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UNPUBLISHED PER CURIAM OPINION filed.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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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