Victoria Anderson v. Discovery Communications, LLC , 517 F. App'x 190 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2195
VICTORIA ANDERSON,
Plaintiff - Appellant,
v.
DISCOVERY COMMUNICATIONS, LLC; JANELL COLES; LISA WILLIAMS-
FAUNTROY; DOE DEFENDANTS 1 THROUGH 4,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:08-cv-02424-AW)
Argued: January 30, 2013 Decided: April 5, 2013
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Elaine Lynette Fitch, KALIJARVI, CHUZI, NEWMAN & FITCH,
PC, Washington, D.C., for Appellant. Mark David Harris,
PROSKAUER ROSE, LLP, New York, New York, for Appellees. ON
BRIEF: George M. Chuzi, KALIJARVI, CHUZI, NEWMAN & FITCH, PC,
Washington, D.C., for Appellant. Amanda D. Haverstick, Julianne
M. Apostolopoulos, PROSKAUER ROSE, LLP, Newark, New Jersey, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Victoria Anderson appeals from the district court’s
judgment granting summary judgment to her former employer
Discovery Communications, LLC, (“Discovery”) and other
individual defendants on her claims brought under the Americans
with Disabilities Act (“ADA”), the Montgomery County, Maryland,
Human Rights Act (“MCHRA”), and the Family Medical Leave Act
(“FMLA”). For the reasons set forth below, we affirm the
judgment of the district court.
I. Factual Background & Proceedings Below
From August 2004 to January 2007, Discovery employed
Anderson as an attorney in the Programming, Production, and
Talent Group (“the Group”) of Discovery’s Legal Department.
Defendant-Appellee Janell Coles was the Director of the Group,
and Anderson’s direct supervisor; Defendant-Appellee Lisa
Williams-Fauntroy was Vice President of the Group, and Coles’
direct supervisor. 1 Although Anderson received praise for her
strong technical, legal, and drafting skills, her annual
performance reviews repeatedly indicated needing improvement in
areas such as “effectively organizing, planning, and
1
For ease of reference, all of the Defendants (Appellees
here) will be referred to collectively as “Discovery.”
2
prioritizing work,” working on her demeanor and tone, and in
developing her interpersonal skills with both colleagues and
clients. (J.A. 659-60.)
In October 2006, 2 Anderson was in California for a
conference when she became ill and visited a local doctor, who
advised her, inter alia, that she may have a sleep impairment.
Upon her return to Maryland, Anderson requested and was granted
FMLA leave from October 20 to November 15, during which time she
consulted with her personal physician, Dr. Collin D. Cullen, and
a sleep specialist, Dr. Andrew P. Tucker. The physicians
determined that Anderson’s laboratory and sleep test results
were normal, and excluded sleep apnea as a diagnosis. Since
Anderson reported that she was only sleeping between two and
four hours each night, the physicians concluded she likely
suffered from “fatigue,” “sleep deprivation,” and “insomnia.”
(J.A. 306-09.) The physicians gave Anderson advice on falling
and staying asleep and a prescription for Ambien.
In late November, Anderson returned to Dr. Cullen, and
based on Anderson’s statements indicating that her overall
condition was improving, Dr. Cullen recommended that she
“[r]eturn to full duty with hour restriction to 8 hours per
day.” (J.A. 306, 308.) In two follow-up appointments with Dr.
2
All dates are in 2006, unless otherwise noted.
3
Tucker at the end of November and mid-December, Dr. Tucker
indicated that he placed “no restrictions” on Anderson’s ability
to work, and that he had no reason to believe that she was
“significantly impaired” by that point. (J.A. 327.) At his
deposition, Dr. Tucker testified that as of December 19, there
was no basis for placing Anderson on disability “from a sleep
standpoint.” (J.A. 325-26.)
When she returned to work, Anderson asked her supervisors
to be allowed a maximum 8-hour work day. At their request,
Anderson submitted a proposal, but only committed to work in the
office between 11 a.m. and 4 p.m. Moreover, she stated that she
would not track her personal, break, or lunch time or account
for her specific workload unless other members of the Group were
also required to do so. Anderson’s supervisors reviewed the
proposal and denied her request, stating that the proposal would
not enable her to perform the responsibilities of her job, which
included a 40-hour minimum work week, presence in the office
during core business hours of 9 a.m. to 6 p.m. Monday through
Friday, and flexibility to work outside those hours as
international transactions required.
On January 3, 2007, Williams-Fauntroy informed Anderson
that Discovery was terminating her employment. At her
deposition, Anderson stated that Williams-Fauntroy told her that
her “performance was not at all a factor in her termination,”
4
and that the “sole reason” for her termination was her failure
to update her time records. (J.A. 157-58.) Williams-Fauntroy
stated in her deposition that she informed Anderson that “she
was being terminated because [Discovery] determined that she is
untrustworthy and that she had not accurately represented her
time entries [documenting her work hours] as requested by her
manager.” (J.A. 217.) Williams-Fauntroy also recounted several
factors underlying that decision, many of which she had listed
in a bullet-point note she had prepared prior to meeting with
Anderson on January 3, but which she described in greater detail
during her deposition. Those factors included Anderson’s long-
term “insubordination”; her refusal to accept a performance plan
schedule following her mid-year (2006) review; her “[c]ombative,
difficult, manipulating” nature, which had led to “difficulties”
with clients and colleagues, as well as “skewing” and
misrepresenting prior discussions with co-workers and
supervisors; and her “manipulating” time sheets documenting
vacation and sick leave, coupled with her subsequent refusal to
correct them when confronted with evidence establishing that she
had inaccurately recorded her time. (J.A. 220, 223-24.)
Anderson filed a complaint in the United States District
Court for the District of Maryland, alleging claims of failure
5
to accommodate and retaliation under the ADA and MCHRA, 3 and
retaliation and interference of rights under the FMLA.
Following discovery, Discovery moved for summary judgment, which
the district court granted. The district court held that
Anderson was not an “individual with a disability” under the
ADA and therefore could not establish a prima facie case of
failure to accommodate; that even if she could establish a prima
facie case of retaliation, Anderson had not presented any
evidence indicating Discovery’s legitimate, non-discriminatory
reasons for firing her were a pretext; that Anderson did not
have a “serious medical condition” entitling her to FMLA leave;
and that Anderson had not given Discovery adequate notice of her
need for FMLA leave. Anderson v. Discovery Commc’ns, LLC, 814
F. Supp. 2d 562, 569-72 (D. Md. 2011).
Anderson noted a timely appeal, and we have jurisdiction
under 28 U.S.C. § 1291.
3
Because Maryland has applied the MCHRA by looking to ADA
case law, it is appropriate to consider those claims together,
as the district court did. See Ridgely v. Montgomery Cnty., 883
A.2d 182, 193 (Md. Ct. App. 2005) (stating that the MCHRA and
ADA contain “almost identical” definitions of “disability” and
“qualified individual with a disability”). Similarly, our
analysis of the ADA claims encompasses our analysis of
Anderson’s MCHRA claims.
6
II. Standard of Review
We review the district court’s grant of summary judgment de
novo, applying the same standard used by the district court.
Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).
Summary judgment is appropriate when there is no genuine issue
of material fact, and the moving party is entitled to judgment
as a matter of law. Id. The facts must be viewed in the light
most favorable to the non-moving party, id., which we do here.
III. ADA Claims
The ADA prohibits discrimination in employment decisions
against “individual[s] on the basis of disability.” 42 U.S.C. §
12112(a). A threshold issue is whether a plaintiff has adduced
evidence showing that she is such a person, i.e., that she is an
individual with a disability as defined by the statute. See
Rohan v. Networks Presentations LLC, 375 F.3d 266, 272 (4th Cir.
2004) (stating that a plaintiff is first required “to produce
evidence that she is . . . disabled.”). In relevant part, the
ADA defines a “disability” as “a physical or mental impairment
that substantially limits one or more major life activities of
such individual.” 4 42 U.S.C. § 12102(a)(A). Thus, having a
4
The ADA lists three definitions of “disability,” but
Anderson relies only on this one. See 42 U.S.C. § 12102(2)
(2007).
7
“physical or mental impairment” is not sufficient on its own to
establish an ADA-cognizable disability, nor is showing that the
impairment affects “one or more major life activities.” 5 An
individual must also show she is “substantially limit[ed]” as a
result of the impairment. See Sutton v. United Airlines, Inc.,
527 U.S. 471, 489 (1999).
Anderson contends that the record evidence shows a genuine
issue of material fact exists as to whether she was
“substantially impaired” in her major life activity of sleeping.
This is so, she submits, because the record reflects her
diagnosis of insomnia as a result of averaging less than four
hours of sleep at night, which is less than the average person.
In addition, Anderson contends that the district court
improperly considered the effect her lack of sleep had on her
daytime productivity and work, thus holding her to a heightened
standard of showing impairment in more than one major life
activity. She further asserts that the district court failed to
view the evidence in the light most favorable to her. 6
5
Although the applicable version of the ADA does not
expressly delineate “sleeping” as a “major life activity,” every
court to address the issue, including this one, has concluded or
assumed that it is. See EEOC v. Sara Lee Corp., 237 F.3d 349,
352 (4th Cir. 2001); see also EEOC v. Chevron Phillips Chem.
Co., LP, 570 F.3d 606, 616 (5th Cir. 2009) (collecting cases).
6
Anderson also maintains that the district court erred in
refusing to consider her diagnosis of dysthymic disorder because
(Continued)
8
We have reviewed the record and conclude the district court
did not err in granting summary judgment on this claim. Cf.
Anderson, 814 F. Supp. 2d at 569-72. Viewing the evidence in
the light most favorable to Anderson, the evidence simply does
not support the conclusion that she was “substantially impaired”
at the time Discovery terminated her employment. Moreover,
considering the district court’s statements in context, the
court did not hold Anderson to an improper standard. Nor did it
misapply the standard for granting summary judgment.
she “was not seeking to have this considered as a separate
disability, but rather, submitted that her impairment of
dysthymic disorder impacted the major life activity of
sleeping.” (Opening Br. 40.) The district court appropriately
declined to consider this diagnosis as part of Anderson’s claim
given that she relied on it for the first time in opposing
summary judgment. See Conley v. Gibson, 355 U.S. 41, 47 (1957)
(stating that a complaint must give “fair notice of what the
plaintiff’s claim is and the grounds upon which it rests”)
(emphasis added). Moreover, the analysis as to whether Anderson
was “substantially limited” as a result of impairment to her
ability to sleep would be the same regardless of the underlying
impairment creating her problems sleeping. See 29 C.F.R. §
1630.2(j).
On appeal, Anderson raises for the first time her diagnosis
of anxiety as a basis for an ADA claim. Given her failure to
raise it to the district court, we need not address this claim
either. Williams v. Prof’l Transp. Inc., 294 F.3d 607, 614 (4th
Cir. 2002) (“[In this circuit,] issues raised for the first time
on appeal are generally not considered absent exceptional
circumstances.”).
9
Under the Supreme Court precedent applicable to Anderson’s
case, 7 the term “substantially” as used in the ADA, is “to be
interpreted strictly to create a demanding standard for
qualifying as disabled.” Toyota Motor Mfg., Ky., Inc. v.
Williams, 534 U.S. 184, 197 (2002). “[A]n individual must have
an impairment that prevents or severely restricts the individual
from doing activities that are of central importance to most
people’s daily lives. The impairment’s impact must also be
permanent or long term.” Id. at 198. As the Supreme Court
explained:
It is insufficient for individuals attempting to prove
disability status under this test to merely submit
evidence of a medical diagnosis of an impairment.
Instead, the ADA requires those claiming the Act’s
protection . . . to prove a disability by offering
evidence that the extent of the limitation [caused by
their impairment] in terms of their own experience . .
. is substantial.
Id. (internal quotation marks omitted); see also Sutton, 527
U.S. at 482 (“A ‘disability’ exists only where an impairment
‘substantially limits’ a major life activity, not where it
7
In 2008, Congress amended the ADA considerably, broadening
the Supreme Court’s narrow reading of the statute. These
amendments do not apply to Anderson’s case, however, because she
was terminated prior to their enactment. See Reynolds v. Am.
Nat’l Red Cross, 701 F.3d 143, 151-52 (4th Cir. 2012) (joining
other circuits court of appeals in holding that the 2008 ADA
amendments do not apply retroactively).
10
‘might,’ ‘could,’ or ‘would’ be substantially limiting if
mitigating measures were not taken.”).
Applying these principles to Anderson’s case, the record
fails to show a genuine issue of material fact as to whether
Anderson suffered from a disability cognizable under the ADA.
Anderson’s own doctors recounted that during their appointments
with her in late November and mid-December, Anderson stated that
her condition had “improved since time off” and that despite
getting “much less sleep than what she had historically,” she
“awakes feeling fully refreshed,” was “functioning normally,”
and was not “feeling any functional impairment as a result” of
getting less sleep. (J.A. 516, 315-17, 325, 329-30, 333.) In
addition, Anderson’s sleep test results were “normal” and she
slept “more than seven hours.” (J.A. 325.) Dr. Tucker
specifically indicated that as of Anderson’s appointment with
him on December 19, there was no basis “from a sleep standpoint”
to place Anderson on disability because her functioning was not
significantly impaired as of late November. (J.A. 325-26.)
While Anderson is entitled to have the evidence viewed in
the light most favorable to her,
only reasonable inferences from the evidence need be
considered by the court . . . . Permissible inferences
must still be within the range of reasonable
probability, however, and it is the duty of the court
to withdraw the case from the jury when the necessary
inference is so tenuous that it merely rests upon
speculation and conjecture.
11
Sylvia Dev. Corp. v. Calvert Cnty., 48 F.3d 810, 818 (4th Cir.
1995). As we previously recognized, “[m]any individuals fail to
receive a full night of sleep.” EEOC v. Sara Lee Corp., 237
F.3d 349, 352 (4th Cir. 2001) (quoting Ford Motor Co. v.
McDavid, 259 F.2d 261, 266 (4th Cir. 1958)). Sleep patterns
vary between individuals and even during a person’s lifetime,
and on this record, Anderson simply failed to present evidence
creating a genuine issue of material fact as to whether she was
“substantially impaired” in December 2006 as a result of her
insomnia. Cf. EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606,
618 (5th Cir. 2009) (“In an ADA case, the relevant time for
assessing the existence of a [cognizable] disability is the time
of the adverse employment action.”). Accordingly, the district
court did not err in concluding that Anderson was not an
“individual with a disability” under the ADA.
Anderson’s ADA retaliation claim is based on the ADA’s
prohibition of discrimination “against any individual because
such individual has opposed any act or practice made unlawful by
[the ADA] or because such individual made a charge” thereunder.
42 U.S.C. § 12203. To survive summary judgment on her ADA
retaliation claim, Anderson had to produce evidence
demonstrating that (1) she engaged in conduct protected by the
ADA; (2) she suffered an adverse employment action subsequent to
12
engaging in the protected conduct; and (3) a causal link exists
between the protected activity and the adverse action. Freilich
v. Upper Chesapeake Health, Inc., 313 F.3d 205, 216 (4th Cir.
2002).
Anderson sought to prove causation using the burden-
shifting framework established for Title VII cases in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Anderson thus
bore the initial burden of establishing a prima facie case of
discrimination; if successful, the burden then shifted to
Discovery to provide a legitimate, nondiscriminatory reason for
its action; thereafter, the burden returned to Anderson to show
by a preponderance of evidence that the proffered reason was a
pretext for discrimination or retaliation. Laber v. Harvey, 438
F.3d 404, 432 (4th Cir. 2006) (en banc).
Anderson contends the district court erred in holding that
she had failed to set forth evidence from which a jury could
conclude that Discovery’s nondiscriminatory explanation for its
action was a pretext. She asserts Discovery had “shifting
justifications” for terminating her and that is sufficient
reason to deny summary judgment. Specifically, she asserts that
at the time of her termination, Williams-Fauntroy confirmed that
the “sole” reason for the decision was her failure to amend her
time entries, but that since litigation commenced, Discovery
manufactured a host of additional reasons to support its
13
decision. As such, she posits that Discovery’s questionable
credibility supports an inference of pretext.
We agree with the district court that even assuming
Anderson has set forth a prima facie case of retaliation,
Discovery has provided a legitimate, nondiscriminatory reason
for terminating her employment, and no genuine issue of material
fact calls that reason into question as pretext. Anderson
repeatedly misrepresents the record evidence and parrots
statements of law regarding pretext, but the record evidence
simply does not support her contention. From the time of
Anderson’s actual discharge through litigation Discovery
provided specific examples of that behavior, and different
individuals characterized her conduct using slightly different
examples or terminology, but Discovery’s explanation for its
decision has been consistent: Anderson’s untrustworthiness and
poor communication skills.
Far from being the “sole” reason for her termination, the
accuracy of Anderson’s time sheets was the proverbial straw that
broke the camel’s back, i.e., the last in a line and immediate
precipitating factor in a long, documented history of Anderson’s
inability to communicate accurately and truthfully with her co-
workers. This record diverges from cases where we have held
that an employer’s changing explanations for its employment
decision gave rise to an inference of pretext. See, e.g.,
14
Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 646
(4th Cir. 2002) (discussing how a shift both in the detail and
the explanation for the employer’s decision gave them “the
flavor of post-hoc rationalizations”); EEOC v. Sears Roebuck &
Co., 243 F.3d 846, 853 (4th Cir. 2001) (stating that an
employer’s inconsistent explanations and different
justifications were probative of pretext). Anderson “cannot
seek to expose [Discovery’s] rationale as pretextual by focusing
on minor discrepancies that do not cast doubt on the
explanation’s validity[.]” Hux v. City of Newport News, 451
F.3d 311, 315 (4th Cir. 2006). In the absence of such evidence
of pretext, “[i]t is not our province to decide whether
[Discovery’s] reason was wise, fair, or even correct,
ultimately, so long as it truly was the reason for [Anderson’s]
termination.” DeJarnette v. Corning, Inc., 133 F.3d 293, 299
(4th Cir. 1998) (quotation marks omitted).
Discovery articulated a legitimate, non-discriminatory
reason for Anderson’s termination of employment, and the record
is devoid of evidence that would create a genuine issue of
material fact as to whether that explanation was mere pretext.
Consequently, the district court did not err in granting
Discovery summary judgment on Anderson’s ADA retaliation claim.
15
IV. FMLA Claims
Anderson also challenges the district court’s grant of
summary judgment to Discovery on her FMLA retaliation and
interference claims. Anderson alleged that Discovery violated
the FMLA by unlawfully interfering with her right to take a
reduced work schedule upon her return to work in November, and
that her subsequent termination constituted retaliation under
the FMLA. Having reviewed the record, as well as the parties’
arguments on appeal, we conclude that the district court did not
err in granting summary judgment to Discovery. 8
The FMLA allows certain employees to take a total of “12
work weeks of leave” during a twelve-month period for a “serious
health condition” that makes the employee “unable to perform the
functions of” her job. 29 U.S.C. § 2612(a)(1)(D). “FMLA claims
arising under [a] retaliation theory are analogous to those
derived under Title VII and so are analyzed under the burden-
shifting framework of McDonnell Douglas[.]” Yashenko v.
Harrah’s NC Casino Co., 446 F.3d 541, 550-51 (4th Cir. 2006).
8
The district court concluded Anderson’s FMLA claims failed
because she did not have a “serious health condition” and had
not provided adequate notice to Discovery of her need for FMLA
leave. We affirm on different grounds than relied on by the
district court. See Jackson v. Kimel, 992 F.2d 1318, 1322 (4th
Cir. 1993) (“In reviewing the grant of summary judgment, we can
affirm on any legal ground supported by the record and are not
limited to the grounds relied on by the district court.”).
16
Anderson’s FMLA retaliation claim thus fails for the same reason
her ADA retaliation claim failed: the absence of evidence
indicating that Discovery’s legitimate, nondiscriminatory reason
for terminating Anderson was pretext for unlawful behavior. See
infra pp. 12-15.
In order to establish a claim for violation of the FMLA,
including interference of rights thereunder, Anderson had to
prove not only the fact of interference, but also that the
violation prejudiced her in some way. Ragsdale v. Wolverine
World Wide, Inc., 535 U.S. 81, 89 (2002); see 29 U.S.C. §
2617(a)(1). Such prejudice can be proven by showing that the
employee lost compensation or benefits “by reason of the
violation,” id. § 2617(a)(1)(A)(i)(I); sustains other monetary
losses “as a direct result of the violation,” id. §
2617(a)(1)(A)(i)(II); or suffers some loss in employment status
remediable through “appropriate” equitable relief, such as
employment, reinstatement, or promotion, id. § 2617(a)(1)(B).
Here, the only injury Anderson alleged as a result of
Discovery’s alleged unlawful denial of her request for a reduced
work schedule was that she was not permitted to work a reduced
schedule. She does not claim that she lost any compensation or
benefits, sustained other monetary loss, or suffered loss in
employment status as a result of the purported interference.
While Anderson sought $786,000 back pay and reinstatement, she
17
has failed to show that she is entitled to any of these amounts.
As discussed above, Anderson’s termination of employment was a
separate and unrelated event, and from the record it appears
that Anderson remained employed and was given full benefits
until her termination. As such, her interference claim must
also fail. See Yashenko, 446 F.3d at 549-50 (holding that where
employee was terminated due to a legitimate reason, he cannot
show that he is entitled to reinstatement even if the employer
otherwise interfered with his FMLA rights by denying leave).
V.
For the aforementioned reasons, we affirm the district
court’s judgment awarding summary judgment in favor of
Discovery.
AFFIRMED
18