Howard v. INOVA Health Care, No. 07-1885 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1885 WINFRED HOWARD, Plaintiff - Appellant, v. INOVA HEALTH CARE SERVICES, d/b/a INOVA Health System, Defendant - Appellee. No. 07-2035 WINFRED HOWARD, Plaintiff - Appellant, v. INOVA HEALTH CARE SERVICES, d/b/a INOVA Health System, Defendant - Appellee. Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge; Gerald Bruce Lee, District Judge. (1:06-cv00976-CMH; 1:07-cv-00647-GBL) Argued: October 28, 2008 Decided: December 5, 2008 Before MOTZ, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Nils George Peterson, Jr., Arlington, Virginia, for Appellant. William Boyle Porter, BLANKINGSHIP & KEITH, P.C., Fairfax, Virginia, for Appellee. _______________ Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: On August 24, 2006, Winfred Howard sued his employer, Inova Health Care Services, claims under the asserting Family U.S.C. § 2601 et seq. and interference Medical Leave and Act retaliation ( FMLA ), 29 After Inova moved for summary judgment, Howard moved to dismiss his complaint without prejudice or, in the alternative, to amend his petition to add a claim under the Americans with Disabilities Act ( ADA ), 42 U.S.C. § 12101 et seq. The district court denied Howard s motion and granted summary judgment in favor of Inova, finding that Inova had not violated the FMLA in disciplining Howard, transferring him to an alternate position, or terminating his employment. The court also found that Howard had failed to make a prima facie showing of retaliation. On July 3, 2007, Howard filed a second suit against Inova, asserting an ADA claim based on the same events that formed the basis for his FMLA claims. The district court in that case granted Inova s 12(b)(6) motion to dismiss Howard s complaint on the basis of res judicata. judgments of the district courts. we affirm. 3 Howard now appeals the For the reasons that follow, I. Howard first began working for Inova as an operating room ( OR ) technician in 1993. Inova that disorder he had ( PTSD ), been In the fall of 1996, Howard informed diagnosed triggered by with exposure fluids or the smell of burning flesh. from his position for fear of posttraumatic to blood stress or bodily He asked to be removed endangering patients. Howard began using full-time and intermittent leave under the FMLA to address his PTSD and eventually was transferred to a supply and resource coordinator position that did not involve OR work. Howard years. In left Inova 2000, he in sued 1997 and Inova, was unemployed alleging an ADA for four violation. While the lawsuit was pending, Inova rehired Howard in 2001 as a patient Upon service his coordinator, reemployment, and Howard the was lawsuit given was access dismissed. to Inova s employee booklet and FMLA policies. On February 14, 2002, Howard was involved in a car accident and injured his back. of FMLA leave. He He requested and was approved for 28 days provided Inova with physicians notes certifying that he was unable to attend work from February 14 to 19, 2002; February 27 to March 14, 2002; April 9 to 16, 2002; and April 19 to 26, 2002. a second car accident on J.A. 597 602. November 4 26, Howard was involved in 2002. He submitted physicians notes certifying that he should work reduced hours with certain restrictions on physical activity from December 7 to 21, 2002; December 18, 2002 to January 10, 2003; and January 11, 2003 to February 22, 2003. J.A. 606 09. He also submitted a physician certification in May 2003 stating that he needed to work reduced hours for an unknown period. J.A. 610 12. Inova approved a reduced work schedule for Howard, but he eventually returned to a full-time schedule in 2003 or 2004. See J.A. 301. In 2005, Howard was verbally disciplined by his supervisor, Julie Quick, for absenteeism and tardiness, and written documentation of the discipline was placed in his file. 104, 621. J.A. Quick explained that Howard had failed to report for work on February 2 to 7, 2005 and March 1 to 2, 2005; that he had left work early on February 9, 23, and 25, 2005; and that he was late on February 11, 14, and 18, 2005. Id. Howard asserted that he missed these days of work due to his back problems. J.A. 333 38. Quick provided Howard with FMLA forms for his doctors to certify that these absences were related to medical issues. If Howard could submit proper physician certification of these absences, Quick would withdraw documentation of the verbal warning from Howard s file. On April 15, 2005, Howard called in sick. On April 18, 2005, Quick gave Howard a written warning, noting that his April 5 15, 2005 months. absence was the ninth unexcused absence in three Again, Quick provided Howard with FMLA forms and said she would withdraw both the verbal and written warnings if he could provide physician certification for his absences. Howard met with Quick and representative, on April 28, 2005. Tom Williams, an Inova HR Howard had not yet provided FMLA documentation to excuse his absences. Quick and Williams explained the forms to Howard and informed him that his failure to return them could be grounds for termination. J.A. 385 86. On May 4, 2005, Howard submitted a Certification of Health Care Provider that a physician had signed on March 29, 2005. See J.A. the 623 25. Because the certification did not provide physician s name or contact information and was evidently filled out by two different people, Williams met with Howard and told him that the certification was insufficient to excuse Howard s absences. 1 On May 6, 2005, Williams wrote Howard, explaining that Inova had no FMLA paperwork for Howard for the last two 1 The physician s signature and the written response stating the medical facts which support [the physician s] certification were in one person s handwriting. J.A. 623. The rest of the form, which stated that Howard needed to work a reduced schedule for an unknown duration of time, was written in another person s handwriting. Howard admitted that he filled out most of the form and asserted in his deposition that his physician, Dr. Rodney Dade, authorized him to do so. In a deposition, Dr. Dade testified that he had not authorized Howard to fill out the form. J.A. 1623 29. 6 years. Williams s letter set a May 13, 2005 deadline for Howard to provide physician certification for his absences. Howard did not submit a complete certification from Dr. Rodney Dade until May 31, 2005. The certification stated that Howard had lower back pain that required a reduced work schedule for a period of six to eight months. Inova approved a reduced work schedule for Howard based on this certification on June 1, 2005. On June 13, 2005, Quick met with Howard and informed him that he would be transferred from the Surgical Business office to the Unit Management office to work in a supply distribution tech position. their meeting A letter stated from that Quick the new to Howard position memorializing would better accommodate his intermittent schedule and that Howard would work in the Unit Management office, reorganizing and labeling; entering data for scrub users; [and] placing supplies . . . in proper locations, for the duration of his approved reduced work schedule. J.A. 116, 642, 1485. The letter asked Howard to start in his new position on June 15, 2005. Id. Howard testified in his deposition that during the meeting he told Quick that he should not work near the OR because he needed to avoid exposure to blood. in the 2005. new supply distribution He did not report for work tech position until June 23, When he appeared for work, he presented a note from Dr. 7 George H. Lawrence, a psychologist, stating that Howard has been suffering from debilitating stress and therefore unable to work from Wednesday, June 15th. J.A. 126; see also J.A. 420. The note stated that Howard was fit to return to duty on June 23, 2005 and should avoid unnecessary stress. On June 27, 2005, Howard filed an Id. at 126 EEOC charge discrimination against Inova, alleging an ADA claim. of On the same day, Quick and Williams met with Howard and requested FMLA paperwork to certify the debilitating stress condition that Dr. Lawrence had identified. See J.A. 436. They provided Howard with the necessary forms and asked him to return them by July 13, 2005, which he did not. In the meantime he worked as a supply distribution tech, performing duties in and around the OR. He testified that while he worked in this position, he had four or five dissociative episodes related to his PTSD, only one See J.A. 432 34. of which he told Quick about. On July 12, 2005, Roxanne Kavros, one of Howard s old supervisors from his previous tenure with Inova, met with Williams to express her concern that she had seen Howard in and around the OR. mentioned that she had supervised him in 1998 when She he transferred from an OR tech position into a supply tech position 8 because of his PTSD. 2 She was worried that because of changes in the design of the OR department he may currently be passing by OR rooms and seeing patients or blood products. J.A. 1492. Howard met with Williams again on July 20, 2005. During this meeting, Williams gave Howard another week to submit FMLA certification for the debilitating stress that Dr. Lawrence had diagnosed. same day, Howard did not submit the paperwork. Howard met with Quick, Williams, and On the other HR employees to discuss his concern that his current position was exposing him to blood. After the meeting, he was assigned to another position in the Unit Management office to perform data entry and began work in this position on July 21, 2005. 3 2 The record contains some discrepancies as to when Howard first left Inova. Howard testified that he left Inova in July of 1997. J.A. 209. 3 The record contains conflicting evidence as to what duties Howard performed in his new position. Williams s personal notes reflect that on August 4, 2005, Julie Quick asked Howard to clean out a break room of supplies, but that Howard refused to do so unless the request was put in writing. J.A. 1493. Despite further negotiations between Quick and Howard, Williams s notes state that Howard continued to refuse to perform any duties in response to verbal requests. Howard s brief states that he was required to clean out a storage room that had not been cleaned in years and that this room contained materials that exacerbated his PTSD. Petitioner s Br. at 13 14. In his deposition, Howard testified that Inova moved [him] to a warehouse position where [he] worked by [him]self . . . to clean out a warehouse which [he] was told by a personnel that worked in perioperative service no one had been in from anywhere from five to six years. J.A. 448. The tasks 9 On August 10, 2005, Howard submitted an FMLA form requesting full-time leave from August 11 to 26, 2005. 653. J.A. Accompanying the form was a Certification of Health Care Provider from Dr. Lawrence stating that Howard was suffering from seizure disorder and PTSD. J.A. 128, 654. The form further stated that Howard is at risk for seizure or possible Id. at 128 29, 654 55. self harm and needs fulltime leave. Williams approved Howard s leave on August 15, 2005. On August 17, 2005, Williams sent Howard a letter confirming that Howard would return to work on August 29, 2005, the first business day after his approved leave would end. 132 33, 659-60. J.A. The letter also asked Howard to contact the health care providers who had completed Howard s most recent FMLA paperwork. proposed assume job after physicians to Williams description returning provide to wanted of the work. information the physicians position The about that letter to Howard also whether review would asked Howard a the would require a reduced work schedule; whether Howard would experience episodes of incapacity due to his health; and whether Howard would be able to perform the proposed job duties. Id. of cleaning the break room, storage room, and warehouse appear to be the same. The record is unclear whether Howard actually performed this task. 10 On August 23, 2005, Howard sent a letter to the Department of Labor, Wage & Hour Division to file an FMLA complaint against Inova for discriminat[ing] overriding a position disability. 4 and that retaliat[ing] was against accommodating me me by for my J.A. 676-77. On August 26, 2005, an Inova HR Coordinator sent Howard another letter confirming approval for his leave from August 11 to 26, 2005. J.A. 152 53. The letter also stated that Howard was required to present a fitness-for-duty certificate from [his] health care provider, prior to [his] return to work. at 152. Id. Howard testified that he understood this letter to request a fitness for duty certification from [his] doctor that provided support medically. that J.A. 485. [he was] ready to come back to work By September 8, 2005, however, Howard had not submitted a fitness-for-duty certification and had not reported for work. Howard to remind Id. at 484. him that On that day, Williams wrote Williams had not received information requested in his August 17, 2005 letter. Williams also informed Howard that because Howard the J.A. 154. had not returned to work as expected, Inova required updated Family 4 The DOL ultimately concluded that Inova had violated the FMLA when it transferred Howard to the supply distribution tech position and eventually terminated his employment. See J.A. 1154 68, 1195 96. 11 Medical Leave paperwork from both of your Health Care Providers by Monday, September 19, 2005. Williams warned Howard Id. that [f]ailure to clarify [Howard s] employment status with us . . . will be considered termination. Id. information. job abandonment and grounds for J.A. 486. At Howard s Howard request, September 15, 2005. to experience Dr. did not provide Lawrence wrote the to requested Williams on His letter explained that Howard continues occasional stress-induced seizures and dissociative episodes and needs evaluation and treatment by a neurologist, for which reasonable time away from his work was required. J.A. 158. Dr. Lawrence stated that Howard can soon begin to function effectively again as a Patient Coordinator or in some similar position. . . . [I]f he is treated with respect and consideration and allowed to return to appropriate work around the end of this month, part time at first, he will be a productive and above average . . . employee. On September 28, 2005, Howard faxed Id. Quick a letter informing her that he intended to return to work on October 3, 2005. J.A. 159. Williams contacted Howard that same day and confirmed receipt of Dr. Lawrence s September 15, 2005 letter, but reminded Howard that he still needed to provide FMLA paperwork from Dr. Lawrence and any other physician currently 12 treating him for his medical conditions before [he] return[s] to work. J.A. 161. Williams requested the paperwork by October 7, 2005. Howard did not return to work on October 3, 2005 as he had indicated to Quick. He faxed a letter to Williams on October 7, 2005, asking for more time to complete the FMLA certifications. J.A. 165. On October 17, 2005, Howard had neither returned to work nor submitted any of the requested FMLA certifications. On that day, Inova s Assistant Director for Human Resources wrote to Howard and informed him that due to the fact that we have not received any requested documentation to support your leave, your employment has been terminated effective immediately. J.A. 166. Howard sued Inova Health Care Services on August 24, 2006, asserting interference and retaliation claims under the FMLA. The district court granted summary judgment in favor of Inova and denied Howard s motion to dismiss his complaint without prejudice or, in the alternative, to amend his petition to add an ADA claim. against Inova, On July 3, 2007, Howard filed a second suit alleging that Inova had violated the ADA by discriminating and retaliating against him based on his PTSD. The district court granted Inova s 12(b)(6) motion to dismiss 13 Howard s second complaint on the basis of res judicata. Howard now appeals the judgments of the district courts. II. Howard appeals the district court s opinion granting summary judgment on both his interference and retaliation claims under the FMLA. Our review of the district court s grant of summary judgment is de novo. Jennings v. Univ. of N.C., 482 F.3d 686, 694 (4th Cir. 2007) (en banc) (citing Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th Cir. 2004) (en banc)). A. In his interference claim, Howard asserts on appeal that Inova violated position, the FMLA by disciplining terminating his transferring him for employment. him to unexcused These an alternate absences, claims are and addressed separately below. 1. Howard argues that his transfer from a billing position in the Surgical Posting office into a supply distribution tech position in the Unit Management office violated the FMLA because it worked 825.204(d). a hardship on Under C.F.R. 29 him in § 14 violation of 29 C.F.R. 825.204(a), an employer § may transfer an employee intermittent available qualified or temporarily, reduced alternative and which leave schedule position better during for the is required, which accommodates not transfer the employee to an recurring alternative the to an employee the leave than does the employee s regular position. may period is periods of The employer position in order to discourage the employee from taking leave or otherwise work a hardship on the employee. 29 C.F.R. § 825.204(d). Howard contends that the district court ignored the DOL s investigative finding that Inova had violated the FMLA when it transferred Howard. from the billing Howard further argues that his transfer position into the supply distribution tech position was unnecessary because Inova filled Howard s billing office position with hours asked to work overtime. from existing employees Petitioner s Br. at 11. who were In addition, Howard asserts that Inova ignored the limitations noted in its own health billing file office, that id. Howard at 13, was and restricted that the to work alternative in the supply distribution tech position was designed to work a hardship on him by moving him from a sedentary white collar job to a position where he was exposed to blood and the smell of burning flesh, id. at 15. 15 Inova responds that [r]egardless of when Inova was able to replace [Howard] with another full-time employee, [Howard s old billing position] required a full-time employee, and both his first and second alternative positions did not. Br. at 34. Respondent s Inova also points out that the new position offered the same salary and benefits as the old position and involved job duties that were a rough equivalent of his tasks in the billing office. emphasizes that Respondent s contrary to Br. at Howard s 35. Inova contention, his further medical record contained no restrictions as to the kind of work he could perform. Howard s reliance on the DOL s investigative findings is unavailing. Courts have routinely declined to rely on agency findings, in part because such a finding does not result from an adjudicatory effect. proceeding and consequently has no preclusive See Phipps v. County of McLean, No. 07-cv-1160, 2008 WL 4534066, at *4 n.3 (C.D. Ill. Oct. 7, 2008) (citation omitted); cf. Brantley v. Nationwide Mut. Ins. Co., No. RDB-07-1322, 2008 WL 2900953, at *3 5 (D. Md. July 22, 2008); Roberts v. The Health Ass n, No. 04-CV-6637T, 2007 WL 2287875, at *4 7 (W.D.N.Y. Aug. 8, 2007); Hamilton v. Niagara Frontier Transp. Auth., Nos. 00-CV-300SR, 00-CV-863SR, 2007 WL 2241794, at *13 15 (W.D.N.Y. July 31, 2007). But cf. Ammons-Lewis v. Metro. Water 16 Reclamation Dist. Of Greater Chicago, No. 03 C 0885, 2004 WL 2453835, at *9 (N.D. Ill. Nov. 1, 2004) (finding that the DOL report may create plaintiff s] first an issue leave of request fact was as to whether improperly denied, [the but granting summary judgment in favor of the defendant because the plaintiff could not show damages (citation omitted)). The district court did not err in declining to rely on the DOL s findings, and we do not rely on them now in our de novo review. Howard stresses that his duties in his billing position were absorbed by current employees working overtime, but this argument fails to raise a fact issue as to whether his old position required a full-time employee, as Inova contends. Nor does new it address the more critical issue of whether his supply distribution tech position better accommodated a reduced work schedule. different job Although duties than Howard s his old new position position, an required alternative position intended to accommodate a reduced work schedule does not have to have equivalent duties, just equivalent pay and benefits. appeal 29 C.F.R. § 825.204(c). that the transfer to the Howard does not contend on supply distribution tech position resulted in a cut in his pay or benefits. Howard s argument that Inova transferred hardship on him is similarly unpersuasive. 17 him to work a The record does not support his contention that Inova transferred him in bad faith with knowledge that exposure to blood in and around the OR would exacerbate his PTSD. The record shows that the most recent documentation that Inova possessed relating to his PTSD dated back to 2001. Howard testified in his deposition that he verbally told Quick he could not be exposed to blood and bodily fluids when she informed him of the transfer in 2005, but he had submitted years. no FMLA documentation of his PTSD for almost four All the FMLA documentation that he had provided in the preceding three years dealt solely with back problems from his car accidents in 2002. excuse his six-day He submitted a note from Dr. Lawrence to absence before beginning the new supply distribution tech position, but this letter did not notify Inova that Howard s PTSD had recurred. Rather, it stated only that Howard has been suffering from debilitating stress but was now fit to return to duty. J.A. 644. Howard has not shown that a fact issue exists as to whether Inova transferred him to work a hardship on him under 28 C.F.R. § 825.204. 2. Howard argues that Inova violated the FMLA by disciplining him for unexcused absences in the spring of 2005. He contends that record the district court ignored evidence in the that Howard had provided to Inova a FMLA form for intermittent leave 18 in 2003 and Petitioner s testimony that Br. that Inova at had 10. Relying doctor[ ]s lost Howard s on notes FMLA Williams s are not form. deposition required for intermittent leave once it has been approved, Howard contends that Inova violated the FMLA regulations by failing to keep FMLA forms submitted by Howard for the pursuant to 29 C.F.R. [§] 825.500. Howard argues certification that to this excuse his 2003 required three years Petitioner s Br. at 14. form absences in provided the sufficient spring of 2005. Inova responds that contrary to Howard s contention, it does have the 2003 form that Howard submitted. Inova also points out that its policy, consistent with 29 C.F.R. § 825.308, entitles it to request recertification of an FMLA-qualifying chronic condition every 30 days. Howard s argument is not persuasive. Regardless of whether Inova failed to retain Howard s 2003 FMLA form for three years as required by 29 C.F.R. § 825.500(b), that regulation does not require an employer to consider FMLA documentation as effective for three years. employer may To the contrary, as Inova points out, an request recertification of a chronic or permanent/long-term condition[] under continuing supervision of a health care provider at least every 30 days, in connection with an absence by the employee. 19 29 C.F.R. § 825.308(a); see also Rhoads v. F.D.I.C., 257 F.3d 373, 383 (4th Cir. 2001) ( An employer has discretion to require that an employee s leave request be supported by a certification issued by the health care provider of the employee. (citing 29 U.S.C. § 2613(a)) (punctuation omitted)). Although Howard ultimately submitted a Certification of Health Care Provider form from Dr. Dade on May 31, 2005 and received approval for leave on a going-forward basis from March 29, 2005 to March 28, 2006, he points to no evidence in the record showing that he submitted such a form or the necessary leave requests to excuse his nine absences in the spring of 2005. in 2005 is The lack of FMLA documentation for his absences especially apparent in light of the extensive documentation he provided in 2002 and 2003 to excuse numerous absences due to his car accidents. See J.A. 597 602, 604 013. The record does not support a fact issue as to whether Inova improperly disciplined Howard for his absences in the spring of 2005. 3. Howard argues that Inova wrongfully terminated his employment for failure to provide fitness-for-duty certificates because Inova improperly required certificates from two doctors. He also contends that Inova improperly sought more simple statement as required by 29 C.F.R. § 825.310(c). 20 than a Howard notes that Inova required Howard to ask his doctors to review a job description and to provide additional information about his condition. September He points out that the DOL found Dr. Lawrence s 15, 2005 letter, which stated that Howard could return to appropriate work around the end of this month, J.A. 158, to be an adequate fitness-for-duty generally J.A. 1154 68, 1195 96. certification. See In addition, Howard argues that [w]hen an employee is terminated prior to the conclusion of his 12 weeks of FMLA leave, the termination violates the FMLA. still Petitioner s Reply Br. at 4. eligible October 19, for 2005, FMLA leave such He asserts that he was that that would Inova s have lasted termination until of his employment on October 17, 2005 violated the FMLA. In response, Inova argues that Howard failed to submit any fitness-for-duty certification, despite written August 26, September 8, and September 28, 2005. requests on Citing Bloom v. Metro Heart Group of St. Louis, Inc., 440 F.3d 1025, 1030 (8th Cir. 2006), Inova argues that Dr. Lawrence s letter was too vague and conditional certification. Bloom considered is a to serve as a fitness-for-duty Respondent s Br. at 23. inapposite diagnostic to this report from case. a The Bloom non-treating court physician that the employer had paid to examine the employee during her 21 absence from work. When she wished to resume work, the employee had asked her two treating physicians to complete a fitness-forduty certificate, but neither returned the form to her. As a result, she relied on the diagnosing physician s earlier report as equivalent to a fitness-for-duty certificate. F.3d at 1030. vague and The Eighth Circuit found this report to be too conditional to constitute employee] was fit-for-duty. 5 in Bloom, Bloom, 440 Dr. Lawrence s Id. letter a statement that [the Unlike the diagnostic report in this case was clearly intended to convey information to Inova about Howard s ability to return to work. The Sixth Circuit has held that a fitness- for-duty certification need only state that the employee can return to work. Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1003 (6th Cir. 2005). The Brumbalough court noted: While the employer may require more information, the regulation clearly states that the employer cannot delay reinstating the employee simply because the employer is obtaining further information or 5 The report stated as follows: Whatever direction or energies her previous treating physicians think best for her, it should be carried on by them in her behalf. If she were working, I would not be able to determine any medical basis to restrict work activities as a sonographer/electrocardiographer/ultrasound technician. Bloom, 440 F.3d at 1029. 22 clarification from provider. . . . the employee s health care This view is bolstered by the fact that the FMLA and accompanying regulations lay out in specific detail what must be included in an initial medical certification, whereas the regulations expressly state that only a simple statement is needed in a fitnessfor-duty certification. . . . Accordingly, we hold that once an employee submits a statement from her health care provider which indicates that she may return to work, the employer s duty to reinstate her has been triggered under the FMLA. 427 F.3d at 1003 04 (citations omitted). This circuit has not yet addressed what constitutes an adequate fitness-for-duty certification under the FMLA, but we need not reach this issue because Inova properly Howard s employment under 29 C.F.R. § 825.311. terminated Section 825.311 states: When requested by the employer pursuant to a uniformly applied policy for similarly-situated employees, the employee must provide medical certification at the time the employee seeks reinstatement at the end of FMLA leave taken for the employee s serious health condition, that the employee is fit for duty and able to return to work if the employer has provided the required notice . . . . In this situation, unless the employee provides either a fitness-for-duty certification or a new medical certification for a serious health condition at the time FMLA leave is concluded, the employee may be terminated. 29 C.F.R. § 825.311(c) (emphases added) (citations omitted). Under this section, Inova was entitled to terminate Howard s 23 employment because he had not provided a fitness-for-duty certification or a new medical certification when his August 2005 FMLA leave expired. 6 Howard s request for The record shows that Inova approved intermittent leave, which began August 11, 2005 and will end on August 26, 2005. (emphasis omitted). August 29, needed to 2005, see provide on J.A. 679 Inova expected Howard to resume work on J.A. a 659, and informed fitness-for-duty returning to work, see J.A. 679. 6 Howard certificate that he before However, Howard did not return Howard argues that he still had additional FMLA leave at the time Inova terminated his employment and that this termination violates the FMLA because it occurred prior to the conclusion of his 12 weeks of FMLA leave. Petitioner s Reply Br. at 4. Howard cites no regulation or statute to support this contention, which appears to rely on an untenable interpretation of 29 C.F.R. § 825.311(c). In requiring the employee to provide either a fitness-for-duty certification or a new medical certification for a serious health condition at the time FMLA leave is concluded, section 825.311(c) does not refer to all FMLA leave to which the employee is then entitled, as Howard seems to suggest. If it did, its requirement of a new medical certification for a serious health condition is nugatory, because an employee who has reached the end of all the FMLA leave to which he is entitled in a 12-month period has exhausted that leave and may not qualify for more, regardless of whether he submits a new medical certification. See 29 C.F.R. § 825.200(a) (stating that an eligible employee s FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period (emphasis added)). To give meaning to the entire regulation, section 825.311(c) must be interpreted to require an employee to provide a fitness-for-duty certification or a new medical certification at the time the employee s scheduled, approved FMLA leave for which the employee has provided the necessary notice and certification expires. 24 to work on August 29, 2005, and in fact did not attempt to return to work until October 3, 2005. sent a September 15, 2005 letter Although Dr. Lawrence stating that Howard could return to work around the end of this month, J.A. 158, nothing in the record certification shows and that sought Howard submitted reinstatement at proper the end medical of his approved FMLA leave. Under 29 C.F.R. § 825.311(c), Inova was entitled Howard s to terminate employment because Howard had provided neither a fitness-for-duty certification nor a new medical certification for a serious health condition at the time [his approved] FMLA leave [was] concluded. 7 Howard has not shown that a fact issue exists as to whether Inova s termination of his employment violated the FMLA. B. In his retaliation claim, Howard asserts that Inova retaliated against him for exercising his rights under the FMLA by disciplining him for unexcused absences, transferring him to an alternative position that exacerbated his PTSD, and terminating his employment before his 12 weeks of medical leave was concluded. 7 Petitioner s Reply Br. at 7 9. His briefs The parties do not dispute on appeal whether Inova requested a fitness-for-duty certification from Howard pursuant to a uniformly applied policy for similarly-situated employees. 29 C.F.R. § 825.311(c); see also 29 C.F.R. § 825.310(a). 25 focus on the distribution alleged tech retaliatory position. He transfer to the that emphasizes supply Inova transferred him to a position near the OR knowing that his PTSD could be triggered. He further contends that Williams and Quick, in conjunction with other Inova HR personnel, decided to leave Howard in the alternative position after learning of his EEOC complaint, even after both Howard and an old supervisor, Kavros, told them he should not be working around the OR. In response, Inova points out that Quick informed Howard of his transfer to the supply distribution tech position on June 15, 2005, and that Howard reported for work on June 23, 2005 with a note stating that Howard was fit to return to duty as long as he could avoid unnecessary stress if possible. J.A. 126. See Inova highlights that Howard returned to work with full knowledge of his working environment, but the note failed to advise Inova of proximity to the OR. any problem Howard might Respondent s Br. at 38 39. have with his Inova further asserts that it did not receive notice that Howard may have been in proximity to blood or other PTSD-triggering stimuli in his alternate position until July 12, 2005 at the earliest, and there was doubt as to whether this was true or not. Id. at 39. Inova argues that as soon as Inova had confirmation that Howard 26 had concerns about being exposed to blood, he was transferred to another position. We have Id. held that FMLA claims arising under the retaliation theory are analogous to those derived under Title VII and so are analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green [441 U.S. 792, 800 06 (1973)]. Yashenko v. Harrah s N.C. Casino Co., LLC, 446 F.3d 541, 550 51 (4th Cir. 2006) (citation omitted). A plaintiff must make a prima facie showing that he engaged in protected activity, that the employer adverse took action adverse was causally protected activity. Stores, Inc., 144 action F.3d against connected him, to and the that the plaintiff s Id. at 551 (quoting Cline v. Wal-Mart 294, 301 (4th Cir. 1998)). If the plaintiff establishes a prima facie case of retaliation and the employer offers a nondiscriminatory explanation for his termination, the plaintiff bears the burden of establishing that the employer s proffered explanation is pretext for FMLA retaliation. Id. (quoting Nichols v. Ashland Hosp. Corp., 51 F.3d 496, 502 (4th Cir. 2001)). Applying this analysis, the district court found that Howard had failed to establish a prima facie retaliation claim because his transfer to the supply distribution tech position was consistent with both FMLA regulations and Inova s Family 27 and Medical Leave policy and did not constitute an adverse employment action. 8 J.A. 77. The court held that even if the transfer did qualify as an adverse employment action, Inova has met its burden of establishing a non-discriminatory reason for the transfer pretext. Howard and Howard failed to offer any evidence of Id. has not shown a prima facie retaliation claim. Although he argues that Inova transferred him to and retained him in the supply distribution tech position in bad faith, he has not identified evidence in the record to create a fact issue on this point. As noted above, the most recent documentation in Inova s files relating to Howard s PTSD dated from 2001. All the FMLA documentation that Howard had submitted in the three years preceding the recurrence of his PTSD related to his back problems. Although Howard missed a week of work due to debilitating stress, when he returned the note from his health care provider did not state that Howard s PTSD had recurred or that he needed to avoid exposure to blood. Howard admitted in his deposition that he did not inform anyone at Inova about most of the dissociative episodes he experienced while working in the 8 The district court also noted that insofar as Howard argued that Inova wrongly disciplined him for absenteeism and tardiness, Inova properly considered Howard s absences unexcused because of his failure to provide FMLA certification. 28 OR. J.A. 432 34. The record also shows that he did not submit FMLA certification of his PTSD until August 10, 2005. Howard has not shown that a fact issue exists as to whether Inova s decision to transfer him was retaliatory. C. Howard has failed to establish a fact issue as to either his interference or retaliation claims. We therefore affirm the district court s grant of summary judgment in favor of Inova. III. Howard leave to also appeals dismiss his the district complaint without alternative, to amend his complaint. court s denial prejudice or, of his in the The denial of a motion to dismiss without prejudice is reviewed for abuse of discretion. See Andes v. Versant Corp., 788 F.2d 1033, 1035 (4th Cir. 1986). Under Federal dismiss an Rule action of at Civil the Procedure plaintiff s 41(a)(2), court only by request a order, on terms that the court considers proper. may court The denial of a motion for leave to amend a complaint is reviewed for abuse of discretion. Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002) (citing HCMF Corp. v. Allen, 238 F.3d 273, 276 77 (4th Cir. 2001)). Under Federal Rule of 29 Civil Procedure 15(a)(2), a court should freely give leave [to amend] when justice so requires. A. Howard argues that the district court erred in denying his motion to dismiss his complaint without prejudice under Federal Rule of Civil Procedure 41(a)(2). The purpose of Rule 41(a)(2) is to allow voluntary dismissals unless the parties will be unfairly prejudiced. Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir. 1987) (citations omitted). In deciding a motion to dismiss without prejudice under Rule 41(a), a district court should consider factors such as the opposing party s effort and expense in diligence preparing on the for part trial, of excessive the movant, delay and and lack of insufficient explanation of the need for a voluntary dismissal, as well as the present stage of litigation. Miller v. Terramite Corp., 114 F. App x 536, 540 (4th Cir. 2004) (quoting Phillips USA, Inc., v. Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996)). Howard argues on appeal that granting his motion to dismiss without prejudice would not have prejudiced Inova. He asserts that Inova s efforts in this litigation need not be repeated in any future case because he has stipulated that any discovery shall be admissible in a future proceeding. at 22. Petitioner s Br. He also contends that there was no excessive delay on 30 his part and points out that Inova delayed producing important discovery until the last week of discovery and even beyond the discovery period. Id. at 21 22. In response, Inova notes that Howard filed his motion to dismiss two weeks before trial and asserts substantial expense in preparing for trial. that it incurred Citing Andes, 788 F.2d at 1036 37, and related cases, Inova points out that the expenses of discovery and preparation of a motion for summary judgment may constitute prejudice sufficient to support denial of a voluntary further argues dismissal. that Respondent s Howard was not Br. diligent at in 47. Inova pursuing his claims in this case and notes that in the initial discovery period, Howard s discovery efforts consisted of one set of interrogatories and document requests issued at the beginning of the period. April 6, Inova moved to extend the discovery deadline until 2007, because discovery responses. of alleged deficiencies in Howard s Howard only attempted to depose Inova s corporate representative on April 3, 2007, four days before the close of extended discovery. made additional document During this deposition, Howard requests responses, and Inova complied. based on the deponent s Inova stresses that it never withheld any nonprivileged responsive information from Howard at any time. In addition, Inova highlights that Howard did not 31 file his motion to dismiss until more than three weeks after discovery closed, and after Inova had filed its summary judgment motion. Our jurisprudence sufficient prejudice on to a the issue nonmovant of to what support constitutes denial of a motion for voluntary dismissal under Rule 41(a)(2) is not free from ambiguity. In Davis, we noted that [i]t is well established that, for purposes of Rule 41(a)(2), prejudice to the defendant does not result from the prospect of a second lawsuit or the possibility tactical advantage over 819 F.2d at 1274 75. the that the defendant plaintiff will in litigation. future gain a Similarly, in Fidelity Bank PLC v. N. Fox Shipping N.V., we held that the mere filing of a motion for summary judgment is not, without more, a basis for refusing to dismiss without prejudice. 242 F. App x 84, 89 (4th Cir. 2007) (quoting Andes, 788 F.2d 1033, 1036 n.4 (internal quotations and alterations omitted)). However, we have also found on multiple occasions that a district court does not abuse its discretion in denying advanced a motion for the summary to voluntary judgment dismissal stage incurred substantial costs in discovery. F. App x plaintiff s at 540 motion (affirming for district voluntary 32 and if the the case parties has have See, e.g., Miller, 114 court s dismissal was decision untimely that and would waste judicial resources because the motion was filed well after discovery had closed and a dispositive order was imminent); Francis v. Ingles, 1 F. App x 152, 154 (4th Cir. 2001) (affirming district court s denial of motion to dismiss without prejudice because the plaintiff s motion came after a lengthy discovery period and merely one week before the scheduled trial date and because the motivation for the motion appeared to be to circumvent a discovery ruling, which counsel could have avoided by deposing the witness within the discovery period ); Skinner v. First Am. Bank of Va., 64 F.3d 659, at *2 3 (4th Cir. 1995) (stating that [t]he expenses of discovery and preparation of a motion for summary judgment may constitute prejudice sufficient to support denial of a voluntary dismissal and noting that granting a motion to dismiss is not required to allow a party to avoid an adverse ruling in federal court ); Sullivan v. Westinghouse Elec. Corp., 848 F.2d 186, at *2 (4th Cir. 1988) ( Given the advanced stage of the proceedings, the district court s denial of [the plaintiff s] motion was not an abuse of discretion. ). We conclude that Howard has not shown that the district court abused its discretion in denying his motion to dismiss without prejudice on these facts. The posture of this case is similar to that in Andes, in which the court noted that the case 33 did not present extreme prejudice to defendants, but nevertheless was more advanced than a number of cases . . . in which voluntary dismissal was held proper. (collecting cases). had incurred The defendants in Andes asserted that they significant expenses engaging filing motions for summary judgment. under the denying cannot circumstances, [the say there plaintiff s] that the Rule district this case, the was a 41(a)(2) court record in discovery and The Andes court found that refusing to dismiss without prejudice. In 788 F.2d at 1036 sufficient motion abused basis and for we discretion its thus in Id. at 1036 37. fails to support explanation of the need for voluntary dismissal. Howard s Howard asserts that Inova s document production late in the discovery period revealed that pretextual. Inova s reasons for transferring Howard were He argues that [t]his showing of pretext warrants Plaintiff being allowed to join his FMLA claim with his ADA claim that he requested a right to sue letter from the EEOC on. Petitioner s Br. at 23. As Howard s brief and the record show, however, Howard was well aware of the possibility of an ADA claim before he filed his complaint in this case. He filed an EEOC charge alleging an ADA violation on June 27, 2005. He filed his complaint alleging only his FMLA claims on August 24, 2006. 34 In addition, the record shows that Howard was not diligent in conducting the discovery that he asserts led to the new information that supports his motion for voluntary dismissal. Howard emphasizes that Inova was producing documents even after the close produced of discovery, responsive but Inova documents points due to out that Howard s requests at the end of the discovery period. it only last-minute Howard has not shown that Inova failed to provide responsive documents in a timely fashion related to any of his discovery requests. Given the stage of the litigation, Howard s insufficient explanation for a voluntary dismissal, and his lack of diligence in pursuing district both court discovery did not and abuse his its substantive discretion in claims, finding the a sufficient basis to deny Howard s motion to dismiss without prejudice. Andes, 788 F.2d at 1036 37. B. Howard also argues that the district court erred in denying his motion to amend. grant a requires. motion to Under Rule 15, the district court may amend the complaint when justice so A district court does not abuse its discretion in denying leave to amend if there is undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments 35 previously allowed, undue prejudice to the opposing party. . . , futility of amendment, etc. Foman v. Davis, 371 U.S. 178, 182 (1962). Howard argues that he should be allowed to add an ADA claim based on the evidence that Inova produced toward the end of discovery, which Howard asserts supports his argument Inova s reasons for transferring him were pretextual. that Inova argues in response that Howard unduly delayed in moving to amend his complaint to add his ADA claims, noting that Howard could have requested a right-to-sue letter from the EEOC at any time after December 24, 2005 and that he did not seek to amend his complaint until almost two years after he filed his EEOC charge. Inova also Inova due contends to the that to advanced allow stage amendment of the would prejudice litigation and the different theories of recovery an ADA claim would involve. We have noted that [a]mendments near the time of trial may be particularly disruptive, special scrutiny. and may therefore be subject to Deasy v. Hill, 833 F.2d 38, 41 (4th Cir. 1987) (citation omitted). The Deasy court found that a motion to amend should be made as soon as the necessity for altering the pleading becomes apparent. Id. (quoting 6 Charles Alan Wright & Arthur A. Miller, Federal Practice & Procedure § 1488 (1971)). In this case, Howard has not shown that his proposed amendment to add an ADA claim resulted from the discovery of new 36 facts that prompted his motion to amend. To the contrary, the record shows that Howard was aware of the possibility of an ADA claim almost a year before he filed his complaint. In ruling from the bench on Howard s motion to dismiss without prejudice or to amend, the district court noted that [t]his EEOC matter was a matter that had been known about. And while there was perhaps some information that came late, I don t believe there is any showing that that s a groundbreaking piece of information by any means. J.A. 29. The district court did not abuse its discretion in so holding. C. We affirm the district court s decision to deny Howard s motion to dismiss without prejudice or, in the alternative, to amend his complaint. IV. Lastly, Howard appeals the district court s dismiss his ADA claim as barred by res judicata. decision to We review de novo an order granting a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Giarrantano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Howard argues that Inova now seeks to benefit from the repose granted by res judicata when the facts demonstrate that 37 in the FMLA case the facts that would have led to the early joinder of the ADA cause of action were withheld by the actions of [Inova]. Petitioner s Br. at 25 26. He asserts that because Inova withheld critical information, his counsel could not effectively question Williams early in the previous litigation. Inova argues that the or assert the ADA claim Id. at 28. elements for res judicata are satisfied because the district court s decision granting summary judgment in favor of Inova is a final judgment on the merits; the parties are identical in both actions; and the claims in both actions arise out of the same core of operative facts. Inova points out that Howard does not challenge the district court s res judicata analysis on appeal, but instead relies on his argument reiterates documents that its to Inova assertion all withheld critical that timely Howard s it discovery evidence. provided requests and Inova responsive did not withhold information. For the doctrine of res judicata to be applicable, there must be: (1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of parties or their privies in the two suits. Martin v. Am. Bancorporation Retirement Plan, 38 407 F.3d 643, 650 (4th Cir. 2005) (quoting Pueschel v. United States, 369 F.3d 345, 354 55 (4th Cir. 2004)). The district court did not err in dismissing Howard s ADA claim as barred by res judicata. Quoting Peugeot Motors of America, Inc. v. Eastern Auto Distributors, Inc., 892 F.2d 355, 359 (4th Cir. 1989), the district court noted that res judicata not only bar[s] claims that were raised and fully litigated, but also prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding. Howard s ADA J.A. 85. claims The district court found that clearly rely on the same factual circumstances on which he relied in his prior FMLA claim, namely Defendant Inova s decision to transfer [Howard] to a post in the hospital that flesh. J.A. 86. noted above, exposed Howard him to blood and the smell of burnt The record bears out this conclusion. filed an EEOC charge of As discrimination asserting an ADA violation well before he filed his original complaint asserting FMLA violations arising out of the same core facts. Howard could have brought his ADA claim in his original complaint, but chose not to. Broadly speaking, a party always has of the option or election raising fewer than all the potential theories of relief that might be available. However, 39 it is the rule that when a party can present all grounds in support of his cause of action, he must do so, if at all, in the proceeding on that cause of action. Ohio-Sealy Mattress Mfg. Co. v. Kaplan, 90 F.R.D. 11, 15 (D.C. Ill. 1980) (citations omitted), aff d in part and rev d in part, 745 F.2d 441 (7th Cir. 1985), cert. denied, 471 U.S. 1125 (1985), quoted in 18 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure, Jurisdiction, § 4407 (2d ed. 2002). We affirm the district court s dismissal of Howard s ADA claim as barred by res judicata. V. For the reasons outlined above, the judgments of the district courts are AFFIRMED. 40

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