Toni Works v. Nancy Berryhill ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1184
TONI C. WORKS,
Plaintiff - Appellant,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security
Administration,
Defendant - Appellee.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge. (1:10−cv−01284−RDB)
Argued: March 22, 2017 Decided: April 26, 2017
Before TRAXLER, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Stephanie Marie Herrera, LAW OFFICES OF GARY M. GILBERT &
ASSOCIATES, P.C., Silver Spring, Maryland, for Appellant. Jason Daniel Medinger,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: Gary M. Gilbert, Cori M. Cohen, LAW OFFICES OF GARY M. GILBERT
& ASSOCIATES, P.C., Silver Spring, Maryland, for Appellant. Rod J. Rosenstein,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Toni Works appeals from the district court’s award of summary judgment in favor
of her former employer, the Social Security Administration (SSA), in her action for
discrimination filed under the Rehabilitation Act, 29 U.S.C. § 701 et seq. After the SSA
terminated Works’ employment from a probationary program for disabled persons
attempting to re-enter the workforce, Works claimed that the SSA (1) unlawfully
discriminated against her based on her disability; (2) denied her requests for reasonable
accommodations for her disability; and (3) retaliated against her because she engaged in
the protected activity of taking disability-related leave. For the reasons that follow, we
affirm the district court’s summary judgment award.
I.
While serving in the United States Navy as an aircraft electrician in 1985, Works
was involved in an accident that caused her to suffer a seizure disorder. After working in
a hospital for a few years, Works was unemployed for about ten years. She ultimately
qualified for, and began receiving, disability benefits from both the SSA and the
Department of Veterans Affairs.
On August 26, 2002, the SSA hired Works as a probationary employee in a
program designed for disabled individuals. The program offered employees a one-year
trial period in which to demonstrate that they could perform their assigned job functions
and be retained on a permanent basis. Works’ position as a “management assistant” in
the employee development and training branch (EDTB) required her to maintain and
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compile data, make calculations regarding staff hours and workload, provide charts of
data collected, and assist with other duties as assigned. Marjorie Warner, EDTB
manager, served as Works’ supervisor, while William Johnson-Bey and Janet Edrington
served as EDTB deputy managers.
Several different “team leaders” assigned Works projects to complete. Within the
first 90 days of Works’ probationary employment, Johnson-Bey and one team leader
advised Warner that Works had difficulty completing assignments. This team leader
informed Warner that Works frequently was away from her work station and “spent a lot
of time on the phone” discussing matters that “were personal in nature.” However,
another team leader stated that Works “did not socialize at the workplace any more than
other employees.” Nevertheless, by December 2002, Works was aware that her
supervisors were “unhappy with her work.”
Works suffered a seizure at home in January 2003, and a seizure at work in
February 2003. These seizures likely were caused by a new medication that Works had
been prescribed.
Works took several days of leave related to these seizures. Warner approved all of
Works’ requests for leave, and granted her advanced sick leave when necessary. To
facilitate Works’ safe return to work in February 2003, Warner and Johnson-Bey
arranged for a nurse to teach staff members how to aid Works in the event that she
suffered another seizure in the workplace.
In March 2003, Warner along with Johnson-Bey and two team leaders,
participated in a mid-year performance review with Works. Warner deemed Works’
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performance as “basically satisfactory, though not exceptional.” The review included
reports that Works had difficulty understanding a data entry project assigned by Johnson-
Bey, that she needed excessive amounts of direction, and that the project eventually was
completed by a co-worker. That co-worker, however, testified that Works was “diligent”
and had “applied herself.”
In describing Works’ performance, Johnson-Bey stated that Works’ performance
on some assignments was “really pretty good,” including when Works oversaw
employees who participated in video training. Yet, Johnson-Bey also stated that “most of
[Works’ performance problems] were involving working those different database systems
. . . those kinds of things that we originally had hired her for.” Another team leader
testified that Works’ performance generally was satisfactory, and that Works’
performance was “right on point when her medication was at the right level.”
Works continued to suffer seizures, including one at work in May 2003, and one at
home in June 2003. During her probationary period, Works used about 326 hours of
leave, including both disability-related and unrelated leave.
On June 23, 2003, Warner completed a progress review memorandum assessing
Works’ performance. In that memorandum, Warner stated that Works had been
“extremely resistant” to performing two hours per day of typing work, which was
required for all employees in Works’ position. Warner also related that Works was
“frequently absent, unaware of her leave balances,” and had trouble following proper
procedures for requesting and using leave.
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Warner further noted that Works often engaged in personal conversations at work,
and had been observed sleeping during meetings. Warner ultimately concluded in her
assessment that Works’ performance and conduct had “considerably deteriorated since
the last performance discussion and immediate and substantial improvement is needed.”
Works suffered another seizure at home on July 14, 2003. Four days later, on July
18, 2003, after Works had returned from three days of leave, Works asked Warner if she
would be retained at the end of her probationary period. Warner said that if she had to
make a decision that day, Works would not be retained.
One week later, on July 25, 2003, Works was given notice of termination effective
August 8, 2003. The notice stated that the basis for the termination was Works’
“repeated failure to complete assignments as expected,” which could “largely be
attributed to” the “excessive amount of time that [she had] been seen away from [her]
workstation, socializing with others, aimlessly walking the halls and spending an
inordinate amount of time on the telephone for personal reasons.” The notice also
explained that the SSA requires “continuous work processing,” and that it “is essential
that our employees report to work regularly and perform their duties. Your actions are
unacceptable because when you have been out on unscheduled leave, management cannot
depend on you being available to accept and perform the assignments expected.”
Works later filed a discrimination claim with the Equal Employment Opportunity
Commission, which was resolved in favor of the SSA. Thereafter, Works filed a
complaint against the SSA in the district court alleging violations of the Rehabilitation
Act, 29 U.S.C. § 701 et seq. Works alleged that: (1) the SSA’s termination of her
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employment constituted unlawful discrimination based on her disability; (2) the SSA
denied her requests for reasonable accommodations for her disability; and (3) the SSA
unlawfully retaliated against her based on her protected conduct, namely, taking
disability-related leave. After the close of discovery, the SSA filed a motion for
summary judgment, which the district court granted. 1
The district court concluded that Works had failed to meet her prima facie burden
of proof on her claims of disability discrimination and failure to grant reasonable
accommodations. The court held that because of Works’ excessive absenteeism, she was
unable to demonstrate that she could perform the essential functions of the position.
Thus, the court concluded that Works had failed to show that she was a “qualified
individual” within the meaning of the Act.
Additionally, addressing Works’ retaliation claim, the district court held that
although Works could establish a prima facie case, she failed to rebut as pretextual the
SSA’s proffered, non-discriminatory reasons for her termination, namely, her failure to
complete assignments as expected and her frequent unscheduled leave. After the district
court denied Works’ motion for reconsideration, she filed the present appeal.
1
Initially, the district court granted the SSA’s motion for summary judgment
without addressing Works’ request for discovery. On appeal to this Court, we vacated
the district court’s judgment and remanded the case to the district court with instructions
to grant Works’ discovery request. Works v. Colvin, 519 F. App’x 176, 176 (4th Cir.
2013) (unpublished).
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II.
A.
We review the district court’s award of summary judgment de novo. Turner v.
United States, 736 F.3d 274, 280 (4th Cir. 2013). Summary judgment is appropriate only
“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.” Fed. R. Civ. P. 56(a). We construe
the evidence in the light most favorable to Works, and draw all reasonable inferences in
her favor. Rosetta Stone Ltd. v. Google, Inc., 676 F.3d 144, 150 (4th Cir. 2012).
We begin with a brief overview of the Rehabilitation Act (the Act), 29 U.S.C.
§ 701 et seq., which imposes on federal agencies an affirmative duty concerning the
treatment of disabled applicants and employees. 2 29 U.S.C. § 791(b). The Act provides
that “no otherwise qualified individual with a disability . . . shall, solely by reason of her
or his disability, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial
assistance or under any program or activity conducted by any Executive agency . . . .” Id.
§ 794(a) (emphasis added). Accordingly, to establish a prima facie case of discrimination
or failure to accommodate under the Act, Works was required to show that she was a
disabled individual who was qualified for the position. Reynolds v. Am. Nat’l Red Cross,
2
“Employment discrimination claims brought under [the Rehabilitation Act] are
evaluated using the same standards as those applied under Title I of the Americans with
Disabilities Act of 1990.” Reyazuddin v. Montgomery County, 789 F.3d 407, 413 (4th
Cir. 2015) (internal quotation marks and alterations omitted); see Hooven-Lewis v.
Caldera, 249 F.3d 259, 268 (4th Cir. 2001).
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701 F.3d 143, 150 (4th Cir. 2012); Hooven-Lewis v. Caldera, 249 F.3d 259, 268 (4th Cir.
2001). The parties do not dispute, and we agree, that Works’ seizure disorder rendered
her “disabled” under the Act.
B.
Works argues on appeal that in dismissing her discrimination and failure to
accommodate claims, the district court erroneously held that because of Works’ excessive
absenteeism, she was not a “qualified individual” who could perform the essential
functions of her job. According to Works, her presence in the office was not essential,
because her duties “could be, and were, ‘distributed’ amongst her co-workers during her
absence.” Works further argues that because the district court found that she presented
some favorable evidence regarding the adequacy of her job performance, she necessarily
was a “qualified individual” under the terms of the Act. We disagree with Works’
position.
A “qualified individual” is one “who, with or without a reasonable
accommodation, can perform the essential functions of the employment position that such
individual holds or desires.” Reyazuddin v. Montgomery County, 789 F.3d 407, 414 (4th
Cir. 2015) (citing 42 U.S.C. § 12111(8)); Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31
F.3d 209, 212-13 (4th Cir. 1994) (same). To satisfy this requirement, an employee must
“possess[] the skills necessary” for the position, but also must be “willing and able to
demonstrate these skills by coming to work on a regular basis.” Tyndall, 31 F.3d at 213.
Unless an employee can complete her assignments from an alternate location, an
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employee “who does not come to work cannot perform any of [her] job functions,
essential or otherwise.” Id. (citation omitted).
The record uniformly shows that as a management assistant, Works could not
receive or perform assignments unless she was present in the office. Not only did the
announcement advertising her management assistant position state that the work would
be performed in an office setting, but Works admitted that her duties required her
presence in the office. Further, the record supports the commonsense conclusion that an
employee’s absence from her work location and inability to perform her job functions
will result in hardship to the group to which she has been assigned. Thus, Works’
presence in the office was a necessary element of her job performance regardless whether
another management assistant could perform a particular task in Works’ absence.
In addition, although the district court concluded that Works presented some
favorable evidence regarding the adequacy of her performance “when she was actually at
work,” Works needed to show more than her ability to perform her particular job
functions. During the 50 weeks of probationary employment designed to show whether
Works could return to work on a permanent basis, she missed more than seven weeks of
work. Despite Warner’s authorization of all Works’ requests for disability-related and
unrelated leave, Works’ attendance record did not improve. Thus, even after taking
substantial medical leave to accommodate her disability, Works was unable to reach a
point at which she could regularly attend work and perform her assignments as a
management assistant. See Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345-46 (4th Cir.
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2013) (employee failed to show that request of additional two days of leave would allow
him to perform essential functions of job at conclusion of leave period).
Our conclusion that Works failed to establish that she is a “qualified individual” is
not altered by Warner’s statements that Warner could have “worked with” Works’
absences, and that Works’ absences were “a concern” but not a “major concern.” These
statements reflected Warner’s willingness to afford Works necessary accommodations in
the form of leave, and did not establish that Works’ presence at work was non-essential
or unimportant. Moreover, Warner consistently and repeatedly stated that her primary
concern was Works’ inability to complete assigned tasks. Works’ failure to report to
work on a reliable basis directly contributed to her inability to perform her job duties.
Because Works’ excessive absenteeism rendered her unable to fulfill the essential
functions of her job, we hold that she was not a “qualified individual with a disability,” as
required by the Act. See Tyndall, 31 F.3d at 212-14. We therefore affirm the district
court’s conclusion that Works failed to present a prima facie case of discrimination and
failure to accommodate.
C.
Finally, we turn to consider whether the district court erred in entering summary
judgment in favor of the SSA with respect to Works’ retaliation claim. Works alleges
that the termination from her probationary position constituted unlawful retaliation
because she engaged in the protected activity of taking disability-related leave. See
Hooven-Lewis, 249 F.3d at 272-74. In response, the SSA asserts that Works has
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abandoned any challenge to the district court’s ruling on this claim because she failed to
raise the issue in her opening brief filed in this Court. We agree with the SSA’s position.
Under Rule 28 of the Federal Rules of Appellate Procedure, “the argument
[section of the brief] . . . must contain . . . appellant’s contentions and the reasons for
them, with citations to the authorities and parts of the record on which the appellant
relies.” Fed. R. App. P. 28(a)(8). We have explained that “[f]ailure to comply with the
specific dictates of [Rule 28] with respect to a particular claim triggers abandonment of
that claim on appeal.” Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir.
1999); accord A Helping Hand, LLC v. Baltimore County, 515 F.3d 356, 369 (4th Cir.
2008).
The arguments presented in Works’ opening brief challenge the district court’s
rulings on her claims of disability discrimination and failure to accommodate. Although
Works later addressed the retaliation claim in her reply brief and during oral argument
before this Court, such treatment is insufficient under Rule 28 to preserve the issue for
our review. Accordingly, we conclude that Works has abandoned any challenge to the
district court’s entry of summary judgment on Works’ claim of retaliation. 3
3
Even if we determined that Works’ challenge to the district court’s ruling on
retaliation properly were raised, we still would affirm the court’s decision. For the
reasons stated by the district court, Works cannot establish that the SSA’s non-
discriminatory reasons for terminating Works’ probationary employment were pretextual.
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III.
For these reasons, we affirm the district court’s award of summary judgment to the
SSA.
AFFIRMED
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