McFadden v. BALLARD SPAHR ANDREWS & INGERSOLL, LLP

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 8, 2009 Decided June 29, 2010

No. 08-7140

VANESSA A. MCFADDEN,

APPELLANT

v.

BALLARD SPAHR ANDREWS & INGERSOLL, LLP AND

MARGARET RILEY-JAMISON,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:05-cv-02401-RJL)

Teresa W. Murray argued the cause and filed the briefs

for appellant.

Jonathan R. Mook argued the cause for appellees. With

him on the brief was Bernard J. DiMuro. Constantinos G.

Panagopoulos entered an appearance.

Before: GINSBURG, BROWN and GRIFFITH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

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GINSBURG, Circuit Judge: Vanessa A. McFadden sued

Ballard Spahr Andrews & Ingersoll, LLP, a law firm at which

she had worked, and Margaret Riley-Jamison, a Human

Resources Manager at the firm, alleging violations of the

Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.;

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq.; the Americans with Disabilities Act, 42 U.S.C.

§ 12101 et seq.; § 1981 of the Civil Rights Act of 1866, 42

U.S.C. § 1981; and the District of Columbia Human Rights

Act, D.C. Code § 2-1402.11 et seq. (DCHRA). The district

court granted summary judgment for the defendants on all

claims and McFadden appealed.

I. Background

McFadden started work at Ballard Spahr in 1989 as a

legal secretary assigned to Charles Henck, a partner in the

firm‘s tax department. In October 2002 McFadden‘s husband

was diagnosed with cancer. McFadden requested time off to

care for him and was granted some leave. She claims Riley-

Jamison and others at Ballard Spahr interfered with her ability

to take additional leave by misinforming her about her

entitlement to leave under the FMLA and by harassing her for

taking too much time off. As a result, she claims, she took

less time off then she was entitled to take and had to pay her

sister to take care of her husband.

In April 2003 McFadden began to have her own health

problems. Suffering from Graves‘ disease, fibromyalgia,

depression, and a number of other ailments, she was unable to

continue working and took disability leave in October. After

the combination of paid and unpaid leave granted by Ballard

Spahr expired in May 2004, McFadden contacted the firm in

order to inquire about her job status. On a conference call

with Riley-Jamison, among others, McFadden was offered a

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position doing word processing, but explained she could not

do that job because of her difficulty typing. According to

McFadden, she asked to be made the receptionist but was told

that position was being held open for the permanent

receptionist, Betty Ann Hahn, who was also out on medical

leave. The firm then terminated McFadden, who is African-

American; her replacement was Caucasian.

II. Analysis

McFadden alleged Ballard Spahr and Riley-Jamison

discriminated against her upon the basis of race, in violation

of Title VII, § 1981, and the DCHRA; failed to make a

reasonable accommodation for her disability, in violation of

the ADA and the DCHRA; retaliated against her, in violation

of Title VII, the FMLA, the ADA, the DCHRA, and § 1981;

and interfered with her right to take leave as provided in the

FMLA. The district court granted summary judgment in

favor of the defendants on all counts. We review that

judgment de novo, ―bearing in mind that summary judgment

is appropriate only if there is no genuine issue as to any

material fact and if the moving party is entitled to judgment as

a matter of law.‖ Murphy v. IRS, 493 F.3d 170, 173 (D.C.

Cir. 2007) (internal quotation marks omitted).

A. Discrimination

McFadden claims Ballard Spahr and Riley-Jamison

discriminated against her upon the basis of her race when the

firm denied her request to be reassigned to the receptionist

position and when it terminated her. We evaluate each

allegation using the familiar burden-shifting framework

established for Title VII cases in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). See Howard Univ. v. Green, 652

A.2d 41, 45 & n.3 (D.C. 1994) (McDonnell Douglas

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framework applies to cases alleging discrimination in

violation of DCHRA); Metrocare v. Wash. Metro. Area

Transit Auth., 679 F.2d 922, 925 (D.C. Cir. 1982) (applying

McDonnell Douglas framework to claim of discrimination

under § 1981). Under this framework,

If the plaintiff establishes a prima facie case, the

defendant must come forward with a legitimate, non-

discriminatory reason for its actions. ... [I]f the

defendant meets its burden of production, the burden

shifts back to the plaintiff to persuade the fact finder that

the defendant‘s reason for its action is a mere pretext for

discrimination and (thus) that the defendant acted with

―discriminatory intent.‖

Koger v. Reno, 98 F.3d 631, 634 (D.C. Cir. 1996).

In keeping with Brady v. Office of Sergeant at Arms, 520

F.3d 490, 494 (D.C. Cir. 2008), the district court did not

pause to consider whether McFadden had made out a prima

facie case but instead went on directly to hold Ballard Spahr

had provided a legitimate, non-discriminatory reason for each

of the challenged actions: Ballard Spahr did not make

McFadden its receptionist because that position was occupied

by Hahn, who was on medical leave; and it terminated

McFadden because she could no longer do her job owing to

her medical condition. 580 F. Supp. 2d 99, 109 (2008). The

district court then held McFadden had not produced sufficient

evidence for a reasonable jury to conclude the reasons offered

by the firm were pretextual and granted summary judgment

for the defendants.

McFadden argues Ballard Spahr‘s reason for refusing to

give her the job of receptionist was a pretext because at that

time, May 2004, Hahn had been on medical leave for several

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months and so had no legal entitlement to the position. That

is not evidence sufficient for a reasonable jury to infer the

firm‘s refusal to reassign McFadden was racially motivated.

The firm claimed not that Hahn was legally entitled to the

position at the time of McFadden‘s request for reassignment

but rather that it was holding the position open for her return,

a claim supported by its use of a temporary employee to fill in

during Hahn‘s absence and until it became clear in August or

September 2004 that Hahn would not be returning.

McFadden suggests the reason given by Ballard Spahr for

her termination — that she was unable to perform the

essential functions of the legal secretary position — is not

itself a legitimate, non-discriminatory reason because it is ―on

its face, discriminatory on the basis of disability.‖ There is

nothing to this; the ADA does not prohibit an employer from

terminating an employee who cannot perform the essential

functions of her position, albeit with a reasonable

accommodation. See 42 U.S.C. § 12112(a) (prohibiting

discrimination ―against a qualified individual‖); 42 U.S.C.

§ 12112(8) (defining ―qualified individual‖ as one ―who, with

or without reasonable accommodation, can perform the

essential functions of the employment position‖). McFadden

in her brief acknowledges her medical condition rendered her

unable to perform the essential functions of a legal secretary:

―Disabled and no longer able to type, McFadden became

unable to continue working as a Legal Secretary.‖ That is

precisely the reason given by Ballard Spahr for terminating

her.

McFadden also argues the rationale for Ballard Spahr‘s

decision to terminate her was a pretext because several

Caucasian support staff received accommodations not offered

to McFadden. The district court found none of these

employees was similarly situated to McFadden because each

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had a different supervisor and none was unable to perform her

job due to a permanent medical condition. 580 F. Supp. 2d at

110. The latter point is dispositive. That Ballard Spahr gave

another employee time off in order to recover from a stroke,

receive treatment for cancer, travel, or care for a newborn,

does not provide the slightest reason to doubt Ballard Spahr‘s

claim to have terminated McFadden because, as a result of her

medical conditions, she was permanently unable to work as

either a legal secretary or a typist. See Royall v. Nat’l Ass’n

of Letter Carriers, 548 F.3d 137, 145 (D.C. Cir. 2008)

(allegation other employees were treated more favorably

could not establish pretext where plaintiff had not shown ―all

of the relevant aspects of his employment were nearly

identical‖ (internal quotation marks omitted)).

In sum, the district court correctly held McFadden

produced insufficient evidence for a reasonable jury to hold

pretextual Ballard Spahr‘s proffered non-discriminatory

reasons for not reassigning her and for terminating her.

Accordingly, we affirm the decision of the district court

granting summary judgment in favor of the defendants with

respect to McFadden‘s claim of discrimination upon the basis

of race.

B. Reasonable Accommodation

The ADA ―prohibits an employer from discriminating

against an ‗individual with a disability‘ who, with ‗reasonable

accommodation,‘ can perform the essential functions of the

job,‖ U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 393 (2002)

(quoting 42 U.S.C. §§ 12112(a) & (b)), and the DCHRA is to

like effect, see Whitbleck v. Vital Signs, Inc., 116 F.3d 588,

591 (1997). McFadden claims Ballard Spahr violated the

ADA and the DCHRA by refusing to reassign her to the

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receptionist position when she could no longer work as a legal

secretary.

The district court held reassignment of McFadden to the

receptionist position was not a reasonable accommodation for

two reasons. First, although the ADA provides ―‗reasonable

accommodation‘ may include ... reassignment to a vacant

position,‖ 42 U.S.C. § 12111(9), the receptionist position was

not vacant when McFadden requested reassignment. Second,

McFadden could not perform the essential functions of the

receptionist position because those functions included

punctuality and reliability and ―at the time of her termination,

[McFadden] was unable to attend work consistently and had

no way of predicting whether her illnesses would allow her to

attend work on a given day.‖ 580 F. Supp. 2d at 107–08.

McFadden argues the district court erred in concluding

the receptionist position was not vacant for the same reason

she argues the firm‘s proffered reason for not reassigning her

was a pretext for discrimination, to wit, Hahn‘s entitlement to

leave under the FMLA had expired when McFadden

requested the position. As McFadden puts it in her brief,

―Hahn had no legal interest in the position.‖ Whether Hahn

had a legal interest in the position — under the FMLA or

otherwise — is not determinative, however. The word

―vacant‖ has no ―specialized meaning‖ in the ADA. Barnett,

535 U.S. at 399. Its meaning ―in ordinary English,‖ id., is

―not held, filled, or occupied, as a position or office.‖

Webster‘s New Twentieth Century Dictionary 2014 (2d ed.

1983). McFadden does not deny that at the time she

requested reassignment to the receptionist position Hahn, the

long-time permanent receptionist, was in the second month of

a three-month period of non-FMLA leave, during which the

law firm had a temporary employee filling in. McFadden

does not claim Ballard Spahr had sought a permanent

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replacement for Hahn, had posted a job listing, or had

otherwise acted as though it considered the position vacant.

Under these circumstances Hahn clearly ―held, filled, or

occupied‖ the receptionist position.

McFadden‘s argument in the alternative that the

receptionist position was ―soon to be vacant‖ is a non-starter.

McFadden provides no evidence or argument Ballard Spahr

did not expect or at least reasonably hope Hahn would recover

and return to work when McFadden requested reassignment in

May 2004; her implicit suggestion to the contrary is belied by

the firm‘s failure to hire a permanent replacement until it had

become clear Hahn would not return in August or September

of 2004.

Because there is no genuine dispute about whether the

position to which McFadden requested reassignment was

vacant, we affirm the decision of the district court granting

summary judgment in favor of Ballard Spahr on McFadden‘s

claim the firm failed to provide a reasonable accommodation,

in violation of the ADA and the DCHRA. Therefore we need

not reach the alternative ground upon which the district court

relied. Nor do we address McFadden‘s argument the firm

should have assigned her to the receptionist position ―unless

or until Hahn came back;‖ McFadden doubly forfeited that

argument by failing to raise it in the district court and in her

opening brief on appeal. See, e.g., Bryant v. Gates, 532 F.3d

888, 898 (D.C. Cir. 2008) (argument not made before district

court is forfeited); Power Co. of Am., LP v. FERC, 245 F.3d

839, 845 (D.C. Cir. 2001) (court does not consider arguments

first offered in a reply brief).

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C. Retaliation

McFadden claims the defendants‘ denial of her request to

be given the position of receptionist and her termination also

constituted unlawful retaliation against her for conduct

protected by Title VII, the ADA, the FMLA, the DCHRA,

and § 1981. The analytical framework for her claim of

retaliation is essentially the same as that applicable to a claim

of discrimination under Title VII. See Cones v. Shalala, 199

F.3d 512, 520–21 (D.C. Cir. 2000) (Title VII); Woodruff v.

Peters, 482 F.3d 521, 528–29 (D.C. Cir. 2007) (ADA);

Gleklen v. Democratic Cong. Campaign Comm., Inc., 199

F.3d 1365, 1367 (D.C. Cir. 2000) (FMLA and DCHRA);

Carney v. Am. Univ., 151 F.3d 1090, 1095 (D.C. Cir. 1998)

(§ 1981). The district court granted summary judgment for

the defendants on this claim for the same reason it had

granted summary judgment on her claim of discrimination:

McFadden ―fail[ed] to show that Ballard Spahr‘s stated

legitimate reason for her termination was a pretext for

retaliation.‖ 580 F. Supp. 2d at 110 n.16.

Based upon two statements she recounted in her

deposition, McFadden argues a reasonable jury could infer

Ballard Spahr denied her request for reassignment and

terminated her in order to retaliate for her having requested

and taken leave due her under the FMLA, complained about

racial discrimination at Ballard Spahr, and requested

reassignment. Specifically, McFadden testified that Riley-

Jamison said the firm had too many sick people and should

hire younger, healthier people and an official in the firm‘s

Human Resources Department told McFadden, when

McFadden called the firm to inquire about her job status upon

the expiration of her leave, that she should ―resign and save

everybody the trouble.‖ Neither statement, however,

concerned McFadden‘s exercise or pursuit of protected rights

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or otherwise sufficiently suggests retaliatory animus for a

reasonable jury to conclude Ballard Spahr‘s explanations for

refusing to reassign and for terminating McFadden were

pretexts for retaliation. See Pardo-Kronemann v. Donovan,

601 F.3d 599, 611 (D.C. Cir. 2010) (affirming grant of

summary judgment against plaintiff notwithstanding

statements ―reflect[ing] at most a personal opinion or

sympathy insufficient for a reasonable jury to conclude [the

employer‘s] explanation is [a] pretext for retaliation‖ (internal

quotation marks omitted)); Haynes v. Williams, 392 F.3d 478,

485 (D.C. Cir. 2004) (―evidence that is merely colorable or

not significantly probative cannot create a genuine issue of

material fact‖ (internal quotation marks omitted)).

Accordingly, we affirm the district court‘s judgment for the

defendants on McFadden‘s claim for retaliation.

D. Interference with FMLA Rights

McFadden claims the defendants interfered with her

rights under the FMLA by misinforming her about the amount

of leave to which she was entitled and by pressuring her not to

take leave. Her burden is to show both that her employer

―interfere[d] with, restrain[ed], or den[ied] the exercise of or

the attempt to exercise, any right provided‖ by the FMLA, 29

U.S.C. § 2615(a)(1), and that she was prejudiced thereby. See

Ragsdale v. Wolverine Worldwide, Inc., 535 U.S. 81, 89

(2002) (discussing elements).

In granting the defendants‘ motion for summary

judgment on this claim, the district court assumed arguendo

that Ballard Spahr violated the FMLA, 580 F. Supp. 2d at

105, but held no reasonable jury could find McFadden was

prejudiced by the alleged violation. The court gave three

reasons: (1) McFadden ―does not [claim] that Ballard Spahr

ever denied her leave when she requested it,‖ (2) McFadden

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produced insufficient evidence in support of her contention

she paid her sister to care for her ailing husband, and (3)

McFadden does not ―allege a causal relationship between

Ballard Spahr‘s conduct and the payments.‖ Id. at 106.

None of the grounds relied upon by the district court

supports its decision. The first does not support summary

judgment because McFadden can succeed on her claim under

the FMLA without showing Ballard Spahr denied her any

leave she requested; she need only show the employer

―interfere[d] with ... the exercise of‖ her FMLA rights, 29

U.S.C. § 2615(a)(1), and that she suffered ―monetary losses ...

as a direct result of the violation, such as the cost of providing

care,‖ 29 U.S.C. § 2617(a)(1)(A)(i)(II).

As for the second ground, a reasonable jury could find

McFadden paid her sister to care for her husband upon the

basis of McFadden‘s uncontroverted declaration to that effect.

Contrary to the reasoning of the district court, the failure of

McFadden‘s sister to mention in her short sworn statement

that McFadden paid her is not in itself a reason to doubt

McFadden‘s deposition testimony. Finally, the third ground

does not support summary judgment because a reasonable

jury that found McFadden paid her sister to care for her

husband could infer McFadden did so because Ballard Spahr

led her to believe she could not take time off to care for him

herself. The causal relationship is implicit in McFadden‘s

allegation that, after Riley-Jamison said McFadden‘s need to

miss work on days when her husband had medical

appointments was ―going to be a problem,‖ in order ―[t]o

maintain her job, Ms. McFadden arranged for her sister to

care for [her] husband on [those days] and reported to work ...

as instructed.‖

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Because none of the grounds upon which the district

court relied supports its conclusion that no reasonable jury

could find McFadden was prejudiced by the purported

violation of the FMLA, we reverse the judgment of the

district court granting summary judgment for the defendants

on McFadden‘s claim under that statute. Ballard Spahr

suggests alternative grounds for affirming the judgment in this

respect but, because they implicate disputed issues of fact and

law, they are better addressed by the district court in the first

instance.

III. Conclusion

We reverse the judgment of the district court with respect

to McFadden‘s claim of interference in violation of the

FMLA and remand that claim for further proceedings because

there is a genuine issue of material fact as to whether

McFadden was prejudiced by the alleged interference.* We

affirm the judgment for the defendants with respect to

McFadden‘s other claims.

So ordered.

*

The district court did not reach the question whether Riley-

Jamison can be held personally liable for any of the firm‘s actions.

580 F. Supp. 2d at 110. We leave what remains of that issue for the

district court to decide in the first instance.