratory technician for Rhone-Poulenc, was disabled
by a “high-risk pregnancy, complicated by medical conditions.”
Id. at 337. In discussing Haynes’s status as a qualified
disabled person, the court emphasized that,
in the context of this case, by disabling condition,
we refer to a totally disabling medical condition of
limited duration, so that following a temporary leave
of absence for treatment and improvement, it is
reasonably foreseeable that the plaintiff is likely to
be able to return to work.
Id. at 344 n.17 (emphasis added). Thus, the state supreme
court’s Haynes decision clearly forecloses FedEx’s contention
that a temporary impairment cannot constitute a disability under
the WVHRA. 7
7
We are not persuaded by FedEx’s attempts to evade Haynes.
FedEx asserts that Haynes “did not hold that a temporary
(Continued)
22
Simply put, the lesson of Haynes is that a temporary
impairment rises to the level of a disability if it
substantially limits a major life activity, or if it is regarded
as doing so. And, as the district court observed,
Calef argued, and the jury agreed, that FedEx regarded
her as a disabled person who was unable to perform
essential functions of her job[, thereby rendering her
substantially limited in the major life activity of
working]. Thus, whether FedEx [treated Calef as
being] only temporarily unable to perform such
functions, or more permanently unable, is irrelevant;
the WVHRA is applicable under either scenario.
Post-trial Order 8. We agree with the district court that,
under controlling West Virginia law, the jury was entitled to
find that FedEx regarded Calef as disabled based on evidence
impairment can be a disability,” in that such issue was not
before the state supreme court because it was conceded by
defendant Rhone-Poulenc. Br. of Appellant 25. While it is true
that Rhone-Poulenc conceded disability, the court did not have
to accept such a concession, see Turner v. Holland, 332 S.E.2d
164, 165 (W. Va. 1985), and, indeed, the notion of Haynes’s
impairment being only temporarily disabling was central to the
court’s decision. FedEx also misidentifies Haynes’s disability
as being “migraines and hypertension, neither of which was
temporary.” Br. of Appellant 25. The court observed that
Haynes “had suffered for some time from migraines and
hypertension,” but that she only became disabled after she
became pregnant. Haynes, 521 S.E.2d at 333 (“[D]ue to her
hypertension, the plaintiff’s pregnancy was high-risk . . . .”);
id. at 337 (“The defendant does not contest that the plaintiff’s
high-risk pregnancy, complicated by medical conditions, met the
legal test of a disability.”).
23
that FedEx treated Calef as though she had a substantially
limiting impairment — whether temporary or long-term. 8
2.
Next, FedEx asserts that the jury could not reasonably have
found that FedEx acted on a mistaken belief about Calef’s
condition, “as required for a ‘regarded as’ claim.” Br. of
Appellant 24. Rather, FedEx maintains, the trial evidence
demonstrates that it innocently relied on information provided
by Calef and her doctors. According to FedEx, “a defendant who
acts in response to information from the plaintiff or her
doctors, not in response to a mistaken assumption about the
plaintiff’s abilities, has not ‘regarded’ plaintiff as
disabled.” Id. at 30. Unfortunately for FedEx, both aspects of
this theory — that the WVHRA requires proof of the employer’s
mistaken belief, and that the record inescapably shows FedEx’s
reliance on Calef and her doctors — are without merit.
8
On a related note, FedEx contends that the district court
erred in rejecting a proposed instruction requiring Calef to
prove that FedEx regarded her as having “an impairment that
substantially limited a major life activity and was not of a
temporary nature.” J.A. 176 (emphasis added). Because such
instruction is contrary to West Virginia law, the court properly
refused to include it in the jury charge. Furthermore, the
court appropriately instructed the jury on the definition of
“substantially limits” set forth in West Virginia Code of State
Rules section 77-1-2.5.3.
24
For the proposition that the WVHRA requires proof of
mistaken belief, FedEx invokes federal disability discrimination
law, noting that “[f]ederal courts have uniformly held that only
a mistaken belief can result in regarded as liability under the
ADA.” Br. of Appellant 31 (citing, inter alia, Sutton v. United
Air Lines, 527 U.S. 471, 489 (1999)). FedEx then asserts that
“[t]here is no basis in the [WVHRA] to doubt that West Virginia
would follow these ADA decisions and hold that regarded as
liability requires that the employer be mistaken in its
perceptions about the employee’s condition.” Id. at 31-32. To
the contrary, the Supreme Court of Appeals of West Virginia has
addressed this very question and eschewed the subjective federal
approach. In its 2000 decision in Stone v. St. Joseph’s
Hospital of Parkersburg, the court observed that the “regarded
as” issue is to be resolved by way of an objective test. See
538 S.E.2d 389, 407 n.25 (W. Va. 2000) (explaining that
“objective test” of whether employer treated employee as having
substantially limiting impairment “does not focus on the
subjective motivation behind the behavior in question, but on
the behavior itself”); see also id. at 406 (recognizing that
question before jury was not “what the Hospital said about their
subjective view of Mr. Stone,” but rather “what the Hospital
did”). Here, there was sufficient evidence to support the
25
jury’s finding that FedEx — whatever its subjective belief —
objectively treated Calef as being disabled.
Moreover, the evidence does not, as FedEx argues,
conclusively establish that FedEx merely acted on information
provided by Calef and her doctors. As the district court
observed, there is
[n]o doubt [that] FedEx relied in part on [the
doctors’] notes in making its decision to place Calef
on leave. What it fails to comprehend, however, is
that none of these notes indicated Calef was unfit to
work or that she desired to be placed on leave. In
fact, during trial Calef testified that she was
surprised and upset when FedEx told her she was no
longer permitted to work, and she wanted “everyone [to
know] that I was not asking to be put on short term
disability.” Moreover, the jury clearly found that
Calef was still able and competent to perform the
essential functions of her job on the date that FedEx
placed her on leave, despite the limitations described
in these notes.
Post-trial Order 15 (quoting J.A. 1102) (citation omitted). In
these circumstances, we are constrained to affirm the denial of
FedEx’s Rule 50 motion with respect to the jury’s “regarded as”
finding.
B.
We turn next to FedEx’s argument, presented in its Rule 50
motion, that the trial evidence was insufficient to support the
jury’s finding that Calef was able and competent to perform the
essential functions of her P&D Service Manager position at the
time FedEx forced her to take disability leave. See W. Va. Code
26
R. § 77-1-4.2 (recognizing that job function may be considered
“essential” on several bases — for example, if “the reason the
employment position exists is to perform that function”). The
merit of this contention largely turns on whether package
delivery was an essential function of Calef’s job — a factual
issue that was hotly disputed.
At trial, FedEx took the position that, because Calef was
unable to lift more than twenty pounds, she was incapable of
performing the essential function of delivering packages.
FedEx’s evidence on this issue included the testimony of Chris
Davis, Calef’s immediate predecessor as P&D Service Manager at
the Clarksburg home delivery terminal, who averred that he
regularly delivered packages while holding the P&D Service
Manager position. Calef impeached Davis with his pretrial
deposition testimony, however, in which he omitted package
delivery from a detailed list of P&D Service Manager
responsibilities. Calef also presented the jury with written
job descriptions for the P&D Service Manager, prepared by FedEx,
that failed to identify package delivery among the enumerated
duties. See, e.g., supra note 2 (discussing January 23, 2004
performance expectation plan provided to Calef by FedEx); see
also W. Va. Code R. § 77-1-4.2 (providing that, “if an employer
has prepared a written description before advertising or
27
interviewing applicants for the job, this description may be
considered evidence of the essential functions of the job”).
The jury sided with Calef, finding that she was able and
competent to perform the essential functions of her job — and,
thus, that delivering packages was not one of them. The
district court refused to disturb the jury’s finding, explaining
that,
[w]hen viewed in the light most favorable to Calef,
the evidence presented by Calef established that
lifting and delivering packages was not an essential
function of her job. Furthermore, FedEx did not
present any evidence that Calef could not perform
other functions which were undisputedly “essential,”
such as training and managing other employees, [and]
joining contractors on two service rides a week . . .
. Accordingly, a reasonable jury . . . could have
concluded [Calef] was able and competent to perform
the essential duties of her job.
Post-trial Order 18. Because the best we can say for FedEx is
that the evidence on the “essential functions” issue was
conflicting, we must affirm. See Bakkebo, 506 F.3d at 294 (“If
reasonable minds could differ about the verdict, we are obliged
to affirm the ruling of the district court [denying Rule 50
relief].”).
C.
We next assess FedEx’s contention, also presented in its
Rule 50 motion, that its decision to place Calef on disability
leave “was a reasonable, nondiscriminatory action intended to
allow her to recover from what all expected would be a temporary
28
impairment.” Br. of Appellant 40. In so asserting, FedEx
relies on the following passage from the West Virginia supreme
court’s Stone decision:
[T]he law recognizes the right of an employer to take
reasonable job-related precautions in a fashion that
is consistent with the duty of reasonable
accommodation, while inquiring or obtaining medical
information about an employee’s fitness for duty.
Thus, the mere fact that the Hospital sent Mr. Stone
for an independent medical examination did not prove a
case of disability discrimination — nor did the mere
fact that he was placed in a “light duty” assignment
while he was awaiting such an examination and its
results prove a case of disability discrimination.
538 S.E.2d at 407. Based on the evidence before it, the Stone
court concluded that the Hospital had justifiably reassigned
Stone “to another suitable full-time position, at the employee’s
regular rate of pay and without any long-term or permanent
detriment to the employee, pending the results of an otherwise
permissible medical examination.” Id. at 408. The court
observed that such conduct — “absent otherwise egregious
circumstances” — simply “is not prohibited disability
discrimination under our Human Rights Act.” Id.
FedEx urges us to analogize its treatment of Calef to the
Hospital’s treatment of Stone. Such an analogy, however, is
impossible to draw. FedEx did not reassign Calef to another
suitable position, at her regular salary and without any long-
term detriment to her. Rather, FedEx forced Calef to “go home,”
file a claim for short-term disability benefits, and stay away
29
from work until FedEx contacted her with additional
instructions. J.A. 1101. Calef was then forced to subsist on
disability benefits, of finite duration, at a fraction of her
salary, while FedEx spurned her requests to return to work.
Indeed, whereas the Hospital had proactively sought to ascertain
Stone’s condition and ability to safely work, FedEx simply
proclaimed Calef to be disabled and prematurely abandoned its
own reasonable accommodation process without fully examining
whether Calef could remain on the job. “Given this evidence,”
the district court observed, “Stone did not prohibit the jury
from concluding that FedEx had engaged in impermissible
discrimination, rather than reasonable accommodation, when it
placed Calef on leave.” Post-trial Order 20. We agree. 9
9
We further agree with the district court’s observation
that, “because the jury found that Calef was able and competent
to perform the essential functions of her job when FedEx
directed her to go on leave, it is not surprising that the jury
rejected FedEx’s explanation that its actions were legitimate
and non-discriminatory.” Post-trial Order 20. In view of the
evidence and the verdict, the jury very well may have concluded
that FedEx concocted package delivery as an essential function
of the P&D Service Manager position as part of a scheme to get
rid of Calef by deeming her incapable of performing her job. Of
course, even if FedEx was motivated by a personal animus against
Calef — unrelated to any perceived disability — it is
nevertheless liable for disability discrimination under the
WVHRA. See Stone, 538 S.E.2d at 407 n.25.
30
D.
Finally, we assess FedEx’s assertion that it is entitled to
a new trial, under Federal Rule of Civil Procedure 59, on the
ground that the jury did not make a requisite finding of
pretext. We review a district court’s denial of a Rule 59
motion for abuse of discretion, and such ruling “will not be
reversed save in the most exceptional circumstances.” Bakkebo,
506 F.3d at 294 (internal quotation marks omitted).
As discussed above, the jury was directed to answer special
interrogatories in keeping with West Virginia’s burden-shifting
evidentiary regime. Once the jury found in Calef’s favor on the
elements of her prima facie case, it proceeded to consider
whether FedEx “articulated a legitimate, non-discriminatory
reason for taking its adverse employment action against . . .
Calef.” Judgment Order 3 (Interrogatory No. 6). Because the
jury answered “No,” it then entered a verdict for Calef. Id.
If the jury had instead answered “Yes,” it would have been
obliged to consider whether FedEx’s “articulated reason for its
adverse employment action against . . . Calef[] was a pretext
for unlawful disability discrimination.” Id. (Interrogatory No.
7).
In seeking a new trial, FedEx points out that, under the
burden-shifting regime, “if a defendant has articulated a
legitimate[,] nondiscriminatory reason, the jury cannot find in
31
favor of the plaintiff unless it finds that defendant’s
explanation is a pretext.” Br. of Appellant 43. And, FedEx
contends, “[t]here is no room for debate about whether [it]
articulated a nondiscriminatory reason for putting [Calef] on a
paid leave” — that reason being “to prevent [Calef] from further
injuring herself and to give her a chance to heal.” Id. at 43-
44. Thus, according to FedEx, the jury’s finding that FedEx did
not articulate a legitimate, nondiscriminatory reason for the
leave decision “cannot stand.” Id. at 44.
Fatal to FedEx’s contention, the jury could have found that
FedEx did not satisfy its burden if either (1) FedEx gave no
reason for its decision to force Calef to take disability leave,
or (2) FedEx’s proffered reason was not legitimate and
nondiscriminatory. Because it is clear that FedEx proffered a
reason for the leave decision, the jury necessarily found that
such reason was not legitimate and nondiscriminatory. And, the
evidence was sufficient to sustain that finding — as we already
explained in rejecting FedEx’s effort to secure Rule 50 relief
on the ground that the leave decision was a reasonable
accommodation, not impermissible discrimination.
To be sure, the form of the special interrogatories —
particularly the application of the burden-shifting regime — was
imperfect. The burden-shifting regime was intended for use in
deciding pretrial dispositive motions, and “was not . . .
32
necessarily designed to facilitate jury analysis.” Skaggs v.
Elk Run Coal Co., 479 S.E.2d 561, 585 (W. Va. 1996). Moreover,
the purpose of the burden-shifting regime is to ferret out and
prove discriminatory animus, see id. at 581 — but, as we have
emphasized herein, discriminatory animus is not an essential
element of a WVHRA “regarded as” disability discrimination
claim, see Stone, 538 S.E.2d at 407 n.25. In any event, the
special interrogatories were sufficient to elicit jury findings
on each of the elements of Calef’s claim:
● That Calef was a qualified disabled person under
the WVHRA, in that FedEx objectively treated her
as being substantially limited in the major life
activity of working, see Stone, 538 S.E.2d at
406;
● That Calef was actually “able and competent to
perform the services required,” W. Va. Code § 5-
11-9(1), even without accommodation; and
● That FedEx subjected Calef to an adverse
employment action — one which amounted to
“prohibited disability discrimination,” rather
than a permissible effort at reasonable
accommodation, Stone, 538 S.E.2d at 408.
Additionally, FedEx did not object to the special
interrogatories — which the district court based on proposed
interrogatories submitted by FedEx itself. As such, FedEx has
waived any challenge to the form of the interrogatories. See AG
Sys. v. United Decorative Plastics Corp., 55 F.3d 970, 973 (4th
Cir. 1995). Accordingly, we affirm the district court’s denial
of FedEx’s Rule 59 request for a new trial on the ground that
33
the jury was required, but failed, to make a finding on the
pretext issue. 10
IV.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
10
As explained above, we reject the balance of FedEx’s
appellate contentions and, in so doing, adopt the reasoning of
the district court. As presented in its Rule 50 motion, FedEx
asserts that it is entitled to judgment as a matter of law on
the ground — properly deemed by the district court to be moot —
that it did not owe Calef a duty of reasonable accommodation
because she was only regarded as disabled. Furthermore, FedEx
requests a new trial under Rule 59 on three additional grounds
(two with multiple subparts): that the verdict was against the
clear weight of the evidence; that the district court made four
erroneous evidentiary rulings; and that the court committed four
instructional errors (including the purported error discussed
supra note 8). Lastly, FedEx challenges four aspects of the
court’s rulings on damages and attorney fees: the refusal to
offset Calef’s back pay award by the amount of disability and
medical benefits that she received; the inclusion of law school
costs as an element of damages; the refusal to reduce the back
and front pay awards to account for periods when Calef was
unable to work (a contention that was probably not preserved);
and the failure to fully exclude work on the time-barred sex
discrimination claim from the attorney fee award.
34
Calef v. FedEx Ground Packaging System, Inc.
Court: Court of Appeals for the Fourth Circuit
Date filed: 2009-08-27
Citations: 343 F. App'x 891
Copy CitationsCombined Opinion