United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 20, 2012 Decided April 13, 2012

No. 11-5017

JEFFREY KAPCHE, APPELLANT/CROSS-APPELLEE

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES,

APPELLEE/CROSS-APPELLANT

Consolidated with 11-5018

Appeals from the United States District Court for the District of Columbia

(No. 1:07-cv-2093)

John W. Griffin, Jr. argued the cause for the appellant/cross-appellee. Katherine L. Butler and David Cashdan were on brief. Michael A. Greene was on brief for amicus curiae American Diabetes Association in support of the appellant/cross-appellee. Lindsey Powell, Attorney, United States Department of Justice, argued the cause for the appellee/cross-appellant.

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Tony West, Assistant Attorney General, Ronald C. Machen Jr., United States Attorney, and Marleigh D. Dover, Attorney, were on brief. Anisha S. Dasgupta, Attorney, United States Department of Justice, and R. Craig Lawrence, Assistant United States Attorney, entered appearances. Before: HENDERSON, GARLAND and BROWN, Circuit Judges. Opinion for the Court filed by Circuit Judge HENDERSON. KAREN LECRAFT HENDERSON, Circuit Judge: Jeffrey Kapche (Kapche) sued United States Attorney General Eric H. Holder, Jr. (Holder), alleging that the Federal Bureau of Investigation (FBI) refused to hire him as a special agent because of his Type 1 diabetes in violation of the Rehabilitation Act of 1973 (Act), 29 U.S.C. 701 et seq. A jury found in favor of Kapche and awarded him $100,000 in compensatory damages. Subsequently, the district court denied both Holders motion for judgment as a matter of law and Kapches request for equitable relief. Kapche appeals the denial of equitable relief and Holder cross-appeals the denial of judgment as a matter of law. For the following reasons, we affirm the district court.

I. Facts

Kapche is a Type 1 insulin-dependent diabetic who manages his condition by injecting himself with insulin several times daily and managing his diet, exercise and blood sugar. Kapche applied for a special agent position with the FBI in February 2002, and, in November 2004, the FBI offered Kapche a conditional offer of employment pending Kapches successful completion of a medical examination and background investigation. On January 23, 2005, the FBI revoked Kapches conditional offer because it determined he

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could not adequately manage his diabetes and that consequently he would be unable to perform certain functions of a special agent. Kapche then filed an internal discrimination complaint alleging that the FBI declined to hire him because of his diabetes. The FBI and Kapche agreed to a settlement pursuant to which the FBI reinstated Kapches conditional offer of employment and resumed processing his application.

As part of its reconsideration, the FBI conducted a Personnel Security Interview (PSI) with Kapche on November 22, 2006 during which Kapche represented that he had never been disciplined by a current or former employer. In a follow-up inquiry with his then-employer, the Fort Bend County (TX) Sheriffs Office (FBCSO), however, the FBI learned that the FBCSO had suspended Kapche for two weeks and placed him on 180 days probation for unauthorized use of gasoline from FBCSOs gasoline tank in September 2005. After giving Kapche an opportunity to explain his omission during the PSI, the FBI concluded that Kapches explanation varied from the explanation he had provided his FBCSO supervisors. Based on its conclusion, the FBI decided that Kapche was unsuitable for employment as a special agent because of a proven lack of candor and, on March 1, 2007, revoked his conditional offer of employment.

On March 14, 2007, Kapche filed a complaint under section 501 of the Act, 29 U.S.C. 791(g), against then-Attorney General Alberto Gonzales challenging the FBIs January 2005 decision to revoke his conditional offer.1

1 Kapche originally filed his complaint in the United States District Court for the Southern District of Texas but, on the defendants motion, the case was transferred to the United States District Court for the District of Columbia. See Order at 10, Kapche v. Gonzales, No. 6:07-cv-0031 (S.D. Tex. Nov. 2, 2007).

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Kapche argued that he was protected under the Act because his Type 1 diabetes substantially limited several of his major life activities, including eating and caring for himself, and was therefore a disability within the meaning of the Act. On May 20, 2009, a jury returned a verdict in Kapches favor, finding that the FBI had unlawfully discriminated against him and awarding him $100,000 in compensatory damages.2

The district court then considered what equitable relief, if any, Kapche was entitled to under the make whole rubric.

Holder moved for judgment as a matter of law under Federal Rule of Civil Procedure 50, asserting that there was insufficient evidence to support the jurys determination that Kapche suffered from a disability. According to Holder, the evidence did not establish that Kapches Type 1 diabetes substantially limited him in any major life activity. The district court denied the motion, concluding that Kapche produced sufficient evidence to support the jurys determination that Kapches Type 1 insulin-dependent diabetes substantially limit[ed] the manner in which he perform[ed] the major life activities of eating and caring for himself when compared to an average person in the general population. Mem. Order at 4, Kapche v. Holder, No. 1:07-cv-2093 (D.D.C. Sept. 11, 2009) (brackets in original; internal quotation marks omitted).

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2 At a pre-trial hearing, the district court determined that the FBIs January 2005 revocation was the relevant employment action and that the FBIs after-acquired reasons for not hiring [Kapche] were relevant only with regard to the availability of equitable remedies. Tr. of Pretrial Conf. at 3-4, Kapche v. Holder, No. 1:07-cv-2093 (D.D.C. Apr. 20, 2009). The district court accordingly excluded any evidence of Kapches alleged lack of candor or of the underlying incident involving the FBCSO. Id.

3 The Act borrows from Title VII of the Civil Rights Act of 1964 in setting out the remedies available for disability

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After a hearing and briefing by the parties, the court denied Kapches motion to preclude Holder from applying his after-acquired evidence defense to Kapches request for equitable relief. It determined that Kapche was entitled to neither front pay nor instatement because Holder had presented after-acquired evidence that the FBI would have revoked Kapches conditional offer of employment on March 1, 2007 regardless of his diabetes because of his proven lack of candor during his background investigation. As to back pay, the court accepted Holders experts testimony that Kapche earned more at the FBCSO than he would have earned as an FBI special agent between January 23, 2005 and March 1, 2007. The district court then ordered that final judgment be entered in Kapches favor in the amount of $100,000 with costs.4

Kapche timely appealed as did Holder on cross-appeal. We turn to Holders cross-appeal first and then address Kapches appeal.

II. Denial of Judgment as a Matter of Law

We review de novo the denial of a motion for judgment as a matter of a law but [w]e do not . . . lightly disturb a jury verdict. Novak v. Capital Mgmt. & Dev. Corp., 570 F.3d 305, 311 (D.C. Cir. 2009) (modifications in original; internal discrimination. See 29 U.S.C. 794a(a)(1); infra note 12. [T]he purpose of Title VII [is] to make persons whole for injuries suffered on account of unlawful employment discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). 4 The district court also denied Kapches motion to alter judgment pursuant to Federal Rule of Civil Procedure 59(e). See Order at 1-3, Kapche v. Holder, No. 1:07-cv-2093 (D.D.C. Nov. 30, 2010). Kapche appealed this denial as well but he has forfeited the issue because he failed to pursue it in his opening brief. See Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008) (issue not argued in opening brief is forfeited . . . on appeal).

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quotation marks omitted). Judgment as a matter of law is proper if the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the nonmoving party. Breeden v. Novartis Pharm. Corp., 646 F.3d 43, 53 (D.C. Cir. 2011) (quoting Fed. R. Civ. P. 50(a)(1)).

Section 501 of the Act, 29 U.S.C. 791(g), prohibits federal agencies from discriminating in employment on the basis of a disability. At the time of the challenged discrimination, a disability was defined in relevant part as a physical or mental impairment which substantially limits one or more . . . major life activities. 29 U.S.C. 705(20)(B)(i) (2006); see Desmond v. Mukasey, 530 F.3d 944, 946 (D.C. Cir. 2008). In assessing Kapches claim, the court employs the same standards used to determine liability under the American