                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-1009


BONNIE DANK,

                Plaintiff - Appellant,

           v.

ERIC SHINSEKI,    Secretary,   U.S.     Department   of    Veterans
Affairs,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:06-cv-01014-RDB)


Argued:   March 25, 2010                    Decided:      April 15, 2010


Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished opinion.        Judge Duncan wrote the
opinion, in which Judge Agee and Senior Judge Hamilton joined.


ARGUED: Thomas J. Gagliardo, THE GAGLIARDO LAW FIRM, Silver
Spring, Maryland, for Appellant.   Jason Daniel Medinger, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Larry D. Adams, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:

     Appellant Bonnie Dank brought a claim against the United

States    Department    of    Veterans   Affairs      (the    “Department”)     for

disability      discrimination       under          section     504     of      the

Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. 1                        During

trial, the district court permitted Dank to amend her complaint

to allege a violation of section 501 of the Rehabilitation Act 2

instead    of   section      504.   At       the   conclusion   of    trial,    the

district court instructed the jury that under section 501, Dank

was required to show that she was discharged solely because of

her disability.        Dank appeals the jury finding in favor of the

Department, arguing that the jury should have been instructed

that under section 501 she was merely required to prove that her

disability was one of the motivating factors for her discharge.

For the reasons that follow, we affirm.




     1
       Section 504 prohibits programs and activities that receive
federal funds from discriminating against an individual “solely
by reason of” that individual’s disability. 29 U.S.C. § 794.
     2
        Section 501 requires federal agencies to implement
programs to facilitate the hiring, placement, and advancement of
disabled individuals.   See 29 U.S.C. § 791.   The Supreme Court
has interpreted section 501 as prohibiting “discrimination on
the basis of disability in employment decisions by the Federal
Government.” Lane v. Pena, 518 U.S. 187, 193 (1996).



                                         2
                                           I.

       On     January     12,      2003,        Dank,     a    psychiatric       nurse

practitioner,      was    hired     by     the     Department       as   a    licensed

independent practitioner.           Her assignment was to provide mental

health services to veterans at community-based outreach clinics.

At the time of hiring, Dank informed her supervisor, Ron Hopper,

that   she    suffered     from    multiple       sclerosis.        Dank     expressed

concern that the extensive travel requirements of her position

could aggravate her medical condition.

       In    November    2003,    Dank     fell   asleep      at   the   wheel   while

driving to an assignment at a clinic located two hours away from

the    Department’s      main     office    in    Baltimore.         Following        the

incident, Dank contacted supervisory staff at the Department to

inform them that her doctor suggested that she no longer travel

to that clinic.          She also requested an accommodation for her

disability.       In    December    2003,       Dank    was   granted    a   temporary

relocation to another clinic located ten minutes away from the

Department’s Baltimore office.              In March 2004, she was notified

that   the    temporary    relocation       had    been    made    permanent     as    an

accommodation.

       In January 2004, Hopper spoke to several Department staff

members to solicit feedback on Dank’s performance in preparation

for her annual performance review.                 During this process, Hopper

was informed by several employees that Dank had problems in her

                                           3
interpersonal communications with co-workers.                              On February 27,

2004, Hopper completed Dank’s review pursuant to a proficiency

evaluation consisting of fifty-seven criteria.                            Hopper evaluated

Dank as meeting fifty-five of the criteria.                              However, he noted

that     Dank     “need[ed]      improvement”          in     two        criteria         labeled

“[e]stablishes          effective        interpersonal              relationships”            and

“[p]romotes       an    environment       of       mutual     respect       and     effective

communications.”         J.A. 77.

       On   March      18,    2004,   Hopper        received       notice      that       several

patients assigned to Dank had requested to be reassigned to a

different mental health provider.                     The patients asserted, among

other    things,       that    Dank     did    not     listen       to     their    concerns.

Hopper      was   also       informed    that        Dank     had    been       consistently

delinquent in completing office paperwork.

       On    March      31,     2004,        Hopper        requested       that       a     Nurse

Professional         Standards        Board        proceeding        be        initiated       to

determine whether Dank had the requisite interpersonal skills to

perform     her     duties.       In     his       letter     to     the    Board,         Hopper

explained that he was requesting the proceedings based on Dank’s

proficiency         evaluation,         and        noted     that        her      ineffective

interpersonal skills were disruptive to the areas to which she

was    assigned.         Following       a    review        and     hearing,       the      Board

concluded that “Ms. Dank’s interpersonal skills have not been at

the level of an Advanced Nurse Practitioner” and recommended

                                               4
“separation from Federal service.”                             J.A. 67.           The Department

formally terminated Dank’s employment in July 2004.

      On April 21, 2006, Dank brought a complaint against the

Department in the United States District Court for the District

of   Maryland.           The     complaint          alleged,         inter    alia,      that     the

Department           “discriminated          against         and    harassed      [her]    on     the

basis of her disability,” J.A. 24, in violation of section 504,

which, as the complaint specified, “prohibit[s] the defendant

from discriminating against an employee . . . solely by reason

of her . . . disability,” J.A. 23 (internal quotations omitted).

The case proceeded to trial on October 20, 2008.

      On       the    third     day    of    trial,          the    last    day    on   which    the

parties presented evidence, Dank moved to amend her complaint to

allege     a    violation        of    section         501    of    the    Rehabilitation        Act

instead of section 504.                    According to Dank, the former required

her to show only that her disability played a factor in the

Department’s decision while the latter required her to show that

she was discharged “solely by reason of” her disability.                                          29

U.S.C.     § 794.         She    reasoned          that,      unlike       section      504,   which

specifically           contains        the    “solely          by    reason       of”    standard,

section        501    contains        no    such    language         and    instead      generally

adopts the standard of proof established by the Americans with

Disabilities           Act,     42    U.S.C.       § 12101          et    seq.,    which       merely

requires a showing that disability was one of the motivating

                                                   5
factors behind the defendant’s actions.                        The Department argued

in response that the “solely by reason of” standard applied to

all       claims     brought       by     government          employees        under      the

Rehabilitation Act.              The court agreed with the Department but

nonetheless granted the amendment, finding that, “[b]ased upon

the   government’s        argument”       that       the    standards     of     proof    for

sections     501    and    504    were    the       same,    “there     really    [was]    no

prejudice to permit the amendment.” 3                     J.A. 175.

      The    court     instructed        the       jury    that,   to   succeed     in    her

Rehabilitation Act claim, Dank was required to prove that she

was “terminated solely because of the disability.”                               J.A. 133.

Based on this instruction, the jury returned a verdict against

Dank.      This appeal followed.



                                           II.

      On     appeal,      Dank    challenges         the    jury   instruction.           She

argues that the district court should have instructed the jury

that, under section 501, she was merely required to prove that

her   disability       was   one    of    the      motivating      factors     behind     her

discharge.         She asserts that the court erred in concluding that


      3
       In addition to referring to the government’s argument on
the issue, the court itself also found that any Rehabilitation
Act claim brought by a federal employee was subject to the
“solely because of” standard. See J.A. 176-80.



                                               6
the “solely by reason of” standard of section 504 applied also

to her amended claim under section 501.

     We “review de novo claims that the jury instructions failed

to   correctly     state      the    law.”        Volvo    Trademark          Holding

Aktiebolaget v. Clark Mach. Co., 510 F.3d 474, 484 (4th Cir.

2007).    “A     judgment     will     be    reversed     for    error       in   jury

instructions     only    if   the    error   is   determined      to     have     been

prejudicial,     based   on   a     review   of   the   record    as     a    whole.”

Abraham v. County of Greenville, 237 F.3d 386, 393 (4th Cir.

2001) (internal quotations omitted).

     The question of whether the “solely by reason of” standard

applies to section 501 claims is far from settled. 4                We need not,


     4
       In concluding that the standards for both sections are the
same, the district court relied on two unpublished cases from
this circuit, Spencer v. Earley, 278 F. App’x 254 (4th Cir.
2008), and Edmonson v. Potter, 118 F. App’x 726 (4th Cir. 2004),
which it interpreted as setting out the “solely by reason of”
standard for all Rehabilitation Act claims.     See J.A. 177-79.
However, neither of those cases specifies the standard for
section 501 nor addresses the issue of whether it is a different
standard from that applicable to section 504.       Although both
cases apply the “solely by reason of” standard, Spencer
addresses a claim brought under section 504 and Edmonson does
not specify the section under which the claim was brought.
     The Fifth Circuit, the only circuit to have squarely
addressed the issue, has found that, unlike section 504, section
501 requires only that disability be a motivating factor behind
the employment action.    See Pinkerton v. Spellings, 529 F.3d
513, 515-19 (5th Cir. 2008). However, other courts continue to
apply the “solely by reason of” standard to claims raised under
section 501 and to Rehabilitation Act claims in general.      See
Adams v. Rice, 531 F.3d 936, 944 (D.C. Cir. 2008) (noting in a
case brought under section 501 that “the State Department could
(Continued)
                                        7
however, resolve it here because it would not affect the result.

If   the     standard    does   apply    to    section    501,   then      the   court

instructed the jury correctly.                 If it does not, the district

court erred in granting Dank’s mid-trial amendment imposing a

stricter standard on the Department.                Accordingly, any mistake

in the court’s finding regarding the standard for section 501

does not merit reversal.            See id.

       The     court’s    order     allowing    Dank     to    amend    raises     two

concerns.        First, regardless of the appropriate standard, the

court appeared to have lacked authority under the Federal Rules

of Civil Procedure to consider a mid-trial amendment because

such       amendment    was   not   properly    triggered      by    the    parties. 5

Second,      even   assuming      that   the   court     had   the     authority   to

consider the amendment, if the standards for sections 501 and

504 indeed differ, the amendment was improperly prejudicial.




not have discriminated against [plaintiff] ‘solely by reason of
her . . . disability,’ 29 U.S.C. § 794(a), given that her
‘impairment’ had already been eradicated”); see also Nadler v.
Harvey, No. 06-12692, 2007 WL 2404705, at *4 (11th Cir. Aug. 24,
2007) (finding in a case brought under both sections 501 and 504
that “[t]he Rehabilitation Act prohibits federal agencies from
discriminating against any otherwise qualified individual with a
disability solely by reason of his or her disability”).
       5
       Although the Department did not raise this issue, it is
well settled that “[w]e are . . . entitled to affirm on any
ground appearing in the record.”   Scott v. United States, 328
F.3d 132, 137 (4th Cir. 2003).



                                          8
     The   district   court   stated   that   it   was   granting   the

amendment pursuant to Federal Rule of Civil Procedure 15(b)(1).

An amendment under that rule is triggered by an objection made

by the parties:

     If, at trial, a party objects that evidence is not
     within the issues raised in the pleadings, the court
     may permit the pleadings to be amended.    The court
     should freely permit an amendment when doing so will
     aid in presenting the merits and the objecting party
     fails to satisfy the court that the evidence would
     prejudice that party’s action or defense on the
     merits. . . .

Fed. R. Civ. P. 15(b)(1).     In this case, it does not appear from

the record that either party “object[ed] that evidence [was] not

within the issues raised in the pleadings,” thereby triggering

application of the rule. 6      Id.    In fact, in the discussion

regarding the amendment, neither party made any reference to the

evidence presented.    Instead, the reason for Dank’s request for

an amendment was that she became aware that the court planned to

use the “solely by reason of” standard in its jury instructions.

Dank’s position was that she had been proceeding under section

     6
       At oral argument, counsel for Dank conceded that neither
party made such an objection.     He explained that, because the
evidence presented under either section of the Rehabilitation
Act would have been the same, there was no reason for either
party to suggest that the evidence did not conform to the
pleadings regardless of the section pled.      He argued instead
that the amendment must have been granted under Federal Rule of
Civil Procedure 15(b)(2).     However, that argument is clearly
contradicted by the court’s statement that it was “not
proceeding under Section 15(b)(2).” J.A. 175.



                                  9
501 all along, even in the pleadings.                                  She argued that the

reference     to    section       504      in    her       complaint       was     a    “miscite.”

J.A. 146.         The court rejected this explanation, stating that

there was “nothing in the matter of a miscite” because Dank

specifically quoted section 504 and did not mention section 501

in her complaint.           J.A. 146-47.               The court nonetheless granted

the amendment “[b]ased upon the government’s argument” that the

standards     of    proof      for       sections         501    and    504      were    the    same,

finding     that    “there      really       [was]        no     prejudice        to    permit       the

amendment.”        J.A. 175.

       Because     there     was         never    a       triggering       objection           to    any

evidence “not within the issues raised in the pleadings,” there

was    no   apparent       justification              for       the    application        of        Rule

15(b)(1).     Fed. R. Civ. P. 15(b)(1).                         The court made clear that

it    was   not    proceeding            under    Rule      15(b)(2),         the       only    other

possible     ground       for      granting           a     mid-trial         amendment         under

Rule 15.          See   J.A.      175.           Therefore,           it   appears       that       the

amendment was improperly considered by the district court.

       However,     even     if      a    party’s         objection        had    triggered          the

application of Rule 15(b)(1), the grant of the amendment would

still be in error if, as Dank argues, the legal standards for

sections     501    and    504     differ.            As    the       court      made    clear,      it

granted the amendment based solely on its conclusion that the

standards of proof for both sections were identical, and that

                                                 10
any amendment would therefore not prejudice the Department.                            If

the   standard       of   proof    for    section    501     was   different,        and,

indeed, more stringent for the Department, the amendment would

have changed the character of the case and would have clearly

prejudiced the Department’s “defense on the merits.”                          Fed. R.

Civ. P. 15(b)(1).

       The prejudice here is especially evident given that Dank

moved for the amendment on the last day on which the parties

presented      evidence,      thereby        denying        the    Department         any

opportunity to amend the presentation of the case.                       See Gussack

Realty   Co.    v.    Xerox   Corp.,      224   F.3d   85,    94   (2d    Cir.      2000)

(“Generally, introducing new claims for liability on the last

day of trial will prejudice the defendant.”).                      The precedent in

this circuit supports this position.                 In Deasy v. Hill, 833 F.2d

38, 42 (4th Cir. 1987), we explained that an amendment shortly

before trial would be prejudicial because “[t]he proof required

to    defend   against      this    new    claim     would    be   of    an   entirely

different character than the proof which the defendant had been

led to believe would be necessary” and noted that “[b]elated

claims    which      change       the    character     of    litigation       are     not

favored.”      Although Deasy looked at prejudice in the context of

pre-trial amendments, its rationale applies with even greater

force to mid-trial amendments.              It is clear, therefore, that, if

the standards for section 501 and section 504 indeed differ, the

                                           11
amendment   would   have   been   erroneously   granted   in   this   case

because it would have significantly prejudiced the Department.

     Accordingly, even assuming that the court instructed the

jury on the standard for section 504 rather than the standard

for section 501, Dank suffered no prejudice because, given the

impropriety of the amendment, she was only entitled to proceed

under section 504.     She was therefore required to show, as the

court instructed, that she was discharged solely because of her

disability.    Therefore, any error in the court’s finding that

the “solely by reason of” standard applies also to claims under

section 501 was not prejudicial on these facts.



                                   III.

     For the reasons stated above we

                                                                 AFFIRM.




                                    12
