Argued: October 31, 2018
from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:16-cv-01030-CMH-IDD)
Timothy Bosson, BOSSON LEGAL GROUP, Fairfax, Virginia, for
Caroline D. Lopez, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
A. Readler, Principal Deputy Assistant Attorney General,
Marleigh D. Dover, Civil Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C.; Dana J. Boente, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
GREGORY, Chief Judge, THACKER and QUATTLEBAUM, Circuit
THACKER, Circuit Judge:
Hannah P. ("Hannah"), a former employee of
the Office of the Director of National Intelligence
("Appellee"), asserts that Appellee discriminated
against her pursuant to the Rehabilitation Act of 1973
("Rehabilitation Act"), 29 U.S.C. § 701,
et seq., and violated the Family and Medical Leave
Act of 1993 ("FMLA"), 29 U.S.C. § 2601, et
seq., by not hiring her for a permanent position. The
district court granted summary judgment in Appellee's
favor as to all claims.
reasons explained below, we affirm the district court's
judgment as to the Rehabilitation Act and FMLA retaliation
claims. However, because a genuine issue of material fact
remains as to whether Hannah provided notice of her
disability and interest in FMLA leave sufficient to trigger
Appellee's duty to inquire, we hold that summary judgment
as to Hannah's FMLA interference claim was not warranted.
Accordingly, we vacate that part of the district court's
judgment and remand Hannah's FMLA interference claim for
March 2011, Appellee hired Hannah for a five-year term as an
operations analyst. In that position, Hannah participated in
"long-term, in-depth studies into issues that had
particular budgetary importance for the [c]ommunity."
J.A. 18. Hannah generally received glowing reviews
from her supervisors. See, e.g., id. at 412
(describing Hannah's performance prior to 2015 as
"outstanding" and noting her "energy/drive,
technical competence, superb communication and networking
skills, and superior analytic tradecraft"); id.
at 350 (describing Hannah as "a high-performing
employee"); id. at 391-410 (describing,
repeatedly, various elements of Hannah's performance as
"excellent" and "outstanding").
months after she was hired, Hannah was diagnosed with
depression. Hannah immediately informed at least two of her
supervisors of her diagnosis, but she did not request any
accommodations at that time. Hannah treated her depression by
seeing a counselor and a psychiatrist and by taking
November 2013, Hannah was assigned to coordinate the
responses of the National Intelligence Director and Principal
Deputy Director to Edward Snowden's unauthorized
disclosures. This role was "high stress" and
required "frequent long hours and weekend work coupled
with meeting tight deadlines and dealing with a demanding
[National Security Council] customer." J.A. 412. In
fact, to accommodate the schedule change that this role
required, Appellee moved Hannah to a "maxi flex"
schedule. Id. at 350-51. A "maxi flex"
schedule requires an analyst to work a certain number of
hours --80 hours over a two-week period -- but does not
dictate the exact hours that the analyst must work per day.
For Hannah, that meant starting and ending work later than
traditional business hours.
Snowden assignment lasted 18 months and completed in January
2015. However, Hannah continued her atypical working hours
beyond the completion of the Snowden assignment. Hannah's
supervisor "was expecting" that when the Snowden
assignment ended, Hannah's hours "might become more
normal." J.A. 353. However, for the first few months, he
did not communicate with Hannah about returning to normal
business hours. Rather, he explained, he was "primarily
concerned about establishing what [Hannah's] next task
was going to be." Id.
March 2015, Hannah's co-workers perceived her schedule to
be "erratic." J.A. 413. Hannah arrived to work well
after normal business hours and racked up numerous unplanned
absences. On some occasions Hannah was "extremely
late," sometimes arriving after 2 PM. Id. On
other occasions Hannah was unreachable for hours, often
missing and failing to return "repeated phone calls to
her cell and home phone." Id. When Hannah's
supervisors were able to reach her, they noted that she
seemed "either lethargic or almost unconcerned"
about her lateness and absences. Id. They also noted
that her demeanor was "sad, very flat, and almost trance
like." Id. Around that time, Hannah informed
her supervisors that she "had a recent change in
made some accommodations for Hannah following the Snowden
assignment. First, after consulting with Hannah in January
2015, Appellee lightened Hannah's workload "to give
her a chance to decompress" from the stress of the
Snowden assignment. J.A. 413 (internal quotation marks
omitted). Second, multiple of Hannah's supervisors had
"informal counseling sessions" with her "to
discuss any issues that she might be having" and to
"urge her" to notify them if she was going to be
late or absent. Id.
March 19, 2015, one of Hannah's supervisors met with
Hannah directly to address her attendance issues. Together,
Hannah and her supervisors developed a plan to reconcile
Hannah's depression with Appellee's staffing needs.
According to that plan, Hannah was to arrive to work by 10
AM. If she was going to be absent or later than 10 AM, Hannah
was to contact one of her supervisors in advance. If Hannah
had not arrived at work or contacted a supervisor by 11 AM, a
supervisor would call her to determine when she would arrive.
Hannah did not follow the plan. For example, the very next
day after she and her supervisors developed the plan, Hannah
emailed her supervisors at 11:05 AM to inform them that she
would be arriving after 12 PM. Similarly, on March 31, Hannah
emailed her supervisors at 11:56 AM to inform them that she
would not be coming into work at all that day. On April 1,
after Hannah had not arrived to work or contacted her
supervisors, Hannah's second-level supervisor called her
at 12:30 PM, at which time Hannah reported "being unable
to just get going." J.A. 413. Later that day, when
Hannah finally arrived to work, her supervisor informed her
that the plan they created was not working.
same time, her supervisor revised the plan to require Hannah
to arrive at work by 10 AM or report to her supervisors in
advance if she was going to be late or absent. This "put
the onus" on Hannah to contact her supervisors, rather
than asking her supervisors to contact her if she had not
arrived at work by 11 AM. J.A. 90. Hannah failed to follow
this modified plan as well. In fact, she failed to comply on
April 2 and April 3, the two days following the meeting where
the plan was modified.
to Appellee, Hannah's timeliness and attendance issues
impacted her performance, the performance of her peers, and
the performance of her supervisors. Per Appellee,
Hannah's "erratic" schedule was "noted by
her teammates" and affected "unit cohesion."
J.A. 413. Hannah's failure to report her tardiness and
absences as well as her unresponsiveness required her
management team to spend "significant time and
energy" tracking her down. Id. Additionally,
because of Hannah's absences, Hannah's supervisors
were often forced to assign work that might have been
assigned to Hannah to other analysts.
April 9, 2015, just three weeks after the initial work plan
was developed to attempt to accommodate Hannah's needs,
Hannah again met with her supervisors. At this meeting,
Hannah's supervisors informed her that they were
referring her to the Employee Assistance Program
("EAP"). EAP is a voluntary counseling service for
employees and their family members that provides "free,
confidential, short-term mental health[, ] financial, and
addictions counseling and referral to cleared community
providers." J.A. 132. Hannah's supervisors made an
EAP appointment for her for the following day, Friday, April
10. At that time, Hannah explained to her supervisors that
her psychiatrist recommended she take four weeks of medical
leave. But, Hannah's supervisors insisted that she would
need to meet with EAP before they could approve her request
for medical leave.
next business day following Hannah's EAP session --
Monday, April 13 --Hannah's supervisor told Hannah he was
willing to authorize her to take medical leave. However, at
that point, Hannah informed her supervisor that her leave
request was "on hold," without further explanation.
J.A. 170, 178.
April 16, Hannah's supervisor noted in an email that he
had an "extended" 40-minute discussion with
Hannah's EAP psychologist. J.A. 604. Hannah alleges that
the EAP psychologist "shared with [Hannah's
supervisor] details of what Hannah had revealed in confidence
at the EAP sessions." Appellant's Br. 17.
Specifically, Hannah alleges that the EAP psychologist told
her supervisor that Hannah was concerned about Appellee's
records retention policies, and that Hannah's
"difficulties in getting to work were the result of a
lack of motivation, not related to depression." J.A.
Hannah's participation in EAP, her attendance problems
persisted. For example, on April 13, 2015, Hannah emailed her
supervisors at 10:58 AM to inform them that she would arrive
to work by 11:30 AM. Similarly, on April 14, Hannah emailed
her supervisors at 11:08 AM to inform them that she would
arrive to work by 12 PM. That day, Hannah's supervisors
were not able to confirm her arrival to work until after 1:50
after advising her supervisors that her leave request was
"on hold," on April 21, Hannah renewed her request
for four weeks of medical leave. Hannah's supervisors
approved that request on May 5. They required her to use her
annual leave to account for four-fifths of the four week
leave period, and allowed her one day of sick leave per week
to make up the rest. Hannah began her leave the day it was
4, the day before Hannah began her leave of absence,
Hannah's supervisors gave her a letter of expectations.
That letter confirmed the revised attendance and reporting
plan. This plan required Hannah to arrive to work by 10 AM or
report to her supervisors by 9:30 AM if she was going to be
late or absent.
this time, Hannah applied for three permanent positions
within the Office of the Director of National Intelligence.
In February 2015, Hannah interviewed for two permanent
positions for which she was not selected. Shortly before
taking her leave of absence in May 2015, Hannah applied for a
third full-time position, the Program Mission Manager Cyber
Position ("Cyber position"). She was interviewed
for the Cyber position on June 9, eight days after she
returned from leave, and the interview panel recommended her
for the position. Her application was then forwarded to
Appellee's Chief Management Officer, Mark Ewing, who
recommended that Hannah not be selected for the position
"at this time," stating that Hannah's
"recent performance is not consistent with a potentially
good employee." J.A. 232. Hannah was informed that her
application had been rejected in early July 2015, and she did
not apply for any other positions. Hannah completed her
five-year term with Appellee in March 2016.
exhausted her administrative remedies and filed this lawsuit
on August 12, 2016. She alleged that Appellee violated the
Rehabilitation Act in five ways: (1) failing to accommodate
her mental illness; (2) creating a hostile work environment;
(3) requiring her to undergo a medical examination; (4)
disclosing her confidential medical information; and (5)
refusing to hire her for the Cyber position. Additionally,
Hannah alleged that Appellee violated the FMLA in two ways:
(1) by interfering with her ability to take medical leave;
and (2) by retaliating against her when she took medical
leave. After the close of discovery, Appellee moved for
summary judgment on all counts. The district court granted
that motion on July 27, 2017. Hannah filed this timely notice
of appeal challenging the district court's decisions on
all but the hostile work environment claim.
review a district court's decision to grant summary
judgment de novo. See Vannoy v. Fed. Reserve Bank of
Richmond, 827 F.3d 296, 300 (4th Cir. 2016). In doing
so, this court applies the same standard as the district
court. See id. That standard requires the court to
grant summary judgment where "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 Vannoy, 827 F.3d at 300. We construe the
evidence in the light most favorable to Hannah, the
nonmovant, and we draw all reasonable inferences in her
favor. See Vannoy, 827 F.3d at 300.
asserts that Appellee violated the Rehabilitation Act by
failing to accommodate her depression, wrongfully requiring
her to undergo a medical examination, unlawfully disclosing
her confidential medical information, and refusing to hire
her for the Cyber position. Additionally, Hannah asserts that
Appellee interfered with and retaliated against her for using
leave under the FMLA. We will address each of these claims in
Rehabilitation Act prohibits federal agencies from
discriminating against its employees on the basis of
disability. See 29 U.S.C. § 794. For the
reasons explained below, Hannah failed to satisfy her burden
on each of her claims under the Rehabilitation Act.
Specifically, Hannah failed to: (1) demonstrate that Appellee
failed to accommodate her depression; (2) demonstrate that
Appellee's EAP amounted to a required medical
examination; (3) demonstrate that Appellee disclosed or
misused confidential medical information; and (4) rebut
Appellee's legitimate, nondiscriminatory reason for
rejecting her application for a permanent position.
first to Hannah's claim that Appellee failed to
accommodate her depression, the district court correctly
concluded that Hannah did not establish a prima facie case
because Hannah failed to demonstrate that Appellee refused to
make a reasonable accommodation.
establish a prima facie claim of failure to accommodate under
the Rehabilitation Act, a plaintiff must demonstrate that (1)
she was a qualified person with a disability; (2) the
employer had notice of the disability; (3) the plaintiff
could perform the essential functions of the position with a
reasonable accommodation; and (4) the employer nonetheless
refused to make the accommodation. See Reyazuddin v.
Montgomery Cty., 789 F.3d 407, 414 (4th Cir. 2015). The
district court concluded that Hannah could not establish the
fourth element -- specifically, the district court determined
that Appellee provided Hannah with at least two reasonable
accommodations. And, on appeal, the parties dispute only the
as detailed above, Appellee provided Hannah with a reasonable
accommodation. When Hannah failed to follow that plan,
Hannah's supervisors attempted a new accommodation --
referring Hannah to EAP. Yet, despite Hannah's
participation in EAP, her attendance problems persisted.
argues that Appellee's accommodations were not reasonable
for two reasons. First, she claims that the accommodation was
improperly rescinded when her supervisors concluded that the
first plan was not working. Hannah asserts that the
Rehabilitation Act requires a collaborative process. Hannah
argues that rather than collaborating with her to identify a
workable accommodation, Appellee unilaterally decided that
the first plan was not working, then unilaterally decided
that Hannah should participate in EAP counseling instead.
Although employers have a duty to engage with their employees
in an "interactive process to identify a reasonable
accommodation," Wilson v. Dollar Gen. Corp.,
717 F.3d 337, 346 (4th Cir. 2013), the employer "has the
ultimate discretion to choose between effective
accommodations." Reyazuddin, 789 F.3d at 415-16
(citing Hankins v. Gap, Inc., 84 F.3d 797, 800 (6th
Cir. 1996)). Nonetheless, even under Hannah's view of the
record, Appellee did, in fact, collaborate with
Hannah in establishing the first accommodation and only acted
unilaterally when that accommodation did not work.
Hannah claims that a reasonable accommodation that she
requested -- a leave of absence -- was improperly delayed.
Hannah posits that she "suffered immense emotional
stress during this one month lapse of [Appellee's]
compliance with the law." Appellant's Br. 37. This
argument is without merit and is not supported by the record,
even when viewed in the light most favorable to Hannah.
Hannah first requested the leave of absence on April 9, 2015.
Then, on April 13 -- just two business days later --Hannah
withdrew her request without explanation, telling her
supervisor that her leave request was "on hold."
J.A. 170, 178. Hannah then renewed her request for leave on
April 21, and her request was approved on May 5. Thus, there
was no "one month lapse," since Hannah's
request was "on hold" for nine days of that time.
the remaining gap between Hannah's request for leave and
Appellee's approval of that request, Appellee referred
Hannah to its counseling service. The Rehabilitation Act does
not require an employer to provide the exact accommodation
that an employee requests. See Reyazuddin, 789 F.3d
at 415 ("An employer may reasonably accommodate an
employee without providing the exact accommodation that the
employee requested."). Further, the record demonstrates
that Hannah's supervisors were actively considering her
request for leave during that time, and they did ultimately
approve it less than a month after she first requested leave.
these reasons, granting summary judgment to Appellee on
Hannah's reasonable accommodation claim was proper.
the Rehabilitation Act, an employer "shall not require a
medical examination and shall not make inquiries of an
employee as to whether such employee is an individual with a
disability or as to the nature or severity of the disability,
unless such examination or inquiry is shown to be job-related
and consistent with business necessity." 42 U.S.C.
of a Job Applicant
initial matter, Hannah's arguments related to
pre-employment medical examinations under the Rehabilitation
miss the mark because Hannah was a current employee, not a
job applicant. Although Appellee knew Hannah was considering
applying for permanent positions with Appellee at the time
she was referred to EAP, she had not yet done so. The
evidence is clear that Appellee referred Hannah to EAP in
lieu of disciplining her for her attendance issues in her
then-current position, rather than as a pre-employment
medical examination. Moreover, the fact that Hannah's
attendance issues may have been related to her stress and
frustration surrounding obtaining permanent employment with
Appellee does not transform her EAP referral into a
pre-employment medical examination.
of a Current Employee
Hannah failed to demonstrate, much less create a genuine
issue of material fact, that EAP constituted a prohibited
medical examination of a current employee. We note that
EAP's policies make clear that EAP is intended to be used
as a voluntary counseling service, and not as a mandatory
medical examination that would violate the Rehabilitation
Act. See J.A. 130 ("[U]tilizing EAP is always
voluntary and therefore the employee has the right to decline
to attend treatment, even if management-referred.").
Additionally, Hannah's EAP counselor repeatedly stated
that she did not conduct a medical examination:
I did not conduct a medical examination of [Hannah], and I
did not conduct a mental health evaluation or diagnostic
assessment because a) [Hannah] informed me she was already in
treatment and b) . . . it is not in EAP's purview to
conduct a medical evaluation. I did not administer any
medical or mental health tests or diagnostic assessment tools
for the same reason. I was [n]ot tasked to diagnose or
provide a second opinion; my role was to facilitate
communication between [Hannah] and Management to resolve the
problem presented in the Management Referral -- namely,
improving attendance and notifying management when not
Id. at 188 (emphasis omitted).
even if EAP constituted a mandatory medical examination under
the facts of this case, summary judgment to Appellee was
still appropriate on this claim because Hannah's referral
to EAP was "job-related and consistent with business
necessity." 42 U.S.C. § 12112(d)(4)(A). As we have
stated, "whether a mental examination was
'job-related and consistent with business necessity'
is an objective inquiry." Pence v. Tenneco Auto.
Operating Co., 169 Fed.Appx. 808, 812 (4th Cir. 2006).
"We therefore do not resolve any dispute about what
[Appellee's] subjective motivations were for having
[Hannah] examined by the EAP." Id. An
employer's request for a medical examination is
job-related and consistent with business necessity when:
"(1) the employee requests an accommodation; (2) the
employee's ability to ...