Whitbeck v. Vital Signs, Inc.

• Decision Date: 20 June 1997
• Docket Number: No. 96-7193,96-7193
• Citation: 116 F.3d 588,325 U.S. App. D.C. 244
• Parties: , 6 A.D. Cases 1540, 10 NDLR P 122 Beverly A. WHITBECK, Appellant, v. VITAL SIGNS, INC., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 588

116 F.3d 588

325 U.S.App.D.C. 244, 6 A.D. Cases 1540,

10 NDLR P 122

Beverly A. WHITBECK, Appellant, v. VITAL SIGNS, INC., Appellee.

No. 96-7193.

United States Court of Appeals District of Columbia Circuit.

Argued April 2, 1997

Decided June 20, 1997

Appeal from the United States District Court for the District of Columbia (No. 95cv01011).

Michael G. Kane, Washington, DC, argued the cause, for appellant. With him on the briefs were Vicki G. Golden and David R. Cashdan.

Lisa S. Grosskreutz, Morristown, NJ, argued the cause, for appellee. With her on the briefs were Pamela J. Moore, Morristown, NJ, and Joseph P. Harkins, Washington, DC.

Robert J. Gregory, Attorney, Equal Employment Opportunity Commission, argued the cause, for amicus curiae Equal Opportunity Employment Commission. With him on the brief were C. Gregory Stewart, General Counsel, Louisville, KY, J. Ray Terry, Jr., Deputy General Counsel, Memphis, TN, and Vincent J. Blackwood, Assistant General Counsel, Washington, DC.

Before: EDWARDS, Chief Judge, WALD and TATEL, Circuit Judges.

TATEL, Circuit Judge:

In this suit under the District of Columbia Human Rights Act, appellant alleges that her employer denied her reasonable accommodation and discharged her because of her disability. Finding her claim barred by her receipt of disability benefits and her requested reasonable accommodation not required by the Act, the magistrate judge entered summary judgment for her employer. We reverse. The receipt of disability benefits does not bar a Human Rights Act suit, and appellant raises genuine issues of material fact with respect to her reasonable accommodation claim.

I

In 1992, appellee Vital Signs, Inc., a medical equipment manufacturing company, took over Biomedical Dynamics for which appellant Beverly Whitbeck was working as a sales representative. During her final year at Biomedical, Whitbeck sold approximately $900,000 of medical equipment, accounting for over ten percent of the company's eight million dollar annual sales. Vital Signs offered Whitbeck a job, guaranteeing her $84,000 for her first year. Whitbeck began working for Vital Signs on September 7, 1992.

In February of 1993, Whitbeck began feeling weakness in her legs. Within a few days she could barely walk. Diagnosed with a tumor on her spinal cord, she had surgery on March 8. Following several weeks of hospitalization and rehabilitation and able to move around only with the help of a walker or wheelchair, Whitbeck returned home on May 7.

Almost immediately, Whitbeck began working from her home office, increasing her work load as she grew stronger. In July, with the aid of a driver she hired and paid (Vital Signs subsequently reimbursed her), Whitbeck again began calling on customers. With her car outfitted with hand controls and a wheelchair rack, Whitbeck was making sales calls on her own by September of 1993. Dispensing with her wheelchair in early 1994, Whitbeck was able to visit her customers with the aid of a cane and a sample bag on wheels.

Maintaining regular customer contacts by phone, fax, and mail, Whitbeck made field calls only two or three days a week--fewer than her pre-disability four-and-a-half-day-a-week average. Despite the decrease in sales calls, Whitbeck ranked in the forties out of more than one hundred salespeople, performing better than other sales representatives from her region.

Sometime in early 1994 and no longer receiving her guaranteed first-year salary, Whitbeck applied for and began receiving "residual disability" benefits from her private insurer, Royal Maccabees. Maccabees provides residual disability benefits to insured persons who, though working, have had their income reduced by more than 20% as a result of accident or sickness.

On April 15, 1994, Whitbeck visited her neurologist, Dr. Jorge Kattah, telling him that she was having difficulty doing her job because she had trouble walking long distances. Explaining that her condition was unlikely to improve, Kattah suggested she use a motorized cart to move around at work. As a result, in an event central to this case, Whitbeck raised the issue of a motorized cart during a conversation with her supervisor, Sherry Henricks, on April 28, 1994. Whitbeck's and Henricks's versions of this conversation differ significantly. According to Whitbeck, over lunch she told Henricks that she would like to use a motorized cart to get around at work, to which Henricks responded "it would not work; it was not a good idea.... It wouldn't look right." Whitbeck Dep. at 121 (Feb. 8, 1996). Henricks then asked Whitbeck if Vital Signs could begin advertising for Whitbeck's replacement. Henricks recalls the conversation differently. According to her, at some point during that day, she and Whitbeck did discuss whether Whitbeck "wanted to continue working for Vital Signs," with Whitbeck indicating that although her doctor recommended a "scooter, ... it was something that she just couldn't see herself doing" and would instead like to resign. Henricks Dep. at 68-71 (Feb. 7, 1996).

Some time after this meeting but before May 16, 1994, Whitbeck stopped working and Vital Signs removed her from the payroll. To maintain health benefits, Whitbeck went on Family and Medical Leave. In May she applied for and began receiving total disability benefits from Maccabees. At the suggestion of Henricks, she applied for long-term disability benefits from Vital Signs' insurer, Mutual of Omaha, but because her condition was "pre-existing," benefits were denied. On August 11, 1994, Whitbeck applied for Social Security disability benefits, which were awarded on January 13, 1995.

Although receiving no pay, Whitbeck continued checking her voice mail and responding to customers. She also proposed, first to Henricks and then in a letter dated August 25, 1994, to Vital Signs Chief Executive Officer Terry Wall, that she work part-time preparing promotional materials for Vital Signs. Vital Signs never responded. Whitbeck was officially terminated on November 21, 1994.

Charging Vital Signs with failure to reasonably accommodate her disability and discriminatory discharge in violation of the District of Columbia Human Rights Act ("DCHRA"), D.C.Code Ann. § 1-2501 et seq. (1992), Whitbeck filed suit in the Superior Court for the District of Columbia. Citing diversity jurisdiction, Vital Signs removed the case to the United States District Court for the District of Columbia where, with the parties' consent, it was referred to a magistrate judge for all further proceedings.

Vital Signs moved for summary judgment, arguing that Whitbeck's application for and receipt of disability benefits barred her disability discrimination claims. Agreeing, the magistrate judge entered summary judgment for Vital Signs, reasoning that because Whitbeck "ha[d] not established that she was able to perform the essential functions of her position since she applied for and [was] receiving both monthly Social Security and Maccabees disability payments effective six months before her termination date" she did not fit the statutory definition of disability. Whitbeck v. Vital Signs, Inc., 934 F.Supp. 9, 16 (D.D.C.1996). In the alternative, the magistrate judge concluded that "the reasonable accommodation that Ms. Whitbeck sought is not required under the law." Id.

In this appeal by Whitbeck, we review the grant of summary judgment de novo. Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). As the agency charged with enforcing the Americans with Disabilities Act, the Equal Employment Opportunity Commission sought and received leave to file a brief as amicus curiae. Pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure, the EEOC notified this panel of the Social Security Administration's amicus curiae brief in Swanks v. WMATA, 116 F.3d 582 (D.C.Cir.1997), a case we also decide today.

II

Intended to "secure an end in the District of Columbia to discrimination for any reason other than that of individual merit," the DCHRA prohibits discrimination on several grounds, including "discrimination by reason of ... physical handicap." D.C.Code Ann. § 1-2501 (1992). At the time of the critical events in this case, the DCHRA defined "physical handicap" as "a bodily or mental disablement which may be the result of injury, illness or congenital condition for which reasonable accommodation can be made." Id. § 1-2502(23) (repealed June 28, 1994); see D.C.Code Ann. § 49-304(a) (Supp.1996) ("[T]he repeal of any act of the Council shall not release or extinguish any penalty, forfeiture, or liability incurred pursuant to the act...."). The Act makes it unlawful for an employer to:

discharge ... or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment[;] ... or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee.

Id. § 1-2512(a)(1) (1992). District of Columbia courts interpreting the DCHRA "have generally looked [for guidance] to cases from the federal courts" arising under federal civil rights statutes. Benefits Communication Corp. v. Klieforth, 642 A.2d 1299, 1301-02 (D.C.1994). In particular, when determining the elements of a prima facie case and the allocation of burdens and order of proof in a disability discrimination case under the DCHRA, District of Columbia courts rely on cases decided under analogous federal antidiscrimination laws. American Univ. v. District of Columbia Comm'n on Human Rights, 598 A.2d 416, 422 (D.C.1991); Miller v. American Coalition of Citizens with Disabilities, Inc., 485 A.2d 186, 189-90 (D.C.1984).

We begin with the magistrate judge's holding that Whitbeck may not maintain this action because she applied for and received public and private disability benefits. As we explain in Swanks, the Social Security Administration's...