Tempie Ann Bell v. Eric Shinseki , 584 F. App'x 42 ( 2014 )


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  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 13-1890
    TEMPIE ANN BELL,
    Plaintiff - Appellant,
    v.
    ERIC K. SHINSEKI, Secretary, Department of Veterans Affairs,
    Defendant - Appellee.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro.   William L. Osteen,
    Jr., Chief District Judge. (1:12-cv-00057-WO-LPA)
    Submitted:   August 26, 2014             Decided:   September 16, 2014
    Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Daniel F. Read, Durham, North Carolina, for Appellant. Lynne P.
    Klauer, Assistant United States Attorney, Greensboro, North
    Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    On August 10, 2010, Tempie Ann Bell was injured while
    working for the United States Department of Veterans Affairs
    (“Defendant”)         and    was    unable       to    return    to       work.          Defendant
    granted Bell leave until November 14, 2010, but required her to
    return    to    work       thereafter.          Bell    failed       to        comply,     and   on
    February 25, 2011, Defendant terminated her for being absent
    without leave, effective March 11, 2011.                        Bell filed a complaint
    alleging that Defendant discriminated against her on the basis
    of her disability and retaliated against her for engaging in
    protected activities, in violation of the Rehabilitation Act, 29
    U.S.C. §§ 701–796l (2012), amended by Workforce Innovation and
    Opportunity         Act,    Pub.    L.    No.    113-128,       §§ 401-488,            128     Stat.
    1425,    1631-94       (2014).           The    district        court          granted    summary
    judgment       to    Defendant       on       these    claims,           and    Bell     appeals.
    Finding no reversible error, we affirm.
    We review a district court’s order granting summary
    judgment   de       novo.        D.L.    ex     rel.   K.L.     v.       Balt.    Bd.     of    Sch.
    Comm’rs, 
    706 F.3d 256
    , 258 (4th Cir. 2013).                              Summary judgment is
    appropriate only where “there is no genuine issue as to any
    material fact and . . . the movant is entitled to judgment as a
    matter of law.”             Seremeth v. Bd. of Cnty. Comm’rs Frederick
    Cnty., 
    673 F.3d 333
    , 336 (4th Cir. 2012) (internal quotation
    marks    omitted).          In     determining         whether       a    genuine        issue    of
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    material fact exists, we “view[] the facts and the reasonable
    inferences         therefrom     in       the    light       most    favorable      to    the
    nonmoving party.”           Bonds v. Leavitt, 
    629 F.3d 369
    , 380 (4th Cir.
    2011).
    To     establish        a     prima         facie    case     of    disability
    discrimination, a plaintiff must prove that she is “qualified,”
    by   showing       that   either      (1)    “she     could       perform   the   essential
    functions of the job, i.e., functions that bear more than a
    marginal      relationship         to     the       job    at     issue,”    or   (2)     some
    “reasonable accommodation by the employer would enable [her] to
    perform those functions.”                 Tyndall v. Nat’l Educ. Ctrs., Inc.,
    
    31 F.3d 209
    ,    213   (4th      Cir.      1994)      (internal      quotation      marks
    omitted); see Reynolds v. Am. Nat’l Red Cross, 
    701 F.3d 143
    , 150
    (4th Cir. 2012) (discussing prima facie case under Americans
    with Disabilities Act for discriminatory discharge claim).                                The
    district court found that Bell was not qualified because she
    could not perform her job and no reasonable accommodations would
    enable her to do so.             Bell argues that, even if she could not
    have continued in her current nursing position, she could have
    worked in an administrative capacity.                             However, Bell has not
    produced evidence that there were any positions available at the
    time     of   her     termination         that       she    was     qualified     to     fill.
    Moreover, as the district court noted, Bell’s absence from work
    left her unable to perform any job.                         See Byrne v. Avon Prods.,
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    Inc., 
    328 F.3d 379
    , 381 (7th Cir. 2003).                     Because Bell failed to
    show that she was qualified for her position, summary judgment
    on her disability claim was proper.
    Because      Bell      presented          no     direct    evidence       of
    retaliation, we analyze her retaliation claim under the familiar
    burden-shifting       framework         established        in     McDonnell     Douglas
    Corp. v. Green, 
    411 U.S. 792
    (1973).                   See Ennis v. Nat’l Ass’n
    of Bus. & Educ. Radio, Inc., 
    53 F.3d 55
    , 57–58 (4th Cir. 1995).
    “In the McDonnell Douglas framework, the plaintiff must first
    establish   a    prima    facie     case       of   retaliation,      whereupon      the
    burden shifts to the employer to establish a legitimate non-
    retaliatory reason for the action.”                  Price v. Thompson, 
    380 F.3d 209
    , 212 (4th Cir. 2004).               If the employer meets this burden,
    “the   plaintiff   then     must    show       that    the      employer’s    proffered
    reasons are pretextual . . . by showing that the explanation is
    unworthy    of     credence        or     by        offering      other      forms   of
    circumstantial           evidence          sufficiently             probative         of
    [retaliation].”           
    Id. (internal quotation
          marks     omitted).
    Throughout this process, the plaintiff bears the ultimate burden
    of “establish[ing] that . . . her protected activity was a but-
    for cause of the alleged adverse action by the employer.”                        Univ.
    Tex. Sw. Med. Ctr. v. Nassar, 
    133 S. Ct. 2517
    , 2534 (2013).
    The district court found that Defendant had proffered
    a legitimate non-retaliatory reason for her termination — her
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    continued     absence    —     and   that       Bell   had    failed   to    forecast
    sufficient     evidence        to    establish         that    this    reason      was
    pretextual.     To establish pretext, Bell relies on evidence that
    her supervisors were hostile to her.                     However, even assuming
    that such hostility existed, Bell’s prolonged absence, with no
    indication that she would be able to return to work in the near
    future, makes it implausible that she would have been retained
    regardless of her supervisors’ feelings about her.                      Because the
    evidence did not allow the reasonable inference that Bell would
    not have been terminated but for her protected activity, summary
    judgment on this issue was proper.
    Accordingly, we affirm the entry of summary judgment
    in favor of Defendant.          We deny Bell’s pending motions to file a
    supplemental document and 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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