Christina Jacobs v. NC Admin Office of the Court
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 7:11-cv-00169-BO. [999544235]. [13-2212]
Appeal: 13-2212
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2212
CHRISTINA LYNN JACOBS,
Plaintiff - Appellant,
v.
N.C. ADMINISTRATIVE OFFICE OF THE COURTS; JAN KENNEDY, in
her official capacity as New Hanover County Clerk of
Superior Court,
Defendants – Appellees,
and
BRENDA TUCKER, New Hanover County Clerk of Superior Court;
MELISSA GRIFFIN; DEBRA EXCELL,
Defendants.
------------------------THE NATIONAL DISABILITY RIGHTS NETWORK; NATIONAL ALLIANCE ON
MENTAL ILLNESS NORTH CAROLINA; THE BAZELON CENTER FOR MENTAL
HEALTH LAW; MENTAL HEALTH AMERICA; NATIONAL ALLIANCE ON
MENTAL ILLNESS,
Amici Supporting Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington.
Terrence W. Boyle,
District Judge. (7:11-cv-00169-BO)
Argued:
December 9, 2014
Decided:
March 12, 2015
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Before KEENAN, FLOYD, and HARRIS, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published
opinion. Judge Floyd wrote the opinion, in which Judge Keenan
and Judge Harris joined.
ARGUED: Vanessa Katherine Lucas, EDELSTEIN & PAYNE, Raleigh,
North Carolina, for Appellant.
Kathryn Hicks Shields, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees.
ON BRIEF: Lisa Grafstein, Mercedes Restucha-Klem,
DISABILITY RIGHTS NORTH CAROLINA, Raleigh, North Carolina, for
Appellant.
Roy Cooper, North Carolina Attorney General, Grady
L. Balentine, Jr., Special Deputy Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees.
Brian East, DISABILITY RIGHTS TEXAS, Austin, Texas,
for Amici Curiae.
2
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FLOYD, Circuit Judge
Christina Jacobs worked as a deputy clerk at a courthouse
in New Hanover County, North Carolina.
Although she allegedly
suffered from social anxiety disorder, her employer assigned her
to provide customer service at the courthouse front counter.
Believing
perform
that
this
her
mental
inherently
accommodation--to
interpersonal
be
illness
social
assigned
interaction.
task,
to
Her
hindered
a
her
role
employer
to
requested
Jacobs
ability
an
with
less
waited
direct
three
weeks
without acting on her request and then terminated her.
Jacobs
Americans
brought
with
suit
against
Disabilities
Act
her
(ADA).
employer
The
under
district
granted summary judgment to the employer on all counts.
the
court
Because
the district court erred by resolving disputed facts in favor of
the movant and for the reasons that follow, we reverse the grant
of summary judgment in part and remand for trial.
I.
Christina
childhood. 1
Jacobs
has
suffered
from
mental
illness
since
At ten, Jacobs was diagnosed with severe situational
1
In reviewing de novo the district court’s order granting
summary judgment to the North Carolina Administrative Office of
the Courts, we “view the facts and all justifiable inferences
arising therefrom in the light most favorable to” Jacobs, as the
nonmoving party.
Libertarian Party of Va. v. Judd, 718 F.3d
3
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performance
several
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anxiety.
days
At
after
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twelve,
threatening
she
harm
was
to
hospitalized
herself
and
for
others.
During her hospitalization she was diagnosed with mood disorder
and selective mutism, and prescribed antidepressants.
age
of
18,
she
received
an
additional
diagnosis
At the
of
social
anxiety disorder for which she has been treated intermittently
by several physicians.
Social anxiety disorder is characterized by a “marked and
persistent fear of . . . social or performance situations in
which [a] person is exposed to unfamiliar people or to possible
scrutiny
by
Statistical
others.”
Am.
Manual
Mental
of
[hereinafter DSM-IV]. 2
disorder
either
situations,
or
distress.”
Id.
Psychiatric
Ass’n,
Disorders
456
Diagnostic
(4th
ed.
and
2000)
A person suffering from social anxiety
“avoid[s]”
the
feared
“endure[s
them]
with
social
or
intense
performance
anxiety
or
A person can only be diagnosed with social
anxiety disorder when the “avoidance, anxious anticipation, or
distress
in
interferes
occupational
the
feared
significantly
. . .
social
with
the
functioning,
308, 312 (4th Cir. 2013).
conforms to this standard.
or
performance
person’s
or
social
situation(s)
normal
routine,
activities
or
The following statement of facts
2
We take judicial notice of the DSM-IV (and not the current
DSM-V) because the expert witnesses in this case applied the
diagnostic criteria of the DSM-IV. Fed. R. Evid. 201.
4
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relationships
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. . . .”
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Id.
The
American
Psychiatric
Association (APA) notes that social anxiety disorder can create
a
“vicious
cycle
of
anticipatory
anxiety
leading
to
fearful
cognition and anxiety . . . , which leads to actual or perceived
poor
performance
. . .
,
which
leads
to
increased anticipatory anxiety . . . .”
embarrassment
Id. at 451.
and
“A job
promotion to a position requiring public speaking may result in
the
emergence
of
[social
anxiety
disorder]
previously never needed to speak in public.”
in
someone
who
Id. at 453.
In January 2009, Jacobs was hired by Brenda Tucker, the
elected clerk of court, as an office assistant in the criminal
division
Courts
of
the
(AOC).
included
North
As
an
microfilming
Carolina
office
and
Administrative
assistant,
filing.
Less
Office
Jacobs’s
than
a
job
month
of
the
duties
after
Jacobs started working, Tucker promoted her to the position of
deputy clerk. 3
At the time of Jacobs’s employment, 30 total deputy clerks
worked in the criminal division.
clerks
counter.
provided
customer
service
Four or five of the deputy
at
the
division’s
front
The remaining deputy clerks performed other filing and
record-keeping tasks, many of which do not require face-to-face
3
It is undisputed that at the time of her promotion Jacobs
met or exceeded the minimum eligibility requirements for the
position.
5
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interaction with the public. 4
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AOC supervisors typically assigned
the most junior deputy clerks to the front counter.
However,
all deputy clerks--regardless of assignment and seniority--had
the same title and job description.
In March 2009, Jacobs began training to work at the front
counter.
She was assigned to work four days a week at the front
counter and one day a week microfilming.
Jacobs soon began to
experience extreme stress, nervousness, and panic attacks while
working at the front counter.
She became particularly panicked
when she was asked a question to which she did not immediately
know the answer--a common occurrence when working behind the
counter.
She attributed these symptoms to her diagnosed social
anxiety disorder.
On or about May 5, 2009, Jacobs went to a supervisor, Debra
Excell, and told Excell that she had social anxiety disorder and
was
not
feeling
healthy
while
working
at
the
front
counter.
Jacobs told Excell that she had received treatment (including
medication) for mental health issues while in college, but that
she was not currently under a doctor’s care.
Excell encouraged
Jacobs to seek treatment from the doctor who had helped her in
4
For example, disposition and continuance clerks work
primarily on the computer and do not provide direct customer
service.
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After her meeting with Excell, Jacobs went to a doctor
and began receiving treatment for anxiety and depression.
Excell subsequently told Tucker about her conversation with
Jacobs.
Tucker took handwritten notes on Excell’s oral account
of her conversation with Jacobs, which included the phrases “too
stressful,” “nerve issues,” “anxiety disorder,” and “might have
to go back to [the doctor].”
J.A. 823.
Tucker’s assistant
placed the notes in Jacobs’s personnel file.
During
the
course
of
her
employment,
Jacobs
was
never
written up for any disciplinary infraction or performance issue.
There are no notes in her personnel file indicating any problems
with her performance.
Yet the AOC now alleges, inter alia, that
Jacobs was a slow worker, impermissibly disclosed information to
members
of
supervisors.
the
public,
and
had
outbursts
with
coworkers
and
The AOC has produced no documentary evidence (such
as e-mails) corroborating these allegations.
On September 8, 2009, Jacobs sent an e-mail to her three
immediate supervisors (Excell, Jan Kennedy, and Melissa Griffin)
in which she disclosed her disability for a second time and
requested an accommodation.
Specifically, Jacobs requested that
she be “trained to fill a different role in the Clerk’s Office
and perhaps work at the front counter only once a week.”
798.
J.A.
The next day, Jacobs followed up in person with Kennedy.
Kennedy told Jacobs that only Tucker had the power to act on
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Jacobs’s request and, because Tucker was currently on a threeweek vacation, Jacobs would have to wait until Tucker returned.
Soon after her meeting with Kennedy, Jacobs forwarded her e-mail
request to Tucker.
While she was waiting for Tucker to return and address her
accommodation request, Jacobs sought to use some accrued leave.
Kennedy questioned Jacobs about why she wanted leave and denied
her
request.
Jacobs’s
previous
leave
requests
were
not
questioned and had always been approved.
Tucker alleges that while she was on vacation, she did not
check her e-mail and asked to be called only in the event of an
emergency.
Alice
She allegedly received a call from her assistant,
Radewicz,
informing
sleeping at her desk.
her
that
Jacobs
had
been
spotted
Tucker testified that this was the only
call she received during her three-week absence.
Upon returning to the office on September 29, 2009, Tucker
called Jacobs into her office for a meeting.
Excell, Kennedy,
and Griffin were already in Tucker’s office when Jacobs arrived,
where
they
had
just
concluded
a
meeting
regarding
Jacobs.
Jacobs also saw a copy of her e-mail requesting an accommodation
on Tucker’s desk, annotated in someone’s handwriting.
Tucker
later testified that she had written the notes on the e-mail
printout.
Jacobs assumed that the meeting was about her request
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an
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accommodation
and
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recorded
the
meeting
on
a
small
personal audio recorder.
Jacobs told Tucker that she had wanted to meet regarding
“just what the e-mail said.” 5
as
to
what
e-mail
Jacobs
J.A. 827.
was
Tucker did not inquire
referring.
Instead,
she
told
Jacobs that she was being fired because she was not “getting it”
and
Tucker
did
not
“have
any
place
[that
she
could]
use
[Jacobs’s] services.”
Id.
She did not mention Jacobs’s alleged
sleeping on the job.
When Jacobs asked Tucker whether she was
being fired “because of the e-mail,” Tucker responded that “it
doesn’t have anything to do with the e-mail.”
After
her
termination,
Jacobs
timely
Id.
filed
a
Charge
of
Discrimination with the Equal Employment Opportunity Commission
(EEOC).
During the EEOC investigation, Tucker denied that she
knew of Jacobs’s disability and that she had read the e-mail
before deciding to terminate Jacobs.
After Jacobs received a
favorable determination from the EEOC, the Department of Justice
issued a Right to Sue letter.
Jacobs then timely filed suit against the AOC and against
Jan Kennedy (Tucker’s successor) in her official capacity as
clerk of court.
Jacobs’s amended complaint alleges five causes
5
All quotations are to Jacobs’s recording of the
termination meeting on page 827 of the joint appendix, and not
to Jacobs’s transcription of the recording.
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of action,
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three of which are pertinent to this appeal: (i)
disability discrimination under the ADA; (ii) failure to provide
a reasonable accommodation under the ADA; and (iii) retaliation
under the ADA. 7
The district court had jurisdiction pursuant to
28 U.S.C. § 1331.
In a brief opinion, the district court granted the AOC’s
motion for summary judgment.
Jacobs v. N.C. Admin. Office of
the Courts, No. 7:11-CV-169-BO, 2013 WL 4736171, at *1 (E.D.N.C.
Sept. 3, 2013).
Although the AOC conceded for summary-judgment
purposes that Jacobs had a disability, the district court found
that Jacobs was not disabled as a matter of law and that she had
6
Jacobs’s complaint also alleged that the AOC committed a
per se violation of the ADA by commingling her medical records
with her personnel file.
The district court granted summary
judgment
because
the
ostensible
“medical
records”
were
voluntarily provided by Jacobs.
Jacobs does not appeal the
grant of summary judgment on this claim, and we therefore save
the question of whether the ADA’s confidentiality provisions
apply to the voluntary disclosure of disability for another day.
7
Jacobs purports to appeal two other causes of action:
discrimination and retaliation under Section 504 of the
Rehabilitation Act (29 U.S.C. § 794); and wrongful discharge in
violation of North Carolina public policy.
However, Jacobs
failed to discuss these claims (except in passing) in the
argument section of her opening brief, contrary to the
requirement of Rule 28(a)(8)(A) of the Federal Rules of
Appellate
Procedure
that
the
brief
contain
“appellant's
contentions and the reasons for them.”
Specifically, she did
not challenge the district court’s finding that “stating a claim
under the Rehabilitation Act is more difficult” than under the
ADA.
J.A. 1039.
We therefore find that Jacobs has abandoned
these claims on appeal. Sandlands C & D LLC v. Cnty. of Horry,
737 F.3d 45, 51 n.4 (4th Cir. 2013); Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999).
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therefore failed to establish a prima facie case of disability
discrimination and failure to grant a reasonable accommodation.
Id. at *3.
The district court also found that there was no
evidence in the record that Tucker knew of Jacobs’s request for
an accommodation at the time she decided to fire Jacobs, and
that Jacobs therefore failed to establish a prima facie case of
retaliation.
The
September
Id.
district
3,
court
2013.
entered
Jacobs
judgment
timely
against
Jacobs
appealed.
We
on
have
jurisdiction over final judgments of the district court pursuant
to 28 U.S.C. § 1291.
II.
A.
Ordinarily
we
would
begin
our
discussion
with
a
brief
restatement of the standard of review for a motion for summary
judgment.
When
“the
opinion
below
reflects
a
clear
misapprehension of summary judgment standards,” however, further
elaboration is warranted.
1868 (2014) (per curiam).
Tolan v. Cotton, 134 S. Ct. 1861,
A district court “shall grant summary
judgment if the movant shows that 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).
“A dispute is genuine
if ‘a reasonable jury could return a verdict for the nonmoving
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Libertarian Party of Va. v. Judd, 718 F.3d 308, 313
(4th Cir. 2013) (quoting Dulaney v. Packaging Corp. of Am., 673
F.3d 323, 330 (4th Cir. 2012)).
“A fact is material if it
‘might affect the outcome of the suit under the governing law.’”
Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)).
In considering a motion for summary judgment, the district
court must “view the evidence ‘in the light most favorable to
the’”
nonmoving
Adickes
v.
party.
S.H.
Kress
Tolan,
&
Co.,
134
S.
398
Ct.
U.S.
at
1866
(quoting
144,
157
(1970)).
“Summary judgment cannot be granted merely because the court
believes that the movant will prevail if the action is tried on
the merits.”
10A Charles Alan Wright & Arthur R. Miller et al.,
Federal Practice & Procedure § 2728 (3d ed. 1998). 8
therefore
cannot
determinations.
weigh
the
Mercantile
evidence
Peninsula
or
Bank
make
v.
The court
credibility
French
(In
re
French), 499 F.3d 345, 352 (4th Cir. 2007) (citing Anderson, 477
U.S. at 255); see also Fed. R. Civ. P. 56 Advisory Committee’s
Note (1963) (“ Where an issue as to a material fact cannot be
resolved without observation of the demeanor of witnesses in
8
As Professor Arthur Miller noted recently, “a motion
designed simply for identifying trial-worthy issues has become,
on occasion, a vehicle for resolving trial-worthy issues.”
Arthur R. Miller, Simplified Pleading, Meaningful Days in Court,
and Trials on the Merits: Reflections on the Deformation of
Federal Procedure, 88 N.Y.U. L. Rev. 286, 312 (2013).
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order to evaluate their credibility, summary judgment is not
appropriate.”).
The Supreme Court recently granted certiorari and issued a
decision in a seemingly routine summary judgment case because
the
lower
court
contradicted
had
some
“fail[ed]
its
of
to
factual
key
credit
evidence
conclusions”
that
and
“improperly ‘weighed the evidence’ and resolved disputed issues
in
favor
of
(brackets
moving
omitted)
Specifically,
court)
the
the
repeatedly
plaintiff
and
party.”
(quoting
court
of
failed
members
of
Tolan,
Anderson,
appeals
134
477
S.
U.S.
(affirming
to
credit
the
his
immediate
Ct.
at
the
testimony
family,
at
1866
249).
district
of
which
the
often
contradicted the court’s statement of the “central facts” of the
case.
Id. at 1866–67.
Because the court of appeals “weigh[ed]
the evidence and reach[ed] factual inferences contrary to [the
nonmovant’s] competent evidence,” the Supreme Court vacated the
court’s
affirmance
judgment.
of
the
district
court’s
grant
of
summary
Id. at 1868.
B.
In this case, as in Tolan, the district court erred by
failing to consider all of the evidence in the record.
The
district court’s opinion also states the facts in the light most
favorable to the AOC--not Jacobs, the nonmovant.
13
Strikingly,
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both of the district court’s key factual findings--that Jacobs
was
not
disabled
and
that
Tucker
did
not
learn
of
Jacobs’s
accommodation request prior to terminating her--rest on factual
inferences
contrary
to
Jacobs’s
competent
evidence.
The
district court thus improperly resolved factual issues at the
summary judgment stage, in contravention of well-settled law.
We discuss these errors in turn.
1.
We begin by noting several examples of the district court’s
misapplication
of
the
summary
judgment
standard
in
its
recitation of the facts.
First, the district court stated that Jacobs “had what was
described as a ‘melt-down’ with a co-worker . . . [that] caused
a disruption in the office . . . .”
J.A. 1034.
However, the
co-worker allegedly involved in the outburst denied that it ever
occurred.
The AOC witnesses who testified regarding the alleged
outburst did not directly witness it and could not recall how
they had learned about it.
Second,
the
district
court
accepted
the
AOC’s
characterization of Jacobs’s May 5 meeting with Excell: “[T]he
plaintiff told Debra Excell that she was having social issues
and
was
nervous
(emphasis added).
about
working
at
the
front
counter.”
Id.
Jacobs testified that she told Excell she had
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anxiety
disorder--not
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mere
“social
issues.”
Tucker’s
handwritten notes on her conversation with Excell regarding this
meeting,
in
which
she
wrote
the
words
“anxiety
disorder,”
support Jacobs’s account of the conversation.
Third, the district court stated as an undisputed fact that
Jacobs “did not tell anyone she was disabled” in April or May of
2009.
Id.
This is inconsistent with the testimony of Jacobs,
Excell, and Tucker, who all agreed that Jacobs told Excell she
had anxiety issues that were impacting her work and for which
she had received medical treatment in the past.
Fourth and finally, the district court adopted the AOC’s
erroneous contention that its expert witness failed to examine
Jacobs because Jacobs did not consent to be examined.
1035
(“[T]his
was
done
in
lieu
of
examining
the
See J.A.
plaintiff
personally because she refused to submit to such an evaluation.”
(emphasis added)).
As the record makes clear, the AOC never
brought a motion for mental examination under Rule 35 of the
Federal Rules of Civil Procedure and did not respond to the
offer by Jacobs’s counsel to proceed with such an examination
without motion.
Considering the order in its entirety, we conclude that the
district court impermissibly “credited the evidence of the party
seeking summary judgment and failed properly to acknowledge key
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evidence offered by the party opposing that motion.”
S. Ct. at 1867–68.
Tolan, 134
This was error.
2.
The district court also erred by concluding that Jacobs was
not disabled within the meaning of the ADA.
During the course
of discovery both parties produced expert testimony by mental
health
specialists
forensic
mental
on
psychologist
disorders,
this
issue.
Dr. Claudia
Social
Phobia
After
Coleman
and
examining
concluded
Anxiety
Jacobs,
that
Disorder,
constitute a disability as defined by the [ADA].”
“her
. . .
J.A. 807.
Forensic psychiatrist Dr. George Corvin, the AOC’s expert, did
not examine Jacobs.
review
of
her
Instead, Dr. Corvin based his report on a
medical
records,
social
media
use,
employment
records, and the report of a private investigator who observed
Jacobs while she was at work at a new job.
Dr. Corvin concluded
that it was possible that Jacobs met the diagnostic criteria for
social anxiety disorder but that “her medical records alone are
insufficient to establish such a diagnosis.”
J.A. 222.
He also
determined from the private investigator’s report that Jacobs
was
currently
succeeding
in
a
new
customer
service
job,
and
thereby inferred that she had not experienced “any significant
level of anxiety or other psychiatric impairment” while working
at the AOC.
Id.
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The district court determined from “Dr. Corvin’s report and
the
plaintiff’s
disabled.
behavior
J.A. 1038.
[at]
work”
that
Jacobs
was
not
Inexplicably, the district court omits
any mention of Dr. Coleman’s conflicting report.
Additionally,
Dr. Corvin’s report simply does not support the district court’s
finding of no disability--rather, Dr. Corvin concluded only that
Jacobs’s medical records were equivocal on this question.
As in Tolan, the district court “neglected to adhere to the
fundamental
principle
that
at
the
summary
judgment
stage,
reasonable inferences should be drawn in favor of the nonmoving
party.”
134 S. Ct. at 1868.
Rather, the court incorrectly drew
all inferences in favor of the AOC, not Jacobs.
We therefore
reverse
there
the
district
court’s
determination
that
is
no
is
no
genuine dispute as to whether Jacobs had a disability.
3.
The
district
court
also
determined
that
“there
evidence that Ms. Tucker knew that the plaintiff had requested
an accommodation at the time she made the decision to terminate
her.”
J.A. 1038 (emphasis added).
This finding has no basis in
the record.
Rather, the record taken in the light most favorable to
Jacobs demonstrates just the opposite.
It is undisputed that
Jacobs e-mailed her request for an accommodation to Tucker on
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September 9, 2009.
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Jacobs also e-mailed her request to her
immediate supervisors, and discussed her request in person with
Kennedy.
Kennedy told Jacobs that she could not act on Jacobs’s
request without discussing it first with Tucker.
to
the
office
Jacobs’s
on
September
immediate
29,
Tucker
supervisors--Kennedy,
held
Upon returning
a
Excell,
meeting
and
with
Griffin.
Kennedy testified that the supervisors discussed Jacobs during
this meeting.
Tucker then called Jacobs into the meeting, and
summarily fired her in front of Kennedy, Excell, and Griffin.
A
reasonable jury could infer from these facts that before Jacobs
walked
in,
any
or
all
of
Jacobs’s
supervisors
would
have
discussed the accommodation request e-mail.
The record taken in the light most favorable to Jacobs also
demonstrates that Tucker read the e-mail before firing Jacobs.
When Jacobs entered Tucker’s office she saw an annotated copy of
her request for accommodation sitting on Tucker’s desk.
Tucker
admits to having annotated the e-mail but testified that she did
so only after the meeting.
Tucker cannot remember when she
printed the e-mail but testified that it may have been during
the
meeting
meeting.
and
that
she
first
read
the
e-mail
during
the
This account is inconsistent with the audio recording
of the meeting, which a reasonable jury could find does not
contain any pauses long enough to account for Tucker finding and
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printing the e-mail.
Pg: 19 of 46
A reasonable jury could credit Jacobs’s
testimony over Tucker’s on this factual question.
Finally, Tucker’s statements during the termination meeting
indicate that she knew about Jacobs’s accommodation request.
At
the beginning of the meeting, Jacobs said she wanted to discuss
“just what the e-mail said.”
J.A. 827.
what e-mail Jacobs was referring.
Tucker did not ask to
Instead, Tucker told Jacobs
that, at the time of her hiring, Jacobs “expressed [she] would
be able to handle all of that [i.e., front counter work], that
it wouldn’t be problematic for you.”
Id.
Tucker added, “I
don’t have any place that I can use your services.”
Id.
If
Tucker
of
the
had
accommodation
called
the
request,
meeting
it
is
without
unlikely
knowledge
that
addressed the possibility of reassigning Jacobs.
she
would
have
Moreover, when
Jacobs asked whether she was being fired “because of the email,” Tucker responded that “it doesn’t have anything to do
with the e-mail.”
contents
of
the
Id.
e-mail,
If Tucker were truly unaware of the
it
is
unlikely
that
she
would
have
answered the question in this way.
A reasonable jury could infer from Jacobs’s, Tucker’s, and
Kennedy’s testimony and from the recording of the conversation
that Tucker knew about Jacobs’s accommodation request at the
time she decided to terminate Jacobs.
Accordingly, we reverse
the district court’s determination to the contrary.
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III.
Merely concluding that disputed issues of fact exist as to
whether Jacobs was disabled and whether Tucker knew about her
accommodation request does not end our inquiry.
Rather, we must
also decide whether disputed issues of fact exist as to elements
of each of Jacobs’s three claims: (i) disability discrimination;
(ii)
retaliation;
accommodation.
and
(iii)
failure
to
provide
a
reasonable
We address each claim in turn.
A.
We first consider whether we should affirm summary judgment
on Jacobs’s disability discrimination claim.
To establish a claim for disability discrimination under
the ADA, a plaintiff must prove “(1) that she has a disability,
(2) that she is a ‘qualified individual’ for the employment in
question, and (3) that [her employer] discharged her (or took
other
adverse
employment
action)
because
of
her
disability.”
EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 377 (4th Cir.
2000).
Disability discrimination may be proven through direct
and indirect evidence or through the McDonnell Douglas burdenshifting framework. 9
See Raytheon Co. v. Hernandez, 540 U.S. 44,
49–50 & n.3 (2003).
9
McDonnell
Douglas
Corp.
(1973).
20
v.
Green,
411
U.S.
792,
802
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1.
The AOC argues that Jacobs did not have a disability as a
matter of law.
10
“Disability” is defined by the ADA as “a
physical or mental impairment that substantially limits one or
more major life activities.”
provides
a
nonexhaustive
including
42 U.S.C. § 12102(1)(A).
list
“speaking,”
of
major
life
activities,
“concentrating,”
“communicating,” and “working.”
The ADA
“thinking,”
Id. § 12102(2)(A).
The EEOC
has also identified “interacting with others” as a major life
activity.
29 C.F.R. § 1630.2(i)(1)(i).
“In September 2008, Congress broadened the definition of
‘disability’ by enacting the ADA Amendments Act of 2008, Pub. L.
No. 110–325, 122 Stat. 3553 . . . .”
Summers v. Altarum Inst.,
Corp., 740 F.3d 325, 329 (4th Cir. 2014).
The ADA Amendments
Act (ADAAA) was intended to make it “easier for people with
disabilities to obtain protection under the ADA.”
§ 1630.1(c)(4).
29 C.F.R.
The regulation clarifies that “[t]he primary
object of attention in cases brought under the ADA should be
whether covered entities have complied with their obligations
and
whether
individual
discrimination
meets
the
has
definition
10
occurred,
of
not
disability.”
whether
Id.
the
“[T]he
As noted above, this argument is inconsistent with AOC’s
prior litigation position. J.A. 1027 (“For the sake of summary
judgment, Defendants have conceded that Plaintiff had a
disability.”).
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question of whether an individual’s impairment is a disability
under the ADA should not demand extensive analysis.”
No. 110-325, § 2(b)(5) (2008).
Pub. L.
In enacting the ADAAA, Congress
abrogated earlier inconsistent caselaw.
Summers, 740 F.3d at
331.
Jacobs
alleges
that
her
social
anxiety
disorder
substantially limited her ability to interact with others and
was
therefore
evidence
in
a
the
disability.
record
shows
The
that
AOC
first
Jacobs
argues
was
that
suffering
social anxiety disorder while employed as a deputy clerk.
is
clearly
incorrect.
As
discussed
above,
the
no
from
This
testimony
of
Dr. Coleman suffices to establish a genuine dispute of fact on
this question.
The AOC next argues that Jacobs’s social anxiety disorder
did
not
substantially
limit
any
major
life
activity
because
“interacting with others” is not a major life activity.
This
argument constitutes a challenge to the EEOC’s interpretation of
the
ADA.
“interacting
See
with
29
C.F.R.
others”
as
§ 1630.2(i)(1)(i)
a
major
life
(identifying
activity).
We
therefore apply the familiar two-step Chevron analysis. 11
See
Jones v. Am. Postal Workers Union, 192 F.3d 417, 427 (4th Cir.
11
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984).
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1999) (affording Chevron deference to the EEOC’s interpretation
of a Title VII provision expressly adopted by the ADA).
Under Chevron, we first ask whether Congress has “directly
spoken”
to
the
precise
question
of
others is a major life activity.
its
express
language,
the
activities
(emphasis
include,
added)).
We
interacting
Summers, 740 F.3d at 331.
statute’s
activities is not exhaustive.
life
whether
list
of
major
with
By
life
42 U.S.C. § 12102(2)(A) (“[M]ajor
but
are
therefore
not
limited
conclude
that
to
. . . .”
Congress
has
deliberately left a gap for the agency to fill, and proceed to
Chevron’s second step--determining whether the EEOC’s regulation
is reasonable.
Summers, 740 F.3d at 331-32.
“The stated goal of the ADAAA is to expand the scope of
protection
available
under
permits.”
Id. at 332.
the
Act
as
broadly
as
the
text
A major life activity is one that is “of
central importance to daily life.”
Toyota Motor Mfg., Ky. Inc.
v. Williams, 534 U.S. 184, 197 (2002) (abrogated in part by the
ADAAA).
Few activities are more central to the human condition
than interacting with others.
If “bending” and “lifting” are
major life activities, 42 U.S.C. § 12102(2)(A), it is certainly
reasonable for the EEOC to conclude that interacting with others
falls
in
others”
the
as
a
same
major
category.
life
Identifying
activity
“interacting
comparable
to
“caring
with
for
oneself,” “speaking,” “learning,” and “communicating” advances
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the broad remedial purpose of the ADA.
We therefore defer to
the EEOC’s determination and hold that interacting with others
is a major life activity.
The AOC also argues that Jacobs has failed to show that her
alleged
social
ability
to
anxiety
interact
disorder
with
substantially
others.
Prior
to
limited
the
her
ADAAA,
a
plaintiff seeking to prove disability needed to show that she
was “significantly restricted” in a major life activity.
See,
e.g., Pollard v. High’s of Balt., Inc., 281 F.3d 462, 467 (4th
Cir. 2002).
The ADAAA expressly rejected this rule as imposing
“too high a standard.”
Pub. L. No. 110-325 § 2(a)(8).
The
regulations define a substantially limiting impairment as one
that
“substantially
limits
the
ability
of
an
individual
to
perform a major life activity as compared to most people in the
general
population.”
impairment
need
not
29
C.F.R.
prevent,
or
§ 1630.2(j)(1)(ii).
significantly
or
12
“An
severely
restrict, the individual from performing a major life activity
in order to be considered substantially limiting.”
The
AOC
substantially
argues
limited
that
in
Jacobs
interacting
12
could
with
not
others
Id.
have
because
been
she
Because both parties accept the EEOC regulations as
instructive, we assume without deciding that they are reasonable
and have no occasion to decide what level of deference, if any,
they are due.
See Toyota, 534 U.S. at 194; Heiko v. Colombo
Sav. Bank, F.S.B., 434 F.3d 249, 255 n.1 (4th Cir. 2006).
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“interact[ed] with others on a daily basis,” “routinely answered
inquiries from the public at the front counter,” “socialized
with
her
co-workers
outside
interaction on Facebook.
of
work,”
and
engaged
in
Appellees’ Br. at 26, 29.
social
The AOC
misapprehends both the meaning of “substantially limits” and the
nature of social anxiety disorder.
A
person
need
not
live
as
a
hermit
in
order
“substantially limited” in interacting with others.
to
be
According
to the APA, a person with social anxiety disorder will either
avoid social situations or “endure the social or performance
situation . . . with intense anxiety.”
DSM-IV, supra, at 451. 13
Thus, the fact that Jacobs may have endured social situations
does not per se preclude a finding that she had social anxiety
disorder.
Rather,
Jacobs
need
only
show
situations “with intense anxiety.”
Id.
testimony
counter
that
working
the
front
she
endured
these
At a minimum, Jacobs’s
caused
her
extreme
stress and panic attacks creates a disputed issue of fact on
this
issue.
14
Her
testimony
is
also
consistent
with
13
We also note in passing that if Jacobs in fact took
longer than necessary to complete her microfilming work and
procrastinated in returning to the front desk (as the AOC
alleges), this may constitute avoidant behavior consistent with
a diagnosis of social anxiety disorder.
14
Although members of the public will not experience
intense anxiety and panic when asked a question by a stranger,
Jacobs alleges that working the front counter caused her extreme
stress and panic attacks.
According to the DSM-IV, between 3%
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Dr. Coleman’s testimony that Jacobs suffered from social anxiety
disorder within the meaning of the DSM-IV.
The undisputed facts that Jacobs spoke to coworkers and
attempted to perform her job at the front counter are therefore
not fatal to her claim.
coworkers
in
her
That she attended several outings with
nine
months
dispositive--answering
constitutes
a
in
the
office
at
the
questions
performance
situation
that
is
also
front
is
hardly
counter
different
in
character from having lunch with coworkers, and a reasonable
jury may conclude that Jacobs’s allegedly debilitating anxiety
was specific to that situation.
Jacobs’s
Facebook
activity
Finally, to the extent that
constitutes
a
“mitigating
measure”
(that is, a form of exposure therapy by which Jacobs attempted
to overcome her anxiety through social interaction that was not
face-to-face
and
not
consider
in
determining
it
in
real
time)
the
we
are
existence
not
of
permitted
a
limitation on her ability to interact with others.
§ 12102(4)(E)(i).
We
therefore
find
that
a
to
substantial
42 U.S.C.
reasonable
jury
and 13% of people will experience social anxiety disorder at
some point in their life. DSM-IV, supra, at 453.
Just 10% of
people who experience a fear of public speaking experience
enough impairment or distress to be diagnosed with social
anxiety disorder.
Id.
We therefore conclude that social
anxiety disorder limits sufferers “as compared to most people in
the general population.” 29 C.F.R. § 1630.2(j)(1)(ii).
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conclude
that
Jacobs
Pg: 27 of 46
was
substantially
limited
in
her
ability to interact with others and thus disabled within the
meaning of the ADA.
2.
We turn next to the second element of the prima facie case:
whether Jacobs has shown that she was a qualified individual for
the employment in question.
The AOC argues that no reasonable
jury could find that, at the time of her discharge, Jacobs was
“performing
her
job
at
a
legitimate expectations.”
Educ.
Radio,
Inc.,
53
level
that
met
her
employer’s
See Ennis v. Nat’l Ass’n of Bus. &
F.3d
55,
58,
61–62
(4th
Cir.
1995)
(finding that summary judgment was appropriate when an employee
had
received
written
numerous
reprimands
over
negative
three
performance
years,
was
evaluations
suspended
for
and
poor
performance, and conceded that she was not a model employee and
made too many personal phone calls).
argument
with
considerable
The AOC supports this
testimony
regarding
Jacobs’s
shortcomings as an employee.
Jacobs
responds
by
denying
these
allegations
and
noting
that she was promoted to the position of deputy clerk after only
a month on the job.
She further argues that she never received
a negative performance review, evaluation, or written warning,
and that the AOC’s testimony could be discredited at trial as
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inconsistent and contradictory.
Cf. EEOC v. Sears Roebuck &
Co.,
Cir.
243
F.3d
846,
852–53
(4th
2001)
(holding
that
an
employer’s provision of shifting and inconsistent justifications
for taking an adverse employment action “is, in and of itself,
probative of pretext”).
For example, AOC witnesses testified
that Ashley English, an AOC employee, told them about Jacobs’s
performance
issues
and
inappropriate
outbursts.
English,
however, testified that she never discussed Jacobs’s performance
with
the
AOC
inappropriate
total
lack
witnesses
outburst.
of
and
From
documentary
that
these
evidence
Jacobs
never
had
an
inconsistencies
and
the
of
Jacobs’s
alleged
poor
performance, a reasonable jury could conclude that Jacobs was
qualified for the position of deputy clerk.
3.
Disputed issues of material fact also exist as to the third
element of the prima facie case--causation.
The AOC argues that
Jacobs cannot prove causation because no reasonable jury could
find that Tucker knew of Jacobs’s disability at the time Jacobs
was terminated.
We disagree.
First, the note Tucker placed in Jacobs’s personnel file
demonstrates that Tucker was aware as early as May 5, 2009 (more
than three months before the termination) that Jacobs had “nerve
issues,” an “anxiety disorder,” and that she “might have to go
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back to [the doctor].”
Pg: 29 of 46
J.A. 823.
Second, just before firing
Jacobs, Tucker met with the three supervisors who had received
Jacobs’s
e-mailed
accommodation
request.
One
of
these
supervisors told Jacobs that she intended to discuss the request
with Tucker upon Tucker’s return from vacation.
reasonable
inferences
in
Jacobs’s
favor,
Drawing all
Tucker
and
the
supervisors likely discussed Jacobs’s disability at this meeting
immediately before firing her.
A reasonable jury could thus
find that Tucker knew that Jacobs was disabled.
See Schmidt v.
Safeway Inc., 864 F. Supp. 991, 997 (D. Or. 1994) (“The employer
need only know the underlying facts, not the legal significance
of those facts.”).
Contrary
to
the
AOC’s
contention,
Jacobs
has
produced
affirmative evidence from which a reasonable jury could conclude
that she was terminated because of her disability.
53 F.3d at 59.
e-mail
favor
She was fired just three weeks after sending her
disclosing
accommodation.
of
See Ennis,
her
disability
and
requesting
an
Such close temporal proximity weighs heavily in
finding
a
genuine
dispute
as
to
causation.
See
Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696, 706 (4th Cir.
2001)
(finding
that
temporal
proximity
genuine dispute to causation).
29
alone
can
create
a
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We therefore find that a reasonable jury could conclude
that Jacobs has made out each of the elements of a prima facie
case of discriminatory discharge.
4.
Under the familiar McDonnell Douglas framework, the burden
then shifts to the AOC to produce evidence of a legitimate, nondiscriminatory
reason
for
terminating
Douglas Corp., 411 U.S. at 802.
number
of
non-discriminatory
Jacobs.
See
McDonnell
The AOC produced evidence of a
reasons
for
Jacobs’s
termination
including: Jacobs was not “getting it”; she had outbursts and
became angry with her trainer; she slept on the job; and she
failed to follow the appropriate procedure for calling in sick.
For summary judgment purposes, we thus find that the AOC has
satisfied this relatively modest burden.
The burden therefore shifts back to Jacobs to prove that
these
asserted
Sanderson
justifications
Plumbing
Prods.,
are
Inc.,
pretextual.
530
U.S.
133,
Reeves
143
v.
(2000).
Among other methods, she may do so by demonstrating that the
asserted
justifications,
even
if
true,
are
post
rationalizations invented for purposes of litigation.
hoc
Dennis v.
Columbia Colleton Med. Ctr. , Inc., 290 F.3d 639, 647 (4th Cir.
2002).
Jacobs
argues
that
the
AOC’s
proffered
reasons
are
pretextual because: (i) the AOC has offered different rationales
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different
phases
of
the
Pg: 31 of 46
litigation
and
(ii)
the
AOC’s
evidence is inconsistent and contradictory.
The
fact
justifications
that
at
an
employer
different
times
“has
for
offered
adverse
[an
different
employment
action] is, in and of itself, probative of pretext.”
Roebuck & Co., 243 F.3d at 852–53.
Sears
At the time of termination,
Tucker told Jacobs that she was being fired for not “getting
it,” for being slow, for lying about her ability to do the job,
and for her “propensity for mistakes.”
complaint,
Tucker
put
forward
J.A. 827.
additional
In her EEOC
reasons:
Jacobs
had
“outbursts,” got angry with her trainer, and would disruptively
ask her co-workers how to perform tasks.
Jacobs
filed
claiming
that
suit,
the
Jacobs
AOC
slept
put
on
forward
the
job
J.A. 686.
still
and
more
failed
After
reasons,
to
follow
procedures for calling in sick.
Although
internally
this
constellation
inconsistent,
many
of
of
the
justifications
purported
is
not
justifications
were not raised at the time of termination. Even more striking
is that no one at the AOC documented any of the justifications
(including those raised at the time of termination) in any way.
Moreover, all of the annotations on the e-mail printout (that
Tucker
testified
reflect
her
contemporaneous
account
of
the
reasons for firing Jacobs) concern her disability, use of sick
leave,
and
request
for
accommodation;
31
none
concern
the
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justifications raised during the course of litigation.
Drawing
all reasonable inferences in favor of Jacobs, we conclude that
the
AOC’s
undocumented
pretextual
and
were
and
not
uncorroborated
the
actual
justifications
reason
for
are
Jacobs’s
termination. 15
In
addition,
substantial
circumstantial
evidence
contradicts Tucker’s testimony that she decided to fire Jacobs
after learning that Jacobs had been sleeping on the job.
See
Reeves, 530 U.S. at 151 (stating that courts need not credit the
moving
party’s
evidence
when
it
impeached by the nonmoving party).
is
either
contradicted
or
First, even though Jacobs’s
alleged sleeping was purportedly central to Tucker’s decision to
fire her, Tucker did not discuss it in the termination meeting
or in responding to the EEOC.
first
time
deposition
during
discovery
Rather, the story emerged for the
testimony
contains
in
this
suit.
numerous
Second,
Tucker’s
inconsistencies.
For
example, she testified about a discussion that purportedly took
place during the termination meeting, but that discussion is
entirely
absent
from
the
unaltered
15
audio
recording
of
that
Jacobs also argues that the AOC’s evidence regarding the
justifications
for
firing
Tucker
is
self-defeating.
Specifically,
she
notes
that
although
all
of
Jacobs’s
supervisors testified that they learned of Jacobs’s performance
issues from co-worker Ashley English, English testified that she
never discussed Jacobs’s performance with them.
We conclude
that English’s testimony creates a genuine dispute of fact
regarding Jacobs’s alleged performance issues.
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meeting.
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Pg: 33 of 46
See Deville v. Marcantel, 567 F.3d 156, 165 (5th Cir.
2009) (per curiam) (“Summary judgment is not appropriate when
‘questions about the credibility of key witnesses loom large’
and the evidence could permit the trier-of-fact to treat their
testimony
with
‘skeptical
scrutiny.’”
(ellipsis
omitted)
(quoting Thomas v. Great Atl. & Pac. Tea Co., 233 F.3d 326, 331
(5th Cir. 2000))).
Third,
Radewicz--who
testified
that
she
observed
Jacobs
sleeping at her desk and called Tucker while she was away on
vacation to let her know--also testified that she was coached by
Tucker
regarding
specific
details
morning of her deposition.
16
of
her
testimony
on
the
Fourth and finally, Radewicz’s
testimony is significantly implausible.
Tucker testified that,
while she was on vacation, she asked to be called only in the
event of an emergency and that the only call she received was
from Radewicz.
jury
would
In order to credit Tucker and Radewicz, then, a
have
to
believe
that
the
only
“emergency”
that
occurred in the courthouse during Tucker’s three-week vacation
was
Jacobs’s
purportedly
sleeping
on
the
job.
We
therefore
conclude that Jacobs’s circumstantial evidence is sufficient to
16
Jacobs denies ever sleeping on the job, but has not
produced evidence directly contradicting Radewicz’s testimony
that she called Tucker during Tucker’s vacation.
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create a genuine dispute of fact as to whether she was fired for
sleeping on the job.
In sum, we find that a reasonable jury could conclude that
Jacobs
has
set
out
a
prima
facie
case
of
disability
discrimination and sufficient evidence of pretext to ultimately
prevail on her claim.
The district court thus erred in granting
summary judgment on Jacobs’s disability discrimination claim.
B.
We next consider whether we should affirm summary judgment
on Jacobs’s retaliatory discharge claim.
The ADA provides that
“no
any
person
shall
discriminate
against
individual”
for
engaging in protected opposition or participation activity.
U.S.C. § 12203(a).
she
engaged
in
42
Jacobs alleges that she was fired because
protected
activity;
namely,
requesting
an
accommodation for her social anxiety disorder.
“In order to prevail on a claim of retaliation, a plaintiff
must either offer sufficient direct and indirect evidence of
retaliation, or proceed under a burden-shifting method.”
v. FDIC, 257 F.3d 373, 391 (4th Cir. 2001).
Rhoads
A plaintiff need
not show that she is disabled within the meaning of the ADA. See
id.
Whether
a
plaintiff
proceeds
by
direct
evidence
or
McDonnell Douglas burden-shifting, she must show (i) that she
engaged
in
protected
activity
34
and,
(ii) because
of
this,
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(iii) her
Filed: 03/12/2015
employer
took
an
Pg: 35 of 46
adverse
employment
action
against
her. Id.
The
parties
do
not
elements are satisfied.
dispute
that
the
first
and
third
Jacobs clearly engaged in protected
activity by submitting a request for accommodation; and the AOC
clearly took an adverse employment action by firing her.
As set
forth
as
below,
disputed
issues
of
material
fact
exist
to
causation under the McDonnell Douglas framework.
Accordingly,
we
to
Jacobs’s
Jacobs’s
asserted
reverse
the
grant
of
summary
judgment
as
retaliatory discharge claim.
1.
In
assessing
causation,
we
begin
with
direct and indirect evidence of retaliation.
“To avoid summary
judgment, the plaintiff must produce direct evidence of a stated
purpose to discriminate and/or indirect evidence of sufficient
probative force to reflect a genuine issue of material fact.”
Rhoads, 257 F.3d at 391 (quoting Brinkley v. Harbour Recreation
Club, 180 F.3d 598, 607 (4th Cir. 1999)) (brackets and internal
quotation
marks
omitted).
“What
is
required
is
evidence
of
conduct or statements that both reflect directly the alleged
discriminatory attitude and that bear directly on the contested
employment decision.”
Id. at 391–92 (quoting Brinkley, 180 F.3d
at 607).
35
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First, Jacobs argues that Tucker’s refusal to train her for
positions other than the front counter, when Tucker had allowed
the 29 other deputy clerks to train for positions other than the
front
counter,
is
direct
evidence
that
Jacobs
was
treated
adversely because of her request for an accommodation.
undisputed
that
the
AOC
immediately to new hires.
that
other
deputy
clerks
did
not
provide
such
It is
training
Jacobs does not produce any evidence
of
comparable
training opportunities that she was denied.
tenure
were
given
Accordingly, this
argument is without merit.
Second, Jacobs argues that the actions taken by the AOC
after
she
submitted
her
accommodation
request
constitute
evidence that the AOC reacted to her request with retaliatory
animus.
For example, although her supervisor had granted all
her requests for leave before she sought an accommodation, her
request for leave after seeking the accommodation was denied. 17
Jacobs also cites as direct evidence of retaliatory animus a
letter Tucker wrote to a superior following the termination in
which Tucker said she had reservations about hiring Jacobs due
to her “mousiness.”
J.A. 689.
17
We note that, in addition to serving as evidence of
hostility, the denial of leave can itself be an adverse
employment action compensable under the ADA’s retaliation
provision. Wells v. Gates, 336 F. App’x 378, 383–384 (4th Cir.
2009) (per curiam).
36
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Considering
this
evidence
Pg: 37 of 46
as
a
whole,
we
find
that
no
reasonable jury could conclude on the basis of the purported
direct
and
indirect
evidence
that
Tucker
fired
retaliation for her request for accommodation.
Jacobs
in
Although Jacobs
provides some indirect evidence from which a factfinder might
infer animus, she has produced no direct evidence of retaliatory
(as
opposed
to
discriminatory)
animus.
Tucker’s
notes
and
statements during the termination meeting indicate that she may
have intended to fire Jacobs because she was disabled, but they
do not indicate that she intended to fire Jacobs in retaliation
for requesting an accommodation.
Jacobs’s purported direct and
indirect evidence is insufficient to survive summary judgment.
2.
However,
this
is
Jacobs’s retaliation claim.
survive
summary
judgment
not
the
end
of
our
analysis
of
We also consider whether Jacobs can
under
the
McDonnell
Douglas
burden-
shifting framework.
Under this method of proof, Jacobs “must
show
engaged
(1)
that
[s]he
in
protected
activity;
(2)
that
[her] employer took an adverse action against [her]; and (3)
that a causal connection existed between the adverse activity
and the protected action.”
employer
then
has
the
Haulbrook, 252 F.3d at 706.
burden
‘to
rebut
the
“The
presumption
of
retaliation by articulating a legitimate nonretaliatory reason
37
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for its actions.’”
Pg: 38 of 46
Rhoads, 257 F.3d at 392 (quoting Beall v.
Abbots Labs., 130 F.3d 614, 619 (4th Cir. 1997)).
The burden
then shifts back to the plaintiff to show that the proffered
reason is pretext.
“The plaintiff always bears the ultimate
burden of persuading the trier of fact that she was the victim
of retaliation.”
Id.
Jacobs has established the first two elements of the prima
facie case through undisputed evidence.
The AOC argues that
Jacobs has failed to establish causation because there is “no
evidence”
Jacobs,
that
that
Tucker
Jacobs
knew,
had
Appellees’ Br. at 43.
when
submitted
she
an
decided
to
terminate
accommodation
request.
As we discussed above, the record in
actuality contains ample evidence from which a reasonable jury
could conclude that Tucker learned of Jacobs’s request for an
accommodation before the termination meeting.
II.B.3.
Jacobs
We
was
therefore
terminated
accommodation
from
proceed
just
her
with
three
the
weeks
supervisors.
See supra Part
causation
after
This
inquiry.
requesting
close
an
temporal
proximity is sufficient to establish a disputed issue of fact as
to
the
causation
Haulbrook,
arguably
252
exists
element
F.3d
as
at
to
of
706
. . .
the
(“[A]
prima
facie
contested
[causation],
due
case.
issue
solely
See
of
to
fact
the
proximity in time of [the plaintiff’s] termination on November
38
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Filed: 03/12/2015
Pg: 39 of 46
25 and his assertion on November 4 of a right to accommodation
under the ADA.”).
From here, the burden-shifting inquiry proceeds just as it
did with respect to Jacobs’s disability discrimination claim.
For the reasons stated above in Part III.A.4, we find that a
reasonable
sufficient
jury
could
evidence
retaliation claim.
of
conclude
pretext
to
that
Jacobs
has
ultimately
set
prevail
on
out
her
Thus, the district court erred in granting
summary judgment on this claim.
C.
Finally,
we
consider
whether
we
should
affirm
judgment on Jacobs’s failure-to-accommodate claim.
summary
To establish
a prima facie case for failure to accommodate, Jacobs must show:
“(1) that [she] was an individual who had a disability within
the meaning of the statute; (2) that the employer had notice of
[her] disability; (3) that with reasonable accommodation [she]
could
perform
(4) that
the
the
essential
employer
functions
refused
to
make
of
the
such
position;
and
accommodations.”
Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013)
(brackets
and
ellipsis
omitted).
For
the
reasons
discussed
above, we find that Jacobs has established a genuine dispute of
fact regarding the first and second elements of the prima facie
case--that is, that she had a disability and that the AOC had
39
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notice of her disability.
Pg: 40 of 46
As to the fourth element, it is
undisputed that the AOC refused to make an accommodation for
Jacobs.
Could
The only remaining issue concerns the third element:
a
reasonable
jury
find
that
with
a
reasonable
accommodation, Jacobs could perform the essential functions of
the position of deputy clerk?
1.
We
start
by
determining
position of deputy clerk.
are essential.
the
essential
functions
of
the
Not all job requirements or functions
A job function is essential when “the reason the
position exists is to perform that function,” when there aren’t
enough employees available to perform the function, or when the
function is so specialized that someone is hired specifically
because of his or her expertise in performing that function.
C.F.R. § 1630.2(n)(2).
description
before
29
“[I]f an employer has prepared a written
advertising
or
interviewing
applicants
for
the job, this description shall be considered evidence of the
essential functions of the job.”
42 U.S.C. § 12111(8).
Other
relevant evidence can include “the employer’s judgment as to
which functions are essential,” “the amount of time spent on the
job performing the function,” “the consequences of not requiring
the incumbent to perform the function,” and the work experience
40
Appeal: 13-2212
of
Doc: 43
people
Filed: 03/12/2015
who
hold
the
Pg: 41 of 46
same
or
similar
job.
29
C.F.R.
§ 1630.2(n)(3). 18
We begin with the written job description for the position:
“[D]eputy clerks perform a variety of duties including: working
in
the
typing,
courtroom,
filing,
providing
cash
customer
receipting,
case
service,
entry,
indexing,
file
data
multi-
tasking and the ability to type 35-40 corrected wpm, and various
other tasks.”
J.A. 678.
“[P]roviding customer service” is only
one of the many duties that deputy clerks might perform.
We also consider the undisputed evidence in the record.
The AOC employed 30 deputy clerks.
regularly at the front counter.
Of these, only four worked
The others performed various
tasks, including intake, filing, data entry, mailing documents,
bookkeeping, and serving as a courtroom clerk.
Most new deputy
clerks started at the front counter, purportedly because the
front
counter
is
where
knowledge of the office.”
a
new
employee
J.A. 434.
can
“gain
the
most
However, some new deputy
clerks started in filing and were permitted to perform that task
without first training at the front counter.
See J.A. 274 (“The
best two places to start are filing and the front counter.”).
Deputy clerks were trained for other roles based on seniority.
18
Because the parties agree that the regulations are
instructive, we again assume their reasonableness and decline to
determine what level of deference, if any, they are due.
41
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J.A. 259 (“I worked at the front counter five days a week for
over one year before a new deputy clerk was hired and I was
moved off the front counter . . . .”).
The record contains ample evidence from which a reasonable
jury could conclude that working at the front counter was not an
essential function of the position of deputy clerk.
description
does
not
indicate
that
all
expected to work at the front counter.
deputy
The job
clerks
were
Fewer than 15% of the
office’s deputy clerks worked behind the front counter, and some
deputy clerks never performed this task.
Because most of the
deputy clerks were trained to work behind the front counter,
many
employees
were
available
to
perform
that
function.
Finally, the AOC has produced no evidence that mastery of the
front
desk
was
essential
or
that
Jacobs’s
no
longer
working
behind the front counter would negatively impact the office.
We
therefore find that Jacobs has established a genuine issue of
fact regarding whether working behind the front counter is an
essential function of the position of deputy clerk.
2.
We
now
accommodate:
turn
to
whether,
the
heart
with
a
of
a
reasonable
claim
for
failure
accommodation,
to
Jacobs
could perform the essential functions of the position of deputy
clerk.
Wilson, 717 F.3d at 345.
42
This inquiry proceeds in two
Appeal: 13-2212
Doc: 43
steps.
Jacobs
Filed: 03/12/2015
First,
was
the
reasonable?
Pg: 43 of 46
specific
Second,
accommodation
had
the
AOC
requested
granted
by
the
accommodation, could Jacobs perform the essential functions of
the position?
A
Id.
reasonable
accommodation
is
one
that
“enables
[a
qualified] individual with a disability . . . to perform the
essential
functions
§ 1630.2(o)(1)(ii).
of
[a]
position.”
29
C.F.R.
The statute expressly contemplates that a
reasonable accommodation may require “job restructuring.”
U.S.C. § 12111(9)(B).
42
Jacobs’s proposed accommodation was to
work fewer days at the counter and more days microfilming or
performing
other
deputy
clerk
tasks.
This
proposed
accommodation did not require the AOC to increase the workload
of Jacobs’s coworkers; Jacobs merely asked that her employer
change
which
deputy
clerk
was
assigned
to
which
task.
Cf.
Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 F. App’x 314,
323 (4th Cir. 2011) (noting that “an accommodation that would
require other employees to work harder is unreasonable”). 19
19
A
That Jacobs’s request would have necessitated a departure
from the office’s informal seniority system is of no moment.
All deputy clerks shared a common job title and description. In
the absence of evidence of a formal seniority policy, that
Jacobs’s proposed accommodation would require shifting a coworker with more seniority to a less desirable task does not
render it inherently unreasonable. Cf. EEOC v. Sara Lee Corp.,
237 F.3d 349, 354–355 (4th Cir. 2001) (where company’s formal
seniority policy which had been in place for 30 years required
43
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Pg: 44 of 46
reasonable jury could therefore conclude that Jacobs’s requested
accommodation was reasonable.
An
employer
is
not
required
to
grant
even
a
reasonable
accommodation unless it would enable the employee to perform all
of the essential functions of her position.
Jacobs argues that
a transfer away from the front desk would eliminate the cause of
her social anxiety--having to answer questions from strangers
face-to-face
all
day--and
reasonable expectations.
enable
her
to
meet
her
employer’s
The AOC argues that Jacobs was a poor
performer and therefore would have been unable to perform the
essential functions of the position even with the accommodation.
As we found above, there is a genuine dispute of fact as to
whether Jacobs was a poor performer.
Even assuming that Jacobs
actually microfilmed too slowly and pestered her coworkers by
asking for their help, a reasonable jury could conclude that
these
behaviors
were
manifestations
of
Jacobs’s
performance
anxiety and were unlikely to reemerge had the accommodation been
granted.
There
is
no
uncontradicted
evidence
that
Jacobs’s
social anxiety disorder interferes with her ability to file or
perform other administrative tasks.
We therefore conclude that
Jacobs has established a genuine dispute as to whether, with a
an employee to switch to a different shift, it was reasonable
for the company to enforce the seniority policy).
44
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reasonable accommodation, she could have performed all of the
essential functions of the position of deputy clerk.
3.
The ADA imposes upon employers a good-faith duty “to engage
[with their employees] in an interactive process to identify a
reasonable accommodation.”
Wilson, 717 F.3d at 346.
This duty
is triggered when an employee communicates her disability and
desire
for
an
accommodation--even
if
the
employee
identify a specific, reasonable accommodation.
employer
will
interactive
the
allow
position.
be
process
demonstrate
would
not
her
Id.
liable
if
the
existence
to
at
failure
employee
of
a
perform
347;
for
see
to
also
engage
Deily
in
the
fails
to
accommodation
essential
functions
v.
to
However, an
ultimately
reasonable
the
Id.
fails
Waste
that
of
Mgmt.
the
of
Allentown, 55 F. App’x 605, 607 (3d Cir. 2003) (citing Shapiro
v. Twp. of Lakewood, 292 F.3d 356, 360 (3d Cir. 2002)). Two of
our
sister
reasonable
circuits
have
accommodation
in
held
that
failure
a
meeting
in
to
which
“discuss
the
a
employer
takes an adverse employment action” against a disabled employee
is evidence of bad faith.
Rorrer v. City of Stow, 743 F.3d
1025,
(citing
1040
(6th
Cir.
2014)
EEOC
v.
Chem. Co., 570 F.3d 606, 622 (5th Cir. 2009)).
45
Chevron
Phillips
Appeal: 13-2212
Doc: 43
It
Kennedy,
is
undisputed
Excell,
accommodation
office.
Filed: 03/12/2015
and
request
Both
that
Pg: 46 of 46
each
of
Jacobs’s
Griffin--refused
with
Radewicz
her
and
until
Tucker
to
Tucker
supervisors--
discuss
Jacobs’s
returned
testified
that
to
the
Jacobs’s
supervisors had authority to reassign employees to other tasks
(and
therefore
Jacobs).
to
engage
in
the
interactive
process
with
The morning that Tucker returned to the office after a
three-week absence, she called Jacobs to her office and fired
her without first discussing her accommodation request.
From
these facts, a reasonable jury could easily conclude that the
AOC acted in bad faith by failing to engage in the interactive
process with Jacobs.
We
therefore
conclude
that
summary
judgment
is
not
warranted on Jacobs’s failure to accommodate claim.
IV.
For the foregoing reasons, we reverse in part the district
court’s
order
granting
summary
judgment
against
Jacobs
and
remand to the district court for trial of her ADA disability
discrimination, retaliation, and failure to accommodate claims.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED FOR TRIAL
46
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