                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-2031


TAMMY L. CALEF,

                  Plaintiff – Appellee,

           v.

FEDEX GROUND PACKAGING SYSTEM, INCORPORATED,

                  Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:06-cv-00047-IMK-JSK)


Argued:   May 14, 2009                      Decided:   August 27, 2009


Before MICHAEL, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished opinion. Judge King wrote the opinion,
in which Judge Michael and Judge Gregory joined.


ARGUED:    John J. Myers, ECKERT, SEAMANS, CHERIN & MELLOTT,
Pittsburgh, Pennsylvania, for Appellant. Georgia Lee Gates, LAW
OFFICES OF RON L. TUCKER, Fairmont, West Virginia, for Appellee.
ON BRIEF: Christina I. Kepplinger, ECKERT, SEAMANS, CHERIN &
MELLOTT, Pittsburgh, Pennsylvania, for Appellant.


Unpublished opinions are not binding precedent in this circuit.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

      Tammy      L.        Calef      asserted           and     pursued      a     disability

discrimination claim under the West Virginia Human Rights Act,

W.   Va.     Code     §§        5-11-1   to    -21       (the    “WVHRA”),        against   her

employer, FedEx Ground Packaging System, Incorporated (“FedEx”).

In early 2008, at the conclusion of a trial in the Northern

District of West Virginia, the jury returned a verdict in favor

of Calef.       Thereafter, the district court awarded her more than

$1.2 million in damages, prejudgment interest, attorney fees,

and litigation expenses.                 In this appeal, FedEx raises nearly

twenty     contentions           of   error,    seeking          to   have    the    judgment

reversed.            As    explained        below,        we     reject    each     of   these

contentions and affirm.



                                               I.

                                               A.

      According to the trial evidence, Calef had been an employee

of   FedEx    and     its       predecessors        in    Clarksburg,        West   Virginia,

since      1994. 1         On     January      23,       2004,     Calef     was    laterally

transferred between positions — from Dock Service Manager to

      1
       Our statement of the facts summarizes the evidence on the
disability discrimination claim in the light most favorable to
Calef, as the prevailing party.   See ABT Bldg. Prods. Corp. v.
Nat’l Union Fire Ins. Co. of Pittsburgh, 472 F.3d 99, 113 (4th
Cir. 2006).



                                               2
Package and Delivery (“P&D”) Service Manager — at the Clarksburg

home delivery terminal.         In her new role as P&D Service Manager,

Calef was responsible for overseeing the work of the independent

contractors who delivered packages for FedEx. 2               The work week at

the terminal ran from Tuesday to Saturday.

     Calef’s first day as P&D Service Manager was scheduled for

Tuesday, January 27, 2004.          The prior Saturday, Calef injured

her left hand while playing volleyball.               Calef visited a doctor

on Monday and, believing her injury was nonserious, reported for

work on Tuesday.     Upon arrival at the Clarksburg terminal that

morning,   she   showed   her    hand   injury   to    Dock   Service    Manager

Chris Davis, with whom she had just switched positions.                  Calef’s

immediate supervisor, Terminal Manager Kyle Ryan, was aware of

Calef’s hand injury by at least Thursday, January 29.                   Each day

from January 27 to 29, Calef planned to engage in nonphysical

P&D Service Manager duties, such as ride-alongs with delivery

     2
       Specific duties of the P&D Service Manager, as outlined in
a January 23, 2004 performance expectation plan provided to
Calef by FedEx, included the following:      riding twice a week
with contractors, completing related reports, and reviewing the
reports   with  the   contractors  involved;   timely  completing
accident reports and post-accident rides; completing an audit of
each contractor once every quarter, reviewing the audits with
the contractors, and submitting related reports to the FedEx
Terminal Manager; completing daily van service audits for all
drivers and reviewing the results with the Terminal Manager; and
“other duties and functions as assigned by Senior Management.”
J.A. 1560. (Citations herein to “J.A. __” refer to the contents
of the Joint Appendix filed by the parties in this appeal.)



                                        3
drivers,      but      she     was      instead     scheduled      by    upper-level

supervisors to drive a van and deliver packages.                     On January 29,

with    her   hand    injury      having     worsened,     Calef   returned     to   the

doctor    and   was     fitted       with    a   finger    splint.       Despite     the

increased     severity       of   her    injury,    FedEx    continued     to    assign

Calef to delivery duties.

       Around February 6, 2004 — as she was preparing for yet

another day of delivering packages — Calef was approached by

Steve     Hickman,      FedEx’s         Regional    Human     Resources        Manager.

Hickman asked Calef if she had been “sending out resumes” and

expressed an assumption that she was “looking for another job.”

J.A.    1085.        When    Calef    responded     that    she    was   not    seeking

another job and was “planning on retiring with FedEx,” Hickman

offered Calef a three-month severance package to entice her to

resign.       Id.      Calef refused the offer, prompting Hickman to

sweeten the deal with “medical till the end of the year.”                            Id.

Calef yet rejected Hickman’s offer, at which point he told her

that “this is just between you and me.”                     Id.    Troubled by this

exchange with Hickman, Calef sought an explanation from Ryan.

Ryan acknowledged that he already knew from Hickman about the

offer, which left Calef confused because “[Hickman was] saying

it’s just between you and me but he had already discussed it

with [Ryan].”         Id. at 1086.          For the week thereafter, Ryan sent



                                             4
daily     notes   to   Hickman,      documenting          problems      with    Calef’s

performance that were unrelated to her hand injury.

       On Friday, February 13, 2004, Calef was assigned a delivery

route with more than seventy stops.                That day or the next, with

her injured hand throbbing, Calef went to Ryan and told him that

“[m]y hand cannot do this.”                J.A. 1091-92.             Ryan, following

company    protocol,     requested     a       doctor’s    excuse.         On   Monday,

February 16 — in compliance with Ryan’s request — Calef visited

and obtained excuses from both her doctor and her chiropractor.

Calef’s doctor wrote that Calef had “[l]imited use of [her left]

hand” and that she should not “lift[] [more than] 20 lbs.” until

March 1.     Id. at 1785.         The chiropractor implied that Calef’s

injury had been prolonged by improper use of her hand, writing

that    “[d]ue    to   repeated   extension        of     the    second    and   third

metacarpal, the pain . . . has not decreased.”                       Id. at 1786.    He

further    concluded    that   Calef       was   “limited       on   her   ability   to

drive,” and that “[l]imiting the amount of driving would greatly

improve her condition whereas driving frequently could cause her

condition to worsen.”          Id.     Significantly, neither the doctor

nor the chiropractor suggested that Calef could not, or even

should not, work.        Calef presented the two excuses to Ryan on

Tuesday, February 17, and was permitted to perform non-delivery

P&D Service Manager duties on February 17 and 18.



                                           5
    After     complying   with   FedEx’s   directive    to   again   deliver

packages on Thursday, February 19, 2004, Calef’s hand became

“green, swollen, throbbing.”         J.A. 1094.        She was unable to

sleep that night because of the pain, and she called Davis the

next morning to inform him that she would be unable to deliver

packages that day.        Calef reported for work that morning and

then left for an afternoon doctor’s appointment, during which

the doctor placed Calef’s hand in a half-cast to immobilize her

injury.     The doctor again wrote a note to FedEx, recommending

“[n]o use [of Calef’s left] Arm” until March 20.              Id. at 1787.

Upon returning to work after her doctor’s appointment, Calef

completed two handwritten reports.         Although she is left-handed,

Calef managed to complete the reports with her right hand.              The

next day, Calef rode with and trained a new driver.

     Having not missed a single work day because of her January

24, 2004 hand injury, Calef again reported to work on Tuesday,

February 24.    That day, as she was preparing to leave on a ride-

along with a temporary driver, Calef was abruptly summoned back

to the terminal — Hickman was on the phone and wished to speak

with her.     Hickman ordered Calef to “go home,” file a claim for

short-term disability benefits, and stay away from work until

either he or Ryan called with additional instructions.                 J.A.

1101.     Calef was stunned by these commands, maintaining that she

was “fulfilling everything” expected of her as a P&D Service

                                    6
Manager.       Id.     Hickman’s own notes of the call reflect that

Calef “questioned why she was being sent home,” and that Hickman

responded by asserting “that the Company needed to assess her

ability to do her job based on the restrictions imposed by her

doctors.”      Id. at 1521.

       Hickman partially filled out — but never completed — a

“Reasonable Accommodation Checklist” to determine whether Calef

had a “disability that may need to be reasonably accommodated.”

J.A.   1522.         The   author   of   the    checklist    was   a   FedEx    equal

employment opportunity (“EEO”) official, Carolyn Lyle, who had

been promoted to Senior Manager of Diversity and EEO by the time

Hickman ordered Calef to take disability leave.                        According to

Lyle, Hickman violated FedEx’s reasonable accommodation process

by failing to explore whether Calef could remain on the job with

accommodation.         For example, while Calef had suggested ways that

she    could    continue      to    work       with   her   injured     hand,   “her

suggestions weren’t discussed as to whether or not they were

reasonable.”         Id. at 996.    Lyle’s trial testimony indicated that

Hickman prematurely stopped the reasonable accommodation process

and arbitrarily required Calef to go on leave.

       After leaving the Clarksburg terminal on February 24, 2004,

Calef dutifully complied with Hickman’s instructions by applying

for short-term disability benefits.                   But Calef’s position had

not changed — she informed the benefits plan administrator that

                                           7
“FedEx [was] the one . . . doing this,” and that “[she] was

doing [her] job” and “did not ask for [disability leave].”                  J.A.

1102.     Calef was approved for short-term disability benefits on

March 8.

        Though Hickman and Ryan made no attempt to follow up with

her, Calef repeatedly contacted Ryan between mid-March and early

May   2004.     On   those   occasions    when   she   reached    Ryan,    Calef

expressed her desire to return to work.                 On May 11, Hickman

advised Ryan that Calef was “not to return to work without first

submitting a full release from her doctor.”             J.A. 1524 (emphasis

added).     That same day, Hickman sent a letter to Calef in which

he acknowledged that Calef’s doctor had estimated a return-to-

work date of May 23, but also suggested that Calef might be

eligible for long-term disability benefits once her short-term

benefits expired after twenty-six weeks.               Id. at 1525.       Unable

to obtain a “full” release because of the ongoing twenty-pound

lifting restriction — and thus unable to return to work — Calef

applied and was approved for long-term disability benefits.

        Meanwhile,   Calef   “contacted   everybody     [she]    knew”    within

FedEx to inquire about how she could return to work at the

Clarksburg home delivery terminal and whether there were any job

openings at other FedEx facilities.          J.A. 1113.         After “hitting

walls everywhere,” Calef contacted Lyle, who at the time was

still FedEx’s Senior Manager of Diversity and EEO.               Id. at 1115.

                                     8
Lyle agreed to investigate the situation, but she left FedEx

before her inquiry was complete.            FedEx referred the matter to

other human resources officials, but Calef was informed by email

on January 18, 2006, that FedEx was “unable to assist [her] in

reviewing     employment      opportunities”   absent    a   medical    release

relating to the twenty-pound lifting restriction.               Id. at 1609.

By   that    time,   as   a   result   of   physical    therapy,   Calef    was

approved by her doctors to lift up to fifteen pounds — short of

FedEx’s requirement for her return to work.

      Calef’s efforts to find employment had not been limited to

FedEx.      Indeed, Calef — a forty-something single mother who had

enjoyed a $50,000 FedEx salary (plus incentive pay and benefits)

— found herself forced to survive on finite disability benefits

equaling only a fraction of her salary.                 She applied for a

plethora of jobs, and was finally hired by an Old Navy clothing

store as a part-time customer service representative.                  As other

sources of income, Calef continued to run a company that she

founded in 1992 to teach volleyball to girls.                She even covered

volleyball games for a local newspaper, made purses to sell, and

took a “hardship withdrawal” from a FedEx retirement account.

In 2006, Calef was accepted to law school, from which she was

expected to earn her juris doctor degree in May 2009.                     While

attending law school, Calef subsisted largely on student loans,

but also held part-time positions as a student representative

                                       9
for a law book publisher and as a law firm intern.               By the time

of   trial,   Calef   had   earned   only   $5817,   excluding    disability

benefits, since being forced by FedEx to take disability leave.

She had an offer of post-law school employment, conditioned on

her being admitted to practice as a lawyer, at an annual salary

of $42,000.

      Calef described her treatment by FedEx as being akin to “a

divorce.”     J.A. 1142.    At trial — years after she was forced by

FedEx to take disability leave — she described the experience as

follows:

      Imagine being in a family for almost ten years and
      then they tell you they don’t want you anymore.     I
      loved my job. I loved working for FedEx. I had made
      a determination that this is [where] I was going to
      retire . . . . I saw FedEx employees more than I saw
      my family and I did everything that they wanted me to
      do and [then] I’m injured.    I’m still doing my job
      [but] they’re telling me go home.   Go home until you
      hear back from us and then they don’t call.    . . .
      And that’s it. The door closed.

Id. at 1141-43.

                                     B.

      On February 17, 2006, Calef filed suit against FedEx in the

Circuit Court of Harrison County, West Virginia, asserting her

disability discrimination claim under the WVHRA.            FedEx removed




                                     10
the case to the Northern District of West Virginia, invoking

diversity jurisdiction under 28 U.S.C. § 1332. 3

       The jury trial on the disability discrimination claim was

conducted over four days in January 2008.                      At the close of

Calef’s case-in-chief, FedEx moved, pursuant to Federal Rule of

Civil      Procedure   50,   for    judgment    as   a    matter   of     law.   The

district court denied the motion, and the case proceeded to the

jury.       The jury found for Calef on the disability discrimination

claim, awarding her a total sum of $808,328 in back pay, front

pay,       and   damages    for    emotional    distress,      humiliation,      and

embarrassment.         See Calef v. FedEx Ground Package Sys., Inc.,

No.    1:06-cv-00047       (N.D.   W.   Va.   Jan.   9,    2008)   (the    “Judgment

Order”). 4

       Post-trial, FedEx renewed its Rule 50 motion for judgment

as a matter of law, and alternatively moved under Rule 59 for a

new trial.        Calef also persisted, seeking prejudgment interest,

attorney fees, and litigation expenses.                   By order of August 14,

2008, the district court denied FedEx’s request for judgment as



       3
       Calef also asserted a WVHRA sex discrimination claim
against FedEx, based on a pre-injury demotion she had received
in October 2003.    Prior to trial, the district court awarded
summary judgment to FedEx on the sex discrimination claim,
because it was time-barred. The court then barred discussion of
the sex discrimination claim at trial.
       4
           The Judgment Order is found at J.A. 194-98.



                                         11
a matter of law or a new trial.                           See Calef v. FedEx Ground

Package          Sys.,    Inc.,   No.     1:06-cv-00047        (N.D.       W.   Va.    Aug.    14,

2008) (the “Post-trial Order”). 5                     The court ruled in its Post-

trial        Order    that     Calef    was     entitled       to    the    full      amount    of

damages specified by the jury.                    Thereafter, by separate orders,

the     court        awarded      Calef       $106,286    in        prejudgment       interest,

$273,596 in attorney fees, and $33,731 in litigation expenses.

The total award to Calef was $1,221,941.

       FedEx timely noted this appeal, and we possess jurisdiction

pursuant to 28 U.S.C. § 1291.



                                                II.

       Before turning to our assessment of FedEx’s more narrow

appellate contentions, we find it helpful to paint a broader

picture of the applicable principles of West Virginia law, as

well        as   Calef’s     theory     of     disability      discrimination           and    its

presentation to the jury.                    Notably, our focus is on the WVHRA,

which        those       familiar      with     federal    discrimination             law     will

recognize as often corresponding with — but sometimes straying

from — the Americans with Disabilities Act (the “ADA”).                                        See

Stone v. St. Joseph’s Hosp. of Parkersburg, 538 S.E.2d 389, 404

(W. Va. 2000) (“[T]he West Virginia Human Rights Act, as created

        5
            The Post-trial Order is found at J.A. 433-95.



                                                12
by   our     Legislature        and    as        applied     by     our     courts     and

administrative agencies, represents an independent approach to

the law of disability discrimination that is not mechanically

tied to federal disability discrimination jurisprudence.”).

                                            A.

     Under    the     WVHRA,    it    is    unlawful       “[f]or   any     employer    to

discriminate against an individual with respect to compensation,

hire, tenure, terms, conditions or privileges of employment if

the individual is able and competent to perform the services

required even if such individual is blind or disabled.”                          W. Va.

Code § 5-11-9(1).         “The term ‘disability’ means,” inter alia,

“[a] mental or physical impairment which substantially limits

one or more of such person’s major life activities,” including

“caring     for   one’s    self,      performing       manual       tasks,     walking,

seeing, hearing, speaking, breathing, learning and working,” or

“[b]eing regarded as having such an impairment.”                            Id. § 5-11-

3(m)(1), (3).       The Supreme Court of Appeals of West Virginia has

recognized        that         the     prohibition            against         disability

discrimination “extends, of course, to the denial of employment

opportunities based on vocationally irrelevant disabilities and,

thus,      embraces      the     traditional         employment           discrimination

theor[y] of disparate treatment.”                  Skaggs v. Elk Run Coal Co.,

479 S.E.2d 561, 573 (W. Va. 1996).                  The state supreme court has

also “inferred that [the WVHRA] imposes [a] duty of reasonable

                                            13
accommodation,” i.e., “an affirmative obligation [on employers]

to provide reasonable accommodation for disabled individuals.”

Id. at 574.

        In its Stone decision, rendered in 2000, the state supreme

court    addressed    a     disability        discrimination         claim   similar    in

many    respects     to    Calef’s      claim.         Stone,    a   paramedic    on    an

ambulance    crew,        had   made    two     reports     in   one    month    to    his

employer, St. Joseph’s Hospital, of on-the-job back strains; one

of the reports indicated that Stone was taking a narcotic-type

pain medication.          See Stone, 538 S.E.2d at 393.                After reviewing

these reports, several Hospital officials met and decided to

indefinitely remove Stone from his paramedic duties pending an

independent medical examination, and to reassign him for the

interim period to an office position as a dispatcher.                           Id.    The

Hospital     later        explained      that      the    transfer       decision      was

predicated on concerns, inter alia, that Stone’s condition could

worsen, and that his back problem and use of a narcotic-type

pain     medication       could   endanger         Stone,    his      co-workers,      his

patients, and the public.              Id.     Stone “strongly objected” to his

reassignment as a dispatcher, contending that he was able to

safely perform his paramedic duties without limitation — a view

backed by four doctors.                Id.     The Hospital refused to reverse

its transfer decision, however, and Stone was forced to work as

a   dispatcher       for    several          months,     until   he     underwent      the

                                              14
independent medical examination and was cleared to return to

paramedic duties.          Id. at 394.             In the meantime, Stone had

asserted a WVHRA “regarded as” disability discrimination claim

against    the   Hospital,     on    which     a    jury    ultimately      found    in

Stone’s favor.

     On     appeal    to    the     state     supreme      court,    the     Hospital

contended that Stone had failed to present sufficient evidence

to support his theory that he was a qualified disabled person,

that is, that the Hospital regarded him as having a physical

impairment that substantially limited the major life activity of

working.     See Stone, 538 S.E.2d at 406.                 This was so, according

to the Hospital, because it “only ‘suspected’ the possibility of

Mr. Stone having a problem that limited his ability to safely

perform the ‘single job’ of ambulance paramedic.”                           Id.     The

court    rejected    the    Hospital’s      contention,      however,      explaining

that “[d]espite what the Hospital said about their subjective

view of Mr. Stone, the jury was entitled to look at what the

Hospital did.”        Id.      And, as the court observed, the trial

evidence reflected that “[t]he Hospital treated Mr. Stone . . .

as a person who should not be entrusted with the duties of his

regular     job.”      Id.        The    court       concluded      that,    in     the

circumstances,

        [t]he limitations or restrictions that the Hospital
        regarded as appropriate for Mr. Stone were certainly
        of sufficient magnitude and breadth — taking him off

                                         15
      all of his regular duties and prohibiting him from
      driving, providing patient care, lifting, and carrying
      — for a jury to conclude that Mr. Stone was treated as
      being substantially limited in his major life activity
      of working.

Id.     Importantly, the court observed that the Hospital could not

be shielded from liability under the WVHRA based on evidence

that Stone believed personal animus against him — unrelated to

any perceived disability — played a part in the decision to

reassign him.        Id. at 407 n.25.          The court explained that the

WVHRA    “protects    persons   who     are    discriminatorily       treated    as

having a substantially limiting impairment,” and that “[t]his

component of the Act’s prohibitions is an objective test that

does not focus on the subjective motivation behind the behavior

in question, but on the behavior itself.”              Id.

      Although the state supreme court concluded that Stone was a

qualified disabled person under the WVHRA, the court accepted

the Hospital’s position that its decision to reassign Stone from

paramedic to dispatcher duties was nonetheless permissible.                     See

Stone, 538 S.E.2d at 407.            In so doing, the court observed that

“the law recognizes the right of an employer to take reasonable

job-related precautions in a fashion that is consistent with the

duty of reasonable accommodation, while inquiring or obtaining

medical information about an employee’s fitness for duty.”                      Id.

The   court   concluded    that      Stone     could   not    prove   disability

discrimination,      because    he    merely    had    been   subjected   to    “a

                                        16
temporary transfer to another job at the same rate of pay, and

with    no    long-term     or      permanent       job     detriment,          pending     the

outcome of a medical examination that was facially justified.”

Id. at 408.        Accordingly, the court directed entry of judgment

for the Hospital.        Id.

                                             B.

       For    obvious     reasons,          Calef       relies    on      Stone       for    the

proposition      that,     at       the     time    FedEx        forced        her    to    take

disability leave, she was a qualified disabled person under the

WVHRA.       That is, Calef contends that FedEx regarded her — just

as St. Joseph’s Hospital regarded Stone — to be substantially

limited by a physical impairment in the major life activity of

working.      Indeed, Stone and Calef were each objectively “treated

. . . as a person who should not be entrusted with the duties of

his [or her] regular job.”                   Stone, 538 S.E.2d at 406.                      Each

claimed,      however,    to     be   “able       and    competent        to    perform     the

services      required,”       W.     Va.    Code       § 5-11-9(1),           even    without

accommodation.       Where Stone’s and Calef’s cases diverge is the

alleged act of discrimination — that is, the alleged adverse

employment action — at issue.                 While Stone was merely reassigned

to a “light-duty” position at the same rate of pay and with no

job    detriment    while       awaiting      the       results    of     an     independent

medical examination, Stone, 538 S.E.2d at 397, Calef was forced

to “go home” and apply for disability benefits, J.A. 1101, with

                                             17
no sincere effort made by FedEx to evaluate her condition or to

return her to work.         In Calef’s words, FedEx directed her to

“[g]o home until you hear back from us and then they [didn’t]

call.     . . .    And that’s it.       The door closed.”         Id. at 1142-43.

     In       submitting         Calef’s        “regarded         as”      disability

discrimination claim to the jury, the district court deemed it

appropriate        to    require        the         jury   to     answer      special

interrogatories in keeping with West Virginia’s burden-shifting

evidentiary regime — a regime similar to that adopted for proof

of federal discrimination claims in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973).                See Skaggs, 479 S.E.2d at 582

(recognizing that burden-shifting regime requires plaintiff to

establish     prima     facie    case     of    discrimination,          employer    to

articulate        “legitimate,     nondiscriminatory            reason      for     its

actions,” and plaintiff to prove that proffered reason is “mere

pretext”).        The special interrogatories initially required the

jury to make findings on the elements of Calef’s prima facie

case,   by   asking,     inter    alia,       the    following:         whether   FedEx

“regarded [Calef] as disabled on February 24, 2004”; whether

Calef, on that date, “was able and competent to perform the

essential functions of the job of [P&D] Service[] Manager”; and

whether FedEx “took an adverse employment action against . . .

Calef.”      Judgment Order 1-3 (Interrogatory Nos. 1-2, 5).                        Each



                                          18
of     these        interrogatories        was    answered       in     favor    of    Calef. 6

Accordingly, the jury proceeded to Interrogatory No. 6, which

asked, “Do you find that [FedEx] articulated a legitimate, non-

discriminatory reason for taking its adverse employment action

against . . . Calef?”                    Id. at 3.        Because the jury answered

“No,” it was directed to enter a verdict in favor of Calef.                                 Id.

If the jury had answered “Yes,” it would have been obliged to

answer           Interrogatory       No.    7,        which     asked    whether       FedEx’s

“articulated reason for its adverse employment action against

. . .            Calef[]     was     a     pretext        for     unlawful        disability

discrimination.”             Id.

        In summary, the jury found that Calef proved a prima facie

case        of    disability       discrimination        and     that    FedEx    failed     to

articulate           a     legitimate,      nondiscriminatory            reason       for   its

adverse employment action.                 Thus, the jury entered a verdict for

Calef without reaching the issue of whether FedEx’s articulated

reason was a pretext for discrimination.




        6
        If the jury had found that Calef was not able and
competent to perform the essential functions of her job, it
would have been directed to assess whether she could have
performed those functions with reasonable accommodation and
whether FedEx provided such accommodation. See Judgment Order 2
(Interrogatory Nos. 3-4).



                                                 19
                                         III.

     As previously noted, FedEx raises nearly twenty contentions

of error in this appeal.                Because a discussion of all those

contentions would be unwieldy — and because the district court

has already engaged in a careful and thorough assessment of each

—   we    focus    herein    on   only    the     most    compelling       of    FedEx’s

arguments.        As for the other contentions, we are satisfied to

rely on the sound judgment of the district court without further

comment.

                                          A.

     We    begin    with     FedEx’s     contention       that    the    evidence     was

insufficient to support the jury’s finding that FedEx regarded

Calef    as   disabled.       FedEx      presented       this    contention      in   its

unsuccessful       motion,    made     pursuant    to     Federal       Rule    of   Civil

Procedure 50, for judgment as a matter of law.                           We review de

novo a district court’s denial of a Rule 50 motion, viewing the

evidence in the light most favorable to the prevailing party and

assessing     whether   there     was    a     legally    sufficient       evidentiary

basis for a reasonable jury to find for that party.                        See FDIC v.

Bakkebo, 506 F.3d 286, 294 (4th Cir. 2007).                       FedEx asserts two

independent       grounds    to   set     aside    the     jury’s       “regarded     as”

finding, which we address in turn.




                                          20
                                              1.

        First, FedEx maintains that “the jury could not reasonably

have found that [FedEx] regarded [Calef] as having anything but

a temporary impairment,” which cannot amount to a disability

under     the   WVHRA.        Br.   of     Appellant            24.   In        making   this

assertion, FedEx relies on a provision of the West Virginia Code

of State Rules defining what it means for a physical impairment

to     substantially       limit    a    major           life    activity       and,     thus,

constitute      a    disability.              This        provision     specifies        that

“[s]ubstantially limits does not include or mean minor temporary

ailments or injuries,” such as “colds or flu, or sprains or

minor injuries.”          W. Va. Code R. § 77-1-2.5.3; see also Hoops v.

Elk Run Coal Co., 95 F. Supp. 2d 612, 618 (S.D. W. Va. 2000)

(relying on Code of State Rules definition for conclusion that

car accident injuries — including eleven stitches removed one

week later and some bruises — were not substantially limiting or

perceived as such).           Significantly, however, the Code of State

Rules     excludes     only    minor       temporary            impairments       from     the

definition of disability — it does not preclude all temporary

impairments from ever being deemed disabling.                         And, indeed, the

Supreme      Court   of     Appeals      of        West    Virginia     has       explicitly

recognized, in its 1999 Haynes v. Rhone-Poulenc, Inc. decision,

that     a   temporary      impairment             can     constitute       a    disability

protected under the WVHRA.              See 521 S.E.2d 331 (W. Va. 1999).

                                              21
      In   Haynes,       the    state      supreme    court     held     that      the   WVHRA

protects    “a    person       who   has     a     disability     and    is     temporarily

unable to perform the requirements of the person’s job due to

[the] disability, with or without accommodation.”                             Haynes, 521

S.E.2d at 344.               In such circumstances, the court ruled, the

employer    may    be    required       to    provide     the   disabled          employee     a

temporary leave of absence as a reasonable accommodation.                                     Id.

Importantly       for    Calef,      the     Haynes    court    recognized         that       the

employee    may     be       temporarily         unable   to    work      because        of    a

disability resulting from a temporary impairment.                                  Haynes, a

chemical laboratory technician for Rhone-Poulenc, was disabled

by a “high-risk pregnancy, complicated by medical conditions.”

Id.   at   337.         In    discussing      Haynes’s     status       as    a    qualified

disabled person, the court emphasized that,

      in the context of this case, by disabling condition,
      we refer to a totally disabling medical condition of
      limited duration, so that following a temporary leave
      of absence for treatment and improvement, it is
      reasonably foreseeable that the plaintiff is likely to
      be able to return to work.

Id.   at   344    n.17       (emphasis     added).        Thus,    the    state      supreme

court’s Haynes          decision     clearly        forecloses    FedEx’s         contention

that a temporary impairment cannot constitute a disability under

the WVHRA. 7


      7
       We are not persuaded by FedEx’s attempts to evade Haynes.
FedEx asserts that Haynes “did not hold that a temporary
(Continued)
                                              22
     Simply    put,    the   lesson    of     Haynes       is    that   a    temporary

impairment     rises    to    the     level     of     a        disability     if   it

substantially limits a major life activity, or if it is regarded

as doing so.    And, as the district court observed,

     Calef argued, and the jury agreed, that FedEx regarded
     her as a disabled person who was unable to perform
     essential functions of her job[, thereby rendering her
     substantially limited in the major life activity of
     working].     Thus, whether FedEx [treated Calef as
     being]   only   temporarily  unable  to   perform such
     functions, or more permanently unable, is irrelevant;
     the WVHRA is applicable under either scenario.

Post-trial Order 8.          We agree with the district court that,

under controlling West Virginia law, the jury was entitled to

find that FedEx regarded Calef as disabled based on evidence




impairment can be a disability,” in that such issue was not
before the state supreme court because it was conceded by
defendant Rhone-Poulenc. Br. of Appellant 25. While it is true
that Rhone-Poulenc conceded disability, the court did not have
to accept such a concession, see Turner v. Holland, 332 S.E.2d
164, 165 (W. Va. 1985), and, indeed, the notion of Haynes’s
impairment being only temporarily disabling was central to the
court’s decision.   FedEx also misidentifies Haynes’s disability
as being “migraines and hypertension, neither of which was
temporary.”   Br. of Appellant 25.      The court observed that
Haynes   “had  suffered   for  some  time   from  migraines  and
hypertension,” but that she only became disabled after she
became pregnant.    Haynes, 521 S.E.2d at 333 (“[D]ue to her
hypertension, the plaintiff’s pregnancy was high-risk . . . .”);
id. at 337 (“The defendant does not contest that the plaintiff’s
high-risk pregnancy, complicated by medical conditions, met the
legal test of a disability.”).



                                       23
that        FedEx    treated      Calef    as       though    she     had   a   substantially

limiting impairment — whether temporary or long-term. 8

                                                    2.

        Next, FedEx asserts that the jury could not reasonably have

found        that      FedEx     acted    on    a    mistaken       belief      about   Calef’s

condition, “as required for a ‘regarded as’ claim.”                                      Br. of

Appellant           24.        Rather,    FedEx      maintains,       the    trial      evidence

demonstrates that it innocently relied on information provided

by Calef and her doctors.                  According to FedEx, “a defendant who

acts        in   response        to   information          from     the   plaintiff      or   her

doctors,         not      in   response    to   a        mistaken    assumption      about    the

plaintiff’s             abilities,        has       not      ‘regarded’         plaintiff      as

disabled.”           Id. at 30.       Unfortunately for FedEx, both aspects of

this theory — that the WVHRA requires proof of the employer’s

mistaken belief, and that the record inescapably shows FedEx’s

reliance on Calef and her doctors — are without merit.




        8
       On a related note, FedEx contends that the district court
erred in rejecting a proposed instruction requiring Calef to
prove that FedEx regarded her as having “an impairment that
substantially limited a major life activity and was not of a
temporary nature.”    J.A. 176 (emphasis added).    Because such
instruction is contrary to West Virginia law, the court properly
refused to include it in the jury charge.       Furthermore, the
court appropriately instructed the jury on the definition of
“substantially limits” set forth in West Virginia Code of State
Rules section 77-1-2.5.3.



                                                    24
      For   the        proposition       that       the    WVHRA        requires       proof   of

mistaken belief, FedEx invokes federal disability discrimination

law, noting that “[f]ederal courts have uniformly held that only

a mistaken belief can result in regarded as liability under the

ADA.”     Br. of Appellant 31 (citing, inter alia, Sutton v. United

Air Lines, 527 U.S. 471, 489 (1999)).                           FedEx then asserts that

“[t]here is no basis in the [WVHRA] to doubt that West Virginia

would    follow     these       ADA     decisions     and        hold    that    regarded       as

liability        requires       that     the    employer          be     mistaken       in     its

perceptions about the employee’s condition.”                             Id. at 31-32.          To

the contrary, the Supreme Court of Appeals of West Virginia has

addressed this very question and eschewed the subjective federal

approach.         In    its     2000     decision         in    Stone     v.    St.     Joseph’s

Hospital of Parkersburg, the court observed that the “regarded

as” issue is to be resolved by way of an objective test.                                       See

538     S.E.2d    389,      407       n.25   (W.     Va.        2000)     (explaining        that

“objective test” of whether employer treated employee as having

substantially          limiting        impairment         “does     not        focus    on     the

subjective motivation behind the behavior in question, but on

the behavior itself”); see also id. at 406 (recognizing that

question before jury was not “what the Hospital said about their

subjective view of Mr. Stone,” but rather “what the Hospital

did”).      Here,       there     was    sufficient            evidence    to    support       the



                                               25
jury’s finding that FedEx — whatever its subjective belief —

objectively treated Calef as being disabled.

     Moreover,    the    evidence     does     not,   as    FedEx   argues,

conclusively establish that FedEx merely acted on information

provided   by   Calef   and   her   doctors.     As   the   district   court

observed, there is

     [n]o doubt [that] FedEx relied in part on [the
     doctors’] notes in making its decision to place Calef
     on leave.    What it fails to comprehend, however, is
     that none of these notes indicated Calef was unfit to
     work or that she desired to be placed on leave.     In
     fact, during trial Calef testified that she was
     surprised and upset when FedEx told her she was no
     longer permitted to work, and she wanted “everyone [to
     know] that I was not asking to be put on short term
     disability.”    Moreover, the jury clearly found that
     Calef was still able and competent to perform the
     essential functions of her job on the date that FedEx
     placed her on leave, despite the limitations described
     in these notes.

Post-trial Order 15 (quoting J.A. 1102) (citation omitted).              In

these circumstances, we are constrained to affirm the denial of

FedEx’s Rule 50 motion with respect to the jury’s “regarded as”

finding.

                                     B.

     We turn next to FedEx’s argument, presented in its Rule 50

motion, that the trial evidence was insufficient to support the

jury’s finding that Calef was able and competent to perform the

essential functions of her P&D Service Manager position at the

time FedEx forced her to take disability leave.             See W. Va. Code


                                     26
R. § 77-1-4.2 (recognizing that job function may be considered

“essential” on several bases — for example, if “the reason the

employment position exists is to perform that function”).                                  The

merit    of    this       contention        largely     turns    on     whether     package

delivery was an essential function of Calef’s job — a factual

issue that was hotly disputed.

      At trial, FedEx took the position that, because Calef was

unable to lift more than twenty pounds, she was incapable of

performing      the       essential         function     of     delivering         packages.

FedEx’s evidence on this issue included the testimony of Chris

Davis, Calef’s immediate predecessor as P&D Service Manager at

the   Clarksburg          home    delivery     terminal,        who    averred      that   he

regularly      delivered          packages     while     holding       the   P&D    Service

Manager    position.             Calef   impeached       Davis       with    his   pretrial

deposition      testimony,          however,       in   which    he     omitted     package

delivery      from        a      detailed     list      of     P&D     Service      Manager

responsibilities.              Calef also presented the jury with written

job descriptions for the P&D Service Manager, prepared by FedEx,

that failed to identify package delivery among the enumerated

duties.       See, e.g., supra note 2 (discussing January 23, 2004

performance expectation plan provided to Calef by FedEx); see

also W. Va. Code R. § 77-1-4.2 (providing that, “if an employer

has     prepared      a       written    description          before    advertising         or



                                              27
interviewing applicants for the job, this description may be

considered evidence of the essential functions of the job”).

       The jury sided with Calef, finding that she was able and

competent to perform the essential functions of her job — and,

thus,   that    delivering     packages   was   not    one   of    them.    The

district court refused to disturb the jury’s finding, explaining

that,

       [w]hen viewed in the light most favorable to Calef,
       the evidence presented by Calef established that
       lifting and delivering packages was not an essential
       function of her job.      Furthermore, FedEx did not
       present any evidence that Calef could not perform
       other functions which were undisputedly “essential,”
       such as training and managing other employees, [and]
       joining contractors on two service rides a week . . .
       .   Accordingly, a reasonable jury . . . could have
       concluded [Calef] was able and competent to perform
       the essential duties of her job.

Post-trial Order 18.         Because the best we can say for FedEx is

that    the    evidence   on   the   “essential       functions”    issue   was

conflicting, we must affirm.         See Bakkebo, 506 F.3d at 294 (“If

reasonable minds could differ about the verdict, we are obliged

to affirm the ruling of the district court [denying Rule 50

relief].”).

                                     C.

       We next assess FedEx’s contention, also presented in its

Rule 50 motion, that its decision to place Calef on disability

leave “was a reasonable, nondiscriminatory action intended to

allow her to recover from what all expected would be a temporary

                                     28
impairment.”        Br.      of    Appellant      40.         In    so    asserting,       FedEx

relies on the following passage from the West Virginia supreme

court’s Stone decision:

        [T]he law recognizes the right of an employer to take
        reasonable job-related precautions in a fashion that
        is   consistent    with   the   duty    of   reasonable
        accommodation, while inquiring or obtaining medical
        information about an employee’s fitness for duty.
        Thus, the mere fact that the Hospital sent Mr. Stone
        for an independent medical examination did not prove a
        case of disability discrimination — nor did the mere
        fact that he was placed in a “light duty” assignment
        while he was awaiting such an examination and its
        results prove a case of disability discrimination.

538 S.E.2d at 407.            Based on the evidence before it, the Stone

court    concluded       that     the    Hospital       had    justifiably           reassigned

Stone “to another suitable full-time position, at the employee’s

regular    rate     of   pay      and    without    any       long-term         or   permanent

detriment to the employee, pending the results of an otherwise

permissible       medical       examination.”           Id.        at    408.        The   court

observed     that    such         conduct    —     “absent          otherwise        egregious

circumstances”           —      simply      “is     not        prohibited            disability

discrimination under our Human Rights Act.”                         Id.

        FedEx urges us to analogize its treatment of Calef to the

Hospital’s treatment of Stone.                    Such an analogy, however, is

impossible to draw.               FedEx did not reassign Calef to another

suitable position, at her regular salary and without any long-

term detriment to her.             Rather, FedEx forced Calef to “go home,”

file a claim for short-term disability benefits, and stay away

                                             29
from       work      until     FedEx       contacted     her      with      additional

instructions.         J.A. 1101.          Calef was then forced to subsist on

disability benefits, of finite duration, at a fraction of her

salary,      while    FedEx    spurned      her   requests   to    return    to    work.

Indeed, whereas the Hospital had proactively sought to ascertain

Stone’s      condition       and   ability    to    safely     work,     FedEx    simply

proclaimed Calef to be disabled and prematurely abandoned its

own    reasonable       accommodation       process     without    fully    examining

whether Calef could remain on the job.                    “Given this evidence,”

the district court observed, “Stone did not prohibit the jury

from       concluding     that     FedEx      had   engaged       in   impermissible

discrimination,         rather     than    reasonable    accommodation,          when   it

placed Calef on leave.”            Post-trial Order 20.         We agree. 9




       9
       We further agree with the district court’s observation
that, “because the jury found that Calef was able and competent
to perform the essential functions of her job when FedEx
directed her to go on leave, it is not surprising that the jury
rejected FedEx’s explanation that its actions were legitimate
and non-discriminatory.”  Post-trial Order 20.   In view of the
evidence and the verdict, the jury very well may have concluded
that FedEx concocted package delivery as an essential function
of the P&D Service Manager position as part of a scheme to get
rid of Calef by deeming her incapable of performing her job. Of
course, even if FedEx was motivated by a personal animus against
Calef — unrelated to any perceived disability — it is
nevertheless liable for disability discrimination under the
WVHRA. See Stone, 538 S.E.2d at 407 n.25.



                                            30
                                            D.

       Finally, we assess FedEx’s assertion that it is entitled to

a new trial, under Federal Rule of Civil Procedure 59, on the

ground      that   the    jury     did    not    make     a     requisite      finding    of

pretext.       We review a district court’s denial of a Rule 59

motion for abuse of discretion, and such ruling “will not be

reversed save in the most exceptional circumstances.”                             Bakkebo,

506 F.3d at 294 (internal quotation marks omitted).

       As discussed above, the jury was directed to answer special

interrogatories in keeping with West Virginia’s burden-shifting

evidentiary regime.          Once the jury found in Calef’s favor on the

elements     of    her    prima    facie       case,    it    proceeded     to    consider

whether      FedEx   “articulated          a     legitimate,          non-discriminatory

reason for taking its adverse employment action against . . .

Calef.”      Judgment Order 3 (Interrogatory No. 6).                        Because the

jury answered “No,” it then entered a verdict for Calef.                                 Id.

If    the   jury   had    instead    answered          “Yes,”    it    would     have   been

obliged to consider whether FedEx’s “articulated reason for its

adverse employment action against . . . Calef[] was a pretext

for unlawful disability discrimination.”                      Id. (Interrogatory No.

7).

       In seeking a new trial, FedEx points out that, under the

burden-shifting          regime,    “if    a     defendant        has    articulated       a

legitimate[,] nondiscriminatory reason, the jury cannot find in

                                            31
favor        of     the     plaintiff      unless       it    finds        that       defendant’s

explanation is a pretext.”                   Br. of Appellant 43.                      And, FedEx

contends,          “[t]here    is   no    room    for    debate          about    whether        [it]

articulated a nondiscriminatory reason for putting [Calef] on a

paid leave” — that reason being “to prevent [Calef] from further

injuring herself and to give her a chance to heal.”                                    Id. at 43-

44.     Thus, according to FedEx, the jury’s finding that FedEx did

not articulate a legitimate, nondiscriminatory reason for the

leave decision “cannot stand.”                   Id. at 44.

      Fatal to FedEx’s contention, the jury could have found that

FedEx did not satisfy its burden if either (1) FedEx gave no

reason for its decision to force Calef to take disability leave,

or    (2)         FedEx’s     proffered      reason          was    not        legitimate         and

nondiscriminatory.             Because it is clear that FedEx proffered a

reason for the leave decision, the jury necessarily found that

such reason was not legitimate and nondiscriminatory.                                       And, the

evidence was sufficient to sustain that finding — as we already

explained in rejecting FedEx’s effort to secure Rule 50 relief

on    the         ground    that    the     leave       decision         was      a    reasonable

accommodation, not impermissible discrimination.

        To    be    sure,     the   form    of    the    special         interrogatories             —

particularly the application of the burden-shifting regime — was

imperfect.           The burden-shifting regime was intended for use in

deciding          pretrial     dispositive       motions,          and    “was        not    .   .   .

                                              32
necessarily designed to facilitate jury analysis.”                        Skaggs v.

Elk Run Coal Co., 479 S.E.2d 561, 585 (W. Va. 1996).                      Moreover,

the purpose of the burden-shifting regime is to ferret out and

prove discriminatory animus, see id. at 581 — but, as we have

emphasized     herein,   discriminatory    animus       is    not    an   essential

element   of    a   WVHRA   “regarded    as”    disability          discrimination

claim, see Stone, 538 S.E.2d at 407 n.25.                    In any event, the

special interrogatories were sufficient to elicit jury findings

on each of the elements of Calef’s claim:

     ●     That Calef was a qualified disabled person under
           the WVHRA, in that FedEx objectively treated her
           as being substantially limited in the major life
           activity of working, see Stone, 538 S.E.2d at
           406;

     ●    That Calef was actually “able and competent to
          perform the services required,” W. Va. Code § 5-
          11-9(1), even without accommodation; and

    ●     That   FedEx   subjected  Calef   to  an   adverse
          employment action — one which amounted to
          “prohibited disability discrimination,” rather
          than    a   permissible   effort   at   reasonable
          accommodation, Stone, 538 S.E.2d at 408.

Additionally,       FedEx    did   not         object        to     the     special

interrogatories — which the district court based on proposed

interrogatories submitted by FedEx itself.                   As such, FedEx has

waived any challenge to the form of the interrogatories.                     See AG

Sys. v. United Decorative Plastics Corp., 55 F.3d 970, 973 (4th

Cir. 1995).     Accordingly, we affirm the district court’s denial

of FedEx’s Rule 59 request for a new trial on the ground that

                                    33
the jury was required, but failed, to make a finding on the

pretext issue. 10



                              IV.

     Pursuant to the foregoing, we affirm the judgment of the

district court.

                                                        AFFIRMED




     10
        As explained above, we reject the balance of FedEx’s
appellate contentions and, in so doing, adopt the reasoning of
the district court.   As presented in its Rule 50 motion, FedEx
asserts that it is entitled to judgment as a matter of law on
the ground — properly deemed by the district court to be moot —
that it did not owe Calef a duty of reasonable accommodation
because she was only regarded as disabled.     Furthermore, FedEx
requests a new trial under Rule 59 on three additional grounds
(two with multiple subparts): that the verdict was against the
clear weight of the evidence; that the district court made four
erroneous evidentiary rulings; and that the court committed four
instructional errors (including the purported error discussed
supra note 8).    Lastly, FedEx challenges four aspects of the
court’s rulings on damages and attorney fees:      the refusal to
offset Calef’s back pay award by the amount of disability and
medical benefits that she received; the inclusion of law school
costs as an element of damages; the refusal to reduce the back
and front pay awards to account for periods when Calef was
unable to work (a contention that was probably not preserved);
and the failure to fully exclude work on the time-barred sex
discrimination claim from the attorney fee award.



                               34
