Paul Lewis v. Sloan Gibson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1061
PAUL A. LEWIS,
Plaintiff – Appellant,
v.
SLOAN D. GIBSON, Acting Secretary of the Department of
Veteran Affairs,
Defendant – Appellee,
and
DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, SECRETARY
OF DEPARTMENT OF VETERAN AFFAIRS,
Defendants.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:12-cv-01189-JAB-JEP)
Submitted: July 31, 2015 Decided: August 14, 2015
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary March Williams Exum, THE EXUM LAW OFFICE, Asheville, North
Carolina, for Appellant. Joan B. Binkley, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Paul Lewis (“Appellant”) appeals the district court’s order
granting the motion for summary judgment filed by Sloane D.
Gibson, Acting Secretary of the Department of Veterans Affairs
(“VA”), and dismissing Appellant’s employment discrimination
complaint. Appellant argues that the VA failed to reasonably
accommodate his medical disabilities and retaliated against him
for filing a complaint with the Equal Employment Opportunity
Commission (“EEOC”). We affirm.
We review the grant of summary judgment de novo.
Cloaninger v. McDevitt, 555 F.3d 324, 330 (4th Cir. 2009). All
facts and reasonable inferences are viewed “in the light most
favorable to the non-moving party.” Dulaney v. Packaging Corp.
of Am., 673 F.3d 323, 330 (4th Cir. 2012). Summary judgment is
only appropriate when “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). “Conclusory or speculative
allegations do not suffice, nor does ‘a mere scintilla of
evidence’ in support of [the non-moving party’s] case.”
Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002) (quoting Phillips v. CSX Transp., Inc., 190 F.3d 285, 287
(4th Cir. 1999) (per curiam)).
Appellant first contends that the VA failed to reasonably
accommodate his disabilities. The Rehabilitation Act prohibits
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federal agencies from discriminating against a qualified
individual “solely by reason of her or his disability.” 29
U.S.C. § 794(a).
To establish a claim under the Rehabilitation Act for a
failure to accommodate, a plaintiff must show that (1) he has a
disability; (2) his employer knew of the disability; (3) with
reasonable accommodations he is otherwise qualified to perform
the essential functions of the employment position in question;
and (4) his employer refused to make such reasonable
accommodations. See Wilson v. Dollar Gen. Corp., 717 F.3d 337,
345 (4th Cir. 2013) (listing elements of a failure to
accommodate claim brought pursuant to the Americans with
Disabilities Act (“ADA”)); cf. Doe v. Univ. of Md. Med. Sys.
Corp., 50 F.3d 1261, 1264 n.9 (4th Cir. 1995) (explaining that
the same analysis is applied to ADA and Rehabilitation Act
discrimination claims). This dispute centers on the qualified
individual element. This element consists of two
considerations: whether the specific accommodation requested was
reasonable and whether, if the requested accommodation was
provided, the plaintiff could perform the essential functions of
the position. Jacobs v. N.C. Admin. Office of the Cts., 780
F.3d 562, 580 (4th Cir. 2015).
The accommodations requested by Appellant were not
reasonable. He first proposed that DVAMC decrease its
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performance standards; but doing so would necessitate changing
the essential functions of his employment. Courts have roundly
held that such requests are unreasonable. See, e.g., Lucas v.
W.W. Grainger, Inc., 257 F.3d 1249, 1260 (11th Cir. 2001)
(“[E]mployers are not required to transform the position into
another one by eliminating functions that are essential to the
nature of the job as it exists.”); accord Fjellestad v. Pizza
Hut of Am., Inc., 188 F.3d 944, 950 (8th Cir. 1999). He also
requested a reduced workload, but “an accommodation that would
require other employees to work harder is unreasonable.”
Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 1121 n.3 (10th
Cir. 2004); accord Bratten v. SSI Servs., Inc., 185 F.3d 625,
632 (6th Cir. 1999); Hammel v. Eau Galle Cheese Factory, 407
F.3d 852, 866-67 (7th Cir. 2005). His request for an assistant
is likewise unreasonable because the Rehabilitation Act -- like
the ADA -- does not “require an employer to hire an additional
person to perform an essential function of a disabled employee’s
position.” Martinson v. Kinney Shoe Corp., 104 F.3d 683, 687
(4th Cir. 1997). Accordingly, we conclude that the district
court appropriately granted summary judgment as to Appellant’s
failure to accommodate claim.
Appellant’s remaining challenge is that the VA retaliated
against him for filing an EEOC complaint. To prevail on a
retaliation claim, a plaintiff must either provide sufficient
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direct and indirect evidence of retaliation, or proceed under
the familiar burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Cf. Rhoads v. FDIC, 257
F.3d 373, 392 (4th Cir. 2001).
Under the former avenue, a plaintiff must produce direct or
indirect evidence of a “stated purpose to discriminate . . . of
sufficient probative force to reflect a genuine issue of
material fact.” Rhoads, 257 F.3d at 391 (quoting Brinkley v.
Harbour Recreation Club, 180 F.3d 598, 607 (4th Cir. 1999)).
“What is required is evidence of conduct or statements that both
reflect directly the alleged discriminatory attitude and that
bear directly on the contested employment decision.” Id. at
391-92 (quoting Brinkley, 180 F.3d at 607).
Under the latter, a plaintiff must first establish a prima
facie case of retaliation by demonstrating “(1) that he engaged
in a protected activity; (2) that his employer took an adverse
employment action against him; and (3) that a causal connection
existed between the protected activity and the asserted adverse
action.” King v. Rumsfeld, 328 F.3d 145, 150-51 (4th Cir.
2003). If the plaintiff establishes a prima facie case of
discrimination, the burden of production shifts to the defendant
to articulate a legitimate, nonretaliatory basis for the action.
See Laing v. Fed. Express Corp., 703 F.3d 713, 719 (4th Cir.
2013). Notably, when the defendant proposes such a basis, “it
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is not our province to decide whether the reason was wise, fair,
or even correct, ultimately, so long as it truly was the reason
for the plaintiff’s termination.” Id. at 722 (quoting Hawkins
v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000)). If the
defendant meets this burden, the plaintiff must show that the
proffered reason is pretextual. See id. at 719. While not
necessarily required, comparator evidence -- “evidence that
other employees who were similarly situated to the plaintiff
(but for the protected characteristic) were treated more
favorably -- is “‘especially relevant’ to a showing of pretext.”
Id. (quoting McDonnell Douglas, 411 U.S. at 804).
We hold that there is insufficient evidence to sustain a
claim of retaliation under either approach. Appellant offers no
direct evidence of retaliatory motive, and the temporal
proximity between his protected activity and termination is,
without more, insufficient to create a genuine issue of material
fact. Even assuming that he could state a prima facie case of
retaliation, the VA offered a legitimate, non-retaliatory reason
for his termination: performance. Appellant presents nothing to
suggest that the VA’s proffered basis was insincere or
pretextual. We thus agree with the district court’s decision to
grant the VA’s motion for summary judgment on Appellant’s
retaliation claim.
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Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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