Benjamin Reynolds v. American National Red Cross

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BENJAMIN REYNOLDS, 

Plaintiff-Appellant,

v.

AMERICAN NATIONAL RED CROSS;

AMERICAN RED CROSS GREENBRIER

VALLEY CHAPTER; WALTER M.

LOCKHART,

Defendants-Appellees,  No. 11-2278

and

AMERICAN RED CROSS NATIONAL

HEADQUARTERS, Washington, DC;

AMERICAN RED CROSS MID-

ATLANTIC SERVICE AREA, Raleigh,

NC; NIKKI MCBAIN, Chapter

Solutions Manager, Raleigh, NC,

Defendants.



2 REYNOLDS v. AMERICAN NATIONAL RED CROSS

BENJAMIN REYNOLDS, 

Plaintiff-Appellee,

v.

AMERICAN NATIONAL RED CROSS;

AMERICAN RED CROSS GREENBRIER

VALLEY CHAPTER; WALTER M.

LOCKHART,

Defendants-Appellants,  No. 11-2280

and

AMERICAN RED CROSS NATIONAL

HEADQUARTERS, Washington, DC;

AMERICAN RED CROSS MID-

ATLANTIC SERVICE AREA, Raleigh,

NC; NIKKI MCBAIN, Chapter

Solutions Manager, Raleigh, NC,

Defendants.



Appeals from the United States District Court

for the Southern District of West Virginia, at Beckley.

Irene C. Berger, District Judge.

(5:10-cv-00443)

Argued: October 4, 2012

Decided: December 7, 2012

Before KING, KEENAN, and THACKER, Circuit Judges.

No. 11-2278 affirmed in part and vacated in part; No. 11-2280

dismissed by published opinion. Judge Thacker wrote the

opinion, in which Judge King and Judge Keenan joined.

REYNOLDS v. AMERICAN NATIONAL RED CROSS 3

COUNSEL

Sean Willard Cook, MEYER FORD GLASSER & RAD-

MAN, PLLC, Charleston, West Virginia, for Appellant/Cross-

Appellee. Constantinos George Panagopoulos, BALLARD

SPAHR, LLP, Washington, D.C., for Appellees/Cross-

Appellants.

OPINION

THACKER, Circuit Judge:

Benjamin S. Reynolds ("Appellant") appeals the district

court’s award of summary judgment in favor of the American

National Red Cross and the American Red Cross Greenbrier

Valley Chapter (collectively, "Appellees"). The district court

held that Reynolds failed to submit sufficient evidence to

meet his burden with regard to various Americans with Dis-

abilities Act ("ADA") claims. Despite their victory below,

Appellees nonetheless cross-appeal on the ancillary issue of

whether the number of employees of the National Red Cross

and the Greenbrier Valley Chapter can be aggregated for pur-

poses of determining "employer" status under the ADA. For

the reasons that follow, we affirm the district court’s award of

summary judgment to Appellees, vacate the district court’s

ruling that the Greenbrier Valley Chapter is an "employer"

under the ADA, and dismiss the cross-appeal.

I.

A.

Reynolds worked for the Greenbrier Valley Chapter of the

American Red Cross in Lewisburg, West Virginia (the "Chap-

ter"). He began as a volunteer in 1994 and then worked as a

per diem instructor beginning in 2004, being paid for each

4 REYNOLDS v. AMERICAN NATIONAL RED CROSS

health/safety, first aid, and CPR class he taught. He eventually

became a part-time employee in 2005. For the entire time he

was with the Chapter, Reynolds worked directly for Walter

M. Lockhart, Executive Director.1 Reynolds and Lockhart met

some years previously when they both volunteered with the

Civil Air Patrol. They interacted socially "every few days,"

J.A. 509,2 and Lockhart loaned Reynolds around $6,000 over

the course of their friendship.

In 2006, Lockhart offered Reynolds a full-time job with the

chapter as a "Manager of Service Delivery," a job description

that Lockhart drafted himself, and Reynolds accepted. Reyn-

olds began work in that position on or about August 1, 2006.

The job description provided, "[j]ob is physically comfort-

able; individual has discretion about walking, standing, etc."

J.A. 114.31. It also required Reynolds to "[t]each[ ] training

courses as necessary" and "recruit[ ] and retain[ ] volunteer

instructors for community classes and mission related

courses." Id. at 114.28, 114.30. The parties agree "90% of

[Reynolds’s] job was to teach health and safety classes. How-

ever, [he] was also tasked with recruiting or soliciting training

classes from the community." Id. at 763. The salary was listed

at $23,600.00 annually with no benefits.3

1

Reynolds sued Lockhart as well, but Lockhart was dismissed by a pre-

vious order of the district court. See Reynolds v. Am. Nat’l Red Cross, No.

5:10-cv-00443, 2011 WL 4479054 (S.D. W. Va. Sept. 26, 2011). Reyn-

olds is not appealing that order.

2

Citations to the "J.A." refer to the Joint Appendix filed by the parties

in this appeal.

3

There was some discussion amongst Reynolds and the Chapter regard-

ing an employment requirement that Reynolds solicit enough training

classes to be able to cover his salary. There is a dispute, however, as to

whether this requirement was, in fact, implemented, and, if so, the period

of time in which Reynolds would have had to meet the requirement. Reyn-

olds claims, "my understanding was that if that [the requirement] was

implemented, that I had a year from the date that I started that job to

accomplish that." J.A. at 496. Instead, Reynolds was terminated after only

six months of full time employment.

REYNOLDS v. AMERICAN NATIONAL RED CROSS 5

On or about August 5 or 6, 2006, during the first week that

Reynolds worked as Manager of Service Delivery, Lockhart

instructed Reynolds to help move a baby grand piano from the

home of a donor to Lockhart’s personal residence. Lockhart

and Robert Clark, a member of the Chapter’s Executive Com-

mittee, also helped. Reynolds alleges that he experienced "se-

vere pain in both his neck and upper back" when he started

moving the piano. Am. Compl. ¶ 14.4 Clark testified, "when

we got into the process of moving the piano [Reynolds said,]

‘boy, my back really hurts’. So we say, ‘then don’t touch the

piano’." J.A. 703. Clark said he "strongly advised [Reynolds]

not to help." Id. Reynolds alleges, however, that Lockhart "ig-

nored [his] plea [to stop moving the piano] and required him

to continue assisting in delivering and unloading the piano to

his personal residence." Am. Compl. ¶ 15. Reynolds admitted

that prior to this incident, his back was "stiff and sore because

he had previously moved mattresses for the Chapter." J.A.

763.

Reynolds alleges that after the piano incident he went to the

emergency room "a few days later . . . to seek relief from the

persistent and severe pain in his neck and upper back." Am.

Compl. ¶ 16.5 He saw two physicians, Dr. Boisverte and Dr.

Kribs, both in Lewisburg, who eventually referred him to Dr.

Dilaawar Mistry at the University of Virginia Health System

in Charlottesville. Because Reynolds’s car had been repos-

sessed and he had no other way to get to the appointment,

Lockhart drove Reynolds to Charlottesville to see Dr. Mistry

on September 7, 2006.

4

The Amended Complaint is found at J.A. 40-54.

5

During his deposition Reynolds admitted to going to the emergency

room on August 4, 2006, which was before the piano moving incident. For

the purpose of the Motion for Summary Judgment, however, Appellees

assumed that the alleged back injury was due to the piano lifting incident.

Therefore, this Court likewise makes that assumption for the purpose of

this appeal.

6 REYNOLDS v. AMERICAN NATIONAL RED CROSS

Dr. Mistry examined Reynolds and noted he "complain[ed]

of persistent left arm pain." J.A. 116-17. The physical exami-

nation showed, however, "[n]ormal range of motion and

strength in flexion, extension and axial rotation of the neck.

Normal range of motion and strength of both shoulders,

elbows and wrists. There was mild sensory loss on the tip of

the index finger of the left hand compared to the right." Id. at

117. Dr. Mistry also noted, in the "history" portion of the

report, that Reynolds’s X-ray showed "intervertebral disk

space narrowing with osteophytic change most pronounced at

C5-C6 and C6-C7" and "some foraminal encroachment sec-

ondary to osteophytes bilaterally." Id. at 116. Dr. Mistry

scheduled an MRI to be performed in Charlottesville, made a

follow-up appointment on September 19, 2006, and gave

Reynolds a note stating that he could return to work "with

restrictions that include lifting weights only up to 15 pounds."

Id. Dr. Mistry testified that due to Reynolds’s

normal range of motion and strength of his shoul-

ders, elbows and wrists, . . . [and] neck and

flexion/extension, axial rotation, and his indication

that he needs to return to work for the Red Cross, I

felt as a clinician that up to 15 pounds would be rea-

sonable to let him continue his work. . . .

Id. at 328.

After the examination, Dr. Mistry said Reynolds had "no

physical limitations as far as range of motion" and he "would

[not] consider [Reynolds] disabled." J.A. 333. Reynolds never

returned to Charlottesville for his follow-up appointment or

MRI. Therefore, Dr. Mistry had no occasion to determine if

the fifteen-pound lifting restriction that he imposed was still

appropriate weeks later.

Reynolds claims that after he returned to work, he was

asked to lift things in excess of fifteen pounds, despite Lock-

hart’s knowledge of Dr. Mistry’s orders. Upon their return to

REYNOLDS v. AMERICAN NATIONAL RED CROSS 7

Lewisburg, Lockhart "instructed [Reynolds] to assist with

moving boxes, mattresses, furniture and a five-drawer file

cabinet. [Reynolds] estimated that he lifted items weighing

more than fifteen pounds two to three times a week." J.A.

765, 533. Notably, however, Reynolds "never refused Lock-

hart’s instruction to lift any item while he was under the

restriction" and "could recall only one conversation when he

told Lockhart that he believed that moving a loaded file cabi-

net would be too heavy for him." Id. at 765-66, 540.

After allegedly sustaining the above-described back and

neck injuries,6 Reynolds twice told Lockhart he wanted to file

a workers’ compensation claim. Reynolds stated that Lockhart

told him that if he did so, "[he] would be dismissed and that

the Red Cross would fight [the claim]." Id. at 488. Lockhart

also told him the Chapter’s Executive Committee "[isn’t]

going to let you do that," and a workers’ compensation claim

"would cost the chapter either one or one-and-a-half percent

rate increase hike" and the Chapter "wouldn’t stand for that."

Id. at 490.

B.

At some point before the end of 2006, the Chapter deter-

mined that it no longer had the funds to pay Reynolds, and

Reynolds was so advised. Then, on or around January 28,

2007, Lockhart verbally informed Reynolds that he was ter-

minated because the Chapter did not have the funds to pay

him. On January 30, 2007, Reynolds received a termination

letter from Lockhart stating, "[d]ue to budget restriction [sic]

the Board of Director [sic] has asked me to termination [sic]

your employment with this chapter as of today." The letter

continued,

6

Reynolds also claims that he was disabled because he had "a blood dis-

order" which led to erectile dysfunction, but offered no medical support

in the record for this allegation nor any indication as to how this alleged

disorder rendered him disabled. Br. of Appellant 26-27.

8 REYNOLDS v. AMERICAN NATIONAL RED CROSS

We are exercising our rights as an "at will

employer." As you know this had been the balance

for the last ninety day [sic], hoping you would gener-

ate enough income to cover your salary. This has not

been done. Also the single family files has [sic] not

been entered into the CAS system, since July 2006.

Only about fifty percent of the Instructor [sic] in

health and safety has been upgraded.

J.A. 120.

As noted, there is some dispute as to whether Reynolds was

required to bring in enough money to cover his salary as a

part of his employment. It is undisputed that Reynolds did not

receive any negative evaluations or reprimands related to his

job performance prior to his termination.

C.

After his termination from the Chapter, Reynolds applied

for and was denied West Virginia workers’ compensation

benefits for his alleged back and neck injuries because his

application was untimely. He then filed a disability discrimi-

nation charge against the Chapter with the Equal Opportunity

Employment Commission ("EEOC") based on those alleged

injuries. He claimed that he was "harassed, retaliated against,

treated differently from others, denied a reasonable accommo-

dation, and unlawfully discharged based on his disability."

J.A. 768.

In March 2008, Reynolds obtained a teaching position in

North Carolina. He earned $43,000 per year, plus full bene-

fits. While at that job, Reynolds moved 195 books on a book

cart down a ramp. He tried to push the cart in front of him,

but it was "extremely heavy," so he tried to get in front of the

cart. The cart "got away from [him]" and "basically ran [him]

over." J.A. 442-43. After that incident, Reynolds filed for

worker’s compensation benefits, and he has been receiving

REYNOLDS v. AMERICAN NATIONAL RED CROSS 9

those benefits from the state of North Carolina since August

21, 2008.

On December 30, 2009, the EEOC determined that the

Chapter was not an ADA covered employer and dismissed

Reynolds’s EEOC claim. Reynolds then filed this action in

district court.

Appellees filed a motion for summary judgment, arguing

Reynolds did not present sufficient evidence to prove he was

disabled and, in any event, the Chapter was not an "employer"

under the ADA. The district court ruled in favor of Appellees

as to the former but against Appellees on the latter. It held

that, even though the Chapter employed fewer than fifteen

people—the threshold number of employees required to

invoke the ADA—the Chapter nonetheless was an "agent" of

the American National Red Cross, a covered employer under

the ADA. See Reynolds v. Am. Nat’l Red Cross, No. 5:10-cv-

00443 (S.D. W. Va. Oct. 17, 2011), ECF No. 88.7 Reynolds

filed a timely appeal, and Appellees filed a cross-appeal on

the agency issue alone.

II.

We review the district court’s summary judgment ruling de

novo, applying the same standard applied by the district court.

See Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011); Med.

Waste Assocs. Ltd. v. Mayor & City Council of Baltimore, 966

F.2d 148, 150 (4th Cir. 1992). Summary judgment is appro-

priate when there is no genuine issue of material fact, and the

moving party is entitled to summary judgment as a matter of

law. Id. On a motion for summary judgment, "facts must be

viewed in the light most favorable to the nonmoving party

only if there is a genuine dispute as to those facts." Ricci v.

DeStefano, 557 U.S. 557, 586 (2009) (internal quotation

marks omitted).

7

The district court’s opinion is found at J.A. 761-94.

10 REYNOLDS v. AMERICAN NATIONAL RED CROSS

III.

The ADA provides, "[n]o covered entity shall discriminate

against a qualified individual on the basis of disability in

regard to job application procedures, the hiring, advancement,

or discharge of employees, employee compensation, job train-

ing, and other terms, conditions, and privileges of employ-

ment." 42 U.S.C. § 12112(a). "Covered entity" is defined as

"an employer, employment agency, labor organization, or

joint labor-management committee." Id. § 12111(2). "Em-

ployer" is defined as "a person engaged in an industry affect-

ing commerce who has 15 or more employees . . . , and any

agent of such person[.]" Id. § 12111(5)(A).

A. The Appeal

Reynolds appeals three ADA claims on which the district

court awarded summary judgment: (1) he was fired because

of his alleged disability (the "primary ADA claim"); (2) he

was retaliated against for engaging in protected activities

under the ADA (the "retaliation claim"); and (3) his employer

shared confidential medical information about his alleged dis-

ability (the "confidentiality claim"). We address each in turn

below.

1. The Primary ADA Claim

To survive summary judgment on the primary ADA claim,

Reynolds was required to produce evidence sufficient to dem-

onstrate that (1) he "was a qualified individual with a disabil-

ity"; (2) he "was discharged"; (3) he "was fulfilling h[is]

employer’s legitimate expectations at the time of discharge";

and (4) "the circumstances of h[is] discharge raise a reason-

able inference of unlawful discrimination." Rohan v. Net-

works Presentations LLC, 375 F.3d 266, 273 n.9 (4th Cir.

2004) (internal quotation marks omitted). Evidence of all four

of these elements is necessary to survive summary judgment.

Reynolds’ claim fails at step one.

REYNOLDS v. AMERICAN NATIONAL RED CROSS 11

Reynolds was first required "to produce evidence that [he]

is . . . disabled." Rohan, 375 F.3d at 272. The ADA defines

disability as any one of the following: "(A) a physical or men-

tal impairment that substantially limits one or more . . . major

life activities . . . ; (B) a record of such an impairment; or (C)

being regarded as having such an impairment." 42 U.S.C.

§ 12102(2); see also Rohan, 375 F.3d at 273. As explained

below, because Reynolds does not produce sufficient evi-

dence to satisfy this element of the claim, we need not go fur-

ther.

a.

Given that Reynolds’s alleged disability occurred in 2006,

in deciding whether Reynolds produced sufficient evidence of

a disability, we must first decide whether to apply retroac-

tively the ADA Amendments Act of 2008 (the "ADAAA"),

which took effect January 1, 2009. See ADAAA, Pub. L. No.

110-325, § 8; 122 Stat. 3553, 3553 (Sept. 25, 2008).

In passing the ADAAA, Congress was concerned "lower

courts have incorrectly found in individual cases that people

with a range of substantially limiting impairments are not

people with disabilities." 122 Stat. at 3553. Congress believed

that over time, ADA case law "eliminate[d] protection for

many individuals whom Congress intended to protect." Id.

Before the enactment of the ADAAA, courts relied upon

Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534

U.S. 184 (2002), and Sutton v. United Air Lines, Inc., 527

U.S. 471 (1999), in determining whether a plaintiff was dis-

abled. These cases defined the terms "substantially" and

"major," as used in the ADA definition of disability, "to be

interpreted strictly to create a demanding standard for qualify-

ing as disabled[.]" Toyota, 534 U.S. at 197.

The Toyota Court held, in order to qualify as disabled

under the ADA, "an individual must have an impairment that

12 REYNOLDS v. AMERICAN NATIONAL RED CROSS

prevents or severely restricts the individual from doing activi-

ties that are of central importance to most people’s daily lives.

The impairment’s impact must also be permanent or long

term." 534 U.S. at 198. The Court continued,

It is insufficient for individuals attempting to prove

disability status under this test to merely submit evi-

dence of a medical diagnosis of an impairment.

Instead, the ADA requires those claiming the Act’s

protection . . . to prove a disability by offering evi-

dence that the extent of the limitation [caused by

their impairment] in terms of their own experience

. . . is substantial.

Id.; see also Sutton, 527 U.S. at 482 ("A ‘disability’ exists

only where an impairment ‘substantially limits’ a major life

activity, not where it ‘might,’ ‘could,’ or ‘would’ be substan-

tially limiting if mitigating measures were not taken.").

The district court decided — as have eight circuits—that

the ADAAA does not apply retroactively and instead, relied

on Toyota and Sutton in ruling on Reynolds’ claim. See Car-

ter v. Pathfinder Energy Servs., 662 F.3d 1134, 1144 (10th

Cir. 2011) (declining to impose the ADAAA retroactively);

Nyrop v. Indep. Sch. Dist. No. 11, 616 F.3d 728, 734 n.4 (8th

Cir. 2010) (same); Becerril v. Pima Cnty. Assessor’s Office,

587 F.3d 1162, 1164 (9th Cir. 2009) (same); Thornton v.

United Parcel Serv., Inc., 587 F.3d 27, 35 n.3 (1st Cir. 2009)

(same); Fredricksen v. United Parcel Serv. Co., 581 F.3d 516,

521 n.1 (7th Cir. 2009) (same); Lytes v. D.C. Water & Sewer

Auth., 572 F.3d 936, 942 (D.C. Cir. 2009) (same); Millholland

v. Sumner Cnty. Bd. of Educ., 569 F.3d 562, 565 (6th Cir.

2009) (same); EEOC v. Agro Distribution LLC, 555 F.3d 462,

469 n.8 (5th Cir. 2009) (same).8

8

This court has also held the same in an unpublished opinion. See Coch-

ran v. Holder, 436 F. App’x 227 (4th Cir. June 21, 2011).

REYNOLDS v. AMERICAN NATIONAL RED CROSS 13

The Supreme Court has held, "[R]etroactivity is not favored

in the law[.] [C]ongressional enactments and administrative

rules will not be construed to have retroactive effect unless

their language requires this result." Landgraf v. Usi Film

Prods., 511 U.S. 244, 264 (1994). The ADAAA itself pro-

vides "[t]his Act and the amendment made by this Act shall

become effective on January 1, 2009." 122 Stat. at 3559. In

Cochran, this court concluded that the amendment "evinces a

prospective intent with its delayed effective date." 436 F.

App’x at 232. We agree: there is no language in the ADAAA

indicating that Congress intended to make this law retroac-

tive; in fact, the indication is to the contrary.

Reynolds nonetheless contends that although the ADAAA

was not in effect at the time the conduct giving rise to this

case occurred, it was in full effect when the district court ren-

dered its decision below (October 17, 2011), and it should be

applied for that reason. See Landgraf, 511 U.S. at 273 ("[I]n

many situations, a court should apply the law in effect at the

time it renders its decision, even though that law was enacted

after the events that gave rise to the suit." (internal citations

and quotation marks omitted)). But Landgraf resolved,

[P]rospectivity remains the appropriate default rule.

Because it accords with widely held intuitions about

how statutes ordinarily operate, a presumption

against retroactivity will generally coincide with leg-

islative and public expectations. Requiring clear

intent assures that Congress itself has affirmatively

considered the potential unfairness of retroactive

application and determined that it is an acceptable

price to pay for the countervailing benefits. Such a

requirement allocates to Congress responsibility for

fundamental policy judgments concerning the proper

temporal reach of statutes, and has the additional vir-

tue of giving legislators a predictable background

rule against which to legislate.

14 REYNOLDS v. AMERICAN NATIONAL RED CROSS

511 U.S. at 272-73; see also Carter, 662 F.3d at 1144 (declin-

ing to apply the ADAAA retroactively because it went into

effect after "the allegedly discriminatory conduct in this case

occurred"); Thornton, 587 F.3d at 35 n.3 (explaining that the

ADAAA does not apply retroactively to "conduct occurring

before the Act became effective").

For these reasons, we join the majority of the circuits in

deciding the ADAAA does not apply retroactively. Therefore,

we will instead look to Toyota, Sutton, and their progeny.

b.

We first consider whether Reynolds provided evidence on

the first ADA definition of disability: whether he had a physi-

cal impairment that substantially limited one or more major

life activities. See 42 U.S.C. § 12102(2)(A). Reynolds primar-

ily cites "lifting" as the major life activity in which he is sub-

stantially limited due to his alleged back and neck injuries.

Federal regulations have established that lifting is a major life

activity, see 29 C.F.R. § 1630.2(i)(1), but Reynolds fails to

show how he has been "substantially limited" in this regard.

Reynolds has not shown that his alleged injuries have "pre-

vent[ed] or severely restrict[ed]" him "from doing activities

that are of central importance to most people’s daily lives."

Toyota, 534 U.S. at 198. He has also not shown any evidence

that these injuries are "permanent or long term." Id.

In fact, the evidence is to the contrary. Reynolds continued

to lift things upon his return to work; he did not return to Dr.

Mistry (or to any doctor) for a determination that his lifting

restriction of fifteen pounds should be permanent; and even at

his new job in North Carolina, he took on the task of trans-

porting 195 books, which signals that he did not believe him-

self to be limited in the activity of lifting. Moreover, the only

medical evidence Reynolds provides regarding his alleged

limitation is a three-page medical report from Dr. Mistry.

Coupled with Dr. Mistry’s testimony that he did not believe

REYNOLDS v. AMERICAN NATIONAL RED CROSS 15

Reynolds to be disabled, this evidence does not demonstrate

that Reynolds was substantially limited in the life activity of

lifting.

Reynolds’s argument is further undercut by this court’s

decision in Williams v. Channel Master Satellite Sys., Inc.,

101 F.3d 346 (4th Cir. 1996), abrogated on other grounds by

Baird ex rel. Baird v. Rose, 192 F.3d 462, 470 (4th Cir. 1999).

There, this court held, "a twenty-five pound lifting limitation

—particularly when compared to an average person’s abilities

—does not constitute a significant restriction on one’s ability

to lift, work, or perform any other major life activity." Id. at

349. In 2002, this court again found that "mild limitations"

such as "the restriction[ ] that [the plaintiff] not lift more than

twenty-five pounds or bend repetitively . . . are not signifi-

cantly restricting . . . under the ADA." Pollard v. High’s of

Baltimore, Inc., 281 F.3d 462, 470 (4th Cir. 2002); see also

Colwell v. Suffolk Cnty. Police Dep’t, 158 F.3d 635, 639, 644

(2d Cir. 1998) (inability to lift "very heavy objects" or "any-

thing heavy" was insufficient to establish a substantial limita-

tion on ability to lift as compared to the average person);

Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1207 (8th Cir.

1997) ("While lifting is noted under the regulations as a major

life activity, a general lifting restriction imposed by a physi-

cian, without more, is insufficient to constitute a disability

within the meaning of the ADA."). Therefore, Reynolds has

not satisfied the first definition of "disabled" under the ADA.9

c.

We next address whether Reynolds has satisfied the second

definition of disability: having "a record of" a physical

impairment that substantially limits one or more major life

9

To the extent Reynolds cites other disabilities (i.e., a blood disorder

leading to erectile dysfunction) and other life activities in which he was

limited (i.e., working), the record is void of any evidence to support ADA

claims based on such allegations.

16 REYNOLDS v. AMERICAN NATIONAL RED CROSS

activities. 42 U.S.C. § 12102(2)(B). On this point, Reynolds

bends over backwards to argue that he has provided "a

record"—that is, literally one medical record—and this should

be sufficient to satisfy this requirement.

However, under the applicable definition, we must consider

if Reynolds has "a history of, or has been misclassified as

having, a . . . physical impairment that substantially limits one

or more major life activities." Rhoads, 257 F.3d at 391 (inter-

nal quotation marks omitted). Reynolds’s single proffered

medical report is, at best, inconclusive as to the history and

extent of his alleged disability, despite the fact that he alludes

to "voluminous [medical] records," particularly when this sin-

gle medical record is coupled with the fact that the doctor

who wrote it, Dr. Mistry, testified that he did not believe

Reynolds to be disabled. Br. of Appellant 30. Indeed, Reyn-

olds admits he did not provide all relevant medical informa-

tion, stating,

It is true that all of the records of Mr. Reynolds’

entire medical history were not included as exhibits

in his response to summary judgment below. How-

ever, the presentment of these voluminous records is

unnecessary for purposes of this analysis. It is not

the substance of these records that is significant in

order to reach a decision under this second prong of

the ADA’s definition of a disability. Instead, it is the

existence of these records that is consequential here,

and the existence of these records is undisputed.

Id. (emphasis in original). Contrary to Reynolds’s bold asser-

tion, unless the purported medical records were placed in the

record — which they admittedly were not — they do not, in

fact, exist for the purpose of this appeal. Therefore, by his

admission, Reynolds acknowledges that he failed to satisfy

his burden of production. See Ricci v. DeStefano, 557 U.S.

557, 586 (2009) ("[W]here the nonmoving party will bear the

burden of proof at trial on a dispositive issue, the nonmoving

REYNOLDS v. AMERICAN NATIONAL RED CROSS 17

party bears the burden of production under Rule 56 to desig-

nate specific facts showing that there is a genuine issue for

trial." (internal quotation marks omitted)). We therefore con-

clude Reynolds does not satisfy the second definition of dis-

ability.

d.

Finally, Reynolds argues he was, at least, "regarded as"

having a physical impairment that substantially limited one or

more major life activities, thus satisfying the third definition

of disability. 42 U.S.C. § 12102(2)(C). Reynolds must show

that his employer "mistakenly believe[d] that [he] ha[d] a

physical impairment that substantially limit[ed]" his ability to

lift or work. Sutton, 527 U.S. at 489. To the contrary, Lock-

hart expected Reynolds to continue lifting things at work, and

Reynolds continued to do so. Lockhart testified that Reynolds

had complained of back pain and his blood disorder through-

out the time he knew him, but there is no further evidence

Lockhart believed these conditions substantially limited

Reynolds’s ability to lift or work. Reynolds also points to tes-

timony from Clark, specifically that he told Reynolds not to

move the baby grand piano because of his back pain. But this

statement is nothing more than one of concern for a co-

worker, which is simply not enough to satisfy this definition

of disability.

Therefore, Reynolds comes up short on each of the three

ADA definitions of disability, and we affirm the judgment of

the district court with regard to the primary ADA claim.10

10

Even if we were obliged to apply the ADAAA to the facts of this case,

Reynolds has not proven that he is disabled under its broader definition of

"disability." The ADAAA retains the "substantial limitation" language, but

it requires a lesser "degree of limitation" than that imposed by Toyota. 122

Stat. at 3553-54. "Substantially limits" no longer means "significantly

restricted." Id. at 3554. Although the revisions are somewhat vague, any

findings of disability should be interpreted "consistently with the findings

18 REYNOLDS v. AMERICAN NATIONAL RED CROSS

2. The Retaliation Claim

Reynolds also claims he was terminated by Lockhart and

the Chapter in retaliation for (a) requesting that he not be

required to lift items exceeding fifteen pounds in weight, and

(b) mentioning that he wanted to file a workers’ compensation

claim.

The ADA’s retaliation provision provides, in relevant part,

"[n]o person shall discriminate against any individual because

such individual . . . made a charge . . . under this chapter." 42

U.S.C. § 12203(a). To establish a prima facie retaliation claim

under the ADA, a plaintiff must prove (1) he engaged in pro-

tected conduct, (2) he suffered an adverse action, and (3) a

causal link exists between the protected conduct and the

adverse action. See A Soc’y Without a Name v. Common-

wealth of Va., 655 F.3d 342, 350 (4th Cir. 2011). Importantly,

a plaintiff is not required to prove the conduct he opposed was

actually an ADA violation. Rather, he must show he had a

"good faith belief" the conduct violated the ADA. Freilich v.

Upper Chesapeake Health, 313 F.3d 205, 216 (4th Cir. 2002)

(internal citations omitted).

As to Reynolds’s first grounds for retaliation, his alleged

protected conduct is his request that Lockhart honor the

fifteen-pound lifting restriction imposed by Dr. Mistry. He

claims Lockhart nonetheless required him to move items in

excess of the limitation. Even assuming that Reynolds met the

first two prongs to establish a prima facie claim of retaliation,

as the district court observed, Reynolds "has not proffered any

. . . citation to the record demonstrating that there is ‘evi-

and purposes of the ADA Amendments Act of 2008" which include

"eliminat[ing] discrimination" of disabled persons. Id. at 3554-56. Based

on the record before us, and for the reasons stated supra, Reynolds does

not advance evidence sufficient to show that he is disabled or is the type

of plaintiff intended to be covered under the original version of the ADA

or under the ADAAA.

REYNOLDS v. AMERICAN NATIONAL RED CROSS 19

dence’ of a link between the protected activity and his termi-

nation . . . ." J.A. 792. On appeal, Reynolds has similarly

failed to cite to any evidence on the causation element of the

ADA retaliation claim. Therefore, the retaliation claim based

on Reynolds’s lifting restriction fails.

The retaliation claim based on Reynolds’s workers’ com-

pensation inquiry also fails. The ADA’s retaliation provision

only prohibits retaliation against a person because the person

"opposed any act or practice made unlawful by this chapter"

or "made a charge, testified, assisted or participated in any

manner in an investigation, proceeding, or hearing under this

chapter." 42 U.S.C. § 12203(a) (emphases added). Filing a

workers’ compensation claim is not something that is covered

by the ADA, but rather by retaliation provisions under state

law. See W. Va. Code § 23-5A-1 ("No employer shall dis-

criminate in any manner against any of his present or former

employees because of such present or former employee’s

receipt of or attempt to receive benefits under this chapter.").

Thus, Reynolds’s retaliation claim based on his workers’

compensation request likewise fails.

3. The Confidentiality Claim

Finally, Reynolds argues, "information obtained regarding

the medical condition or history [of an employee must be]

collected and maintained on separate forms and in separate

medical files and is treated as a confidential medical record."

Br. of Appellant 33 (citing 42 U.S.C. § 12112(d)(3)(B))

(alteration in original). He argues that Lockhart violated this

provision of the ADA by disclosing his "thick blood" medical

condition to "unauthorized individuals." Id. at 34.

Again, Reynolds does not have the evidence to support this

claim. First, Reynolds does not fit within the parameters of

this subsection, which applies to "job applicant[s]." 42 U.S.C.

§ 12112(d)(3). But even assuming Reynolds had cited to the

more applicable subsection, which prohibits "mak[ing] [medi-

20 REYNOLDS v. AMERICAN NATIONAL RED CROSS

cal] inquiries of an employee," id. § 12112(d)(4)(A), the

record clearly shows Reynolds disclosed his medical condi-

tion voluntarily to Lockhart, who by all accounts was Reyn-

olds’s friend. Lockhart then disclosed the information to

another person in order to help Reynolds find a doctor, not for

"job-related" purposes. Id. Therefore, the district court prop-

erly granted summary judgment on this issue.

B. The Cross-Appeal

We turn finally to the cross-appeal of the Appellees, where

they assert the Chapter and the National Red Cross could not

be aggregated in order to meet the fifteen employee threshold

required for an "employer" under the ADA. As an initial mat-

ter, we are satisfied that the issue of whether the Chapter is

an "employer" under the ADA is non-jurisdictional in nature.

Previously, we treated the numerosity requirements of the

ADA and other employment discrimination statutes as juris-

dictional. See Hukill v. Auto Care, Inc., 192 F.3d 437 (4th Cir.

1999) (vacating district court’s judgment and remanding with

instructions to dismiss for lack of jurisdiction where defen-

dant was not an "employer"). However, this approach does

not survive Arbaugh v. Y&H Corp., 546 U.S. 500 (2006).

There, the Supreme Court ruled "the threshold number of

employees for application of Title VII is an element of a

plaintiff’s claim for relief, not a jurisdictional issue." Id. at

516.

Although we have never applied Arbaugh to the ADA,

courts often look to Title VII—which defines "employer" in

essentially the same way as the ADA—for guidance on ADA

issues. Compare 42 U.S.C. § 12111(5)(a) with 42 U.S.C.

§ 2000e(b); see also Swallows v. Barnes & Noble Book

Stores, Inc., 128 F.3d 990, 992 n.2 (6th Cir. 1997) ("Because

Title VII, the ADEA, and the ADA define ‘employer’ essen-

tially the same way, we rely on case law developed under all

three statutes." (internal quotation marks omitted)); EEOC v.

AIC Sec. Investigations, 55 F.3d 1276, 1280 (7th Cir. 1995)

REYNOLDS v. AMERICAN NATIONAL RED CROSS 21

("Courts routinely apply arguments regarding individual lia-

bility to all three statutes interchangeably."). Thus, Arbaugh

dictates that the ADA’s employee threshold is not a limit on

jurisdiction but, rather, an element of the claim itself.

Next, we conclude that the cross-appeal was not properly

taken. A cross-appeal is unnecessary where an appellee

"seek[s] nothing more than to preserve [a] judgment in [its]

favor." Vogel v. Linde, 23 F.3d 78, 79 n.3 (4th Cir. 1994); see

also Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. W. Lake

Acad., 548 F.3d 8, 23 (1st Cir. 2008) ("‘A cross-appeal nor-

mally is improper when taken by a defendant from a favorable

judgment.’") (quoting United States v. Moran, 393 F.3d 1, 12

(1st Cir. 2004)). Here, the cross-appeal on whether the Chap-

ter is an "employer" is unnecessary, as it merely seeks affir-

mance of the district court’s judgment on an alternate ground.

Therefore, the cross-appeal must be dismissed. See Nat’l

Union, 548 F.3d at 23 (dismissing cross-appeal from a favor-

able judgment).

Finally, we vacate the district court’s ruling on the

employee aggregation issue. Our decision to uphold the dis-

trict court’s grant of summary judgment on the merits of the

ADA claim renders moot the dispute concerning whether the

Chapter is an "employer." This is because, having affirmed

the district court’s judgment, our resolution of the question of

whether the Chapter is an "employer" would have no practical

effect on the outcome of this matter. See Norfolk S. Ry Co. v.

City Of Alexandria, 608 F.3d 150, 161 (4th Cir. 2010) ("A

dispute is moot when the parties lack a legally cognizable

interest in the outcome. And the parties lack such an interest

when, for example, our resolution of an issue could not possi-

bly have any practical effect on the outcome of the matter.")

(internal citations and quotation marks omitted). "The cus-

tomary practice when a case is rendered moot on appeal is to

vacate the moot aspects of the lower court’s judgment." Id.

Accordingly, the district court’s ruling that the Chapter is an

"employer" under the ADA must be vacated.

22 REYNOLDS v. AMERICAN NATIONAL RED CROSS

IV.

Pursuant to the foregoing, the district court’s award of sum-

mary judgment to Appellees is affirmed, its ruling that the

Chapter is an "employer" under the ADA is vacated, and the

cross-appeal is dismissed.

No. 11-2278 AFFIRMED IN PART

AND VACATED IN PART;

No. 11-2280 DISMISSED