United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 24, 1998 Decided November 20, 1998
No. 97-7206
Beverly A. Whitbeck,
Appellant
v.
Vital Signs, Inc.,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 95cv01011)
Michael G. Kane argued the cause for appellant. With him
on the briefs were Vicki G. Golden and David R. Cashdan.
Pamela J. Moore argued the cause for appellee. With her
on the brief was Paul J. Kennedy.
Before: Edwards, Chief Judge, Rogers and Tatel, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: In this appeal from a jury verdict in
favor of an employer in a disability discrimination suit, we
once again face the question of whether and to what extent
the employer may rely on the employee's application for and
receipt of disability insurance benefits. Although we held in
a previous case that the receipt of such benefits does not bar
the employee's claim as a matter of law, we find that where,
as in this case, the benefits applications contain information
relevant to issues at trial, they may be admitted into evi-
dence.
I
This is not the first time this litigation has come before us.
See Whitbeck v. Vital Signs, Inc., 116 F.3d 588 (D.C. Cir.
1997) ("Whitbeck I"). Although we described the factual
background of this dispute in some detail in our earlier
opinion, we revisit those facts again as they relate to the
issues before us here.
Appellant Beverly Whitbeck began working as a sales
representative for Vital Signs, Inc., a medical equipment
manufacturer, in 1992. Because of her outstanding sales
performance for another medical equipment company, Vital
Signs guaranteed Whitbeck a salary of at least $84,000 for
her first year. Diagnosed five months later with a severe
spinal cord tumor, Whitbeck underwent surgery, returning
home after several weeks of hospitalization and rehabilitation.
Although unable to move around without a walker or a
wheelchair, Whitbeck began working from home almost im-
mediately, initiating as much client contact as she could over
the telephone. As she grew stronger, she gradually in-
creased her workload. With the help of a driver she hired
and paid, Whitbeck started making sales calls again in July
1993. She soon outfitted her car with hand controls and a
wheelchair rack, enabling her to transport herself to her
customers on her own. By early 1994, Whitbeck no longer
needed a wheelchair and was able to make sales calls with the
aid of a cane.
In the spring of 1994, Whitbeck began to have difficulty
walking long distances. Her neurologist discovered that her
tumor had regrown. He informed her that her problems with
walking were not likely to improve and that she might
develop total paraplegia. He recommended that she consider
purchasing a motorized cart for making sales calls in the field.
A few days later Whitbeck met with a salesperson from a
motorized cart manufacturer to explore that possibility.
On April 28, Whitbeck had a conversation with her supervi-
sor, Sherry Henricks, about the possibility of using a motor-
ized cart at work. At trial, Whitbeck and Henricks offered
conflicting versions of what they said to each other during
that conversation. According to Henricks, Whitbeck was
distraught that her tumor had regrown and said that she
would not use a motorized cart to make sales calls because
she "couldn't see herself" doing that. Henricks testified that
Whitbeck explained that she had decided instead to retire on
long-term disability. According to Whitbeck's version of the
conversation, Henricks flatly refused her request for permis-
sion to use a motorized cart, telling her that "it wasn't ... a
good idea" because "it wouldn't look right." Whitbeck testi-
fied that it was Henricks who suggested that she retire on
long-term disability, and that Henricks even asked her if she
could begin to advertise the availability of her position imme-
diately.
Shortly after the April 28 conversation, Whitbeck stopped
working altogether, and Vital Signs removed her from the
payroll. Whitbeck then applied for and began receiving both
residual and short-term disability benefits from her private
insurer. She also applied for long-term disability benefits
through Vital Signs's carrier, Mutual of Omaha. Finding her
ineligible because her condition arose less than a year after
she began working at Vital Signs, Mutual of Omaha denied
her claim. Whitbeck also applied for and began receiving
Social Security disability benefits. Vital Signs officially ter-
minated her in November 1994.
Whitbeck filed suit in the Superior Court for the District of
Columbia, alleging that Vital Signs had discriminated against
her because of her disability in violation of the District of
Columbia Human Rights Act, D.C. Code Ann. ss 1-2501 to
1-2557 (1992) (amended 1994). Vital Signs removed the case
to the United States District Court for the District of Colum-
bia based on diversity of citizenship. With the parties' con-
sent, the matter was referred to a magistrate judge. As we
explained in Whitbeck I, District of Columbia courts deter-
mine the elements of a prima facie case of disability discrimi-
nation under the Human Rights Act based on cases decided
under analogous federal antidiscrimination laws. See Whit-
beck I, 116 F.3d at 591. Thus, Whitbeck's claim required her
to demonstrate that Vital Signs refused reasonably to accom-
modate her disability, and that she could have performed the
essential functions of her job had she been so accommodated.
See Americans with Disabilities Act, 42 U.S.C. ss 12111(8),
12112 (1994).
The magistrate judge granted summary judgment for Vital
Signs, holding that Whitbeck's receipt of disability insurance
benefits precluded her as a matter of law from demonstrating
that she could have performed the functions of her job with
accommodation. See Whitbeck v. Vital Signs, Inc., 934
F. Supp. 9, 14-15 (D.D.C. 1996). We reversed, holding that
because the insurance carriers made no inquiry into whether
Whitbeck could have performed her job with reasonable
accommodation, her application for and receipt of disability
benefits did not bar her discrimination claim. See Whitbeck
I, 116 F.3d at 591-92. Following a three-day trial on remand,
the jury returned a verdict for Vital Signs.
Whitbeck appeals, asserting various evidentiary errors.
We review a trial court's evidentiary rulings for abuse of
discretion. See United States v. Smart, 98 F.3d 1379, 1386
(D.C. Cir. 1996). Even if we find error, we will not reverse
an otherwise valid judgment unless appellant demonstrates
that such error affected her "substantial rights." Fed. R. Civ.
P. 61; Herbert v. Nat'l Academy of Sciences, 974 F.2d 192,
200 (D.C. Cir. 1992).
II
Relying on Whitbeck I and its companion case, Swanks v.
WMATA, 116 F.3d 582 (D.C. Cir. 1997), Whitbeck first
challenges the magistrate judge's admission into evidence of
her applications for disability insurance benefits. In Whit-
beck I, we held that because the insurers' disability determi-
nations did not take into account whether she could perform
the essential functions of her job with reasonable accommo-
dation--the critical issue in a disability discrimination suit--
the mere fact that Whitbeck had applied for and received
private disability insurance benefits did not bar her subse-
quent disability discrimination claim as a matter of law. See
Whitbeck I, 116 F.3d at 591-92. We reached the same
conclusion in Swanks with respect to the receipt of Social
Security disability benefits. See Swanks, 116 F.3d at 584-87.
Whitbeck argues that under the logic of these opinions her
benefits applications had no relevance to her case because
they made it no more likely that she would have been unable
to do her job if Vital Signs had accommodated her.
We agree with Whitbeck that the simple fact that she
applied for and received disability insurance benefits is not at
all probative, as a matter of fact, of whether she can perform
her job with accommodation. Although the fact that she
applied for and received benefits obviously relates to whether
she has a disability--a fact never contested by plaintiffs in
disability discrimination cases--it has nothing to do with the
question of reasonable accommodation. Reasonable accom-
modation assumes the presence of a disability and turns on
matters such as job restructuring, modification of work sched-
ules, and acquisition of assistive devices. See 42 U.S.C.
s 12111(9). Accordingly, Vital Signs could not have used the
mere fact that Whitbeck had applied for benefits to establish
that she was so disabled that she could not perform her job
even with reasonable accommodation.
Whitbeck's argument, however, fails to distinguish between
the act of applying for benefits and the information con-
tained in the applications. As we stated in Swanks, an
application for disability benefits would certainly be relevant
if the claimant represented in it that she could not do her job
even with accommodation. Swanks, 116 F.3d at 587. In this
case, for example, the neurologist's statement to Mutual of
Omaha, in which he answered "no" to the question whether
Whitbeck's job could be "modified to allow for handling with
impairment," was clearly relevant to her claim that she could
perform her job with accommodation.
Whitbeck's argument also disregards the relevance of her
application for long-term disability benefits to Vital Signs's
alternative theory of defense. In addition to arguing that
Whitbeck could not perform the essential functions of her job,
Vital Signs contended, relying on Henricks's version of the
April 28 conversation, that Whitbeck never even requested an
accommodation and chose instead to try to retire on long-
term disability. Toward that end, Vital Signs sought to prove
that Whitbeck believed that she was eligible to receive about
$45,000 per year in long-term benefits from Vital Signs's
insurance carrier. Vital Signs argued that because these
benefits were to be calculated as a function of Whitbeck's
earnings over the previous twelve months, and because that
number was decreasing steadily--she no longer received a
guaranteed salary and her disability made it difficult for her
to earn commissions--Whitbeck decided to retire immediately
rather than watch the amount of her benefits entitlement
wither away while she struggled to restore her earnings to
their former level. According to Vital Signs, when Whitbeck
later learned that she had been denied long-term disability
benefits, she fabricated her story that Henricks had refused
her request for permission to use a motorized cart. Viewed
in light of this theory, Whitbeck's benefits applications cer-
tainly contained relevant information. They revealed, for
example, that Whitbeck had been unable to work full time
since July 1993, that her lack of "stamina" and "endurance"
prevented her from spending a full day making sales calls,
and that she did not know when she could resume working
full time. All of this information was probative of whether
Whitbeck had a financial incentive to retire of her own
volition, and thus whether she had actually asked Henricks
for an accommodation.
Indeed, given Vital Signs's argument that Whitbeck never
asked for an accommodation, neither Whitbeck I nor Swanks
prohibited Vital Signs from introducing even her act of apply-
ing for disability benefits. After all, in order to prove its
theory that the unexpected denial of long-term disability
benefits precipitated her alleged lie about the conversation
with Henricks, Vital Signs needed to demonstrate that Whit-
beck had actually applied for such benefits.
Whitbeck argues that even if the applications were rele-
vant, the magistrate judge still should have excluded them as
unduly prejudicial. See Fed. R. Evid. 403. This argument,
however, rests on the assumption that Vital Signs offered the
applications only to show that she was unable to do her job.
But because Vital Signs also offered the applications to
establish that Whitbeck never actually requested an accom-
modation, and because Whitbeck failed to demonstrate that
any unfair prejudice that might have flowed from their admis-
sion substantially outweighed their relevance for that addi-
tional purpose, the magistrate judge did not abuse his discre-
tion in admitting the applications.
As Whitbeck points out, admitting the applications without
an explanatory instruction ran the risk that the jury would
make the same mistake that the magistrate judge originally
made on summary judgment: The jury might conclude from
the mere fact that she had applied for and received benefits
that she could not perform the functions of her job even if
reasonably accommodated. An instruction might have ex-
plained to the jury the difference between obtaining disability
benefits and prevailing in a disability suit, emphasizing that
both can be pursued simultaneously because the former takes
no account of the possibility of accommodation. An instruc-
tion also might have explained that both the act of applying
and the information revealed in the application forms could be
relevant to issues other than the possibility of accommoda-
tion.
Whitbeck, however, did not request such a limiting instruc-
tion at the time that Vital Signs introduced her benefits
applications. Instead, she proposed the following instruction
at the end of the trial, which the magistrate judge rejected:
I specifically instruct you that the application for and the
receipt by Ms. Whitbeck of disability benefits is not at all
inconsistent with her claim that she could perform her
job with a motorized scooter.
Whitbeck evidently based this instruction on our statement in
Whitbeck I that "Whitbeck's receipt of disability benefits is
thus not at all inconsistent with her claim that she could
perform her job with reasonable accommodation." Whitbeck
I, 116 F.3d at 591 (citing Swanks, 116 F.3d at 586). But that
statement spoke only to the act of receiving benefits. As we
explained earlier, the simple fact that Whitbeck applied for
and received benefits is not at all probative of whether she
could perform her job with accommodation, see supra at 5,
the only question at issue on summary judgment in Whitbeck
I. Here, Whitbeck's proposed instruction added the words
"the application for" to our language from Whitbeck I, thus
introducing ambiguity as to whether the instruction referred
just to the act of applying for benefits or also to information
contained in the applications. The jury could have interpret-
ed the proposed instruction to mean that in determining
whether Whitbeck could have done her job with accommoda-
tion, it could not consider evidence contained in the applica-
tions such as her neurologist's statement that her job could
not be modified to accommodate her disability. The proposed
instruction might also have led the jury to believe that it
could not consider the applications and information they
contained for other purposes, such as determining whether
the denial of long-term benefits might have motivated Whit-
beck to lie about her conversation with Henricks. Because
the magistrate judge was under no obligation to give a
misleading instruction, see Joy v. Bell Helicopter Textron,
Inc., 999 F.2d 549, 557 (D.C. Cir. 1993), he did not err in
rejecting Whitbeck's. Moreover, even assuming that the
potential for prejudice gave the magistrate judge some obli-
gation to rectify the flaws in her proposed instruction, the
failure to do so in this case was harmless because Vital Signs
never suggested at trial that the mere fact that Whiteck
applied for benefits was inconsistent with her discrimination
claim.
III
Whitbeck next argues that the magistrate judge erred in
refusing to allow her to testify about why she never com-
plained to Henricks's supervisor after Henricks allegedly
denied her request to use a motorized cart. Whitbeck sought
to explain to the jury that she had not gone to Henricks's
supervisor because she feared his reaction. To bolster this
explanation, she wished to testify that Henricks had previous-
ly told her that Henricks's supervisor had targeted Whit-
beck's sales territory for elimination. The magistrate judge
refused to allow Whitbeck to recount Henricks's out-of-court
statement, ruling that the testimony was hearsay. Whitbeck
now urges (as she did to the magistrate judge) that she
offered Henricks's statement not for its truth, but only to
demonstrate her state of mind.
We have no doubt that the magistrate judge erred in
excluding this testimony. At trial, Vital Signs elicited testi-
mony from numerous witnesses that Whitbeck was extraordi-
narily headstrong--not "the type of person to take no for an
answer and just walk away if she wanted something." Tr.
10/28/97 at 107. Vital Signs's theory, as it eventually ex-
plained to the jury in closing, was that Whitbeck's failure to
complain to anybody else at Vital Signs after Henricks sup-
posedly denied her request for an accommodation made that
story unbelievable; someone "with Beverly Whitbeck's get-
up-and-go and desire and ambition and motivation," Vital
Signs told the jury, "would [not] have walked away and
[would have] gone to someone else." Tr. 10/29/97 at 83. It
was therefore understandable that during her redirect exami-
nation, by which time Vital Signs had already introduced
testimony about her assertiveness, Whitbeck tried to explain
her failure to appeal Henricks's alleged decision by establish-
ing that she thought talking to Henricks's supervisor would
do more harm than good. Because Henricks's statement
regarding her supervisor's intentions with respect to Whit-
beck's sales territory would have explained Whitbeck's state
of mind when she decided against going to him, the statement
was relevant for this non-hearsay purpose. See United States
v. Baird, 29 F.3d 647, 653 (D.C. Cir. 1994). Indeed, that
Whitbeck had not offered Henricks's statement for its truth is
clear from the fact that the underlying question of the
supervisor's intentions regarding Whitbeck's territory was
entirely irrelevant to her case. Whitbeck's lawyer more than
adequately conveyed the purpose of the proffered testimony
at a bench conference: "[I]t's not hearsay in that we're not
admitting it for the truth.... It has to do with what her
state of mind was and why she was not assertive in going to
[Henricks's supervisor]." Tr. 10/28/97 at 85-86.
The magistrate judge's error, however, was harmless be-
cause the rebuttal evidence Whitbeck sought to introduce was
only minimally probative of why she kept quiet. For one
thing, Henricks's statement suggesting that her supervisor
had considered eliminating Whitbeck's territory occurred
months before the April 28 conversation in which Henricks
allegedly forbad Whitbeck from using a motorized cart; as
such, it amounted to relatively weak state-of-mind evidence.
Moreover, nothing in Whitbeck's proffered testimony would
have explained why she failed to tell anyone else at Vital
Signs--such as colleagues, human resources officers, or man-
agement other than Henricks's supervisor--that Henricks
had denied her request for an accommodation. Indeed, in a
subsequent letter to the CEO of Vital Signs proposing to
return to work on a part-time basis, Whitbeck never even
hinted that Henricks had refused to accommodate her disabil-
ity. Given the evidence of these other omissions, we cannot
say that the magistrate judge's erroneous exclusion of Hen-
ricks's statement affected Whitbeck's "substantial rights."
Fed. R. Civ. P. 61.
IV
We turn finally to Whitbeck's contention that the
magistrate judge erred in refusing to allow two of her
witnesses--her neighbor and sister-in-law--to testify about
statements that she allegedly made to them regarding the
disputed conversation with Henricks. According to the mag-
istrate judge, the proffered testimony was hearsay. Whit-
beck argues (as she did to the magistrate judge) that her
statements to her neighbor and sister-in-law describing her
conversation with Henricks qualified as non-hearsay under
the "prior consistent statement" provision of Federal Rule of
Evidence 801(d)(1)(B). Rule 801(d)(1)(B) provides that out-
of-court statements are not hearsay if they are "consistent
with the declarant's testimony and ... offered to rebut an
express or implied charge against the declarant of recent
fabrication." Because such statements are only admissible to
rebut a specific allegation of motive for fabrication--not to
bolster the declarant's general credibility--the statements
must have occurred before the alleged motive originated. See
Tome v. United States, 513 U.S. 150, 156-160 (1995).
We think that the proffered testimony satisfied the require-
ments of Rule 801(d)(1)(B). Because Vital Signs directly
challenged Whitbeck's credibility by introducing evidence
from which the jury could infer that she fabricated her
account of the conversation with Henricks, Whitbeck sought
to rehabilitate herself by introducing evidence that shortly
after the conversation she told her neighbor and her sister-in-
law what Henricks had said. These statements were admissi-
ble because she made them months before learning that she
would not receive long-term disability benefits, the event that
Vital Signs claimed furnished her motive to lie.
Once again, the magistrate judge's error was harmless.
Given the substantial rehabilitative testimony that Whitbeck
actually elicited from these and other witnesses, the marginal
value of the excluded statements would have been slight.
The neighbor testified that Whitbeck seemed "upset" and
"physically shaken" by her conversation with Henricks, and
that Whitbeck was "confused" and "wasn't sure exactly what
to do because of what [Henricks] had said to her." Tr.
10/28/97 at 103-04. The sister-in-law testified that after the
conversation Whitbeck appeared "depressed" and that "her
personality totally changed." Id. at 112. She also testified
that Whitbeck had "[d]efinitely not" told her that she wanted
to retire from Vital Signs on long-term disability. Id. at 113.
And the motorized cart salesman testified that Whitbeck told
him that she could not buy a cart from him because "they
didn't go for the idea of using the [cart] to get to work." Tr.
10/27/97 at 19. Because Whitbeck could have relied on all of
this testimony to rebut Vital Signs's allegation that she lied
about what Henricks said to her, the magistrate judge's error
was harmless.
V
The verdict in favor of Vital Signs is affirmed.
So ordered.