John Vannoy v. Federal Reserve Bank

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:13-cv-00797-JAG. [999871461]. [14-2375]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2375

JOHN VANNOY,
Plaintiff - Appellant,
v.
THE FEDERAL RESERVE BANK OF RICHMOND,
Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
John A. Gibney, Jr.,
District Judge. (3:13-cv-00797-JAG)

Argued:

March 24, 2016

Decided:

June 28, 2016

Before AGEE and WYNN, Circuit Judges, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation.

Affirmed in part, vacated in part, and remanded by published
opinion. Judge Agee wrote the opinion, in which Judge Wynn and
Judge Schroeder joined.

ARGUED: Mary Ann Kelly, THE LAW OFFICES OF MARY ANN KELLY,
Fairfax, Virginia, for Appellant. David E. Nagle, JACKSON LEWIS
PC, Richmond, Virginia, for Appellee.
ON BRIEF: Crystal L.
Tyler, JACKSON LEWIS PC, Richmond, Virginia, for Appellee.

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AGEE, Circuit Judge:
John Vannoy sued his former employer, the Federal Reserve
Bank of Richmond (“FRBR”), for interference and retaliation in
violation
U.S.C.

§

of

the

2601,

discriminatory
Disabilities

Family
et

and

seq.,

discharge

Act

and

in

(“ADA”),

Medical

Leave

failure

violation

42

U.S.C.

to

of
§

Act

(“FMLA”),

accommodate

the

12101,

Americans
et

29
and

with

seq.

The

district court granted summary judgment in FRBR’s favor as to
all of the claims.
For the reasons discussed below, we affirm the district
court’s judgment as to the FMLA retaliation claim and the ADA
claims.
as

to

However, because genuine issues of material fact exist
whether

providing

him

FRBR

interfered

defective

with

notice

Vannoy’s

that

FMLA

omitted

rights

by

his

right

to

reinstatement at the conclusion of the medical leave term, we
hold that summary judgment as to that claim was not warranted.
Accordingly,

we

vacate

that

part

of

the

district

court’s

judgment and remand for further proceedings as to Vannoy’s FMLA
interference claim.

I.

Factual and Procedural Background 1

1

Reviewing de novo the district court’s grant of summary
judgment to FRBR, we “view the facts and all justifiable
inferences arising therefrom in the light most favorable to”
(Continued)
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Vannoy worked for FRBR from 1994 until his termination on
December 21, 2010, at which time he held the position of Project
Construction Manager / Technical Services Director within FRBR’s
Facilities
Vannoy’s

Management
supervisors,

Department.
Robert

By

Minteer

the
and

summer

of

Mattison

2010,
Harris,

noticed Vannoy was having problems with his work and attendance.
In July 2010, Harris reported his concern that Vannoy may be
depressed to FRBR’s Medical Director, Dr. Victor Brugh.
Dr.

Brugh,

who

had

treated

Vannoy

for

depression

previously, was aware of Vannoy’s history of depression “going
way back,” and that Vannoy had taken antidepressant medications
“for a long time.”

J.A. 419-20. 2

As the Medical Director of the

Health Services Department, Dr. Brugh was responsible for core
aspects of FRBR’s FMLA and ADA compliance, including: evaluating
and treating employees; overseeing administration of short term
disability

and

ADA

benefits;

working

closely

with

human

resources on health and disability related benefits; overseeing
and reviewing applications for FMLA leave; and working with FRBR
departments

in

connection

with

employee

potentially related to health problems.

performance

issues

The record does not

Vannoy, the nonmoving party. Libertarian Party of Va. v. Judd,
718 F.3d 308, 312 (4th Cir. 2013).
This recitation of facts
conforms to that standard.
2 This opinion omits internal marks, alterations, citations,
emphasis, or footnotes from quotations unless otherwise noted.
3

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reflect that Dr. Brugh ever spoke with Vannoy about his rights
and responsibilities under the FMLA.
On September 23, 2010, Vannoy saw Mimi Kline, a licensed
professional

counselor,

depression”
program.”

and

noted

who
his

diagnosed

need

for

him

“an

with

“major

in-patient

30-day

J.A. 169.

Beginning on October 22 and lasting through November 15,
Vannoy
cleared
email.

had

several

informally

unscheduled
with

his

absences

supervisors

from
by

work,
text

which

he

message

or

The record does not indicate whether these absences were

to seek medical treatment.

However, the record does show that

Vannoy was admitted to St. Mary’s Hospital on November 10 for
psychiatric treatment.

His family informed Harris and Dr. Brugh

that Vannoy was in the hospital, and Dr. Brugh spoke directly
with

Vannoy

during

his

hospital

stay.

Vannoy’s

physicians

recommended that he enter a 30-day rehabilitation program for
treatment

of

depression

and

alcohol

dependency,

but

Vannoy

refused, expressing concern that taking additional time off from
work would result in termination.

Vannoy was discharged from

the hospital on November 13.
Around

that

time,

Vannoy

submitted

his

application

for

short term disability, which also functioned as a request for
FMLA leave.

To that application, Vannoy attached a physician’s

statement from his primary care doctor taking him out of work
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from November 10 to December 10.

Based on these documents, FRBR

determined and notified Vannoy that he was eligible for leave
under the FMLA through December 10.
The parties’ accounts diverge as to whether Vannoy received
sufficient

individualized

notice

of

his

responsibilities as required by the Act.

FMLA

rights

and

FRBR represents that

it sent Vannoy the applicable notice document on November 16,
but Vannoy asserts that he did not receive it.

In any event,

the notice FRBR claims to have sent omitted reference to job
protection rights, the precise information Vannoy contends he
needed

to

treatment

answer
of

his

his

concerns

depression

that

and

continued

alcoholism

absences

would

result

for
in

termination.
Fearful

of

losing

his

job,

Vannoy

reported

to

work

on

November 15 without a doctor’s note and well before the end of
his approved FMLA leave period.

FRBR sent Vannoy home with

instructions that he could not return to work until he obtained
a

release

from

his

physician.

Shortly

thereafter

Vannoy

provided FRBR a doctor’s note, allowing him to return to “full
work duty” as of November 15.

J.A. 203.

Vannoy returned to

work on November 16.
On November 18, Vannoy arranged a meeting with Minteer and
Harris to follow up about his recent hospitalization and ongoing
medical issues.

Apparently, the FMLA was not discussed during
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this meeting, though Vannoy states he was “reassured that [his]
job

was

not

in

jeopardy.”

J.A.

118.

Vannoy

contends

he

reiterated to his supervisors that he “wanted . . . to work with
them and to work with the bank to keep [his] job.”
On

November

30,

FRBR

assignment in Baltimore.

sent

Vannoy

on

a

Id.
three-day

work

Vannoy drove a company vehicle and

stayed in a hotel for that period at FRBR’s expense, but he did
not report to work on the project.
hazy

account

absence.

of

Vannoy’s

purported

The record provides only a
reason

for

the

three-day

Nonetheless, when Vannoy returned to FRBR’s Richmond

office, he was placed on administrative leave pending a decision
about his failure to communicate the unscheduled absence from
work while in Baltimore.

On December 16, Vannoy was placed on a

performance

plan,

improvement

which

contained

an

employee

portion that Vannoy was to complete by December 20.
On December 20, Vannoy informed his supervisors that he
would not be able to report to work that day.

Upon his return

to work the following day, Vannoy received an email from Harris
instructing him to complete and submit the employee portion of
the performance improvement plan that day.

Contending that he

was unable to complete the performance improvement plan, Vannoy
left work without authorization and went home.

FRBR terminated

Vannoy’s employment effective that day in a letter citing the
failure to properly communicate unscheduled time off from work
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and insubordinate behavior in leaving work despite instructions
to complete the performance improvement plan.
After

his

termination

and

following

exhaustion

of

his

administrative remedies, Vannoy filed a complaint in the United
States

District

Court

for

the

Eastern

District

of

Virginia

alleging FRBR violated his rights under the FMLA and the ADA.
FRBR moved for summary judgment under Rule 56 of the Federal
Rules of Civil Procedure.

The district court granted FRBR’s

summary judgment motion as to all claims, concluding that Vannoy
failed to give sufficient notice of his need for a medical leave
of absence and he was terminated for misconduct related to the
Baltimore trip.
Vannoy
granting

timely

summary

appeals

judgment

from
to

the

FRBR.

district
We

have

court’s

order

jurisdiction

to

review the district court’s final order under 28 U.S.C. § 1291.

II.

Analysis

We review a district court’s grant of summary judgment de
novo, applying the same standard as the district court.

Halpern

v. Wake Forest Univ. Health Scis., 669 F.3d 454, 460 (4th Cir.
2012).

Summary judgment is appropriate if “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 also

Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014).
7

“A

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dispute is genuine if a reasonable jury could return a verdict
for the nonmoving party.”
313.

Libertarian Party of Va., 718 F.3d at

“A fact is material if it might affect the outcome of the

suit under the governing law.”

Id.

In addition to construing

the evidence in the light most favorable to Vannoy, the nonmovant, we also draw all reasonable inferences in his favor.
See Halpern, 669 F.3d at 460.

A.
Vannoy

argues

FMLA Interference

that

FRBR

failed

to

provide

him

individualized notice of his job protection rights as required
by the FMLA.

This omission, Vannoy posits, caused prejudice to

him as it affected his ability to take the medical leave he
claims to have needed.

Vannoy also states, without elaboration,

that he did not receive the notice from FRBR that FRBR says it
sent him.

FRBR represents that it sent Vannoy individualized

notice by email on November 16, 2010 and, in any event, it
granted Vannoy’s medical leave request and provided notice that
he had 480 hours of FMLA leave available.
The FMLA entitles eligible employees to take twelve weeks
of leave during any twelve-month period for a “serious health
condition

that

makes

functions” of his job.

the

employee

unable

to

perform

29 U.S.C. § 2612(a)(1)(D).

the

Following

this leave period, an employee has the right to reinstatement to
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his or her original position or an equivalent post.
2614(a)(1).
interfere

It is unlawful under the FMLA for an employer to

with

an

employee’s

exercise

exercise any right under the statute.
The

Id. §

FMLA

requires

that

of

or

the

attempt

to

Id. § 2615(a)(1).

employers

provide

an

individual,

written notice to affected employees that an absence qualifies
under the FMLA.

See 29 C.F.R. § 825.300. 3

There are two types

of individualized notice that the employer must give an employee
who

may

be

entitled

to

FMLA

leave:

a

“rights

and

responsibilities notice,” id. § 825.300(c); and a “designation
notice,” id. § 825.300(d).
rights

and

sufficient.

responsibilities

notice

from

FRBR

was

legally

And if a notice violation occurred, the “FMLA’s

comprehensive

remedial

showing

the

that

At issue in this case is whether the

mechanism”

violation

grants

prejudiced

no

relief

Vannoy.

absent

Ragsdale

Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002).

a
v.

Thus, if

FRBR violated the FMLA’s notice requirements, and Vannoy can
show prejudice deriving from that violation, he has stated a
claim for interference.

3

Unless otherwise indicated, all citations to the Code of
Federal Regulations are to the version in effect at the time the
described events took place.
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1.
In

the

FMLA

rights

and

responsibilities

notice,

“[e]mployers shall provide written notice detailing the specific
obligations of the employee and explaining any consequences of
failing to meet these obligations.”

29 C.F.R. § 825.300(c)(1).

“If the leave has already begun, the notice shall be mailed to
the

employee’s

include,”

address

among

of

other

record.”
things,

Id.
the

Such

notice

employee’s

“must

right

to

“restoration to the same or an equivalent job upon return from
FMLA leave.”

Id. § 825.300(c)(1)(vi).

The Department of Labor

provides a prototype notice of rights and responsibilities for
employers to use to ensure compliance.
The

purpose

of

the

employer

Id. § 825.300(c)(6).

notice

requirements

“is

to

ensure that employers allow their employees to make informed
decisions about leave.”

Conoshenti v. Pub. Serv. Elec. and Gas

Co., 364 F.3d 135, 144 (3d Cir. 2004).

That purpose is thwarted

when “the employee has not received the statutory benefit of
taking

necessary

employment,

under

leave

with

proscribed

the

reassurance

conditions,

will

h[im] when []he is able to return to work.”
violations

of

interfering
C.F.R.

§

the

with”

Act
the

825.220(b).

or

of

exercise
An

FMLA

these
of

an

that

be

Id.

waiting

notice

violation

for

Thus, “[a]ny

regulations
employee’s

h[is]

constitute

rights.

29

can

an

be

actionable interference claim for which an employee may recover,
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so long as he makes a showing of prejudice flowing from the
violation.

Ragsdale,

535

U.S.

at

89

(holding

employee

must

“ha[ve] been prejudiced by the violation” to obtain relief).
In

the

instant

case,

the

notice

FRBR

purportedly

sent

failed to inform Vannoy of his right to job restoration at the
conclusion

of

regulations,
reinstatement

his
a

medical

statement
must

be

responsibilities notice.

leave
of

the

included

term. 4

Under

employee’s
in

the

right

the
to

rights

FMLA
job
and

See 29 C.F.R. § 825.300(c)(1)(vi).

4

Vannoy asserts in a single sentence in his opening brief
that he never received the FMLA rights and responsibilities
notice FRBR purportedly sent, and that he first saw it in
discovery in this litigation.
While it is unclear whether he
presented this contention below, the district court did not
address it in its opinion. A plaintiff’s assertion that he did
not receive notice that his leave was designated as FMLAqualifying could suffice in some circumstances to create a
genuine issue of material fact as to whether an employer
interfered with his rights under the FMLA.
See Lupyan v.
Corinthian Colleges, Inc., 761 F.3d 314, 322-23 (3d Cir. 2014)
(engaging in a lengthy discussion of the “mailbox rule” and
concluding the plaintiff’s positive denial of receipt of FMLA
notice sufficed to create an issue of fact for the jury); but
see Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 452-53 (4th
Cir. 2007) (recognizing a presumption that an addressee receives
letters of notice mailed to him in the bankruptcy context). We
need not resolve this undeveloped argument, which the district
court did not address in the first instance.
The FMLA
interference claim is resolved here for summary judgment
purposes as the notice FRBR claims to have sent raises genuine
issues of material fact as to prejudice.
See Walker v. Prince
George’s Cty., 575 F.3d 426, 429 n.* (4th Cir. 2009) (“Judges
are not like pigs, hunting for truffles buried in briefs.”).
Nevertheless, the district court may consider Vannoy’s claim
that he did not receive the notice document from FRBR in the
first instance upon remand to the extent it is determined that
Vannoy has properly raised it.
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FRBR

Filed: 06/28/2016

points

to

no

Pg: 12 of 21

evidence

in

the

record

that

received the required job reinstatement information.

Vannoy
It does

not contest that the only notice document in the record fails to
show notice of Vannoy’s job restoration rights.

Therefore, we

conclude that Vannoy established as fact, for purposes of FRBR’s
summary judgment motion, that FRBR’s notice did not comply with
the regulatory requirement of 29 C.F.R. § 825.300(c)(vi).

2.
Our inquiry, however, does not end with the determination
that a violation of the FMLA notice provisions occurred.

The

FMLA “provides no relief unless the employee has been prejudiced
by

the

violation.”

accordingly

must

Ragsdale,

establish

535

that

he

U.S.

was

at

89.

prejudiced

Vannoy
by

FRBR’s

failure to provide notice of his right to job restoration.
Prejudice
plaintiff

may

received

be
the

gleaned

from

required

evidence

(but

that

omitted)

had

the

information

regarding his FMLA rights, he would have structured his leave
differently.

Lupyan, 761 F.3d at 324; Downey v. Strain, 510

F.3d 534, 537 (5th Cir. 2007) (finding prejudice where evidence
showed employee “would have postponed her knee surgery to a time
when

it

would

not

have

caused

her

to

exceed

her

FMLA

allowance”); c.f. Dorsey v. Jacobson Holman, PLLC, 476 F. App’x
861, 862 (D.C. Cir. 2012) (concluding plaintiff could not show
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prejudice where she “never returned to work” and “provides no
record evidence whatsoever that she could have structured her
leave differently”).
The record in this case contains sufficient evidence to
avoid summary judgment to FRBR that Vannoy – who returned to
work prior to the expiration of the medical leave he initially
requested – would have structured his leave differently had he
known that his job was protected.
medical

leave

from

November

10

Vannoy initially requested
to

December

10,

2010,

accordance with the physician’s note he provided FRBR.
leave was approved.

in
That

However, Vannoy did not take the month-long

leave term that he requested.

Instead, he returned to work

early and FRBR told him he would be permitted to work only after
he provided a physician’s note verifying he could resume work.
Vannoy contends that had he known of his right to reinstatement
at the conclusion of leave, he would have taken the full 30-day
leave of absence set out in his initial FMLA application to
obtain the inpatient treatment he claims to have needed.

FRBR

contests this evidence and offered its own evidence.
However, Vannoy’s testimony on this point is unequivocal:
I think [a notice of job protection rights] would have
made a huge difference because I wouldn’t have been so
fearful of losing my job and I would have known I
could have gotten help and that I had the support of
the bank and that they wanted me to get well.
And I
could have gone to treatment, I could have gotten

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help.
And I could have come back and I could have
continued to be an excellent employee.
J.A. 305.

When asked again whether knowing that his job would

be there when he returned for medical leave mattered, Vannoy
reiterated

that

it

“would

have

made

a

huge

difference.

Absolutely, I believe I would have” gone to treatment.
305-06.

The

supporting

testimony

from

Vannoy’s

family

J.A.
is

consistent with his testimony that he would have taken the full
amount of his requested medical leave had he known his job was
protected.

Indeed, after his termination, Vannoy completed a

comprehensive inpatient treatment program.
Assessment of the credibility of these statements, and any
countervailing evidence, rests squarely within the purview of
the trier of fact.

See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986) (noting credibility determinations should
not be made by the district court at summary judgment).

If, for

example, a jury accepts Vannoy’s evidence, it could conclude
that Vannoy demonstrated he was prejudiced by FRBR’s failure to
provide him with the requisite notice and, thus, FRBR interfered
with his rights under the FMLA.

See Lupyan, 761 F.3d at 323-24

(holding plaintiff could demonstrate prejudice even though she
had “received all of the leave she was entitled to under the
FMLA”).

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these

reasons,

we

Pg: 15 of 21

hold

that

summary

judgment

was

foreclosed because a genuine issue of material fact exists as to
whether

FRBR’s

failure

to

comply

requirements prejudiced Vannoy.
in

granting

summary

judgment

with

the

FMLA’s

notice

The district court thus erred
to

FRBR

on

Vannoy’s

FMLA

interference claim. 5

5

Without addressing the contents of the deficient notice,
the district court reasoned that Vannoy’s FMLA interference
claim failed because FRBR approved his request for medical
leave. We disagree. The fact that FRBR approved Vannoy’s FMLA
leave does not automatically foreclose his interference claim.
This Court recognized that precept recently in Adams v. Anne
Arundel County Public Schools, 789 F.3d 422, 427 (4th Cir.
2015). An FMLA interference claim “permit[s] a court to inquire
into matters such as whether the employee would have exercised
his or her FMLA rights in the absence of the employer’s
actions.” Id. at 427. Although the plaintiff in Adams received
his full entitlement of FMLA leave, the Court proceeded to
ascertain whether his employer had nevertheless interfered with
his FMLA rights “in a variety of ways that stopped short of
actually denying him leave.”
Id.
Finding no evidence to
support the claim of interference in that record, the Court
affirmed the district court’s grant of summary judgment for the
employer.
Vannoy presents a different case. Unlike the plaintiff in
Adams, Vannoy did not take his full FMLA leave entitlement, but
contends he would have taken additional medical leave had he
received the job reinstatement notice.
Vannoy’s unconditional
testimony is that he would have structured his leave differently
- that he would have taken an extended period of medical leave
so that he could go to inpatient treatment - had he known of his
right to reinstatement.
For summary judgment purposes, that
evidence suffices to create a genuine issue of material fact as
to whether FRBR interfered with Vannoy’s FMLA rights.
See
Ragsdale, 535 U.S. at 91 (“[The] purpose of [an interference
claim] is to permit a court to inquire into matters such as
whether the employee would have exercised his or her FMLA rights
in the absence of the employer’s actions.”); Lupyan, 761 F.3d at
323 (holding plaintiff, who was afforded her full entitlement of
(Continued)
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B.

Pg: 16 of 21

FMLA Retaliation

In addition to claiming FRBR interfered with his notice
rights under the FMLA, Vannoy contends that FRBR terminated him
in retaliation for taking FMLA-qualifying absences.

He argues

that once FRBR became aware of the extent of his illness and his
ongoing need for intermittent FMLA leave, it fired him.

Vannoy

posits that the six-week timeframe between his initial request
for medical leave and subsequent termination supports his view.
FRBR responds that Vannoy failed to demonstrate any causal link
between

his

protected

activity

and

later

termination.

In

addition, FRBR argues the six-week timeline does not evince a
causal nexus, but actually negates it.

Moreover, FRBR contends

it had no notice that Vannoy continued to suffer from depression
and alcoholism because he gave vague and conflicting reasons for
his

absences.

legitimate,

And

finally,

non-retaliatory

FRBR

reason

argues
for

any

it

has

adverse

offered

a

employment

action against Vannoy, and there is no evidence of pretext.
The
employees

FMLA
from

provides

proscriptive

discrimination

or

rights

retaliation

their substantive rights under the FMLA.”
Inc.,

558

F.3d

284,

294

(4th

Cir.

2009).

“that
for

protect

exercising

Dotson v. Pfizer,
FMLA

retaliation

FMLA leave, could still show prejudice by demonstrating that
“had she been properly informed of her FMLA rights, she could
have structured her leave differently”).
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claims may rest on circumstantial evidence evaluated under the
burden-shifting framework set out in McDonnell Douglas Corp. v.
Green,

411

U.S.
“must

retaliation

792

(1973).

first

An

make

a

FMLA

prima

plaintiff

facie

claiming

showing

that

he

engaged in protected activity, that the employer took adverse
action against him, and that the adverse action was causally
connected to the plaintiff’s protected activity.”

Yashenko v.

Harrah’s NC Casino Co., LLC, 446 F.3d 541, 551 (4th Cir. 2006).
Once

the

plaintiff

proffers

evidence

establishing

his

prima

facie case, and the employer offers a non-retaliatory reason of
the

adverse

action,

establishing

that

the

the

plaintiff

employer’s

pretext for FMLA retaliation.”

“bears

proffered

the

burden

of

explanation

is

Id.

We assume - without deciding - that Vannoy can establish a
prima facie case for FMLA retaliation.

Nonetheless, he cannot

prevail because FRBR has proffered overwhelming evidence that it
terminated Vannoy because of his misconduct, about which there
are no material factual disputes, and the record contains no
evidence remotely suggestive of pretext.
The FMLA does not prevent an employer from terminating an
employee

for

behavior.
(4th

poor

performance,

misconduct,

or

insubordinate

See Calhoun v. Dep’t. of Labor, 576 F.3d 201, 214

Cir.

instructions

2009)
was

(holding

failure

insubordinate
17

to

behavior

follow
that

supervisor’s

amounted

to

a

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legitimate,

Filed: 06/28/2016

non-retaliatory

Pg: 18 of 21

reason

for

adverse

employment

action); Throneberry v. McGehee Desha Cty. Hosp., 403 F.3d 972,
977 (8th Cir. 2005) (“The FMLA simply does not force an employer
to retain an employee on FMLA leave when the employer would not
have retained the employee had the employee not been on FMLA
leave.”).

FRBR’s

legitimate,

terminating

Vannoy

include

non-discriminatory

his

misconduct

in

reasons

for

Baltimore,

his

failure to communicate properly about unscheduled absences, and
his failure to complete the employee portion of the performance
improvement plan.

Vannoy does not dispute that the Baltimore

incident occurred, that he was absent without authorization from
work

numerous

times

in

2010,

and

that

he

failed

to

timely

complete his obligations under the performance improvement plan.
Vannoy instead speculates that FRBR’s decision to terminate
him was pretextual, but he makes no evidentiary showing in that
regard.
and

“[A] plaintiff’s own assertions of discrimination in

of

evidence

themselves
of

discharge.”

legitimate

where

there

insufficient

to

counter

non-discriminatory

substantial

reasons

for

a

Dockins v. Benchmark Commc’ns, 176 F.3d 745, 749

(4th Cir. 1999).
legitimate,

are

It is not our role to second-guess FRBR’s

non-discriminatory
is

nothing

retaliatory animus.

in

bases
the

for

record

terminating
before

us

Vannoy
evincing

See Feldman v. Law Enf’t Assocs. Corp., 752

F.3d 339, 348 (4th Cir. 2014) (explaining that we do not “sit as
18

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Pg: 19 of 21

a kind of super-personnel department weighing the prudence of
employment decisions”).

To the contrary, the record supports

FRBR’s argument that it terminated Vannoy for the legitimate and
documented job performance failures previously noted.
Vannoy’s
Accordingly,

FMLA
the

retaliation

district

court

therefore

claim

fails. 6

granted

summary

properly

judgment to FRBR as to this claim.

C.

ADA Claims

Vannoy also appeals from the district court’s decision that
he

had

no

valid

claim

that

FRBR

failed

to

accommodate

his

disabilities and discriminated against him in violation of the
ADA.

As with Vannoy’s FMLA retaliation claim, the ADA does not

require an employer to simply ignore an employee’s blatant and
persistent misconduct, even where that behavior is potentially
tied to a medical condition.

Jones v. Am. Postal Workers Union,

192 F.3d 417, 429 (4th Cir. 1999) (holding the ADA does not
“require an employer to ignore such egregious misconduct by one
of

its

employees,

even

employee’s disability”);

if

the

misconduct

was

caused

by

the

Martinson v. Kinney Shoe Corp., 104

6

To the extent Vannoy contends that his misconduct should
be excused because it is related to the health condition for
which he required FMLA leave, his argument lacks merit. “While
absences for treatment of alcoholism are protected by the FMLA,
absences caused by the use of alcohol are not.” Scobey v. Nucor
Steel-Ark., 580 F.3d 781, 788 (8th Cir. 2009).
19

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F.3d 683, 686 n.3 (4th Cir. 1997) (“Misconduct—even misconduct
related

to

a

disability—is

not

itself

a

disability,

and

an

employer is free to fire an employee on that basis.”); see also
29 C.F.R. § 1630.16(b)(4) (“A covered entity . . . [m]ay hold an
employee who engages in the illegal use of drugs or who is an
alcoholic to the same qualification standards for employment or
job performance and behavior to which the entity holds its other
employees, even if any unsatisfactory performance or behavior is
related to the employee’s drug use or alcoholism.”).

Vannoy’s

ADA discriminatory termination claim fails for the same reasons
that his FMLA retaliation claim lacked merit.
Further, as to Vannoy’s ADA failure to accommodate claim,
the district court’s grant of summary judgment to FRBR was not
erroneous.
difficult

As
to

the

imagine

district
an

court

employer

aptly

trying

noted,

harder

to

“[i]t

is

help

an

employee to succeed.”

Vannoy v. Fed. Reserve Bank of Richmond,

No.

WL

3:13-CV-797,

2014).

2014

6473704,

at

*5

(E.D.

Va.

Nov.

18,

We therefore agree with the district court that even

taking the facts and all reasonable inferences in his favor,
Vannoy’s ADA claims cannot survive summary judgment. 7

7

Vannoy also appeals the district court’s denial of his
motion for a protective order in connection with subpoenas by
FRBR seeking various post-termination employment records. Based
on the record in this case, we conclude that the district court
did not abuse its discretion in denying the discovery motion.
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III. Conclusion
For these reasons, we affirm the judgment of the district
court as to Vannoy’s FMLA retaliation claim and ADA claims.

We

vacate the grant of summary judgment as to Vannoy’s claim that
FRBR

interfered

with

his

FMLA

rights

by

failing

to

provide

sufficient notice and remand for further proceedings as to that
claim.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

21