John Vannoy v. Federal Reserve Bank , 827 F.3d 296 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2375
JOHN VANNOY,
Plaintiff - Appellant,
v.
THE FEDERAL RESERVE BANK OF RICHMOND,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:13-cv-00797-JAG)
Argued: March 24, 2016 Decided: June 28, 2016
Before AGEE and WYNN, Circuit Judges, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation.
Affirmed in part, vacated in part, and remanded by published
opinion. Judge Agee wrote the opinion, in which Judge Wynn and
Judge Schroeder joined.
ARGUED: Mary Ann Kelly, THE LAW OFFICES OF MARY ANN KELLY,
Fairfax, Virginia, for Appellant. David E. Nagle, JACKSON LEWIS
PC, Richmond, Virginia, for Appellee. ON BRIEF: Crystal L.
Tyler, JACKSON LEWIS PC, Richmond, Virginia, for Appellee.
AGEE, Circuit Judge:
John Vannoy sued his former employer, the Federal Reserve
Bank of Richmond (“FRBR”), for interference and retaliation in
violation of the Family and Medical Leave Act (“FMLA”), 29
U.S.C. § 2601, et seq., and failure to accommodate and
discriminatory discharge in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. The
district court granted summary judgment in FRBR’s favor as to
all of the claims.
For the reasons discussed below, we affirm the district
court’s judgment as to the FMLA retaliation claim and the ADA
claims. However, because genuine issues of material fact exist
as to whether FRBR interfered with Vannoy’s FMLA rights by
providing him defective notice that omitted his right to
reinstatement at the conclusion of the medical leave term, we
hold that summary judgment as to that claim was not warranted.
Accordingly, we vacate that part of the district court’s
judgment and remand for further proceedings as to Vannoy’s FMLA
interference claim.
I. Factual and Procedural Background 1
1Reviewing de novo the district court’s grant of summary
judgment to FRBR, we “view the facts and all justifiable
inferences arising therefrom in the light most favorable to”
(Continued)
2
Vannoy worked for FRBR from 1994 until his termination on
December 21, 2010, at which time he held the position of Project
Construction Manager / Technical Services Director within FRBR’s
Facilities Management Department. By the summer of 2010,
Vannoy’s supervisors, Robert Minteer and Mattison Harris,
noticed Vannoy was having problems with his work and attendance.
In July 2010, Harris reported his concern that Vannoy may be
depressed to FRBR’s Medical Director, Dr. Victor Brugh.
Dr. Brugh, who had treated Vannoy for depression
previously, was aware of Vannoy’s history of depression “going
way back,” and that Vannoy had taken antidepressant medications
“for a long time.” J.A. 419-20. 2 As the Medical Director of the
Health Services Department, Dr. Brugh was responsible for core
aspects of FRBR’s FMLA and ADA compliance, including: evaluating
and treating employees; overseeing administration of short term
disability and ADA benefits; working closely with human
resources on health and disability related benefits; overseeing
and reviewing applications for FMLA leave; and working with FRBR
departments in connection with employee performance issues
potentially related to health problems. The record does not
Vannoy, the nonmoving party. Libertarian Party of Va. v. Judd,
718 F.3d 308, 312 (4th Cir. 2013). This recitation of facts
conforms to that standard.
2 This opinion omits internal marks, alterations, citations,
emphasis, or footnotes from quotations unless otherwise noted.
3
reflect that Dr. Brugh ever spoke with Vannoy about his rights
and responsibilities under the FMLA.
On September 23, 2010, Vannoy saw Mimi Kline, a licensed
professional counselor, who diagnosed him with “major
depression” and noted his need for “an in-patient 30-day
program.” J.A. 169.
Beginning on October 22 and lasting through November 15,
Vannoy had several unscheduled absences from work, which he
cleared informally with his supervisors by text message or
email. The record does not indicate whether these absences were
to seek medical treatment. However, the record does show that
Vannoy was admitted to St. Mary’s Hospital on November 10 for
psychiatric treatment. His family informed Harris and Dr. Brugh
that Vannoy was in the hospital, and Dr. Brugh spoke directly
with Vannoy during his hospital stay. Vannoy’s physicians
recommended that he enter a 30-day rehabilitation program for
treatment of depression and alcohol dependency, but Vannoy
refused, expressing concern that taking additional time off from
work would result in termination. Vannoy was discharged from
the hospital on November 13.
Around that time, Vannoy submitted his application for
short term disability, which also functioned as a request for
FMLA leave. To that application, Vannoy attached a physician’s
statement from his primary care doctor taking him out of work
4
from November 10 to December 10. Based on these documents, FRBR
determined and notified Vannoy that he was eligible for leave
under the FMLA through December 10.
The parties’ accounts diverge as to whether Vannoy received
sufficient individualized notice of his FMLA rights and
responsibilities as required by the Act. FRBR represents that
it sent Vannoy the applicable notice document on November 16,
but Vannoy asserts that he did not receive it. In any event,
the notice FRBR claims to have sent omitted reference to job
protection rights, the precise information Vannoy contends he
needed to answer his concerns that continued absences for
treatment of his depression and alcoholism would result in
termination.
Fearful of losing his job, Vannoy reported to work on
November 15 without a doctor’s note and well before the end of
his approved FMLA leave period. FRBR sent Vannoy home with
instructions that he could not return to work until he obtained
a release from his physician. Shortly thereafter Vannoy
provided FRBR a doctor’s note, allowing him to return to “full
work duty” as of November 15. J.A. 203. Vannoy returned to
work on November 16.
On November 18, Vannoy arranged a meeting with Minteer and
Harris to follow up about his recent hospitalization and ongoing
medical issues. Apparently, the FMLA was not discussed during
5
this meeting, though Vannoy states he was “reassured that [his]
job was not in jeopardy.” J.A. 118. Vannoy contends he
reiterated to his supervisors that he “wanted . . . to work with
them and to work with the bank to keep [his] job.” Id.On November 30, FRBR sent Vannoy on a three-day work
assignment in Baltimore. Vannoy drove a company vehicle and
stayed in a hotel for that period at FRBR’s expense, but he did
not report to work on the project. The record provides only a
hazy account of Vannoy’s purported reason for the three-day
absence. Nonetheless, when Vannoy returned to FRBR’s Richmond
office, he was placed on administrative leave pending a decision
about his failure to communicate the unscheduled absence from
work while in Baltimore. On December 16, Vannoy was placed on a
performance improvement plan, which contained an employee
portion that Vannoy was to complete by December 20.
On December 20, Vannoy informed his supervisors that he
would not be able to report to work that day. Upon his return
to work the following day, Vannoy received an email from Harris
instructing him to complete and submit the employee portion of
the performance improvement plan that day. Contending that he
was unable to complete the performance improvement plan, Vannoy
left work without authorization and went home. FRBR terminated
Vannoy’s employment effective that day in a letter citing the
failure to properly communicate unscheduled time off from work
6
and insubordinate behavior in leaving work despite instructions
to complete the performance improvement plan.
After his termination and following exhaustion of his
administrative remedies, Vannoy filed a complaint in the United
States District Court for the Eastern District of Virginia
alleging FRBR violated his rights under the FMLA and the ADA.
FRBR moved for summary judgment under Rule 56 of the Federal
Rules of Civil Procedure. The district court granted FRBR’s
summary judgment motion as to all claims, concluding that Vannoy
failed to give sufficient notice of his need for a medical leave
of absence and he was terminated for misconduct related to the
Baltimore trip.
Vannoy timely appeals from the district court’s order
granting summary judgment to FRBR. We have jurisdiction to
review the district court’s final order under 28 U.S.C. § 1291.
II. Analysis
We review a district court’s grant of summary judgment de
novo, applying the same standard as the district court. Halpern
v. Wake Forest Univ. Health Scis., 669 F.3d 454, 460 (4th Cir.
2012). Summary judgment is appropriate if “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
Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014). “A
7
dispute is genuine if a reasonable jury could return a verdict
for the nonmoving party.” Libertarian Party of Va., 718 F.3d at
313. “A fact is material if it might affect the outcome of the
suit under the governing law.” Id. In addition to construing
the evidence in the light most favorable to Vannoy, the non-
movant, we also draw all reasonable inferences in his favor.
See Halpern, 669 F.3d at 460.
A. FMLA Interference
Vannoy argues that FRBR failed to provide him
individualized notice of his job protection rights as required
by the FMLA. This omission, Vannoy posits, caused prejudice to
him as it affected his ability to take the medical leave he
claims to have needed. Vannoy also states, without elaboration,
that he did not receive the notice from FRBR that FRBR says it
sent him. FRBR represents that it sent Vannoy individualized
notice by email on November 16, 2010 and, in any event, it
granted Vannoy’s medical leave request and provided notice that
he had 480 hours of FMLA leave available.
The FMLA entitles eligible employees to take twelve weeks
of leave during any twelve-month period for a “serious health
condition that makes the employee unable to perform the
functions” of his job. 29 U.S.C. § 2612(a)(1)(D). Following
this leave period, an employee has the right to reinstatement to
8
his or her original position or an equivalent post. Id. §
2614(a)(1). It is unlawful under the FMLA for an employer to
interfere with an employee’s exercise of or the attempt to
exercise any right under the statute. Id. § 2615(a)(1).
The FMLA requires that employers provide an individual,
written notice to affected employees that an absence qualifies
under the FMLA. See 29 C.F.R. § 825.300. 3 There are two types
of individualized notice that the employer must give an employee
who may be entitled to FMLA leave: a “rights and
responsibilities notice,” id. § 825.300(c); and a “designation
notice,” id. § 825.300(d). At issue in this case is whether the
rights and responsibilities notice from FRBR was legally
sufficient. And if a notice violation occurred, the “FMLA’s
comprehensive remedial mechanism” grants no relief absent a
showing that the violation prejudiced Vannoy. Ragsdale v.
Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002). Thus, if
FRBR violated the FMLA’s notice requirements, and Vannoy can
show prejudice deriving from that violation, he has stated a
claim for interference.
3Unless otherwise indicated, all citations to the Code of
Federal Regulations are to the version in effect at the time the
described events took place.
9
1.
In the FMLA rights and responsibilities notice,
“[e]mployers shall provide written notice detailing the specific
obligations of the employee and explaining any consequences of
failing to meet these obligations.” 29 C.F.R. § 825.300(c)(1).
“If the leave has already begun, the notice shall be mailed to
the employee’s address of record.” Id. Such notice “must
include,” among other things, the employee’s right to
“restoration to the same or an equivalent job upon return from
FMLA leave.” Id. § 825.300(c)(1)(vi). The Department of Labor
provides a prototype notice of rights and responsibilities for
employers to use to ensure compliance. Id. § 825.300(c)(6).
The purpose of the employer notice requirements “is to
ensure that employers allow their employees to make informed
decisions about leave.” Conoshenti v. Pub. Serv. Elec. and Gas
Co., 364 F.3d 135, 144 (3d Cir. 2004). That purpose is thwarted
when “the employee has not received the statutory benefit of
taking necessary leave with the reassurance that h[is]
employment, under proscribed conditions, will be waiting for
h[im] when []he is able to return to work.” Id. Thus, “[a]ny
violations of the Act or of these regulations constitute
interfering with” the exercise of an employee’s rights. 29
C.F.R. § 825.220(b). An FMLA notice violation can be an
actionable interference claim for which an employee may recover,
10
so long as he makes a showing of prejudice flowing from the
violation. Ragsdale, 535 U.S. at 89 (holding employee must
“ha[ve] been prejudiced by the violation” to obtain relief).
In the instant case, the notice FRBR purportedly sent
failed to inform Vannoy of his right to job restoration at the
conclusion of his medical leave term. 4 Under the FMLA
regulations, a statement of the employee’s right to job
reinstatement must be included in the rights and
responsibilities notice. See 29 C.F.R. § 825.300(c)(1)(vi).
4 Vannoy asserts in a single sentence in his opening brief
that he never received the FMLA rights and responsibilities
notice FRBR purportedly sent, and that he first saw it in
discovery in this litigation. While it is unclear whether he
presented this contention below, the district court did not
address it in its opinion. A plaintiff’s assertion that he did
not receive notice that his leave was designated as FMLA-
qualifying could suffice in some circumstances to create a
genuine issue of material fact as to whether an employer
interfered with his rights under the FMLA. See Lupyan v.
Corinthian Colleges, Inc., 761 F.3d 314, 322-23 (3d Cir. 2014)
(engaging in a lengthy discussion of the “mailbox rule” and
concluding the plaintiff’s positive denial of receipt of FMLA
notice sufficed to create an issue of fact for the jury); but
see Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 452-53 (4th
Cir. 2007) (recognizing a presumption that an addressee receives
letters of notice mailed to him in the bankruptcy context). We
need not resolve this undeveloped argument, which the district
court did not address in the first instance. The FMLA
interference claim is resolved here for summary judgment
purposes as the notice FRBR claims to have sent raises genuine
issues of material fact as to prejudice. See Walker v. Prince
George’s Cty., 575 F.3d 426, 429 n.* (4th Cir. 2009) (“Judges
are not like pigs, hunting for truffles buried in briefs.”).
Nevertheless, the district court may consider Vannoy’s claim
that he did not receive the notice document from FRBR in the
first instance upon remand to the extent it is determined that
Vannoy has properly raised it.
11
FRBR points to no evidence in the record that Vannoy
received the required job reinstatement information. It does
not contest that the only notice document in the record fails to
show notice of Vannoy’s job restoration rights. Therefore, we
conclude that Vannoy established as fact, for purposes of FRBR’s
summary judgment motion, that FRBR’s notice did not comply with
the regulatory requirement of 29 C.F.R. § 825.300(c)(vi).
2.
Our inquiry, however, does not end with the determination
that a violation of the FMLA notice provisions occurred. The
FMLA “provides no relief unless the employee has been prejudiced
by the violation.” Ragsdale, 535 U.S. at 89. Vannoy
accordingly must establish that he was prejudiced by FRBR’s
failure to provide notice of his right to job restoration.
Prejudice may be gleaned from evidence that had the
plaintiff received the required (but omitted) information
regarding his FMLA rights, he would have structured his leave
differently. Lupyan, 761 F.3d at 324; Downey v. Strain, 510
F.3d 534, 537 (5th Cir. 2007) (finding prejudice where evidence
showed employee “would have postponed her knee surgery to a time
when it would not have caused her to exceed her FMLA
allowance”); c.f. Dorsey v. Jacobson Holman, PLLC, 476 F. App’x
861, 862 (D.C. Cir. 2012) (concluding plaintiff could not show
12
prejudice where she “never returned to work” and “provides no
record evidence whatsoever that she could have structured her
leave differently”).
The record in this case contains sufficient evidence to
avoid summary judgment to FRBR that Vannoy – who returned to
work prior to the expiration of the medical leave he initially
requested – would have structured his leave differently had he
known that his job was protected. Vannoy initially requested
medical leave from November 10 to December 10, 2010, in
accordance with the physician’s note he provided FRBR. That
leave was approved. However, Vannoy did not take the month-long
leave term that he requested. Instead, he returned to work
early and FRBR told him he would be permitted to work only after
he provided a physician’s note verifying he could resume work.
Vannoy contends that had he known of his right to reinstatement
at the conclusion of leave, he would have taken the full 30-day
leave of absence set out in his initial FMLA application to
obtain the inpatient treatment he claims to have needed. FRBR
contests this evidence and offered its own evidence.
However, Vannoy’s testimony on this point is unequivocal:
I think [a notice of job protection rights] would have
made a huge difference because I wouldn’t have been so
fearful of losing my job and I would have known I
could have gotten help and that I had the support of
the bank and that they wanted me to get well. And I
could have gone to treatment, I could have gotten
13
help. And I could have come back and I could have
continued to be an excellent employee.
J.A. 305. When asked again whether knowing that his job would
be there when he returned for medical leave mattered, Vannoy
reiterated that it “would have made a huge difference.
Absolutely, I believe I would have” gone to treatment. J.A.
305-06. The supporting testimony from Vannoy’s family is
consistent with his testimony that he would have taken the full
amount of his requested medical leave had he known his job was
protected. Indeed, after his termination, Vannoy completed a
comprehensive inpatient treatment program.
Assessment of the credibility of these statements, and any
countervailing evidence, rests squarely within the purview of
the trier of fact. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986) (noting credibility determinations should
not be made by the district court at summary judgment). If, for
example, a jury accepts Vannoy’s evidence, it could conclude
that Vannoy demonstrated he was prejudiced by FRBR’s failure to
provide him with the requisite notice and, thus, FRBR interfered
with his rights under the FMLA. See Lupyan, 761 F.3d at 323-24
(holding plaintiff could demonstrate prejudice even though she
had “received all of the leave she was entitled to under the
FMLA”).
14
For these reasons, we hold that summary judgment was
foreclosed because a genuine issue of material fact exists as to
whether FRBR’s failure to comply with the FMLA’s notice
requirements prejudiced Vannoy. The district court thus erred
in granting summary judgment to FRBR on Vannoy’s FMLA
interference claim. 5
5 Without addressing the contents of the deficient notice,
the district court reasoned that Vannoy’s FMLA interference
claim failed because FRBR approved his request for medical
leave. We disagree. The fact that FRBR approved Vannoy’s FMLA
leave does not automatically foreclose his interference claim.
This Court recognized that precept recently in Adams v. Anne
Arundel County Public Schools, 789 F.3d 422, 427 (4th Cir.
2015). An FMLA interference claim “permit[s] a court to inquire
into matters such as whether the employee would have exercised
his or her FMLA rights in the absence of the employer’s
actions.” Id. at 427. Although the plaintiff in Adams received
his full entitlement of FMLA leave, the Court proceeded to
ascertain whether his employer had nevertheless interfered with
his FMLA rights “in a variety of ways that stopped short of
actually denying him leave.” Id. Finding no evidence to
support the claim of interference in that record, the Court
affirmed the district court’s grant of summary judgment for the
employer.
Vannoy presents a different case. Unlike the plaintiff in
Adams, Vannoy did not take his full FMLA leave entitlement, but
contends he would have taken additional medical leave had he
received the job reinstatement notice. Vannoy’s unconditional
testimony is that he would have structured his leave differently
- that he would have taken an extended period of medical leave
so that he could go to inpatient treatment - had he known of his
right to reinstatement. For summary judgment purposes, that
evidence suffices to create a genuine issue of material fact as
to whether FRBR interfered with Vannoy’s FMLA rights. See
Ragsdale, 535 U.S. at 91 (“[The] purpose of [an interference
claim] is to permit a court to inquire into matters such as
whether the employee would have exercised his or her FMLA rights
in the absence of the employer’s actions.”); Lupyan, 761 F.3d at
323 (holding plaintiff, who was afforded her full entitlement of
(Continued)
15
B. FMLA Retaliation
In addition to claiming FRBR interfered with his notice
rights under the FMLA, Vannoy contends that FRBR terminated him
in retaliation for taking FMLA-qualifying absences. He argues
that once FRBR became aware of the extent of his illness and his
ongoing need for intermittent FMLA leave, it fired him. Vannoy
posits that the six-week timeframe between his initial request
for medical leave and subsequent termination supports his view.
FRBR responds that Vannoy failed to demonstrate any causal link
between his protected activity and later termination. In
addition, FRBR argues the six-week timeline does not evince a
causal nexus, but actually negates it. Moreover, FRBR contends
it had no notice that Vannoy continued to suffer from depression
and alcoholism because he gave vague and conflicting reasons for
his absences. And finally, FRBR argues it has offered a
legitimate, non-retaliatory reason for any adverse employment
action against Vannoy, and there is no evidence of pretext.
The FMLA provides proscriptive rights “that protect
employees from discrimination or retaliation for exercising
their substantive rights under the FMLA.” Dotson v. Pfizer,
Inc., 558 F.3d 284, 294 (4th Cir. 2009). FMLA retaliation
FMLA leave, could still show prejudice by demonstrating that
“had she been properly informed of her FMLA rights, she could
have structured her leave differently”).
16
claims may rest on circumstantial evidence evaluated under the
burden-shifting framework set out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). An FMLA plaintiff claiming
retaliation “must first make a prima facie showing that he
engaged in protected activity, that the employer took adverse
action against him, and that the adverse action was causally
connected to the plaintiff’s protected activity.” Yashenko v.
Harrah’s NC Casino Co., LLC, 446 F.3d 541, 551 (4th Cir. 2006).
Once the plaintiff proffers evidence establishing his prima
facie case, and the employer offers a non-retaliatory reason of
the adverse action, the plaintiff “bears the burden of
establishing that the employer’s proffered explanation is
pretext for FMLA retaliation.” Id.We assume - without deciding - that Vannoy can establish a
prima facie case for FMLA retaliation. Nonetheless, he cannot
prevail because FRBR has proffered overwhelming evidence that it
terminated Vannoy because of his misconduct, about which there
are no material factual disputes, and the record contains no
evidence remotely suggestive of pretext.
The FMLA does not prevent an employer from terminating an
employee for poor performance, misconduct, or insubordinate
behavior. See Calhoun v. Dep’t. of Labor, 576 F.3d 201, 214
(4th Cir. 2009) (holding failure to follow supervisor’s
instructions was insubordinate behavior that amounted to a
17
legitimate, non-retaliatory reason for adverse employment
action); Throneberry v. McGehee Desha Cty. Hosp., 403 F.3d 972,
977 (8th Cir. 2005) (“The FMLA simply does not force an employer
to retain an employee on FMLA leave when the employer would not
have retained the employee had the employee not been on FMLA
leave.”). FRBR’s legitimate, non-discriminatory reasons for
terminating Vannoy include his misconduct in Baltimore, his
failure to communicate properly about unscheduled absences, and
his failure to complete the employee portion of the performance
improvement plan. Vannoy does not dispute that the Baltimore
incident occurred, that he was absent without authorization from
work numerous times in 2010, and that he failed to timely
complete his obligations under the performance improvement plan.
Vannoy instead speculates that FRBR’s decision to terminate
him was pretextual, but he makes no evidentiary showing in that
regard. “[A] plaintiff’s own assertions of discrimination in
and of themselves are insufficient to counter substantial
evidence of legitimate non-discriminatory reasons for a
discharge.” Dockins v. Benchmark Commc’ns, 176 F.3d 745, 749
(4th Cir. 1999). It is not our role to second-guess FRBR’s
legitimate, non-discriminatory bases for terminating Vannoy
where there is nothing in the record before us evincing
retaliatory animus. See Feldman v. Law Enf’t Assocs. Corp., 752
F.3d 339, 348 (4th Cir. 2014) (explaining that we do not “sit as
18
a kind of super-personnel department weighing the prudence of
employment decisions”). To the contrary, the record supports
FRBR’s argument that it terminated Vannoy for the legitimate and
documented job performance failures previously noted.
Vannoy’s FMLA retaliation claim therefore fails. 6
Accordingly, the district court properly granted summary
judgment to FRBR as to this claim.
C. ADA Claims
Vannoy also appeals from the district court’s decision that
he had no valid claim that FRBR failed to accommodate his
disabilities and discriminated against him in violation of the
ADA. As with Vannoy’s FMLA retaliation claim, the ADA does not
require an employer to simply ignore an employee’s blatant and
persistent misconduct, even where that behavior is potentially
tied to a medical condition. Jones v. Am. Postal Workers Union,
192 F.3d 417, 429 (4th Cir. 1999) (holding the ADA does not
“require an employer to ignore such egregious misconduct by one
of its employees, even if the misconduct was caused by the
employee’s disability”); Martinson v. Kinney Shoe Corp., 104
6
To the extent Vannoy contends that his misconduct should
be excused because it is related to the health condition for
which he required FMLA leave, his argument lacks merit. “While
absences for treatment of alcoholism are protected by the FMLA,
absences caused by the use of alcohol are not.” Scobey v. Nucor
Steel-Ark., 580 F.3d 781, 788 (8th Cir. 2009).
19
F.3d 683, 686 n.3 (4th Cir. 1997) (“Misconduct—even misconduct
related to a disability—is not itself a disability, and an
employer is free to fire an employee on that basis.”); see also
29 C.F.R. § 1630.16(b)(4) (“A covered entity . . . [m]ay hold an
employee who engages in the illegal use of drugs or who is an
alcoholic to the same qualification standards for employment or
job performance and behavior to which the entity holds its other
employees, even if any unsatisfactory performance or behavior is
related to the employee’s drug use or alcoholism.”). Vannoy’s
ADA discriminatory termination claim fails for the same reasons
that his FMLA retaliation claim lacked merit.
Further, as to Vannoy’s ADA failure to accommodate claim,
the district court’s grant of summary judgment to FRBR was not
erroneous. As the district court aptly noted, “[i]t is
difficult to imagine an employer trying harder to help an
employee to succeed.” Vannoy v. Fed. Reserve Bank of Richmond,
No. 3:13-CV-797, 2014 WL 6473704, at *5 (E.D. Va. Nov. 18,
2014). We therefore agree with the district court that even
taking the facts and all reasonable inferences in his favor,
Vannoy’s ADA claims cannot survive summary judgment. 7
7Vannoy also appeals the district court’s denial of his
motion for a protective order in connection with subpoenas by
FRBR seeking various post-termination employment records. Based
on the record in this case, we conclude that the district court
did not abuse its discretion in denying the discovery motion.
20
III. Conclusion
For these reasons, we affirm the judgment of the district
court as to Vannoy’s FMLA retaliation claim and ADA claims. We
vacate the grant of summary judgment as to Vannoy’s claim that
FRBR interfered with his FMLA rights by failing to provide
sufficient notice and remand for further proceedings as to that
claim.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
21