Howard v. INOVA Health Care

Filing 920081205

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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 _______________ Unpublished opinions are not binding precedent in this circuit.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 claims Care under Services, the asserting and interference Leave and Act retaliation ("FMLA"), 29

Family

Medical

U.S.C. § 2601 et seq.

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. Howard now appeals the

For the reasons that follow,

3

I. Howard first began working for Inova as an operating room ("OR") technician in 1993. Inova that he had been In the fall of 1996, Howard informed diagnosed by with posttraumatic to blood or stress bodily

disorder

("PTSD"),

triggered

exposure

fluids or the smell of burning flesh. from his position for fear of

He asked to be removed patients. Howard

endangering

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 2000, Inova he in 1997 and was unemployed an ADA for four

sued

Inova,

alleging

violation.

While the lawsuit was pending, Inova rehired Howard in 2001 as a patient Upon service coordinator, and the lawsuit was dismissed. to Inova's

his

reemployment,

Howard

was

given

access

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. 597­602. 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. 606­09. He also submitted

a physician certification in May 2003 stating that he needed to work reduced hours for an unknown period. J.A. 610­12. 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 J.A.

documentation of the discipline was placed in his file. 104, 621.

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. 333­38. 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

absence

was

the

ninth

unexcused

absence

in

three

months.

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 Tom Williams, an Inova HR

representative, on April 28, 2005.

Howard had not yet provided Quick and Williams

FMLA documentation to excuse his absences.

explained the forms to Howard and informed him that his failure to return them could be grounds for termination. J.A. 385­86.

On May 4, 2005, Howard submitted a "Certification of Health Care Provider" that a physician had signed on March 29, 2005. J.A. 623­25. Because the certification did not provide See the

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

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. 1623­29. 6

1

years.

Williams's letter set a May 13, 2005 deadline for Howard Howard did

to provide physician certification for his absences.

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 their position. meeting A letter from the Quick new to Howard memorializing would better

stated

that

position

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 Id.

start in his new position on June 15, 2005.

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 new supply distribution He did not report for work position until June 23,

tech

2005.

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 of

discrimination against Inova, alleging an ADA claim.

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 of which he told Quick about. See J.A. 432­34. 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. During

Howard met with Williams again on July 20, 2005.

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. met with Quick, Williams, and On the other HR

Howard

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

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. 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 13­14. 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
3

2

On

August

10,

2005,

Howard

submitted

an

FMLA

form J.A.

requesting full-time leave from August 11 to 26, 2005. 653.

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 self harm" and "needs fulltime leave." Id. at 128­29, 654­55.

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. 132­33, 659-60. J.A.

The letter also asked Howard to contact the

health care providers who had completed Howard's most recent FMLA paperwork. job Williams wanted of the the physicians that to review a

proposed assume

description returning provide to

position The about

Howard

would the

after to

work.

letter

also

asked

physicians

information

whether

Howard

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] a position that and retaliat[ing] against me me for by my

overriding

was

accommodating

disability." 4

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. 152­53. 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 that [he was] ready to come back to work

medically."

J.A. 485.

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 had not received the

Williams

information requested in his August 17, 2005 letter. Williams also informed Howard that because Howard

J.A. 154. had not

returned to work as expected, Inova required "updated Family

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. 1154­68, 1195­96. 11

4

Medical Leave paperwork from both of your Health Care Providers by Monday, September 19, 2005." Id. Williams warned Howard

that "[f]ailure to clarify [Howard's] employment status with us . . . will be considered Id. J.A. 486. request, Dr. Lawrence wrote to Williams on Howard job did abandonment not and grounds for

termination." information. At

provide

the

requested

Howard's

September 15, 2005. to experience

His letter explained that Howard "continues stress-induced seizures and

occasional

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 On

work nor submitted any of the requested FMLA certifications.

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. now appeals the judgments of the district courts.

Howard

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 Jennings v. Univ. of N.C., 482

summary judgment is de novo.

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 the FMLA by him transferring for him to an alternate and

position, terminating

disciplining his

unexcused claims

absences, are

employment.

These

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 a hardship Under 29 on him in § 14 violation 825.204(a), of an 29 C.F.R. §

825.204(d).

C.F.R.

employer

may

transfer

an

employee or

"temporarily, leave

during is

the

period to

the an is of

intermittent available qualified

reduced

schedule for

required, the

alternative and which

position

which

employee periods

better

accommodates

recurring

leave than does the employee's regular position." may not transfer the employee to an alternative

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 into the supply distribution tech

position

position was unnecessary because "Inova filled Howard's billing office position with hours from existing employees who were

asked to work overtime."

Petitioner's Br. at 11.

In addition,

Howard asserts that Inova "ignored the limitations noted in its own health file that id. Howard at 13, was and restricted that the to work in the

billing

office,"

alternative

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." that Respondent's contrary to Br. at 35. Inova his further medical

emphasizes

Howard's

contention,

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 *3­5 (D. Md. July 22, 2008); Roberts v. The Health Ass'n, No. 04-CV-6637T, 2007 WL 2287875, at *4­7

(W.D.N.Y. Aug. 8, 2007); Hamilton v. Niagara Frontier Transp. Auth., Nos. 00-CV-300SR, 00-CV-863SR, 2007 WL 2241794, at *13­15 (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 first an leave issue of fact was as to whether denied," [the but

plaintiff's]

request

improperly

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. does it address the more critical issue of whether his Nor new

supply distribution tech position better accommodated a reduced work schedule. job Although duties than Howard's his old new position an required

different

position,

alternative

position intended to accommodate a reduced work schedule "does not have to have equivalent duties," just "equivalent pay and benefits." appeal that 29 C.F.R. § 825.204(c). 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 him to work a

hardship on him is similarly unpersuasive. 17

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 before beginning the new supply

absence

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. that the district court ignored evidence in the He contends record that

"Howard had provided to Inova a FMLA form for intermittent leave 18

in

2003

and

that Br. at

Inova 10.

had

lost on

Howard's

FMLA

form."

Petitioner's testimony

Relying notes

Williams's not

deposition for

that

"doctor[']s

are

required

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 required three years

pursuant to 29 C.F.R. [§] 825.500." Howard argues to that this his 2003

Petitioner's Br. at 14. form in provided the spring sufficient of 2005.

certification

excuse

absences

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 recertification of a chronic or

request

"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 apparent in light of the extensive

especially

documentation he provided in 2002 and 2003 to excuse numerous absences due to his car accidents. See J.A. 597­602, 604­013.

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 than "a

simple statement" as required by 29 C.F.R. § 825.310(c). 20

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 certification. See

generally J.A. 1154­68, 1195­96.

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 19, for FMLA such leave that that He asserts that he was would have lasted of until his

October

2005,

Inova's

termination

employment on October 17, 2005 violated the FMLA. In response, Inova argues that Howard failed to submit any fitness-for-duty certification, despite written requests on

August 26, September 8, and September 28, 2005.

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" to serve as a fitness-for-duty

certification. Bloom considered is a

Respondent's Br. at 23. inapposite diagnostic to this from case. a The Bloom court

report

non-treating

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 Bloom, 440

The Eighth Circuit found this report to be "too to constitute Id. a statement that [the

conditional

employee] was fit-for-duty." 5 in Bloom, Dr. Lawrence's

Unlike the diagnostic report in this case was clearly

letter

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 The Brumbalough court noted:

F.3d 996, 1003 (6th Cir. 2005).

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 1003­04 (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 terminated

Howard's employment under 29 C.F.R. § 825.311. states:

Section 825.311

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 leave," which "began on

intermittent

August 11, 2005 and will end on August 26, 2005." (emphasis omitted). August needed 29, to 2005, see

J.A. 679

Inova expected Howard to resume work on J.A. a 659, and informed Howard that he

provide

fitness-for-duty

certificate

before

returning to work, see J.A. 679.

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

6

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 that Howard could

stating

return to work "around the end of this month," J.A. 158, nothing in the record shows that Howard submitted at proper end medical of his

certification

and

sought

reinstatement

the

approved FMLA leave. entitled to terminate

Under 29 C.F.R. § 825.311(c), Inova was Howard's 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." Petitioner's Reply Br. at 7­9. 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

7

focus

on

the

alleged tech

retaliatory He

transfer

to

the that

supply Inova

distribution

position.

emphasizes

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 any problem Howard might have with his

proximity to the OR.

Respondent's Br. at 38­39.

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 held Id. 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, 800­06 (1973)]." Yashenko v. Harrah's N.C. Casino Co., LLC, 446 F.3d 541, 550­51 (4th Cir. 2006) (citation omitted). A plaintiff "must make a

prima facie showing that he `engaged in protected activity, that the employer took adverse action against him, to and that the

adverse

action

was

causally

connected

the

plaintiff's

protected activity.'" Stores, Inc., 144 F.3d

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" Id. has not shown a prima facie retaliation claim. and Howard failed to offer "any evidence of

pretext." Howard

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 All

Inova's files relating to Howard's PTSD dated from 2001.

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

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

8

OR.

J.A. 432­34.

The record also shows that he did not submit Howard

FMLA certification of his PTSD until August 10, 2005.

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 his the district without court's denial or, of in his the

dismiss

complaint

prejudice

alternative, to amend his complaint.

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 Rule of "at Civil the Procedure 41(a)(2), request a court by may

dismiss an

action

plaintiff's

only

court

order, on terms that the court considers proper."

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, 276­77 (4th Cir. 2001)). Under Federal Rule of Civil Procedure 15(a)(2), "a

29

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 In deciding a motion to

(4th Cir. 1987) (citations omitted).

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 movant, delay and and lack of

the

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 21­22.

In response, Inova notes that Howard filed his motion to dismiss two weeks before trial and asserts that it incurred

substantial expense in preparing for trial.

Citing Andes, 788

F.2d at 1036­37, 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 argues dismissal." that Howard Respondent's was not Br. at in 47. Inova his

further

diligent

pursuing

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 because of alleged deficiencies in Howard's

2007,

discovery responses.

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 based on the deponent's

requests

responses, and Inova complied.

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 sufficient jurisprudence prejudice to on a the issue to of what constitutes denial of a

nonmovant

support

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" tactical or "the possibility over the that the plaintiff in future will gain a

advantage

defendant

litigation."

819 F.2d at 1274­75.

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 to motion the for summary voluntary judgment dismissal stage and if the the case has have

parties

incurred substantial costs in discovery. F. App'x at 540 (affirming for district

See, e.g., Miller, 114 court's was decision "untimely that and

plaintiff's

motion

voluntary 32

dismissal

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 *2­3 (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 788 F.2d at 1036

The defendants in Andes asserted that they expenses engaging in discovery and

significant

filing motions for summary judgment. under the circumstances, plaintiff's] the "there Rule was

The Andes court found that a sufficient motion its basis thus for we in

denying cannot

[the say

41(a)(2)

and

that

district

court

abused

discretion

refusing to dismiss without prejudice." In this case, the record

Id. at 1036­37. to support Howard's

fails

explanation of the need for voluntary dismissal.

Howard asserts

that Inova's document production late in the discovery period revealed that Inova's reasons for transferring Howard were

pretextual.

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 He

EEOC charge alleging an ADA violation on June 27, 2005.

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 of discovery, but Inova due points to out that it only

produced

responsive

documents

Howard's

last-minute

requests at the end of the discovery period.

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 both discovery not and his its substantive discretion in claims, finding the a

district

court

did

abuse

"sufficient basis" to deny Howard's motion to dismiss without prejudice. Andes, 788 F.2d at 1036­37. B. Howard also argues that the district court erred in denying his motion to amend. grant a motion to Under Rule 15, the district court may amend the complaint "when justice so

requires."

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 that Inova

Inova's reasons for transferring him were pretextual.

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 Inova also due contends to the that to allow stage amendment of the would prejudice and the

advanced

litigation

different theories of recovery an ADA claim would involve. We have noted that "[a]mendments near the time of trial may be particularly disruptive, and may therefore be subject to

special scrutiny."

Deasy v. Hill, 833 F.2d 38, 41 (4th Cir. The Deasy court found that "a motion

1987) (citation omitted).

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 decision to

dismiss his ADA claim as barred by res judicata.

We review de

novo an order granting a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). 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 Giarrantano v. Johnson, 521 F.3d 298,

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 25­26. He asserts that

because Inova withheld critical information, his counsel "could not effectively question Williams" or "assert the ADA claim

early in the previous litigation." Inova argues that the

Id. at 28. for res judicata are

elements

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 that Inova withheld that it critical timely evidence. Inova

reiterates documents

its to

assertion all

provided and

responsive did not

Howard's

discovery

requests

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, 354­55 (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. "clearly The district court found that rely on the same factual

claims

circumstances on which he relied in his prior FMLA claim, namely Defendant Inova's decision to transfer [Howard] to a post in the hospital flesh." noted that exposed him to blood and the smell of burnt As

J.A. 86. Howard

The record bears out this conclusion. filed an EEOC charge of

above,

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 "Broadly speaking, a party always of raising fewer than all the

complaint, but chose not to. has the option or election

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