Paul Lewis v. Sloan Gibson , 621 F. App'x 163 ( 2015 )


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  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 15-1061
    PAUL A. LEWIS,
    Plaintiff – Appellant,
    v.
    SLOAN D. GIBSON,     Acting    Secretary   of    the   Department   of
    Veteran Affairs,
    Defendant – Appellee,
    and
    DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, SECRETARY
    OF DEPARTMENT OF VETERAN AFFAIRS,
    Defendants.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro. James A. Beaty, Jr.,
    Senior District Judge. (1:12-cv-01189-JAB-JEP)
    Submitted:   July 31, 2015                      Decided:   August 14, 2015
    Before SHEDD, FLOYD, and THACKER, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Mary March Williams Exum, THE EXUM LAW OFFICE, Asheville, North
    Carolina, for Appellant. Joan B. Binkley, Assistant United
    States Attorney, Greensboro, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
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    PER CURIAM:
    Paul Lewis (“Appellant”) appeals the district court’s order
    granting    the    motion      for    summary    judgment     filed   by   Sloane   D.
    Gibson, Acting Secretary of the Department of Veterans Affairs
    (“VA”),     and    dismissing        Appellant’s    employment        discrimination
    complaint.        Appellant argues that the VA failed to reasonably
    accommodate his medical disabilities and retaliated against him
    for filing a complaint with the Equal Employment Opportunity
    Commission (“EEOC”).           We affirm.
    We     review       the     grant     of    summary      judgment     de    novo.
    Cloaninger v. McDevitt, 
    555 F.3d 324
    , 330 (4th Cir. 2009).                          All
    facts and reasonable inferences are viewed “in the light most
    favorable to the non-moving party.”                 Dulaney v. Packaging Corp.
    of Am., 
    673 F.3d 323
    , 330 (4th Cir. 2012).                    Summary judgment is
    only appropriate when “there is no genuine dispute as to any
    material fact and the movant is entitled to judgment as a matter
    of law.”      Fed. R. Civ. P. 56(a).               “Conclusory or speculative
    allegations       do   not     suffice,    nor    does   ‘a    mere    scintilla    of
    evidence’     in       support       of   [the   non-moving      party’s]       case.”
    Thompson v. Potomac Elec. Power Co., 
    312 F.3d 645
    , 649 (4th Cir.
    2002) (quoting Phillips v. CSX Transp., Inc., 
    190 F.3d 285
    , 287
    (4th Cir. 1999) (per curiam)).
    Appellant first contends that the VA failed to reasonably
    accommodate his disabilities.               The Rehabilitation Act prohibits
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    federal      agencies        from     discriminating           against         a     qualified
    individual “solely by reason of her or his disability.”                                        29
    U.S.C. § 794(a).
    To establish a claim under the Rehabilitation Act for a
    failure to accommodate, a plaintiff must show that (1) he has a
    disability; (2) his employer knew of the disability; (3) with
    reasonable accommodations he is otherwise qualified to perform
    the essential functions of the employment position in question;
    and   (4)     his      employer        refused       to     make        such        reasonable
    accommodations.        See Wilson v. Dollar Gen. Corp., 
    717 F.3d 337
    ,
    345   (4th     Cir.        2013)     (listing      elements        of    a         failure     to
    accommodate     claim        brought       pursuant       to    the      Americans           with
    Disabilities Act (“ADA”)); cf. Doe v. Univ. of Md. Med. Sys.
    Corp., 
    50 F.3d 1261
    , 1264 n.9 (4th Cir. 1995) (explaining that
    the   same    analysis       is     applied   to    ADA     and    Rehabilitation             Act
    discrimination claims).              This dispute centers on the qualified
    individual      element.               This        element        consists            of      two
    considerations: whether the specific accommodation requested was
    reasonable     and     whether,       if    the    requested       accommodation              was
    provided, the plaintiff could perform the essential functions of
    the position.         Jacobs v. N.C. Admin. Office of the Cts., 
    780 F.3d 562
    , 580 (4th Cir. 2015).
    The     accommodations           requested       by      Appellant            were      not
    reasonable.           He     first     proposed       that      DVAMC        decrease        its
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    performance standards; but doing so would necessitate changing
    the essential functions of his employment.               Courts have roundly
    held that such requests are unreasonable.               See, e.g., Lucas v.
    W.W.   Grainger,   Inc.,   
    257 F.3d 1249
    ,   1260    (11th   Cir.   2001)
    (“[E]mployers are not required to transform the position into
    another one by eliminating functions that are essential to the
    nature of the job as it exists.”); accord Fjellestad v. Pizza
    Hut of Am., Inc., 
    188 F.3d 944
    , 950 (8th Cir. 1999).                 He also
    requested a reduced workload, but “an accommodation that would
    require    other   employees     to   work     harder     is   unreasonable.”
    Mason v. Avaya Commc’ns, Inc., 
    357 F.3d 1114
    , 1121 n.3 (10th
    Cir. 2004); accord     Bratten v. SSI Servs., Inc., 
    185 F.3d 625
    ,
    632 (6th Cir. 1999); Hammel v. Eau Galle Cheese Factory, 
    407 F.3d 852
    , 866-67 (7th Cir. 2005).            His request for an assistant
    is likewise unreasonable because the Rehabilitation Act -- like
    the ADA -- does not “require an employer to hire an additional
    person to perform an essential function of a disabled employee’s
    position.”    Martinson v. Kinney Shoe Corp., 
    104 F.3d 683
    , 687
    (4th Cir. 1997).      Accordingly, we conclude that the district
    court appropriately granted summary judgment as to Appellant’s
    failure to accommodate claim.
    Appellant’s remaining challenge is that the VA retaliated
    against him for filing an EEOC complaint.                  To prevail on a
    retaliation claim, a plaintiff must either provide sufficient
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    direct and indirect evidence of retaliation, or proceed under
    the   familiar    burden-shifting        framework         of   McDonnell    Douglas
    Corp. v. Green, 
    411 U.S. 792
    (1973).                   Cf. Rhoads v. FDIC, 
    257 F.3d 373
    , 392 (4th Cir. 2001).
    Under the former avenue, a plaintiff must produce direct or
    indirect evidence of a “stated purpose to discriminate . . . of
    sufficient      probative     force     to     reflect     a    genuine    issue    of
    material fact.”         
    Rhoads, 257 F.3d at 391
    (quoting Brinkley v.
    Harbour Recreation Club, 
    180 F.3d 598
    , 607 (4th Cir. 1999)).
    “What is required is evidence of conduct or statements that both
    reflect directly the alleged discriminatory attitude and that
    bear directly on the contested employment decision.”                         
    Id. at 391-92
    (quoting 
    Brinkley, 180 F.3d at 607
    ).
    Under the latter, a plaintiff must first establish a prima
    facie case of retaliation by demonstrating “(1) that he engaged
    in a protected activity; (2) that his employer took an adverse
    employment action against him; and (3) that a causal connection
    existed between the protected activity and the asserted adverse
    action.”     King      v.   Rumsfeld,    
    328 F.3d 145
    ,   150-51    (4th     Cir.
    2003).     If    the   plaintiff      establishes      a   prima   facie    case    of
    discrimination, the burden of production shifts to the defendant
    to articulate a legitimate, nonretaliatory basis for the action.
    See Laing v. Fed. Express Corp., 
    703 F.3d 713
    , 719 (4th Cir.
    2013).     Notably, when the defendant proposes such a basis, “it
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    is not our province to decide whether the reason was wise, fair,
    or even correct, ultimately, so long as it truly was the reason
    for the plaintiff’s termination.”                     
    Id. at 722
    (quoting Hawkins
    v. PepsiCo, Inc., 
    203 F.3d 274
    , 279 (4th Cir. 2000)).                              If the
    defendant meets this burden, the plaintiff must show that the
    proffered reason is pretextual.                     See 
    id. at 719.
                While not
    necessarily       required,         comparator       evidence     --    “evidence     that
    other employees who were similarly situated to the plaintiff
    (but     for     the    protected          characteristic)       were     treated     more
    favorably -- is “‘especially relevant’ to a showing of pretext.”
    
    Id. (quoting McDonnell
    Douglas, 411 U.S. at 804
    ).
    We hold that there is insufficient evidence to sustain a
    claim of retaliation under either approach.                       Appellant offers no
    direct     evidence          of     retaliatory       motive,     and     the    temporal
    proximity       between      his     protected      activity     and    termination    is,
    without more, insufficient to create a genuine issue of material
    fact.     Even assuming that he could state a prima facie case of
    retaliation, the VA offered a legitimate, non-retaliatory reason
    for his termination: performance.                   Appellant presents nothing to
    suggest        that    the        VA’s    proffered      basis    was     insincere    or
    pretextual.       We thus agree with the district court’s decision to
    grant    the     VA’s     motion         for   summary    judgment      on   Appellant’s
    retaliation claim.
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    Accordingly,     we   affirm    the   district    court’s      order.      We
    dispense   with     oral   argument    because       the    facts    and     legal
    contentions   are   adequately      presented   in    the   materials      before
    this court and argument would not aid the decisional process.
    AFFIRMED
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