Petition for Writ of Certiorari — Jeffrey B. Israelitt, Petitioner v. Enterprise Services LLC

Supreme Court briefJan 12, 2024

Ask Donna

What actually matters in this document.

Text

APPENDIX

TABLE OF CONTENTS

Appendix A, Opinion of the U.S. Court of

Appeals for the Fourth Circuit, August

16, 2023 ............................................................... 1a

Appendix B, Memorandum of Decision of the

U.S. District Court (D. Maryland),

March 7, 2022 .................................................... 27a

Appendix C, Memorandum Opinion of the

U.S. District Court (D. Maryland),

January 7, 2022................................................. 52a

Appendix D, Memorandum Opinion of the

U.S. District Court (D. Maryland),

March 2, 2021 .................................................... 61a

Appendix E, Order of the U.S. Court of

Appeals for the Fourth Circuit (denying

rehearing en banc), September 12, 2023 ......... 91a

Appendix F, Statutory References, Title 42,

The Public Health and Welfare ........................ 93a

42 U.S.C. § 1981a. Damages in cases of

intentional discrimination in

employment................................................. 93a

42 U.S.C. § 2000e-5. Enforcement

provisions .................................................... 97a

42 U.S.C. § 12112. Discrimination ................. 109a

42 U.S.C. § 12117. Enforcement ..................... 115a

42 U.S.C. § 12203. Prohibition against

retaliation and coercion ............................ 116a

APPENDIX A

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

__________

No. 22-1382

__________

JEFFREY B. ISRAELITT,

Plaintiff-Appellant,

ENTERPRISE SERVICES, LLC,

Defendant-Appellee,

and

HEWLETT PACKARD; HEWLETTPACKARD COMPANY; HEWLETT

PACKARD ENTERPRISE COMPANY; HP

INC.; DXC TECHNOLOGY COMPANY; DXC

TECHNOLOGY SERVICES LLC; NETIQ

CORPORATION, trading as Micro Focus,

Defendants.

---------------------------------EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Amicus Supporting Appellant.

___________

Appeal from the United States District Court for the

District of Maryland, at Baltimore.

_____________

Argued: March 9, 2023

Decided: August 16, 2023

___________

Before KING and RICHARDSON, Circuit Judges,

and Joseph DAWSON III, United States District

Judge for the District of South Carolina, sitting by

designation.

___________

Affirmed by published opinion. Judge Richardson

wrote the opinion, in which Judge King and Judge

Dawson joined.

___________

ARGUED: Levi S. Zaslow, HIJAZI, ZASLOW &

CARROLL, P.A., Bowie, Maryland, for Appellant.

James

Driscoll-MacEachron,

EQUAL

EMPLOYMENT OPPORTUNITY COMMISSION,

Phoenix, Arizona, for Amicus Curiae. Heather

Folsom Crow, KULLMAN LAWFIRM, Tallahassee,

Florida, for Appellee. ON BRIEF: Allison A. Fish,

KULLMAN LAW FIRM, New Orleans, Louisiana, for

Appellee. Gwendolyn Young Reams, Acting General

Counsel, Jennifer S. Goldstein, Associate General

Counsel, Anne Noel Occhialino, Acting Assistant

General Counsel, Appellate Litigation Services,

Office of General Counsel, EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION, Washington, D.C.,

for Amicus Curiae.

RICHARDSON, Circuit Judge:

While working an IT position at Enterprise

Services LLC, Jeffrey Israelitt says he was

discriminated against because he has disability—an

arthritic big toe. It’s true that his brief stint at the

company was mired with issues. The company says

the issues arose because Israelitt didn’t work well

with others, and actually, didn’t work much at all.

Israelitt says the issues arose because of his alleged

disability. After he was fired, he brought claims

under the Americans with Disabilities Act asserting

that Enterprise Services discriminated against him

because of his toe and retaliated against him for

seeking toe-related accommodations.

Those claims failed at various stages before the

district court. At the summary judgment stage, the

district court held that Israelitt does not have a

“disability,” and so it rejected every claim except

retaliation. For the retaliation claim, the district

court held that Enterprise Services’s only potentially

retaliatory act was firing Israelitt and allowed him to

take that claim to trial. But Enterprise Services

moved to strike Israelitt’s jury-trial demand. And,

after reasoning that the Seventh Amendment does

not guarantee a jury trial for ADA-retaliation

plaintiffs, the district court granted the motion.

Following the bench trial, the district court entered

judgment for Enterprise Services on the remaining

claim because Israelitt failed to prove he was fired

because he asked for disability accommodations.

Israelitt primarily raises three issues on appeal.

First, he says that the district court misinterpreted

the ADA when holding he is not “disabled” by relying

on an outdated EEOC Second, he says that the

district court misstated the level of harm required for

a retaliatory adverse action. Not so. Burlington

Northern—which the district court applied—makes

clear that a retaliation plaintiff must suffer

“significant” harm, which comes from a “materially

adverse” action. Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 68 (2006). Third, he relies on a

convoluted theory of statutory interpretation to argue

that ADA-retaliation plaintiffs are guaranteed a jury

trial by the Seventh Amendment. To the contrary, a

straightforward reading of 42 U.S.C. § 1981a(a)(2)

says otherwise. So we affirm the district court.

I. Background

Enterprise Services1 hired Israelitt as a Senior

Information Systems Security Architect, or in plain

English, a high-level IT worker focused on

cybersecurity. He had two main tasks: (1) conduct

risk assessments for a product Enterprise Services

was pitching to the Department of Homeland

Security and (2) prepare a technology roadmap

reviewing products in Enterprise Services’s market

space. But things did not go well during Israelitt’s

seven-month stint at the company.

The first major issue involved a customer-focused

conference hosted by the company. The conference

was a platform for Enterprise Services to showcase

its products to customers. Customers attended for

free. Employees, on the other hand, only attended if

needed, in which case they were given passes or

allocated funding to pay the registration fees.

Israelitt’s

team—the

Cybersecurity

Solutions

Group—requested that several members, including

Israelitt, attend. While that was in the works, an

employee working on the event sent Israelitt and a

few co-workers a customer code, allowing them to

After he was registered, Israelitt decided he

wanted to stay at the event venue—a downtown D.C.

hotel—rather than commute from his home in Glen

Enterprise Services LLC was spun off from Hewlett

Packard during litigation. Because the corporate restructuring

is complicated and unimportant for purposes of this appeal, we

refer to the defendant as Enterprise Services.

Burnie, Maryland. He thought commuting risked

aggravating his toe condition. So he tried to reserve a

room, but the hotel was fully booked. He then

contacted event staff and obtained a hotel room

reserved for handicapped patrons. Around the same

time—and possibly because the communications

stirred a closer review of his registration—event staff

flagged that Israelitt had improperly registered using

a code reserved for customers.

This created issues for the employees who used

the customer code, as they would “likely [ ] be turned

down” from attending the event. J.A. 782. In the

fallout, there was a scramble to determine whether

the employees could still attend. During that time,

Israelitt became adamant about going and began

pestering his supervisor, George Romas. There was

confusion about how the situation would resolve, and

even when it appeared that the co-workers were

cleared for attendance, questions remained about

Israelitt. Israelitt was not happy, and he escalated

things.

leveled

accusations

that

his

“medical/disability info” was the reason he could not

attend. J.A. 780. But the Enterprise Services

employee working on the event told a different story:

Israelitt had feigned a disability for preferential

treatment from the hotel. See J.A. 779 (claiming that

Israelitt himself said he “really isn’t handicapped but

has a sore toe that he feels he can claim as a

handicap”). Eventually, Romas stepped in. Although

the exact resolution reached is unclear, by the end of

a forty-five-minute phone call, Israelitt agreed to not

attend the conference and “keep his mouth shut.” J.A.

778.

Israelitt’s issues didn’t end with the conference.

He also had more mundane, interpersonal issues. He

often hijacked a daily team call to air his grievances.

He would then follow up on those grievances in

lengthy emails to Romas. What’s worse, he wasn’t

productive. Romas did his best to account for these

shortcomings. He removed Israelitt from the daily

calls, which Israelitt had “[n]o problem with.” And he

transitioned Israelitt to focusing on the technology

roadmap, a longer-term project that he could work on

under the tutelage of a more senior co-worker.

Things got a bit better, and Israelitt received a

decent performance review. Still, interpersonal

problems remained. As the review itself noted:

Israelitt “has had a challenge adjusting” and “can be

aggressive” so he “will be mentored and counseled on

more diplomatic ways to communicate.” J.A. 745. And

his productivity didn’t see a massive turnaround

either. When Israelitt presented his progress on the

technology roadmap a month later, he didn’t have

much to show.

While Israelitt kept working on the roadmap, a

second major issue occurred. This one involved a

company trip to Florida. The trip was intended to be

a team-building trip for the Cybersecurity Solutions

Group and was paid for by billing to the Department

of Homeland Security account. During the planning

stages, Israelitt became concerned over the amount of

walking the trip involved. So—without indicating

why in the request—he asked to be listed as an

additional driver on the rental vehicle. Soon after,

Israelitt was effectively removed from the

Department of Homeland Security project (when he

was told to no longer bill to that client). Then, he was

told that he would no longer go to Florida.

A month later, Romas sent Israelitt a formal

performance warning. It gave Israelitt thirty days to

“demonstrate immediate and sustained improvement

by successfully completing” the technology roadmap.

J.A. 623. At the end of the thirty-day period, Israelitt

had made no meaningful progress and was fired.

He then sued under the ADA, demanding a jury

trial to resolve his claims of discrimination, wrongful

discharge, denial of reasonable accommodations,

hostile work environment, and retaliation. His

complaint describes his disability as “musculoskeletal

issues” generally. J.A. 15. Yet the only impairment

really at issue is his toe condition. To be precise,

Israelitt has hallux rigiditis, which causes

“degenerative changes at the metatarsophalangeal

joint” and “calcaneal bone spurs” in his right big toe.

J.A. 517. Nearly two decades before his employment

at Enterprise Services, he twice had surgery to

remove bone spurs from the toe. The condition can be

painful, and Israelitt used shoe inserts and had a

State of Maryland disability parking pass. But aside

from the parking pass2 and shoe inserts, the evidence

that Israelitt was impaired by his toe condition was

remarkably limited. He offered no evidence of

medical care for the condition for over a decade. And

he did not use any assistive device to walk. To the

contrary, he walked unassisted for exercise several

times a week, up to 30 to 45 minutes each time.

Israelitt’s own doctor said that “by strict interpretation of

criteria, [Israelitt] does not qualify” for the parking pass. J.A.

831. In any event, we have no reason to think the meaning of

disability under the ADA and Maryland law governing the

issuance of disability parking passes are coextensive, so neither

the parking pass nor the doctor’s comment are determinative for

purposes of our analysis.

Following discovery, Enterprise Services moved

for summary judgment. The district court determined

that Israelitt did not have a “disability” under the

ADA, so it granted summary judgment on the

discrimination, wrongful discharge, failure to

accommodate, and hostile work environment claims.

This left only the retaliation claim. For that claim,

Israelitt alleged four retaliatory, adverse actions: (1)

denial of the opportunity to attend the conference; (2)

removal from the daily team calls; (3) denial of the

opportunity to attend the team-building trip to

Florida; and (4) termination. The district court held

the non-termination actions were not sufficiently

harmful. So those were out. But the district court

allowed the claim to survive on the termination

adverse action, even though she questioned

causation.

With only the retaliation claim remaining,

Enterprise Services asked to strike the jury-trial

demand. Reasoning that an ADA-retaliation plaintiff

has no right to a jury trial, the district court granted

that request. After the bench trial, the district court

found there was no evidence—aside from the

temporal proximity—that the termination was

retaliatory. So the district court entered judgment for

Enterprise Services on the retaliation claim. Israelitt

appealed, and we have jurisdiction.

II. Discussion

The

ADA

prohibits

employers

from

discriminating “on the basis of disability.” 42 U.S.C.

§ 12112(a). Israelitt brought claims of discrimination,

wrongful discharge, failure to accommodate, hostile

work environment, and retaliation under the ADA.

All of them, except the retaliation claim, require

Israelitt to show that he has a “disability.” See Jacobs

v. N.C. Admin. Office of the Courts, 780 F.3d 562, 572

(4th Cir. 2015) (discrimination); Haulbrook v.

Michelin N. Am., Inc., 252 F.3d 696, 702 (4th Cir.

2001) (wrongful discharge); Wilson v. Dollar Gen.

Corp., 717 F.3d 337, 345 (4th Cir. 2013) (failure to

accommodate); Fox v. Gen. Motors Corp., 247 F.3d

169, 177 (4th Cir. 2001) (hostile work environment).

Since Israelitt does not have a disability, the court

was right to grant summary judgment on every claim

except retaliation.

The district court also properly granted judgment

on the retaliation claim, but it takes more work to

explain why. First, the district court applied the

correct level of harm for a retaliatory adverse action

to dismiss the retaliation claims based on the

conference, the team calls, and the team-building

trip. That left only the termination. And, having

correctly held that an ADA-retaliation plaintiff has

no right to a jury trial, the district court properly

found after a bench trial that Israelitt failed to prove

that Enterprise Services fired him because he

engaged in protected activity.

A. Israelitt does not have a “disability” under

the ADA.

The ADA defines “disability” as “a physical or

mental impairment that substantially limits one or

more major life activities.”3 42 U.S.C. § 12102(1)(A)

(emphasis added). And, relevant here, it defines

It includes other definitions as well, see § 12102(1)(A); see

also Miller v. Md. Dep’t of Nat. Res., 813 F. App’x 869, 874 (4th

Cir. 2020), but they aren’t at issue here.

10a

“major life activities” to “include . . . walking.”4

§ 12102(2)(A). The district court held that Israelitt

did not have a “disability” under the ADA. Israelitt

objects. He argues that the district court—in deciding

his toe condition wasn’t a disability—applied the

wrong standard by citing an outdated EEOC

regulation requiring a “significant restriction” on

walking. You might wonder whether there is a

meaningful distinction between a “significant

restriction” and the statute’s “substantial limitation.”

But even to the extent that there is a meaningful

distinction, it makes no difference here. We review de

novo and under any reasonable interpretation of

“disability” under the ADA, Israelitt doesn’t have

one.

We begin, of course, with the text. A disability

requires (1) “a physical or mental impairment” (2)

“that substantially limits” (3) “one or more major life

activities.” § 12102(1)(A). Beginning in 1999, the

Supreme Court—in accord with EEOC regulations—

narrowly interpreted this statutory text in several

ways. See Sutton v. United Air Lines, Inc., 527 U.S.

471, 491 (1999). One way was by reading

“substantially limited” to require that in “performing

. . . tasks, an individual must have an impairment

that prevents or severely restricts the individual from

doing [major life] activities.” Toyota Motor Mfg., Inc.

v. Williams, 534 U.S. 184, 198 (2002) (emphasis

added). This reading was required, the Supreme

Court explained, because the statutory terms “need

The statute’s list of “major life activities” is long. See

§ 12102(2). But the parties—and the district court—focused on

whether Israelitt’s toe condition substantially limited his ability

to walk, so we similarly limit our analysis.

11a

to be interpreted strictly” given the ADA’s legislative

findings and purposes. Id. at 197. This interpretation

also tracked an existing EEOC regulation that

explained that

“substantially limits”

meant

“significantly restrict[s]” a major life activity. 29

C.F.R. § 1630.2(j)(l)(ii) (2000).

Congress, however, disagreed. Upset by these

Supreme Court cases, similar lower court decisions,

and the EEOC’s regulations, Congress responded. It

amended the ADA in 2008. See ADA Amendments

Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553

(2008). Among other changes that are not at issue

here, Congress addressed what it means to have an

impairment that “substantially limits” an activity.

But it did not change the actual statutory language

defining “disability” (that is, it kept “substantially

limits”). Instead, Congress added a background rule

of construction: “substantially limits” should be

interpreted in its full breadth. See § 12102(4)(A)

(“The definition of disability in this chapter shall be

construed in favor of broad coverage of individuals

under this chapter, to the maximum extent permitted

by the terms of this chapter.”), (B) (“The term

‘substantially limits’ shall be interpreted consistently

with the findings and purposes of the ADA

Amendments Act of 2008.”).

You may think this is an odd way to amend a

statute. After all, Congress could have changed the

operative language defining the term. But just as

Congress may define terms, so too may it provide

background rules of construction. See, e.g., The

Dictionary Act, 1 U.S.C. §§ 1–8 (instructing courts to

apply certain rules of grammatical construction to all

federal statutes “unless context indicates otherwise”).

And Congress exercised that authority here. It

12a

directed, contrary to the Supreme Court’s “strict”

construction, that we should construe the term

“disability” in favor of broad coverage. Yet Congress

made coverage broad, not universal. It placed a floor:

interpret “disability” only to the “extent permitted by

the terms.” § 12102(4)(A).

How broad do the terms permit us to go? We

haven’t decided.5 But we can find instruction from

the Supreme Court. Before adopting the “strict”construction principle, the Supreme Court reminded

us that when interpreting “disability” we are “guided

first and foremost by the words of the disability

definition itself.” Toyota Motor Mfg., 534 U.S. at 196.

And it explained that the term “substantially,” as

used in “substantially limits,” suggests the

impairment must be “considerable” or “to a large

degree.” Id. at 196–97 (citing Webster’s Third New

International Dictionary 2280 (1976) & 17 Oxford

English Dictionary 66–67 (2d ed. 1989)). This

suggestion, the Court explained, “clearly precludes

impairments that interfere in only a minor way.” Id.

at 197.

This part of the Court’s analysis stands. How

could it not? Yes, Congress did away with the Toyota

Court’s insistence that a disability “severely restrict”

While our Court has applied the ADA’s definition of

“disability” with its new congressional rule of construction, we

have avoided drawing any precise lines. See Summers v.

Altarum Inst., Corp., 740 F.3d 325, 330–32 (4th Cir. 2014);

Jacobs, 780 F.3d at 572–74. We do the same here. Given that

Israelitt’s toe condition is not a “disability” no matter where the

line is, we avoid attempting to draw it with precision. See

Miller, 813 F. App’x at 875 (finding on appeal that plaintiff was

not disabled even where district court looked for an impairment

that “significantly restricted”).

13a

the plaintiff. See § 12101 (Findings and Purposes of

Pub. L. 110–325); see also Summers, 740 F.3d at 329.

But it did not change the statutory requirement that

a disability “substantially limit” the plaintiff. Indeed,

it reaffirmed our duty to apply that term as written.

See § 12102(4)(A). And no interpreter looks at the

word “substantial” and reasonably concludes it

means “minor.” So Congress’s amendment did not

abrogate Toyota’s observation that a “minor”

limitation is definitionally not a “substantial” one.6

And that observation disposes of this case.

Because one thing is for sure: Israelitt’s impairment

is minor, not substantial. He has an arthritic toe

joint. His toe might be painful. And, on different

facts, an arthritic toe joint might substantially limit

someone’s mobility. But it doesn’t substantially limit

Israelitt’s. Cf. Twitter, Inc. v. Taamneh, 143 S. Ct.

1206, 1231 (2023) (Jackson, J., concurring) (“Other

cases presenting different allegations and different

records may lead to different conclusions.”). There is

no evidence that Israelitt’s toe condition impacts his

walking in any non-minor way. In fact, the record

reveals quite the opposite: Israelitt often walked at

length—unassisted—for both business and pleasure.

Much of the EEOC’s argument rests on its regulation

interpreting the amended ADA. That regulation says that

“substantially limits” does not mean the “disability” must

“prevent, or significantly or severely restrict, the individual

from performing a major life activity.” 29 C.F.R.

§ 1630.2(j)(1)(ii). It thus requires that there be a meaningful

difference between “substantially limits” and “significantly

restricts.” Whether the EEOC’s regulation is reasonable—and

thus eligible for deference—is irrelevant here. We decide this

case on a premise that the EEOC does not—and could not

reasonably—contest: substantial does not mean minor.

14a

So Israelitt does not have a “disability” within the

meaning of the ADA. Thus, despite citing an outdated

regulation requiring a “significant restriction,” the

district court was right to reject Israelitt’s

discrimination, wrongful discharge, failure to

accommodate, and hostile work environment claims

at summary judgment.

B. Israelitt’s

only

“materially

adverse”

consequence was his termination.

This leaves only Israelitt’s retaliation claim.

Employers violate the ADA by retaliating against an

employee for engaging in an ADA protected activity.

See 42 U.S.C. § 12203; see also Jacobs, 780 F.3d at

577. Israelitt claims Enterprise Services retaliated

against him in several ways for requesting disability

accommodations.7 The district court first held that

his requests plausibly constitute protected activity. It

then held that most of Enterprise Services’s allegedly

retaliatory actions—specifically, removing Israelitt

from the daily calls and excluding him from the D.C.

conference and Florida trip—were not adverse

enough to qualify as unlawful retaliation since they

did not cause significant harm. Because retaliatory

adverse actions must cause significant harm to be

actionable, Burlington N., 548 U.S. at 68, the district

court properly rejected those adverse actions.8

He cites two alleged accommodation requests: (1) for a

hotel room at the D.C. conference and (2) to be listed as a driver

for the Florida trip.

Burlington Northern dealt with Title VII, rather than

ADA, retaliation claims. But “we treat the Title VII context as

being ‘analogous’ to the ADA for this purpose.” Laird v. Fairfax

Cnty., 978 F.3d 887, 893 n.5 (4th Cir. 2020) (quoting Adams v.

15a

The EEOC disagrees. It argues the district court

applied the wrong standard. Retaliation claims

require showing that a plaintiff suffered a “materially

adverse” action. Id. The district court did not use the

word “material” in its opinion. Nor did it expressly

discuss whether Enterprise Services’s actions would

have “dissuaded a reasonable worker” from taking a

protected action—the Supreme Court’s standard for a

materially adverse action. Id. Rather, its analysis

“center[ed]” on whether Enterprise Services’s conduct

created “significant detrimental effects.” J.A. 45. And

that language, “significant detrimental effect,” has

more often been used to describe what is required to

establish an adverse action in substantive

discrimination claims rather than retaliatory

discrimination claims. See, e.g., Holland v. Wash.

Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007). Since

what counts as an adverse action “differs slightly”

between those two types of claims, the EEOC argues

that the district court erred. See Laird, 978 F.3d at

893.

But the district court was correct that Israelitt’s

discrimination claims failed absent a showing that

Enterprise Services’s actions caused him some

significant detriment. See Laird, 978 F.3d at 893. We

have been clear that, whatever the differences in the

adverse action standards for substantive and

retaliation claims, “both claims share a common

element: an adverse action, meaning some action that

results in some significant detriment to the

employee.” Id. (cleaned up). So if Israelitt could not

show that any of the challenged actions resulted in

Anne Arundel Cnty. Pub. Sch., 789 F.3d 422, 431 (4th Cir.

2015)).

16a

significant harm, he could not make out either type of

claim and the district court was justified in merging

the analysis. See J.A. 45 (“As outlined above in [the

substantive discrimination section] Plaintiff has

failed to demonstrate that [the challenged actions]

are adverse actions.”).

And Laird’s holding that both claims require

showing a significant harm was not, as the EEOC

implies, drawn from thin air. It is firmly rooted in

Burlington Northern, which makes plain that—while

the standard for retaliatory and substantive adverse

actions differ—retaliatory adverse actions must cause

significant harm. In that case, the Court answered

two questions about retaliation claims: (1) Is

“actionable retaliation [confined] to activity that

affects the terms and conditions of employment?” and

(2) “[H]ow harmful must the adverse actions be[ ]?”

Burlington N., 548 U.S. at 57. On the first question,

the answer is no; this answer distinguishes

retaliation claims from substantive ones. On the

second, more relevant question, the answer is it must

cause a “significant” harm to the employee; this

answer connects the two claims. See id. at 68; Laird,

978 F.3d at 893.

True, the Supreme Court placed the significantharm requirement in the broader package of the

“materially adverse” standard. It required that the

retaliatory action be materially adverse. Burlington

N., 548 U.S. at 57. And it then explained that

“materially adverse” means adverse actions that

“could well dissuade a reasonable worker from

making or supporting a charge of discrimination.” Id.

But how harmful is an action that would

“dissuade a reasonable worker”? “[P]etty slights,

17a

minor annoyances, and simple lack of good manners”

won’t do it. Id. at 68. Instead—according to the

Supreme Court—the action must cause objectively

“significant” harm. See id. at 68 ( “We speak of

material adversity . . . to separate significant from

trivial harms.”). So, whatever you call the

“materiality” standard, it requires significant harm.9

The district court recognized all this. It did not

require the harm to affect a condition of employment.

J.A. 45 (“What qualifies as an adverse action differs

slightly

the

retaliation

and

unlawful

The EEOC responds by citing several Fourth Circuit cases

adopting the “materially adverse” standard. See EEOC Br. at

13–15 (citing Lettieri v. Equant Inc., 478 F.3d 640, 650 n.2 (4th

Cir. 2007); Darveau v. Detecon, Inc., 515 F.3d 334, 342–43 (4th

Cir. 2008); Perkins v. Int’l Paper Co., 936 F.3d 196, 213 (4th Cir.

2019); Scurlock-Ferguson v. City of Durham, 154 F. App’x 390

(4th Cir. 2015)). Fair enough, those cases do apply the

“materially adverse” standard. But, crucially, those cases don’t

say that the “materially adverse” standard does not require

“significant” harm. And they couldn’t say that under the plain

meaning of Burlington Northern.

The EEOC tried again in a Rule 28(j) letter citing LaurentWorkman v. Wormuth, 54 F.4th 201, 212–18 (4th Cir. 2022). It

argues Laurent-Workman “illustrates that, after Burlington

Northern, the adverse action standards for retaliation claims

and discrimination claims are different.” Again, true, but

Laurent-Workman—like Lettieri, Darveau, and SchurlockFerguson—does not say the new “materially adverse” standard

does not require “significant” harm. To the contrary, LaurentWorkman acknowledges the significance requirement. See 54

F.4th at 213 (noting that the “materially adverse” standard

“separates minor harms from those that threaten to chill

employees from opposing unlawful discrimination”); see also id.

at 217 (“The severity and frequency of hostility are important

factors to consider when determining whether the

circumstances would dissuade a reasonable employee from

opposing discrimination . . . .”).

18a

discrimination contexts . . . in terms of the scope of

actions covered (i.e. whether the acts and harm

occurred in the workplace or not).” (emphasis added))

But—consistent with Burlington Northern and after

citing Laird—the district court did require

“significant” harm. J.A. 45. It may not have

specifically used the term “materially adverse.” But

by looking for “significant” harm that could have

existed beyond the scope of the workplace, the

district court stayed true to the “materially adverse”

standard. Because Israelitt could not show significant

harm resulting from the nontermination actions,

those bases for the retaliation claim failed.10

C. Israelitt did not have a jury-trial right for

his ADA-retaliation claim.

All that remains is the retaliation claim based on

Israelitt’s termination. Israelitt wanted to present

this claim to a jury. The right to a jury trial can stem

from a statute itself. But the ADA itself provides no

right to a jury trial. That, however, doesn’t end the

question. When the statute provides no such right,

While the EEOC only challenges the standard applied,

Israelitt also argues that under the proper standard, his alleged

adverse actions were sufficiently adverse. See Appellant’s Br. at

52–53. Again, those adverse actions include (1) denial of the

opportunity to attend the D.C. conference; (2) removal from the

daily calls; and (3) denial of the opportunity to go on the trip to

Florida. Would these actions dissuade a reasonable worker from

making a charge of discrimination? No. Israelitt himself was

content with being removed from the daily call when Romas

proposed it. And while he may have genuinely been upset about

missing the D.C. conference and Florida trip, that’s the wrong

question. We review the harm from an objective standard.

Burlington N., 548 U.S. at 68–69. Viewed objectively, missing

the work conference and trip did not cause Israelitt “significant”

harm.

19a

the Seventh Amendment might: “In Suits at common

law, where the value in controversy shall exceed

twenty dollars, the right of trial by jury shall be

preserved.” U.S. Const. amend. VII. The Seventh

Amendment’s guarantee has been extended “to all

suits, whether at common law or arising under

federal legislation, where legal rights are involved.”

Pandazides v. Va. Bd. of Educ., 13 F.3d 823, 828 (4th

Cir. 1994). To determine whether the Seventh

Amendment provides a jury trial, we conduct a twopart inquiry that first compares “the nature of the

issues involved and the statutory action” “to 18th–

century actions prior to the merger of the courts of

law and equity,” and then, “more importantly,”

considers whether “the remedy available” is “legal or

equitable in nature.” Id. at 829 (citing Chauffeurs,

Local No. 391 v. Terry, 494 U.S. 558, 565 (1990)).

The Fourth Circuit has held that similar

statutory actions are of the “nature” that “could be

brought in either courts of law or courts of equity.”

See id. (reviewing disability-discrimination claims

under the Rehabilitation Act for a jury-trial right). So

the first inquiry is inconclusive. See id.; Terry, 494

U.S. at 570. That means the right to a jury trial turns

on the answer to the second, “more important[ ]”

question: whether legal remedies are available. See

Pandazides, 13 F.3d at 829; Terry, 494 U.S. at 570,

573–74. Every circuit court to answer that question,

including our circuit in unpublished opinions, has

held that they are not. See Alvarado v. Cajun

Operating Co., 588 F.3d 1261, 1269–70 (9th Cir.

2009); Kramer v. Banc of Am. Sec., LLC, 355 F.3d

961, 966 (7th Cir. 2004); Tucker v. Shulkin, No. 201317(L), 2020 WL 4664805, at *1 (3d. Cir. July 24,

2020); Rhoads v. F.D.I.C., 94 F. App’x 187, 188 (4th

20a

Cir. 2004); Bowles v. Carolina Cargo, Inc., 100 F.

App’x 889, 890 (4th Cir. 2004). Still, Israelitt and the

EEOC argue that legal damages are available. To

understand their argument, we must wade through

the tangle of statutes that decides what remedies are

available to ADA-retaliation plaintiffs.

We start with § 12203(c). It gives the ADA’s

remedies for retaliatory conduct. But it doesn’t

actually list remedies. Instead, for retaliation in the

employment context, it refers readers to remedies

“available under” 42 U.S.C. § 12117. See § 12203(c).

Section 12117 is the remedies provision for 42 U.S.C.

§ 12112, which prohibits substantive ADA

discrimination in employment. But while § 12117

mentions remedies, it doesn’t actually provide them;

it instead points to the remedies “set forth” in 42

U.S.C. § 2000e-5. See § 12117(a). Section 2000e-5 is

the remedies provision for Title VII discrimination

claims. Section 2000e-5 does, at last, list remedies,

but only equitable ones. See § 2000e-5(g)(1). So, at

the end of this statutory chain, ADA-retaliation

plaintiffs are entitled to equitable remedies.

That’s a lot to swallow. Walk through it again,

step by step, with the statutory language:

1. Section

12203(a)—the

ADA’s

antiretaliation section—provides: “No

person shall discriminate against any

individual because such individual has

opposed any act or practice made

unlawful by this chapter or because such

individual made a charge, testified,

assisted, or participated in any manner in

an investigation, proceeding, or hearing

under this chapter.” § 12203(a). But

21a

§ 12203 does not give remedies, instead:

“The remedies and procedures available

under section 12117 . . . of this title shall

be available . . . .” § 12203(c).

2. Section 12117 doesn’t give us remedies

either; it’s a passthrough, which provides:

“The powers, remedies, and procedures

set forth in section[ ] . . . 2000e-5 . . . of

this title shall be the powers, remedies,

and procedures this subchapter provides .

. . to any person alleging discrimination

on the basis of disability in violation of

any provision of this chapter . . .

concerning employment.” § 12117(a).

3. Section 2000e-5 finally gives real

answers: “[T]he court may enjoin the

respondent from engaging in such

unlawful employment practice, and order

such affirmative action as may be

appropriate, which may include, but is

not limited to, reinstatement or hiring of

employees, with or without back pay . . . ,

or any other equitable relief as the court

deems appropriate.” § 2000e-5(g)(1).

Again, the statutory chain bottoms out in the

equitable remedies listed in § 2000e-5.

But that isn’t the end of our story. We must also

consider 42 U.S.C. § 1981a. Section 1981a expands

remedies for certain “Civil rights” and “Disability”

plaintiffs, including some Title VII and ADA

plaintiffs. Those plaintiffs—the statute says—“may

recover compensatory and punitive damages.”

§ 1981a(a)(1), (2). But legal damages are not

available to ADA-retaliation plaintiffs under § 1981a

22a

either. Section 1981a(a)(2)—in listing the types of

“Disability” plaintiffs entitled to legal damages—does

not list ADA-retaliation actions. See § 1981a(a)(2).

Instead, the statute says that an ADA plaintiff “may

recover compensatory and punitive damages” for

certain substantive discrimination and failure to

accommodate claims. See id. (“In an action brought

by a complaining party under . . . [§ 12117(a)] . . .

against a respondent who engaged in unlawful

intentional discrimination . . . , or who violated the

requirements of [§ 12112(b)(5)] concerning the

provision of a reasonable accommodation, . . . the

complaining party may recover compensatory and

punitive damages . . . .”); see also Kolstad v. Am.

Dental Ass’n, 527 U.S. 526, 534 (1999) (In § 1981a

“Congress provided for additional remedies . . . for

certain classes of Title VII and ADA violations.”

(emphasis added)).

Yet Israelitt and the EEOC try a different

argument. They rely on a strained theory of statutory

interpretation to say that—even though it does not

list retaliation claims—§ 1981a(a)(2) still provides

legal damages for ADA-retaliation plaintiffs. How so?

Recall that § 12203 refers readers to remedies

“available under” § 12117 and, in turn, those “set

forth” in § 2000e-5. And § 1981a allows for § 12117

plaintiffs to recover legal damages. So, Israelitt and

the EEOC argue, the right to recover legal damages

meanders its way back through the statutory chain to

ADA-retaliation plaintiffs.

What about the fact that § 1981a(a)(2) does not

list ADA-retaliation plaintiffs—those asserting

claims under § 12203—as among the ADA plaintiffs

who may receive legal damages? Israelitt and the

EEOC say that’s no problem. In their view, it is “of no

23a

consequence when § 1981[a] is read in conjunction

with the relevant provisions of the ADA.” Edwards v.

Brookhaven Sci. Assocs., LLC, 390 F. Supp. 2d 225,

236 (E.D.N.Y. 2005). That’s because, they argue, “the

remedies available for retaliation under the ADA are

commensurate with those available under [§ 12117],”

so “it was unnecessary for Congress to separately

mention retaliation in § 1981[a].” Id.; see also Rumler

v. Dep’t of Corr., 546 F. Supp. 2d 1334, 1343 (M.D.

Fla. 2008) (“When Congress expanded the relief

available under § 12117 to include legal damages, it

also expanded the relief available under § 12203 by

reference.”). In other words, it “would have been

redundant” for Congress to list § 12203 in

§ 1981a(a)(2) because § 12203 plaintiffs “could avail

themselves of the same remedies as plaintiffs

claiming discrimination under [§ 12117].” Rumler,

546 F. Supp. 2d at 1343.

We reject Israelitt and the EEOC’s argument.

Their logic gets it backwards. ADA-retaliation

plaintiffs get the remedies “available under” § 12117.

Yet compensatory and punitive damages are not a

remedy “under” § 12117. Substantive-discrimination

plaintiffs suing under § 12117 can get legal damages.

But that is only because § 1981a(a)(2) makes

compensatory and punitive damages available to

them. Conversely, since § 1981a(a)(2) does not list

ADA-retaliation plaintiffs, they cannot get legal

damages under that section.

True, § 2000e-5 also says that the equitable

remedies provided in subsection (g)(1) are available

“[i]n addition to any relief authorized by section

1981a.” § 2000e-5(e)(3)(B). But, read in its proper

context, subsection (e)(3)(B) does not “set forth”

remedies at all. And, even if subsection (e)(3)(B) did

24a

“set forth” remedies, that would require we ask: What

“relief [is] authorized” by § 1981a? The answer to that

question is § 1981a authorizes compensatory and

punitive damages for “certain classes” of disability

plaintiffs. See Kolstad, 527 U.S. at 534. Namely, ADA

plaintiffs suing for either substantive discrimination

or a failure to accommodate. § 1981a(a)(2). To look

past the statutory silence and inject legal damages

into § 12203 requires a statutory sleight of hand that

“contravenes the basic tenets of statutory

construction.” Alvarado, 588 F.3d at 1268. There’s

simply no way around it: § 1981a(a)(2) provides legal

damages only for specific ADA claims. And “ADA

retaliation is not on the list.” Id. at 1270.

Our holding that ADA-retaliation plaintiffs

cannot recover legal damages places us in good

company. The circuit courts (where they’ve spoken)

have unanimously rejected Israelitt and the EEOC’s

reading. See Alvarado, 588 F.3d at 1270; Kramer, 355

F.3d at 965 (noting that “a meticulous tracing of the

language of this tangle of interrelated statutes

reveals no basis for plaintiff’s claim of compensatory

and punitive damages in his ADA retaliation claim”

(quoting Brown v. City of Lee’s Summit, No. 98-0438CV-W-2, 1999 WL 827768, at *3 (W.D. Mo. June 1,

1999))). Likewise, we’ve reached the same reading in

unpublished opinions. See Rhoads, 94 F. App’x at

188; Bowles, 100 F. App’x at 890. We now adopt our

reading in Rhoads and Bowles in a published opinion.

ADA-retaliation plaintiffs are not entitled to legal

damages. That means, under the inquiry from Terry,

ADA-retaliation plaintiffs are not guaranteed a jury

trial by the Seventh Amendment. Cf. 494 U.S. at

573–74. And the ADA itself doesn’t provide that right

25a

either. Accordingly, Israelitt had no right to present

his retaliation claim to a jury.

D. Israelitt did not prove causation at trial.

Israelitt makes one last-ditch effort: The district

court erred in holding that he did not prove causation

at trial. His challenge boils down to an argument that

the district court improperly considered an exhibit

that was not admitted into evidence during trial. This

challenge fails.

Israelitt says the district court, in its final order

following the bench trial, improperly relied on a

performance review that Romas prepared. According

to him, the district court used the performance

review, which was included on Enterprise Services’s

exhibit list but never admitted into evidence, “to

bolster its conclusion that Mr. Israelitt was a poor

performer.” Appellant’s Br. at 53. Further, he says

that performance review could not have been

admitted into evidence because “it could not be

authenticated or shepherded into evidence.” Id. at 54.

In the final order, the district court determined

that even if Israelitt engaged in protected activity,

there was no causation. To the district court, the

facts elicited at trial “unquestionably demonstrate[d]

that his requests for accommodation had nothing to

do with” his exclusion from the D.C. conference, the

Florida trip, or the daily calls. Instead, the evidence

“unequivocally”

showed

that

Israelitt

was

“terminated because he was an incompatible

teammate” who “failed to make any meaningful

progress on tasks that were assigned to him.” J.A. 77.

Those factual findings receive clear-error review. See

Fed. Rule Civ. P. 52(a). While it’s true the district

court cited an exhibit that was not admitted at trial,

26a

that was one of many pieces of evidence the district

court relied on in reaching its determination. Even if

the performance review was inadmissible evidence

the court should not have considered, we cannot say

that the district court clearly erred in holding that

Israelitt could not establish causation.

Israelitt’s claims fail. First, while the district

court did cite an outdated EEOC regulation when

determining he is not disabled within the meaning of

the ADA, he is not disabled under any reasonable

reading of the ADA. So that disposes of every claim

except retaliation. Second, Burlington Northern

makes clear that only “significant” harm to an

employee constitutes retaliatory adverse action. And

only his termination met that threshold. Third, a

straightforward reading of § 1981a(a)(2) shows that

an ADA-retaliation plaintiff is not entitled to legal

damages and therefore not guaranteed a jury trial by

the Seventh Amendment. To close it out, the district

court got it right at the bench trial. Israelitt’s

termination was not in retaliation for any protected

activity. Accordingly, the district court is

AFFIRMED.

27a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

JEFFREY ISRAELITT,

Plaintiff,

Civil Case No.

18-cv-01454-SAG

[Filed: 3/7/2022]

ENTERPRISE SERVICES LLC,

Defendant.

MEMORANDUM OF DECISION

Plaintiff Jeffrey B. Israelitt (“Plaintiff”) claims

that his former employer, Enterprise Services LLC

(“Defendant” or “Enterprise”), retaliated against him

for requesting several accommodations for his

claimed disability in violation of the Americans with

Disabilities Act (“ADA”). This Court held a bench

trial on February 14 and 15, 2022.

This Court has heard and considered all the

evidence, both testimonial and documentary. For the

following reasons, that evidence does not support

Plaintiff’s claim of unlawful retaliation. Accordingly,

this Court finds in favor of Defendant.

I. Findings of Fact

This Court finds the facts stated herein based on

its evaluation of the evidence, including the

credibility of the witnesses, and the inferences that

the Court has found reasonable to draw from the

evidence.

28a

1. Mr. Israelitt was employed by Hewlett

Packard (“HP”), a predecessor entity of

Enterprise, from August 5, 2013, until his

separation on February 14, 2014. ECF 99 ¶ 1

(Stipulation of Facts).

2. George Romas, HP’s Chief Engineer and

Technical Director of the Cybersecurity

practice for the U.S. Public Sector,

interviewed and hired Mr. Israelitt for the

position of Senior Information Systems

Security Architect V. Id. ¶ 2.

3. Mr. Israelitt held that position throughout

his employment and earned an annual salary

of $180,000, a monthly salary of $15,000, and

a semi-monthly salary of $7,500. Id. ¶ 3.

4. Mr. Romas was his assigned manager

throughout his employment. Id. ¶ 2.

a. Mr. Israelitt’s Medical Condition

5. Mr. Israelitt suffers from a medical condition

called

hallux

rigiditis,

marked

degenerative changes in his right first

metatarsophalangeal joint and right great

toe. Pl’s Trial Ex. 5 at 3 (Medical Records and

Disability Placards).

6. This condition limits Mr. Israelitt’s range of

motion in his great right toe and, at times,

causes him significant pain. Id.; Israelitt

Testimony, Feb. 14, 2022.

7. Driving—especially in stop-and-go city

traffic—can cause Mr. Israelitt significant

pain. Israelitt Testimony, Feb. 14, 2022.

29a

8. Mr. Israelitt has State of Maryland disability

placards because of his condition. Pl’s Trial

Ex. 5 at 4-9 (Medical Records and Disability

Placards).

b. Mr. Israelitt’s Interview with HP

9. During Mr. Romas’s telephonic interview of

Mr. Israelitt, Mr. Romas did not inquire

about any disability or medical conditions.

Romas Testimony, Feb. 15, 2022.

10. Mr. Israelitt also told Mr. Romas that he was

not familiar with many of HP’s products and

services. Israelitt Testimony, Feb. 14, 2022.

11. Mr. Romas suggested that Mr. Israelitt could

attend the HP Protect conference, where he

could gain a better understanding of HP’s

product offerings. Id.

12. HP hired Mr. Israelitt, and he started on

August 5, 2022. Pl’s Trial Ex. 2 (Offer Letter).

c. Mr. Israelitt’s Employment at HP

13. Throughout his employment at HP, Mr.

Israelitt worked remotely from his home,

which is located in Glen Burnie, Maryland.

ECF 99 ¶ 4 (Stipulation of Facts).

14. Mr. Israelitt was part of the Cybersecurity

Solutions Group (“CSG”) and worked on

CSG’s Engineering and Architecture team.

Israelitt Testimony, Feb. 14, 2022.

15. Specifically, Mr. Israelitt was an Enterprise

Architect working on the Department of

Homeland Security’s (“DHS”) Continuous

30a

Diagnostics and Mitigation (“CDM”) offering.

Id.

16. Upon his hiring, Mr. Israelitt was assigned to

two main projects.

17. First, Mr. Israelitt was assigned to work on a

“Requirements Traceability Matrix” (“RTM”)

to provide a risk management framework

related to DHS’s cybersecurity requirements.

Romas Testimony, Feb. 15, 2022.

18. Second, Mr. Israelitt was assigned to work on

a review of different cybersecurity products

that HP customers were using so that the

team could be better prepared to bid on the

DHS CDM project. Id.

19. The second project was referred to as a

“Technology Roadmap.” Id.

d. HP Protect Conference

20. Near the end of August, 2013, HP began

determining which of its employees would

attend a conference called HP Protect 2013.

Israelitt Testimony, Feb. 14, 2022; Pl’s Trial

Ex. 10 (Aug. 30, 2013 Email Chain).

21. After initial confusion about how many CSG

members would be able to attend the

conference, Todd Helfrich sent Mr. Israelitt

and other team members a registration code

to complete their registrations, but the code

was one that had been reserved for HP

customers, not employees. Pl’s Trial Ex. 15

(Sept. 10-13, 2013 Email Chain).

31a

22. Mr. Israelitt registered to attend the

conference using the code he received from

Mr. Helfrich. Pl’s Trial Ex. 13 (HP Protect

2013 Registration).

23. Mr. Israelitt also arranged to stay at the

event hotel in Washington, DC, so that he

would not have to commute from his house in

Glen Burnie, Maryland and risk severe toe

pain due to the drive each day. Israelitt

Testimony, Feb. 14, 2022; Pl’s Trial Ex. 14

(Sept. 6, 2013 Email); Pl’s Trial Ex. 16 (Sept.

13, 2013 Email).

24. Mr. Israelitt requested a room for persons

with disabilities and coordinated with HP

Protect event staff to reserve one. Id.

25. Mr. Israelitt used his personal credit card to

reserve the room and was intending to pay for

it with his own money. Israelitt Testimony,

Feb. 14, 2022; Pl’s Trial Ex. 15 (Sept. 10-13,

2013 Email Chain).

26. On September 10, 2013, Mr. Israelitt received

an email that his conference registration was

invalid because he had used a customer

registration code but was an HP employee.

Pl’s Trial Ex. 15 (Sept. 10-13, 2013 Email

Chain).

27. Mr. Israelitt sent this email to Kevin Doty, a

business consultant on the CSG team, who

then forwarded the message to Todd Helfrich

an Enterprise Account Executive. Id.

28. Mr. Helfrich responded that “[a]nyone who

used the code and registered with their HP

32a

email address likely will be turned down. I

have some damage control that I need to do.

Gail, George and Anil should be good.” Id.

29. After Mr. Israelitt requested clarification

from Mr. Doty on Mr. Helfrich’s response, Mr.

Doty suggested that Mr. Israelitt coordinate

with Mr. Romas regarding his registration

issues. Id.

30. Mr. Israelitt responded stating, in part, that

“it

appears

that

this

information

(medical/disability info that I asked you not

to share with anyone) which you and I

discussed found its way to Todd, and has in

itself become the reason I can’t go now.” Id.

31. Mr. Doty forwarded this response to Mr.

Romas, who responded “after about a 45

minute conversation with [Mr. Israelitt] at

around 7pm last night, he said he would ‘keep

his mouth shut’ about this, not attend HP

Protect, and hoped that the rest of us would

not have any trouble attending.” Id.

32. Plaintiff ultimately did not attend HP Protect

2013. Israelitt Testimony, Feb. 14, 2022.

e. Mr. Israelitt’s Performance and Compatibility Issues

33. Throughout September 2013, Mr. Israelitt

began to have significant performance and

interpersonal issues. Romas Testimony, Feb.

15, 2022.

34. Mr. Israelitt immediately struggled to adjust

to the “agile method” employed by the CSG

team. Id.

33a

35. The agile method is a “fail fast” method of

making incremental progress on a project and

solving problems “as you go” rather than all

at once. Id.

36. As part of the agile method, teams would

conduct daily “scrum” calls designed to last

15-30 minutes to discuss short-term “sprint”

projects on which they were working. Id.

37. Mr. Israelitt had experience with the agile

method from prior employment. Israelitt

Testimony, Feb. 14, 2002.

38. However, Mr. Romas began to receive

complaints from coworkers that Mr. Israelitt

was “appropriating” scrum meetings and

extending them well beyond the allotted 1530 minutes, often unnecessarily causing them

to last for up to an hour. Romas Testimony,

Feb. 15, 2022.

39. Moreover, Mr. Romas testified that Mr.

Israelitt had frequent conflicts with his coworkers. Id.

40. Those conflicts were documented by

contemporaneous emails. For example, on

September 6, 2013, just about a month after

starting his employment, Mr. Israelitt

emailed Mr. Romas complaining that other

team members were acting in a way that was

“unprofessional, demeaning, humiliating, and

dismissive” and asking Mr. Romas to help

“put an end to the negative manner in which

Gail and Shaundrae treat others[.]” Def’s

Trial Ex. 14 (Sept. 6, 2013 Email Chain).

34a

41. Mr. Romas testified that Mr. Israelitt

frequently raised these kinds of complaints.

Romas Testimony, Feb. 15, 2022.

42. On September 25, 2013, Mr. Israelitt again

emailedMr. Romas saying, “Jess is beating up

on Michael F. and me about what appears to

be a lack of common understanding about

DC2 strategy an[d] more on the team call[.]”

Def’s Trial Ex. 23 (Sept. 25, 2013 Email).

43. On September 29, 2013, Mr. Israelitt emailed

Mr. Romas with two pages’ worth of

complaints about his colleagues and,

ultimately, asked Mr. Romas to “assist here

to help put an end to the negative manner in

which Jess and Kevin treat others.” Def’s

Trial Ex. 25 (Sept. 29, 2013 Email).

44. Mr. Romas testified that he spoke to other

team

members about

Mr.

Israelitt’s

complaints and that they disagreed with Mr.

Israelitt’s

characterizations.

Romas

Testimony, Feb. 15, 2022.

45. Mr. Romas also testified that he had

managed the team for more than two years

before Mr. Israelitt was hired and that there

were no personnel or compatibility issues

before Mr. Israelitt joined the team. Id.

46. In late September 2013, Mr. Romas suggested

that Mr. Israelitt not attend the daily scrum

calls and that he focus exclusively on the

RTM project. Def’s Trial Ex. 27 (Sept. 30,

2013 Email Chain).

35a

47. Mr. Romas testified that Mr. Israelitt was

removed from the scrum calls so that he could

focus on a single project and avoid getting

bogged down and distracted by the daily calls.

Romas Testimony, Feb. 15, 2022; see Def’s

Trial Ex. 27 (Sept. 30, 2013 Email Chain).

48. According to Mr. Israelitt, however, he was

removed from the scrum calls because he

attempted to attend the HP Protect

conference and intended to stay in a handicap

accessible room during it. Israelitt Testimony,

Feb. 14, 2022.

49. Mr. Romas also asked Jeff Kalibjian, a

Distinguished Technologist at HP, to mentor

Mr. Israelitt. Romas Testimony, Feb. 15,

2022.

50. According to Mr. Romas, Mr. Israelitt’s

removal from the daily scrum calls

substantially improved the efficiency of the

meetings. Id.

51. In October 2013, Mr. Israelitt received a

performance review from Mr. Romas. Def’s

Trial Ex. 2 (Performance Review).

52. Although the numerical scores Mr. Israelitt

received ranged from average to above

average, Mr. Romas’s comments clearly

indicated that Mr. Israelitt was not

interacting with his colleagues in a respectful

or professional manner. Id.

53. Mr. Romas wrote, “Jeff has had a challenge

adjusting to the rapid Agile Integration pace

of the team, so there has been some

36a

disruption and miscommunication between

Jeff and our extended team[;]” “Jeff can be

aggressive, like some of the other team

members, but I think it is perceived as being

confrontational. He will be mentored and

counciled [sic] on more diplomatic ways to

communicate, and recommended to attend

effective communications training.” Id.

54. Mr. Romas also made clear that Mr.

Israelitt’s difficulties with his coworkers were

impacting his productivity: “he’s been slow to

adapt to the pace of the team, so has not been

as productive in achieving goals.” Id.

55. Mr. Romas testified that Mr. Israelitt’s

performance did not meet Mr. Romas’s

expectations but that he gave Mr. Israelitt

decent scores in order to try to motivate him

to improve. Romas Testimony, Feb. 15, 2022.

56. Although Mr. Israelitt’s RTM project was a

long-term project, Mr. Romas asked him to

provide weekly progress reports. Def’s Trial

Ex. 27 (Sept. 30, 2013 Email Chain).

57. In late-October, Mr. Israelitt presented on his

progress in a scrum meeting. Romas

Testimony, Feb. 15, 2022; Def’s Trial Ex. 30

(Oct. 17, 2013 Email Chain).

58. Mr. Romas did not attend, but he testified

that he spoke to others in attendance and

reviewed Mr. Israelitt’s slides. According to

Mr. Romas, the presentation revealed that

Mr. Israelitt had made little or no

substantive progress on the project and was

37a

merely restating materials that were publicly

available on the Department of Defense

website,

rather

than

providing

any

substantive analysis or recommendations.

Romas Testimony, Feb. 15, 2022.

59. Mr. Doty also questioned how Mr. Israelitt’s

presentation “related to the analysis for the

Task areas 5-15 requirements” and asked

that he “explain what you have planned for

the actual task 5-15 requirements analysis.”

Def’s Trial Ex. 43 (Oct. 22, 2014 Email

Chain).

60. Notwithstanding Mr. Israelitt’s performance

issues, Mr. Romas recognized him on

November 22, 2013 for his “Achievement &

Contribution”

part

group

commendation praising the team’s hard work

and diligence.1 Pl’s Trial Ex. 29 (Nov. 22,

2013 Recognition).

61. On December 3, 2013, Mr. Israelitt sent Mr.

Romas a “draft write-up on the Technology

Roadmap task.” Def’s Trial Ex. 33 (Dec. 3,

2013 Email).

62. According to Mr. Israelitt, however, this

document was not a “draft” but a “Project

Initiation Document” discussing the project’s

large scope. Israelitt Testimony, Feb. 14,

2022.

On September 6, 2013, Jess May, the CSG practice lead in

charge of leading CSG development initiatives, had issued a

similar team-focused recognition in the category of “Trust &

Respect.” Pl’s Trial Ex. 12 (Sept. 5, 2013 Recognition).

38a

63. Mr. Romas responded that he was looking for

more “meat” and that the document was not

sufficient. Romas Testimony, Feb. 15, 2022.

64. Mr. Romas testified that he spoke with Mr.

Israelitt several times and told him that in

the roadmap he was looking for a “quick

analysis” of products and their positive or

negative ratings to provide a general idea of

products in the market to use once the task

orders came out. Id.

65. Mr. Kalibjian also emailed Mr. Romas on

December 20, 2013, attempting to clarify the

scope of the project to make sure he and Mr.

Israelitt were not “over analyzing or

confusing what you want here.” Def’s Trial

Ex. 45 (Dec. 20-21, 2013 Email).

66. Mr. Kalibjian wrote, “I think what you want

is: ‘an examination of current products in 515 with quick analysis on capabilities

/requirements and future features (i.e. where

market is going) with strategy on how/when

we introduce into the HP CDM Solution

Offering[.]’” Id.

67. 67. Mr. Romas responded, “Yes, that’s a good

clarification![,]” and Mr. Kalibjian forwarded

the email chain to Mr. Israelitt the following

day. Id.

f. Florida Team-Building Meeting

68. Around the same time, the CSG team was

planning a strategic development and teambuilding meeting in St. Augustine, Florida,

39a

scheduled for early January 2014. Israelitt

Testimony, Feb. 14, 2022.

69. Mr. Israelitt grew concerned about the

amount of walking required on the trip after

Ms. May provided maps of the city and the

locations at which events and activities were

to take place. Id.

70. He raised these concerns with Mr. Romas in

mid-December. Id.

71. As a solution, Mr. Israelitt told Mr. Romas

that he wanted to be listed as an additional

driver on one of the rental vehicles. Id.

72. Mr. Romas told Mr. Israelitt he would inquire

about this request but did not affirmatively

suggest any alternative solutions. Id.

73. On December 19, 2013, Ms. May told Mr.

Israelitt to stop billing his time to the DHS

account code. Def’s. Trial Ex. 35 (Dec. 19,

2013 Email).

74. Mr. Romas testified that this decision was

Ms. May’s, not his. Romas Testimony, Feb.

15, 2022.

75. Accordingly, Mr. Romas told Mr. Israelitt

that he would no longer attend the trip.

Israelitt Testimony, Feb. 14, 2022.

76. Mr. Israelitt interpreted his exclusion from

the trip as retaliation for his request to be

listed as an alternative driver. Id.

40a

g. Performance Warning and Termination

77. On January 5, 2014, Mr. Romas filled out a

Performance Coaching Template. Def’s Trial

Ex. 36 (Performance Coaching Template).

78. In it, Mr. Romas discussed Mr. Israelitt’s

inability to adapt to the “2-week integration

sprint[]” format, and his issues related to the

HP Protect conference. Id.

79. With respect to the HP Protect conference,

Mr. Romas wrote: “[Mr. Israelitt], and others

on the team, had trouble registering for this

event. He spent a lot of wasted time with

several team members, including myself,

complaining about the process. He also

attempted to get a hotel room with an

unsubstantiated

handicapped

status

(concerning an injured toe), which led to

additional wasted time spent arguing with

hotel and HP Protect planning personnel. At

this time (2 days before the conference

started) directed [sic] him not to attend

because it was unsure whether he was

registered or if he would be reimbursed for a

hotel room . . . . Jeff has not been able to get

over this issue, and still brings it up

periodically.” Id.

80. He also explained that, “In an attempt to

make Jeff a collaborative and productive

member of the team, I assigned him several

tasks to either work on his own or work with

other teammates . . . In every case, he

provided little to no value, either not

producing deliverables (which had to then be

41a

assigned to other team members),

producing irrelevant deliverables[.]” Id.

81. With respect to the Technology Roadmap

specifically, Mr. Romas explained: “After

several explanations reiterating what I

expected from this roadmap task, Jeff still did

not understand what to do. On [December 15,

2013], I provided him explicit instructions in

an email, but a month later he still has not

produced any deliverables. He claims that he

is continually researching the issue, but I

have seen no evidence of his work. For the

past 3 months, I have also had weekly

meetings with Jeff and my two other senior

architects/engineers with the hope that my

management and their mentoring would help

Jeff become a productive team member, to no

avail.” Id.

82. On January 13, 2014, the first business day

after the end of the Florida trip, Mr. Romas

sent a performance warning to Mr. Israelitt.

Pl’s Trial Ex. 35 (Performance Warning).

83. The performance warning stated that Mr.

Israelitt was “failing to meet what is

expected” of his position in the areas of

“productivity, initiative and teamwork.” Id.

84. More specifically, it noted Mr. Israelitt’s

“[r]efusal to accept tasking from the Scrum

Master[;]

[f]ail[ure]

produce

requirements Traceability Matrix (RTM) for

the DHS CDM program[;] [f]ail[ure] to

provide the research and analysis of Network

Access Control (NAC) products[;] and [failure

42a

to] produce a Technology Roadmap for DHS

CDM Task Areas 5 through 15[.]” Id.

85. The performance warning also stated that:

“For the next 30 days, from January 13, 2014

through February 12, 2014, you are required

to demonstrate immediate and sustained

improvement by successfully completing the

Technology Roadmap for Task Areas 5

through 15.” Id.

86. Mr. Romas spoke with Mr. Israelitt about the

warning, and, according to Mr. Romas, Mr.

Israelitt disagreed with it, was very upset

about it, and refused to sign it. Romas

Testimony, Feb. 15, 2022; Def’s Trial Ex. 39

(Jan. 16, 2014 Email Chain).

87. Mr. Israelitt also asked for help completing

the Technology Roadmap, but Mr. Romas told

him that he needed to work on the project

himself and that he could use Mr. Kalibjian

for peer review. Romas Testimony, Feb. 15,

2022; Def’s Trial Ex. 39 (Jan. 16, 2014 Email

Chain).

88. Mr. Israelitt viewed this as an impossible

task, designed to set him up for failure.

Israelitt Testimony, Feb. 14, 2022.

89. In Mr. Israelitt’s view, Mr. Romas was asking

for a comprehensive review of hundreds of

products (which meant the deliverable Mr.

Romas was asking for was, in fact, a

“Products Roadmap” not a “Technology

Roadmap”) which would have taken a group

of people several months and was simply

43a

impossible for one person to complete in a

single month. Israelitt Testimony, Feb. 14,

2022.

90. Mr. Romas assured Mr. Israelitt, however,

that he was only looking for an outline of “the

top 3-5 vendors/products within each task

area.” Def’s Trial Ex. 37 (Technology

Roadmap Task).

91. Mr. Romas even prepared a document for Mr.

Israelitt

specifically

describing

the

deliverable he was looking for. Id.

92. That document stated: “Each vendor/product

should have a description of the offering and

how it applies to the specific task area.

Independent evaluations . . . should be

included, in general describing pros and cons

and comparisons of products within the same

task area.” Id.

93. The document also stated: “I previously had

sent you a PowerPoint deck that shows which

HP products fit into the components in the

graphic above. I am also sending you an Excel

file, also previously sent to you, that shows

various ways to map and compare these task

areas to products and applicable security

standards (standards mapping not needed for

this particular task). If time permits, I’d like

to see a proposed schedule for doing a more

detailed evaluation of products, based on

technical merits as well as querying the

accounts for existing licenses. By COB

Wednesday, 1/15/1[4], I’d like to see your 30-

44a

day schedule and what we’ll be reviewing at

each weekly milestone meeting.” Id.

94. Over the month that followed, Mr. Romas

took contemporaneous notes on Mr. Israelitt’s

progress. Def’s Trial Ex. 1 (Notes on Jeffrey

B. Israelitt PW Performance).

95. The notes reveal that, in Mr. Romas’s view,

Mr. Israelitt was not making progress on the

roadmap assignment, that he was asking

other team members for help on it, and that

he was not taking seriously his obligation to

make progress on the assignment. Id.; Romas

Testimony, Feb. 15, 2022.

96. On February 14, 2014, Mr. Romas made the

decision to terminate Mr. Israelitt due to his

lack of progress on the roadmap assignment.

Def’s Trial Ex. 40 (Termination Letter).

97. Mr. Romas testified that if Mr. Israelitt had

made any progress, he would not have been

terminated

and

that

Mr.

Israelitt’s

accommodation requests had nothing to do

with his termination. Romas Testimony, Feb.

15, 2022.

II. Conclusions of Law

As summarized by the Fourth Circuit, the ADA

retaliation standard is as follows:

Under 42 U.S.C. § 12203, “[n]o person shall

discriminate against any individual because

such individual has opposed any act or

practice made unlawful by this chapter or

because such individual made a charge,

testified, assisted, or participated in any

45a

manner in an investigation, proceeding, or

hearing under this chapter.” (emphasis

added). In order to establish a prima facie

case of retaliation, a plaintiff must allege (1)

that she has engaged in conduct protected by

the ADA; (2) that she suffered an adverse

action subsequent to engaging in the

protected conduct; and (3) that there was a

causal link between the protected activity

and the adverse action. Rhoads v. FDIC, 257

F.3d 373, 392 (4th Cir. 2001). In reviewing

retaliation claims, courts recognize the need

to balance the desire to encourage employees

to oppose unlawful discrimination, with “an

employer’s interest in maintaining a

harmonious, productive and loyal workforce.”

Fitch v. Solipsys Corp., 94 F. Supp. 2d 670,

678 (D. Md. 2000).

Freilich v. Upper Chesapeake Health, Inc., 313 F.3d

205, 216 (4th Cir. 2002). Significantly, the ADA does

not require proof of a disability to mount a retaliation

claim, so this Court’s prior conclusion that Plaintiff

failed to demonstrate a disability as a matter of law

does not preclude his ability to prevail on his

retaliation claim. ECF 63 at 10-12; Rhoads, 257 F.3d

at 380. Put differently, Plaintiff does not have 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.” Reynolds v.

Am. Nat’l Red Cross, 701 F.3d 143, 154 (4th Cir.

2012). A requested disability accommodation can

constitute “conduct protected by the ADA.” Jacobs v.

N.C. Admin. Office of the Courts, 780 F.3d 562, 577

(4th Cir. 2015). Moreover, to establish a causal

46a

connection between the termination and his

accommodation requests, Plaintiff must prove “butfor” causation. Gentry v. East West Partners Club

Mgmt. Co., Inc., 816 F.3d 228, 235-36 (4th Cir. 2016)

(“The only remaining question is whether the ADA’s

text calls for a ‘but-for’ causation standard. We hold

that it does.”). Temporal proximity alone is

insufficient to prove causation, id., as is merely

showing that the adverse action occurred after

Plaintiff’s accommodation requests. Gibson v. Old

Town Trolley Tours of Washington, D.C., Inc., 160

F.3d 177, 182 (4th Cir. 1998).

Accordingly, to prevail, Mr. Israelitt must show

that (1) he engaged in conduct protected by the ADA

by asking to stay in a handicap accessible room at the

HP Protect conference and/or by asking to be listed as

an alternate driver during the Florida trip, (2) he

suffered an adverse action subsequent to those

requests,2 and (3) that his requests for

accommodation were the “but-for” cause of his

termination. Mr. Israelitt has not come close to

meeting his burden.

There is no dispute that Mr. Israelitt’s

termination constitutes an adverse action. This Court

is left, then, to evaluate whether Mr. Israelitt has

shown that he engaged in protected conduct and, if

This Court previously held that his exclusion from the HP

Protect conference, the Florida trip, and the daily scrum calls

did not constitute adverse employment actions. ECF 63 at 13.

The facts elicited at trial support these conclusions but, even if

they could be considered adverse actions, the facts

unquestionably

demonstrate

that

his

requests

for

accommodation had nothing to do with any of these actions.

47a

he did, whether that protected conduct was the “butfor” cause of his termination. Assuming Mr. Israelitt

engaged in protected conduct,3 that conduct was not

the “but-for” cause of his termination.

The evidence elicited at trial—both documentary

and testimonial—unequivocally demonstrates that

Mr. Israelitt was terminated because he was an

incompatible teammate who failed to take directions

from his superiors, and, most significantly, failed to

make any meaningful progress on the tasks that

were assigned to him. Shortly after beginning work

at HP, Mr. Israelitt began derailing team meetings

and frequently emailing Mr. Romas and others with

vociferous complaints about his colleagues. Romas

Testimony, Feb. 15, 2022; Def’s Trial Exs. 14, 23, 25.

Within less than two months of starting at HP, Mr.

Israelitt had to be separated from the rest of the

team and forced to work on discrete tasks essentially

by himself because he was unable to get along with

his co-workers and unable to participate productively

on the daily scrum calls. Romas Testimony, Feb. 15,

2022; Def’s Trial Ex. 27. And when he was given

those discrete tasks, the unrefuted evidence

Defendant argues that Mr. Israelitt did not engage in

protected conduct because neither of his requests for

accommodation was supported by a “‘reasonable, good faith

belief’ that he needed an accommodation to perform the

essential functions of his job on account of his alleged

disability,” given the one-off, non-mandatory nature of the HP

Protect conference and the Florida trip. ECF 102-1 at 3 (quoting

Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751,

759 n.2 (3d Cir. 2004)). Defendant’s arguments are well-taken,

but this Court need not resolve this question since the lack of

causation is so clear.

48a

demonstrates that he failed to make any meaningful

progress on them—even when he was given one final

chance. Romas Testimony, Feb. 15, 2022; Def’s Trial

Ex. 36; Pl’s Trial Ex. 35. Mr. Israelitt may have

believed that the Technology Roadmap task was

impossible to complete by himself in a month—

indeed, it is abundantly clear that Mr. Israelitt’s

understanding of what a “technology roadmap”

should be is different from what Mr. Romas was

seeking. Israelitt Testimony, Feb. 14, 2022; Romas

Testimony, Feb. 15, 2022. But the productive

response to that concern would have been to seek

clarity on the project’s scope and to work as hard as

he could to make whatever progress was possible in

the time allotted on the product his supervisor

wanted. Instead, he made no discernable progress,

even after Mr. Romas’s affirmative efforts to explain

the deliverable he envisioned and to encourage Mr.

Israelitt to make some progress toward that goal.

Romas Testimony, Feb. 15, 2022; Def’s Trial Exs. 1,

36; Pl’s Trial Ex. 35.

Regardless, even if the project were as impossible

as Mr. Israelitt contends, he has presented no

evidence that could connect his requests to stay in an

accessible hotel room or to be an alternate driver on a

rental car application to his termination. Mr. Israelitt

did not present any evidence that anyone at HP cared

one way or the other about either of these requests,

let alone that they fired him because of them.

Instead, Mr. Israelitt relies on his own testimony

that his relationships with his colleagues were like

“night and day” before and after the HP Protect

conference, culminating in his removal from the

scrum meetings shortly after the conference. Israelitt

49a

Testimony, Feb. 14, 2022. Mr. Israelitt was also told

not to bill to the DHS account code shortly after he

requested to be listed as an alternate driver during

the Florida trip, and he was given a performance

warning on the first business day after his colleagues

came back from the trip. Def’s Trial Ex. 35; Pl’s Trial

Ex. 35. But Mr. Israelitt has not presented any

evidence that any of these decisions were in any way

related to his benign requests for accommodations

that HP never opposed. To conclude otherwise would

be to ignore the mountain of evidence that Mr.

Israelitt was fired simply because he was an

incompatible and unproductive employee.

Mr. Israelitt argues that Mr. Romas assigned him

the Technology Roadmap assignment knowing it

would be impossible for him to complete and, thus,

set him up for failure so that he could be terminated.4

This argument is both incredible and unsupported.

First, the evidence suggests Mr. Romas gave Mr.

Israelitt every opportunity to succeed rather than to

fail by: removing him from uncomfortable

interactions with colleagues; assigning him his own

projects so that he could add value; assigning him a

senior mentor; going out of his way to describe the

deliverables he was looking for; and staying in

frequent communication with Mr. Israelitt to try to

It is worth noting that an employer is within its rights to

assign an at-will employee a difficult or even impossible task

and to fire the employee for failure to complete that task, so long

as the employer is not motivated by a discriminatory or

retaliatory purpose prohibited by law. However, the problem in

this case appears to be a basic misunderstanding between Mr.

Israelitt and Mr. Romas about the scope of the technology

roadmap task.

50a

monitor his progress and encourage him to focus on

his assignments. Romas Testimony, Feb. 15, 2022;

Def’s Trial Exs. 1, 27, 37, 39. Second, it defies

common sense to think that Mr. Romas would engage

in a months-long endeavor designed to terminate Mr.

Israelitt because he booked a handicap accessible

hotel room and asked to be listed as an alternative

driver on a rental car application. Again, Mr. Romas

credibly testified that he did not have any objection to

either of these accommodation requests, and Mr.

Israelitt has given this Court no reason to question

that testimony.

Instead, Mr. Israelitt relies almost exclusively on

the alleged temporal proximity between his requests

and subsequent events that he viewed as retaliatory.

But it is well established that temporal proximity

alone is not sufficient to establish the causation

element of a retaliation claim. Gibson, 160 F.3d at

182 (“‘Post hoc ergo propter hoc is not enough to

support a finding of retaliation’ . . . [Plaintiff] needed,

and failed, to offer evidence that his [protected

conduct] in some way triggered [the adverse action].”)

(quoting Bermudez v. TRC Holdings, Inc., 138 F.3d

1176, 1179 (7th Cir. 1998)). Accordingly, this Court

finds that Mr. Israelitt was terminated because of his

compatibility and performance related issues. In

other

words,

Mr.

Israelitt’s

requests

for

accommodation were not the “but for” cause of—

indeed, this Court finds they were unrelated to—his

termination. Mr. Israelitt has, therefore, failed to

prove his retaliation claim.

51a

III. Conclusion

For the foregoing reasons, this Court finds that

Plaintiff has failed to meet his burden to prove that

Enterprise retaliated against him. Therefore,

judgment will be entered in favor of Enterprise and

against Mr. Israelitt. A separate order follows.

Dated: March 7, 2022

/s/

Stephanie A. Gallagher

United States District Judge

52a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

JEFFREY ISRAELITT,

Plaintiff,

Civil Case No.

18-cv-01454-SAG

[Filed: 1/7/2022]

ENTERPRISE SERVICES LLC,

Defendant.

MEMORANDUM OPINION

On December 22, 2021, Enterprise Services LLC

(“Defendant”) filed a letter arguing that Mr.

Israelitt’s (“Plaintiff”) sole remaining claim—an

Americans with Disabilities Act (“ADA”) retaliation

claim—does not entitle him to a jury trial. ECF 70.

The same day, this Court held a teleconference with

the parties and directed Plaintiff to file any response

by January 5, 2022. ECF 71. On January 5, 2022,

Plaintiff filed such a response, ECF 73, and

Defendant

filed

additional

correspondence

highlighting supplemental authority in support of its

December 22nd letter. ECF 72. Primarily, Plaintiff

argues that Defendant previously consented to a jury

trial and, correspondingly, has waived any objection

to one. ECF 73 at 1-3. Even if not, however, Plaintiff

argues that his retaliation claim is, in fact, triable by

a jury. ECF 73 at 3-9. Finally, again in the

alternative, Plaintiff argues that this Court should

empanel an advisory jury to which Plaintiff could try

his claim. Id. at 10. This Court has thoroughly

53a

reviewed the parties’ submissions on these issues,

along with the cases cited therein. For the following

reasons, this Court agrees with Defendant and will

try this case as a bench trial.

ANALYSIS

I. Consent and Waiver

As an initial matter, this Court is not persuaded

by Plaintiff’s waiver or consent arguments. There is

no doubt that everyone involved in this litigation—

this Court included—has proceeded until Defendant’s

recent filing under the expectation that this case

would result in a jury trial. That does not mean,

however, that Defendant expressly consented to a

jury trial or waived its right to object to one. Even if

Defendant had actually consented to a jury trial on

Plaintiff’s retaliation claim, persuasive authority

establishes that a defendant may revoke that consent

at any time prior to trial. Kramer v. Banc of America

Securities, LLC, 355 F.3d 961, 968 (7th Cir. 2004)

(“[T]here is no restraint in the text of Rule 39 on the

ability of a party to withdraw its consent to a jury

trial that is not of right. . . . [T]o the extent [the

defendant] did consent to a jury trial, it withdrew

that consent with its motion to strike [the plaintiff’s]

jury demand.”); FN Herstal SA v. Clyde Armory Inc.,

838 F.3d 1071, 1089-90 (11th Cir. 2016); see Tracinda

Corp. v. DaimlerChrysler AG, 502 F.3d 212, 226-27

(3d Cir. 2007); see also Mowbray v. Zumot, 536 F.

Supp. 2d 617, 621 (D. Md. 2008); Demastes v.

Midwest

Diversified

Mgmt.

Corp.,

No.

319CV00065RJCDCK, 2020 WL 1490741, at *4

(W.D.N.C. Mar. 24, 2020). As these cases

demonstrate, the fact that a defendant can revoke its

54a

consent to a jury trial at any time before trial also

demonstrates that Plaintiff’s waiver argument lacks

merit. After all, if a defendant can revoke consent

prior to trial, it follows, then, that such consent, by

itself, does not waive the defendant’s ability to object

prior to trial. Thus, to the extent Defendant ever

consented to a jury trial on Plaintiff’s retaliation

claim, it has now validly revoked such consent.

Plaintiff cites Rhoads v. F.D.I.C. for the

proposition that a party may impliedly consent to a

jury trial. 286 F. Supp. 2d 532, 538 (D. Md. 2003),

aff’d, 94 F. App’x 187 (4th Cir. 2004). But he cites no

authority that contradicts the cases above which hold

that, even if a defendant consents, the defendant is

free to revoke that consent prior to trial.

Regardless, notwithstanding Plaintiff’s waiver

and consent arguments, Federal Rule of Civil

Procedure 39 expressly allows this Court, “on motion

or on its own,” to designate a trial as a bench trial if

it “finds that on some or all of th[e] issues there is no

federal right to a jury trial.” Fed. R. Civ. P. 39(a)(2).

There is no time limit or deadline in Rule 39, and “it

is well-established that a party (or the Court on its

own initiative) may move to strike a jury demand at

any time, even on the eve of trial.” Mowbray, 536 F.

Supp. 2d at 621.

Finally, the Plaintiff will not suffer any prejudice

by converting this trial to a bench trial. Trial is more

than five weeks away, and the parties have not yet

submitted pretrial filings. There is no doubt that it

would have saved the parties and this Court time and

55a

resources if Defendant had raised this issue sooner.1

But the Court’s job at this juncture is to arrive at the

correct legal result, and the law simply does not

support Plaintiff’s consent or waiver arguments.

II. Right to a Jury Trial

Plaintiff argues that he has a right to a jury trial

on his retaliation claim under the ADA, 42 U.S.C.

§ 12203. At bottom, this issue turns on the type of

relief available to Plaintiff on that claim. Where relief

is limited to equitable remedies, as opposed to legal

remedies, the Seventh Amendment does not

guarantee a plaintiff the right to a jury trial. See

Chauffers, Teamsters & Helpers, Local No. 391 v.

Terry, 494 U.S558, 564-65 (1990). The question here,

then, is whether the ADA permits Plaintiff to recover

legal remedies, namely compensatory or punitive

damages, for his retaliation-based claim.

As the parties’ briefing demonstrates, this is a

disputed question of statutory interpretation.

However, in an unpublished opinion, the Fourth

Circuit has squarely held that a plaintiff is not

entitled to a jury trial on a retaliation claim under 42

U.S.C. § 12203. Bowles v. Carolina Cargo, Inc., 100 F.

App’x 889, 890 (4th Cir. 2004). In another

unpublished case, the Fourth Circuit held that

That said, while not impacting this Court’s decision, this

case may be tried sooner if it is converted to a bench trial

because the latest surge in COVID-19 infections has caused the

postponement of jury trials that may well be extended past

February 14th. See In re: Court Operations Under the Exigent

Circumstances Created by COVID-19, 1:00-mc-00308, ECF 142,

Standing Order 2021-15 (D. Md. Dec. 22, 2021) (postponing jury

trials through January 24, 2022).

56a

neither compensatory nor punitive damages are

available in an ADA retaliation claim. Rhoads v.

F.D.I.C., 94 F. App’x 187 (4th Cir. 2004). Both cases

cite to the Seventh Circuit’s decision in Kramer v.

Banc of America Securities, LLC as support for those

conclusions. 355 F.3d 961 (7th Cir. 2004). Since

Bowles, Rhoads, and Kramer, the Ninth Circuit has

ruled similarly. Alvarado v. Cajun Operating Co., 588

F.3d 1261 (9th Cir. 2009) (“[W]e hold, as did the

Seventh Circuit in Kramer, that the plain and

unambiguous provisions of 42 U.S.C. § 1981a limit

the availability of compensatory and punitive

damages to those specific ADA claims listed. ADA

retaliation is not on the list. Because we conclude

that ADA retaliation claims are redressable only by

equitable relief, no jury trial is available.”).

Because Bowles and Rhoads are unpublished,

they are not binding. However, in the years since

they were issued, numerous district courts within the

Fourth Circuit have adopted their holdings. Neither

the parties nor this Court has found a single district

court decision from within the Fourth Circuit (since

Bowles and Rhoads) that has ruled the other way.

See, e.g., Cannon v. Wal-Mart Associates, Inc., No.

5:19-CV-373-D, 2021 WL 4164075, at *6 (E.D.N.C.

Sept. 10, 2021); Williams v. Quality Technology, Inc.,

No. 1:19-cv-106 (LMB/MSN), 2020 WL 807526, at *3

(E.D. Va. Feb. 18, 2020); Dalton v. Lewis-Gale

Medical Center, LLC, No. 7:19-cv-00204, 2019 WL

4394757, at *1-3 (W.D. Va. Sept. 13, 2019) (noting

that “there does not appear to be a substantial

difference of opinion on this issue within the Fourth

Circuit.”); Via v. Communications Corp. of Am., Inc.,

311 F. Supp. 3d 812, 821-22 (W.D. Va. 2018); Akbar-

57a

Hussain v. ACCA, Inc., No. 1:16-cv-1323, 2017 WL

176596, at *4-5 (E.D. Va. Jan. 17, 2017); Counts v.

Norton Community Hospital/Mountain States Health

Alliance, No. 2:13cv00012, 2013 WL 4255743, at *2

(W.D. Va. Aug. 15, 2013).

Plaintiff cites three cases from within the Fourth

Circuit as support for his position. First, he cites

Judge Blake’s pre-trial decision in Rhoads, which

found that “compensatory damages are available to

Rhoads on her ADA retaliation claim” and, therefore,

that the plaintiff had a right to a jury trial on that

claim. No. CCB-94-1548, 2002 WL 31755427, at *2

(D. Md. Nov. 7, 2002). That district court decision,

however, was issued two years before the Fourth

Circuit came to the opposite conclusion in Bowles

and, ironically, in Rhoads itself. The Plaintiff

misrepresents the subsequent procedural history of

the Rhoads case. There, although the case proceeded

to a jury trial, Judge Blake granted the defendant’s

post-trial motion for judgment as a matter of law on

the issue of compensatory damages “on the grounds

that Rhoads did not present any evidence whatsoever

supporting her claim for such damages.” Rhoads, 286

F. Supp. 2d at 537. Moreover, on appeal, the Fourth

Circuit held that “Rhoads’ claim that she was entitled

to recover compensatory and punitive damages in her

trial for violation of the ADA’s anti-retaliation

provision fails because such relief is unavailable.”

Rhoads, 94 F. App’x at 187 (citing Kramer, 355 F.3d

at 965) (emphasis added). Just two months later, the

Fourth Circuit reaffirmed that view in Bowles.

Second, and similarly, the Fourth Circuit’s published

decision in Baird v. Rose, 192 F.3d 462, 471-72 (4th

Cir. 1999), which broadly stated that Title VII

58a

remedies are available to plaintiffs under the ADA’s

antiretaliation provisions, was issued five years

before Bowles and Rhoads. Third, Plaintiff cites

Evans v. Larchmont Baptist Church Infant Care Ctr.,

Inc., which acknowledged the disputed nature of this

issue and then explained that, even assuming

(without holding) that compensatory and punitive

damages would have been available to the plaintiff,

she was not entitled to them. 956 F. Supp. 2d 695,

707 (E.D. Va. 2013) (“[E]ven if such damages are

available for [an ADA retaliation] claim, the Court

finds that they are unwarranted here.”) (emphasis

added). Thus, none of these cases provides Plaintiff

any support for his contention that the law within

the Fourth Circuit supports his entitlement to legal

remedies or to a jury trial.

To be sure, Plaintiff cites several out-of-circuit

cases holding that compensatory and punitive

damages are available for ADA retaliation claims.

However, the overwhelming weight of authority in

this Circuit holds otherwise, and the Fourth Circuit

has, twice, expressed its clear preference for that

conclusion. Accordingly, this Court adopts the

reasoning in those cases and holds that neither

compensatory nor punitive damages are available

under the ADA’s antiretaliation provisions, and,

therefore, that Plaintiff is not entitled to a jury trial

on his retaliation claim. Bowles, 100 F. App’x at 890;

Rhoads, 94 F. App’x at 187; Kramer, 355 F.3d at 965;

Alvarado, 588 F.3d at 1269-70.

59a

III. Advisory Jury

In the alternative, Plaintiff asks this Court to

exercise its discretion to empanel an advisory jury,

which it is entitled to do under Fed. R. Civ. P.

39(c)(1). This Court is currently facing a backlog of

jury trials due to the COVID-19 pandemic and has

been forced, yet again, to postpone jury trials due to

the latest surge in infections. In re: Court Operations

Under the Exigent Circumstances Created by

COVID-19, 1:00-mc-00308, ECF 142, Standing Order

2021-15 (D. Md. Dec. 22, 2021) (postponing jury trials

through January 24, 2022). Grave public health

concerns starkly limit the number of prospective

jurors that can safely enter the courthouse on any

given day. This Court, therefore, declines to enlist an

advisory jury to informally recommend a disposition

of Plaintiff’s claim.

In any event, this Court is not persuaded that an

advisory jury would be helpful in its adjudication.

Even if an advisory jury rendered an advisory

verdict, this Court would need to reach its own

conclusion about the merits. To avoid that

substantial waste of time and resources, which would

include unnecessarily subjecting potential jurors to

the current health risks associated with jury service,

the Court believes it far more appropriate to proceed

with a traditional bench trial.

CONCLUSION

For the reasons set forth above, this Court finds

that Plaintiff is not entitled to a jury trial on his ADA

retaliation claim, and this case will be tried by bench

trial beginning on February 14, 2022. A separate

order follows.

60a

Dated: January 7, 2022

/s/

Stephanie A. Gallagher

United States District Judge

61a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

JEFFREY ISRAELITT,

Plaintiff,

Civil Case No.

18-cv-01454-SAG

[Filed: 3/2/2021]

ENTERPRISE SERVICES LLC,

Defendant.

MEMORANDUM OPINION

Plaintiff Jeffrey Israelitt (“Plaintiff”) filed a

Second Amended Complaint against his former

employer, Enterprise Services LLC (“Defendant”),

alleging discrimination on the basis of disability,

wrongful

discharge,

denial

reasonable

accommodations, retaliation, and a hostile work

environment.1 ECF 13. Discovery is now concluded.

Defendant filed a motion for summary judgment,

ECF 48, which I have reviewed along with the

relevant exhibits, opposition, and reply. ECF 53, 54.

Defendant also filed a motion to reopen discovery,

ECF 55, which I have also reviewed along with the

relevant exhibits, opposition, and reply. ECF 58, 62.

Lastly, Plaintiff filed a motion for leave to file a

surreply, ECF 56, which I have reviewed along with

the relevant exhibits, opposition, and reply. ECF 57,

Plaintiff’s Second Amended Complaint only includes three

Counts, but the legal theories listed appear to be encapsulated

within those Counts.

62a

59. No hearing is necessary. See Loc. R. 105.6 (D. Md.

2018). For the reasons that follow, I will grant

Defendant’s Motion for Summary Judgment in part

and deny it in part, deny Plaintiff’s Motion for Leave

to File a Surreply, and deny Defendant’s Motion to

Reopen Discovery.

I. FACTUAL BACKGROUND

The facts contained herein are taken in the light

most favorable to Plaintiff, the non-moving party.

Defendant hired Plaintiff, an Army Veteran, as a

senior architect in 2013. He was interviewed by

George Romas, who reviewed his resume and

conducted a telephonic interview. ECF 53-1 at 2.

Romas did not inquire about any disability or medical

conditions during the interview. ECF 53-3 at 24-25.

Plaintiff was ultimately hired to be a member of HP’s

Cybersecurity Solutions Group (“CSG”). When he

started on August 5, 2013, Plaintiff’s job duties

included formulating architectural decisions on

information systems for government customers and

researching innovative technologies to see how they

could be used to “create a discriminator for HP in

order to win business.” Id. at 24. Plaintiff’s position

was “a senior role,” id., and he worked remotely. ECF

48-3 at 96.

Plaintiff has long suffered from a medical

condition called hallux rigiditis, marked by

degenerative

changes

his

right

first

metatarsophalangeal joint and right great toe. ECF

53-8. He had cheilectomies in 1993 and 1997. Id. In

2005 and 2018, radiologists examined his foot and

found

degenerative

changes

the

metatarsophalangeal joint. Id. at 1-2. A podiatrist,

63a

examining Plaintiff in 2006, stated that he has

‘limited range of motion’ in his toe. Id. at 3. Plaintiff

told the podiatrist at that visit that his pain level is

2/10 and “mild.” Id. Plaintiff has also State of

Maryland disability placards as a result of his

condition. Id. at 4-9.

Plaintiff reports that, at times, he “can barely

walk” because of pain. ECF 53-2 at 22. Plaintiff

walks for physical exercise “a couple of times a week.”

Id. at 24-25. As an example, he walks inside a store

like Costco for 30-45 minutes, sometimes starting

and stopping frequently due to his medical problems.

Id.

Near the end of August, 2013, HP began

determining which of its employees would attend a

conference called HP Protect 2013. Initially, Plaintiff

was slated to attend the conference, though securing

the

requisite

passes

proved

less

than

straightforward. Kevin Doty, a business consultant

on the CSG team, told Todd Helfrich, an account

executive who offered to secure passes for CSG’s

hopeful attendees, that his group had three people

they would like to attend the conference, including

Plaintiff. ECF 53-11 at 2. Helfrich later notified the

group that they had eight CSG employees who

requested passes and that there would thus be a need

“to prioritize attendance.” Id. at 1. The campaign

marketing manager observed that they were

“scrambling to find the funds to pay for George

[Romas] and one of his engineers to attend the

event.” ECF 53-10 at 1. Gail Stevens, the capture

manager, told the campaign marketing manager, “We

would like to have George Romas (CyberSecurity

Engineering Lead) and Jeff Israelitt (Lead Architect

64a

for our CDM Offering and the Task Orders) attend,

and I would like to attend, and I think we might have

1 other person.” Id.

Eventually, Helfrich sent Plaintiff a code to

attend the conference, however the registration code

he sent was one otherwise reserved for customers.

ECF 53-13. Plaintiff promptly registered to attend.

However, he sought to stay at the event hotel in

Washington, DC, rather than to commute or stay at a

nearby location. ECF 53-2 at 113. He asked for a

hotel room for persons with disabilities. Id. at 115.

Though there were no hotel rooms available initially,

Plaintiff worked with HP Protect event staff and

eventually secured a room reservation. Id. at 115116. However, on September 10, 2013 he was

informed that his conference registration was invalid,

because he had used a customer registration code but

was an HP employee. ECF 53-13 at 8. Plaintiff

reported the situation to Doty, and Doty in turn

relayed the message to Helfrich. Id. at 7. Helfrich

responded, “Anyone who used the code and registered

with their HP email address likely will be turned

down. I have some damage control that I need to do.

Gail, George and Anil should be good.” Id. at 6. In the

email exchange that followed, Plaintiff requested

clarification of the status of his registration from

Helfrich and, when that was not forthcoming,

followed

with

Doty

about

Helfrich’s

unresponsiveness. Id. at 5-6. Doty suggested that

Plaintiff coordinate with Romas directly, to which

Plaintiff responded referencing several conversations

he claimed to have had with Romas regarding the HP

Protect conference and his difficulties registering for

it. Id. at 3. Plaintiff told Doty that Romas had “heard

65a

that [Plaintiff’s difficulty registering] was as a result

of [his] asking the registration team questions,” and

that Plaintiff told Romas that “the only question I

asked involved disability accommodation for lodging.”

Id. Plaintiff then stated that “it appears that this

information (medical/disability info that I asked you

not to share with anyone) . . . has in itself become the

reason I can’t go now.” Id.

Doty forwarded Plaintiff’s email to Romas

outlining at length his concerns about Plaintiff’s

behavior, including alleged statements Plaintiff had

made to him about faking his disability and

manufacturing lawsuits. Id. at 2. Romas, in response,

said, “after about a 45 minute conversation with

[Plaintiff] at around 7pm last night [September 12,

2013], he said he would ‘keep his mouth shut’ about

this, not attend HP Protect, and hoped that the rest

of us would not have any trouble attending.” Id. at 1.

Separately during this same time period, Plaintiff

and Romas exchanged several emails between

September 13 and 15 regarding Plaintiff’s

registration difficulties, in which Plaintiff suggested

that Doty, Helfrich, and others thought that his

disability accommodation request had “created a

problem” by drawing attention to their registrations.

ECF 53-16 at 2. Plaintiff ultimately did not attend

HP Protect. Plaintiff suggests that his failure to

attend had a detrimental impact on his job by virtue

of him missing out on the opportunity to “get familiar

with HP’s line of products and maybe some services”

as well as “networking opportunities.” ECF 53-2 at

137.

Roughly two weeks later, on or around September

30, 2013, Romas reassigned Plaintiff from the two-

66a

week sprint teams he had originally been staffed on

to longer-term assignments, including working on a

project called the “Technology Roadmap.” ECF 48-4

at 6. He was assigned to work on the Technology

Roadmap with another senior team member, Jeff

Kalibjian. ECF 53-3 at 15. Around that same time,

Romas told Plaintiff to stop attending the daily

“scrum” meetings, because those meetings were part

of the two-week sprint “agile” methodology projects

on which Plaintiff was no longer working due to his

reassignment. ECF 48-4 at 23. Plaintiff responded

that there was “[n]o problem with that from [his]

viewpoint.” Id.

Romas gave Plaintiff a performance review in

October, 2013. In the review, Romas stated that

Plaintiff had a difficult time with the “agile”

methodology as previously noted, but that those

“issues have been mostly resolved” due to his role

being adjusted. Id. at 24. The evaluation also noted

Plaintiff’s confrontational approach, before ultimately

giving him average or above average marks in every

category. Id. The notes next to his numerical grades

indicated that Plaintiff “has had some issues

communicating with the team, but is showing some

improvement,” and “he’s been slow to adapt to the

pace of the team, so has not been as productive in

achieving his goals.” Id. Later that month, Plaintiff

received additional feedback from Doty, again

indicating that he was not providing the sort of work

product expected of him. Id. at 27. Specifically, Doty

questioned how Plaintiff’s presentation “related to

the analysis for the Task areas 5-15 requirements”

and asked that Plaintiff “explain what you have

planned for the actual task 5-15 requirements

67a

analysis.” Id. On November 22, 2013, Romas

recognized Plaintiff in the category of Achievement &

Contribution as part of a group commendation

praising the team’s hard work and diligence. Id. at

25.

In December, 2013, members of the CSG team

began planning a strategic development and teambuilding meeting in St. Augustine, Florida, scheduled

for early January. ECF 53-3 at 9-10. The team had a

small budget for the trip drawn from HP’s

Department of Homeland Security (“DHS”) account,

which required attendees to share accommodations

and vehicles. Id. Plaintiff told Romas that he wanted

to be listed as an additional driver on one of the

vehicles. ECF 53-2 at 212. Jess May, the CSG

practice lead in charge of managing the CSG

development process, including budget and timely

progression, informed Plaintiff shortly thereafter that

he was not to charge the DHS account anymore and

that he would no longer be traveling to Florida. ECF

53-2 at 212. Plaintiff was not the only CSG team

member who did not attend—Kalibjian did not attend

either, for personal reasons. ECF 53-30 at 1-2.

Plaintiff stated that his absence “created the

impression to a lot of people . . . that it looked like I

wasn’t participating in team events for some reason .

. . [which was] open to interpretation by a number of

people.” ECF 53-2 at 226.

On January 13, 2014, the first business day after

the end of the Florida trip, Romas sent a performance

warning to Plaintiff advising that he was failing to

meet expectations in the areas of “productivity,

initiative and teamwork.” ECF 48-4 at 38. The

warning listed three specific work products that

68a

Plaintiff had failed to turn in, including the

“Technology Roadmap for DHS CDM Task Areas 5

through 15.” Id. The warning specified, “For the next

30 days, from January 13, 2014 through February 12,

2014, you are required to demonstrate immediate

and sustained improvement by successfully

completing the Technology Roadmap for Task Areas

5 through 15.” Israelitt refused to sign the warning.

Id. When Plaintiff did not produce the Technology

Roadmap for Task Areas 5 through 15 by February

12, 2014, Romas terminated Plaintiff’s employment.

Id. at 11.

II. LEGAL STANDARD

Under Rule 56(a) of the Federal Rules of Civil

Procedure, summary judgment is appropriate only “if

the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to

judgment as a matter of law.” The moving party

bears the burden of showing that there is no genuine

dispute of material facts. See Casey v. Geek Squad,

823 F. Supp. 2d 334, 348 (D. Md. 2011) (citing

Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282,

1286 (4th Cir. 1987)). If the moving party establishes

that there is no evidence to support the non-moving

party’s case, the burden then shifts to the nonmoving party to proffer specific facts to show a

genuine issue exists for trial. Id. The non-moving

party must provide enough admissible evidence to

“carry the burden of proof in [its] claim at trial.” Id.

at 349 (quoting Mitchell v. Data Gen. Corp., 12 F.3d

1310, 1315-16 (4th Cir. 1993)). The mere existence of

a scintilla of evidence in support of the non-moving

party’s position will be insufficient; there must be

evidence on which the jury could reasonably find in

69a

its favor. Id. at 348 (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251 (1986)). Moreover, a genuine

issue of material fact cannot rest on “mere

speculation, or building one inference upon another.”

Id. at 349 (quoting Miskin v. Baxter Healthcare

Corp., 107 F. Supp. 2d 669, 671 (D. Md. 1999)).

Additionally, summary judgment shall be

warranted if the non-moving party fails to provide

evidence that establishes an essential element of the

case. Id. at 352. The non-moving party “must produce

competent evidence on each element of [its] claim.”

Id. at 348-49 (quoting Miskin, 107 F. Supp. 2d at

671). If the non-moving party fails to do so, “there can

be no genuine issue as to any material fact,” because

the failure to prove an essential element of the case

“necessarily renders all other facts immaterial.” Id. at

352 (quoting Coleman v. United States, 369 F. App’x

459, 461 (4th Cir. 2010) (unpublished)). In ruling on a

motion for summary judgment, a court must view all

of the facts, including reasonable inferences to be

drawn from them, “in the light most favorable to the

party opposing the motion.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88

(1986) (quoting United States v. Diebold, Inc., 369

U.S. 654, 655 (1962)).

III. ANALYSIS

Plaintiff’s Second Amended Complaint can be

read to contain claims of discrimination, wrongful

discharge, retaliation, failure to accommodate, and

hostile work environment under the Americans with

Disabilities Act (“ADA”). Each claim is addressed

below.

70a

“When a plaintiff alleges that her employer

unlawfully discriminated or retaliated against her in

violation of the ADA, she can prove her claim through

direct and indirect evidence . . . [or] otherwise . . .

may proceed under the burden-shifting framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802, 93 S.Ct. 1817 (1973).” Laird v. Fairfax Cty.,

Virginia, 978 F.3d 887, 892 (4th Cir. 2020). ADA

wrongful discharge claims lacking direct evidence are

similarly evaluated via the McDonnell Douglas

framework, Messick v. Bd. of Educ. of Wicomico Cty.,

No. CIV.A. GLR-14-2690, 2014 WL 7357554, at *5 (D.

Md. Dec. 19, 2014), as are hostile work environment

claims, see Kaszynski v. Thompson, 83 F. App’x 526,

527-28 (4th Cir. 2003). Plaintiff has not provided any

direct or indirect evidence pertaining to these claims

here. See Warch v. Ohio Cas. Ins. Co., 435 F.3d 510,

520 (4th Cir. 2006) (defining direct evidence as

evidence that “reflect[s] directly the alleged

discriminatory attitude” and “bear[s] directly on the

contested employment decision” (quoting Taylor v.

Va. Union Univ., 193 F.3[d] 219, 232 (4th Cir. 1999)

(en banc))). Thus, the Court must engage in the

McDonnell Douglas analysis for each.2

Precedent is not particularly clear as to whether the

McDonnell Douglas burden-shifting framework applies to ADA

failure to accommodate claims. Compare Evans v. Banks Const.

Co., No. 2:11-CV-2526-CWH, 2013 WL 5437639, at *7 (D.S.C.

Sept. 27, 2013), with Jacobs v. N.C. Admin. Office of the Courts,

No. 7:11-CV-169-BO, 2013 WL 4736171, at *3 (E.D.N.C. Sept. 3,

2013), aff’d in part, rev’d in part, 780 F.3d 562 (4th Cir. 2015).

Since Defendant’s intent is not at issue in the failure to

accommodate context, assessment of Defendant’s legitimate

explanation for its conduct and whether that explanation is

pretextual would appear somewhat misplaced. Regardless, the

71a

The Fourth Circuit has described the mechanics

of McDonnell Douglas as follows:

Under the McDonnell Douglas proof scheme,

the plaintiff has the initial burden of proving

a prima facie case of discrimination by a

preponderance of the evidence. If the plaintiff

succeeds in proving the prima facie case, the

burden shifts to the defendant to articulate

some

legitimate,

nondiscriminatory

explanation which, if believed by the trier of

fact, would support a finding that unlawful

discrimination was not the cause of the

employment action. If the defendant meets

this burden of production, the presumption

created by the prima facie case “drops out of

the picture,” and the plaintiff bears the

ultimate burden of proving that she has been

the victim of intentional discrimination. St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502

(1993) (holding that prima facie case plus

disbelief of employer’s asserted justification

for employment action is not necessarily

sufficient to establish violation; summary

judgment

appropriate

unless

plaintiff

presents adequate evidence that employer

unlawfully discriminated).

Fourth Circuit unambiguously requires a plaintiff on summary

judgment to provide facts sufficient to support a prima facie

failure to accommodate case, just as McDonnell Douglas

requires. See Wilson v. Dollar General Corp., 717 F.3d 337, 345

(4th Cir. 2013). The Court’s analysis of Plaintiff’s prima facie

case here is sufficient to dispose of the issue without reaching

next steps of McDonnell Douglas, were it to be applicable.

72a

Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53

F.3d 55, 58 (4th Cir. 1995), as amended (June 9,

1995), as amended (Mar. 14, 2008).

A. Discrimination

“To establish a claim for disability discrimination

under the ADA, a plaintiff must prove ‘(1) that she

has a disability, (2) that she is a ‘qualified individual’

for the employment in question, and (3) that [her

employer] discharged her (or took other adverse

employment action) because of her disability.’” Jacobs

v. N.C. Admin. Office of the Courts, 780 F.3d 562, 572

(4th Cir. 2015) (quoting EEOC v. Stowe–Pharr Mills,

Inc., 216 F.3d 373, 377 (4th Cir. 2000)). Plaintiff’s

discrimination claims fail on the first and third

prongs of this analysis.

The ADA defines a “disability” to include “a

physical or mental impairment that substantially

limits one or more major life activities.” 42 U.S.C.

§ 12102(1)(A). “An individual is disabled under the

ADA . . . if he or she: (1) has a physical or mental

impairment that substantially limits one or more of

the individual’s major life activities; (2) has a record

of such an impairment; or (3) is regarded as having

such an impairment.” Davis v. University of North

Carolina, 263 F.3d 95, 99 (4th Cir. 2001) (citations

omitted). “Substantially limits” is defined as

“significantly restricted as to the condition, manner

or duration to the condition, manner, or duration

under which the average person in the general

population can perform that some major life activity,”

or the inability “to perform a major life activity that

the average person in the general population can

perform.” 29 C.F.R. § 1630.2(j)(l)(ii). “Examples of

73a

‘major life activities’ are ‘caring for oneself,

performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working.’” Id.

Ultimately, “[t]he determination of whether a person

is disabled is an individualized inquiry, particular to

the facts of each case.” E.E.O.C. v. Sara Lee Corp.,

237 F.3d 349, 352 (4th Cir. 2001) (citations omitted).

Even viewing the facts in the light most favorable

to Plaintiff, he has not established a genuine dispute

of material fact that he was significantly restricted in

his ability to walk (or perform any other major life

activity) during his period of employment. His

extremely sparse medical records, many of which are

drawn from doctor visits well outside the period of

time relevant to this lawsuit, demonstrate a

longstanding diagnosis of hallux rigiditis, but contain

no indication that he is significantly impaired in his

ability to function.3 See ECF 53-8 (referencing a

limited range of motion but low reported pain level,

Defendant argues that Plaintiff should not be allowed to

rely upon a number of pieces of evidence he puts forward,

perhaps most significantly portions of several medical records

that Plaintiff sought to keep Defendant from accessing during

discovery. ECF 54 at 3-4. This prompted Defendant to file a

Motion to Reopen Discovery, ECF 55, seeking to explore those

medical records further. Plaintiff, meanwhile, sought the

opportunity to respond to Defendant’s arguments regarding

Plaintiff’s alleged improper reliance on medical records and

other evidence. ECF 56. Re-opening discovery is unnecessary

here because, even when considering the evidence to which

Defendant objects and without the benefit of the additional

medical records it seeks, Plaintiff has failed to establish a

disability. Similarly, consideration of Plaintiff’s surreply is

unnecessary because the Court has considered the evidence to

which Defendant objects. Both motions will therefore be denied.

74a

and generally containing no mention of any lifestyle

limitations, significant or otherwise). While Plaintiff’s

deposition testimony references occasional severe

pain, particularly when cold, that is not enough to

constitute significant impairment of life activities

either, as evidenced by the fact that his physical

exercise of choice is walking and he is able to walk for

up to 30-45 minutes at times, even taking into

account starting and stopping. ECF 53-2 at 22-25.

The testimony of one coworker, meanwhile, suggests

that on a trip to Texas shortly before the HP Protect

conference, Plaintiff walked extensively with no

apparent issues and never mentioned an impairment.

ECF 48-6 at 17. Indeed, by his own admission,

Plaintiff

did

not

require

any

disability

accommodations during the Texas trip despite

staying at a hotel. ECF 53-2 at 62. Thus, while

Plaintiff has certainly provided evidence that he feels

severe pain in his foot at times due to his condition,

he has failed to establish a question of material fact

as to whether that pain substantially limits his major

life activities.

The conclusion that Plaintiff has not sufficiently

established that he is disabled within the meaning of

the ADA is bolstered by a wide body of case law

regarding similar toe and foot injuries. “[S]ome

limitation in walking [in certain circumstances] . . .

do[es] not equate to a substantial limitation in [the]

ability to walk.” Frogge v. Fox, No. 1:17CV155, 2019

WL 2418749, at *6 (N.D.W. Va. June 10, 2019); see

also Fink v. Richmond, 405 Fed. App’x 719 (4th Cir.

2010) (finding no genuine dispute of material fact and

no disability when a plaintiff was only limited in

walking quickly); Stewart v. Weast, 228 F. Supp. 2d

75a

660 (D. Md. 2002) (deeming plaintiff to not be

disabled because she failed to sufficiently specify the

extent to which her walking was disabled); Harmon

v. Sprint United Management Corp., 264 F. Supp. 2d

964 (D. Kan. 2003) (plaintiff who could walk half a

mile, sit for up to five hours, lift up to 100 pounds,

and only had physician restrictions preventing

“prolonged” walking, sitting, or standing was not

disabled); Miller v. Wells Dairy, Inc., 252 F. Supp. 2d

799 (N.D. Iowa 2003) (plaintiff who could walk well

on level surface, but was limited in ability to walk the

same distance as previously, walk at the same pace

as previously, and walk up three steps was not

disabled); Zuppardo v. Suffolk County Vanderbilt

Museum, 19 F. Supp. 2d 52 (E.D.N.Y. 1998) (plaintiff

who could walk more than 1/8th of a mile without

stopping was not disabled within the definition of the

ADA); Banks v. Hit or Miss, Inc., 996 F. Supp. 802

(N.D. Ill. 1998) (plaintiff who could walk unassisted

without use of cane or crutch, has no medical

restrictions, and failed to provide any other evidence

of substantial limitation in walking was not

disabled). Plaintiff, therefore, has not made the

requisite showing that he was a qualified individual

with a disability in order to survive summary

judgment on his ADA discrimination claim.

Even assuming that Plaintiff had been able to

establish that he were a qualified individual with a

disability, he would then have to show that he was

subjected to an adverse employment action, which

adversely “affect[ed] employment or alter[ed] the

conditions of the workplace.” Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006). The

adverse action must result in “some significant

76a

detrimental effect.” Laird, 978 F.3d at 893 (internal

citations omitted). Plaintiff alleges that the actions

taken against him were (1) denial of the opportunity

to attend the HP Protect conference; (2) his removal

from the daily scrum call team meetings, (3) denial of

the opportunity to attend the planning and teambuilding trip to Florida; and (4) his ultimate

termination. ECF 53 at 23-25. Of that list, only the

termination affected Plaintiff’s employment. The

conference and the trip were one-time, nonmandatory events with no bearing on Plaintiff’s

ability to perform his work duties. In his deposition,

Plaintiff could only articulate benefits he would have

received from attending HP Protect, ECF 53-2 at 137,

and raise speculative concerns about how his

coworkers interpreted his absence from the Florida

trip, id. at 226. While such testimony makes clear

that Plaintiff would have liked to attend both events,

it does not demonstrate any concrete detrimental

impact on his job or workplace environment, let alone

a significant one. See Johnson v. Balt. City Police

Dep’t, No. 12-2519, 2014 WL 1281602, at *17 (D. Md.

Mar. 27, 2014) (“[N]ot everything that makes an

employee unhappy is an actionable adverse action.”).

Regarding his removal from team meetings,

meanwhile, Plaintiff himself stated in an email at the

time the removal occurred that there was “[n]o

problem with that from [his] viewpoint,” ECF 48-4 at

23, foreclosing any possibility that the removal could

be considered adverse.

While the termination is certainly an adverse

action, Plaintiff fails to establish that he was

terminated because of his alleged disability. To

demonstrate discrimination under the ADA, Plaintiff

77a

must meet the “but for” standard of causation.

Gentry v. E. W. Partners Club Mgmt. Co. Inc., 816

F.3d 228, 235 (4th Cir. 2016). Put simply, nothing in

the record even begins to suggest that Romas, the

employee who ultimately made the decision to fire

Plaintiff, possessed a discriminatory animus linked to

Plaintiff’s medical condition. Plaintiff has not shown

that Romas made any disparaging remarks about

Plaintiff’s disability or, indeed, ever made comments

about or otherwise addressed the disability at all.

Romas did undoubtedly engage with Plaintiff on

multiple

occasions

regarding

Plaintiff’s

accommodation requests, but while those requests

referenced Plaintiff’s assertion of a disability, the

emails and deposition testimony regarding those

conversations gives no indication that Plaintiff’s

underlying medical condition itself was ever

discussed or at issue. Put differently, Romas’s

interactions with Plaintiff centered on his

accommodations requests, not the claimed disability

underlying them. Plaintiff’s claims are therefore

better suited to consideration in the retaliation

context. Given the distinct lack of links between

Romas and Plaintiff’s alleged disability, “but for”

causation cannot be established for the purposes of

the summary judgment analysis. Thus, for all of the

foregoing reasons, summary judgment will be

granted for Defendant on Plaintiff’s ADA

discrimination claim.

B. Wrongful Discharge

To establish a claim for wrongful discharge under

the ADA, Plaintiff must demonstrate that: (1) he is

within the ADA’s protected class; (2) he was

discharged; (3) at the time of his discharge, he was

78a

performing the job at a level that met his employer’s

legitimate expectations; and (4) his discharge

occurred under circumstances that raise a reasonable

inference of unlawful discrimination. Haulbrook v.

Michelin N. Am., Inc., 252 F.3d 696, 702-03 (4th Cir.

2001). An individual is “within the ADA’s protected

class” if they are “a qualified individual with a

disability” under the ADA. Id.

As outlined above in Section III(A), Plaintiff has

not established that he was an individual with a

disability. Thus, his wrongful discharge claim fails

from the start. Similarly, for all of the same reasons

why Plaintiff has failed to show a “but for” causal

link between his disability and his termination in the

preceding section, he fails here too to show that his

circumstances raised a reasonable inference of

unlawful discrimination. There simply is no evidence

linking the individual who terminated Plaintiff,

Romas, to some sort of discriminatory animus

targeting his underlying disability. As such, Plaintiff

has failed to prove that his discharge occurred under

circumstances that raise a reasonable inference of

unlawful discrimination. Summary judgment on his

wrongful discharge claim will be granted for

Defendant.

C. Retaliation

Plaintiff’s next claim alleges that Defendant

retaliated

against

him

for

requesting

accommodations for his claimed disability on several

occasions. As summarized by the Fourth Circuit, the

ADA retaliation standard is as follows:

Under 42 U.S.C. § 12203, “[n]o person shall

discriminate against any individual because

79a

such individual has opposed any act or

practice made unlawful by this chapter or

because such individual made a charge,

testified, assisted, or participated in any

manner in an investigation, proceeding, or

hearing under this chapter.” (emphasis

added). In order to establish a prima facie

case of retaliation, a plaintiff must allege (1)

that she has engaged in conduct protected by

the ADA; (2) that she suffered an adverse

action subsequent to engaging in the

protected conduct; and (3) that there was a

causal link between the protected activity

and the adverse action. Rhoads v. FDIC, 257

F.3d 373, 392 (4th Cir. 2001). In reviewing

retaliation claims, courts recognize the need

to balance the desire to encourage employees

to oppose unlawful discrimination, with “an

employer’s interest in maintaining a

harmonious, productive and loyal workforce.”

Fitch v. Solipsys Corp., 94 F. Supp. 2d 670,

678 (D. Md. 2000).

Freilich v. Upper Chesapeake Health, Inc., 313 F.3d

205, 216 (4th Cir. 2002). Significantly, the ADA does

not require proof of disability to mount a retaliation

claim, so the Court’s conclusion that Plaintiff has

failed to demonstrate a disability as a matter of law

is not relevant. Rhoads, 257 F.3d at 380. Indeed,

Plaintiff does not even have 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.” Reynolds v. Am. Nat’l Red Cross,

701 F.3d 143, 154 (4th Cir. 2012).

80a

A requested accommodation can constitute

“conduct protected by the ADA.” Jacobs v. N.C.

Admin. Office of the Courts, 780 F.3d 562, 577 (4th

Cir. 2015). While there is some question as to

whether Plaintiff’s requests for a hotel room at the

HP Protect conference and to be a driver on the trip

in Florida were made explicitly as accommodation

requests for a disability as opposed to just general

requests, Plaintiff has established a dispute of

material fact to this end. ECF 53-13 (email from

Plaintiff to Doty describing his request as one for

“disability accommodation”); ECF 53-2 at 17-18

(Plaintiff’s testimony that when he requested to be a

driver on the Florida trip, he referenced his

disability). Thus, viewing the facts in the light most

favorable to Plaintiff, he has satisfied the first prong

the

retaliation

analysis

requesting

accommodation. The second prong of the analysis is

whether Plaintiff suffered an adverse action. As

outlined above in Section III(A), Plaintiff has failed to

demonstrate that denial of the opportunity to attend

the HP Protect conference, denial of the request to be

a driver on the trip to Florida, and his agreed-upon

removal from team calls are adverse actions.4 That

leaves only his termination as an adverse action that

What qualifies as an adverse action differs slightly in the

retaliation and unlawful discrimination contexts, but only in

terms of the scope of actions covered (i.e. whether the acts and

harm occurred in the workplace or not) and not in terms of “the

required effect or adversity from such actions.” Laird, 978 F.3d

at 893. Since the Court’s adverse action analysis in this case

centers on the fact that several of Plaintiff’s claimed adverse

acts did not create significant detrimental effects, the result is

substantively the same in both retaliation and discrimination

contexts.

81a

could constitute retaliation. Thus, to satisfy the final

prong of the retaliation analysis, he must show a

genuine issue of material fact as to the causal link

between his accommodation requests and his

termination.

To establish a causal connection between the

termination and his accommodation requests,

Plaintiff must prove “but-for” causation. Gentry, 816

F.3d at 235-36 (“The only remaining question is

whether the ADA’s text calls for a ‘but-for’ causation

standard. We hold that it does.”). Temporal proximity

alone is insufficient to prove causation, id., as is

merely showing that the adverse action occurred

subsequent to Plaintiff’s accommodation requests,

Gibson v. Old Town Trolley Tours of Washington,

D.C., Inc., 160 F.3d 177, 182 (4th Cir. 1998). As an

initial matter, the relevant events are not

particularly proximate in time. The HP Protect

conference hotel accommodation request and related

discussions occurred around September 13, 2013,

while the Florida accommodation request occurred

around December 19, 2013, roughly three months

later. Plaintiff was not terminated until February 14,

2014, an additional two months after his Florida

request. Additionally, his accommodation requests

and the alleged retaliatory acts arising out of them

involved a range of different HP employees, some of

whom are not even alleged to have known about his

disability. See, e.g., ECF 53-2 at 18-19 (discussing

whether Jess May, the HP employee who removed

Plaintiff from the Florida trip, knew about Plaintiff’s

disability). Against this backdrop, Plaintiff may have

difficulty meeting his burden to prove causation at

trial.

82a

That said, the summary judgment standard is a

lower bar than the standard of proof at trial, and

Plaintiff’s retaliation claim narrowly clears it here—

he has established the existence of a question of fact

as to whether his accommodation requests were a

“but for” cause of his termination. The relevant

causal chain is as follows: Romas received notice of

Plaintiff’s accommodation request at the HP Protect

conference in mid-September 2013, culminating in a

number of emails between the two, plus at least one

phone call. Romas also engaged in a side

conversation with Doty in which Doty expressed his

growing frustration with Plaintiff and questioned the

veracity of his disability claims, to which Romas

replied “[t]hanks for keeping me informed. . . .” ECF

53-13 at 1-2. Just a few weeks later, Romas began

giving Plaintiff negative performance evaluations

intermixed with some indicators of positive

performance. Then, shortly after receiving Plaintiff’s

accommodation request to be a driver on the Florida

trip and immediately upon conclusion of said trip,

Romas issued Plaintiff a performance warning and

assigned the strict Technology Roadmap deadline

that led to Plaintiff’s ultimate termination. While

temporal proximity and sequencing of events are not

enough alone to establish a question of fact, the

decisive difference here is that this pattern of

1) accommodation request followed by 2) Romas

cracking down on Plaintiff’s job performance

happened twice in relatively quick succession.

Plaintiff’s requests, followed shortly by Romas taking

negative actions against Plaintiff ultimately leading

83a

to his termination, narrowly clear the “genuine

dispute of material fact” bar.5

Since Plaintiff has established the existence of a

genuine dispute of material fact as to whether he can

make a prima facie case of ADA retaliation, the final

McDonnell Douglas step is to determine whether

Defendant’s

proffered

legal

justification

for

terminating Plaintiff is mere pretext. Defendant

claims that it terminated Plaintiff because he failed

to complete the area 5-15 Technology Roadmap,

which he had been assigned to work on since

September, 2013. ECF 48-4 at 11. In response,

Plaintiff asserts that this explanation is pretextual

because it was unrealistic to expect Plaintiff to

complete that assigned portion of the Technology

Roadmap in the time allotted him. Its scope, Plaintiff

suggests, required a much greater amount of time

than the one month he was ultimately given to finish

This analysis is substantively different than the causation

analysis in Section III(A) addressing ADA discrimination. That

discrimination analysis centered on the fact that the evidence is

entirely devoid of any connection between Romas and Plaintiff’s

disability—Romas never mentions the disability at all,

participated in an email exchange in which another employee

expressed skepticism of its existence, and, at best, is only

established to have been tangentially aware of it insofar as it is

underlying the accommodation requests with which he is

dealing. Here, on the other hand, the record firmly establishes

that Romas was not only aware of the accommodation requests,

but was intimately involved with handling their fallout. He

spoke at length with Plaintiff about the HP Protect hotel

request, with the result of that conversation being that Plaintiff

would “keep his mouth shut” about the issue. ECF 53-13 at 1.

Regarding the Florida trip, meanwhile, Plaintiff made the car

driver accommodation request directly to Romas. ECF 53-2 at

212.

84a

it once the performance warning was handed down.

ECF 53 at 24. While Defendant points to a document

entitled

“Continuous

Monitoring–Technology

Roadmap task” that outlines precisely what

deliverables Plaintiff was expected to complete

during the January 13, 2014-February 12, 2014

timeframe, ECF 48-4 at 42-43, that document does

not resolve the dispute because the Court has no way

of knowing how long it would take for a reasonably

diligent employee “to work within Task Areas 5-15

and demonstrate the ‘top 3-5 vendors/products within

each task area’ with a ‘description of the offering and

how it applies to the specific task area,’” ECF 54 at

12-13. Additionally, it appears the initial deadline for

the project was late 2014 and that Plaintiff originally

had been assigned a teammate to help with

completion of the project, though it is not clear if that

deadline and the co-worker assistance provided were

meant for the entire Technology Roadmap and, if so,

how that overarching Roadmap compared in size to

Plaintiff’s assigned area 5-15 Technology Roadmap

subsection. ECF 53-33; 53-34 at 6-7. While the Court

has no doubt that such issues can be readily

determined at trial, the record as it currently stands

does not contain a clear indication of how long that

portion of the roadmap would ordinarily take. There

thus exists a question of material fact as to whether

Defendant’s reason for terminating Plaintiff was

pretextual. As such, Plaintiff’s ADA retaliation claim

survives summary judgment, specifically with regard

to his allegations that he was terminated due to his

accommodation requests.

85a

D. Failure to Accommodate

Plaintiff’s next claim alleges that Defendant

denied him reasonable accommodation for his

disability. “A reasonable accommodation is one that

(1) ‘enables [a qualified] individual with a disability .

. . to perform the essential functions of [a] position,’

29 C.F.R. § 1630.2(o)(1)(ii); or (2) ‘enable[s] [an]

employee with a disability to enjoy equal benefits and

privileges of employment as are enjoyed by . . . other

similarly situated employees without disabilities,’ id.

§ 1630.2(o)(1)(iii).” Hamel v. Bd. of Educ. of Harford

Cty., JKB-16-2876, 2018 WL 1453335, at *10 (D. Md.

Mar. 23, 2018). To establish a prima facie case for

failure to accommodate, a plaintiff must demonstrate

(1) that the employee was an individual with a

disability within the meaning of the ADA; (2) that the

employer had notice of the disability; (3) that with

reasonable accommodation, the employee could

perform the essential functions of the position; and

(4) that the employer refused to make such

accommodations. Rhoads v. FDIC, 257 F.3d 373, 387

n.11 (4th Cir. 2001); see also Stephenson v. Pfizer,

641 F. App’x 214, 219 (4th Cir. 2016) (per curiam);

Jacobs, 780 F.3d at 579; Wilson v. Dollar Gen. Corp.,

717 F.3d at 345.

Once again, this claim fails because of Plaintiff’s

failure to demonstrate facts permitting a reasonable

jury to conclude that he is an individual with a

disability within the meaning of the ADA. In addition

to that deficiency, however, Plaintiff’s “reasonable

accommodation” claim essentially tries to force a

square peg into a round hole. Plaintiff did not request

any reasonable accommodation to allow him to

perform the essential functions of his position. At

86a

best, he requested reasonable accommodations in the

form of (1) an accessible hotel room for the HP

Protect conference, and (2) a listing as a driver for a

vehicle to attend the Florida trip. Even assuming

that his employer denied those accommodations

(which is not at all clear from the record for a variety

of reasons), neither of those two unique events

constituted essential functions of his position.6

Attendance was not mandatory and, as outlined in

Section III(A), Plaintiff did not suffer any job-related

harm as a result of his inability to attend. Plaintiff’s

testimony suggests that attendance at the HP Protect

conference would have been helpful, and that he

worried his colleagues would think he was not a team

player if he did not attend the Florida trip—but such

concerns about possible upsides and speculative

harms cannot be mistaken for descriptions of

essential job functions.

Ultimately, Plaintiff has not established that he

is disabled within the meaning of the ADA or that he

ever requested a reasonable accommodation to allow

him to perform the essential functions of his position.

Summary judgment is therefore warranted on his

reasonable accommodation claim.

Plaintiff eventually obtained the hotel reservation he

sought for the conference but was denied admission to the

conference because he had sought to use a customer code for

entry as an employee. His use of an improper customer code was

unrelated to his assertion of need for an accessible hotel room.

ECF 53-13 at 8. As to the Florida trip and his driver

accommodation request, it is unclear whether the HP employee

who ultimately removed him from the trip even knew he was

disabled to begin with, let alone knew anything about his

accommodation request. ECF 53-2 at 18-19.

87a

E. Hostile Work Environment

In Count Three, Plaintiff alleges that Defendant

violated the ADA by subjecting him to a hostile work

environment. The Fourth Circuit has ruled that such

a claim can be cognizable under particular

circumstances:

Appropriately modifying the parallel Title VII

methodology, an ADA plaintiff must prove the

following to establish a hostile work environment

claim: (1) he is a qualified individual with a

disability; (2) he was subjected to unwelcome

harassment; (3) the harassment was based on his

disability; (4) the harassment was sufficiently severe

or pervasive to alter a term, condition, or privilege of

employment; and (5) some factual basis exists to

impute liability for the harassment to the employer.

See Brown v. Perry, 184 F.3d 388, 393 (4th Cir. 1999)

(stating elements of a sexual harassment hostile

work environment claim).

Fox v. General Motors Corp., 247 F.3d 169, 177

(4th Cir. 2001). As discussed above, because Plaintiff

has not shown that he is a qualified individual with a

disability, his ADA hostile work environment claim

fails at its inception. However, even if he had been

able to establish that initial prong, he has not

adduced sufficient evidence to meet his burden as to

at least two other prongs: that the harassment was

based on his disability or that the harassment was

sufficiently severe or pervasive to alter a term,

condition or privilege of his employment.

Plaintiff does not allege many specific comments

relating to his toe in the workplace. He generally

alleges that he was subjected to disrespectful

88a

treatment in his exclusion from meetings, and that

his inability to attend the Florida trip caused others

view

him

negatively.

However,

simple

mistreatment or rude conduct does not suffice to

support a hostile work environment claim. See EEOC

v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-16 (4th

Cir. 2008) (explaining “complaints premised on

nothing more than ‘rude treatment by [coworkers],’

‘callous behavior by [one’s] superiors,’ or ‘a routine

difference of opinion and personality conflict with

[one’s] supervisor’” do not suffice (alterations in

original) (citations omitted)); see also Bass v. E.I.

DuPont de Nemours & Co., 324 F.3d 761, 765 (4th

Cir. 2003) (finding a workplace dispute and “some

perhaps callous behavior by her superiors”

insufficient for a plaintiff to establish severe or

pervasive activity, even at the Rule 12(b)(6) stage);

Khoury v. Meserve, 268 F. Supp. 2d 600, 614 (D. Md.

2003) (determining that “disrespectful, frustrating,

critical, and unpleasant” workplace interactions do

not create a hostile work environment). Other than

his unsubstantiated perception that the personality

conflict was attributable to his assertion of disability,

Plaintiff offers no evidence linking any unpleasant

behavior he faced to his medical condition.

Additionally, the few disability-related comments

Plaintiff does specifically identify are not sufficiently

“severe” or “pervasive” to make a prima facie case of

hostile work environment. The email correspondence

between supervisors in which at least one individual

suggested Plaintiff was faking his disability and was

a serial plaintiff, ECF 53-13 at 2, was not even

known to him at the time he was employed at HP and

thus cannot be deemed to have contributed to his

89a

work environment. To the extent he alleges some

comments were made in person, he does not allege

the dates or frequency of such comments, or any

particular concentration over a limited time frame,

sufficient to meet the “high bar in order to satisfy the

severe or pervasive test.” Sunbelt Rentals, Inc., 521

F.3d at 315; see also Dangerfield v. Johns Hopkins

Bayview Med. Ctr., Inc., Civil No. JKB-19-155, 2019

WL 6130947, at *3 (D. Md. Nov. 19, 2019) (stating,

with respect to general allegations of consistent

“condescending and abusive language and behavior,”

“[w]ithout details about the nature of the remarks

and behavior at issue, it is impossible for the Court to

determine whether the behavior she complains of

would be seen as objectively hostile by a ‘reasonable

person’”); Lenoir v. Roll Coater, Inc., 841 F. Supp.

1457, 1462 (N.D. Ind. 1992) (finding plaintiff’s

allegations of being reprimanded more severely than

co-workers, without reference to exact dates, to be

insufficient to support a harassment claim), aff’d, 13

F.3d 1130 (7th Cir. 1994). Summary judgment for

Defendant is thus also appropriate as to the hostile

work environment claim.

IV. CONCLUSION

For the reasons set forth above, Defendant’s

Motion for Summary Judgment, ECF 48, will be

GRANTED as to Counts I, II, and III, except insofar

as Counts I and II include claims of ADA retaliation.

Plaintiff’s Motion for Leave to File Surreply, ECF 56,

will be DENIED. Defendant’s Motion to Reopen

Discovery, ECF 55, will be DENIED. A separate

Order follows.

90a

Dated: March 2, 2021

/s/

Stephanie A. Gallagher

United States District Judge

91a

APPENDIX E

FILED: September 12, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________________

No. 22-1382

1:18-CV-01454-SAG

___________________

JEFFREY B. ISRAELITT,

Plaintiff-Appellant,

ENTERPRISE SERVICES, LLC,

Defendant-Appellee,

and

HEWLETT PACKARD; HEWLETTPACKARD COMPANY; HEWLETT

PACKARD ENTERPRISE COMPANY; HP

INC.; DXC TECHNOLOGY COMPANY; DXC

TECHNOLOGY SERVICES LLC; NETIQ

CORPORATION, trading as Micro Focus,

Defendants.

---------------------------------EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Amicus Supporting Appellant.

____________

ORDER

____________

92a

The petition for rehearing en banc was circulated

to the full court. No judge requested a poll under Red.

R. App. P. 35. The court denies the petition for

rehearing en banc.

For the Court

/s/ Nwamaka Anowi, Clerk

93a

APPENDIX F

TITLE 42. THE PUBLIC HEALTH AND WELFARE

42 U.S.C. § 1981a. Damages in cases of intentional

discrimination in employment

(a) Right of recovery

(1) Civil rights

In an action brought by a complaining party

under section 706 or 717 of the Civil Rights Act of

1964 against a respondent who engaged in

unlawful intentional discrimination (not an

employment practice that is unlawful because of

its disparate impact) prohibited under section

703, 704, or 717 of the Act, and provided that the

complaining party cannot recover under section

1981 of this title, the complaining party may

recover compensatory and punitive damages as

allowed in subsection (b), in addition to any relief

authorized by section 706(g) of the Civil Rights

Act of 1964, from the respondent.

(2) Disability

In an action brought by a complaining party

under the powers, remedies, and procedures set

forth in section 706 or 717 of the Civil Rights Act

of 1964 (as provided in section 107(a) of the

Americans with Disabilities Act of 1990 (42

U.S.C. 12117(a)), and section 794a(a)(1) of Title

29, respectively) against a respondent who

engaged in unlawful intentional discrimination

(not an employment practice that is unlawful

because of its disparate impact) under section 791

94a

of Title 29 and the regulations implementing

section 791 of Title 29, or who violated the

requirements of section 791 of Title 29 or the

regulations implementing section 791 of Title 29

concerning the provision of a reasonable

accommodation, or section 102 of the Americans

with Disabilities Act of 1990 (42 U.S.C. 12112), or

committed a violation of section 102(b)(5) of the

Act, against an individual, the complaining party

may recover compensatory and punitive damages

as allowed in subsection (b), in addition to any

relief authorized by section 706(g) of the Civil

Rights Act of 1964, from the respondent.

(3) Reasonable accommodation and good faith

effort

In cases where a discriminatory practice involves

the provision of a reasonable accommodation

pursuant to section 102(b) (5) of the Americans

with Disabilities Act of 1990 or regulations

implementing section 791 of Title 29, damages

may not be awarded under this section where the

covered entity demonstrates good faith efforts, in

consultation with the person with the disability

who has informed the covered entity that

accommodation is needed, to Identify and make a

reasonable accommodation that would provide

such individual with an equally effective

opportunity and would not cause an undue

hardship on the operation of the business.

95a

(b) Compensatory and punitive damages

(1) Determination of punitive damages

A complaining party may recover punitive

damages under this section against a respondent

(other than a government, government agency or

political subdivision) if the complaining party

demonstrates that the respondent engaged in a

discriminatory

practice

discriminatory

practices with malice or with reckless

indifference to the federally protected rights of an

aggrieved individual.

(2) Exclusions from compensatory damages

Compensatory damages awarded under this

section shall not include backpay, interest on

backpay, or any other type of relief authorized

under section 706(g) of the Civil Rights Act of

1964.

(3) Limitations

The sum of the amount of compensatory damages

awarded under this section for future pecuniary

losses, emotional pain, suffering, inconvenience,

mental anguish, loss of enjoyment of life, and

other nonpecuniary losses, and the amount of

punitive damages awarded under this section,

shall not exceed, for each complaining party—

(A) in the case of a respondent who has more

than 14 and fewer than 101 employees in each

of 20 or more calendar weeks in the current or

preceding calendar year, $50,000;

(B) in the case of a respondent who has more

than 100 and fewer than 201 employees in

96a

each of 20 or more calendar weeks in the

current or preceding calendar year, $100,000;

and

than 200 and fewer than 501 employees in

each of 20 or more calendar weeks in the

current or preceding calendar year, $200,000;

and

(D) in the case of a respondent who has more

than 500 employees in each of 20 or more

calendar weeks in the current or preceding

calendar year, $300,000.

(4) Construction

Nothing in this section shall be construed to limit

the scope of, or the relief available under, section

1981 of this title.

If a complaining party seeks compensatory or

punitive damages under this section—

(1) any party may demand a trial by jury; and

(2) the court shall not inform the jury of the

limitations described in subsection (b)(3).

(d) Definitions

As used in this section:

(1) Complaining party

The term “complaining party” means—

(A) in the case of a person seeking to bring an

action under subsection (a)(1), the Equal

Employment Opportunity Commission, the

97a

Attorney General, or a person who may bring

an action or proceeding under title VII of the

Civil Rights Act of 1964 (42 U.S.C. 2000e et

seq.); or

(B) in the case of a person seeking to bring an

action under subsection (a)(2), the Equal

Employment Opportunity Commission, the

Attorney General, a person who may bring an

action or proceeding under section 794a(a)(1) of

Title 29, or a person who may bring an action

or proceeding under title I of the Americans

with Disabilities Act of 1990.

(2) Discriminatory practice

The term “discriminatory practice” means the

discrimination described in paragraph (1), or the

discrimination or the violation described in

paragraph (2), of subsection (a).

42 U.S.C. § 2000e-5. Enforcement provisions

(a) Power of Commission to prevent unlawful

employment practices

The Commission is empowered, as hereinafter

provided, to prevent any person from engaging in any

unlawful employment practice as set forth in section

2000e-2 or 2000e-3 of this title.

(b) Charges by persons aggrieved or member of

Commission of unlawful employment practices by

employers, etc.; filing; allegations; notice to

respondent; contents of notice; investigation by

Commission; contents of charges; prohibition on

98a

disclosure of charges; determination of reasonable

cause; conference, conciliation, and persuasion for

elimination of unlawful practices; prohibition on

disclosure of informal endeavors to end unlawful

practices; use of evidence in subsequent

proceedings;

penalties

for

disclosure

information; time for determination of reasonable

cause

Whenever a charge is filed by or on behalf of a person

claiming to be aggrieved, or by a member of the

Commission, alleging that an employer, employment

agency, labor organization, or joint labormanagement committee controlling apprenticeship or

other training or retraining, including on-the-job

training programs, has engaged in an unlawful

employment practice, the Commission shall serve a

notice of the charge (including the date, place and

circumstances of the alleged unlawful employment

practice) on such employer, employment agency,

labor organization, or joint labor-management

committee (hereinafter referred to as the

“respondent”) within ten days, and shall make an

investigation thereof. Charges shall be in writing

under oath or affirmation and shall contain such

information and be in such form as the Commission

requires. Charges shall not be made public by the

Commission. If the Commission determines after

such investigation that there is not reasonable cause

to believe that the charge is true, it shall dismiss the

charge and promptly notify the person claiming to be

aggrieved and the respondent of its action. In

determining whether reasonable cause exists, the

Commission shall accord substantial weight to final

findings and orders made by State or local authorities

99a

in proceedings commenced under State or local law

pursuant to the requirements of subsections (c) and

(d). If the Commission determines after such

investigation that there is reasonable cause to believe

that the charge is true, the Commission shall

endeavor to eliminate any such alleged unlawful

employment practice by informal methods of

conference, conciliation, and persuasion. Nothing said

or done during and as a part of such informal

endeavors may be made public by the Commission,

its officers or employees, or used as evidence in a

subsequent proceeding without the written consent of

the persons concerned. Any person who makes public

information in violation of this subsection shall be

fined not more than $1,000 or imprisoned for not

more than one year, or both. The Commission shall

make its determination on reasonable cause as

promptly as possible and, so far as practicable, not

later than one hundred and twenty days from the

filing of the charge or, where applicable under

subsection (c) or (d), from the date upon which the

Commission is authorized to take action with respect

to the charge.

notification of State or local authority; time for

filing charges with Commission; commencement of

proceedings

In the case of an alleged unlawful employment

practice occurring in a State, or political subdivision

of a State, which has a State or local law prohibiting

the unlawful employment practice alleged and

establishing or authorizing a State or local authority

to grant or seek relief from such practice or to

institute criminal proceedings with respect thereto

100a

upon receiving notice thereof, no charge may be filed

under subsection (a) 1 by the person aggrieved before

the expiration of sixty days after proceedings have

been commenced under the State or local law, unless

such proceedings have been earlier terminated,

provided that such sixty-day period shall be extended

to one hundred and twenty days during the first year

after the effective date of such State or local law. If

any requirement for the commencement of such

proceedings is imposed by a State or local authority

other than a requirement of the filing of a written

and signed statement of the facts upon which the

proceeding is based, the proceeding shall be deemed

to have been commenced for the purposes of this

subsection at the time such statement is sent by

registered mail to the appropriate State or local

authority.

(d) State or local enforcement proceedings;

notification of State or local authority; time for

action on charges by Commission

In the case of any charge filed by a member of the

Commission alleging an unlawful employment

practice occurring in a State or political subdivision

of a State which has a State or local law prohibiting

the practice alleged and establishing or authorizing a

State or local authority to grant or seek relief from

such practice or to institute criminal proceedings

with respect thereto upon receiving notice thereof,

the Commission shall, before taking any action with

respect to such charge, notify the appropriate State

or local officials and, upon request, afford them a

reasonable time, but not less than sixty days

(provided that such sixty-day period shall be

extended to one hundred and twenty days during the

101a

first year after the effective day of such State or local

law), unless a shorter period is requested, to act

under such State or local law to remedy the practice

alleged.

(e) Time for filing charges; time for service of

notice of charge on respondent; filing of charge by

Commission with State or local agency; seniority

system

(1) A charge under this section shall be filed

within one hundred and eighty days after the

alleged unlawful employment practice occurred

and notice of the charge (including the date, place

and circumstances of the alleged unlawful

employment practice) shall be served upon the

person against whom such charge is made within

ten days thereafter, except that in a case of an

unlawful employment practice with respect to

which the person aggrieved has initially

instituted proceedings with a State or local

agency with authority to grant or seek relief from

such practice or to institute criminal proceedings

with respect thereto upon receiving notice

thereof, such charge shall be filed by or on behalf

of the person aggrieved within three hundred

days after the alleged unlawful employment

practice occurred, or within thirty days after

receiving notice that the State or local agency has

terminated the proceedings under the State or

local law, whichever is earlier, and a copy of such

charge shall be filed by the Commission with the

State or local agency.

(2) For purposes of this section, an unlawful

employment practice occurs, with respect to a

102a

seniority system that has been adopted for an

intentionally discriminatory purpose in violation

of this subchapter (whether or not that

discriminatory purpose is apparent on the face of

the seniority provision), when the seniority

system is adopted, when an individual becomes

subject to the seniority system, or when a person

aggrieved is injured by the application of the

seniority system or provision of the system.

(3)(A) For purposes of this section, an unlawful

employment practice occurs, with respect to

discrimination in compensation in violation of

this

subchapter,

when

discriminatory

compensation decision or other practice is

adopted, when an individual becomes subject to a

discriminatory compensation decision or other

practice, or when an individual is affected by

application of a discriminatory compensation

decision or other practice, including each time

wages, benefits, or other compensation is paid,

resulting in whole or in part from such a decision

or other practice.

(B) In addition to any relief authorized by

section 1981a of this title, liability may accrue

and an aggrieved person may obtain relief as

provided in subsection (g)(1), including

recovery of back pay for up to two years

preceding the filing of the charge, where the

unlawful employment practices that have

occurred during the charge filing period are

similar or related to unlawful employment

practices with regard to discrimination in

compensation that occurred outside the time

for filing a charge.

103a

(f) Civil action by Commission, Attorney General,

or person aggrieved; preconditions; procedure;

appointment of attorney; payment of fees, costs, or

security; intervention; stay of Federal proceedings;

action for appropriate temporary or preliminary

relief pending final disposition of charge;

jurisdiction and venue of United States courts;

designation of judge to hear and determine case;

assignment of case for hearing; expedition of case;

appointment of master

(1) If within thirty days after a charge is filed

with the Commission or within thirty days after

expiration of any period of reference under

subsection (c) or (d), the Commission has been

unable to secure from the respondent a

conciliation agreement acceptable to the

Commission, the Commission may bring a civil

action against any respondent not a government,

governmental agency, or political subdivision

named in the charge. In the case of a respondent

which is a government, governmental agency, or

political subdivision, if the Commission has been

unable to secure from the respondent a

conciliation agreement acceptable to the

Commission, the Commission shall take no

further action and shall refer the case to the

Attorney General who may bring a civil action

against such respondent in the appropriate

United States district court. The person or

persons aggrieved shall have the right to

intervene in a civil action brought by the

Commission or the Attorney General in a case

involving a government, governmental agency, or

political subdivision. If a charge filed with the

104a

Commission pursuant to subsection (b) is

dismissed by the Commission, or if within one

hundred and eighty days from the filing of such

charge or the expiration of any period of reference

under subsection (c) or (d), whichever is later, the

Commission has not filed a civil action under this

section or the Attorney General has not filed a

civil action in a case involving a government,

governmental agency, or political subdivision, or

the Commission has not entered into a

conciliation agreement to which the person

aggrieved is a party, the Commission, or the

Attorney General in a case involving a

government, governmental agency, or political

subdivision, shall so notify the person aggrieved

and within ninety days after the giving of such

notice a civil action may be brought against the

respondent named in the charge (A) by the

person claiming to be aggrieved or (B) if such

charge was filed by a member of the Commission,

by any person whom the charge alleges was

aggrieved by the alleged unlawful employment

practice. Upon application by the complainant

and in such circumstances as the court may deem

just, the court may appoint an attorney for such

complainant

and

may

authorize

the

commencement of the action without the

payment of fees, costs, or security. Upon timely

application, the court may, in its discretion,

permit the Commission, or the Attorney General

in a case involving a government, governmental

agency, or political subdivision, to intervene in

such civil action upon certification that the case

is of general public importance. Upon request, the

105a

court may, in its discretion, stay further

proceedings for not more than sixty days pending

the termination of State or local proceedings

described in subsection (c) or (d) of this section or

further efforts of the Commission to obtain

voluntary compliance.

(2) Whenever a charge is filed with the

Commission and the Commission concludes on

the basis of a preliminary investigation that

prompt judicial action is necessary to carry out

the purposes of this Act, the Commission, or the

Attorney General in a case involving a

government, governmental agency, or political

subdivision, may bring an action for appropriate

temporary or preliminary relief pending final

disposition of such charge. Any temporary

restraining order or other order granting

preliminary or temporary relief shall be issued in

accordance with rule 65 of the Federal Rules of

Civil Procedure. It shall be the duty of a court

having jurisdiction over proceedings under this

section to assign cases for hearing at the earliest

practicable date and to cause such cases to be in

every way expedited.

(3) Each United States district court and each

United States court of a place subject to the

jurisdiction of the United States shall have

jurisdiction of actions brought under this

subchapter. Such an action may be brought in

any judicial district in the State in which the

unlawful employment practice is alleged to have

been committed, in the judicial district in which

the employment records relevant to such practice

are maintained and administered, or in the

106a

judicial district in which the aggrieved person

would have worked but for the alleged unlawful

employment practice, but if the respondent is not

found within any such district, such an action

may be brought within the judicial district in

which the respondent has his principal office. For

purposes of sections 1404 and 1406 of Title 28,

the judicial district in which the respondent has

his principal office shall in all cases be considered

a district in which the action might have been

brought.

(4) It shall be the duty of the chief judge of the

district (or in his absence, the acting chief judge)

in which the case is pending immediately to

designate a judge in such district to hear and

determine the case. In the event that no judge in

the district is available to hear and determine the

case, the chief judge of the district, or the acting

chief judge, as the case may be, shall certify this

fact to the chief judge of the circuit (or in his

absence, the acting chief judge) who shall then

designate a district or circuit judge of the circuit

to hear and determine the case.

(5) It shall be the duty of the judge designated

pursuant to this subsection to assign the case for

hearing at the earliest practicable date and to

cause the case to be in every way expedited. If

such judge has not scheduled the case for trial

within one hundred and twenty days after issue

has been joined, that judge may appoint a master

pursuant to rule 53 of the Federal Rules of Civil

Procedure.

107a

(g) Injunctions; appropriate affirmative action;

equitable relief; accrual of back pay; reduction of

back pay; limitations on judicial orders

(1) If the court finds that the respondent has

intentionally engaged in or is intentionally

engaging in an unlawful employment practice

charged in the complaint, the court may enjoin

the respondent from engaging in such unlawful

employment practice, and order such affirmative

action as may be appropriate, which may include,

but is not limited to, reinstatement or hiring of

employees, with or without back pay (payable by

the employer, employment agency, or labor

organization, as the case may be, responsible for

the unlawful employment practice), or any other

equitable relief as the court deems appropriate.

Back pay liability shall not accrue fro

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.