Judith Gentry v. East West Partners Club

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cv-00108-MOC-DLH. [999767973]. [14-2382]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2382

JUDITH GENTRY,
Plaintiff - Appellant,
v.
EAST WEST PARTNERS CLUB MANAGEMENT COMPANY, INC.; JAY
MANNER, individually; MAGGIE VALLEY RESORT MANAGEMENT, LLC,
Defendants - Appellees.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Max O. Cogburn, Jr.,
District Judge. (1:13-cv-00108-MOC-DLH)

Argued:

December 10, 2015

Decided:

March 4, 2016

Before AGEE, FLOYD, and THACKER, Circuit Judges.

Affirmed by published opinion.
Judge Floyd wrote the opinion,
in which Judge Agee and Judge Thacker joined.

ARGUED: Glen Coile Shults, Jr., LAW OFFICE OF GLEN C. SHULTS,
Asheville, North Carolina, for Appellant.
Matthew J. Gilley,
FORD HARRISON, LLP, Spartanburg, South Carolina; Jonathan
Woodward Yarbrough, CONSTANGY, BROOKS, SMITH & PROPHETE, LLP,
Asheville, North Carolina, for Appellees.
ON BRIEF: Jule
Seibels Northup, NORTHUP MCCONNELL & SIZEMORE, PLLC, Asheville,
North Carolina, for Appellant.

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FLOYD, Circuit Judge:
After

her

employment

was

terminated,

Appellant

Judith

Gentry sued her former employers for disability discrimination
under the Americans with Disabilities Act (ADA) and for other
violations of state and federal law.

A jury found in favor of

Gentry on certain state law claims, for which it awarded her
$20,000 in damages, and in favor of the employers on all other
claims.

On appeal, Gentry challenges the district court’s jury

instructions under the ADA and the damages award.

Because we

find no reversible error, we affirm the district court.

I.
The following facts were adduced at trial.

Prior to her

termination, Gentry was an executive housekeeper at the Maggie
Valley Club and Resort (the Club), supervising a staff of eight
to ten housekeepers at an annual salary of $39,381.

The Club is

owned by Appellee Maggie Valley Resort Management, LCC (Maggie
Valley).
West

In September 2008, Maggie Valley hired Appellee East

Partners

Club

Management

Company,

Inc.

(East

West)

to

operate the Club, and in October 2008, East West hired Appellee
Jay Manner as the Club’s general manager.
In July 2007, Gentry fell at work, injuring her left foot
and

ankle.

She

filed

for

workers’

compensation

benefits.

Throughout the next year, Gentry received treatment from Dr.
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Peter

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Mangone,

October 2008.

who

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performed

surgery

on

Gentry’s

ankle

in

Gentry returned to work in January 2009 with no

restrictions,

though

she

difficulty walking.

continued

to

experience

pain

and

In January 2010, Dr. Mangone determined

that, under North Carolina’s workers’ compensation guidelines,
Gentry had a 30 percent permanent physical impairment to her
ankle.

He noted that she could perform her full job duties but

might require additional surgery in the future.
Soon thereafter, the Club’s insurance carrier offered to
settle Gentry’s workers’ compensation claim.

Gentry declined,

expressing concern that she might be terminated if she accepted,
and

instead

pursued

mediation.

In

October

2010,

insurance

adjuster Brenda Smith called Manner to discuss Gentry’s claim.
The accounts of that conversation vary.
Manner

expressed

surprise

at

Gentry’s

According to Smith,
concerns

about

being

terminated and described her as a “great worker” who did “a
great job.”
was

J.A. 183.

struggling

particular
Manner,

He further indicated that while the Club

financially

individuals

however,

had

generally

and
been

considering
identified

denied

making

layoffs,

for

no

termination.

these

statements.

According to Manner, Smith stated that the insurance company
felt extorted by Gentry and that it was only a matter of time
before

Gentry

denied

making

filed
these

another

claim

statements.
3

against
Manner

the

Club.

then

called

Smith
the

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principals

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of

Maggie

Valley

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and

East

West

and

relayed

his

version of the conversation with Smith.
Manner and Gentry met to discuss the upcoming mediation of
her workers’ compensation claim.

Gentry testified that Manner

summoned her to his office and sternly interrogated her about
her claim.

Manner, however, testified that Gentry voluntarily

approached him to discuss her claim and the ongoing problems
with her foot, and that the meeting was not hostile.

Gentry’s

workers’ compensation claim was ultimately settled at mediation
in November 2010.
In

December

Appellees,

the

2010,

Gentry

termination

was

was

terminated.

part

designed to cut the Club’s costs.

of

a

According

restructuring

to

plan

Appellees presented evidence

that the Club had been losing money since its inception and was
particularly hard hit during the recession, operating at a net
loss of approximately $2 million in both 2008 and 2009.
spring

and

summer

of

2010,

Appellees

developed

a

In the
plan

to

eliminate certain managerial positions, including Gentry’s, and
consolidate their responsibilities among fewer managers.

The

plan was put into effect in December, when Gentry and two other
department heads were terminated and eight other employees were
either terminated or had their hours reduced.

Further layoffs

occurred

of

the

housekeeping

following
department

year.
had

At
only
4

the
three

time

full-time

trial,

the

equivalent

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employees

and

the

new

performed

the

duties

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housekeeping

previously

director,

performed

by

Richard
Gentry

Smith,
and

two

other employees while continuing to perform some of his prior
maintenance duties.

According to Appellees, the restructuring

improved the Club’s financial condition and helped reduce its
losses to approximately $1.5 million in 2011 and $1 million in
2012.

Appellees

maintained

that

Gentry’s

position

was

eliminated solely to reduce costs.
Gentry, however, testified that after her termination, she
met with Maggie Valley executive Ray Hobby, who informed her
that Manner had admitted to terminating Gentry because of the
“issues with [her] ankle” and because she “could be a liability
to the club.”

J.A. 137.

Gentry also presented the testimony of

Equal Employment Opportunity Commission (EEOC) investigator John
Brigman, who had interviewed Hobby while investigating Gentry’s
EEOC charge.

According to Brigman, Hobby confirmed that Manner

had told him that Gentry was “let go due to her disability and
her liability to the club.”

J.A. 861.

Hobby denied making

these statements and further denied that Manner had made any
such statements to him.
Gentry also presented evidence to undercut Appellees’ costsaving

rationale,

including

evidence

indicating

that

Richard

Smith, who had assumed Gentry’s responsibilities, performed only
minimal maintenance duties and that his pay eventually increased
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to be only $4,000 to $5,000 less than Gentry’s.

Gentry also

established that there was no memorialization of the spring and
summer 2010 meetings at which the restructuring plan, including
her termination, was allegedly discussed.

Additionally, Maggie

Valley executive Purser McLeod testified that he only learned of
Gentry’s impending termination in the fall of 2010, when Manner
called to inform him of Gentry’s workers’ compensation claim.
No one contended that Gentry was terminated for reasons related
to her work performance; no one at Maggie Valley or East West
had ever criticized or complained about her performance, and
Hobby described her as an “outstanding” employee who “did an
excellent job.”

J.A. 209.

Gentry sued Maggie Valley and East West for (1) disability
discrimination under the ADA and North Carolina common law; (2)
sex discrimination under Title VII and North Carolina common
law; and (3) retaliation against Gentry for pursuing a workers’
compensation claim, in violation of North Carolina common law.
She also sued East West and Manner for tortiously interfering
with

her

employment

contract

with

Maggie

Valley.

After

a

weeklong trial, the jury found East West liable for workers’
compensation retaliation and awarded Gentry $10,000.
also

found

interfering

East
with

West

and

Gentry’s

Manner

employment,

liable

for

and

awarded

damages of $5,000 each against East West and Manner.
6

The jury
tortiously
separate
The jury

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found in favor of Appellees on all other claims.

After the

district court entered judgment, Gentry moved for a new trial,
which the district court denied.
On

appeal,

Gentry

This appeal followed.

argues

that

the

district

court

incorrectly instructed the jury on the causation standard for
disability discrimination claims under the ADA and on the ADA’s
definitions of disability.
court

erred

in

refusing

She further argues that the district
to

admit

evidence

liability insurance and indemnification.

of

Appellees’

Finally, she contends

that she is entitled to a new trial on damages for the claims on
which she prevailed.

Each contention is discussed in turn.

II.
We

review

discretion,
discretion

challenges

bearing
in

in

framing

to

mind
its

jury

instructions

that

“a

trial

instructions

to

for

court
a

abuse
has

jury.”

of

broad
Volvo

Trademark Holding Aktiebolaget v. Clark Mach. Co., 510 F.3d 474,
484 (4th Cir. 2007).

“Instructions will be considered adequate

if construed as a whole, and in light of the whole record, they
adequately informed the jury of the controlling legal principles
without misleading or confusing the jury to the prejudice of the
[objecting] party.”

Bunn v. Oldendorff Carriers GmbH & Co. KG,

723 F.3d 454, 468 (4th Cir. 2013) (quotation omitted).

“We

review de novo whether the district court’s instructions to the
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jury were correct statements of law.”

Emergency One, Inc. v.

Am. FireEagle, Ltd., 228 F.3d 531, 538 (4th Cir. 2000).

“Even

if a jury was erroneously instructed, however, we will not set
aside

a

resulting

verdict

unless

the

erroneous

instruction

seriously prejudiced the challenging party’s case.”

Bunn, 723

F.3d at 468 (emphasis in original) (quotation omitted).

III.
Title

I

of

the

ADA

prohibits

employers

from

“discriminat[ing] against a qualified individual on the basis of
disability

in

regard

to

.

discharge of employees.”

.

.

the

hiring,

advancement,

42 U.S.C. § 12112(a).

or

The district

court instructed the jury that Gentry had to demonstrate that
her

disability

Gentry

argues

was
that

the
this

“but-for”
was

in

cause
error,

of
as

her
the

termination.
court

should

instead have adopted Title VII’s “motivating factor” causation
standard.
Title

VII

prohibits

employers

from

“discriminat[ing]

against any individual . . . because of such individual’s race,
color, religion, sex, or national origin.”
2(a).

42 U.S.C. § 2000e-

The Civil Rights Act of 1991 (1991 Act) amended Title VII

to provide that “an unlawful employment practice is established
when

the

complaining

party

demonstrates

that

race,

color,

religion, sex, or national origin was a motivating factor for
8

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any

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employment

practice,

motivated the practice.”

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even

though

other

factors

42 U.S.C. § 2000e–2(m).

also

The 1991 Act

further provided that if a plaintiff proved a violation under
§ 2000e-2(m) but the defendant demonstrated that it “would have
taken

the

same

action

in

the

absence

of

the

impermissible

motivating factor,” a court may grant the plaintiff declaratory
relief,

attorney’s

fees

and

costs,

and

certain

injunctive

relief, but may not award monetary damages or reinstatement.
See id. § 2000e–5(g)(2)(B). 1
In
(2009),

Gross
the

v.

FBL

Supreme

Financial
Court

Services,

considered

Inc.,
whether

557

U.S.

Title

167

VII’s

“motivating factor” standard applied to claims brought under the
Age

Discrimination

in

Employment

Act

(ADEA),

which

prohibits

employers from “discriminat[ing] against any individual . . .

1

The “motivating factor” standard originated with Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), where “a plurality
of the Court and two Justices concurring in the judgment
determined that once a ‘plaintiff in a Title VII case proves
that [the plaintiff’s membership in a protected class] played a
motivating part in an employment decision, the defendant may
avoid a finding of liability only by proving by a preponderance
of the evidence that it would have made the same decision even
if it had not taken [that factor] into account.’” Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 173-74 (2009) (alterations in
original)(quoting Price Waterhouse, 490 U.S. at 258). The 1991
Act partly codified and partly rejected the Price Waterhouse
framework, and “there is no reason to think that the different
balance articulated by Price Waterhouse somehow survived that
legislation’s passage.” Univ. of Tex. Sw. Med. Ctr. v. Nassar,
——U.S.——, 133 S. Ct. 2517, 2526, 2534 (2013).

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because of such individual’s age.”

29 U.S.C. § 623(a)(1).

The

Court held that it did not, explaining:
Unlike Title VII, the ADEA’s text does not provide
that a plaintiff may establish discrimination by
showing that age was simply a motivating factor.
Moreover, Congress neglected to add such a provision
to the ADEA when it amended Title VII to add §§ 2000e–
2(m)
and
2000e–5(g)(2)(B),
even
though
it
contemporaneously amended the ADEA in several ways.
We cannot ignore Congress’ decision to amend
Title VII’s relevant provisions but not make similar
changes to the ADEA. When Congress amends one
statutory provision but not another, it is presumed to
have acted intentionally.
Gross,

557

U.S.

at

174

(citation

omitted).

Examining

the

language of the ADEA, the Court concluded that discrimination
“because

of”

age

meant

employer decided to act.”

that

“age

was

Id. at 176.

the

‘reason’

that

the

Thus, “a plaintiff must

prove that age was the ‘but-for’ cause of the employer’s adverse
decision.”

Id.

The Supreme Court’s analysis in Gross dictates the outcome
here.

The ADA’s text does not provide that a plaintiff may

establish liability by showing that disability was a motivating
factor in an adverse employment decision.

Furthermore, the 1991

Act that added the “motivating factor” standard to Title VII
“contemporaneously amended” provisions of the ADA but did not
add that standard.

See Pub. L. No. 102–166, §§ 109, 315.

We

conclude that Title VII’s “motivating factor” standard cannot be
read into Title I of the ADA.

In reaching this conclusion, we

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join the Sixth and Seventh Circuits.
Acquisition

Corp.,

681

F.3d

312

(6th

See Lewis v. Humboldt
Cir.

2012)

(en

banc);

Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir.
2010).
Gentry argues that Gross is not controlling here because
unlike the ADEA, the ADA indirectly incorporates Title VII’s
“motivating factor” standard by reference.

Specifically, the

ADA’s “Enforcement” provision states:
The powers, remedies, and procedures set forth in
sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and
2000e-9 of this title shall be the powers, remedies,
and
procedures
this
subchapter
provides
to
the
Commission, to the Attorney General, or to any person
alleging discrimination on the basis of disability in
violation of any provision of this chapter . . . .
42 U.S.C. § 12117(a).

However, while this language incorporates

Title VII’s “Enforcement provisions” in § 2000e-5, it does not
incorporate the “Unlawful employment practices” in § 2000e-2,
including

§

2000e-2(m),

which

employment practices as unlawful.

establishes

mixed

motive

See Serwatka, 591 F.3d at 962

(“[A]lthough section 12117(a) cross-references the remedies set
forth

in

section

2000e-5(g)(2)(B)

for

mixed-motive

cases,

it

does not cross-reference the provision of Title VII, section
2000e-2(m),

which

renders

employers

liable

for

mixed-motive

employment decisions.” (emphasis in original)).
Gentry
§ 2000e-2(m).

notes

that

§

2000e-5(g)(2)(B)

cross-references

However, § 2000e-5(g)(2)(B) merely specifies the
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remedies available when a plaintiff establishes a violation of
§ 2000e-2(m), that is, when a plaintiff establishes that “race,
color,
factor”
cannot

religion,
in
be

an

sex,

or

national

read

employment
as

action.

somehow

excising

origin
Section

was

§

a

motivating

2000e-5(g)(2)(B)

2000e-2(m)’s

causation

standard from its limited application to claims of race, color,
religion, sex, and national origin discrimination and applying
it

to

claims

under

the

ADA.

See

Lewis,

681

F.3d

at

320

(explaining that § 2000e-5(g)(2)(B) “does not direct judges to
apply the substantive ‘motivating factor’ standard from § 2000e2(m); it permits them only to provide a remedy for . . . a
violation under section 2000e-2(m)” (quotation omitted)).

Such

a broad reading is particularly inadvisable as Gross instructs
us

to

hew

closely

to

the

text

of

employment

discrimination

statutes. 2,3

2

Gentry’s reliance on § 2000e-5(a) is similarly unavailing,
if not more tenuous, as that section does not reference the
“motivating factor” provision but rather broadly provides that
the “Commission is empowered, as hereinafter provided, to
prevent any person from engaging in any unlawful employment
practice as set forth in section 2000e-2.”
3

Gentry asks the Court to apply the analysis of Baird ex
rel. Baird v. Rose, 192 F.3d 462 (4th Cir. 1999), an ADA Title
II case that was decided prior to Gross. In Baird, the question
facing the Court was whether to continue applying the “solely on
the
basis
of”
causation
standard,
derived
from
the
Rehabilitation Act, to ADA Title II claims. Id. at 468. After
answering that question in the negative, and without the benefit
of Gross, we determined that Title VII’s “motivating factor”
(Continued)
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Instead, to invoke Title VII’s enforcement provisions, an
ADA

plaintiff

must

allege

a

violation

violation of “this chapter.”
added).
that

a

of

the

ADA

itself—a

42 U.S.C. § 12117(a) (emphasis

As discussed above, the ADA’s text does not provide
violation

occurs

when

an

employer

acts

with

mixed

motives. 4
The only remaining question is whether the ADA’s text calls
for a “but-for” causation standard.

We hold that it does.

ADA prohibits discrimination “on the basis of” disability.
U.S.C. § 12112(a).

The
42

We see no “meaningful textual difference”

between this language and the terms “because of,” “by reason
of,” or “based on”—terms that the Supreme Court has explained
connote “but-for” causation.

See Univ. of Tex. Sw. Med. Ctr. v.

Nassar, ——U.S.——, 133 S. Ct. 2517, 2527-28 (2013).

A “basis” is

“[t]he justification for or reasoning behind something.”

Basis,

New Oxford American Dictionary (3d ed. 2010); see also Merriam-

standard should apply based on Title II’s incorporation of Title
VII’s enforcement provisions. See id. at 470. Baird, however,
is not controlling here and in light of the Supreme Court’s
subsequent guidance in Gross, we decline to extend Baird’s
analysis to this case.
4

We find the Sixth Circuit’s analysis of the ADA’s
legislative history to be well reasoned, and agree that the
legislative history does not alter our conclusion that the ADA
does not incorporate Title VII’s “motivating factor” standard.
See Lewis, 681 F.3d at 320-21.

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Webster’s Advanced Learner’s English Dictionary (2008) (defining
“on the basis of” as “according to[,] based on”).
Moreover, legislative history does not suggest that “on the
basis

of”

was

causation.

intended
As

to

mean

originally

something

enacted,

other

the

than

ADA

but-for

prohibited

discrimination “against a qualified individual with a disability
because of the disability of such individual.”
336, § 102 (1990).
changed

this

Pub. L. No. 101–

The ADA Amendments Act of 2008 (ADAAA)

language

to

its

present

form,

prohibiting

discrimination “against a qualified individual on the basis of
disability.”
to

“ensure[]

See Pub. L. No. 110-325 § 5 (2008).
that

the

emphasis

in

questions

This was done
of

disability

discrimination is properly on the critical inquiry of whether a
qualified person has been discriminated against on the basis of
disability, and not unduly focused on the preliminary question
of whether a particular person is a ‘person with a disability.’”
154 Cong. Rec. S8840-01 (Sept. 16, 2008) (Senate Statement of
Managers).

The legislative history suggests the language was

changed

decrease

to

the

emphasis

on

whether

disabled, not to lower the causation standard.

a

person

is

Finally, we note

that the amended language was enacted before Gross and therefore
not in response to Gross’s causation analysis.

14

Accordingly, we

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conclude that the district court correctly applied a “but-for”
causation standard to Gentry’s ADA claim. 5

IV.
Gentry also challenges the district court’s instructions on
the definitions of disability.

The ADA defines disability as

“(A) a physical or mental impairment that substantially limits
one or more major life activities of [an] individual; (B) a
record of such an impairment; or (C) being regarded as having
such an impairment.”

42 U.S.C. § 12102(1).

Gentry asserted all

three forms of disability and argues that the court erroneously
instructed

the

definition

of

jury

on

each.

“substantially

She

limits”

5

disputes

and

its

the

court’s

instructions

on

Gentry complains that the district court instructed the
jury that disability had to be “the but-for” cause of her
termination instead of “a but-for” cause.
While we agree that
“a but-for” cause is the appropriate formulation, we find no
abuse of discretion in the district court’s instructions.
The
Supreme Court has repeatedly used “the but-for” language.
See
Gross, 557 U.S. at 177-78 (“A plaintiff must prove . . . that
age was the ‘but-for’ cause of the challenged employer
decision.” (emphasis added)); Nassar, 133 S. Ct. at 2528 (“Title
VII retaliation claims require proof that the desire to
retaliate was the but-for cause of the challenged employment
action.”) (emphasis added).
While the district court at one
point misspoke and stated that disability had to be the sole
cause of Gentry’s termination, the court corrected itself by
providing oral and written instructions that disability need not
be the “only or sole cause” of Gentry’s termination.
See J.A.
725, 940.

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“regarded as” and “record of” disability.

These arguments are

addressed below.

A.
The

district

court

instructed

the

jury

that

“[a]n

impairment substantially limits a major life activity, if it
prevents or significantly restricts a person from performing the
activity,

compared

population.”

to

J.A.

an

average

697.

person

Gentry

did

in

not

the

object

general
to

this

instruction, which was similar to the one she had proposed. 6
On appeal, however, Gentry argues that the “prevents or
significantly

restricts”

ADAAA.

ADAAA

The

protection”

sought

after

inappropriately

the

high

the

ADAAA

to

of

is

too

demanding

“reinstat[e]

Supreme

level

coverage under the ADA.”
Specifically,

standard

Court

limitation

a
had

broad

under
scope

“created

necessary

to

the
of
an

obtain

Pub. L. No. 110–325, § 2(b)(1),(5).
rejected

the

standard

enunciated

in

Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S.
184,

198

(2002),

that

to

be

substantially

limiting,

an

impairment must “prevent[] or severely restrict[]” a major life
6

Gentry
proposed
the
instruction:
“[a]n
impairment
‘substantially limits’ a major life activity if it prevents or
restricts a person from walking, standing, lifting, and bending
compared to the average person in the general population.” J.A.
54.

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activity.
directed

Filed: 03/04/2016

See
the

Pub.

L.

EEOC

No.

to

Pg: 17 of 29

110–325,

revise

§

its

2(b)(5).

The

regulation

ADAAA

defining

“substantially limits” to reflect this broadened understanding
of

“disability.”

See

id.

§

2(b)(6).

EEOC

regulations

now

provide that “[a]n impairment need not prevent, or significantly
or severely restrict, the individual from performing a major
life activity in order to be considered substantially limiting.”
29 C.F.R. § 1630.2(j)(ii).
Because

Gentry

did

not

object

to

instruction, we review for plain error.

the

district

court’s

On plain error review,

Gentry must establish (1) that the district court erred; (2)
that the error was plain; and (3) that the error affected her
substantial rights, meaning that “there must be a reasonable
probability that the error affected the outcome of the trial.”
United States v. McDonnell, 792 F.3d 478, 502 (4th Cir. 2015)
(quoting United States v. Marcus, 560 U.S. 258, 262 (2010)).
“The mere possibility that the error affected the outcome of the
trial” does not suffice.

Id.

Even then, the error “should only

be corrected where not doing so would result in a ‘miscarriage
of

justice’

fairness,

or

would

integrity

proceedings.’”

otherwise
or

public

‘seriously
reputation

affect[
of

]

the

judicial

United States v. Robinson, 627 F.3d 941, 954

(4th Cir. 2010) (alteration in original) (quoting United States
v. Olano, 507 U.S. 725, 736 (1993)).
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Even if we assume that the district court’s instruction was
erroneous and that the error was plain, Gentry has not shown
that it affected her substantial rights.
to

suggest

that

her

disability

Gentry offers little

discrimination

claims

failed

because the jury believed that her impairment did not meet the
district court’s definition of “substantially limits.”

She does

not contend that Appellees argued to the jury that the standard
for “disability” was demanding or that Gentry’s impairment was
insufficiently severe.

Nor does she demonstrate that the extent

of

a

her

impairment

was

seriously

contested

issue

at

trial.

Moreover, there are ample facts from which the jury could have
found that her termination was not the result of an impairment
to

her

foot,

regardless

of

how

severe.

Gentry

was

not

terminated until more than three years after her injury and more
than two years after her surgery.

At no point did her employers

complain about her ability to perform her job duties.
trial

testimony

considered

her

to

indicated
be

an

that

excellent

they,

including

employee.

The

In fact,
Manner,
strongest

evidence Gentry presented of disability discrimination was that
Manner allegedly admitted to Hobby that Gentry was terminated
“due to her disability.”

J.A. 161.

If the jury credited this

evidence, it is unlikely they would nevertheless find in favor
of Appellees because they believed Gentry’s impairment did not
constitute a disability.

On this record, we cannot say there is
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a “reasonable probability” that the district court’s instruction
affected

the

outcome

of

Gentry’s

disability

discrimination

claims.

Finally, Gentry offers no argument as to how failure to

correct

the

district

court’s

instruction

would

result

in

a

miscarriage of justice or would seriously affect the fairness,
integrity,

or

public

reputation

of

the

judicial

proceedings.

Accordingly, we find that Gentry has failed to satisfy the plain
error standard.

B.
Gentry

next

contends

that

the

the

jury

the

“regarded

instructing

on

definition of disability.

district
as”

court

erred

prong

of

in
the

The district court instructed that

“disability . . . discrimination laws are designed to protect
individuals who . . . may be perceived as disabled from being
discriminated

against

in

the

workplace”

and

that

“you

must

decide whether . . . a perception that [Gentry] was disabled,
was the ‘but for’ reason that [Appellees] . . . terminate[d] her
employment.”
whether

J.A. 698-99.

Gentry’s

“disability,

The verdict form similarly asked
a

record

of

disability,

or

a

perception by [Appellees] that [Gentry] had a disability” was
the “but-for” reason for her termination.

See J.A. 733-34.

Gentry argues that the court should have instructed that
Gentry

satisfied

the

“regarded
19

as”

prong

if

she

was

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discriminated
physical

or

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against
mental

Pg: 20 of 29

“because

impairment

of

an

whether

actual
or

not

or

perceived

the

impairment

limits or is perceived to limit a major life activity.”
U.S.C.

§

12102(3)(A);

J.A.

55.

Gentry

contends

See 42

that

this

language, which was added by the ADAAA, is important because “a
plaintiff no longer needs to show that the employer thought that
the

employee

activity;”

had

a

instead,

substantial
a

plaintiff

limitation
need

only

in

a

show

major
that

life

adverse

action was taken because of the plaintiff’s impairment, “without
regard to how serious the employer thought that it was.”

Br. of

Appellant 41.
Assuming that Gentry properly preserved an objection to the
court’s instruction, we do not see how she was prejudiced by it. 7
The

court

instructed

that

Appellees

were

liable

if

they

discriminated against Gentry because they perceived her to be
disabled, which conveyed that Gentry did not actually have to be
disabled.

Gentry’s

primary

evidence

of

disability

discrimination was that Manner allegedly stated that Gentry was
terminated “due to her disability.”

7

See J.A. 161.

If the jury

At trial, Gentry merely stated that “the regarded as
definition was not in there.
I was just wondering whether to
include that.” J.A. 723. We question whether this qualifies as
“stating distinctly the matter objected to and the grounds for
the objection,” Fed. R. Civ. P. 51(c), but will assume arguendo
that it does.

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believed that evidence, the instruction informed the jury that
Gentry’s termination was unlawful.
the

court’s

instruction

was

Thus, even if we assume that

erroneous,

the

error

did

not

seriously prejudice Gentry.
Moreover, the district court acted within its discretion
when

it

determined

that

the

full

“regarded

as”

instruction

proposed by Gentry was not warranted under the circumstances of
the case.

After hearing all of the evidence, and mindful that

the jury would already be grappling with complex and nuanced
instructions on multiple discrimination and related claims under
state

and

federal

law,

the

court

declined

to

give

the

full

instruction, stating:
I will not go beyond that. The evidence with regard to
disability is the statement. If they believe the
statement, they are going to get that anyway. If they
can fight their way through the confusion of this
thing to get to the disability claim, you have got a
possibility of winning this. On the rest of this
stuff, you have a hard row to hoe.
J.A. 723.
We find no abuse of discretion and no serious prejudice to
Gentry

that

warrants

vacating

the

verdict

on

her

disability

discrimination claims.

C.
Finally, Gentry challenges the district court’s instruction
on “record of” disability.

EEOC regulations provide that “[a]n
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individual has a record of a disability if the individual has a
history of, or has been misclassified as having, a mental or
physical impairment that substantially limits one or more major
life activities.”
the

district

29 C.F.R. § 1630.2(k)(1).

court

improperly

shortened

Gentry argues that
this

definition

by

omitting the “misclassified” clause.
Gentry did not object to the district court’s instruction
below

and

on

appeal

she

does

language applies to her case.

not

explain

how

the

omitted

We therefore have no basis for

finding that the district court erred or otherwise abused its
discretion.

V.
We move next to Gentry’s challenges to the damages the jury
awarded on her state law claim against East West for workers’
compensation retaliation and on her claims against East West and
Manner for tortious interference with a contract.

For these

claims, the jury was instructed that it could award damages for
back pay, front pay, emotional pain and suffering, and nominal
damages.

The jury was further instructed that Gentry had to

mitigate her damages using reasonable diligence, which “requires
the

employee

locality.”

seek

and

J.A. 710.

accept

similar

employment

in

the

same

The court instructed that if Appellees

proved that Gentry failed to mitigate, the jury was to reduce
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her damages based on what she could have earned using reasonable
diligence.

Ultimately, the jury awarded $10,000 against East

West for workers’ compensation retaliation and $5,000 against
East West and Manner each for tortious interference.

On appeal,

Gentry argues that the district court erred in denying Gentry’s
motion to introduce evidence of East West’s insurance coverage
and indemnification and in denying her motion for a new trial on
damages.

A.
Gentry argues that the jury’s damages award was tainted by
Appellees’ belaboring of their poor financial condition.
claims

that

impression

this
that

“poor
a

mouthing”

significant

left

the

judgment

jury

would

Gentry

with
be

the

overly

burdensome, and that she should have been allowed to dispel this
impression

by

presenting

evidence

of

East

West’s

liability

insurance and its indemnification agreement with Maggie Valley.
We review evidentiary rulings for abuse of discretion and
“will only overturn an evidentiary ruling that is arbitrary and
irrational.”

Noel v. Artson, 641 F.3d 580, 591 (4th Cir. 2011)

(quoting United States v. Cole, 631 F.3d 146, 153 (4th Cir.
2011)).

We find no basis for overturning the district court’s

ruling here.

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While Gentry is correct that Appellees testified at length
about the Club’s financial losses, that evidence was central to
their defense that Gentry was terminated as part of an effort to
reduce

the

evidence

of

Club’s
the

costs.
Club’s

Although
financial

Appellees
condition

also

presented

after

Gentry’s

termination, that evidence was arguably relevant to demonstrate
that

their

pretextual.

cost-saving

efforts

were

effective

and

not

Moreover, Gentry points to nothing in the record

indicating that Appellees claimed that they could not pay the
judgment

or

suggested

that

the

jury

should

consider

their

financial condition in determining the damages to award. 8
Gentry also does not explain how evidence of the Club’s
financial losses would reflect on the ability of East West and
Manner to pay the judgment, as they did not own the Club. 9
only

“poor

mouthing”

specific

to

these

entities

that

The

Gentry

identifies is that East West lost numerous clients as a result

8

These considerations, as well as the fact that punitive
damages were not at issue here, distinguish this case from those
cited by Gentry. See Lawson v. Towbridge, 153 F.3d 368, 378-80
(7th Cir. 1998); Kemezy v. Peters, 79 F.3d 33, 37 (7th Cir.
1996); Mathie v. Fries, 121 F.3d 808, 816 (2d Cir. 1997); Adkins
v. McClanahan, No. 1:12CV00034, 2013 WL 5202402, at *4 (W.D. Va.
Sept. 16, 2013).
9

The agreement between Maggie Valley and East West in the
record indicates that East West received a fixed management fee
with the potential for a bonus based on the Club’s performance.
See J.A. 781, 798.

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of the recession, and Manner voluntarily took a pay cut from his
$140,000 salary and had not received a bonus in the two years
prior to trial.

The district court did not abuse its discretion

in finding this “poor mouthing” insufficient to open the door to
evidence of East West’s insurance coverage and indemnification. 10
Finally,

as

the

district

court

noted,

the

jury

was

instructed to award Gentry “fair compensation” for her damages.
See, e.g., J.A. 708.

Gentry has not overcome the presumption

that the jury followed the court’s instructions, see McDonnell,
792

F.3d

at

503,

and

did

not

base

its

award

on

Appellees’

ability to pay.
In short, we find no abuse in the district court’s refusal
to

admit

evidence

indemnification.
prohibited

by

of

East

West’s

insurance

coverage

and

While such evidence may not have been strictly

Federal

Rule

of

Evidence

411,

as

it

was

not

offered to show that Appellees “acted negligently or otherwise
wrongfully,” the court was within its discretion to find that
the evidence’s probative value was substantially outweighed by
the danger of unfair prejudice.

See Fed. R. Evid. 403; J.A. 79.

10

We note that Gentry was in fact permitted to show the
jury the indemnification clause in the contract between Maggie
Valley and East West, though she was not permitted to ask
further questions about the clause’s application. See J.A. 30305.

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B.
Finally, Gentry argues that she is entitled to a new trial
on

damages

because

the

jury’s

$20,000

award

was

inadequate.

Gentry’s damages expert, Dr. Richard Bohm, testified that Gentry
incurred back pay damages of $133,093 and front pay damages of
$297,568.

Gentry concludes that the jury “apparently found that

Plaintiff failed to mitigate her damages” and reduced her award.
Br. of Appellant 53.

She argues that this was against the clear

weight of the evidence, and thus the district court erred in
denying her motion for a new trial.

See Cline v. Wal-Mart

Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998) (explaining that
the

district

court

is

to

grant

a

new

trial

where

“(1)

the

verdict is against the clear weight of the evidence, or (2) is
based upon evidence which is false, or (3) will result in a
miscarriage of justice, even though there may be substantial
evidence which would prevent the direction of a verdict”).
“‘We

review

for

abuse

of

discretion

a

district

court’s

denial of a motion for new trial,’ and ‘will not reverse such a
decision save in the most exceptional circumstances.’”

Bunn,

723 F.3d at 468 (quoting Figg v. Schroeder, 312 F.3d 625, 641
(4th Cir. 2002)).

“We commit this decision to the district

court because the district judge is in a position to see and
hear

the

witnesses

and

is

able

to

view

the

case

perspective that an appellate court can never match.”
26

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a

Bristol

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Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 186
(4th Cir. 1994)(quotation omitted).

The “crucial inquiry” on

review is “whether an error occurred in the conduct of the trial
that was so grievous as to have rendered the trial unfair.”

Id.

(quotation omitted).
We find that Gentry has not met her substantial burden of
showing that the district court abused its discretion.

Gentry

asks us to infer that the jury reduced her award because of her
failure to mitigate.

This, however, is speculative.

The jury

was not required to specify the type of damages it awarded nor
the basis for the award.
jury

did

not

fully

It is possible, for example, that the

credit

Dr.

Bohm’s

testimony

regarding

Gentry’s damages, including his assumption that Gentry’s salary
would

have

steadily

increased

had

she

not

been

terminated.

Appellees presented ample evidence that the Club was cutting
costs, including after Gentry’s termination, and the jury could
infer that Gentry’s salary, which was relatively high among the
Club’s staff, would have decreased.
With respect to mitigation, Gentry presented evidence that
she

sought

making

employment

from

December
week

two

contacts

per

unemployment

benefits,

and

as

sometimes

2010

to

December

required
more.

2011,

to

maintain

Gentry

testified

that she limited her search to Haywood County because of family
responsibilities

and

because

she
27

experienced

anxiety

driving

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long distances.

Pg: 28 of 29

She obtained a part-time position from March

2011 to December 2011, when she switched to another part-time
position

that

occupational

became
expert

full-time
testified

in

September

that

Gentry’s

2012.
job

Gentry’s
search

was

reasonable and that she obtained the best job available in light
of her circumstances.

Appellees’ vocational expert testified

that Gentry’s search was inadequate, primarily because Gentry
made an insufficient number of contacts and because she limited
her search to Haywood County when there were more opportunities
at higher salaries in neighboring Buncombe and Jackson Counties.
The jury was not required to accept Gentry’s assertion that
she was restricted to seeking jobs in Haywood County and could
have found that her refusal to seek jobs elsewhere, coupled with
the

cessation

despite

of

having

her

job

only

search

part-time

efforts
work,

after
did

December

not

2011

constitute

“reasonable diligence.” 11
On appeal, Gentry argues that the duty to mitigate “is not
onerous”

and

does

not

require

“engag[ing]

in

commute to search for a high-paying position.”
52,

56.

She

cites

several

11

cases

in

an

additional

Br. of Appellant

support

of

these

We also note that evidence in the record indicated that
Gentry received unemployment benefits after her termination.
See J.A. 372.
Per the district court’s instructions, the jury
was permitted to reduce the award on that ground. See J.A. 710.

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propositions.

However,

Pg: 29 of 29

Gentry

did

not

propose

any

such

instructions to the district court nor did she object to the
instructions that the court gave.

See Curley v. Standard Motor

Prods., Inc., 27 F.3d 562, at *2 (4th Cir. 1994) (unpublished
table decision) (affirming denial of motion for a new trial that
was

“based

primarily

on

objections

which

were

foreclosed

by

[party’s] failure to object to the introduction of evidence, and
[party’s]

approval

of,

or

failure

to

object

to

the

court’s

instructions”); see also Bryant v. Mathis, 278 F.2d 19, 20 (D.C.
Cir.

1960)

(affirming

denial

of

motion

for

a

new

trial

on

damages where plaintiff was entitled to, but did not request,
instruction
compensation

that

lost

from

a

wages

were

collateral

recoverable
source).

notwithstanding
Under

these

circumstances, we affirm the district court’s denial of Gentry’s
motion for a new trial.

VI.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED

29