Paul Lewis v. Sloan Gibson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:12-cv-01189-JAB-JEP Copies to all parties and the district court/agency. [999640587].. [15-1061]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1061

PAUL A. LEWIS,
Plaintiff – Appellant,
v.
SLOAN D. GIBSON,
Veteran Affairs,

Acting

Secretary

of

the

Department

of

Defendant – Appellee,
and
DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, SECRETARY
OF DEPARTMENT OF VETERAN AFFAIRS,
Defendants.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:12-cv-01189-JAB-JEP)

Submitted:

July 31, 2015

Decided:

August 14, 2015

Before SHEDD, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary March Williams Exum, THE EXUM LAW OFFICE, Asheville, North
Carolina, for Appellant. Joan B. Binkley, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Paul Lewis (“Appellant”) appeals the district court’s order
granting

the

motion

for

summary

judgment

filed

by

Sloane

D.

Gibson, Acting Secretary of the Department of Veterans Affairs
(“VA”),

and

complaint.

dismissing

Appellant’s

employment

discrimination

Appellant argues that the VA failed to reasonably

accommodate his medical disabilities and retaliated against him
for filing a complaint with the Equal Employment Opportunity
Commission (“EEOC”).
We

review

We affirm.

the

grant

of

summary

judgment

de

novo.

Cloaninger v. McDevitt, 555 F.3d 324, 330 (4th Cir. 2009).

All

facts and reasonable inferences are viewed “in the light most
favorable to the non-moving party.”

Dulaney v. Packaging Corp.

of Am., 673 F.3d 323, 330 (4th Cir. 2012).

Summary judgment is

only appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.”
allegations
evidence’

Fed. R. Civ. P. 56(a).
do
in

not

suffice,

support

of

nor
[the

“Conclusory or speculative
does

‘a

non-moving

mere

scintilla

party’s]

of

case.”

Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002) (quoting Phillips v. CSX Transp., Inc., 190 F.3d 285, 287
(4th Cir. 1999) (per curiam)).
Appellant first contends that the VA failed to reasonably
accommodate his disabilities.

The Rehabilitation Act prohibits
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federal

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agencies

from

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discriminating

against

a

qualified

individual “solely by reason of her or his disability.”

29

U.S.C. § 794(a).
To establish a claim under the Rehabilitation Act for a
failure to accommodate, a plaintiff must show that (1) he has a
disability; (2) his employer knew of the disability; (3) with
reasonable accommodations he is otherwise qualified to perform
the essential functions of the employment position in question;
and

(4)

his

accommodations.
345

(4th

employer

to

make

such

reasonable

See Wilson v. Dollar Gen. Corp., 717 F.3d 337,

Cir.

accommodate

refused

2013)

claim

(listing

brought

elements

pursuant

to

of
the

a

failure

Americans

to
with

Disabilities Act (“ADA”)); cf. Doe v. Univ. of Md. Med. Sys.
Corp., 50 F.3d 1261, 1264 n.9 (4th Cir. 1995) (explaining that
the

same

analysis

is

applied

discrimination claims).
individual

element.

to

ADA

and

Rehabilitation

Act

This dispute centers on the qualified
This

element

consists

of

two

considerations: whether the specific accommodation requested was
reasonable

and

whether,

if

the

requested

accommodation

was

provided, the plaintiff could perform the essential functions of
the position.

Jacobs v. N.C. Admin. Office of the Cts., 780

F.3d 562, 580 (4th Cir. 2015).
The

accommodations

reasonable.

He

first

requested

by

proposed

that

4

Appellant
DVAMC

were

not

decrease

its

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performance standards; but doing so would necessitate changing
the essential functions of his employment.

Courts have roundly

held that such requests are unreasonable.

See, e.g., Lucas v.

W.W.

Grainger,

Inc.,

257

F.3d

1249,

1260

(11th

Cir.

2001)

(“[E]mployers are not required to transform the position into
another one by eliminating functions that are essential to the
nature of the job as it exists.”); accord Fjellestad v. Pizza
Hut of Am., Inc., 188 F.3d 944, 950 (8th Cir. 1999).

He also

requested a reduced workload, but “an accommodation that would
require

other

employees

to

work

harder

is

unreasonable.”

Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 1121 n.3 (10th
Cir. 2004); accord

Bratten v. SSI Servs., Inc., 185 F.3d 625,

632 (6th Cir. 1999); Hammel v. Eau Galle Cheese Factory, 407
F.3d 852, 866-67 (7th Cir. 2005).

His request for an assistant

is likewise unreasonable because the Rehabilitation Act -- like
the ADA -- does not “require an employer to hire an additional
person to perform an essential function of a disabled employee’s
position.”

Martinson v. Kinney Shoe Corp., 104 F.3d 683, 687

(4th Cir. 1997).

Accordingly, we conclude that the district

court appropriately granted summary judgment as to Appellant’s
failure to accommodate claim.
Appellant’s remaining challenge is that the VA retaliated
against him for filing an EEOC complaint.

To prevail on a

retaliation claim, a plaintiff must either provide sufficient
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direct and indirect evidence of retaliation, or proceed under
the

familiar

burden-shifting

framework

Corp. v. Green, 411 U.S. 792 (1973).

of

McDonnell

Douglas

Cf. Rhoads v. FDIC, 257

F.3d 373, 392 (4th Cir. 2001).
Under the former avenue, a plaintiff must produce direct or
indirect evidence of a “stated purpose to discriminate . . . of
sufficient

probative

material fact.”

force

to

reflect

a

genuine

issue

of

Rhoads, 257 F.3d at 391 (quoting Brinkley v.

Harbour Recreation Club, 180 F.3d 598, 607 (4th Cir. 1999)).
“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).
Under the latter, a plaintiff must first establish a prima
facie case of retaliation by demonstrating “(1) that he engaged
in a protected activity; (2) that his employer took an adverse
employment action against him; and (3) that a causal connection
existed between the protected activity and the asserted adverse
action.”
2003).

King
If

the

v.

Rumsfeld,

plaintiff

328

F.3d

establishes

145,
a

150-51

prima

(4th

facie

Cir.

case

of

discrimination, the burden of production shifts to the defendant
to articulate a legitimate, nonretaliatory basis for the action.
See Laing v. Fed. Express Corp., 703 F.3d 713, 719 (4th Cir.
2013).

Notably, when the defendant proposes such a basis, “it
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is not our province to decide whether the reason was wise, fair,
or even correct, ultimately, so long as it truly was the reason
for the plaintiff’s termination.”

Id. at 722 (quoting Hawkins

v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000)).

If the

defendant meets this burden, the plaintiff must show that the
proffered reason is pretextual.

See id. at 719.

necessarily

evidence

required,

comparator

--

While not

“evidence

that

other employees who were similarly situated to the plaintiff
(but

for

the

protected

characteristic)

were

treated

more

favorably -- is “‘especially relevant’ to a showing of pretext.”
Id. (quoting McDonnell Douglas, 411 U.S. at 804).
We hold that there is insufficient evidence to sustain a
claim of retaliation under either approach.

Appellant offers no

direct

and

evidence

proximity

of

between

retaliatory

his

protected

motive,
activity

and

the

temporal

termination

is,

without more, insufficient to create a genuine issue of material
fact.

Even assuming that he could state a prima facie case of

retaliation, the VA offered a legitimate, non-retaliatory reason
for his termination: performance.
suggest

that

pretextual.
grant

the

the

VA’s

Appellant presents nothing to

proffered

basis

was

insincere

or

We thus agree with the district court’s decision to
VA’s

motion

for

summary

retaliation claim.

7

judgment

on

Appellant’s

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Accordingly,
dispense

with

contentions

are

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we

district

oral

affirm

the

argument

adequately

because

presented

in

court’s

the
the

facts

order.

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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