Acie Lyons v. Eric Shinseki

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cv-02532-WDQ Copies to all parties and the district court/agency. [998724677].. [11-1361]

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Document: 25

Date Filed: 11/17/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1361

ACIE LYONS,
Plaintiff – Appellant,
v.
ERIC K. SHINSEKI, Secretary of the Department of Veterans
Affairs,
Defendant – Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
William D. Quarles, Jr., District
Judge. (1:08-cv-02532-WDQ)

Submitted:

October 31, 2011

Decided:

November 17, 2011

Before KING, GREGORY, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James L. Fuchs, Michael J. Snider, LAW
ASSOCIATES, LLC, Baltimore, Maryland, for
Rosenstein, United States Attorney, Larry
United States Attorney, Baltimore, Maryland,

OFFICE OF SNIDER &
Appellant.
Rod J.
D. Adams, Assistant
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Acie Lyons brought suit against the Secretary of the
Department of Veterans Affairs (“Secretary”) alleging violations
of

the

Rehabilitation

Act

of

1973,

§§ 701-796 (West 2008 & Supp. 2011).
court’s

order

judgment

and

as

amended,

U.S.C.A.

He appeals the district

granting

the

Secretary’s

motion

dismissing

his

retaliation

and

discrimination claims.

29

for

summary

disability-based

In this appeal, Lyons advances three

theories of disability-based discrimination.

He argues first,

that he was subjected to disparate treatment; second, that his
work

environment

was

hostile;

and

third,

that

the

Secretary

failed to provide Lyons with reasonable accommodations based on
his disability.

Lyons also argues that the district court’s

analysis of his retaliation claims is flawed.

Finding no error,

we affirm.
We review de novo a district court’s order granting
summary

judgment,

inferences

“viewing

therefrom

nonmoving party.”

in

the

the

facts

light

and

most

the

reasonable

favorable

to

the

Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir.

2011), cert. denied, __ U.S. __, 80 U.S.L.W. 3018 (U.S. Oct. 11,
2011) (Nos. 10-1447, 10-1497).

Summary judgment may be granted

only when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S.
2

Appeal: 11-1361

Document: 25

317, 322 (1986).

Date Filed: 11/17/2011

Page: 3 of 12

“[T]here is no issue for trial unless there is

sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.”

Anderson v. Liberty Lobby,

Inc.,

For

477

U.S.

242,

249

(1986).

a

nonmoving

party

to

present a genuine dispute of material fact, “[c]onclusory or
speculative
scintilla
case.”

allegations

of

evidence

do
in

not

suffice,

support

of

[the

nor

does

a

nonmoving

mere

party’s]

Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649

(4th Cir. 2002) (internal quotation marks omitted).
The same standards and proof scheme used to interpret
violations of the Americans with Disabilities Act 1 (“ADA”) are
used to determine whether a violation of the Rehabilitation Act
has occurred. 2

See 29 U.S.C. § 794(d) (2006); Myers v. Hose, 50

F.3d 278, 281 (4th Cir. 1995).
facie

case

for

disability

In order to make out a prima

discrimination

under

any

of

the

theories Lyons advances, he must first establish that he is an
individual with a disability.
Networks

Presentations

42 U.S.C.A. § 12112; see Rohan v.

LLC,

375

F.3d

266,

272

n.9

(4th Cir. 2004) (hostile work environment); Rhoads v. FDIC, 257
1

42 U.S.C.A. §§ 12101-12213 (West 2005 & Supp. 2011).

2

The ADA was amended effective January 1, 2009, after this
suit was filed.
See ADA Amendments Act of 2008, Pub. L. No.
110-325, 122 Stat. 3553. Congress did not expressly intend for
these changes to apply retroactively, and so we must decide this
appeal based on the law in place prior to the amendments.
Landgraf v. USI Film Prods., 511 U.S. 244, 270-71 (1994).

3

Appeal: 11-1361

F.3d

Document: 25

373,

387

Date Filed: 11/17/2011

n.11

Page: 4 of 12

(4th Cir. 2001)

(failure

to

accommodate);

Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001)
(disparate treatment).
The ADA defines disability as either: “(A) a physical
or mental impairment that substantially limits one or more . . .
major

life

activities

. . .

;

(B)

a

record

of

such

an

impairment; or (C) being regarded as having such an impairment.”
42 U.S.C. § 12102(2) (2006); see also Rohan, 375 F.3d at 273.

A

physical impairment is “any physiological disorder or condition,
cosmetic disfigurement, or anatomical loss affecting one or more
. . . body systems” including, inter alia, the musculoskeletal
system.

45

C.F.R.

§ 84.3(j)

(2010).

“[A]ny

mental

or

psychological disorder,” including “emotional or mental illness”
satisfies the impairment requirement.
Standing
establish
impairment

a

alone,

Id.

substantially

impairment

the

disability;

an

employee

limits

a

is

not

sufficient

also

must

major

prove

life

analysis

is

therefore

“an

particular to the facts of each case.”
237 F.3d 349, 352 (4th Cir. 2001).

individualized

the

activity.

Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999).
disability

to

The

inquiry,

EEOC v. Sara Lee Corp.,

The substantial limitation

requirement “sets a threshold that excludes minor impairments
from coverage.”

Heiko v. Colombo Sav. Bank, 434 F.3d 249, 257

(4th Cir. 2006).

An impairment is substantially limiting when
4

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it “prevents or severely restricts the individual from doing
activities that are of central importance to most people’s daily
lives.”

Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184,

198 (2002).
Lyons presented evidence in the district court that he
was unable to lift more than twenty to twenty-five pounds and
that, for a brief time, he could not sit continuously for more
than

four

hours.

He

stated

that

he

also

has

impairments

affecting his ability to walk, drive, concentrate, and work, and
he

argues

that

when

all

his

impairments

are

considered

in

combination, they amount to substantial limitation in the major
life activity of working.
ADA regulations and EEOC interpretative guidelines set
forth a non-exhaustive list of major life activities.

See 29

C.F.R. § 1630.2(i) (2011); 29 C.F.R. Pt. 1630, App. § 1630.2(i).
The regulations specify, and we have suggested, that lifting is
a major life activity.

29 C.F.R. Pt. 1630, App. § 1630.2(i);

Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346,
349 (4th Cir. 1996), abrogated on other grounds by Baird ex rel.
Baird v. Rose, 192 F.3d 462, 470 (4th Cir. 1999).

In Williams,

we held, “as a matter of law, that a twenty-five pound lifting
limitation—particularly

when

compared

to

an

average

person’s

abilities—does not constitute a significant restriction on one’s
ability

to

lift,

work,

or

perform
5

any

other

major

life

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activity.”
Toyota,

Date Filed: 11/17/2011

Id.

we

Following

clarified

that,

the

Page: 6 of 12

Supreme

because

Court’s

disability

decision

in

determinations

require individualized inquiries, our Williams decision “should
not be read to create a per se rule that a twenty-five pound
lifting

restriction

Taylor v.

Fed.

can

Express

never

constitute
429

Corp.,

a

461,

F.3d

disability.”
463

n.2

(4th Cir. 2005).
Lyons has failed to produce probative evidence that
his inability to lift more than twenty-five pounds constitutes a
substantial
particular

limitation.
job

are

people’s lives.”

not

“[T]he

manual

necessarily

tasks

unique

important

Toyota, 534 U.S. at 201.

parts

to
of

any
most

Accordingly, the

impact of the lifting limitation on Lyons’ ability to perform
the manual tasks his job duties required, standing alone, is
insufficient to establish a substantial limitation on a major
life activity.
that

Lyons’

See id.

lifting

The record is devoid of any evidence

restriction

resulted

in

any

limitation

beyond difficulties in his responsibility for collecting heavy
loads of soiled linen.
Lyons

asserts

that

this

court

should

consider

the

effect of his lifting restriction on his employment prospects in
determining whether he is substantially limited.

Although we

may consider a plaintiff’s employment prospects in connection
with

lifting

restrictions,

see
6

Taylor,

429

F.3d

at

464

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(collecting cases), Lyons did not produce any evidence of this
nature.
In

response

to

the

Secretary’s

motion

for

summary

judgment, Lyons submitted an affidavit stating that he suffers
disabilities as a result of his back injury, including “chronic
fatigue

and

depression,

headaches.”
bending,

laundry,

a

sleep

disorder

as

well

as

Lyons reported difficulties “balancing, standing,

and

perform[s]

and

walking”

routine

and

indicated

household

dusting,

chores

vacuuming,

cleaning due to symptoms.”

floor

that
such

he

as

“no

longer

doing

cleaning,

dishes,

or

bathroom

Lyons now argues that, considered

together, these impairments establish a substantial limitation
in

the

major

life

activity

of

working.

However,

affidavit is the sole evidence of these impairments.

Lyons’
Lyons’

bald, self-serving assertions of disability, unsubstantiated by
any

documentation

create

a

or

material

other
issue

testimony,
of

fact

are
as

not
to

whether

substantially limited in a major life activity. 3
312

F.3d

at

649

(stating

conclusory

3

sufficient
he

to
is

See Thompson,

allegations

and

“mere

We find unpersuasive Lyons’ citation to social security
disability regulations in support of the proposition that the
Secretary failed in his obligation to provide a proper medical
evaluation.

7

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scintilla

of

Date Filed: 11/17/2011

evidence”

Page: 8 of 12

insufficient

to

withstand

summary

judgment).
Lyons asserts that the Secretary did not contest his
need to perform light duty.
was

regarded

as

To the extent Lyons is arguing he

disabled,

his

assertion

is

unconvincing.

Viewing the record in the light most favorable to Lyons, Jerry
Diggs, the head of the section in which Lyons worked, believed
that Lyons was not able to work as a sewing machine operator.
However,

as

discussed

specific

role

for

above,

which

establish a disability.

one

the

inability

to

was

hired

insufficient

is

perform

the
to

See Rohan, 375 F.3d at 277 n.19; see

also 29 C.F.R. § 1630.2(j)(3).
Because no reasonable fact finder could conclude that
Lyons was actually disabled, regarded as disabled, or documented
as

disabled,

relating

to

we
his

decline

to

reach

disability-based

Lyons’

remaining

discrimination

arguments

claims.

We

conclude that the district court did not err in granting summary
judgment in favor of the Secretary with respect to these claims.
Next, we turn to the retaliation claims. Lyons argues
that the district court improperly resolved disputed facts with
respect to his retaliation claims.

To establish a prima facie

case of retaliation, Lyons must show:

(1) that he has engaged

in protected conduct; (2) that he suffered an adverse action
subsequent to engaging in the protected conduct; and (3) that
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“there was a causal link between the protected activity and the
adverse

action.”

Laber

v.

Harvey,

438

F.3d

404,

the

district

432

(4th Cir. 2006).
First,
improperly

Lyons

concluded

asserts

that

there

that
was

no

dispute

that

court
Lyons’

request for accommodation occurred after his transfer to Loch
Raven.

He notes that he testified that, “[i]n or around August

2003,”

he

approached

Diggs

seeking

reasonable

accommodations

“for [his] right arm and post-traumatic stress disorder.”
At his deposition, Diggs testified that, when Lyons
had been notified of his reassignment to Loch Raven, but before
the move, he told Diggs that he had a disability and wanted
reasonable

accommodation.

In

response,

Diggs

provided

Lyons

with the forms necessary to document his disabilities and make
the

request.

Lyons

never

returned

the

forms.

In

Lyons’

deposition, he stated that he asked for reasonable accommodation
“[i]f

[Diggs]

wanted

me

to

be

reassigned.”

Lyons

later

submitted an affidavit in response to the Secretary’s motion for
summary

judgment

in

which

he

“[i]n or around August 2003.”

stated

he

sought

accommodation

This statement does not create a

genuine issue of material of fact regarding the timing of Lyons’
request for accommodation. Specifically, it does not contradict
the earlier accounts, it is merely less precise.
the

extent

the

summary

judgment
9

affidavit

is

Moreover, to
inconsistent,

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federal courts “have held with virtual unanimity that a party
cannot

create

a

genuine

issue

of

fact

sufficient

to

survive

summary judgment simply by contradicting his or her own previous
sworn statement . . . without explaining the contradiction or
attempting to resolve the disparity.”

Cleveland v. Policy Mgmt.

Sys. Corp., 526 U.S. 795, 806 (1999) (collecting cases).
Next,

Lyons

contends

that

the

district

court

impermissibly concluded that the workers’ compensation program
manager’s

decision

to

remove

him

from

light

influenced by Diggs’ animus towards him.

duty

was

not

He argues that the

district court improperly privileged Diggs’ deposition testimony
over that of another witness.

We disagree.

The district court

denied this retaliation claim because “Lyons offers only his
uncorroborated

belief

that

Diggs

was

influencing

Greenawalt;

those beliefs do not create a genuine dispute about whether her
decision is retaliatory.”

Lyons does not identify any evidence

supporting

that

an

inference

Diggs

influenced

the

program

manager’s decision.
Finally,

Lyons

contends

that

the

district

court

erroneously held that too great a delay had occurred between the
resolution

of

Lyons’

EEOC

complaint

and

his

termination

to

support a finding that his EEOC complaint and termination were
causally related.

Lyons maintains that he persistently sought

accommodation

always

and

was

denied,
10

and

he

argues

that

he

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established a substantial temporal link between his protected
activity and his termination.
“[A] causal connection for purposes of demonstrating a
prima

facie

case

exists

where

the

employer

takes

adverse

employment action against an employee shortly after learning of
Price v. Thompson, 380 F.3d 209, 213

the protected activity.”
(4th Cir. 2004).

Generally, however, the passage of time alone

cannot provide proof of causation unless the “temporal proximity
between an employer’s knowledge of protected activity and an
adverse employment action” was “very close.”
Dist.

v.

Breeden,

532

(internal

quotation

marks

time

lapse

between

U.S.

a

268,

273

omitted).
protected

Clark Cnty Sch.

(2001)

(per

Consequently,
activity

and

curiam)

a
an

lengthy
adverse

employment action can negate an inference of causal connection.
Dowe

v.

Total

Action

Against

Poverty,

145

F.3d

653,

657

2004.

He

(4th Cir. 1998).
Here,

Lyons

filed

an

EEOC

complaint

in

received an unfavorable final decision in October 2005, and his
termination was proposed in May 2006.

Although Lyons told Diggs

he had a disability in 2003, he produced no evidence that Diggs
knew

he

had

thereafter.
proximity

sought

reasonable

accommodation

through

Tillage

Accordingly, he cannot establish the close temporal

necessary

to

prove

cause of his termination.

his

protected

activity

was

the

See Hooven-Lewis v. Caldera, 249 F.3d
11

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259,

Document: 25

278

Date Filed: 11/17/2011

(4th Cir. 2001)

(“A

six

Page: 12 of 12

month

negate any inference of causation.”).

lag

is

sufficient

to

Moreover, even if Lyons

were able to demonstrate a prima facie case of retaliation as to
his termination, the Secretary articulated a legitimate, nonretaliatory reason for the adverse action, specifically, Lyons’
absenteeism.

See McDonnell Douglas Corp. v. Green, 411 U.S.

792, 793 (1973) (outlining burden-shifting framework).
Accordingly, we affirm the district court’s judgment.
We

dispense

with

oral

argument

because

the

facts

and

legal

contentions are adequately presented in the materials before the
court and would not aid the decisional process.
AFFIRMED

12