Lamb v. Nickels
Filing
69
MEMORANDUM OPINION. Signed by Judge Paula Xinis on 12/7/2018. (km4s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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JERRY GORALSKI LAMB,
*
Plaintiff,
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v.
Civil Action No. PX-16-2705
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RICHARD V. SPENCER,
SECRETARY OF NAVY
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Defendant.
*
******
MEMORANDUM OPINION
Pending before the Court is Defendant Richard Spencer, Secretary of the Navy’s motion
to dismiss the Second Amended Complaint or, in the alternative, for summary judgment. ECF
No. 47. Plaintiff Jerry Lamb (“Lamb”) opposes the motion. ECF No. 63. The Court now rules
because no hearing is necessary. See D. Md. Loc. R. 105.6. Upon consideration of the parties’
briefing and the evidence in the record, the Court grants Defendant’s motion.
I.
Factual Background
Lamb was employed by the Navy and Naval Air Systems Command (collectively, “the
Agency”) as a Contracts Specialist from 2009 until his termination on August 17, 2015. ECF
No. 41 ¶¶17, 52. Lamb seeks this Court’s review of the Merit Systems Protection Board’s
(“MSPB”) affirmance of the Agency’s decision to terminate his employment. From the outset of
his employment with the Agency, Lamb suffered from back and knee problems, and has
struggled with anxiety and depression. Id. ¶¶18,19. In addition, Lamb’s desk was placed in an
area inaccessible by elevator and directly under a vent, causing him severe allergies. Id. ¶¶20,
24. Lamb’s back and knee pain was exacerbated by having to climb the stairs to his desk each
day, and by a desk chair that did not provide proper support. Id. ¶¶21-23.
1
On January 29, 2015, Lamb met with his then-supervisor and prepared a request for
reasonable accommodation, listing among suggested options a lateral transfer within or outside
the Agency. AR01520-22.1 Lamb did not request leave as an accommodation. Id. The parties
disagree as to what happened next. Lamb maintains that he notified his supervisor later in
February that he would need leave for treatment related to his back problems, as well as his
anxiety and depression. Id. ¶30. Lamb submits that his supervisor assented, and Lamb provided
medical documentation for his leave and accommodation request on February 23, 2015. Id.
¶¶30, 31. The Agency asserts that Lamb never provided his supervisor with the requested
medical documentation. ECF No. 47-1 at 4. Ultimately, it appears that Lamb submitted a single
page record documenting an emergency room visit on February 6, 2015.2 AR00724. The record
was otherwise devoid of information supporting an extended leave request. AR01792.
The parties agree that on March 6, 2015, Lamb was assigned to a new supervisor,
Terrence O’Connell, and on March 9, Lamb left work to begin his treatment. ECF No. 41 ¶¶32,
33. On March 14, 2015, O’Connell emailed Lamb, expressing his concern that Lamb did not
have enough sick leave to cover this time away from work. O’Connell also told Lamb to submit
medical documentation supporting the requested leave when Lamb returned to work on March
26, 2015. Id. ¶35, AR00614. Lamb did not return to work as planned, however, because he was
in a car accident shortly before his scheduled return. Id. ¶38. Lamb then submitted a Family
Medical Leave Act (“FMLA”) request for leave taken in March 2015. Id. ¶43, AR01815.
O’Connell once again requested documentation in support of the requested leave but Lamb never
1
The administrative record of the MSPB case file was filed with the Court in paper format under seal. The
Court cites to the administrative record by its pre-marked Bates numbers beginning with the prefix “AR.”
2
Lamb provided some additional documentation much later, when opposing his removal. AR00722.
2
submitted any medical support to O’Connell. AR00616. Rather, Lamb sent O’Connell via
Federal Express a package of purported medical records which instead included only three blank
sheets of paper. AR00799-803. No other evidence substantiates Lamb having submitted the
requested documentation to O’Connell. O’Connell accordingly coded Lamb’s days as Absent
Without Leave (“AWOL”). ECF No. 41 ¶46.
Lamb emailed O’Connell on April 22, 2015, asking permission to use annual leave time
to cover his absence if his FMLA request was not approved, but O’Connell denied the request
noting that Lamb’s division could not spare his position for the requested length of time.
AR1097. In addition, the operative policy required that any requested sick leave lasting longer
than three days be accompanied by documentary medical supporting evidence. AR01139. At
the end of April 2015, Lamb did not return to work for health-related reasons. ECF No. 41 ¶50.
On or about May 14, 2015, O’Connell filed a Proposed Action for Removal against Lamb based
on the coding of Lamb’s medical leave from March to May as AWOL for a total of 43 days. Id.
¶51. On August 17, 2015, Lamb’s employment was terminated. Id. ¶52.
II.
Procedural Background
On August 20, 2015, Lamb appealed his removal from the Agency with the MSPB. ECF
No. 23-23. The MSPB held a two-day hearing, at which Lamb argued that his absences were
necessitated by various medical conditions which the Agency failed to accommodate. Id. at 4.
Specifically, Lamb cited his requests for a lateral transfer, ergonomic seating and to move his
desk away from the vent. Id. at 4, 19. The Agency countered with evidence regarding Lamb’s
failure to provide proper leave requests and whether Lamb’s supervisors had received the
requests. Id. at 7-17.
3
The MSPB issued its Initial Decision on February 11, 2016, finding that the Agency had
properly considered Lamb as AWOL and Lamb had “failed to prove any of his affirmative
defenses . . . by preponderant evidence.” ECF No. 23-23 at 34. Lamb appealed this decision to
the Equal Employment Opportunity Commission Office of Federal Operations (“EEOC OFO”),
which affirmed the MSPB’s decision.3 ECF No. 23-24.
Lamb had earlier filed a separate formal complaint with the EEOC on July 16, 2015.
ECF No. 23-16. This complaint alleged disability discrimination as well as retaliation for
Lamb’s filing of an earlier EEO complaint in 2014.4 Id. Lamb requested a hearing, and the
complaint was assigned to an EEOC Administrative Judge who issued a Scheduling and
Discovery Order on August 16, 2016. ECF No. 47-2. However, after Lamb failed to appear at a
deposition and a status conference, the Administrative Judge dismissed the request for a hearing
with prejudice, citing Lamb’s “repeated noncompliance.” Id. The EEOC case was then
remanded to the Agency to issue a Final Agency Decision, pursuant to 29 C.F.R. § 1614.110(b).
The Agency thereafter issued its Final Agency Decision, finding that the Agency did not
discriminate or retaliate against Lamb. ECF No. 47-3. Lamb’s appeal on the Final Agency
Decision is still pending. See ECF No. 47-1 at 11.
On July 27, 2016, Lamb filed this current action in this Court appealing the MSPB’s
decision only. ECF No. 1. Lamb more particularly alleges that the MSPB erred because the
3
The EEOC OFO also gave Lamb notice that the Commission’s decision was final, “and there is no
further right of administrative appeal from the Commission’s decision,” but that Lamb could pursue an appeal of the
MSPB decision in the appropriate United States District Court. ECF No. 23-24 at 6; see also 29 C.F.R. § 1614.310.
4
Although the subject matter of these claims appears to overlap, the claims are discrete, for the MSPB
may only review “mixed case” discrimination claims when the claims also involve an adverse action appealable to
the MSPB, such as removal. 5 U.S.C. § 7512; Bonds v. Leavitt, 629 F.3d 369, 378 (4th Cir. 2011). Lamb’s EEOC
complaint does not challenge his removal and does not appear to be a “mixed case” complaint. The Court treats the
EEOC claim as a separate matter and not covered by his MSPB case. See 29 C.F.R. § 1614.302(b) (“An aggrieved
person may initially file a mixed case complaint with an agency . . . or an appeal on the same matter with the MSPB
. . . but not both.”). See also Abraham v. Burwell, No. 15-1815, 2016 WL 6462072, at *3 (D. Md. Oct. 31, 2016).
See also AR00085 (Lamb’s statement to the MSPB Administrative Judge that he did not move to amend his existing
EEO complaint to include his removal action).
4
Agency discriminated against him on account of his disability, failed to accommodate his
disability, and retaliated against him for requesting accommodation, in violation of the
Rehabilitation Act, 29 U.S.C. § 791 (“Rehab Act”), and the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101. ECF No. 41 ¶¶53-82. Lamb also alleges that the Agency violated
the FMLA by interfering with his request for FMLA leave and terminating him in retaliation for
attempting to assert his FMLA rights. Id. ¶¶83-96.
The Agency now moves to dismiss under Federal Rule of Civil Procedure 12(b)(1) the
Second Amended Complaint for lack of subject matter jurisdiction, arguing that the ADA and
FMLA do not provide Lamb with a private right of action and that this Court lacks jurisdiction
over Lamb’s FMLA retaliation and disability accommodation claims because Lamb failed to first
exhaust the claims before the MSPB. On the remaining claims, the Agency moves to dismiss or
alternatively, for summary judgment in its favor. ECF No. 47.
III.
Standard of Review
Generally, “questions of subject matter jurisdiction must be decided ‘first, because they
concern the court’s very power to hear the case.’” Owens–Illinois, Inc. v. Meade, 186 F.3d 435,
442 n.4 (4th Cir. 1999) (quoting 2 James Wm. Moore, et al., Moore’s Federal Practice § 12.30[1]
(3d ed. 1998)). The plaintiff bears the burden of proving that subject matter jurisdiction properly
exists in federal court. See Evans v. B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d
642, 647 (4th Cir. 1999). At the motion to dismiss stage, “the district court is to regard the
pleadings’ allegations as mere evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for summary judgment.” Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see also
Evans, 166 F.3d at 647. A court should grant a Rule 12(b)(1) motion “if the material
5
jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of
law.” Evans, 166 F.3d at 647.
Summary judgment is appropriate when the Court, construing all evidence and drawing
all reasonable inferences in the light most favorable to the non-moving party, finds no genuine
dispute exists as to any material fact, thereby entitling the movant to judgment as a matter of law.
Fed. R. Civ. P. 56(a); see In re Family Dollar FLSA Litig., 637 F.3d 508, 512 (4th Cir. 2011).
Summary judgment must be granted “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “In
responding to a proper motion for summary judgment,” the opposing party “must present
evidence of specific facts from which the finder of fact could reasonably find for him or her.”
Venugopal v. Shire Labs., 334 F. Supp. 2d 835, 840 (D. Md. 2004), aff’d sub nom. Venugopal v.
Shire Labs., Inc., 134 F. App’x 627 (4th Cir. 2005) (citing Anderson v. Liberty Lobby, 477 U.S.
242, 252 (1986); Celotex, 477 U.S. at 322–23)). Genuine disputes of material fact are not
created “through mere speculation or the building of one inference upon another.” Othentec Ltd.
v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th
Cir. 1985)). Where a party’s statement of a fact is “blatantly contradicted by the record, so that
no reasonable jury could believe it,” the Court credits the record. Scott v. Harris, 550 U.S. 372,
380 (2007).
IV.
Analysis
The Civil Service Review Act (“CSRA”) “provides the exclusive remedy for federal
employees seeking to challenge adverse employment actions taken against them.” Ward v. U.S.
Dep’t of Commerce, No. GJH-15-817, 2016 WL 4099071, at *2 (D. Md. Aug. 2, 2016),
6
reconsideration denied, No. GJH-15-817, 2017 WL 57781 (D. Md. Jan. 4, 2017), aff’d sub nom.
Ward v. United States Dep’t of Commerce, 705 F. App’x 179 (4th Cir. 2017). A qualifying
federal employee may contest an agency’s removal action before the MSPB, which is authorized
to order relief to prevailing employees. Elgin v. Dep’t of Treasury, 567 U.S. 1, 6 (2012). The
MSPB is an independent, quasi-judicial federal administrative agency established to review civil
service decisions. Khoury v. Meserve, 268 F. Supp. 2d 600, 610 (D. Md. 2003), aff’d, 85 F.
App’x 960 (4th Cir. 2004). When a federal employee alleges that an adverse employment action
“was effected, in whole or in part, because of discrimination on the basis of race, color, religion,
sex, national origin, disability, age, or genetic information,” he may file a “mixed-case appeal”
with the MPSB. 29 C.F.R. § 1614.302(a)(2).
After the MSPB issues a decision, the federal employee may petition the EEOC for
review of the MSPB’s decision. 5 U.S.C. § 7702. If the EEOC concurs with the MSPB’s
decision, it “shall be a judicially reviewable action.” Id. Typically, appeals from MSPB
decisions are heard in the Court of Appeals for the Federal Circuit pursuant to 5 U.S.C. §
7703(b)(1)(A). “‘A federal employee who claims that an agency action appealable to the MSPB
violates [certain] antidiscrimination statute[s],’ however, ‘should seek judicial review in district
court.’”5 Broussard v. Panetta, No. CCB-11-3401, 2013 WL 45902, at *2 (D. Md. Jan. 2, 2013)
(quoting Kloeckner v. Solis, 568 U.S. 41, 56 (2012)). When an appeal from the MSPB involves
both discrimination and nondiscrimination claims, “the district court reviews the discrimination
claims de novo and the nondiscrimination claims under an ‘arbitrary and capricious’ standard.”
Rupert v. Geren, 605 F. Supp. 2d 705, 713 (D. Md. 2009) (citing 5 U.S.C. § 7703(c)).
5
The enumerated antidiscrimination statutes are Title VII, the Fair Labor Standards Act, the
Rehabilitation Act, and the Age Discrimination in Employment Act. 5 U.S.C. § 7702(a)(1)(B).
7
In his opposition to the Agency’s motion, Lamb “concede[s] the dismissal of the
following claims: judicial review of MSPB mixed case matter, the ADA claim, and the FMLA
claim,” but argues that “disability discrimination should survive Defendant’s motion[.]”6 ECF
No. 63 at 1. Lamb’s concession to dismissal of the MSPB matter is puzzling, because this Court
only has subject matter jurisdiction over claims brought “in the first instance before the MSPB.”
Benton v. Burns, No. PJM 15-2126, 2017 WL 491251, at *4 (D. Md. Feb. 7, 2017) (citing Harris
v. Evans, 66 Fed.Appx. 465, 467 (4th Cir. 2003)) (limiting the court’s review to those claims
brought before the MSPB as part of Plaintiff’s appeal of his removal).
Lamb also maintains that he “does not concede any claims under OFO Docket No.
0120180652,” which is the EEOC appeal currently pending before the EEOC OFO. By this
reservation, Plaintiff apparently intends to proceed on a variation of a claim of disability
discrimination. 7 However, the EEOC decision currently on appeal is not before this Court. Nor
does Lamb’s EEOC appeal concern his termination, which is the subject of the MSPB decision.
That said, the Court construes Lamb’s concession as reaching the ADA and FMLA claims, but
not so clearly reaching the claims brought pursuant to the Rehab Act. The Court, thus, addresses
each of the claims in an abundance of caution.
With respect to Lamb’s ADA claim, dismissal is granted because the ADA “expressly
excludes the United States . . . from its ambit.” Berkner v. Blank, No. DKC 12-1390, 2013 WL
951562, at *3 n.3 (D. Md. Mar. 11, 2013), aff’d sub nom. Berkner v. Pritzker, 561 F. App’x 279
(4th Cir. 2014). Under the ADA, the United States is not an “employer.” 42 U.S.C.
§12111(5)(B)(i); Webster v. Henderson, 32 F. App’x 36, 41 (4th Cir. 2002). The Navy, as an
6
Lamb retained new counsel between the filing of the Second Amended Complaint and the response to the
Agency’s motion to dismiss, perhaps resulting in a change in strategy. ECF Nos. 51, 54, 56.
7
The Court expresses no opinion as to the viability of Lamb’s appeal from the EEOC decision.
8
arm of the United States, is likewise not capable of suit under the ADA. Hilley v. Mabus, No.
2:08CV457, 2009 WL 8695865, at *2 (E.D. Va. July 31, 2009), aff’d, 387 F. App’x 365 (4th Cir.
2010). Rather, Lamb may pursue disability related claims under the Rehab Act which
“incorporates the ADA’s standards in determining whether an employer discriminated against an
employee.” Berkner, 2013 WL 951562 at *3 (citing 29 U.S.C. § 791(g)).
Similarly, Lamb’s FMLA claims must be dismissed because the statute “provides a
private right of action for private employees, but not for federal employees.” Ikossi v. England,
406 F. Supp. 2d 23, 28 (D.D.C. 2005), aff’d in part, rev’d in part sub nom. Ikossi v. Dep’t of
Navy, 516 F.3d 1037 (D.C. Cir. 2008) (citing Mann v. Haigh, 120 F.3d 34, 37 (4th Cir. 1997)).
Because the FMLA does not reach Lamb as a federal employee, he likewise cannot bring a claim
alleging interference with his rights under the FMLA. See McNair v. Spencer, No. 4:17CV38,
2018 WL 2147515, at *5 (E.D. Va. May 3, 2018) (dismissing an FMLA claim against the
Department of the Navy because “Title II [of the FMLA] does not contain an express provision
for a private right of action to enforce the leave rights there granted.”).
With respect to Plaintiff’s Rehab Act claims, they are threefold: (1) disability
discrimination, (2) denial of reasonable accommodation by refusing to grant short-term leave,
and (3) disability retaliation by termination. The Court addresses each in turn.
A. Failure to Provide Reasonable Accommodation
With regard to the reasonable accommodation claim, the Agency contends that the Court
lacks subject matter jurisdiction because Lamb never preserved the claim before the MSPB. A
plaintiff may only challenge those claims raised before the MSPB. Khoury, 268 F. Supp. 2d at
610–11 (“a complainant who withdraws certain claims in an appeal to the MSPB before a final
decision on the merits also fails to exhaust administrative remedies with respect to those
9
particular claims.”). See also Elgin, 567 U.S. at 11–12 (“Given the painstaking detail with which
the CSRA sets out the method for covered employees to obtain review of adverse employment
actions, it is fairly discernible that Congress intended to deny such employees an additional
avenue of review in district court.”); Hart v. Lew, 973 F. Supp. 2d 561, 577 (D. Md. 2013)
(dismissing a district court claim that had not previously been raised before the MSPB);
Broussard, 2013 WL 45902 at *4 (same). Although Plaintiff focused at the MSPB hearing
largely on denial of reasonable accommodation for failing to provide him an ergonomic chair,
see ECF No. 23-23 at 19, he also argued that the Agency’s refusal to grant him short term leave
amounted to a denial of reasonable accommodation. AR00408, -559. Accordingly, Lamb did
raise this claim before the MSPB and so the Court reviews the merits of the MSPB decision.
“Employment discrimination claims brought under [the Rehab Act] are evaluated using
the same standards as those ‘applied under [T]itle I of the Americans with Disabilities Act of
1990.’” Reyazuddin v. Montgomery Cty., Maryland, 789 F.3d 407, 413 (4th Cir. 2015) (quoting
29 U.S.C. § 794(a)). To establish that the Agency failed to provide reasonable accommodation,
Lamb must show: “(1) that he was an individual who had a disability within the meaning of the
statute; (2) that the [Agency] had notice of his disability; (3) that with reasonable
accommodation he could perform the essential functions of the position . . .; and (4) that the
[Agency] refused to make such accommodations.” Wilson v. Dollar Gen. Corp., 717 F.3d 337,
345 (4th Cir. 2013) (quoting Rhoads v. Fed. Deposit Ins. Corp., 257 F.3d 373, 387 n. 11 (4th Cir.
2001)). “Implicit in the fourth element is the . . . requirement that the employer and employee
engage in an interactive process to identify a reasonable accommodation.” Haneke v. Mid-Atl.
Capital Mgmt., 131 F. App’x 399, 400 (4th Cir. 2005).
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Assuming without deciding that Lamb established the first three prongs, his claim fails on
this final element. Viewing the record most favorably to Lamb, he certainly requested other
accommodation such as a lateral transfer, but did not seek short-term leave as an
accommodation. To be sure, as Lamb points out, he requested FMLA and other leave. But no
evidence demonstrates that “under the circumstances, the employer can be fairly said to know of
both the disability and desire for an accommodation.” Wilson v. Dollar Gen. Corp., 717 F.3d
337, 347 (4th Cir. 2013) (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir.
1999)). Absent evidence on this element, Lamb’s claim premised on denial of leave as a
reasonable accommodation cannot go forward. See also Works v. Colvin, 93 F. Supp. 3d 405,
416-17 (D. Md. 2015), aff’d sub nom. Works v. Berryhill, 686 F. App’x 192 (4th Cir. 2017)
(granting summary judgment for employer on Rehab Act reasonable accommodation claim when
employer was aware of disability and request for leave, but did not receive notice that the leave
was disability-related).
B. Disability Discrimination
The Agency next contends that summary judgment on Lamb’s disability discrimination
claim should be granted in its favor because Lamb fails to present a prima facie case of
discrimination. The Court agrees. “When a plaintiff presents a claim for employment
discrimination with no direct evidence of discriminatory conduct, the case is subject to the
burden-shifting scheme of McDonnell Douglas.” Webster v. Henderson, 32 F. App’x 36, 40 (4th
Cir. 2002) (internal marks omitted, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973)). See also Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 57 (4th Cir.
1995) (“courts routinely have applied the McDonnell Douglas paradigm to Rehabilitation Act
11
claims”). Under the McDonnell Douglas three-step framework, a plaintiff must first establish a
prima facie case of discrimination.8 Berkner, 2013 WL 951562, at *3.
“To establish a prima facie case under the Rehabilitation Act, Plaintiff must show that
[he]: (1) was disabled or perceived as being disabled by h[is] employer; (2) was ‘otherwise
qualified’ to perform the work; and (3) was discriminated against due to h[is] disability.” Id.
(quoting Davis v. Univ. of N.C., 263 F.3d 95, 99 (4th Cir. 2001)). If the plaintiff can establish a
prima facie case, “the burden then shifts to the employer to provide some legitimate, nondiscriminatory reason for the disputed action.” Id. (citation omitted). If the employer can
provide such a reason, the burden shifts back to the employee, who must demonstrate that the
proffered reason is pretextual. Id. “The plaintiff always bears the ultimate burden of proving
that the employer intentionally discriminated against [him].” Evans v. Techs. Applications &
Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996).
Assuming without deciding that Lamb was both qualified to perform his job and was
disabled, insufficient evidence exists to establish that the Agency discriminated against him
because of his disability. Lamb contends singularly that the Agency’s denying his requested
leave, finding him AWOL, and terminating him, was all motivated by discriminatory animus.
Although Lamb had insisted below that he had provided sufficient documentation, the record
evidence belies his broad contention. Viewed most favorably to him, he submitted a single page
document memorializing one emergency room visit and nothing more. O’Connell moreover
gave Lamb several opportunities to submit medical documentation in support of the requested
8
Although Lamb contends that this step of the burden-shifting analysis is no longer applicable under the
D.C. Circuit case of Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493–94 (D.C. Cir. 2008), the Fourth Circuit
has expressly declined to adopt the holding of Brady. Pepper v. Precision Valve Corp., 526 F. App’x 335, 336 n. 13
(4th Cir. 2013).
12
leave and Lamb steadfastly refused. On this record viewed most favorably to Lamb, no evidence
supports that he was declared AWOL and terminated due to unlawful discrimination.
Alternatively, even if Lamb could somehow prove his prima facie case, summary
judgment is nonetheless warranted because no evidence rebuts the Agency’s legitimate nondiscriminatory grounds for terminating Lamb. Lamb was indeed AWOL for over 40 days, and
had not submitted proper medical documentation in a timely manner. Notably, Lamb does not
challenge that termination for a prolonged period of AWOL is improper. Nor does Lamb
generate any evidence suggesting that the termination was pretextual. Rather, Lamb resisted at
every turn providing timely medical documentation as requested. His termination, based on the
record, was for legitimate nondiscriminatory reasons. Summary judgment on this claim is thus
appropriate.
C. Retaliation on Account of Disability
Lamb’s last remaining claim, retaliation, likewise fails. To sustain a retaliation claim, the
plaintiff must demonstrate that: (1) he engaged in protected activity; (2) the Agency took adverse
employment action against him; and (3) the protected activity was causally connected to the
adverse action. Works, 93 F. Supp. 3d at 417. It is undisputed that termination constitutes
adverse employment action. Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d
653, 656–57 (4th Cir. 1998). Even assuming that Lamb engaged in protected activity in seeking
leave as an accommodation, no evidence causally connects such activity and his termination.
Rather, the evidence demonstrates that the Agency terminated Lamb because he was AWOL for
43 days. And even if the Agency erred in declaring Lamb AWOL, as Lamb suggests, no
evidence exists that any purported error was motivated by discriminatory animus. Because
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Lamb has generated no evidence to rebut the legitimate non-discriminatory basis to terminate
him, summary judgment is therefore granted in the Agency’s favor.
V.
Conclusion
For the foregoing reasons, Defendant’s motion to dismiss Second Amended Complaint
or, in the alternative, for summary judgment, is GRANTED. A separate Order follows.
12/7/2018
Date
________
/S/
Paula Xinis
United States District Judge
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