Victoria Anderson v. Discovery Communications, LLC
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:08-cv-02424-AW Copies to all parties and the district court/agency. [999080750]. [11-2195]
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
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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
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Tucker
at
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the
end
of
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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
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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
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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
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II.
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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
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“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
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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
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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
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‘might,’
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‘could,’
or
‘would’
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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.
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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
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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
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decision.
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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.,
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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.
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IV.
Anderson
summary
also
judgment
FMLA Claims
challenges
to
Pg: 16 of 18
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.”).
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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
Appeal: 11-2195
Doc: 53
Filed: 04/05/2013
Pg: 18 of 18
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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