                               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.
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).       In September 2008, Maggie Valley hired Appellee East

West   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.

                                           2
Peter     Mangone,    who     performed     surgery          on    Gentry’s    ankle     in

October 2008.        Gentry returned to work in January 2009 with no

restrictions,        though    she    continued         to    experience       pain     and

difficulty walking.           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.                           According to Smith,

Manner    expressed     surprise      at    Gentry’s         concerns      about      being

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

great job.”      J.A. 183.      He further indicated that while the Club

was     struggling      financially         and     considering            layoffs,      no

particular      individuals     had     been      identified        for    termination.

Manner,     however,     generally      denied          making     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     filed    another      claim    against        the    Club.       Smith

denied     making     these    statements.              Manner      then    called      the

                                           3
principals      of    Maggie     Valley    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      2010,    Gentry       was    terminated.           According     to

Appellees,      the    termination       was    part    of     a   restructuring         plan

designed to cut the Club’s costs.                    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.                             In the

spring    and    summer     of    2010,     Appellees         developed      a    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     the      following    year.         At    the     time    of    trial,      the

housekeeping         department    had     only       three    full-time         equivalent

                                           4
employees   and    the   new   housekeeping        director,   Richard    Smith,

performed   the   duties    previously      performed    by    Gentry    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’ cost-

saving   rationale,      including   evidence       indicating   that    Richard

Smith, who had assumed Gentry’s responsibilities, performed only

minimal maintenance duties and that his pay eventually increased

                                        5
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.                The jury

also    found   East    West   and   Manner     liable    for      tortiously

interfering     with   Gentry’s   employment,    and     awarded     separate

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

                                     6
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.                     This appeal followed.

     On        appeal,       Gentry        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.                 She further argues that the district

court        erred    in     refusing      to        admit    evidence      of     Appellees’

liability insurance and indemnification.                         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       challenges      to   jury     instructions        for    abuse   of

discretion,          bearing    in    mind      that     “a    trial   court       has   broad

discretion       in    framing       its    instructions         to    a   jury.”        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

                                                 7
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    .   .     .   the   hiring,     advancement,    or

discharge of employees.”                42 U.S.C. § 12112(a).               The district

court instructed the jury that Gentry had to demonstrate that

her    disability       was     the    “but-for”      cause    of     her    termination.

Gentry    argues      that    this     was     in    error,    as    the    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.”                          42 U.S.C. § 2000e-

2(a).     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
any     employment      practice,        even     though      other     factors       also

motivated the practice.”           42 U.S.C. § 2000e–2(m).               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   Gross   v.    FBL   Financial        Services,     Inc.,     557    U.S.    167

(2009),     the    Supreme       Court    considered        whether      Title    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 . . .



      1The “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).



                                           9
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       that   “age   was   the   ‘reason’   that   the

employer decided to act.”              Id. at 176.       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


                                            10
join the Sixth and Seventh Circuits.                       See Lewis v. Humboldt

Acquisition     Corp.,      681    F.3d    312    (6th    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    establishes          mixed    motive

employment practices as unlawful.                 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        notes    that     §     2000e-5(g)(2)(B)        cross-references

§ 2000e-2(m).        However, § 2000e-5(g)(2)(B) merely specifies the

                                            11
remedies available when a plaintiff establishes a violation of

§ 2000e-2(m), that is, when a plaintiff establishes that “race,

color,    religion,      sex,      or    national         origin   was     a   motivating

factor”    in    an    employment        action.           Section    2000e-5(g)(2)(B)

cannot    be    read   as     somehow     excising        §   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 § 2000e-

2(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



      2Gentry’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.”
      3Gentry 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)
                                               12
       Instead, to invoke Title VII’s enforcement provisions, an

ADA    plaintiff     must    allege    a     violation    of    the    ADA   itself—a

violation of “this chapter.”                 42 U.S.C. § 12117(a) (emphasis

added).         As discussed above, the ADA’s text does not provide

that       a   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.        The

ADA prohibits discrimination “on the basis of” disability.                         42

U.S.C. § 12112(a).           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.
       4We 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.



                                           13
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   intended     to      mean   something     other      than   but-for

causation.           As     originally       enacted,       the     ADA      prohibited

discrimination “against a qualified individual with a disability

because of the disability of such individual.”                    Pub. L. No. 101–

336, § 102 (1990).             The ADA Amendments Act of 2008 (ADAAA)

changed   this        language       to    its    present      form,        prohibiting

discrimination “against a qualified individual on the basis of

disability.”      See Pub. L. No. 110-325 § 5 (2008).                   This was done

to   “ensure[]       that   the   emphasis        in    questions      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   to     decrease      the     emphasis        on   whether    a    person    is

disabled, not to lower the causation standard.                    Finally, we note

that the amended language was enacted before Gross and therefore

not in response to Gross’s causation analysis.                        Accordingly, we




                                            14
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     jury    on   each.      She   disputes    the   court’s

definition   of    “substantially    limits”    and   its   instructions   on




     5 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.



                                     15
“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       to    an     average       person       in     the     general

population.”             J.A.    697.         Gentry       did    not    object       to    this

instruction, which was similar to the one she had proposed. 6

       On appeal, however, Gentry argues that the “prevents or

significantly          restricts”       standard      is    too    demanding       under      the

ADAAA.           The   ADAAA    sought      to    “reinstat[e]       a     broad      scope   of

protection”            after     the     Supreme        Court        had       “created       an

inappropriately          high    level      of    limitation       necessary       to      obtain

coverage under the ADA.”                 Pub. L. No. 110–325, § 2(b)(1),(5).

Specifically,          the     ADAAA    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

       6Gentry  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.       See    Pub.    L.    No.       110–325,       §    2(b)(5).        The       ADAAA

directed    the        EEOC     to        revise        its        regulation        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       the     district   court’s

instruction, we review for plain error.                           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’     or    would        otherwise      ‘seriously             affect[       ]    the

fairness,       integrity       or         public       reputation            of     judicial

proceedings.’”         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)).

                                               17
      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.                      Gentry offers little

to   suggest   that       her    disability       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   her   impairment      was    a   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.                        In fact,

trial      testimony       indicated         that     they,    including         Manner,

considered     her   to    be    an    excellent       employee.     The    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

                                             18
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    district     court        erred      in

instructing        the   jury     on    the       “regarded     as”        prong    of     the

definition of disability.               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.”        J.A. 698-99.             The verdict form similarly asked

whether    Gentry’s      “disability,         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         as”   prong        if      she     was

                                             19
discriminated        against           “because     of     an     actual         or    perceived

physical      or    mental       impairment       whether       or   not    the       impairment

limits or is perceived to limit a major life activity.”                                       See 42

U.S.C.    §    12102(3)(A);            J.A.   55.        Gentry      contends          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       had     a       substantial    limitation         in     a       major     life

activity;”      instead,         a    plaintiff     need    only       show       that    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.”                      See J.A. 161.             If the jury



      7At 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.



                                              20
believed that evidence, the instruction informed the jury that

Gentry’s termination was unlawful.                  Thus, even if we assume that

the     court’s    instruction       was     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

                                            21
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.”         29 C.F.R. § 1630.2(k)(1).            Gentry argues that

the   district     court     improperly        shortened   this    definition       by

omitting the “misclassified” clause.

      Gentry did not object to the district court’s instruction

below   and   on    appeal      she   does     not   explain    how   the    omitted

language applies to her case.                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     seek   and    accept   similar     employment      in    the   same

locality.”       J.A. 710.       The court instructed that if Appellees

proved that Gentry failed to mitigate, the jury was to reduce

                                          22
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.                         Gentry

claims     that     this       “poor   mouthing”    left     the    jury     with   the

impression        that     a     significant      judgment     would        be   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.



                                           23
       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    Club’s   costs.      Although    Appellees      also    presented

evidence       of    the     Club’s   financial     condition       after    Gentry’s

termination, that evidence was arguably relevant to demonstrate

that       their     cost-saving      efforts       were     effective      and     not

pretextual.          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                        The

only       “poor    mouthing”    specific    to   these     entities   that    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.



                                            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.           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       of    East        West’s    insurance         coverage     and

indemnification.           While such evidence may not have been strictly

prohibited     by    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.




      10We 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. 303-
05.



                                            25
                                             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    from    a

perspective that an appellate court can never match.”                                Bristol

                                             26
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.             It is possible, for example, that the

jury     did    not     fully    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    employment       from     December      2010    to    December    2011,

making     two        contacts     per     week     as     required       to    maintain

unemployment      benefits,       and    sometimes       more.        Gentry   testified

that she limited her search to Haywood County because of family

responsibilities         and     because    she   experienced         anxiety    driving

                                            27
long distances.          She obtained a part-time position from March

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

position    that    became       full-time       in    September      2012.        Gentry’s

occupational       expert       testified    that       Gentry’s       job      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     of    her     job   search     efforts         after   December      2011

despite     having       only      part-time          work,    did        not    constitute

“reasonable diligence.” 11

      On appeal, Gentry argues that the duty to mitigate “is not

onerous”    and    does     not    require       “engag[ing]         in    an   additional

commute to search for a high-paying position.”                         Br. of Appellant

52,   56.         She    cites     several       cases        in    support      of      these



      11We 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.



                                            28
propositions.            However,          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       that    lost    wages       were    recoverable         notwithstanding

compensation        from     a        collateral        source).            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
