UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SELENA Y. HANCOCK,
Plaintiff,
v. Civil Action No. 10-cv-487 (RLW)
WASHINGTON HOSPITAL CENTER,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Selena Hancock (“Hancock”) was formerly employed as a medical
assistant at the Washington Hospital Center (“WHC”). She commenced this action in March
2010, alleging that WHC failed to accommodate her disabling nerve conditions known as
Polyradiculopathy and Polyneuropathy and wrongfully terminated her in violation of the
Americans with Disabilities Act (“ADA”).1 A jury trial commenced on August 30, 2013.
At the close of WHC’s case, Hancock moved for judgment as a matter of law
under Rule 50(a) on her failure-to-accommodate claim and on WHC’s affirmative defense of
failure to mitigate damages. Sept. 4, 2013, Trial Transcript (“Tr.”) at 105:22-109:16. Consistent
with the best practices governing pre-verdict motions, the Court reserved ruling on Hancock’s
motion. See 9-50 Moore’s Federal Practice-Civil § 50.33 (“[I]t is often the better and safer
practice for trial courts to refrain from granting a pre-verdict motion for judgment until after the
jury reaches or fails to reach a verdict. The primary reason for this practice is that if it becomes
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Hancock also pursued a claim for intentional infliction of emotional distress and a
claim for retaliatory discharge. She later voluntarily dismissed her retaliatory discharge claim
with prejudice. Dkt. No. 16. By an order entered on December 7, 2012, the Court granted
WHC’s motion for summary judgment with respect to Hancock’s intentional infliction of
emotional distress claim. December 7, 2012 Memorandum Opinion (Dkt. No. 24).
1
necessary to grant the motion, the jury verdict may be reinstated without a costly retrial if the
reviewing court finds that judgment as a matter of law was erroneously granted.”); Mattivi v.
South African Marine Corp. “Huguenot,” 618 F.2d 163, 166 n.2 (2d Cir. 1980); Hladyshewski v.
Robinson, 557 F.2d 1251, 1255 n.3 (8th Cir. 1977) (“[T]he preferred practice is to reserve ruling
on a motion for a directed verdict until after the verdict in order to avoid a retrial with its
resulting delay, trouble and expense and the possibility of a second appeal.”) (internal quotation
marks and citations omitted); Fed. R. Civ. P. 50 (Advisory Committee Notes) (“[T]he court may
often wisely decline to rule on a motion for judgment as a matter of law made at the close of the
evidence[.]”). After the jury returned a verdict in favor of WHC, the Court denied Hancock’s
Rule 50(a) motion on the grounds that, taking the evidence in the light most favorable to the non-
movant, a reasonable juror could find in favor of WHC. Sept. 5 Tr. at 29:18-30:10. Hancock
now renews her motion for judgment as a matter of law under Rule 50(b) and, alternatively,
moves for a new trial under Rule 59(a). Upon careful review of the entire record, the parties’
written submissions and arguments put forth at the motions hearing, the Court DENIES
Hancock’s motions.
DISCUSSION
I. Judgment as a Matter of Law
a. Legal Standard
After a jury trial, a court may grant a motion for judgment as a matter of law
under Rule 50 of the Federal Rules of Civil Procedure if it finds that “a reasonable jury would
not have had a legally sufficient evidentiary basis to find for the party on that issue[.]” Fed. R.
Civ. P. 50(a)(1). The court deciding on a motion for judgment as a matter of law must consider
the evidence in the light most favorable to the non-movant and disregard all evidence favorable
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to the moving party that the jury is not required to believe. Huthnance v. District of Columbia,
793 F. Supp. 2d 183, 196-97 (D.D.C. 2011); In re Lorazepam & Clorazepate Antitrust Litig., 467
F. Supp. 2d 74, 80 (D.D.C. 2006); Thomas v. Mineta, 310 F. Supp. 2d 198, 203 (D.D.C. 2004).
In addition, the court “is not to resolve legitimately disputed issues of fact already decided by the
jury,” even if it finds “the evidence that led to the jury verdict unpersuasive, or that it would have
reached a different result if it were sitting as the fact-finder.” Halcomb v. Woods, 767 F. Supp.
2d 123, 134-35 (D.D.C. 2011) (internal quotation marks and citations omitted). The court should
grant the motion only when “the non-movant’s evidence is so insufficient that a reasonable
finder of fact could not possibly find for the non-movant.” Id. (internal quotation marks and
citations omitted); see also In re Lorazepam, 467 F. Supp. 2d at 80.
b. Analysis
Hancock contends that she is entitled to judgment as a matter of law on her
failure-to-accommodate claim because she proved that (1) she is a disabled person within the
meaning of the ADA and WHC had notice of her disability; (2) she is a qualified individual with
a disability under the ADA because she performed the essential functions of a medical assistant
with an accommodation of no triage; (3) she requested light duty of no triage and no lifting over
fifteen to twenty pounds as a reasonable accommodation; and (4) although WHC had previously
granted the requested accommodation, WHC refused to continue to provide accommodation
because it wanted Hancock to return to full duty, and ultimately terminated her. WHC counters
by arguing that (1) Hancock is not a qualified individual because she could not perform the
essential function of triage; (2) Hancock failed to demonstrate that the requested accommodation
was reasonable; and (3) WHC reasonably accommodated Hancock’s condition by allowing her
to take a leave of absence.
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The ADA prohibits discrimination against qualified individuals on the basis of
disability. 42 U.S.C. § 12112(a). It defines a qualified individual as “an individual who, with or
without reasonable accommodation, can perform the essential functions of the employment
position that such individual holds or desires.” 42 U.S.C. § 12111(8). The ADA does not
require an employer to reallocate essential functions in order to accommodate an employee’s
disability. 29 C. F. R. Pt. 1630, App. § 1630.2(o); see also Milton v. Scrivner, Inc., 53 F.3d
1118, 1124 (10th Cir. 1995) (“An employer is not required by the ADA to reallocate job duties
in order to change the essential functions of a job.”); Terrazas v. Medlantic Healthcare Grp.,
Inc., 45 F. Supp. 2d 46, 53 (D.D.C. 1999). Accordingly, a plaintiff seeking to establish a prima
facie case of discrimination for failure to accommodate under the ADA must demonstrate that
(1) she was an individual who had a disability within the meaning of the statute; (2) the employer
had notice of her disability; (3) with reasonable accommodation she can perform the essential
functions of her job; and (4) the employer refused to make such accommodations. Etheridge v.
FedChoice Fed. Credit Union, 789 F. Supp. 2d 27, 35 (D.D.C. 2011) (citing Lytes v. D.C. Water
and Sewer Auth., 527 F. Supp. 2d 52, 60 (D.D.C. 2007), aff’d, 572 F.3d 936 (D.C. Cir. 2009));
Spelke v. Gonzales, 516 F. Supp. 2d 76, 81 (D.D.C. 2007). Here, the Court finds that Hancock is
not entitled to judgment as a matter of law with respect to her failure-to-accommodate claim
because a reasonable jury could have found that Hancock was not a qualified individual and that
the requested accommodation of no triage was unreasonable.
Generally, the question of what constitutes an essential function of a job is a
factual issue to be determined by a jury. See Baker v. Potter, 294 F. Supp. 2d 33, 44 (D.D.C.
2003) (collecting cases). In the instant case, the parties stipulated in their pretrial statement that
Hancock’s duties as a medical assistant included “registering patients, triaging patients, billing,
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and patient referrals, assisting nurses, cleaning exam rooms, stocking and ordering supplies,
answering telephones.” Joint Pre-Trial Statement at §5(B) (Dkt. No. 33). The parties further
stipulated that triaging patients, which entails “preparing patients to be seen by a physician,
escorting patients to the exam room, and taking and recording patients’ information in their
charts,” was an essential function of Hancock’s job. Id. at § 5(B)-(C). At trial, witnesses from
both parties testified that Hancock was placed on modified duty and periodically excused from
performing triage because her disability prevented her from lifting over twenty pounds and
triaging patients. In other words, the evidence presented at trial established that Hancock was
unable to perform an essential function of her job, with or without accommodation.
Nevertheless, Hancock claims that she is a qualified individual within the
meaning of the ADA because WHC “waived” the essential function of triage by accommodating
her request for modified duty with no triage for a period of time. Based on the same reasoning,
Hancock also argues that WHC failed to reasonably accommodate her when it refused to
continue to accommodate her request for light duty with no triage. The Court disagrees.
Contrary to Hancock’s claim, the mere fact that an employer voluntarily
accommodates an employee’s disability by temporarily eliminating an essential function does
not mean that the employer has irrevocably waived the essential function of the job. Nor does it
mean that an employee who is unable to perform an essential function of her job with or without
accommodation is a qualified individual within the meaning of the ADA. At the motions
hearing, counsel for Hancock failed to cite a single case in support of her waiver argument. See
Dec. 9, 2013 Mot. Hr’g. Tr. Indeed, it appears that the case law on this issue overwhelmingly
favors the contrary view, that is, an employee who cannot perform an essential function is not a
qualified individual under the ADA, even if the employer previously chose to accommodate the
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employee by excusing the employee from performing the essential function. See, e.g., Wood v.
Green, 323 F.3d 1309, 1314 (11th Cir. 2003); Amadio v. Ford Motor Co., 238 F. 3d 919, 929
(7th Cir. 2001) (“[T]he fact that Ford generously granted extended leaves to its employees-in
rare cases, up to two years-does not necessarily bind Ford to repeatedly grant successive leaves
to [plaintiff,]” where plaintiff is unable to perform the essential functions of his job and does not
qualify for protection under the ADA) (emphasis in original); Myers v. Hose, 50 F.3d 278, 284
(4th Cir. 1995).
Similarly, an accommodation that eliminates an essential function of a job is
unreasonable under the ADA, even if the employer voluntarily provided such an accommodation
in the past. See, e.g., Walton v. Mental Health Ass’n. of Southeastern Pennsylvania, 168 F.3d
661, 671 (3rd Cir. 1999) (employer’s decision to discontinue the accommodation of unpaid leave
does not violate the ADA where the absent employee would not be performing the essential
functions of her position); Hill v. Harper, 6 F. Supp. 2d 540, 544 (E.D. Va. 1998) (previous
accommodation that effectively eliminated the essential function of a jail deputy is not a
reasonable accommodation, and employer was not required to continue the accommodation);
Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1528 (11th Cir. 1997) (declining to require
the employer city to continue to accommodate plaintiff police officer by eliminating an essential
function of the job).
Phelps v. Optima Health, Inc., 251 F.3d 21 (1st Cir. 2001) is particularly
instructive. There, plaintiff, a staff nurse at a hospital, was unable to perform the normal tasks of
her job due to back injuries. To accommodate her disability, the manager of plaintiff’s unit
created a special position of “medication nurse” and allowed plaintiff to share her patient load
with her sister who worked in the same unit. When a new manager took over plaintiff’s unit and
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concluded that plaintiff was unable to perform the essential functions of the clinical nurse
position, she dismissed plaintiff. Id. at 24. Noting that several courts have held that, “even when
an employer and employee have made arrangements to account for the employee’s disability-a
court must evaluate the essential functions of the job without considering the effect of the special
arrangements,” the court in Phelps held that “[t]he fact that an employee might only be assigned
to certain aspects of a multi-task job does not necessarily mean that those tasks to which she was
not assigned are not essential.” Id. at 25-26 (citing cases). The court further rejected plaintiff’s
argument that given the special work sharing arrangement, lifting was not an essential function
with respect to plaintiff, holding that “evidence that accommodations were made so that an
employee could avoid a particular task ‘merely shows the job could be restructured, not that [the
function] was non-essential.’” Id. at 26 (citing Basith v. Cook County, 241 F.3d 919, 930 (7th
Cir. 2001)).2 The same reasoning applies here.
It is undisputed that triage was an essential function of Hancock’s position. It is
also undisputed that Hancock was medically restricted from performing triage due to her
disability. At trial, several witnesses testified to the gravity of Hancock’s disability: Dr. Ross
Myerson, medical director for occupational medicine at WHC, testified that Hancock told him
that she could not do her full job, Sept. 3 Tr. at 146:13-16; Dr. Patrick Noel, Hancock’s treating
physician, likewise indicated on various disability benefit forms that Hancock was unable to
perform the essential functions of her job and may have been permanently damaged. See, e.g.,
2
Hancock relies on U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) for the
unremarkable principle that a plaintiff need only show that an accommodation seems reasonable
on its face. However, neither Barnett nor Taylor v. Rice, 451 F.3d 898 (D.C. Cir. 2006)—
another case Hancock cites—supports Hancock’s position that an accommodation that eliminates
an essential function is reasonable under the ADA. In fact, in Taylor, the appellate court
reversed the district court’s granting of summary judgment in favor of the defendant partly
because a factual issue existed as to whether the proposed accommodation would have
eliminated an essential function. 451 F.3d at 904-07.
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Def. Ex. 46. In addition, Renee Nesbith, clinical manager in WHC’s ambulatory care center,
testified that due to Hancock’s restrictions, other medical assistants were forced to work on the
floor more often. Sept. 3 Tr. at 118:20-119:19. Furthermore, at the conclusion of the trial, the
jury was instructed that while an employer may reallocate essential job functions as a reasonable
accommodation, “the fact that the defendant may have offered certain accommodations to an
employee or employees in the past does not mean that the same accommodations must be forever
extended to the plaintiff, or that those accommodations are necessarily reasonable under the
ADA.” Jury Instruction No. 24, Sept. 5 Tr. at 6:4-8. Under these circumstances, a reasonable
jury could have concluded that Hancock was not a qualified individual within the meaning of the
ADA and that the requested accommodation of no triage was unreasonable.
Accordingly, Hancock’s motion for judgment as a matter of law is DENIED.3
II. Motion for a New Trial
Alternatively, Hancock argues that she is entitled to a new trial under Rule 59(a)
on the following grounds: (1) the evidence presented at trial revealed that WHC has a policy of
accommodating disabled employees for 90 days only (“90-day only policy”), which constitutes a
per se violation of the ADA; (2) the weight of the evidence mandates a new trial on the failure-
to-accommodate claim and the termination claim; (3) the evidence presented at trial revealed that
WHC imposed a “100% healed” rule on Hancock in violation of the ADA; and (4) the Court
committed several errors during trial, including permitting the testimony of Hancock’s treating
physician and related exhibits in the absence of an expert report and providing the business
3
Hancock also contends that she is entitled to judgment as a matter of law on
WHC’s failure-to-mitigate affirmative defense. In light of the Court’s denial of Hancock’s post-
trial motions, the Court declines to resolve the issue at this time. Hancock’s counsel also agreed
at the motions hearing that the Court need not address the issue at this time. See Dec. 9, 2013
Mot. Hr’g. Tr.
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judgment rule instruction to the jury. The Court will address each argument in turn.
a. Legal Standard
Under Rule 59(a) of the Federal Rules of Civil Procedure, a court may grant a
new trial on “all or some of the issues” following a jury trial “for any reason for which a new
trial has heretofore been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a)(1).
However, a new trial should be granted “only when the court is convinced that the jury verdict
was a seriously erroneous result and where denial of the motion will result in a clear miscarriage
of justice. Generally, a new trial may only be granted when a manifest error of law or fact is
presented. Moreover, the court should be mindful of the jury’s special function in our legal
system and hesitate to disturb its finding.” Long v. Howard Univ., 512 F. Supp. 2d 1, 6 (D.D.C.
2007) (internal quotation marks and citations omitted); Thomas v. Mineta, 310 F. Supp. 2d 198,
206 (D.D.C. 2004); Lewis v. Elliott, 628 F. Supp. 512, 515-16 (D.D.C. 1986) (“A trial judge
should grant a new trial if the verdict is against the weight of the evidence, damages are
excessive, for other reasons the trial was not fair, or substantial errors occurred in the admission
or rejection of evidence or the giving or refusal of instructions.”) (citations omitted).
b. Analysis
The 90-day only policy
Hancock claims that she is entitled to a new trial because the testimony of Dr.
Myerson revealed that WHC has a policy of limiting accommodations of disabled employees to
90 days, after which they must apply for disability benefits or go on a leave of absence. Hancock
argues that this so-called 90-day only policy is a per se violation of the ADA. She further claims
that she has been severely prejudiced by the disclosure of this supposedly new and material
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evidence at trial, which she contends is a “smoking gun” that would have established WHC’s
liability early in the litigation.
After reviewing Dr. Myerson’s testimony in its entirety, the Court concludes that
Dr. Myerson’s testimony does not establish the existence of the so-called 90-day only policy. At
trial, Hancock’s counsel asked Dr. Myerson if there was a policy at WHC that prohibits the
hospital from accommodating disabled employees past 90 days. Dr. Myerson responded that “90
days is the general time frame that we use with respect to accommodation.” Sept. 3 Tr. at
134:21-25. However, Dr. Myerson also stated that WHC treats each case individually: “For
example, if a patient is making progress and we anticipate further progress or we don’t know if
there’s going to be further progress or we need more information, we will extend those
restrictions.” Sept. 3 Tr. at 135:2-7; see also Sept. 3 Tr. at 136:11-20 (“[T]he general guideline
in our institution has been 90 days….However, we treat every case individually. And if there
appears to be progress, if we think someone is going to be able to return to their usual work,
management can accommodate for longer.”).
Furthermore, it is unclear from Dr. Myerson’s testimony exactly what the
purported 90-day only policy means. Dr. Myerson testified that he informed Hancock that she
may need to find another position within WHC if her restrictions were permanent. Sept. 3 Tr. at
151:23-152:7; see also Sept. 3 Tr. at 154:20-155:4 (“What I said in the document was that I
informed her that they may not be able to accommodate more than 90 days. I wanted her to
understand that she had been accommodated for a period of time. And that we were, as the
hospital policy, reaching the end of that. That’s why we needed more information to determine
whether it was likely she was going to be able to go back and do her job in the foreseeable future
or whether or not another scenario was going to unfold where she may need to look for
10
alternative work.”). In other words, one can plausibly interpret Dr. Myerson’s description of the
90-day only policy to mean that after 90 days, WHC will try to find another position or
accommodation for the employee within the hospital, rather than terminate the employee. One
can also interpret Dr. Myerson’s testimony to suggest that WHC only intended to waive the
essential function of triage for 90 days to accommodate Hancock.
Given this somewhat conflicting testimony, the Court cannot conclude that WHC
imposes a 90-day limit on accommodating its disabled employees. The Court also notes that Dr.
Myerson is a physician and does not play a role in setting the hospital’s management policies.
See Sept. 3 Tr. at 136:9-11 (“I’m a physician. I deal with the medical issues. The decision to
accommodate and what accommodations are reasonable are management.”); see also Sept. 3 Tr.
at 140:20-25 (“When I see a patient, and I get information, and I make a determination what
restrictions they may need for their particular position as a result of the medical condition, then
those restrictions that I write go to the manager. The manager, then, decides whether they can
accommodate with those restrictions or not. That’s not my decision.”). A testimony from a
single witness who does not play a role in WHC’s management is insufficient to establish a per
se violation of the ADA, particularly where the actual policy is in evidence and contains no such
limitations. See Pl. Ex. 15 (WHC Policy on Accommodations for Individuals with Disabilities).
Moreover, the Court finds that Hancock was not prejudiced by the allegedly
belated disclosure of the 90-day only policy. As WHC points out, Hancock has known about the
90-day issue for several years: it was mentioned in Dr. Myerson’s meeting notes that were
produced to Hancock during the early phase of fact discovery. Thus, Hancock had ample time
to consider the issue prior to trial. Tellingly, after Dr. Myerson “revealed” WHC’s 90-day only
policy, Hancock did not seek continuance to address this allegedly new and material information.
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Instead, Hancock’s counsel argued to the jury at closing that the 90-day only policy violated the
ADA. See Sept. 4 Tr. at 123:16-124:6 (“It appears to me from Dr. Myerson’s testimony that
Washington Hospital Center has a particular policy on accommodating disabled individuals,
and that policy is 90 days…I submit to you that is a violation of the Americans with
Disabilities Act on its face...So it appears that Washington Hospital Center tried to
accommodate her, and then the 90 days was up. So she was put out. That’s their policy. It’s
a violation of the law.”). The mere fact that the jury disregarded the argument in light of all
the other evidence does not warrant a new trial. A party seeking a new trial on the grounds
of unfair surprise must show that it was deprived of a fair hearing and demonstrate
“reasonably genuine surprise, which necessarily was inconsistent with substantial justice and
which resulted in actual prejudice.” Sedgwick v. Giant Food, Inc., 110 F.R.D. 175, 176-77
(D.D.C. 1986) (internal quotation marks and citations omitted). In Sedgwick, the court noted that
a continuance is often a prerequisite to obtaining a new trial on the ground of unfair surprise. Id.
(collecting cases). No such motion was made here.
Accordingly, Hancock’s motion for a new trial on this ground is DENIED.
Weight of the Evidence
Hancock claims that a new trial is appropriate with respect to her failure-to-
accommodate claim because she has met each element of her claim and proved that WHC denied
her a reasonable accommodation for her disability. For the reasons stated above, the Court finds
that Hancock failed to meet the standards of Rule 59(a) with respect to her failure-to-
accommodate claim.
Hancock also asserts that a new trial is warranted on her termination claim
because the evidence presented at trial conclusively established that WHC terminated her, rather
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than placing her on a leave of absence. At trial, Hancock testified that she never applied for
leave and was instead terminated by Shava Russell, former clinical manager at WHC who was
Hancock’s direct supervisor during the relevant time period. In addition to her own testimony,
Hancock points out that Primrose Horn, former clinical program manager at WHC, admitted that
WHC had a specific procedure for a leave of absence under its agreement with the union, which
was not followed in Hancock’s case. See Sept. 4 Tr. at 78:11-81:2. Hancock further notes that
Pauline Aleibar, work life services specialist at WHC, acknowledged that Hancock never
submitted a leave of absence form. Sept. 3. Tr. at 186:14-18.
Nevertheless, the Court finds that the weight of the evidence does not mandate a
new trial on Hancock’s termination claim because WHC presented sufficient evidence for a jury
to conclude that Hancock applied for and was approved for a leave of absence. For instance,
Aleibar testified that Hancock came to her office to pick up the medical leave of absence
package, and that she personally met with Hancock and explained how to apply for short-term
disability and her eligibility for FMLA. Sept. 3 Tr. at 158-62; Def. Ex. 17A (“EE came in to OH
to report that she is applying for leave papers”). Aleibar further testified that, while Hancock did
not formally submit a leave of absence request form, it was not unusual for employees seeking
leave to fail to return the form. Sept. 3. Tr. at 194:4-22. Similarly, Marilyn Cox, clinical
manager in WHC’s occupational health department, testified that Hancock stopped by her
office to let her know that she had picked up paperwork to apply for her leave. Sept. 4. Tr. at
44:16-25. Horn also testified that she approved Hancock’s leave and believed Hancock had
applied for a leave because Hancock had submitted the health care provider certification form,
which is the only document necessary to approve an employee’s leave of absence. Sept. 4 Tr. at
65:1-3, 85:16-86:9. In addition to witness testimony, WHC presented documentary evidence
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suggesting that Hancock was placed on leave, including Hancock’s health care provider
certification form, Def. Ex. 20, and correspondences from WHC to Hancock regarding the
expiration of her leave of absence. Def. Exs. 24, 26. Thus, the jury could have concluded that
Hancock was placed on a leave of absence as an accommodation of her disability. 4
Accordingly, Hancock’s motion for new trial on her failure-to-accommodate
claim and her termination claim is DENIED.
100% healed rule
Hancock contends that WHC imposed a “100% healed” rule on her in violation of
the ADA. In support of this argument, Hancock relies primarily on the testimony of Shava
Russell. Russell told Hancock that she needed to be cleared to come back to full duty by
December 24, 2007 or she would have to make other arrangements. Sept. 3 Tr. at 96:2-9.
Russell testified that she refused to accommodate Hancock because she needed Hancock to
return to full duty. Sept. 3 Tr. at 101:20-23; Pl. Ex. 5.
The Court finds Hancock’s argument unpersuasive in light of all the other
evidence WHC introduced at trial concerning its efforts to reasonably accommodate
Hancock’s disability. As noted in the jury instructions, a leave of absence may constitute a
reasonable accommodation under the ADA. See e.g., Dark v. Curry Cnty., 451 F.3d 1078, 1090
4
Hancock also dismisses WHC’s claim that it placed her on a leave of absence as
an accommodation for her disability, arguing that WHC failed to hold her position open as it was
required to do by law, and that the 90-day only policy was the real reason why WHC put her on
leave of absence. For the reasons discussed supra, the Court rejects Hancock’s 90-day only
policy argument. As for Hancock’s claim that WHC was required to hold her job open, the ADA
does not mandate that an employer hold a position open indefinitely: it only requires that the
employer hold it open while the employee is on leave. See EEOC Enforcement Guidance on
Reasonable Accommodation, available at
http://www.eeoc.gov/policy/docs/accommodation.html. In this case, WHC left her position open
until after Hancock’s leave expired. Def. Ex. 39.
14
(9th Cir. 2006) (unpaid leave may be reasonable accommodation). In addition, both Cox and
Dr. Myerson testified at length about their efforts to get more information from Hancock
regarding her condition so that WHC could assess the best way to address Hancock’s
restrictions and determine whether reassignment was appropriate. See Sept. 3 Tr. at 145-
50; Sept. 4 Tr. at 42-43. Under the circumstances, Russell’s testimony alone is insufficient
to establish that the jury verdict in this case was “a seriously erroneous result” warranting a
new trial. See Long, 512 F. Supp. 2d at 6.
Accordingly, Hancock’s motion on this ground is DENIED.
Dr. Noel’s testimony
Likewise, the Court rejects Hancock’s argument that the Court improperly
permitted WHC to introduce portions of Dr. Noel’s deposition testimony and related exhibits at
trial. Dr. Noel is an orthopedic surgeon who was Hancock’s treating physician during the
relevant time period. Prior to trial, Hancock moved in limine to exclude certain medical
documents and corresponding testimony from her healthcare providers under Bynum v. MVM,
Inc., 241 F.R.D. 52 (D.D.C. 2007), claiming that such evidence pertained to issues of causation,
foreseeability, prognosis and permanency of her medical condition and could not be elicited in
the absence of an expert report. Dkt. No. 30-1, 4-6. After the Court denied Hancock’s motion in
limine, Apr. 8, 2013 Order (Dkt. No. 40), Hancock’s counsel renewed her objections at trial with
respect to Dr. Noel’s testimony and related exhibits based on the same grounds. Sept. 3 Tr. at 8-
11. The Court overruled the objections on the grounds that under Rule 26(a)(2) of the Federal
Rules of Civil Procedure, a treating physician who testifies regarding the opinions he gave
contemporaneously during his treatment of a patient need not provide an expert disclosure. Sept.
4 Tr. at 3-4.
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It is well-established that a treating physician need not comply with the written
report requirement under Rule 26(a)(2)(B) as long as he is testifying to the personal knowledge
that he acquired during the care and treatment of a patient. See, e.g., Riddick v. Washington
Hosp. Ctr., 183 F.R.D. 327, 330 (D.D.C. 1998) (“So long as a treating physician acquired the
opinions that are the subject of the testimony directly through treatment of the plaintiff, the
treating physician cannot be forced to file a written report required by Rule 126(a)(2)(B).”)
(internal quotation marks and citations omitted). The plain language of Rule 26(a)(2)(B) itself
requires a written report by an expert witness only “if the witness is one retained or specially
employed to provide expert testimony in the case or one whose duties as the party’s employee
regularly involve giving expert testimony.” Fed. R. Civ. P. 26(a)(2)(B). The advisory
committee note accompanying Rule 26 adds that “[a] treating physician, for example, can be
deposed or called to testify at trial without any requirement for a written report.” Fed. R. Civ. P.
26 (Advisory Committee Notes). The advisory committee note thus “recognizes the common
sense proposition that a treating physician has a relationship with the patient that is typically
separate from the case, based on his care and treatment of the patient, and thus he should not be
deemed ‘retained’ based solely on that relationship.” Kirkham v. Société Air France, 236 F.R.D.
9, 11 (D.D.C. 2006) (citation omitted). It also recognizes that “a treating physician will, like a
fact witness, have personal knowledge based on his care and treatment, and to the extent fact
testimony is being provided, it should not be subject to the requirement of a written report.” Id.
(citation omitted).
Here, Dr. Noel’s testimony concerned his observations of Hancock during his
treatment of Hancock in 2007 and 2008. He did not offer any testimony on causation or
forward-looking opinion; all related exhibits were created by Dr. Noel contemporaneously with
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his treatment of Hancock. For instance, Defendant’s Exhibit 46, which is a disability benefit
activation form, was prepared for Hancock by Dr. Noel and signed by him on February 5, 2008.
Thus, this is not a situation in which a physician is solely retained by a party in connection with
the litigation. Cf. Kirkham, 236 F.R.D. at 12 (“[W]hether the expert was ‘retained or specially
employed’ in connection with the litigation must be considered, given the plain language of Rule
26(a)(2)(B).”).
Contrary to Hancock’s assertion, Bynum does not support the exclusion of Dr.
Noel’s testimony and related exhibits. While the court in Bynum held that a treating physician
cannot testify about “plaintiff’s current condition, prognosis, causation or permanency, and any
other such forward-looking speculation, or other conclusion reached with the benefit of hindsight
and after the underlying events that g[i]ve rise” to the lawsuit without an expert report, it
reiterated that a treating physician may testify as a fact witness concerning information learned
from “his actual treatment, examination, or analysis” of plaintiff’s condition, without having to
comply with the requirements for expert witnesses under Rule 26(a)(2). 241 F.R.D. at 53-54
(emphasis added). That is precisely what Dr. Noel did in his deposition testimony.
Hancock’s attempt to compare Dr. Noel with another treating physician, Dr.
Reginald Biggs, is unconvincing. Dr. Biggs is Hancock’s psychiatrist whom the Court excluded
on the grounds that Hancock did not identify him as an expert pursuant to Rule 26(a)(2). Unlike
Dr. Noel’s testimony, Dr. Biggs’ proposed testimony pertained to Hancock’s current condition
and causation, namely, “the emotional pain and suffering [Hancock] endured and continues to
endure as a result of WHC’s refusal to accommodate.” Dkt. No. 32 at 2. Thus, it was properly
excluded for failure to comply with the expert disclosure requirements of Rule 26(a)(2). See
Bynum, 241 F.R.D. at 54.
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Accordingly, Hancock’s motion for new trial on this ground is DENIED.
The jury instruction
Lastly, Hancock argues that the Court’s decision to provide the business
judgment rule instruction to the jury warrants a new trial. At trial, the Court provided the
following instruction:
The defendant has given a nondiscriminatory reason for its actions. If you
disbelieve the defendant’s explanations, then you may, but need not, find that
the plaintiff has proved intentional discrimination. In determining whether the
defendant’s stated reason for its actions was a pretext or excuse for
discrimination, you may not question the defendant’s business judgment. In
other words, you cannot find intentional discrimination simply because you
disagree with the business judgment of the defendant or believe it is harsh or
unreasonable. You are not to consider the defendant’s wisdom. However,
you may consider whether the defendant’s reason is merely a cover-up for
discrimination. Jury Instruction No. 22, Sept. 4 Tr. at 163:1-15.
Hancock contends that the instruction was inappropriate in this case because the
business judgment rule usually applies to discrimination claims involving hiring, transfers or
promotions where the claimant’s qualifications are compared to other qualified employees. In
this instance, Hancock claims that the instruction necessarily foreclosed any inquiry by the jury
as to whether WHC’s actions were discriminatory and constituted a termination because of her
disability.
The business judgment rule instruction was derived from the Third Circuit Pattern
Jury Instructions for Employment Claims under the Americans with Disabilities Act. Available
at http://www.ca3. uscourts.gov/sites/ca3/files/9 Chap 9 2012_July.pdf. The Jury Instructions
reference Billet v. CJGNA Corp., 940 F.2d 812,825 (3d Cir. 1991), overruled in part on other
grounds by St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993), where the Third Circuit held
that, “[b]arring discrimination, a company has the right to make business judgments on employee
status.” In that case, an employee alleged that he was terminated because of his age in violation
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of the Age Discrimination in Employment Act (“ADEA’”). In response, the employer presented
evidence of objective reasons for termination, including a poor performance evaluation, the
employee’s forging of a supervisor’s signature, and his disregard for company policy and
procedure. The Third Circuit affirmed the district court’s order granting a motion for directed
verdict in favor of the employer. Billett was not a failure-to-hire case (although it appeared from
the facts of the case that his termination was partly due to corporate reorganization that resulted
in a number of promotions and transfers), and nothing in Billet or in the Third Circuit Pattern
Jury Instructions—including the Comments to the Instructions—suggest that the application of
the business judgment rule instruction should be limited to the types of cases Hancock mentions.
Indeed, Hancock does not cite any authority in support of her position that the business judgment
rule instruction is inappropriate in failure-to-accommodate cases such as hers.
Moreover, the business judgment instruction did not necessarily prejudice
Hancock. The instruction explicitly states that jurors may consider whether the defendant’s
reason is merely a cover-up for discrimination. See Aka v. Washington Hosp. Ctr., 156 F.3d
1284, 1294 (D.C. Cir. 1998) (“If a factfinder can conclude that a reasonable employer would
have found the plaintiff to be significantly better qualified for the job, but this employer did not,
the factfinder can legitimately infer that the employer consciously selected a less-qualified
candidate—something that employers do not usually do, unless some other strong consideration,
such as discrimination, enters into the picture.”). Courts have rejected arguments similar to
Hancock’s in other failure-to-accommodate cases. See, e.g., Ragusa v. United Parcel Serv., No.
05 Civ. 6187 (WHP), 2009 WL 637100, at *4 (S.D.N.Y. Mar. 3, 2009) (rejecting plaintiff’s
argument that he is entitled to a new trial on his failure-to-accommodate claim because the court
erroneously provided a business judgment rule instruction that confused the jury); Bradley v.
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Fed. Express Corp., No. A-04-CA-718 AWA, 2006 WL 1751775, at * 4 (W.D. Tex. May 25,
2006) (rejecting plaintiff’s argument that business judgment rule instruction is inappropriate in a
case involving a failure-to-accommodate claim). In any event, the potential for prejudice for
including the business judgment rule instruction in this case was minimal, if any. As the Court
noted at trial, the issue in the instant case is not whether Hancock was terminated because of her
disability but whether she was terminated at all. Thus, the jury was not asked to determine
whether WHC had a legitimate business reason for allegedly terminating Hancock. See Sept. 4
Tr. at 95:24-96:4.
Accordingly, Hancock’s motion for a new trial is DENIED.
CONCLUSION
For the foregoing reasons, Plaintiff’s Renewed Motion for Judgment as a Matter
of Law and Motion for New Trial are DENIED.
IT IS SO ORDERED.
Digitally signed by Judge Robert L. Wilkins
DN: cn=Judge Robert L. Wilkins, o=U.S.
District Court, ou=Chambers of Honorable
Date: January 7, 2014 Robert L. Wilkins,
email=RW@dc.uscourt.gov, c=US
Date: 2014.01.07 14:18:17 -05'00'
ROBERT L. WILKINS
United States District Judge
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