Tina Smith v. CSRA ( 2021 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1377
TINA SMITH,
Plaintiff – Appellant,
and
ROBERT FARNSWORTH,
Plaintiff,
v.
CSRA; MERRICK B. GARLAND, Attorney General,
Defendants – Appellees,
and
GENERAL DYNAMICS CORPORATION,
Defendant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, Senior District Judge. (1:18-cv-00915-LO-JFA)
Argued: May 5, 2021 Decided: September 1, 2021
Before GREGORY, Chief Judge, QUATTLEBAUM, Circuit Judge, and KEENAN, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by published opinion. Chief Judge Gregory
wrote the opinion, in which Judge Quattlebaum and Senior Judge Keenan joined.
ARGUED: Joshua Harry Erlich, THE ERLICH LAW OFFICES, PLLC, Arlington, Virginia,
for Appellant. Rebecca Sara Levenson, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia; Joseph Richard Ward, III, KULLMAN FIRM, PC, Englewood,
Colorado, for Appellees. ON BRIEF: Davia Craumer, Katherine L. Herrmann, THE
ERLICH LAW OFFICE, PLLC, Arlington, Virginia, for Appellant. G. Zachary Terwilliger,
United States Attorney, Meghan Loftus, Assistant United States Attorney, Catherine M. Yang,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee Merrick B. Garland.
2
GREGORY, Chief Judge:
Tina Smith (“Smith”) appeals from the district court’s entry of summary judgment
in favor of government contractor CSRA, Inc. (“CSRA”) and the Attorney General of the
United States 1 in his capacity as the federal official in charge of the Drug Enforcement
Administration (“DEA”), on claims of disability discrimination and retaliation in violation
of the Rehabilitation Act of 1973 (the “Rehabilitation Act”), 29 U.S.C. § 791 et seq., and
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. We affirm the
district court’s summary judgment as to Smith’s disability discrimination claim but vacate
summary judgment as to her retaliation claim and remand for further proceedings.
I.
A.
We “review[ ] de novo the district court's order granting summary judgment.” Jacobs
v. N.C. Admin. Office of the Cts., 780 F.3d 562, 565 n.1 (4th Cir. 2015). “A district court
‘shall grant summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.’” Id. at 568(quoting Fed. R. Civ. P. 56(a)). “A dispute is genuine if a reasonable jury could return a
verdict for the nonmoving party.” Id. (internal quotation marks omitted). In determining
whether a genuine dispute of material fact exists, “we view the facts and all justifiable
1
Smith’s Second Amended Complaint names Matthew Whitaker, the Acting Attorney
General of the United States at the time of its filing. The Court substituted Attorney General
Merrick Garland as the named party, in his capacity as the current Attorney General of the
United States.
3
inferences arising therefrom in the light most favorable to . . . the nonmoving party.” Id.at 565 n.1 (internal quotation marks omitted).
Smith is a geospatial intelligence expert who in 2013 began working with DEA as
a subcontractor assigned to the agency’s geospatial intelligence program (the “Program”).
Smith worked at the direction of DEA’s Chief Technology Officer Mark Shafernich at
DEA’s Sterling, Virginia Data Center.
At the beginning of their working relationship, Smith informed Shafernich that she
has a disability that adversely affects her mobility, limiting her ability to stand, walk, sit,
ascend and descend stairs, and drive. Shafernich authorized accommodations for Smith’s
disability, including (1) a remote work “token” that gave her secure access to DEA’s
sensitive but unclassified infrastructure while working offsite, and (2) onsite parking at the
Sterling Data Center, where DEA provided her with an office and equipment to perform
her duties. DEA retained sole authority to activate and/or revoke its remote tokens.
In 2015, Smith formally requested (with supporting medical documentation) and
was granted an accommodation for her disability that authorized her to work remotely 50
percent of the time. From this point through 2017, Smith received positive performance
reviews from Shafernich as well as other DEA and contractor employees and consultants.
In 2016, CSRA became the prime contractor for an information technology contract
with the Department of Justice and assumed responsibility for supplying the subcontracted
labor under its contract with DEA. CSRA Program Manager Scott Barnhart coordinated
the DEA task order as part of the prime contract. Barnhart did not manage her day-to-day
4
activities or schedule. Instead, DEA directed her work in the form of identified
deliverables.
When CSRA took over, Shafernich requested to retain Smith in the Program. On
June 7, 2016, Smith, through her company, Smith Global, LLC, entered into a subcontract
(the “Consultant Agreement”) with CSRA to continue in her position. The Consultant
Agreement provides in part:
[T]he Consultant’s relationship to [C]SRA shall be to provide services on an
independent contractor basis. Nothing in this agreement should be construed
to create a . . . employer-employee relationship. Consultant (a) is not the
agent of [C]SRA; . . . and (c) will not be entitled to and waives any right to
any benefits that [C]SRA makes available to its employees, such as group
insurance, holidays or paid time off, and 401(k) eligibility and match.
Consultant will not be entitled to or covered by worker’s compensation
coverage, unemployment insurance or any other type or form of insurance
normally provided by [C]SRA for its employees. [C]SRA will not be
responsible for withholding federal income or social security taxes from the
fee paid to the Consultant.
J.A. 101. 2
The Consultant Agreement further provided that either party could terminate the
Agreement “at any time and without cause,” J.A. 103, and that the “Place of Performance”
included “Various sites as directed by Customer and/or [C]SRA.” J.A. 100. The
Agreement also provided that DEA determined the work hours for performing the
contracted services. Smith’s position did not change in substance or structure under the
Consultant Agreement. She continued to work, with accommodations, under Shafernich’s
supervision at the Data Center alongside both CSRA and DEA employees.
2
Citations to “J.A. __” refer to the Joint Appendix filed by the parties in this appeal.
5
In April 2017, Smith met with Maura Quinn, DEA’s Acting Deputy Assistant
Administrator with the Office of Information Systems, to brief her on the Program.
According to DEA, Quinn became dissatisfied during the meeting when Smith was unable
to answer questions about the Program. As a result, on April 25, 2017, Quinn directed that
Smith and her project partner, CSRA employee Joseph Marceau, begin reporting to DEA
headquarters on May 1, 2017, to work under the supervision of DEA Project Manager
Kevin Tseng and Section Chief Mildred Tyler.
Smith believed the transition to DEA headquarters was so that the contractors could
“fully brief” the headquarters team “to make sure they understood where the project was
and the next steps for moving forward” and could “get[] control” of the Program’s
resources. J.A. 539, 797, 799. But according to Quinn, she moved the Program from the
Sterling Data Center to DEA headquarters because she had formed the impression that
Smith’s services may not have been serving DEA’s interests and needs, and that Smith may
not have the technical skills necessary to achieve DEA’s goals for the Program.
For Quinn, the meeting with Smith also confirmed her concerns with Shafernich’s
oversight of the Program in Sterling. She concluded that new leadership of the Program at
DEA headquarters was needed to ensure the Program better met DEA’s law enforcement
needs, particularly the need to expand access to geospatial intelligence materials to agents
throughout the DEA. Quinn had also learned that the Program duplicated the efforts of
another DEA geospatial program in El Paso, Texas which, unlike the Program in Sterling,
was utilizing “the latest technology.” J.A. 1202. Quinn decided it was necessary to
6
consolidate the programs, and Tseng was tasked with managing the transition and
decommissioning the Sterling Program.
Upon learning of the transition to a new task manager and that she would be required
to work at DEA headquarters, Smith lobbied to maintain her previous remote work and
task monitoring arrangement. Before the change in work location took effect, Smith stated
that there was “a case for location flexibility based on the task priorities and [her] physical
disability” and reminded Barnhart and Shafernich that she “works remote[ly] 50% of the
time due to physical disability, per medical provider letter to DEA.” J.A. 848. Barnhart
responded to Smith, explaining that the matter “will need to be worked and passed through
[Tyler] and [Tseng].” J.A. 848.
Barnhart’s response was consistent with CSRA’s informal policy for handling
subcontractor accommodation requests. CSRA refers the subcontractor to the company
that employs them, facilitates communications between that company and the government
client to whom the subcontractor is assigned, and lobbies the government client for the
accommodation. DEA’s accommodation policy (the “Accommodation Policy”)
establishes procedures for considering employee accommodation requests but makes no
reference to contractors. DEA’s EEO office analyzes whether a contractor’s
accommodation request that “is otherwise reasonable and properly supported by medical
documentation can and should be provided by DEA as opposed to the contractor’s
company.” J.A. 338. DEA expects the contract representative for the prime contractor
company, in this case Barnhart, to be involved in accommodation discussions.
7
DEA officials did not respond to Smith’s request to continue her remote work
arrangement before she was required to report to DEA headquarters. On May 2, 2017, the
first day she reported to work at that location, Smith asked Tyler for permission to park
onsite and to continue working remotely up to 50 percent of the time based on the
accommodation Shafernich had approved. Smith supported her request with an updated
letter from her physical therapist describing her current physical limitations. J.A. 511.
Without a parking pass, Smith was forced to park either at an adjacent hotel or shopping
mall. Both options required her to walk a distance she was unable to manage due to her
disability. Consequently, Smith intermittently continued to work remotely while awaiting
formal approval of her accommodation despite notification that she was not authorized to
do so.
Tyler responded to Smith’s request on May 5, stating, “I cannot approve your
remote work request until we are able to review the contractual agreement (ITSS-4 at DOJ)
that addresses your special needs. We are also seeking information to determine the
appropriate documentation required for such requests.” J.A. 855. Tyler ultimately rejected
Smith’s documentation from her physical therapist and demanded a letter from her primary
care physician.
Tyler then referred Smith’s accommodation request to Michelle Bower (Quinn’s
deputy) and DEA Section Chief Evelyn Wideman, who coordinated with DEA’s EEO
office. DEA reviewed its contract with CSRA and concluded it could not grant the request.
First, the contract did not expressly provide for remote work. Although Shafernich had
previously authorized Smith to work remotely, DEA concluded that he had no authority to
8
do so. Second, DEA’s Accommodations Policy did not apply to Smith because she was a
CSRA contractor, not a DEA employee. Finally, the terms of DEA’s building lease limited
the issuance of parking passes to employees.
On May 7, 2017, Smith asked to meet with Barnhart and Tyler at DEA headquarters
to discuss her schedule for the next thirty days as well as accommodations for her disability.
She emphasized that resolving the issue was “key for this transition to work.” J.A. 852.
The next day, Tyler informed Smith that the DEA could not provide her a parking pass
because she was a contractor and not a DEA employee. Smith emailed Barnhart and
Shafernich for guidance, reiterating that she was physically unable to walk “back and forth
from the mall without significant degeneration” and needed reasonable accommodations
at DEA headquarters to continue working there. J.A. 851. Shafernich forwarded Smith’s
email to Bower and asked that Smith be accommodated.
Having heard nothing more from Tyler, on May 10, 2017, Smith emailed her about
her accommodation request. “I hope there will be some handicap accommodations soon
so I can continue working and not stressing over the time being lost. My apologies for my
frustrations, this is a disability I have no control over.” J.A. 850. Tyler responded that
DEA and CSRA management would discuss her situation later that morning and would
provide guidance going forward. Smith was not invited to participate. When Smith
inquired about the outcome of the discussion, Tyler referred her to Barnhart, who
responded:
Tina – DEA is interested in having you support them in a part time capacity
going forward. They can not [sic] accommodate your parking request as they
consider you a non-employee. They value what you bring and wish to
9
continue working with you and this is why they will adjust to a part time
posture, to help with your physical demands. They are assembling this desire
via the JMD COR [Justice Management Division Contracting Officer’s
Representative], per my request, so we have their formal intention. They
would like you onsite three days a week and a schedule that is pretty firm,
say Monday, Tuesday, Thursday. Once I have their formal intent I’ll host a
call between myself, CSRA subk, and you to answer any questions and
ensure we are tracking.
J.A. 503.
Smith responded, “[I]t is unlawful to discriminate against me for my known disability that
I have been working with at DEA for 4 yrs. I do not agree to them discontinuing my
reasonable accommodations and thinking it is ok to now cut my hours in half because I am
physically disabled. Take no further steps on this action.” Id.Despite her disapproving response to Barnhart’s email, Smith nonetheless provided
the medical documentation Tyler demanded on May 15, 2017. Her primary care
physician’s May 9, 2017, letter stated:
Ms. Tina Smith has been my patient for several years. She has a history of
chronic back pain with functional limitations following a 2009 surgery for
multiple level spinal fusions (at the level of L3-4-5-S1). She has been under
the constant care of a physical therapist where she is working on improving
her function.
Ms. Smith continues to have difficulty with walking, sitting or standing for
extended periods of time due to the back spinal fusions and cervical disc
degenerations. These activities lead to weakness, numbness/tingling, and
pain in the extremities.
Over the last several years, she has had the accommodation to work 50% of
the time at a remote location where she is able to fully perform her job tasks
as well as preserve her joint function by decreasing the gravitational load on
the spine. She also requires a handicap parking space to limit the need to
walk distances when coming in to [sic] the office.
J.A. 510.
10
On May 19, 2017, JMD COR documented its formal proposal outlining the
parameters of a part-time scheduling accommodation for Smith as Barnhart said it would.
Unlike the proposed accommodation Barnhart described in his email, which Smith
interpreted as limiting the maximum number of hours she could work, the formal proposal
allowed Smith to work up to five days a week at her discretion. Notably, the proposal still
failed to offer Smith a parking pass. In any event, neither DEA nor CSRA communicated
this formal offer of accommodation to Smith; Barnhart’s May 10, 2017, email to Smith
was the last communication she received from DEA or CSRA regarding a disability
accommodation. In the meantime, Smith continued to report to DEA headquarters only
intermittently–nine days in May and three days between June 1 and June 11. She continued
to work remotely and billed DEA for fourteen days of unauthorized telework. CSRA
initially expressed support for Smith’s accommodation requests, but because they involved
DEA facilities and DEA consent, Barnhart and CSRA pressed Smith to work onsite at
headquarters as DEA had instructed until her accommodation request was resolved.
DEA alleges that during this time, DEA officials developed concerns about Smith’s
technical skills and her response to the relocation of the Program to DEA headquarters
under Tseng’s and Tyler’s management. DEA leadership described Smith’s conduct as
“stonewalling” and lacking a “collaborative spirit.” J.A. 1684, 1686. According to DEA,
Smith often refused to complete tasks Tseng and Tyler requested or to provide the
deliverables they asked for, or sometimes provided them in a piecemeal and disorganized
fashion. She chose instead to work on matters she prioritized rather than help them learn
about the Program or respond to their list of priorities. Smith continued to attend offsite
11
meetings that DEA determined were not in its interests, refused to use the required time
tracking system for subcontractors, and did not provide required weekly status reports. By
her own admission, Smith found the tasks Tyler and Tseng asked her to complete “silly,”
“outlandish,” “too much work,” and “not a smart business decision.” J.A. 1325–26, 1463.
And despite DEA’s repeated instructions that she was not authorized to telework, Smith
continued to work remotely.
On May 23, 2017, Tyler emailed Barnhart that she had met with Smith to discuss
her job duties in support of the Program. In response to another reminder that remote work
was prohibited, Smith told Tyler that she “could only come into the office once a week
and/or daily with a parking permit due to her disability.” J.A. 205. Smith requested a
meeting with Tyler, Barnhart and the EEO office to discuss her pending accommodation
request. Tyler asked Barnhart to discuss the proposed meeting with Smith and to schedule
it if CSRA, as the prime contractor, wanted to “bring these issues up for discussion with
the government.” Id.CSRA did not schedule the meeting Smith requested. On May 26, 2017, Barnhart
instead arranged a conference call between himself, Smith, and CSRA’s HR Director,
Colleen Bjork. Bjork informed Smith she was required to report to DEA headquarters five
days per week, and because she was not, she was not meeting DEA’s expectations or
satisfying the requirements of her role. Thus, Smith had “to make a decision” about
“looking for another position” because DEA would not accommodate her requests. J.A.
1565. Smith requested a week to respond. J.A. 204, 1565. Barnhart memorialized the
meeting in an email to Tyler, reporting that he spoke with Smith and explained that “CSRA
12
is not obligated to provide accommodations for her and neither is the Government.
Regardless of what has happened before the requirement for her role has changed and she
needs to make a decision if she wishes to continue or not. Tina asked for a week to make
this decision.” J.A. 204.
On May 29, 2017, Smith filed a complaint with DEA’s EEO office alleging the
agency’s failure to accommodate her disability. Just two days later, on May 31, 2017,
Tyler directed Barnhart to retrieve “all government equipment . . . being used to support
[Smith’s] remote access,” including her remote work token. J.A. 480. The following day,
Barnhart instructed Smith to return the remote token upon her return to DEA headquarters.
On June 7, 2017, before returning the token, and despite instructions to raise concerns with
Barnhart and Tseng, Smith asked Quinn directly if she should keep the token. Tyler
responded on Quinn’s behalf that “[a]s discussed with you and [Barnhart] on a few
occasions, remote access is not an option for you.” J.A. 528.
Then, within a matter of days, Quinn revoked Smith’s security clearance, and CSRA
terminated the Consultant Agreement. In the days prior to this action—as early as June
1—Tyler and Barnhart had discussed terminating Smith’s contract with CSRA. Tyler told
Barnhart that once he had retrieved the government equipment supporting Smith’s remote
work and Tseng had access to Smith’s work files, “it will be your call to release Tina on
Friday, June 2nd.” J.A. 479. But then on June 5, DEA’s EEO office issued Smith a
parking pass that would permit her to park in the DEA headquarters parking garage. On
June 7, Tyler asked for “an update on [his] decision to release” Smith. J.A. 479-80. But
Barnhart had taken no action. He had been surprised to learn that Smith had received a
13
parking pass. He informed Tyler that he was prepared to fire Smith on June 5 but “deferred
from that action” when he learned the parking accommodation had been granted. J.A. 479.
“[S]ince our discussion with [Smith] was to arrive and report to work at headquarters
everyday [sic] or resign” and “[w]ith the parking pass approval it appeared that this matter
resolved itself.” Id.Just two days later, on Friday, June 9, 2017, Quinn informed Barnhart that DEA
intended to revoke Smith’s security clearance. Quinn instructed Barnhart to let Smith
complete the workday and to inform her of the revocation over the weekend. Barnhart
informed Smith as directed on Sunday, June 11, 2017. CSRA terminated its Consultant
Agreement with Smith the following day. Without her security clearance, she was no
longer able to provide contracted work at DEA headquarters. Smith asked DEA and CSRA
to explain why her security clearance had been revoked but received no response.
Quinn did not offer Barnhart any explanation for her decision to revoke Smith’s
security clearance. Quinn’s email correspondence, however, indicates that on June 2, 2017,
EEO Program Manager Charmaine McDaniel (“McDaniel”) contacted Quinn regarding an
“EEO issue” involving Smith. After speaking to one EEO counselor directly, Quinn
scheduled a teleconference with McDaniel to discuss the matter on Monday, June 5. See
J.A. 929–31. Additionally, on June 6, Tyler forwarded Quinn a June 5 email she received
from McDaniel. McDaniel informed Tyler that she was conducting a limited inquiry
regarding an informal EEO complaint Smith filed against DEA based in part on the
agency’s failure to accommodate her disability by refusing her request to work remotely
and denying her a parking pass. McDaniel requested an interview with Tyler as part of the
14
investigation of the complaint. J.A. 921. Tyler forwarded the email to Quinn with the
message, “FYI.” Id.After Smith’s departure, Quinn stated she revoked Smith’s security clearance
because she made statements at a June 7, 2017, meeting indicating that she was storing
DEA documents on her personal computer in violation of the DEA’s information security
policy. But a June 16, 2017, memorandum Tyler prepared to document DEA’s concerns
with Smith’s “support and attendance” makes no mention of a security violation resulting
in the revocation of Smith’s security clearance. It does, however, document DEA’s
concern about Smith working offsite. Tyler noted that Smith reported 164 hours of work
on her timesheets for the month of May but had worked on site at DEA headquarters 11
days, the equivalent of 88 “validated” work hours. J.A. 793–94. Tyler outlined other
concerns with the contract support Smith provided, including that she was “not cooperative
or communicated well in providing information and/or data to the new government Project
Manager that has hindered progress on the project,” and was “resistant [sic] in providing
and/or responding” to ‘numerous’ requests,” for various types of information about the
Program. J.A. 794-95.
B.
Smith filed a civil action alleging disability discrimination and retaliation in
violation of the Rehabilitation Act against DEA, and in violation of both the Rehabilitation
Act and the ADA against CSRA. She alleged CSRA and DEA “violated [her] right to
reasonable accommodation of her disability,” J.A. 27, and terminated her in “reprisal for
having opposed the discriminatory actions about which she had complained.” J.A. 28.
15
Following discovery, CSRA and DEA filed separate motions for summary
judgment. CSRA argued that Smith could not pursue a claim under the Rehabilitation Act
against CSRA, and that her ADA claims failed because Smith was an independent
contractor and ultimately could not show that CSRA violated the ADA. DEA argued that
the court, without deciding whether DEA was Smith’s joint employer, should find that
Smith’s claims failed as a matter of law because she could not show that DEA failed to
provide a reasonable accommodation, or that DEA terminated her services due to
retaliatory animus rather than performance issues, including Quinn’s belief Smith had
violated DEA’s information security policy.
The district court granted both motions for summary judgment. With respect to
Smith’s claims against CSRA, 3 the court held that the ADA did not apply to Smith because
“only qualified individuals,” as defined in the ADA, “are entitled to [its] protections,” J.A.
1002; see Jacobs, 780 F.3d at 572. Applying both the 11-factor independent contractor
test set forth in Garrett v. Phillips Mills, Inc., 721 F.2d 979, 982 (4th Cir. 1983), and the
9-factor joint employer test of Butler v. Drive Automotive Industries of America, Inc., 793
F.3d 404, 414 (4th Cir. 2015), the court concluded that Smith was an independent
contractor, not a CSRA employee, and that CSRA was not Smith’s “joint employer” with
3
At the time of the court’s order, Smith had withdrawn her Rehabilitation Act claim
against CSRA. The district court noted that the Rehabilitation Act does not provide a
private right of action under Section 503 of the Act, see Painter v. Horne Bros., Inc., 710
F.2d 143 (4th Cir. 1983); and that CSRA is not subject to Section 504 of the Act. See
DeVargas v. Mason & Hangar-Silas Mason Co., 911 F.2d 1377, 1383 (10th Cir. 1990)
(government contractors “do not fall within the ambit of section 504 of the Rehabilitation
Act”). J.A. 1001.
16
DEA. The ADA “does not protect independent contractors from discrimination based upon
disability.” J.A. 1002; Ratledge v. Sci Applications Int’l Corp., No. 1:19-CV-239, 2011
WL 652274, at *2 (E.D. Va. Feb. 10, 2011), aff’d, 452 F. App’x 348 (4th Cir. 2011).
The district court first found that based on its application of the Garrett factors,
Smith was an independent contractor. Applying “agency principles and examin[ing] the
‘economic realities’ of the relationship,” see Chamberlain v. Securian Fin. Grp., Inc., 180
F. Supp. 3d 381, 391 (W.D.N.C. 2016) (quoting Garrett, 721 F.2d at 981), the court
considered that CSRA was engaged in the business of fulfilling government contracts, and
that to fulfill its contract with DEA, it in turn contracted with Smith, a geospatial
intelligence subject matter expert whose work product was deliverable directly to DEA.
Further, the court reviewed the express contract terms governing Smith’s relationship with
CSRA, including terms referring to her as an independent contractor terminable at will and
not subject to the withholding of federal taxes or entitled to employee benefits. The court
concluded that these terms reflected the parties’ “clear intent to maintain an independent
contractor relationship.” J.A. 1003.
But the district court found Garrett’s “control” factors most persuasive and
concluded that CSRA lacked control over Smith. See Butler, 793 F.3d at 409, 414 (“Fourth
Circuit has consistently focused on control” as “the ‘principal guidepost’ in the analysis”).
The court noted CSRA did not manage the work Smith performed for DEA. DEA, not
CSRA, determined the work requirements and how they were to be performed, provided
Smith’s equipment, and set the location for the performance of the work. Further, the court
found that Smith did not readily respond to work-related directives given by CSRA
17
employees. Considering these factors in total, the court found that Smith was an
independent contractor not entitled to ADA protections from CSRA.
In reaching this conclusion, the district court rejected Smith’s argument that
“CSRA’s liability arises from its joint employer relationship with DEA.” J.A. 1004.
Examining the Butler factors, particularly those it found most important in determining the
extent of an entity’s control of an employee, it concluded that although CSRA had
contractual authority to terminate Smith’s contract, it was not her joint employer. The
court determined that CSRA in fact had minimal control over Smith and it was DEA that
directly caused the termination of her contract. CSRA terminated Smith’s contract only
after she was rendered incapable of fulfilling her contractual obligations to DEA. The court
considered other facts as well, including that CSRA issued Smith’s paycheck and
purportedly handled employee discipline, but found them unpersuasive in light of CSRA’s
lack of ultimate control.
In sum, the district court, finding Smith was an independent contractor and that
CSRA was not her joint employer with DEA, held that Smith was not a covered employee
for purposes of the ADA, which protects only “qualified individuals.” See 42 U.S.C.
§ 12112(a). Because “there is no genuine dispute of material fact that [Smith’s]
relationship[] with CSRA [did] not fall within the purview of the ADA, the claims against
CSRA fail as a matter of law.” J.A. 1006.
Next, in granting DEA’s motion for summary judgment, the district court
determined that it need not determine whether the Rehabilitation Act and the ADA were
18
applicable to Smith because her claims failed as a matter of law. 4 J.A. 1006. The court
first found that there was no genuine dispute as to whether DEA had refused to
accommodate Smith, noting that DEA accommodated her disability when it provided her
with a parking pass within a reasonable period of time and also offered the “alternative
reasonable accommodation” of a part-time work schedule, which she declined. J.A. 1007–
08; see Hannah P. v. Coats, 916 F.3d 327, 337 (4th Cir. 2019) (delay in providing an
accommodation may be reasonable where accommodation request is under active
consideration); Reyazuddin v. Montgomery Cnty., 789 F.3d 407, 415 (4th Cir. 2015)
(employer may, at its discretion, provide an alternative reasonable accommodation to the
exact accommodation requested).
The court then rejected Smith’s argument that she was entitled to work remotely,
finding that DEA had the right to determine her place of performance, that her medical
documentation did not state that remote work was necessary for her to perform the essential
functions of her job, and that DEA was not required to provide her preferred
accommodation. J.A. 1008. Because DEA accommodated Smith, the district court held
that the agency was entitled to judgment as a matter of law on this claim. J.A. 1008.
4
The district court’s reference to an ADA claim against DEA is perplexing because
the operative complaint does not assert such a claim against DEA. It alleges that DEA
violated Smith’s right to a reasonable accommodation and terminated her in retaliation for
complaining about DEA’s discriminatory actions in violation of the Rehabilitation Act.
See J.A. 27-28. To the extent that the district court references Smith’s claims against DEA
as violations of the ADA, we construe them as Rehabilitation Act claims. Although the
ADA and the Rehabilitation Act employ different statutory language, our Court has
construed them to “impose similar requirements.” Halpern v. Wake Forest Univ. Health
Scis., 669 F.3d 454, 461 (4th Cir. 2012). Both statutes “require a plaintiff to demonstrate
the same elements to establish liability.” Id.19
Next, the district court found that to the extent that Smith’s claims also asserted that
she was terminated because she is disabled, those claims failed because DEA articulated
legitimate, nondiscriminatory reasons for terminating Smith’s services, including her
alleged violation of DEA’s information security policy, poor work performance, and
refusal to follow instructions and to report to work at DEA headquarters, all of which
demonstrated her failure to satisfy DEA’s legitimate employment expectations. The court
concluded Smith’s inability to demonstrate that these reasons were pretextual was fatal to
her discrimination claim.
Finally, the district court awarded summary judgment to DEA on Smith’s claim she
was terminated in retaliation for requesting an accommodation and for filing an EEO
complaint. The district court concluded that “the record lack[ed] direct evidence of
retaliation,” and thus Smith did not meet her burden to establish a causal link between her
protected activity and DEA’s adverse employment action. J.A. 1013–14. The court found
“any inference of retaliation is undercut because [Smith] received an accommodation from
DEA, and was offered another which she declined,” and that “the record is devoid of
evidence that Quinn, the decision-maker in her case, was aware that she filed EEO
complaint.” See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653,
657 (4th Cir. 1998) (employer’s knowledge that plaintiff engaged in protected activity is
“absolutely necessary” to establish prima facie case of retaliation). J.A. 1014. Further, as
with Smith’s disability discrimination claim, the court found there was no evidence that
DEA’s articulated reasons for the adverse employment action were pretextual. In the
court’s view, “[t]he undisputed facts show[ed] that Smith’s performance was deficient, she
20
was resisting instructions and defying work requirements.” J.A. 1014-15. Because she
“[had] not pointed toward any evidence showing [her] termination[] [was] pretextual,” the
court held her “retaliation claim[] therefore fail[ed] as a matter of law.” J.A. 1015.
This timely appeal followed.
II.
On appeal, although she asserted claims against CSRA for violation of the ADA and
the Rehabilitation Act, and against DEA for violation of the Rehabilitation Act, Smith
contends that CSRA, in violation of the ADA, and DEA, in violation of both the ADA and
the Rehabilitation Act, discriminated against her by refusing to provide reasonable
accommodations for her disability, and by terminating her in retaliation for engaging in
protected activity. She maintains that as a joint employee of both CSRA and DEA, she
was entitled to protection from DEA’s disability discrimination in violation of the
Rehabilitation Act, as well as the discriminatory actions of both joint employers in
violation of the ADA.
Both CSRA and DEA challenge Smith’s claims. CSRA maintains that Smith
performed her duties as an independent contractor, not as an employee, and because CSRA
was not her joint employer, she is not entitled to ADA protections from CSRA. 5 And DEA
argues that it was not error for the district court to find, without deciding whether DEA
5
Smith has not appealed the district court’s findings that Section 503 of the
Rehabilitation Act does not provide a private right of action, and that CSRA, a government
contractor, is not subject to Section 504 of the Act. See Painter, 710 F.2d at 143;
DeVargas, 911 F.2d at 1383. Thus, Smith’s only claim against CSRA on appeal is that
CSRA discriminated against her based on her disabilities in violation of the ADA.
21
was Smith’s joint employer, that Smith’s claims failed as a matter of law because Smith
could not show that DEA failed to provide her with a reasonable accommodation, or that
DEA terminated her services in retaliation for engaging in protected activity rather than for
legitimate, nondiscriminatory reasons related to her work performance. We first address
Smith’s ADA claim against CSRA.
A.
1.
The parties dispute the proper classification of Smith’s working relationship with
CSRA. In Smith’s view, CSRA’s ADA liability arises from CSRA’s and DEA’s status as
her joint employers subject to the requirements of the ADA. She argues that the district
court erred in concluding that she was an independent contractor not entitled to ADA relief
from CSRA. She contends that analysis of the “economic realities” of the relationship
proves first her status as a DEA employee, and further, that CSRA shared control of her
DEA employment to such an extent as to render CSRA her joint employer. Thus, Smith
concludes CSRA should be held liable for her claims arising under the ADA. We disagree.
An analysis of the facts and the law leads us to conclude Smith was an independent
contractor.
2.
The ADA provides: “No covered entity shall discriminate against a qualified
individual on the basis of disability in regard to . . . the hiring, advancement, or discharge
of employees . . . and other terms, conditions, and privileges of employment.” 42 U.S.C.
§ 12112(a). “To establish a claim of disability discrimination under the ADA, a plaintiff
22
must prove ‘(1) that she has a disability, (2) that she is a “qualified individual” for the
employment in question, and (3) that [her employer] discharged her (or took other adverse
employment action) because of her disability.’” Jacobs, 780 F.3d at 572 (quoting EEOC
v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 377 (4th Cir. 2000)).
The ADA assumes the existence of an employer/employee relationship. It defines
an “employee” as “an individual employed by an employer,” 42 U.S.C. § 12111(4), and a
“qualified individual” as “an individual who, with or without reasonable accommodation,
can perform the essential functions of the employment position that such individual holds
or desires.” 42 U.S.C. § 12111(8) (emphasis added). The ADA “does not protect
independent contractors from discrimination based upon disability.” Chamberlain, 180 F.
Supp. 3d at 391 (citing Ratledge, 2011 WL 652274, at *2); see also Flynn v. Distinctive
Home Care, Inc., 812 F.3d 422, 427 & n.20 (5th Cir. 2016) (collecting persuasive authority
that independent contractors are not covered by Title I of the ADA). Accordingly, because
the ADA applies to employers and affords protections to employees engaged in an
employment relationship, Smith must establish that she was an employee engaged in an
employment relationship with the defendant employer to recover under the ADA.
3.
“For purposes of the ADA, an employment relationship is determined under agency
principles and the ‘economic realities’ of the relationship.” Chamberlain, 180 F. Supp. 3d
at 391 (citing Garrett, 721 F.2d at 981 (whether an individual is an employee is determined
by analyzing the facts of each employment relationship under a standard incorporating both
the common law test derived from principles of agency and the so-called ‘economic
23
realities’ test)). Whether an independent contractor relationship exists is a question of law.
Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 261 (4th Cir. 1997).
Whether an individual is an employee or an independent contractor “is properly
determined by analyzing the facts of each employment relationship” by considering the
following factors:
(1) the kind of occupation, with reference to whether the work usually is done
under the direction of a supervisor or is done by a specialist without
supervision; (2) the skill required in the particular occupation; (3) whether
the “employer” or the individual in question furnishes the equipment used
and the place of work; (4) the length of time during which the individual has
worked; (5) the method of payment, whether by time or by the job; (6) the
manner in which the work relationship is terminated; i.e., by one or both
parties, with or without notice and explanation; (7) whether annual leave is
afforded; (8) whether the work is an integral part of the business of the
“employer;” (9) whether the worker accumulates retirement benefits; (10)
whether the “employer” pays social security taxes; and (11) the intention of
the parties.
Garrett, 721 F.2d at 982 (citation omitted). Control is the most important factor to be
considered, but it is not dispositive. Id., see also Butler, 793 F.3d at 409 (no one factor is
determinative, but “the Fourth Circuit has consistently focused on control”).
Applying these principles to the facts before us, we cannot conclude that the district
court erred in finding that Smith was an independent contractor and not a CSRA employee.
An examination of the facts underlying each Garrett factor supports such a conclusion. As
the district court noted, prime contractor CSRA is engaged in the business of staffing
government contracts. In accordance with the requirements of DEA’s task order, CSRA
contracted with Smith’s company, Smith Global, in 2016 for Smith to work for DEA as a
geospatial intelligence subject matter expert, which requires highly specialized technical
24
expertise. CSRA did not supervise Smith’s work product, determine her work hours or
location, or even provide the equipment necessary to perform the work. DEA determined
the tasks to be completed, and her work product was deliverable directly to the agency.
These facts weigh heavily against a finding that Smith was a CSRA employee.
Further, the terms of the Consultant Agreement demonstrate that it was the
expressed intention of the parties to establish an independent contractor relationship. The
Agreement explicitly refers to Smith as an independent contractor who was terminable at
will without notice. Pursuant to the Agreement, CRSA performed the administrative
function of issuing Smith’s paychecks, but did not withhold federal taxes from her
compensation or provide her with benefits offered to CSRA employees. These facts further
support a finding that Smith contracted with CSRA to perform services as an independent
contractor rather than an employee.
Finally, the facts support the district court’s conclusion that CSRA lacked the
necessary control over Smith. CSRA exercised no management control over any aspect of
the geospatial intelligence work Smith was contracted to perform. As the district court
noted, “CSRA’s role was simply to provide an expert in the relevant field to DEA, and
CSRA did that by finding [Smith] and instructing [her] to report to DEA pursuant to DEA’s
requirements.” J.A. 1004. The facts demonstrate that DEA officials were driving CRSA’s
contractual decisions regarding Smith as well. Barnhart initially assured Tyler that CSRA
would terminate its agreement with Smith on June 2, but later declined to do so based on a
belief that the issuance of the parking pass would enable Smith to satisfy DEA’s
requirement that she report to work at DEA headquarters each day. CSRA ultimately
25
exercised its authority to terminate the Consultant Agreement but did so only when DEA’s
revocation of Smith’s security clearance made it impossible for her to meet her contractual
obligations. Accordingly, we agree with the district court that the Garrett factors support
the conclusion that, as a matter of law, Smith was an independent contractor, and thus is
not a qualified individual entitled to ADA protections from CSRA.
B.
Based on these same facts, we are compelled to conclude that CSRA was not
Smith’s joint employer. In determining whether two entities are joint employers, this Court
considers the following factors:
(1) authority to hire and fire the individual;
(2) day-to-day supervision of the individual, including employee discipline;
(3) whether the putative employer furnishes the equipment used and the
place of work;
(4) possession of and responsibility over the individual’s employment
records, including payroll, insurance, and taxes;
(5) the length of time during which the individual has worked for the
putative employer;
(6) whether the putative employer provides the individual with formal or
informal training;
(7) whether the individual’s duties are akin to a regular employee’s duties;
(8) whether the individual is assigned solely to the putative employer; and
(9) whether the individual and putative employer intended to enter into an
employment relationship.
Butler, 793 F.3d at 414. The Court considers the first three Butler factors the most
important in determining whether a joint employment relationship exists. Id. As with the
26
Garrett independent contractor factors, control is the “principal guidepost” of this analysis.
Id. An analysis of the Butler factors weighs against a finding that Smith was CSRA’s
employee. CSRA lacked the degree of control over the essential terms and conditions of
Smith’s work necessary to conclude that she and CSRA were engaged in an employment
relationship.
III.
Next we turn to Smith’s claims against DEA—that the agency failed to
accommodate her disability and retaliated against her for requesting accommodations and
filing an EEO complaint. We find first that the district court properly granted summary
judgment on Smith’s failure to accommodate claim.
A.
To establish a prima facie case of failure to accommodate, a plaintiff must show:
“(1) “that she was an individual with a disability within the meaning of the statute; (2) that
the employer had notice of her disability; (3) that with reasonable accommodation she
could perform the essential functions of the position; (4) that the employer refused to make
such accommodations.” Jacobs, 780 F.3d at 579. The parties disagree as to the fourth
element. DEA contends that it did not refuse to accommodate Smith’s disability and we
agree.
Smith bears the burden to identify an accommodation, and ultimately, she must
persuade a trier of fact that the accommodation is reasonable. Lamb v. Qualex, Inc., 33 F.
App’x 49, 59 (4th Cir. 2002). After DEA required Smith to report to DEA headquarters in
27
person each day, Smith requested both a parking pass and that the agency continue to
authorize remote work as an accommodation for her disability. But an employer is not
required to provide “the exact accommodation that the employee requested,” and in the
alternative may provide “an alternate reasonable accommodation” at its discretion.
Reyazuddin, 789 F.3d at 415.
In some circumstances, an “unreasonable delay” may constitute a denial of an
accommodation. See Marks v. Wash. Wholesale Liquor Co., 253 F. Supp.3d 312, 324
(D.D.C. 2017). But “[a] relatively short delay of a few weeks (or even a few months) in
approving a request typically does not support such a claim.” Id. Further, a delay may be
found reasonable where the record demonstrates the accommodation request is under active
consideration. See Hannah P. v. Coats, 916 F.3d 327, 338 (4th Cir. 2019).
DEA contends that it offered Smith a reasonable accommodation—the parking
pass—within a reasonable period of time, and it was not required to offer her the
accommodation of remote work she requested even though it had been provided in the past.
Although the record demonstrates that DEA did not take the smoothest route to issuing
Smith a parking pass, it did in fact issue it five weeks after her request. We agree with the
district court that five weeks was not an unreasonable delay given that her request was
under consideration. During this period, DEA requested, and Smith provided, updated
medical documentation, and DEA inquired into what accommodations could be offered to
Smith in her capacity as a contractor under the law, DEA’s Accommodations Policy, and
the building lease, which generally did not permit contractors access to DEA’s parking
facilities. See Hannah P., 916 F.3d at 337.
28
Finally, we conclude that DEA was not required to offer Smith a remote work
accommodation and its failure to do so was not a refusal to accommodate. Consistent with
the updated medical documentation Smith provided, she received the reasonable
accommodation she requested (and that her physician specifically stated was needed) to
perform the essential functions of her job and meet her employer’s legitimate expectation
that she report to DEA headquarters for work daily. Although the documentation noted
that Smith had received remote work authorization as an accommodation in the past, it did
not specifically state that such an accommodation was required. 6 Moreover, the relevant
contract terms permitted DEA to determine the place where Smith would perform her work
for DEA.
There is no genuine dispute of fact that DEA did not refuse to provide Smith a
reasonable accommodation for her disability. DEA provided her the reasonable
accommodation that she requested and that was supported by the medical documentation
she provided. Accordingly, DEA is entitled to summary judgment on this claim.
B.
Next we turn to Smith’s claim that DEA retaliated against her for engaging in
protected activity, namely requesting accommodations for her disability and filing an EEO
complaint. We find that Smith has established a prima facie case of retaliation. She has
6
Because we conclude that DEA offered Smith a reasonable accommodation in the
form of a parking pass, we need not consider whether the part-time work schedule DEA
offered constituted an “alternate reasonable accommodation.” See Reyazuddin, 789 F.3d
at 415; 42 U.S.C. § 12111(9)(B) (“reasonable accommodation” may include “part-time or
modified work schedules”).
29
presented sufficient evidence to demonstrate a causal relationship between her protected
activity and DEA’s adverse action. An examination of the record reveals that, contrary to
the district court’s findings, the evidence supports an inference that DEA took adverse
action against Smith for requesting a parking pass and seeking permission to work
remotely. The evidence also supports a finding that Quinn had knowledge of Smith’s EEO
complaint when she revoked her DEA security clearance. Additionally, a causal link is
further established by the temporal proximity between Smith’s complaint and the adverse
action taken against her. Finally, we find that there are genuine issues of material fact
concerning whether the reasons proffered for Smith’s termination were pretext for
retaliation.
1.
“[T]o prevail on a claim of retaliation, a plaintiff must either offer sufficient direct
and indirect evidence of retaliation, or proceed under a burden-shifting method.” Jacobs,
780 F.3d at 577 (quoting Rhoads v. FDIC, 257 F.3d 373, 391 (4th Cir. 2001)).
In the absence of direct evidence of retaliation, Smith has pursued her retaliation
claim via the application of the McDonnell Douglas burden-shifting framework. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Roberts v. Glenn Indus.
Grp., Inc., 998 F.3d 111, 122 (4th Cir. 2021) (retaliation claim may be proven through
direct evidence of retaliation or via the application of the McDonnell Douglas burden-
shifting framework); Johnson v. United Parcel Serv., Inc., 839 F. App’x 781, 782–83 (4th
Cir. 2021) (citing Laing v. Fed. Express Corp., 703 F.3d 713, 717 (4th Cir. 2013) (same)).
Under the McDonnell Douglas framework, a plaintiff must first show: (1) she engaged in
30
a protected activity; (2) her employer acted adversely against her; and (3) her protected
activity was causally connected to her employer’s adverse action. Rhoads, 257 F.3d at
392. After a prima facie case is made, the burden shifts to the employer “to rebut the
presumption of retaliation by articulating a legitimate nonretaliatory reason for its actions.”
Id. (quoting Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997)). If the employer
makes this showing, the plaintiff must demonstrate that the proffered reason is pretext for
retaliation. Rhoads, 257 F.3d at 392. The ultimate burden to prove retaliation rests with
the plaintiff. Id.
2.
Here, there is no dispute that Smith satisfied the first and second prongs of a prima
facie case of retaliation. She suffered an adverse employment action when Quinn revoked
her security clearance after she made repeated requests for accommodation and just days
after she filed an EEO complaint. But the district court found that Smith failed to satisfy
the third prong of a prima facie case of retaliation, which requires her to show that there
was a causal relationship between the protected activity and the adverse employment
action. See Rhoads, 257 F.3d at 392. In reaching this conclusion, the district court made
two specific findings. First, any inference of retaliation based on Smith’s request for an
accommodation was “undercut because she received an accommodation from DEA, and
was offered another which she declined.” J.A. 1014. Second, there was no evidence of
causation because “the record is devoid of evidence that Quinn, the decision-maker in her
case, was aware that [Smith] filed the EEO complaint,” and “[t]he undisputed facts show
Quinn was not aware of Smith’s EEO complaint.” Id.31
Each of these findings is flawed. The district court failed to consider facts
demonstrating the causal connection between Smith’s protected activity and the adverse
action taken against her. The first finding ignores the reality of how Smith came to receive
one accommodation and the manner in which she was offered the other. The second
finding is directly contrary to facts demonstrating that a question of fact remains as to
whether Quinn knew of Smith’s EEO complaint.
3.
a.
“[E]stablishing a ‘causal relationship’ at the prima facie stage is not an onerous
burden.” Strothers v. City of Laurel, 895 F.3d 317, 335 (4th Cir. 2018). Indeed, “very
little evidence of a causal connection is required to establish a prima facie case of
retaliation.” Roberts, 998 F.3d at 127 (citing Burgess v. Bowen, 466 F. App’x 272, 283
(4th Cir. 2012)). “A plaintiff may attempt to demonstrate that a protected activity caused
an adverse action through two routes.” Roberts, 998 F.3d at 123 (quoting Johnson, 839 F.
App’x at 783–84). “A plaintiff may establish the existence of facts that ‘suggest[ ] that the
adverse action occurred because of the protected activity.’” Roberts, 998 F.3d at 123
(citing Johnson, 839 F. App’x at 783-84; Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th
Cir. 2007) (recognizing that relevant evidence may be used to establish causation)). “A
plaintiff may also show that ‘the adverse act bears sufficient temporal proximity to the
protected activity.’” Roberts, 998 F.3d at 123 (citing Johnson, 839 F. App’x at 783–84;
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001)). “The existence of
relevant facts alone, or together with temporal proximity, may be used to establish a causal
32
connection between the protected activity and the adverse action.” Id. Here, we find that
the facts, in the light most favorable to Smith, are sufficient to establish the requisite causal
connection via both of these evidentiary routes.
b.
We first address the district court’s finding that the evidence does not support the
inference that Quinn retaliated against Smith for requesting accommodations because
Smith received a parking pass from DEA and declined DEA’s offer of a part–time work
schedule. We find that both the relevant facts and the temporal proximity of events
undermine the district court’s conclusion.
While it is certainly true that Smith ultimately received a parking pass, she received
it approximately five weeks after her initial request, during which her requests for both the
pass and for remote work authorization were repeatedly denied, and only after Smith filed
an EEO complaint alleging the failure of DEA officials to accommodate her medically
documented disability. Smith had reiterated to Tyler as recently as May 23 that she needed
a parking pass to report to work daily. On May 26, just three days prior to the filing of her
EEO complaint on May 29, Tyler and Barnhart had made it clear that Smith was required
to report to work at DEA headquarters each day without a parking pass and that she would
have to “make a decision” about whether she would continue working for DEA. And on
June 1, Tyler and Barnhart discussed releasing Smith on June 2, based at least in part on
33
the ground that Smith continued to work remotely without authorization. 7 Certainly, it is
reasonable to infer that but for the intervention of DEA’s EEO office, Smith would have
received no accommodation at all, and DEA’s intention to bring its working relationship
with Smith to an end was thwarted by the issuance of the parking pass.
Further, Smith’s rejection of the proposed part-time work schedule can be attributed,
at least in part, to confusion regarding the details of the proposed accommodation. The
part-time work accommodation, as summarized in Barnhart’s email, permitted Smith to
work only three days per week, resulting in a reduction in Smith’s work hours. Smith
specifically objected to this reduction in her response. Although the DEA later proposed
an accommodation that would have permitted Smith to work up to five days a week at her
discretion, this proposal was never communicated to Smith.
Despite these facts, DEA urges this Court to affirm the district court’s findings. In
support of its argument, DEA relies on several cases that are non-binding and factually
inapposite. DEA cites this Court’s unpublished opinion in Hollestelle v. Metropolitan
Washington Airports Authority, No. 97-1465, 1998 WL 228199, at *1 (4th Cir. May 8,
1998), where this Court held that the defendant employer’s “considerable efforts to
accommodate [the plaintiff] even after it knew [he] had filed a discrimination complaint
completely undercut[]” his retaliation claim. Id. at *4. DEA contends that it “strains
credulity that a defendant would make such efforts while acting with retaliatory animus
7
Just two days after Smith filed her complaint, Tyler directed Barnhart to retrieve
Smith’s remote token, ostensibly because she continued to work remotely without
authorization. But Smith has not alleged that Tyler knew of her complaint when she issued
this directive.
34
arising out of that protected activity.” Appellee’s Br. 37–38. But an examination of the
underlying facts reveals a set of circumstances very different from the ones presented here.
In Hollestelle, the plaintiff’s employer adjusted his work hours to address his
chronic tardiness. Over the next year and a half, Hollestelle continued to arrive late and
received a warning, a reprimand, and a suspension before he notified his employer he was
being treated for depression, which he asserted affected his ability to report to work on
time. Hollestelle’s employer held his suspension in abeyance pending the receipt of
medical documentation, but ultimately imposed the suspension when the documentation
failed to address any connection between his depression and his tardiness. Id. at *1.
Hollestelle’s employer later agreed to allow him a ten-minute arrival window for reporting
to work, but Hollestelle still filed a complaint alleging his employer had discriminated
against him by disciplining him for his tardiness and failing to accommodate him. The
employer again modified Hollestelle’s work schedule, increasing his arrival time window
to fifteen minutes, but in just over two months he was tardy another 42 times—on average
by 27 minutes. Id. at *2. Finally, the employer changed his start time from 8:15 a.m. to
9:30 a.m., but he was still tardy 55 times over the next 66 days. Only then did his employer
fire him. Id.Hollestelle’s employer made several accommodations for his tardiness—adjusting
the time he was required to report on numerous occasions—both before and after receiving
notice of a disability—and before and after he filed a complaint. By contrast, DEA offered
Smith no accommodations at all. In fact, DEA flatly refused to do so and informed her she
needed to “arrive and report to work at HQ everyday or resign”—until after she filed a
35
complaint. J.A. 479. Certainly, one could infer that DEA did not “willingly” offer Smith
the parking pass nor were its actions analogous to the “considerable effort to
accommodate” that this Court determined would undercut any inference of retaliation. 8 In
fact, DEA’s actions lead one to infer the opposite.
DEA also contends that any inference of retaliation is further undermined by the
fact that Quinn developed concerns regarding Smith’s work performance before Smith
engaged in any protected activity. This fact does not alter our conclusion here. The
relevant facts demonstrate that DEA was frustrated that Smith had not followed the
directive to report to work at DEA headquarters daily. Smith received an ultimatum to
report to work as instructed each day or resign despite her repeated insistence—supported
by medical documentation—that she could not do so without a parking pass. She then filed
her EEO complaint and was able to secure in a matter of days what DEA officials had not
been able (or willing) to provide over several weeks. By this date Barnhart and Tyler were
already discussing plans to terminate her if she did not resign. When the effort to force her
8
The same is true for other cases DEA cites where employers made significant
accommodations prior to its adverse action. See Kerney v. Mountain States Health
Alliance, 894 F. Supp. 2d 776, 781 (W.D. Va. 2012) (no inference of retaliation for
requesting accommodation where was plaintiff granted significant period of medical leave
but did not communicate to employer that she required an accommodation upon returning
to work); Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 17 (1st Cir. 1997) (“[e]vidence
that an employer willingly granted an employee request for an accommodation, though by
no means dispositive of the matter, tends to militate against making an inference of
retaliation”) (emphasis added); Colon-Fontanez v. Municipality of San Juan, 660 F.3d 17,
40 (1st Cir. 2011) (no showing of retaliatory intent where employer made repeated efforts
to accommodate employee over the course of nearly two decades); Fercello v. Cty. of
Ramsey, 612 F.3d 1069, 1083 (8th Cir. 2010) (employer’s numerous accommodations of
employee inconsistent with finding of retaliation).
36
resignation failed when Smith unexpectedly received the parking pass, Quinn revoked her
security clearance without any explanation. This action in turn caused CSRA to terminate
its agreement with Smith. These facts, contrary to the district court’s conclusion, support
an inference of retaliatory animus on the part of DEA against Smith for filing the EEO
complaint that blocked their effort to force her out of her position. DEA’s adverse action,
taken within days of Quinn learning of the complaint, also “bears sufficient temporal
proximity to [Smith’s] protected activity” to suggest that the adverse action was taken
because of the protected activity. See Johnson, 839 F. App’x 783–84; Clark Cnty., 532
U.S. at 273–74.
In sum, a full examination of the circumstances surrounding Smith’s receipt of the
parking pass and rejection of a part-time work schedule permits the inference that DEA’s
adverse actions were taken in retaliation for Smith requesting an accommodation her DEA
supervisors did not wish, but were ultimately required, to provide. Collectively, these
circumstances create a question of fact as to whether there was a causal connection between
Smith’s accommodation requests and EEO complaint and the adverse action taken against
her.
c.
The district court’s second finding—that there was no evidence that Quinn knew of
Smith’s EEO complaint—was simply error. A review of the record and the timeline of
events reveals there are genuine issues of material fact that preclude summary judgment
on this issue as well.
i.
37
“To establish a causal relationship between the protected activity and the [adverse
action], a plaintiff must show that the decisionmaker was aware of the protected activity at
the time the alleged retaliation occurred.” Roberts, 998 F.3d at 124; see also Johnson, 839
F. App’x at 783–84 (citing Dowe, 145 F.3d at 657 (plaintiff cannot establish the causation
element of a prima facie case where the relevant decisionmaker is unaware of the protected
activity)). “Since, by definition, an employer cannot take action because of a factor of
which it is unaware, the employer’s knowledge that the plaintiff engaged in a protected
activity is absolutely necessary to establish the third element of the prima facie case.”
Roberts, 998 F.3d at 124 (citing Dowe, 145 F.3d at 657) (citations omitted)). Accordingly,
our analysis must consider what Quinn, the decisionmaker, knew at the time of the adverse
employment action.
ii.
The district court found that “the record is devoid of evidence that Quinn, the
decision-maker in her case, was aware that [Smith] filed the EEO complaint,” and that “[t]he
undisputed facts show Quinn was not aware of Smith’s EEO complaint.” J.A. 1013–14.
Based on this erroneous finding, the district court held that Smith did not meet her burden to
establish a causal link between her protected activity and DEA’s adverse employment action.
But DEA admits that the record provides at least some proof that Quinn was aware
that Smith filed a complaint regarding the agency’s failure to accommodate her disability.
DEA acknowledges that on June 6, Quinn received a copy of the email informing Tyler of
Smith’s EEO complaint and inviting Tyler to an interview as part of the investigation. But
additional emails also indicate that Quinn was aware of Smith’s complaint as early as June
38
2. On that date, Quinn received emails from McDaniel regarding an EEO matter involving
Smith. She then spoke with an EEO counselor and scheduled a teleconference with
McDaniel for the following Monday.
DEA downplays the significance of this evidence, arguing “mere knowledge . . . is
not sufficient evidence of retaliation . . . .” Williams v. Cerberonics, Inc., 871 F.2d 452,
457 (4th Cir. 1989). This argument, however, fails to address the temporal proximity of
these events to Quinn’s adverse action. The evidence tends to prove not only that Quinn
was aware of the complaint, but that she was aware of it when she revoked Smith’s security
clearance just days after Smith filed her complaint and received a parking pass.
Smith has established not only “the existence of facts that ‘suggest[ ] that the adverse
action occurred because of the protected activity,’” Roberts, 998 F.3d at 123 (citing
Johnson, 839 F. App’x at 783-84; Lettieri, 478 F.3d at 650), but also that “‘the adverse act
bears sufficient temporal proximity to the protected activity.’” Roberts, 998 F.3d at 123
(quoting Johnson, 839 F. App’x at 783–84; Clark Cnty., 532 U.S. at 273–74). We find
these facts, considered in the light most favorable to Smith, are sufficient to establish the
requisite causal connection via both of these evidentiary routes. See Roberts, 998 F.3d at
123 (citing Johnson, 839 F. App’x at 784 (relevant facts alone, or together with temporal
proximity, may establish a causal connection between the protected activity and the adverse
action)). Here, the documentary evidence, together with the timeline of events, is sufficient
to establish that Quinn was aware of Smith’s EEO complaint when she made the decision
to revoke her security clearance, and supports a finding that the causation prong of a prima
facie case of retaliation has been satisfied. We find that the district court’s findings to the
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contrary were in error, and that genuine issues of material fact preclude summary judgment
on Smith’s retaliation claim.
d.
The district court found that even if Smith had established a prima facie case of
discrimination, Smith could not meet her burden to show that the legitimate,
nondiscriminatory reasons DEA proffered as grounds for her separation were pretext for
retaliation. We again conclude that the district court’s findings are in error.
If a plaintiff can demonstrate “that the legitimate reasons offered by the defendant
were not its true reasons, but were a pretext for discrimination [or retaliation],” summary
judgment is not appropriate. Burgess, 466 F. App’x at 277 (quoting Tex. Dep’t of Cmty.
Affs. v. Burdine, 450 U.S. 248, 253 (1981)). Further, the Supreme Court has held that “a
plaintiff’s prima facie case of discrimination, combined with evidence from which a jury
could conclude that an employer’s proffered justification was false, support[s] an inference
of discrimination sufficient to defeat summary judgment.” Burgess, 466 F. App’x at 277
(citing Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148 (2000)). We believe
that Smith has made such a showing here.
The district court found that “undisputed facts” showed that Smith’s performance
was “deficient,” and that she “was resisting instructions and defying work requirements.”
J.A. 1014-15. Smith’s retaliation claim failed as a matter of law, the court concluded,
because she had not “pointed toward any evidence showing [her] termination[] [on these
grounds] to be pretextual.” J.A. 1015. Indeed, DEA has proffered legitimate nonretaliatory
reasons for Smith’s termination, largely centered on perceived deficiencies in her work
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performance—the most serious among them her failure to report to DEA headquarters
daily despite the difficulties she faced in doing so without a parking pass, and her alleged
violation of DEA’s information security policy. But viewing the evidence in the light most
favorable to Smith, there is a genuine issue of material fact regarding the proffered reasons
for her termination.
First, we note that a factfinder may infer that an employer’s post-hoc rationale is not
a legitimate explanation for an adverse employment decision. EEOC v. Sears Roebuck &
Co., 243 F.3d 846, 853 (4th Cir. 2001). Moreover, an employer’s provision of shifting and
inconsistent justifications for taking an adverse employment action “is, in and of itself,
probative of pretext.” Id. at 852–53; see also Jacobs, 780 F.3d at 575 (lack of
contemporaneous documentation and inconsistent justifications for an adverse action could
lead reasonable jury to conclude justifications are pretext).
Here, DEA has not presented any contemporaneous documentation in support of its
reasons for terminating Smith. And the proffered reasons for her termination have evolved
over time. Of particular concern is Quinn’s allegation that a violation of DEA’s
information security policy caused her to revoke Smith’s security clearance. When first
asked to provide the reason for revoking Smith’s security clearance, Quinn gave no reason
at all. She did not document the details of the incident or conduct even the most basic
factfinding. There is no evidence in the record that Quinn confronted Smith with her
concern, asked her to explain, or even acted further to determine what DEA information
might have been compromised. Quinn certainly did not discuss the matter with Barnhart,
as he asserted that he knew of no reason why Quinn would take such an action.
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A week after Smith’s separation, Tyler prepared a memorandum to document
DEA’s issues regarding Smith’s work performance, but an alleged violation of DEA’s
security policy was not among the concerns noted. Finally, the timing of Quinn’s actions
in relation to other events is suspect. The record establishes, contrary to the district court’s
conclusion, that Quinn was aware of Smith’s EEO complaint at the time of the revocation,
which both factually and temporally undermines DEA’s claim that Quinn’s action was not
retaliatory. We find that a reasonable jury could infer that Quinn’s post-hoc allegation that
Smith made statements indicating that she stored DEA information on her personal
computer was pretextual.
Similarly, a reasonable jury could find that the other proffered performance issues
were not the true reason Quinn revoked her security clearance. The most serious of these
reasons related to Smith’s in-person attendance. Tyler’s memorandum describes how
Smith had worked only a certain number of “validated” hours, as her remote work hours
were not authorized. During much of this period, however, Smith had requested, but had
been refused, either a parking pass or remote work authorization. In any event, there would
have been no reason to revoke Smith’s security clearance on this ground once she received
the parking pass that enabled her to perform her duties in person.
As for Smith’s other alleged performance issues, the testimony of DEA employees
is inconsistent with DEA’s allegations. Tseng, Smith’s project manager, testified that he
was surprised to learn Smith had been terminated. Contrary to what DEA alleges, Tseng
testified in her last week at DEA Smith had “made progress” in providing the information
he requested. Further, he stated that the only issue Tyler seemed to have with Smith was
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that she “didn’t come in the office.” He was told later that Smith’s termination was a
“management decision.” J.A. 1637–39. And although Quinn gave Barnhart no reason for
revoking Smith’s security clearance, he believed that it was because she did not report to
work daily to DEA headquarters. As for Tyler, email correspondence reveals that with
Tyler’s blessing and oversight, Barnhart had already intended to dismiss Smith—after
Quinn learned of Smith’s EEO complaint and before Quinn revoked her clearance. These
facts undermine the credibility of DEA’s allegations and call into question the proffered
reasons for her termination.
V.
For the foregoing reasons, we affirm the judgment of the district court as to Smith’s
disability discrimination claim but vacate the court’s decision regarding her retaliation claim
and remand the issue to the district court for further proceedings consistent with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
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