Dank v. Shinseki

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-1009

BONNIE DANK,

Plaintiff - Appellant,

v.

ERIC SHINSEKI, Secretary, U.S. Department of Veterans
Affairs,

Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:06-cv-01014-RDB)

Argued: March 25, 2010 Decided: April 15, 2010

Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Agee and Senior Judge Hamilton joined.

ARGUED: Thomas J. Gagliardo, THE GAGLIARDO LAW FIRM, Silver
Spring, Maryland, for Appellant. Jason Daniel Medinger, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Larry D. Adams, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:

Appellant Bonnie Dank brought a claim against the United

States Department of Veterans Affairs (the “Department”) for

disability discrimination under section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. 1 During

trial, the district court permitted Dank to amend her complaint

to allege a violation of section 501 of the Rehabilitation Act 2

instead of section 504. At the conclusion of trial, the

district court instructed the jury that under section 501, Dank

was required to show that she was discharged solely because of

her disability. Dank appeals the jury finding in favor of the

Department, arguing that the jury should have been instructed

that under section 501 she was merely required to prove that her

disability was one of the motivating factors for her discharge.

For the reasons that follow, we affirm.

1
Section 504 prohibits programs and activities that receive
federal funds from discriminating against an individual “solely
by reason of” that individual’s disability. 29 U.S.C. § 794.
2
Section 501 requires federal agencies to implement
programs to facilitate the hiring, placement, and advancement of
disabled individuals. See 29 U.S.C. § 791. The Supreme Court
has interpreted section 501 as prohibiting “discrimination on
the basis of disability in employment decisions by the Federal
Government.” Lane v. Pena, 518 U.S. 187, 193 (1996).

2
 I.

On January 12, 2003, Dank, a psychiatric nurse

practitioner, was hired by the Department as a licensed

independent practitioner. Her assignment was to provide mental

health services to veterans at community-based outreach clinics.

At the time of hiring, Dank informed her supervisor, Ron Hopper,

that she suffered from multiple sclerosis. Dank expressed

concern that the extensive travel requirements of her position

could aggravate her medical condition.

In November 2003, Dank fell asleep at the wheel while

driving to an assignment at a clinic located two hours away from

the Department’s main office in Baltimore. Following the

incident, Dank contacted supervisory staff at the Department to

inform them that her doctor suggested that she no longer travel

to that clinic. She also requested an accommodation for her

disability. In December 2003, Dank was granted a temporary

relocation to another clinic located ten minutes away from the

Department’s Baltimore office. In March 2004, she was notified

that the temporary relocation had been made permanent as an

accommodation.

In January 2004, Hopper spoke to several Department staff

members to solicit feedback on Dank’s performance in preparation

for her annual performance review. During this process, Hopper

was informed by several employees that Dank had problems in her

3
interpersonal communications with co-workers. On February 27,

2004, Hopper completed Dank’s review pursuant to a proficiency

evaluation consisting of fifty-seven criteria. Hopper evaluated

Dank as meeting fifty-five of the criteria. However, he noted

that Dank “need[ed] improvement” in two criteria labeled

“[e]stablishes effective interpersonal relationships” and

“[p]romotes an environment of mutual respect and effective

communications.” J.A. 77.

On March 18, 2004, Hopper received notice that several

patients assigned to Dank had requested to be reassigned to a

different mental health provider. The patients asserted, among

other things, that Dank did not listen to their concerns.

Hopper was also informed that Dank had been consistently

delinquent in completing office paperwork.

On March 31, 2004, Hopper requested that a Nurse

Professional Standards Board proceeding be initiated to

determine whether Dank had the requisite interpersonal skills to

perform her duties. In his letter to the Board, Hopper

explained that he was requesting the proceedings based on Dank’s

proficiency evaluation, and noted that her ineffective

interpersonal skills were disruptive to the areas to which she

was assigned. Following a review and hearing, the Board

concluded that “Ms. Dank’s interpersonal skills have not been at

the level of an Advanced Nurse Practitioner” and recommended

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“separation from Federal service.” J.A. 67. The Department

formally terminated Dank’s employment in July 2004.

On April 21, 2006, Dank brought a complaint against the

Department in the United States District Court for the District

of Maryland. The complaint alleged, inter alia, that the

Department “discriminated against and harassed [her] on the

basis of her disability,” J.A. 24, in violation of section 504,

which, as the complaint specified, “prohibit[s] the defendant

from discriminating against an employee . . . solely by reason

of her . . . disability,” J.A. 23 (internal quotations omitted).

The case proceeded to trial on October 20, 2008.

On the third day of trial, the last day on which the

parties presented evidence, Dank moved to amend her complaint to

allege a violation of section 501 of the Rehabilitation Act

instead of section 504. According to Dank, the former required

her to show only that her disability played a factor in the

Department’s decision while the latter required her to show that

she was discharged “solely by reason of” her disability. 29

U.S.C. § 794. She reasoned that, unlike section 504, which

specifically contains the “solely by reason of” standard,

section 501 contains no such language and instead generally

adopts the standard of proof established by the Americans with

Disabilities Act, 42 U.S.C. § 12101 et seq., which merely

requires a showing that disability was one of the motivating

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factors behind the defendant’s actions. The Department argued

in response that the “solely by reason of” standard applied to

all claims brought by government employees under the

Rehabilitation Act. The court agreed with the Department but

nonetheless granted the amendment, finding that, “[b]ased upon

the government’s argument” that the standards of proof for

sections 501 and 504 were the same, “there really [was] no

prejudice to permit the amendment.” 3 J.A. 175.

The court instructed the jury that, to succeed in her

Rehabilitation Act claim, Dank was required to prove that she

was “terminated solely because of the disability.” J.A. 133.

Based on this instruction, the jury returned a verdict against

Dank. This appeal followed.

II.

On appeal, Dank challenges the jury instruction. She

argues that the district court should have instructed the jury

that, under section 501, she was merely required to prove that

her disability was one of the motivating factors behind her

discharge. She asserts that the court erred in concluding that

3
In addition to referring to the government’s argument on
the issue, the court itself also found that any Rehabilitation
Act claim brought by a federal employee was subject to the
“solely because of” standard. See J.A. 176-80.

6
the “solely by reason of” standard of section 504 applied also

to her amended claim under section 501.

We “review de novo claims that the jury instructions failed

to correctly state the law.” Volvo Trademark Holding

Aktiebolaget v. Clark Mach. Co., 510 F.3d 474, 484 (4th Cir.

2007). “A judgment will be reversed for error in jury

instructions only if the error is determined to have been

prejudicial, based on a review of the record as a whole.”

Abraham v. County of Greenville, 237 F.3d 386, 393 (4th Cir.

2001) (internal quotations omitted).

The question of whether the “solely by reason of” standard

applies to section 501 claims is far from settled. 4 We need not,

4
In concluding that the standards for both sections are the
same, the district court relied on two unpublished cases from
this circuit, Spencer v. Earley, 278 F. App’x 254 (4th Cir.
2008), and Edmonson v. Potter, 118 F. App’x 726 (4th Cir. 2004),
which it interpreted as setting out the “solely by reason of”
standard for all Rehabilitation Act claims. See J.A. 177-79.
However, neither of those cases specifies the standard for
section 501 nor addresses the issue of whether it is a different
standard from that applicable to section 504. Although both
cases apply the “solely by reason of” standard, Spencer
addresses a claim brought under section 504 and Edmonson does
not specify the section under which the claim was brought.
The Fifth Circuit, the only circuit to have squarely
addressed the issue, has found that, unlike section 504, section
501 requires only that disability be a motivating factor behind
the employment action. See Pinkerton v. Spellings, 529 F.3d
513, 515-19 (5th Cir. 2008). However, other courts continue to
apply the “solely by reason of” standard to claims raised under
section 501 and to Rehabilitation Act claims in general. See
Adams v. Rice, 531 F.3d 936, 944 (D.C. Cir. 2008) (noting in a
case brought under section 501 that “the State Department could
(Continued)
7
however, resolve it here because it would not affect the result.

If the standard does apply to section 501, then the court

instructed the jury correctly. If it does not, the district

court erred in granting Dank’s mid-trial amendment imposing a

stricter standard on the Department. Accordingly, any mistake

in the court’s finding regarding the standard for section 501

does not merit reversal. See id.

The court’s order allowing Dank to amend raises two

concerns. First, regardless of the appropriate standard, the

court appeared to have lacked authority under the Federal Rules

of Civil Procedure to consider a mid-trial amendment because

such amendment was not properly triggered by the parties. 5

Second, even assuming that the court had the authority to

consider the amendment, if the standards for sections 501 and

504 indeed differ, the amendment was improperly prejudicial.

not have discriminated against [plaintiff] ‘solely by reason of
her . . . disability,’ 29 U.S.C. § 794(a), given that her
‘impairment’ had already been eradicated”); see also Nadler v.
Harvey, No. 06-12692, 2007 WL 2404705, at *4 (11th Cir. Aug. 24,
2007) (finding in a case brought under both sections 501 and 504
that “[t]he Rehabilitation Act prohibits federal agencies from
discriminating against any otherwise qualified individual with a
disability solely by reason of his or her disability”).
5
Although the Department did not raise this issue, it is
well settled that “[w]e are . . . entitled to affirm on any
ground appearing in the record.” Scott v. United States, 328
F.3d 132, 137 (4th Cir. 2003).

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 The district court stated that it was granting the

amendment pursuant to Federal Rule of Civil Procedure 15(b)(1).

An amendment under that rule is triggered by an objection made

by the parties:

If, at trial, a party objects that evidence is not
within the issues raised in the pleadings, the court
may permit the pleadings to be amended. The court
should freely permit an amendment when doing so will
aid in presenting the merits and the objecting party
fails to satisfy the court that the evidence would
prejudice that party’s action or defense on the
merits. . . .

Fed. R. Civ. P. 15(b)(1). In this case, it does not appear from

the record that either party “object[ed] that evidence [was] not

within the issues raised in the pleadings,” thereby triggering

application of the rule. 6 Id. In fact, in the discussion

regarding the amendment, neither party made any reference to the

evidence presented. Instead, the reason for Dank’s request for

an amendment was that she became aware that the court planned to

use the “solely by reason of” standard in its jury instructions.

Dank’s position was that she had been proceeding under section

6
At oral argument, counsel for Dank conceded that neither
party made such an objection. He explained that, because the
evidence presented under either section of the Rehabilitation
Act would have been the same, there was no reason for either
party to suggest that the evidence did not conform to the
pleadings regardless of the section pled. He argued instead
that the amendment must have been granted under Federal Rule of
Civil Procedure 15(b)(2). However, that argument is clearly
contradicted by the court’s statement that it was “not
proceeding under Section 15(b)(2).” J.A. 175.

9
501 all along, even in the pleadings. She argued that the

reference to section 504 in her complaint was a “miscite.”

J.A. 146. The court rejected this explanation, stating that

there was “nothing in the matter of a miscite” because Dank

specifically quoted section 504 and did not mention section 501

in her complaint. J.A. 146-47. The court nonetheless granted

the amendment “[b]ased upon the government’s argument” that the

standards of proof for sections 501 and 504 were the same,

finding that “there really [was] no prejudice to permit the

amendment.” J.A. 175.

Because there was never a triggering objection to any

evidence “not within the issues raised in the pleadings,” there

was no apparent justification for the application of Rule

15(b)(1). Fed. R. Civ. P. 15(b)(1). The court made clear that

it was not proceeding under Rule 15(b)(2), the only other

possible ground for granting a mid-trial amendment under

Rule 15. See J.A. 175. Therefore, it appears that the

amendment was improperly considered by the district court.

However, even if a party’s objection had triggered the

application of Rule 15(b)(1), the grant of the amendment would

still be in error if, as Dank argues, the legal standards for

sections 501 and 504 differ. As the court made clear, it

granted the amendment based solely on its conclusion that the

standards of proof for both sections were identical, and that

10
any amendment would therefore not prejudice the Department. If

the standard of proof for section 501 was different, and,

indeed, more stringent for the Department, the amendment would

have changed the character of the case and would have clearly

prejudiced the Department’s “defense on the merits.” Fed. R.

Civ. P. 15(b)(1).

The prejudice here is especially evident given that Dank

moved for the amendment on the last day on which the parties

presented evidence, thereby denying the Department any

opportunity to amend the presentation of the case. See Gussack

Realty Co. v. Xerox Corp., 224 F.3d 85, 94 (2d Cir. 2000)

(“Generally, introducing new claims for liability on the last

day of trial will prejudice the defendant.”). The precedent in

this circuit supports this position. In Deasy v. Hill, 833 F.2d

38, 42 (4th Cir. 1987), we explained that an amendment shortly

before trial would be prejudicial because “[t]he proof required

to defend against this new claim would be of an entirely

different character than the proof which the defendant had been

led to believe would be necessary” and noted that “[b]elated

claims which change the character of litigation are not

favored.” Although Deasy looked at prejudice in the context of

pre-trial amendments, its rationale applies with even greater

force to mid-trial amendments. It is clear, therefore, that, if

the standards for section 501 and section 504 indeed differ, the

11
amendment would have been erroneously granted in this case

because it would have significantly prejudiced the Department.

Accordingly, even assuming that the court instructed the

jury on the standard for section 504 rather than the standard

for section 501, Dank suffered no prejudice because, given the

impropriety of the amendment, she was only entitled to proceed

under section 504. She was therefore required to show, as the

court instructed, that she was discharged solely because of her

disability. Therefore, any error in the court’s finding that

the “solely by reason of” standard applies also to claims under

section 501 was not prejudicial on these facts.

III.

For the reasons stated above we

AFFIRM.

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