Victoria Anderson v. Discovery Communications, LLC, No. 11-2195 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-2195 VICTORIA ANDERSON, Plaintiff - Appellant, v. DISCOVERY COMMUNICATIONS, LLC; JANELL COLES; LISA WILLIAMSFAUNTROY; 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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 judgment Anderson granting Discovery appeals summary from judgment Communications, LLC, the to district court s former employer her ( 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. From Anderson Talent Factual Background & Proceedings Below August as Group an 2004 to attorney ( the January in Group ) the of 2007, Discovery Programming, Discovery s employed Production, Legal and 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 strong technical, Although Anderson received praise for her legal, and drafting skills, her annual performance reviews repeatedly indicated needing improvement in areas such as effectively 1 organizing, planning, and 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 clients. her interpersonal skills with both colleagues and (J.A. 659-60.) In 2006, 2 October 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, determined that Dr. Andrew Anderson s P. Tucker. laboratory and The sleep physicians test results were normal, and excluded sleep apnea as a diagnosis. Since Anderson reported that she was only sleeping between two and four hours suffered each from (J.A. 306-09.) night, the fatigue, physicians sleep concluded deprivation, she and likely insomnia. The physicians gave Anderson advice on falling and staying asleep and a prescription for Ambien. In based late on condition November, Anderson s was Anderson statements improving, Dr. returned to indicating Cullen Dr. that Cullen, her recommended and overall that she [r]eturn to full duty with hour restriction to 8 hours per day. 2 (J.A. 306, 308.) In two follow-up appointments with Dr. 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 that January Discovery 3, was 2007, Williams-Fauntroy terminating her informed employment. Anderson 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 misrepresenting supervisors; and colleagues, prior her as discussions manipulating well with time as skewing co-workers sheets and and 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. Anderson was not an The district court held that 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 evidence of retaliation, indicating Anderson Discovery s had legitimate, not presented any 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. The ADA prohibits ADA Claims discrimination in employment against individual[s] on the basis of disability. 12112(a). decisions 42 U.S.C. § 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). 4 Thus, having a 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 activity. of showing impairment in more than one major life 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. Anderson, 814 F. Supp. 2d at 569-72. Cf. 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 considering Discovery the terminated district court s her employment. statements in Moreover, context, court did not hold Anderson to an improper standard. the 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 qualifying strictly as to create disabled. a Toyota Williams, 534 U.S. 184, 197 (2002). demanding Motor Mfg., standard Ky., Inc. for v. [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 permanent or long term. impairment s Id. at 198. impact must also be 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 7 life activity, not where it 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 (quoting 349, 352 (4th Cir. 2001) Ford McDavid, 259 F.2d 261, 266 (4th Cir. 1958)). Motor Co. v. 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. ). court did not err in concluding Accordingly, the district that Anderson was not an individual with a disability under the ADA. Anderson s prohibition of ADA retaliation discrimination claim against is any based on the individual ADA s 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 Anderson claim, 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. justifications for She asserts terminating reason to deny summary judgment. her Discovery had and is that shifting sufficient 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, manufactured but a that host of since litigation additional 13 commenced, reasons to Discovery support its decision. As such, she posits that Discovery s questionable credibility supports an inference of pretext. We agree Anderson has Discovery with set has the forth provided district a a prima court that facie legitimate, case even of assuming retaliation, nondiscriminatory reason for terminating her employment, and no genuine issue of material fact calls that repeatedly reason into misrepresents question the as record pretext. evidence Anderson and parrots statements of law regarding pretext, but the record evidence simply does Anderson s provided not support actual specific her contention. discharge examples through of that From the litigation behavior, time of Discovery 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 coworkers. that an decision This record diverges from cases where we have held employer s changing gave to rise an explanations inference 14 of for its pretext. employment See, e.g., 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 employer s 846, 853 (4th inconsistent justifications were Cir. 2001) (stating explanations probative of and pretext). that an different Anderson cannot seek to expose [Discovery s] rationale as pretextual by focusing on minor discrepancies that explanation s validity[.] pretext, [Discovery s] [i]t is reason not was not cast doubt on the Hux v. City of Newport News, 451 F.3d 311, 315 (4th Cir. 2006). of do In the absence of such evidence our wise, province fair, to decide or even whether 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. Anderson summary also judgment FMLA Claims challenges to the Discovery interference claims. on district her court s FMLA grant retaliation of and 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 the FMLA. termination constituted retaliation under 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. arising under [a] 29 U.S.C. § 2612(a)(1)(D). retaliation theory are FMLA claims analogous to those derived under Title VII and so are analyzed under the burdenshifting 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 prove not violation World interference only 2617(a)(1). Inc., rights thereunder, fact prejudiced Wide, employee the of of interference, her in some 535 U.S. 81, way. 89 Anderson but also Ragsdale (2002); see had that to the v. Wolverine 29 U.S.C. § Such prejudice can be proven by showing that the 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 until her termination. also fail. employed and was given full benefits As such, her interference claim must 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 court s the aforementioned judgment awarding reasons, we affirm summary judgment the in district favor of Discovery. AFFIRMED 18

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