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BEVERLY A. WHITBECK v. VITAL SIGNS </h1> <p class="docCourt"> </p> <p> June 20, 1997 </p> <p class="case-parties"> <b>BEVERLY A. WHITBECK, APPELLANT<br><br>v.<br><br>VITAL SIGNS, INC., APPELLEE</b><br><br> </p> <div class="caseCopy"> <div class="facLeaderBoard"> <script type="text/javascript"><!-- google_ad_client = "ca-pub-1233285632737842"; /* FACLeaderBoard */ google_ad_slot = "8524463142"; google_ad_width = 728; google_ad_height = 90; //--> </script> <script type="text/javascript" src=""> </script> </div class="facLeaderBoard"> <div class="numbered-paragraph"><p><br> Appeal from the United States District Court for the District of Columbia (No. 95cv01011)</p></div> <div class="numbered-paragraph"><p> Before: Edwards, Chief Judge, Wald and Tatel, Circuit Judges.</p></div> <div class="numbered-paragraph"><p> Tatel, Circuit Judge</p></div> <div class="numbered-paragraph"><p> FOR PUBLICATION</p></div> <div class="numbered-paragraph"><p> FOR THE DISTRICT OF COLUMBIA CIRCUIT</p></div> <div class="numbered-paragraph"><p> Argued April 2, 1997</p></div> <div class="numbered-paragraph"><p> 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.</p></div> <div class="numbered-paragraph"><p> I.</p></div> <div class="numbered-paragraph"><p> In 1992, appellee Vital Signs, Inc., a medical equipment manufacturing company, took over Biomedical Dynamics for whom 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.</p></div> <div class="facAdFloatLeft"> <script type="text/javascript"><!-- google_ad_client = "ca-pub-1233285632737842"; /* FACContentLeftSkyscraperWide */ google_ad_slot = "1266897617"; google_ad_width = 160; google_ad_height = 600; //--> </script> <script type="text/javascript" src=""></script> </div class="facLeaderBoard"> <div class="numbered-paragraph"><p> 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.</p></div> <div class="numbered-paragraph"><p> 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.</p></div> <div class="numbered-paragraph"><p> 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.</p></div> <div class="numbered-paragraph"><p> 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.</p></div> <div class="numbered-paragraph"><p> 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).</p></div> <div class="numbered-paragraph"> <p> 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 ...</p> </div> </div> </div> <div id="caseToolTip" class="caseToolTip" style="display: none;"> <div class="toolTipHead"> </div> <div class="toolTipContent"> <p> Our website includes the first part of the main text of the court's opinion. To read the entire case, you must purchase the decision for download. 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