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Hannah P. v. Coats

United States Court of Appeals, Fourth Circuit

February 19, 2019

HANNAH P., Plaintiff - Appellant,
DANIEL COATS, Director of the Office of The Director of National Intelligence McLean, VA, Defendant-Appellee, and MARK EWING, in his personal capacity McLean, VA, Defendant.

          Argued: October 31, 2018

          Appeal 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 Appellant.

          Caroline D. Lopez, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

         ON BRIEF:

          Chad 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.

          Before GREGORY, Chief Judge, THACKER and QUATTLEBAUM, Circuit Judges.

          THACKER, Circuit Judge:

         Appellant Hannah P.[1] ("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.

         For the 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 further proceedings.



         In 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.[2] 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").


         A few 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 prescribed medication.

         In November 2013, Hannah was assigned to coordinate the responses of the National Intelligence Director and Principal Deputy Director to Edward Snowden's unauthorized disclosures.[3] 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.

         The 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.

         By 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 medication." Id.



         Appellee 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.

         On 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.

         But, 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.

         At that 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.

         According 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.


         On 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.

         On the 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.

         On 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. 540.


         Despite 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 PM.

         A week 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 approved.

         On May 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.


         During 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.


         Hannah 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.


         We 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.


         Hannah 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 turn.


         Rehabilitation Act Claims

         The 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.


         Reasonable Accommodation

         Turning 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.

         To 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 fourth element.

         Here, 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.

         Hannah 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.

         Second, 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.

         During 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.

         For these reasons, granting summary judgment to Appellee on Hannah's reasonable accommodation claim was proper.


         Required Medical Examination

         Under 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. § 12112(d)(4)(A).


         Examination of a Job Applicant

         As an initial matter, Hannah's arguments related to pre-employment medical examinations under the Rehabilitation Act[4] 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.


         Examination of a Current Employee

         Further, 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 attending work.

Id. at 188 (emphasis omitted).

         However, 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 ...

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