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:
Decided:
March 4, 2016
her
employment
was
terminated,
Appellant
Judith
Because we
I.
The following facts were adduced at trial.
Prior to her
The Club is
Partners
Club
Management
Company,
Inc.
(East
West)
to
operate the Club, and in October 2008, East West hired Appellee
Jay Manner as the Clubs general manager.
In July 2007, Gentry fell at work, injuring her left foot
and
ankle.
She
filed
for
workers
compensation
benefits.
Peter
Mangone,
October 2008.
who
performed
surgery
on
Gentrys
ankle
in
restrictions,
though
she
difficulty walking.
continued
to
experience
pain
and
He noted that she could perform her full job duties but
Gentry declined,
instead
pursued
mediation.
In
October
2010,
insurance
expressed
surprise
at
Gentrys
According to Smith,
concerns
about
being
J.A. 183.
struggling
particular
Manner,
financially
individuals
however,
had
generally
and
been
considering
identified
denied
making
layoffs,
for
no
termination.
these
statements.
Gentry
denied
making
filed
these
another
claim
statements.
3
against
Manner
the
Club.
then
called
Smith
the
principals
of
Maggie
Valley
and
East
West
and
relayed
his
Gentrys
December
Appellees,
the
2010,
Gentry
termination
was
was
terminated.
part
of
According
restructuring
to
plan
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
In the
plan
to
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
employees
and
the
new
performed
the
duties
housekeeping
previously
director,
performed
by
Richard
Gentry
Smith,
and
two
Appellees
maintained
that
Gentrys
position
was
J.A. 137.
had told him that Gentry was let go due to her disability and
her liability to the club.
J.A. 861.
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
Gentry also
Additionally, Maggie
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
weeklong trial, the jury found East West liable for workers
compensation retaliation and awarded Gentry $10,000.
also
found
interfering
East
with
West
and
Gentrys
Manner
employment,
liable
for
and
awarded
The jury
tortiously
separate
The jury
After the
appeal,
Gentry
argues
that
the
district
court
erred
in
refusing
admit
evidence
of
Appellees
II.
We
review
discretion,
discretion
challenges
bearing
in
in
framing
to
mind
its
jury
instructions
that
trial
instructions
to
for
court
a
abuse
has
jury.
of
broad
Volvo
We
Am. FireEagle, Ltd., 228 F.3d 531, 538 (4th Cir. 2000).
Even
resulting
verdict
unless
the
erroneous
instruction
Bunn, 723
III.
Title
of
the
ADA
prohibits
employers
from
in
regard
to
discharge of employees.
the
hiring,
advancement,
42 U.S.C. 12112(a).
or
The district
disability
Gentry
argues
was
that
the
this
but-for
was
in
cause
error,
of
as
her
the
termination.
court
should
VII
prohibits
employers
from
discriminat[ing]
42 U.S.C. 2000e-
The Civil Rights Act of 1991 (1991 Act) amended Title VII
the
complaining
party
demonstrates
that
race,
color,
any
employment
practice,
even
though
other
factors
42 U.S.C. 2000e2(m).
also
the
same
action
in
the
absence
of
the
impermissible
attorneys
fees
and
costs,
and
certain
injunctive
Gross
the
v.
FBL
Supreme
Financial
Court
Services,
considered
Inc.,
whether
557
U.S.
Title
167
VIIs
Discrimination
in
Employment
Act
(ADEA),
which
prohibits
29 U.S.C. 623(a)(1).
The
557
U.S.
at
174
(citation
omitted).
Examining
the
of
age
meant
that
age
was
Id. at 176.
the
reason
that
the
prove that age was the but-for cause of the employers adverse
decision.
Id.
We
10
Corp.,
681
F.3d
312
(6th
2012)
(en
banc);
Specifically, the
2000e-2(m),
which
establishes
mixed
motive
in
section
2000e-5(g)(2)(B)
for
mixed-motive
cases,
it
which
renders
employers
liable
for
mixed-motive
notes
that
2000e-5(g)(2)(B)
cross-references
religion,
in
be
an
sex,
or
national
read
employment
as
action.
somehow
excising
origin
Section
was
motivating
2000e-5(g)(2)(B)
2000e-2(m)s
causation
to
claims
under
the
ADA.
See
Lewis,
681
F.3d
at
320
Such
to
hew
closely
to
the
text
of
employment
discrimination
statutes. 2,3
plaintiff
must
allege
violation
of
the
ADA
itselfa
occurs
when
an
employer
acts
with
mixed
motives. 4
The only remaining question is whether the ADAs text calls
for a but-for causation standard.
The
42
A basis is
Basis,
New Oxford American Dictionary (3d ed. 2010); see also Merriam-
13
of
was
causation.
intended
As
to
mean
originally
something
enacted,
other
the
than
ADA
but-for
prohibited
this
language
to
its
present
form,
prohibiting
ensure[]
the
emphasis
in
questions
disability
changed
decrease
to
the
emphasis
on
whether
person
is
Finally, we note
that the amended language was enacted before Gross and therefore
not in response to Grosss causation analysis.
14
Accordingly, we
IV.
Gentry also challenges the district courts instructions on
the definitions of disability.
42 U.S.C. 12102(1).
the
definition
of
jury
on
each.
substantially
She
limits
disputes
and
its
the
courts
instructions
on
15
addressed below.
A.
The
district
court
instructed
the
jury
that
[a]n
compared
population.
to
J.A.
an
average
697.
person
Gentry
did
in
not
the
object
general
to
this
restricts
ADAAA.
ADAAA
The
protection
sought
after
inappropriately
the
high
the
ADAAA
to
of
is
too
demanding
reinstat[e]
Supreme
level
standard
Court
limitation
a
had
broad
under
scope
created
necessary
to
the
of
an
obtain
the
standard
enunciated
in
198
(2002),
that
to
be
substantially
limiting,
an
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.
16
activity.
directed
See
the
Pub.
L.
EEOC
No.
to
110325,
revise
its
2(b)(5).
The
regulation
ADAAA
defining
disability.
See
id.
2(b)(6).
EEOC
regulations
now
Gentry
did
not
object
to
the
district
courts
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.
justice
fairness,
or
would
integrity
proceedings.
otherwise
or
public
seriously
reputation
affect[
of
the
judicial
suggest
that
her
disability
discrimination
claims
failed
because the jury believed that her impairment did not meet the
district courts definition of substantially limits.
She does
not contend that Appellees argued to the jury that the standard
for disability was demanding or that Gentrys impairment was
insufficiently severe.
of
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.
testimony
considered
her
to
indicated
be
an
that
excellent
they,
including
employee.
The
In fact,
Manner,
strongest
J.A. 161.
the
outcome
of
Gentrys
disability
discrimination
claims.
correct
the
district
courts
instruction
would
result
in
or
public
reputation
of
the
judicial
proceedings.
B.
Gentry
next
contends
that
the
the
jury
the
regarded
instructing
on
definition of disability.
district
as
court
erred
prong
of
in
the
against
in
the
workplace
and
that
you
must
J.A. 698-99.
Gentrys
disability,
record
of
disability,
or
satisfied
the
regarded
19
as
prong
if
she
was
discriminated
physical
or
against
mental
because
impairment
of
an
whether
actual
or
not
or
perceived
the
impairment
12102(3)(A);
J.A.
55.
Gentry
contends
See 42
that
this
employee
activity;
had
instead,
substantial
a
plaintiff
limitation
need
only
in
show
major
that
life
adverse
Br. of
Appellant 41.
Assuming that Gentry properly preserved an objection to the
courts instruction, we do not see how she was prejudiced by it. 7
The
court
instructed
that
Appellees
were
liable
if
they
Gentrys
primary
evidence
of
disability
If the jury
20
courts
instruction
was
erroneous,
the
error
did
not
it
determined
that
the
full
regarded
as
instruction
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 courts instruction
on record of disability.
district
29 C.F.R. 1630.2(k)(1).
court
improperly
shortened
definition
by
and
on
appeal
she
does
not
explain
how
the
omitted
V.
We move next to Gentrys 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.
employee
locality.
seek
and
J.A. 710.
accept
similar
employment
in
the
same
her damages based on what she could have earned using reasonable
diligence.
On appeal,
A.
Gentry argues that the jurys 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
Wests
liability
(quoting United States v. Cole, 631 F.3d 146, 153 (4th Cir.
2011)).
ruling here.
23
the
evidence
of
Clubs
the
costs.
Clubs
Although
financial
Appellees
condition
also
presented
after
Gentrys
their
pretextual.
cost-saving
efforts
were
effective
and
not
indicating that Appellees claimed that they could not pay the
judgment
or
suggested
that
the
jury
should
consider
their
poor
mouthing
specific
to
these
entities
that
The
Gentry
24
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.
as
the
district
court
noted,
the
jury
was
F.3d
at
503,
and
did
not
base
its
award
on
Appellees
ability to pay.
In short, we find no abuse in the district courts refusal
to
admit
evidence
indemnification.
prohibited
by
of
East
Wests
insurance
coverage
and
Federal
Rule
of
Evidence
411,
as
it
was
not
10
25
B.
Finally, Gentry argues that she is entitled to a new trial
on
damages
because
the
jurys
$20,000
award
was
inadequate.
Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998) (explaining that
the
district
court
is
to
grant
new
trial
where
(1)
the
review
for
abuse
of
discretion
district
courts
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)).
the
witnesses
and
is
able
to
view
the
case
from
Bristol
Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 186
(4th Cir. 1994)(quotation omitted).
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.
The jury
did
not
fully
credit
Dr.
Bohms
testimony
regarding
have
steadily
increased
had
she
not
been
terminated.
sought
making
employment
from
December
week
two
contacts
per
unemployment
benefits,
and
as
sometimes
2010
to
December
required
more.
2011,
to
maintain
Gentry
testified
and
because
she
27
experienced
anxiety
driving
long distances.
that
occupational
became
expert
full-time
testified
in
September
that
Gentrys
2012.
job
Gentrys
search
was
reasonable and that she obtained the best job available in light
of her circumstances.
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
56.
She
cites
several
11
cases
in
an
additional
Br. of Appellant
support
of
these
28
propositions.
However,
Gentry
did
not
propose
any
such
based
primarily
on
objections
which
were
foreclosed
by
approval
of,
or
failure
to
object
to
the
courts
1960)
(affirming
denial
of
motion
for
new
trial
on
damages where plaintiff was entitled to, but did not request,
instruction
compensation
that
lost
from
wages
were
collateral
recoverable
source).
notwithstanding
Under
these
VI.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
29