Jeffrey Kapche v. Eric Holder, Jr.

Filing

OPINION filed [1368684] (Pages: 25) for the Court by Judge Henderson [11-5017, 11-5018]

USCA Case #11-5017

Document #1368684

Filed: 04/13/2012

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 20, 2012

Decided April 13, 2012

No. 11-5017
JEFFREY KAPCHE,
APPELLANT/CROSS-APPELLEE
v.
ERIC H. HOLDER, JR.,
ATTORNEY GENERAL OF THE UNITED STATES,
APPELLEE/CROSS-APPELLANT

Consolidated with 11-5018

Appeals from the United States District Court
for the District of Columbia
(No. 1:07-cv-2093)

John W. Griffin, Jr. argued the cause for the
appellant/cross-appellee. Katherine L. Butler and David
Cashdan were on brief.
Michael A. Greene was on brief for amicus curiae
American Diabetes Association in support of the
appellant/cross-appellee.
Lindsey Powell, Attorney, United States Department of
Justice, argued the cause for the appellee/cross-appellant.

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Tony West, Assistant Attorney General, Ronald C. Machen
Jr., United States Attorney, and Marleigh D. Dover, Attorney,
were on brief. Anisha S. Dasgupta, Attorney, United States
Department of Justice, and R. Craig Lawrence, Assistant
United States Attorney, entered appearances.
Before: HENDERSON, GARLAND and BROWN, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Jeffrey
Kapche (Kapche) sued United States Attorney General Eric
H. Holder, Jr. (Holder), alleging that the Federal Bureau of
Investigation (FBI) refused to hire him as a special agent
because of his Type 1 diabetes in violation of the
Rehabilitation Act of 1973 (Act), 29 U.S.C. §§ 701 et seq. A
jury found in favor of Kapche and awarded him $100,000 in
compensatory damages. Subsequently, the district court
denied both Holder’s motion for judgment as a matter of law
and Kapche’s request for equitable relief. Kapche appeals the
denial of equitable relief and Holder cross-appeals the denial
of judgment as a matter of law. For the following reasons, we
affirm the district court.
I. Facts
Kapche is a Type 1 insulin-dependent diabetic who
manages his condition by injecting himself with insulin
several times daily and managing his diet, exercise and blood
sugar. Kapche applied for a special agent position with the
FBI in February 2002, and, in November 2004, the FBI
offered Kapche a conditional offer of employment pending
Kapche’s successful completion of a medical examination and
background investigation. On January 23, 2005, the FBI
revoked Kapche’s conditional offer because it determined he

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could not adequately manage his diabetes and that
consequently he would be unable to perform certain functions
of a special agent.
Kapche then filed an internal
discrimination complaint alleging that the FBI declined to hire
him because of his diabetes. The FBI and Kapche agreed to a
settlement pursuant to which the FBI reinstated Kapche’s
conditional offer of employment and resumed processing his
application.
As part of its reconsideration, the FBI conducted a
Personnel Security Interview (PSI) with Kapche on
November 22, 2006 during which Kapche represented that he
had never been disciplined by a current or former employer.
In a follow-up inquiry with his then-employer, the Fort Bend
County (TX) Sheriff’s Office (FBCSO), however, the FBI
learned that the FBCSO had suspended Kapche for two weeks
and placed him on 180 days’ probation for unauthorized use
of gasoline from FBCSO’s gasoline tank in September 2005.
After giving Kapche an opportunity to explain his omission
during the PSI, the FBI concluded that Kapche’s explanation
varied from the explanation he had provided his FBCSO
supervisors. Based on its conclusion, the FBI decided that
Kapche was unsuitable for employment as a special agent
because of a proven lack of candor and, on March 1, 2007,
revoked his conditional offer of employment.
On March 14, 2007, Kapche filed a complaint under
section 501 of the Act, 29 U.S.C. § 791(g), against thenAttorney General Alberto Gonzales challenging the FBI’s
January 2005 decision to revoke his conditional offer. 1
1

Kapche originally filed his complaint in the United States
District Court for the Southern District of Texas but, on the
defendant’s motion, the case was transferred to the United States
District Court for the District of Columbia. See Order at 10,
Kapche v. Gonzales, No. 6:07-cv-0031 (S.D. Tex. Nov. 2, 2007).

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Kapche argued that he was protected under the Act because
his Type 1 diabetes substantially limited several of his major
life activities, including eating and caring for himself, and
was therefore a disability within the meaning of the Act. On
May 20, 2009, a jury returned a verdict in Kapche’s favor,
finding that the FBI had unlawfully discriminated against him
and awarding him $100,000 in compensatory damages. 2
Holder moved for judgment as a matter of law under Federal
Rule of Civil Procedure 50, asserting that there was
insufficient evidence to support the jury’s determination that
Kapche suffered from a disability. According to Holder, the
evidence did not establish that Kapche’s Type 1 diabetes
substantially limited him in any major life activity. The
district court denied the motion, concluding that Kapche
produced sufficient evidence to support the jury’s
determination that “Kapche’s Type 1 insulin-dependent
diabetes substantially limit[ed] the manner in which he
perform[ed] the major life activities of eating and caring for
himself when compared to an average person in the general
population.” Mem. Order at 4, Kapche v. Holder, No. 1:07cv-2093 (D.D.C. Sept. 11, 2009) (brackets in original; internal
quotation marks omitted).
The district court then considered what equitable relief, if
any, Kapche was entitled to under the “make whole” rubric. 3
2

At a pre-trial hearing, the district court determined that the
FBI’s January 2005 revocation was the relevant employment action
and that the FBI’s “after-acquired reasons for not hiring [Kapche]”
were relevant only with regard to the availability of equitable
remedies. Tr. of Pretrial Conf. at 3-4, Kapche v. Holder, No. 1:07cv-2093 (D.D.C. Apr. 20, 2009). The district court accordingly
excluded any evidence of Kapche’s alleged lack of candor or of the
underlying incident involving the FBCSO. Id.
3

The Act borrows from Title VII of the Civil Rights Act of
1964 in setting out the remedies available for disability

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After a hearing and briefing by the parties, the court denied
Kapche’s motion to preclude Holder from applying his afteracquired evidence defense to Kapche’s request for equitable
relief. It determined that Kapche was entitled to neither front
pay nor instatement because Holder had presented afteracquired evidence that the FBI would have revoked Kapche’s
conditional offer of employment on March 1, 2007 regardless
of his diabetes because of his proven lack of candor during his
background investigation. As to back pay, the court accepted
Holder’s expert’s testimony that Kapche earned more at the
FBCSO than he would have earned as an FBI special agent
between January 23, 2005 and March 1, 2007. The district
court then ordered that final judgment be entered in Kapche’s
favor in the amount of $100,000 with costs. 4
Kapche timely appealed as did Holder on cross-appeal.
We turn to Holder’s cross-appeal first and then address
Kapche’s appeal.
II. Denial of Judgment as a Matter of Law
We review de novo the denial of a motion for judgment
as a matter of a law but “[w]e do not . . . lightly disturb a jury
verdict.” Novak v. Capital Mgmt. & Dev. Corp., 570 F.3d
305, 311 (D.C. Cir. 2009) (modifications in original; internal
discrimination. See 29 U.S.C. § 794a(a)(1); infra note 12. “[T]he
purpose of Title VII [is] to make persons whole for injuries suffered
on account of unlawful employment discrimination.” Albemarle
Paper Co. v. Moody, 422 U.S. 405, 418 (1975).
4

The district court also denied Kapche’s motion to alter
judgment pursuant to Federal Rule of Civil Procedure 59(e). See
Order at 1-3, Kapche v. Holder, No. 1:07-cv-2093 (D.D.C. Nov. 30,
2010). Kapche appealed this denial as well but he has forfeited the
issue because he failed to pursue it in his opening brief. See Am.
Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008)
(issue not argued in opening brief is “forfeited . . . on appeal”).

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quotation marks omitted). Judgment as a matter of law “is
proper if ‘the court finds that a reasonable jury would not
have a legally sufficient evidentiary basis to find for’ the
nonmoving party.” Breeden v. Novartis Pharm. Corp., 646
F.3d 43, 53 (D.C. Cir. 2011) (quoting Fed. R. Civ. P.
50(a)(1)).
Section 501 of the Act, 29 U.S.C. § 791(g), prohibits
federal agencies from discriminating in employment on the
basis of a disability. At the time of the challenged
discrimination, a disability was defined in relevant part as “a
physical or mental impairment which substantially limits one
or more . . . major life activities.” 29 U.S.C. § 705(20)(B)(i)
(2006); see Desmond v. Mukasey, 530 F.3d 944, 946
(D.C. Cir. 2008). In assessing Kapche’s claim, the court
employs the same standards used to determine liability under
the Americans with Disabilities Act of 1990 (ADA), 42
U.S.C. §§ 12111 et seq. See 29 U.S.C. § 791(g); 5 Desmond,
530 F.3d at 952 (applying ADA employment discrimination
standards to Rehabilitation Act claim). Holder does not
dispute that Kapche’s Type 1 diabetes is a “physical
impairment” or that eating and caring for oneself are “major
life activities.” 6 He argues, however, that no reasonable jury
5

29 U.S.C. § 791(g) provides that “[t]he standards used to
determine whether [Section 501] has been violated in a complaint
alleging nonaffirmative action employment discrimination under
[Section 501] shall be the standards applied under title I of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.)
and the provisions of sections 501 through 504, and 510, of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204
and 12210), as such sections relate to employment.” 29 U.S.C.
§ 791(g).
6

Other circuit courts have decided that eating is a major life
activity. See, e.g., Carreras v. Sajo, Garcia & Partners, 596 F.3d
25, 34 (1st Cir. 2010); Waldrip v. Gen. Elec. Co., 325 F.3d 652,

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could have found that Kapche’s Type 1 diabetes
“substantially limits” his eating or caring for himself.
Determining whether an individual is substantially
limited in a major life activity is an “individualized inquiry”
and the effects—“both positive and negative”—of any
measures “a person is taking . . . to correct for, or mitigate, a
physical or mental impairment . . . must be taken into account
when judging whether that person is ‘substantially limited’ in
a major life activity.” Sutton v. United Air Lines, Inc., 527
U.S. 471, 482, 483 (1999). 7 “A ‘disability’ exists only where
an impairment ‘substantially limits’ a major life activity, not
where it ‘might,’ ‘could,’ or ‘would’ be substantially limiting
if mitigating measures were not taken.” Id. at 482. The
plaintiff “must show that [his] limitation was substantial as
compared to the average person in the general population,”
Desmond, 530 F.3d at 955 (internal quotation marks and
citation omitted); however, an impairment need not cause an
“utter inabilit[y]” to perform a major life activity in order for
it to constitute a substantial limitation. Bragdon v. Abbott,
524 U.S. 624, 641 (1998).
655 (5th Cir. 2003); Fraser v. Goodale, 342 F.3d 1032, 1039-40
(9th Cir. 2003); Lawson v. CSX Transp., Inc., 245 F.3d 916, 923
(7th Cir. 2001); Land v. Baptist Med. Ctr., 164 F.3d 423, 424 (8th
Cir. 1999); Forest City Daly Hous., Inc. v. Town of N. Hempstead,
175 F.3d 144, 151 (2d Cir. 1999).
7

Because the conduct at issue preceded the ADA Amendments
Act of 2008, the pre-amendment standards to determine liability
govern here. Lytes v. D.C. Water & Sewer Auth., 572 F.3d 936,
939-42 (D.C. Cir. 2009) (ADA Amendments Act of 2008 does not
apply retroactively). The 2008 Act provides, inter alia, that “the
determination of whether an impairment substantially limits a major
life activity shall be made without regard to the ameliorative effects
of mitigating measures.” Pub. L. 110-325, 122 Stat. 3553, 3556
(2008) (codified at 42 U.S.C. § 12102(4)(E)(i)).

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“The analysis of when and under what conditions
diabetes is considered a disability for ADA purposes is a
matter of degree.” Carreras v. Sajo, Garcia & Partners, 596
F.3d 25, 34 (1st Cir. 2010) (internal quotation marks and
citation omitted). Although we have not addressed whether
Type 1 insulin-dependent diabetes substantially limits the
major life activity of eating, we note that several sister circuits
have done so.
In Branham v. Snow, 392 F.3d 896
(7th Cir. 2004), the court concluded that a federal employee’s
Type 1 diabetes substantially limited his major life activity of
eating because “[h]is dietary intake is dictated by his diabetes,
and [he] must respond, with significant precision, to the blood
sugar readings he takes four times a day.” Id. at 903.
Although the employee’s treatment regimen kept his diabetes
under control, the court emphasized that he “is never free to
eat whatever he pleases because he risks both mild and severe
bodily reactions if he disregards his blood sugar readings. He
must adjust his diet to compensate for any greater exertion,
stress, or illness that he experiences.” Id. at 903-04.
Likewise, in Lawson v. CSX Transp., Inc., 245 F.3d 916
(7th Cir. 2001), the court concluded that a diabetic with “a
perpetual, multi-faceted and demanding treatment regime”
requiring “continued vigilance” was substantially limited in
his ability to eat. Id. at 924 (internal quotation marks
omitted). The plaintiff in Lawson took multiple blood tests
daily and could not “simply eat when and where he wants to,
or exert himself without concern for the effect the exertion
will have on his glucose levels.” Id. (internal quotation marks
omitted).
On the other hand, in Griffin v. United Parcel Service,
Inc., 661 F.3d 216 (5th Cir. 2011), the court concluded that
“modest adjustments to . . . diet,” namely “proportion control
and not tak[ing] quick sugar-containing foods,” and taking a
“once-daily insulin shot” did not substantially limit a person’s
eating. Id. at 222-24 (brackets in original; internal quotation

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marks omitted). In reaching its conclusion, the court also
noted that “even when [the diabetic] makes mild deviations
from his dietary plan, the consequences are not imminently
dangerous.” Id. at 223. Similarly, in Scheerer v. Potter, 443
F.3d 916 (7th Cir. 2006), the court held that the employee’s
diabetes did not substantially limit his eating where the
“predominant purpose of his dietary restrictions was to lose
weight” and the dietary restrictions were not “of the type of
severe dietary restrictions that if not followed would lead to
dire and immediate consequences.” Id. at 920 (internal
quotation marks and citation omitted); see also Shultz v.
Potter, 142 F. App’x 598, 599 (3d Cir. 2005) (per curiam)
(diabetes not substantially limiting because “condition has no
significant effect on [diabetic’s] diet: it merely requires her to
watch what she eats more carefully, have a snack if her blood
sugar is low, and take insulin if it becomes too high” (internal
quotation marks and citation omitted)); Collado v. United
Parcel Serv., Co., 419 F.3d 1143, 1156 (11th Cir. 2005) (no
substantial limitation on eating based on plaintiff’s testimony
that “with proper self monitoring, [he is] in no way limited by
[his] diabetes in what [he] do[es] during the day or how [he]
do[es] it”).
Kapche’s restrictions fall on the more limiting side of the
spectrum. He takes insulin “every time [he] eat[s],” Tr. of
Jury Trial at 539, Kapche v. Holder, No. 1:07-cv-2093
(D.D.C. May 13, 2009) (Trial Transcript), and checks his
blood sugar level three to five times daily using a finger prick.
Moreover, he must be “cognizant of what [he’s] eating and
how much [he’s] eating.” Id. at 541. Before eating anything,
he must calculate the amount of carbohydrates he is about to
ingest and adjust his insulin levels accordingly. And, while
Kapche can eat or drink whatever he wants, he must
constantly monitor and adjust his insulin levels and food
intake to keep his blood sugar level within a safe range.
Kapche must also adjust his insulin shots and food intake in

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response to exercise and illness because of their effect on his
blood sugar level. For example, when sick, Kapche may
check his blood sugar level “eight or more times in a day . . .
[to] make sure that it doesn’t spike or . . . raise[][sic] too
high.” Id. at 543. As these measures suggest, Kapche’s
treatment regimen is “a constant battle every day.” Id. at 540.
Kapche’s medical expert, Dr. James Gavin (Gavin), also
attested to the limitations that Kapche’s diabetes and his
treatment regimen place on his eating, stating that Kapche
must “exercise constant vigilance on [his] blood sugar
[level].” Trial Transcript at 474. As Gavin testified,
“[Kapche] doesn’t have the prerogative to simply eat what he
wants when he wants. Everything has to be calculated and
planned because everything has consequences.” Id. at 465.
Thus, if Kapche’s “blood sugar is already very high, [he]
ha[s] to wait” to eat until his blood sugar level drops. He
“can’t simply decide to [eat] because [he] feel[s] like doing
it.” 8 Id. at 470. Similarly, Kapche “doesn’t have the luxury
of simply engaging in physical activity, doing exercise, or
participating in what might be strenuous leisure time activity
without considering what the consequences could be.” Id. at
465.
From this evidence, a jury could reasonably conclude
that Kapche’s diabetes and treatment regimen therefor
“substantially limit[]” his major life activity of eating and that
Kapche is therefore disabled within the meaning of the Act. 9

8

“Consequences” of Type 1 diabetes include hypoglycemia (too
low blood sugar) and hyperglycemia (too high blood sugar) as well
as longer-term consequences such as heart disease, kidney disease,
nerve disease and blindness. See Branham, 392 F.3d at 903.
9

Because of our conclusion regarding the major life activity of
eating, we need not decide whether a jury could reasonably

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Although Kapche’s treatment regimen allows him to control
his diabetes, the treatment regimen itself substantially limits
his major life activity of eating. It “involves . . . the
coordination of multifaceted factors [and] . . . constant
vigilance” and he must “adhere strictly to [his] demanding
regimen” “to avoid dire and immediate consequences.”
Lawson, 245 F.3d at 924-25; see also Branham, 392 F.3d at
903 (“Even after the mitigating measures of his treatment
regimen, he is never free to eat whatever he pleases because
he risks both mild and severe bodily reactions if he disregards
his blood sugar readings.”). Kapche “must always concern
himself with the availability of food, the timing of when he
eats, and the type and quantity of food he eats.” Lawson, 245
F.3d at 924 (internal quotation marks and citation omitted).
And “[h]e must adjust his diet to compensate for any greater
exertion . . . or illness that he experiences.” Branham, 392
F.3d at 903-04. “It is the severity of these limitations on his
ability to eat that distinguishes [Kapche’s] situation from that
of other individuals who must follow the simple ‘dietary
restrictions’ that medical conditions [like diabetes] sometimes
entail.” 10 Lawson, 245 F.3d at 924-25 (citation omitted).
Accordingly, the district court did not err in denying Holder’s
motion for judgment as a matter of law. 11
conclude that Kapche’s diabetes treatment
substantially limited his ability to care for himself.

regimen

also

10

Some diabetics may have more severe eating limitations than
Kapche, see, e.g., Fraser v. Goodale, 342 F.3d 1032, 1041-43
(9th Cir. 2003), but our inquiry focuses on whether Kapche’s
diabetes and control regimen substantially limit his eating “as
compared to the average person in the general population.”
Desmond, 530 F.3d at 955 (internal quotation marks and citation
omitted).
11

Holder suggests that a finding of disability in this case is
“tantamount to holding that Type 1 diabetics are disabled per se—a

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Holder alleges other errors by the district court in
denying his motion for judgment as a matter of law but they
are without merit. First, as discussed supra, the record
evidence sufficiently established that Kapche’s diabetes and
treatment regimen rendered him disabled within the meaning
of the Act. Second, the district court properly considered
Gavin’s testimony that “Kapche is subject to a number of
severe limitations in terms of his eating and the way he cares
for himself.” Trial Transcript at 465. Gavin’s testimony did
not constitute an impermissible legal conclusion because
Gavin did not use terms that “have a separate, distinct and
specialized meaning in the law different from that present in
the vernacular.” Burkhart v. Washington Metro. Area Transit
Auth., 112 F.3d 1207, 1212 (D.C. Cir. 1997) (expert
testimony that means of communication employed were not
“ ‘as effective’ ” as means of communication with others
constituted impermissible legal conclusion because phrase
was “lifted directly from the text of the Attorney General
regulations implementing the ADA” and “the phrase as used
in the regulations is a term of art with a meaning ‘separate’
and ‘distinct’ from the vernacular” (internal citation omitted)).
Read in context, Gavin simply gave his “opinion as to facts
that, if found, would support a conclusion that the legal
standard at issue was satisfied”; Gavin did not testify “as to
whether the legal standard has been satisfied.” Id. at 1212-13.
conclusion that is at odds with Sutton and the decisions of other
circuits.” Appellee’s Br. 22. In Sutton v. United Air Lines, Inc.,
supra, the United States Supreme Court observed that “[a] diabetic
whose illness does not impair his or her daily activities” is not
“disabled” under the ADA. Sutton, 527 U.S. at 483. Our holding
today is consistent with this observation because, based on the
individualized inquiry we must undertake to determine whether a
person has a disability, Kapche’s diabetes and treatment regimen do
substantially “impair his . . . daily activit[y]” of eating. Id.

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And third, in holding that Kapche produced sufficient
evidence to establish that his treatment regimen substantially
limited his eating, the district court did not err in noting the
consequences of Kapche’s failure to adhere to his treatment
regimen. Although the holding in Sutton, supra, makes clear
that a disability does not exist where an impairment “ ‘might,’
‘could,’ or ‘would’ be substantially limiting if mitigating
measures were not taken,” Sutton, 527 U.S. at 482, the
district court did not rely on the consequences to conclude
that Kapche’s diabetes substantially limits his eating. Rather,
the district court cited the consequences because they explain
why Kapche must exercise vigilance in monitoring and
controlling his diet, exercise and blood sugar and,
consequently, why his treatment regimen substantially limits
his eating.
See Branham, 392 F.3d at 903 (noting
consequences of failing to follow dietary restrictions to
explain why diabetic “is never free to eat whatever he
pleases”).
III. Denial of Equitable Relief
We turn to Kapche’s appeal challenging the district
court’s denial of equitable relief. Kapche asserts that the
district court erred in denying him front pay or instatement
based on Holder’s after-acquired evidence defense and in
determining that Kapche was not entitled to back pay based
on the testimony of Holder’s expert witness. 12 We “review[]
equitable relief, the standard for calculating back pay and
12

Pursuant to section 505 of the Act, the district court is
authorized to order the “hiring of employees, with or without back
pay . . . or any other equitable relief as the court deems
appropriate.” 42 U.S.C. § 2000e-5(g); see 29 U.S.C. § 794a(a)(1)
(remedies for employment discrimination in violation of 29 U.S.C.
§ 791 include those “set forth in . . . 42 U.S.C. 2000e-5(f) through
(k)”).

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front pay, under an abuse of discretion standard.” Peyton v.
DiMario, 287 F.3d 1121, 1125 (D.C. Cir. 2002). “A ‘district
court has wide discretion to award equitable relief,’ ” and it
“ ‘should fashion this relief so as to provide a victim of
employment discrimination the most complete make[-]whole
relief possible.’ ” Id. at 1126 (quoting Barbour v. Merrill, 48
F.3d 1270, 1278 (D.C. Cir. 1995)).
A. Front Pay / Reinstatement
As to the denial of front pay or instatement, Kapche
alleges that the district court committed several errors most of
which relate to Holder’s after-acquired evidence defense.
Although evidence of the plaintiff’s wrongdoing acquired
subsequent to an employer’s discriminatory hiring decision
does not negate liability, it is relevant in determining whether
equitable relief is available to the plaintiff. McKennon v.
Nashville Banner Publ’g Co., 513 U.S. 352, 360-63 (1995).
“[A]s a general rule . . . , neither reinstatement nor front pay is
an appropriate remedy” if the employer has after-acquired
evidence of wrongdoing “of such severity that the employee
in fact would have been terminated on those grounds alone if
the employer had known of it at the time of the discharge.”
Id. at 362, 363. Kapche contends Holder did not timely raise
the defense under Federal Rule of Civil Procedure 8(c) and
did not sufficiently make out the defense even if timely
raised. Finally, Kapche contends the district court abused its
discretion with respect to several discovery rulings.
1.
Kapche first contends that Holder forfeited his afteracquired evidence defense by failing to plead it sufficiently
under Rule 8(c), which provides that “[i]n responding to a
pleading, a party must affirmatively state any . . . affirmative
defense.” Fed. R. Civ. P. 8(c)(1). “[I]t is well-settled that [a]
party’s failure to plead an affirmative defense . . . generally

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results in the waiver of that defense and its exclusion from the
case.” Harris v. Sec’y, U.S. Dep’t of Veterans Affairs, 126
F.3d 339, 343 (D.C. Cir. 1997) (internal quotation marks
omitted; emphasis removed). Rule 8(c) “gives the opposing
party notice of the defense . . . and permits the party to
develop in discovery and to argue before the District Court
various responses to the affirmative defense.” Id. We have
not decided if the after-acquired evidence defense is an
affirmative defense subject to Rule 8(c) and we need not do
so here because, assuming arguendo that it is an affirmative
defense, Holder’s amended answer sufficiently alleged it. 13
In his amended answer filed April 2, 2008, Holder
averred that “[Kapche] was not appointed as a Special Agent
for legitimate non-discriminatory reasons, and would not have
been appointed as a Special Agent even in the absence of his
diagnosis and treatment for Type 1 diabetes.” Def.’s Am.
Answer to Pl.’s First Am. Compl. at 2, Kapche v. Holder, No.
1:07-cv-2093 (D.D.C. Apr. 2, 2008). Kapche argues that this
averment is insufficient because his complaint related to the
FBI’s January 2005 decision to revoke Kapche’s conditional
offer of employment. The record makes clear, however, that
Holder adequately asserted the after-acquired evidence
defense with respect to the FBI’s March 2007 decision to
revoke Kapche’s conditional offer because Kapche had
“notice of the [defense], conducted discovery on the issue,
and had ample opportunity to respond.” FEC v. Nat’l Rifle
Ass’n of Am., 254 F.3d 173, 189 (D.C. Cir. 2001); see also
Daingerfield Island Protective Soc’y v. Babbitt, 40 F.3d 442,
444 (D.C. Cir. 1994) (“The purpose of [Rule 8(c)] is to put
13

Nor have we expressly decided whether a district court ruling
on the timely assertion vel non of an affirmative defense is subject
to de novo or abuse of discretion review. Again, we need not
decide the standard here, however, because under either standard
the district court did not err.

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opposing parties on notice of affirmative defenses and to
afford them the opportunity to respond to the defenses.”).
One week before Kapche filed his complaint in this case,
the FBI informed Kapche that it was withdrawing his
conditional offer of employment because of his “failure to
provide pertinent and accurate information during applicant
processing.” Letter from Bonnie Adams, Chief of Applicant
Adjudication Unit, to Jeffrey Kapche at 1 (Mar. 1, 2007).
Thus, when Holder alleged in his answer that the FBI had
“legitimate non-discriminatory reasons” for not hiring
Kapche, Kapche was already on notice of what those reasons
were. Moreover, in his response to Kapche’s first set of
discovery requests, Holder argued that due to Kapche’s
“exhibited lack of candor during an FBI investigation in 2006,
[Kapche] is no longer eligible to become an FBI agent or
entitled to compensation as an FBI agent as of that date.”
Def.’s Resp. to Pl.’s First Set of Disc. Reqs. at 22, Kapche v.
Holder, No. 1:07-cv-2093 (D.D.C. Mar. 6 2008). In noticing
Holder’s deposition, Kapche declared his intent to depose
Holder regarding the allegation and he later served a
discovery request referencing the “FBI’s guidelines for
reviewing background investigations for special agent
applicants.” Pl.’s Second Set of Disc. Reqs. at 4, Kapche v.
Holder, No. 1:07-cv-2093 (D.D.C. July 30, 2008) (Second
Discovery Request).
Kapche successfully excluded all
testimony on the defense from the jury trial; the district court
also afforded Kapche an opportunity in the form of briefing
and a hearing to rebut the defense post-trial. Accordingly,
Holder sufficiently asserted the after-acquired evidence
defense. See Nat’l Rifle Ass’n of Am., 254 F.3d at 189.
2.
Kapche next contends that the district court erred by
allowing the after-acquired defense because Holder failed to
demonstrate that the FBI’s practice is to deny employment to

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applicants who demonstrate a lack of candor. To establish the
defense, Holder must demonstrate that the FBI “would have
[revoked Kapche’s conditional offer] because of the
misconduct, not simply that it could have done so.” Frazier
Indus. Co. v. NLRB, 213 F.3d 750, 760 (D.C. Cir. 2000)
(emphases in original); see also Hartman Bros. Heating & Air
Conditioning, Inc. v. NLRB, 280 F.3d 1110, 1115 (7th Cir.
2002) (employer establishes after-acquired evidence defense
“if . . . the employer unearths evidence that . . . would have
caused him, without fault, to refuse to hire the employee”).
To do so, Holder must establish “that [the FBI’s] practice has
been to dismiss employees for similar [conduct].” Frazier
Indus., 213 F.3d at 760. We conclude that Holder adequately
established that (1) Kapche demonstrated a lack of candor
during his background investigation regarding his suspension
by the FBCSO and (2) the FBI’s policy and practice is to
refuse to hire an applicant for proven lack of candor.
According to his FBCSO personnel file, Kapche initially
denied taking gasoline from the FBCSO gas tank without
permission when confronted by his FBCSO supervisor but
later admitted it and explained that he did so in case he and
his family lost electricity during Hurricane Rita. In his
second FBI interview, Kapche said he had not recalled the
FBCSO incident at the November 2006 PSI and further that
he understood any record of the incident had been removed
from his FBCSO personnel file. He then explained that he
took the gasoline for use in his vehicle in preparation for
working long shifts due to Hurricane Rita. Tracy Johnson
(Johnson), the FBI adjudicator responsible for recommending
whether Kapche was suitable for employment, noted the
inconsistent explanations Kapche gave the FBCSO and the
FBI for why he took the gasoline without authorization. In a
memorandum to Sharon Magargle (Magargle), a program
manager in the FBI’s Applicant Adjudication Unit, Johnson
communicated her findings and recommended that the FBI

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discontinue Kapche’s application. See Kapche Adjudication
Recommendation at 4 (Mar. 1, 2007) (Recommendation).
Magargle reviewed and accepted Johnson’s recommendation
and subsequently revoked Kapche’s conditional offer of
employment. Magargle testified that the decision to revoke
Kapche’s conditional offer for a proven lack of candor “was a
slam dunk” and “not a close call . . . at all.” Tr. of
Evidentiary Hearing at 234, 235, Kapche v. Holder, No.
1:07-cv-2093 (D.D.C. Oct. 21, 2009) (Evidentiary Hearing).
Bonnie Adams (Adams), who, as chief of the FBI’s Applicant
Adjudication Unit, is ultimately responsible for all
unsuitability decisions, testified similarly that Kapche’s
proven lack of candor was “clear cut.”
Id. at 180.
Accordingly, the district court did not err in finding that the
FBI treated inconsistent representations like Kapche’s as
demonstrating lack of candor. See Frazier Indus., 213 F.3d at
760.
The FBI’s suitability guidelines used to determine
whether an applicant is eligible for employment provide that
“[d]eliberate omissions from or misrepresentations of facts”
and “[m]isrepresentation of facts pertaining to derogatory
information developed during current/previous background
investigation” are “[i]ssues, absent mitigating circumstances,
[that] may be disqualifying.” FBI Application Adjudication
Unit, Suitability Guidelines at 5 (2007) (emphasis in original).
Although the guidelines indicate that the FBI’s decision
finding Kapche unsuitable for employment is a discretionary
one, Holder also introduced evidence that the FBI’s usual
practice is not to hire an applicant for proven lack of candor.
See Frazier Indus., 213 F.3d at 760 (if policy gives employer
“potential option” to dismiss employee for certain
misconduct, employer must “provide[] . . . evidence that its
practice has been to dismiss employees for similar
[misconduct]”). Adams testified that “when a proven lack of
candor is discovered, the applicants are deemed unsuitable for

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FBI employment.” Evidentiary Hearing at 132. Adams also
stated that out of 800 unsuitability decisions made in 2007,
about 100 were for “failure to provide pertinent and/or
accurate information, or lack of candor.” Id. at 153-54.
Magargle also testified that, of the decisions she has made
finding an applicant unsuitable for employment, “[t]he
majority are [for] lack of candor.” Id. at 234. The FBI’s
policy and practice makes sense in light of a special agent’s
position of public trust and because a “proven lack of candor”
can affect a special agent’s credibility in testifying on behalf
of the government at trial. See O’Day v. McDonell Douglas
Helicopter Co., 79 F.3d 756, 762 (9th Cir. 1996) (“[O]ften the
only proof an employer will have is . . . a company policy
forbidding the conduct and the testimony of a company
official that the conduct would have resulted in immediate
discharge.”); id. (in determining employer established it
would have discharged employee, it is “significant” that
company policy and testimony “is corroborated by . . .
common sense”).
Kapche introduced evidence that the FBI hired previously
two applicants despite their lack of candor. In neither case,
however, did the FBI determine that the applicant
“deliberate[ly] omi[tted] and misrepresent[ed] . . . facts
pertaining to derogatory information developed during his
Background Investigation” as it did in Kapche’s case.
Recommendation at 4. Kapche’s two examples involved
instances of “reported lack of candor,” not “proven lack of
candor,” and Adams’s testimony makes clear that a report of
misconduct not confirmed by the FBI’s independent
investigation is not a barrier to employment. In contrast,
Kapche’s case involved a “proven lack of candor” because the
FBI’s review of Kapche’s FBCSO personnel file and
Kapche’s re-interview “prove[d] [Kapche was] being less
than honest” about his previous misconduct. Evidentiary
Hearing at 132. Accordingly, the district court did not err in

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allowing Holder’s after-acquired evidence defense because he
adequately established that the FBI “would have terminated
[Kapche’s] employment for his misconduct.” Frazier Indus.,
213 F.3d at 760. 14
3.
Kapche also alleges that the district court erred in
allowing Holder to use Magargle as a witness at the remedy
hearing in violation of Federal Rule of Civil Procedure
37(c)(1) and in denying him additional discovery related to
Johnson, Kapche’s polygraph examination results and other
matters relating to the after-acquired evidence defense. “ ‘We
review district court rulings on discovery matters solely for
abuse of discretion,’ reversing only if the party challenging
the decision can show it was ‘clearly unreasonable, arbitrary,
or fanciful.’ ” Bowie v. Maddox, 642 F.3d 1122, 1136 (D.C.
Cir. 2011) (quoting Charter Oil Co. v. Am. Emp’rs’ Ins. Co.,
69 F.3d 1160, 1171 (D.C. Cir.1995)).
Rule 37(c)(1) provides that “[i]f a party fails to provide
information or identify a witness as required by Rule 26(a) or
(e), the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is harmless.”
14

Kapche’s claim that the after-acquired evidence defense is
inapplicable because his misconduct arose as a result of the FBI’s
revocation of his initial offer is without merit.
Kapche’s
misconduct—both taking the gasoline and, more importantly, his
subsequent lack of candor to the FBI—was not “occasioned by” the
revocation of his initial offer. Medlock v. Ortho Biotech, Inc., 164
F.3d 545, 555 (10th Cir. 1999). That is, the FBI’s revocation of
Kapche’s conditional offer was not the proximate cause of
Kapche’s subsequent misconduct. See id. (no after-acquired
evidence defense if “alleged misconduct arises as a direct result of
[illegal] termination” (emphasis added)).

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Fed. R. Civ. P. 37(c)(1). Rule 26(a) requires a party to
disclose, inter alia, “the name . . . of each individual likely to
have discoverable information . . . that the disclosing party
may use to support its claims or defenses.” Fed. R. Civ. P.
26(a)(1)(A)(i).
Rule 26(e)(1)(A) imposes a duty to
supplement a Rule 26(a) disclosure but only “if the additional
or corrective information has not otherwise been made known
to the other parties during the discovery process or in
writing.” Fed. R. Civ. P. 26(e)(1)(A). Although Holder did
not include Magargle in his initial disclosure, her identity
nevertheless became known to Kapche during discovery.
Holder produced Johnson’s memorandum to Magargle
recommending that the FBI “discontinue[]” Kapche’s
application, Recommendation at 1; during Adams’s
deposition, Kapche’s lawyer asked her questions about
Magargle; and Kapche sought discovery of “[e]mails and
documents from or to Sharon Magargle about Jeff Kapche.”
Second Discovery Request at 4. Also, at a pretrial hearing,
the district court identified Magargle as a potential witness on
“equitable issues.” Tr. of Pretrial Conf. at 3, Kapche v.
Holder, No. 1:07-cv-2093 (D.D.C. Apr. 20, 2009). Because
Magargle’s identity was “made known” to Kapche, Holder
had no obligation to supplement his disclosures pursuant to
Rule 26(e)(1)(A) and therefore the district court did not err in
allowing Magargle to testify at the equitable relief hearing. 15
15

Holder had no obligation to supplement his discovery
disclosure regarding Johnson for the same reason, namely,
Johnson’s identity and related information were “made known” to
Kapche during discovery. Holder produced Johnson’s memo to
Magargle and Kapche asked Adams questions about Johnson
during Adams’s deposition. Moreover, the district court did not err
in denying Kapche’s request to depose Johnson: Kapche’s lawyer
expressly disclaimed any interest in deposing Johnson for strategic
reasons, fearing that her deposition would “supply a missing
element of [Holder’s] defense.” Evidentiary Hearing at 295;

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Fed. R. Civ. P. 37(c)(1); Fed. R. Civ. P. 26(e)(1)(A); see also
English v. Dist. of Columbia, 651 F.3d 1, 13 (D.C. Cir. 2011)
(no abuse of discretion in declining to strike testimony under
Rule 37(c)(1) if “government’s failure to supplement its
disclosure was harmless”).
Kapche’s other discovery-related claims are also
meritless. Although the district court did not allow Kapche
access to the unredacted results of his polygraph examination
conducted in December 2006, the district court reviewed the
unredacted polygraph results in camera and determined they
were immaterial to Holder’s after-acquired evidence
defense. 16 Mem. at 4 n.2, Kapche v. Holder, No. 1:07-cv2093 (D.D.C. May 29, 2010) (May Memorandum); see
United States v. Sampol, 636 F.2d 621, 682 (D.C. Cir. 1980)
(per curiam) (no abuse of discretion where district court
reviewed document in camera and “concluded that it
contained nothing exculpatory, that there were no
discrepancies between the affidavits and the contents of the
file and that it was not material to the preparation of the
defense”). As to the FBI’s database of hiring records, we
cannot say the district court abused its discretion in declining
to draw an inference adverse to Holder for failing to produce
the database given Kapche’s failure to raise any claim
cf. Nemaizer v. Baker, 793 F.2d 58, 62 (2d Cir. 1986) (“[A]n
attorney’s failure to evaluate carefully the legal consequences of a
chosen course of action provides no basis for relief from a
judgment.”).
16

Kapche makes much of the fact that he “passed” a polygraph
examination following his PSI in November 2006, indicating he
never intended to deceive the FBI about the earlier disciplinary
action. It does not appear, however, that Kapche was asked about
his lack of candor during the polygraph examination and, as noted
above, the court decided that the results were irrelevant to Holder’s
defense.

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regarding the database. See Overnite Transp. Co. v. NLRB,
140 F.3d 259, 266 n.1 (1998) (“[T]he decision of whether to
draw an adverse inference has generally been held to be
within the discretion of the fact finder.”). 17
B. Back Pay
Finally, Kapche alleges that the district court erred in not
awarding him back pay. In reviewing the district court’s
decision on the amount of back pay owed, we consider
“whether the decision maker failed to consider a relevant
factor, whether [the decision maker] relied on an improper
factor, and whether the reasons given reasonably support the
conclusion.” Barbour v. Merrill, 48 F.3d 1270, 1278
(D.C. Cir. 1995) (internal quotation marks omitted). The
appropriate measure of any back pay owed Kapche is
“back[]pay from the date of the unlawful discharge to the date
the new information was discovered.” McKennon, 513 U.S.
at 362. The district court determined that Kapche was entitled
to back pay for the period from January 23, 2005—when the
FBI revoked his first conditional offer—to March 1, 2007—
when the FBI revoked his second conditional offer. The court
awarded him no back pay, however, because it determined
that Kapche earned more working for the FBCSO during that
26-month period than he would have earned as a special
agent.
The district court credited the declaration of Holder’s
expert, William Carrington (Carrington), over Kapche’s
expert, Amy McCarthy (McCarthy), that Kapche earned more
in salary and benefits during the relevant period working at
the FBCSO than he would have earned in salary and benefits
17

At the equitable relief hearing, Kapche’s lawyer told the court
he sought additional discovery only on issues relating to back pay
and Kapche failed to identify the database in his post-hearing
motion for further discovery.

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as a special agent. Carrington calculated the net present value
of the salary and benefits Kapche earned at the FBCSO and of
the hypothetical salary and benefits he would have earned as a
special agent. 18 Kapche’s FBCSO retirement benefits had
already vested but his FBI retirement benefits would not have
vested during the relevant time period. 19 Consequently,
Carrington included the vested retirement benefits in his
calculation of Kapche’s FBCSO salary and benefits and
excluded the unvested retirement benefits in his calculation of
Kapche’s hypothetical FBI salary and benefits. In contrast,
McCarthy deferred the value of Kapche’s vested FBCSO
retirement benefits but included the value of his unvested FBI
retirement benefits in calculating back pay. In his second
declaration, Carrington discussed the errors in McCarthy’s
calculation and the court noted that “[a]fter adjustment for
[McCarthy’s] errors, [McCarthy’s] calculation would also
result in a negative back pay figure.” May Memorandum at 8.
Kapche never contested Carrington’s critique. 20
Given the uncontested errors in McCarthy’s calculations
and Carrington’s consistent use of a net present value
18

Carrington calculated that Kapche made $11,934 more in his
position with the FBCSO than he would have earned as a special
agent. McCarthy calculated that Kapche would have made $38,871
more as a special agent than he earned with the FBCSO.
19

Kapche’s FBCSO retirement benefits were generous: he
received a 2 for 1 match up to 7 per cent of his income and he was
guaranteed a 7 per cent annual return. By contrast, Kapche
acquired no retirement benefits as a special agent until he had
worked for the federal government for five years. See 5 U.S.C.
§ 8410 (employee “must complete at least 5 years of civilian
service” to be eligible for federal retirement benefits).
20

Despite seeking leave to file a response (which Holder did not
oppose), Kapche did not do so. See Pl.’s Mot. To Strike, Kapche v.
Holder, No. 1:07-cv-2093 (D.D.C. Nov. 20, 2009).

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methodology in calculating Kapche’s salary and benefits, we
conclude the district court did not abuse its discretion in
denying back pay because it reasonably credited Carrington’s
back pay calculation. See Downes v. Volkswagon of Am.,
Inc., 41 F.3d 1132, 1142 (7th Cir. 1994) (no abuse of
discretion if front pay award “was based on appropriate
evidence and reasonably informed estimates [by plaintiff’s
expert]” and defendant “never objected to [plaintiff’s
expert’s] evidentiary submissions on the front pay issue”); see
also EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1276
(11th Cir. 2002) (no abuse of discretion in “crediting the back
pay calculation of the EEOC’s expert economist”); Thomas v.
Nat’l Football League Players Ass’n, No. 96-7242, 1998 WL
1988451 at *9 (D.C. Cir. Feb. 25, 1998) (no abuse of
discretion where district court “weigh[ed] expert testimony”
to determine time period for which back pay was owed).
For the foregoing reasons, we affirm the district court’s
judgment denying Holder’s motion for judgment as a matter
of law and denying Kapche equitable relief.
So ordered.

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