Petition for Writ of Certiorari — Eric Katz, Petitioner v. Merrick B. Garland, Attorney General

No.

In ®ie

Supreme Court of tlje Sfutteb States

Eric Katz,

Petitioner,

V.

Department of Justice,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

APPENDIX

Eric Katz, Pro Se

520 Lystra Preserve Drive

Chapel Hill, NC

PHONE: 559-240-2999

EMAIL: erickatz21@gmail.com

LANTAGNE LEGAL PRINTING

1108 East Main Street Suite 1201 Richmond Virginia 23219 (800) 847-0477

1

INDEX TO APPENDIX

A. Decision of the Fourth Circuit

App.l

B. Judgment of the District Court

App.4

C. Denial of Rehearing En Banc

App.34

App.l

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-1528

ERIC KATZ

Plaintiff - Appellant,

v.

MERRICK GARLAND, U.S. Attorney General, U.S.

Department of Justice,

Defendant - Appellee.

Appeal from the United States District Court for the

Eastern District of Virginia, at Alexandria. T. S.

Ellis, III, Senior District Judge. (l:20-cv-00554-TSEJFA)

Submitted: January 30, 2024

Decided: February 2, 2024

Before KING, AGEE, and THACKER, Circuit

Judges.

Affirmed by unpublished per curiam opinion.

Eric Katz, Appellant Pro Se. Elizabeth A. Spavins,

Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Alexandria,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in

this circuit.

App.2

PER CURIAM:

Eric Katz appeals the district court’s order

granting Defendant summary judgment on Katz’s

discrimination and retaliation claims, brought

pursuant to the Rehabilitation Act of 1973, as

amended, 29 U.S.C. §§ 701 to 7961, and on his

constructive discharge claim. We have reviewed the

record and find no reversible error. Accordingly, we

affirm the district court’s order. Katz v. Garland, No.

l:20-cv-00554-TSE-JFA (E.D. Va. Mar. 16, 2023). We

dispense with oral argument because the facts and

legal contentions are adequately presented in the

materials before this court and argument would not

aid the decisional process.

AFFIRMED

App.3

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

Civil Action No. l:20-cv-554

ERIC KATZ

Plaintiff,

v.

MERRICK GARLAND, ATTORNEY GENERAL,

U.S. DEPARTMENT OF JUSTICE,

Defendant.

SEALED MEMORANDUM OPINION

This employment discrimination case is before

the Court on Defendant’s Motion for Summary

Judgment. Oral argument on this matter was heard

on January 19, 2023, and the parties have

extensively briefed the Motion, including the

submission of supplemental briefs. Thus, this matter

is now ripe for disposition.

I.

On August 26, 2021, a Memorandum Opinion

and Order issued granting in part and denying in

part defendant’s First Motion to Dismiss the

Complaint. See Katz u. Dep’t of Justice, 2021 WL

3809034 (E.D. Va. Aug 26, 2021) (Memorandum

Opinion) (Dkt. 50). Specifically, pursuant to Rule

12(b)(6), Fed. R. Civ. P., the claims for (i) Improper

Collection, Use, and Maintenance of Protected

App.4

Medical Information under the Rehabilitation Act;

(ii) Improper Demand for Medical Documentation

and Examination under the Rehabilitation Act; and

(iii) Hostile Work Environment under the

Rehabilitation Act were dismissed for failure to state

a claim upon which relief could be granted. Id. The

Order and Memorandum Opinion did, however,

grant the plaintiff leave to amend with respect to his

hostile work environment claim. But the Order and

Memorandum Opinion denied the First Motion to

Dismiss with respect to the following counts:

■

■

■

Failure

to

Accommodate

under

the

Rehabilitation Act;

Retaliation under the Rehabilitation Act;1 and

Constructive Retaliatory Discharge.

Plaintiff timely filed a Second Amended

Complaint (“SAC”) on September 22, 2021, and

defendant thereafter moved to dismiss the SAC with

respect to the amended hostile work environment

claim. A Memorandum Opinion and Order dated

June 30, 2022 granted the Motion to Dismiss the

hostile work environment claim. See Katz u. Dep’t of

Justice, 2022 WL 2375162 (E.D. Va. Jun. 30, 2022)

(Memorandum Opinion) (Dkt. 66). Thus, the matter

proceeded to discovery only on plaintiffs claims for

(i) failure to accommodate, (ii) retaliation, and (iii)

1 The August 26, 2021 Memorandum Opinion and Order

permitted the retaliation claim to proceed only with respect to

allegations concerning plaintiffs job transfer to Arlington,

Virginia and defendant’s corresponding alleged failure to

accommodate. The claim was dismissed with respect to all

other allegations, including the removal of plaintiffs job duties.

See Katz u. Dep’t of Justice, 2021 WL 3809034 at *1.

App.5

constructive retaliatory discharge. Defendant now

moves for summary judgment on all three remaining

counts.

II.

To facilitate consideration of motions for summary

judgment, Rule 56, Fed. R. Civ. P., and Local Rule 56

require that the movant include a specifically

captioned section enumerating all material facts for

which the moving party contends there is no genuine

issue. The rules also require that the movant cite

parts of the record to support each fact. Rule 56, Fed.

R. Civ. P., and Local Rule 56 next require that the

non-movant include a specifically captioned section

enumerating material facts for which the non­

movant contends a genuine issue exists; these rules

also require that the non-movant cite to the record in

support of each fact.

Here, defendant, in compliance with the rules,

set forth a statement of material facts in separate

enumerated paragraphs that defendant contends are

undisputed. Next, plaintiff complied with the rules

in part. Plaintiff responded to defendant’s

enumerated statement of material facts by disputing

in enumerated paragraphs certain facts asserted by

defendant

and, at least in some

instances,

supporting anyalleged disputes of

fact with

admissible evidence. But plaintiff, in several

instances, stated that he denied a fact asserted as

undisputed by

defendant without pointing to

supporting record evidence. Such denials are not

effective to create a disputed issue of fact, as Local

Rule 56 requires that the non-movant dispute facts

by pointing to admissible evidence. Thus, where

App.6

facts were denied but not supported with record

evidence, the defendant’s asserted undisputed fact is

deemed admitted. Moreover, plaintiff, at several

places, asserted supplemental facts. Neither the

Federal Rules nor the Local Rules invite or permit

plaintiff, or any non-movant, from setting forth such

supplemental facts. In any event, defendant

responded to plaintiffs supplemental facts and each

of plaintiffs proposed facts has been taken into

account in the analysis. Finally, after supplemental

briefing was ordered regarding a new legal

argument that plaintiff raised at oral argument,

plaintiff submitted a brief containing a section

entitled “background,” which asserted various facts.

This background section is interpreted as just a

background section, and not as adding any further

disputes of fact, because plaintiff did not seek or

receive permission to add new facts to the record. In

any event, a careful review of plaintiffs

supplemental brief reveals no disputes of material

facts.

Accordingly, the following statement of facts is

derived from a careful review of defendant’s

statement of undisputed facts, plaintiffs response as

well as plaintiffs supplemental facts, and the record

as a whole.

■ The Drug Enforcement Administration (“DEA”)

hires Special Agents, who plan and conduct

investigations relating to suspected violations of

federal narcotics and dangerous drug laws. Special

Agents frequently work irregular, unscheduled

hours and assume personal risks.

App.7

■ The DEA’s Personnel Manual notes that, because

of the nature of a DEA Special Agent’s work,

applicants and employees must meet certain

physical requirements which are reassessed

periodically.

■ DEA Special Agents all sign a mobility

agreement, which states that the Special Agent may

be subject to frequent changes in posts of duty and

that mobility is a condition of the Special Agent’s

employment.

• The DEA had in place, during the relevant time

period, a reasonable accommodation policy. DEA’s

policy stated that the reasonable accommodation

process “must be a cooperative, interactive process”

that involves the requesting individual, the person

responsible for making decisions concerning

accommodations (typically the employee’s direct

supervisor), and an Accommodation Coordinator

specified by Headquarters (“HQ”).

■ In accordance with the DEA’s policy then in effect,

the interactive process should include a discussion of

all relevant issues, including which accommodations

are appropriate and do not pose undue hardship on

the DEA. As part of the interactive process, the

decisionmaker is entitled to documentation sufficient

to determine whether the individual has a disability

and whether the individual requires a reasonable

accommodation. If the documentation is insufficient,

the DEA’s policy makes clear that the decisionmaker

may request supplemental documentation and may

deny the request for reasonable accommodation if

such supplemental documentation is not received.

App.8

■ DEA’s reasonable accommodation policy also

notes that reassignment as an accommodation will

be considered only when an employee cannot

perform the essential functions of his or her current

position and no accommodation is possible in that

position.

Plaintiffs Tenure at DEA

■ Plaintiff, Eric Katz, began working at the DEA as

a Special Agent in 1996. In 2011, Plaintiff conceived

of the concept for the Cellular Abduction Tracking

System Program (“CATS Program”). Plaintiff

developed the CATS Program at DEA’s HQ in

Arlington, Virginia.

■ In 2015, DEA began considering moving the

CATS Program from HQ to a different location and

ultimately decided to move the program and the

corresponding then-unfilled Staff Coordinator

position to the Army’s Fort Bragg base in North

Carolina.

■ Plaintiff and his then-supervisor believed that

plaintiff should have automatically received the

Staff Coordinator position for the CATS Program.

But Michael DellaCorte, the then- Deputy Chief of

Operations in the Office of Operations Management,

advertised the Staff Coordinator position to the

public. The Staff Coordinator Position was

advertised as a nonenforcement HQ position,

meaning that the position would not include physical

exertion or the potential for physical confrontation.

At this time, plaintiff did not receive the Staff

Coordinator Position.

App.9

■ In the first half of 2017, plaintiff applied for a

Special Agent position in DEA’s Charlotte, North

Carolina District Office. Then, in June 2017, plaintiff

was

diagnosed

with

a

right

vestibular

schwannoma—a

benign

brain

tumor—after

experiencing hearing loss, tinnitus, and vertigo.2

■ After his diagnosis, plaintiff requested a medical

accommodation transfer on September 9, 2017.

Specifically, plaintiff, in his request, (i) stated that

he was withdrawing from consideration for the

Special Agent position in the DEA’s Charlotte office

and (ii) requested a medical accommodation transfer

to the Raleigh area, specifically by submitting his

name for consideration for the Staff Coordinator

position for the CATS Program in Fort Bragg, to be,

as he stated, in close proximity to Duke University

Medical Center (“Duke Medical Center”), where

plaintiff had located a specialist who treated his

particular tumor. Plaintiff completed the requisite

paperwork, and his request for accommodation was

approved on October 3, 2017. As a result of this

accommodation approval, plaintiff became the Staff

Coordinator for the CATS Program located in Fort

Bragg. Then, on October 30, 2017, plaintiff

submitted another accommodation request seeking

to work from home in North Carolina as needed.

This accommodation request was approved the very

next day.

2 Although the parties never submitted a description of a

vestibular schwannoma, an article from Duke Health confirms

that vestibular schwannomas are noncancerous growths. See

Duke Health, Acoustic Neuroma, Vestibular Schwannoma (last

visited Mar. 16, 2023), https://www.dukehealth.org/treatments/

ear-nose-and-throat/acousticneuroma.

App.10

■ Also in September 2017, plaintiff contacted DEA’s

Health Services Unit—which monitors whether

Special Agents meet the physical requirements for

duty—to provide medical records about his tumor.

Based upon a review of those records, DEA issued a

medical advisory for plaintiff on October 2, 2017,

which concluded that plaintiff did not meet the

physical standard for law enforcement positions as a

DEA agent.

Evaluation of the CATS Program in 2018-2019

■ Approximately a year later, in November 2018,

plaintiff was assigned a new supervisor, Luke

McGuire. McGuire was tasked by his supervisor—

Michael DellaCorte—with reviewing all programs

under McGuire’s supervision, including the CATS

Program for which plaintiff was now the Staff

Coordinator.

■ Beginning in December 2018, McGuire had

concerns with the management and operation of the

CATS Program in Fort Bragg and with plaintiffs

effectiveness as the Staff Coordinator of the CATS

Program. Specifically, one responsibility of plaintiff

in his role as Staff Coordinator of the CATS Program

in Fort Bragg was to serve as a task monitor for

contractors working in connection with the CATS

Program. Yet, in this regard, McGuire could not find

record of any work performed by two of the CATS

Program’s three contractors who were subject to

plaintiffs supervision as Staff Coordinator.

■ Adding to McGuire’s concerns about the

management of the CATS Program, McGuire

App.ll

learned from plaintiff on January 30, 2019 that the

DEA had no formal agreement with the Army

permitting the DEA to occupy space at Fort Bragg.

Because of the lack of formal agreement, McGuire

began to consider relocating the CATS Program to or

near DEA HQ in Arlington, VA.

■ In early February 2019, the contracting officer

representative for the CATS Program, Mina Hunter,

informed McGuire that plaintiff had not yet

completed a certain training module which McGuire

believed contractor task monitors—such

as

plaintiff—were required to complete.3 Thereafter, on

February 5, 2019, McGuire removed plaintiffs task

monitor responsibilities.

■ On March 14, 2019, McGuire visited the CATS

Program at Fort Bragg. Based on his visit, McGuire

was not satisfied with the status of the CATS

Program nor with how it was being operated and

supervised.4

■ Eventually, in March 2019, a decision was

made—either by McGuire or by McGuire’s

supervisor, Michael DellaCorte, on McGuire’s

recommendation—to relocate the CATS Program to

or near DEA HQ in Arlington, VA. Given that this

3 Plaintiff disputes the defendant’s assertion that plaintiff was

required to complete this task module. Thus, the undisputed

fact has been updated to reflect that McGuire believed that

plaintiff was required to complete the module, a fact plaintiff

does not dispute. In any event, this dispute is not material.

4 Plaintiff and defendant disagree regarding McGuire’s motive

for visiting the CATS Program in person on March 14, 2019, so

no reference to motive is included in the undisputed fact.

App.12

relocation would impact plaintiff because plaintiff

because plaintiff could not complete many of his

tasks remotely, McGuire reached out to several other

HQ sections and employees in the DEA to ask if they

had any remote work that plaintiff could perform,

but there were no such opportunities.5

■ Around the same time, at some point in March or

April 2019, plaintiff filed a complaint with the Equal

Employment Opportunity Commission (“EEOC”)

regarding the fact that McGuire had relieved

plaintiff of some job responsibilities.6

Plaintiffs Communications with Derek Orr7

5 It is undisputed that, in March 2019, McGuire knew of the

accommodations that plaintiff had been granted. What is

disputed, however, is when McGuire first learned of the

accommodations: March 2019, as defendant contends, or

November 2018, as plaintiff contends. It is also undisputed that

the decision to relocate the CATS Program was made either by

McGuire or by DellaCorte, although it is not clear which one of

the two actually made the decision. In any event, the disputes

about when McGuire knew of the accommodations and who

made the decision to relocate the CATS Program are

immaterial to the summary judgment analysis. Accordingly,

the statement of facts has been modified to reflect the disputes,

though none of the disputes are material.

6 This fact was asserted by plaintiff and not by defendant. But

the record makes clear that this fact cannot be disputed.

7 Plaintiff disputes each of the facts relating to his

communications with Derek Orr as incomplete and instead

points to the actual communications between plaintiff and Orr.

Thus, the facts listed here reflect the actual communications

between plaintiff and Orr as evidenced by the undisputed

factual record.

App.13

■ The decision to relocate the CATS Program to

Northern Virginia was formally communicated to

plaintiff in a memorandum that McGuire wrote to

plaintiff on April 23, 2019. In that memorandum,

McGuire instructed plaintiff to contact Derek Orr,

the Disability Employment Program Manager at the

DEA, for the purpose of engaging in an interactive

process to assess whether and how plaintiff could be

reasonably accommodated notwithstanding the move

of the CATS Program to or near DEA HQ in

Arlington, VA.

■ Pursuant to McGuire’s instructions, plaintiff

contacted Orr on May 2, 2019 to discuss possible

accommodations. Specifically, plaintiff expressed

interest in a law enforcement position in Greensboro,

NC. Orr informed Plaintiff that, because of the

accommodations plaintiff was granted in October of

2017, Orr needed updated medical documentation to

determine whether plaintiff was physically qualified

to perform the essential functions of law enforcement

positions, as opposed to the non-enforcement position

in which plaintiff was employed as Staff Coordinator

of the CATS Program.

■ Plaintiff, via counsel, refused Orr’s request for

updated medical documentation. Throughout May

2019, Orr continued to seek updated medical

documentation, explaining the need for such

information, namely, to determine whether plaintiff

was qualified for the law enforcement position that

plaintiff was seeking in Greensboro, despite the

October 2, 2017 advisory which concluded that

plaintiff did not meet the physical standard for law

App.14

enforcement positions. Plaintiff initially refused to

provide any medical documentation.

■ Eventually, in late May 2019, Orr received a

letter from Dr. Steven Chang at Stanford University,

which stated that plaintiff was a patient at Stanford

from September 8 through 13, 2017, and that

plaintiff would need future periodic scans and would

need a specialist familiar with plaintiffs specific

tumor type. Orr forwarded Dr. Chang’s letter to

Deborah Lary, the then-head of the Health Services

Unit of the DEA, to assist the DEA in determining

next steps with regard to plaintiffs request to be

placed in a law enforcement role.

■ On June 12, 2019, based upon the Health Services

Unit’s review of Dr. Chang’s letter, the DEA

requested additional information from plaintiff.

Specifically, the DEA requested that plaintiffs

treating physician complete a Special Agents

Functional Capabilities Questionnaire. The DEA

also requested that plaintiffs treating physician

identify any activities that plaintiff should not

perform.

■ Dr. Chang’s office returned the Special Agents

Functional Capabilities Questionnaire on June 28,

2019, noting no functional limitations. Dr. Chang’s

assessment was based on a 2017 examination. See

Defs Mot. Summ. J., Ex. 32.

■ On July 3, 2019, based upon the Questionnaire

completed by Dr. Chang, the DEA terminated

Plaintiffs existing medical advisory and cleared

plaintiff for full law enforcement duty.

App.15

■ On July 11, 2019, Gregory Cherundolo, then-Chief

of Operations, reassigned plaintiff to a Staff

Coordinator position in the Confidential Source

Section, Office of Operations Management; this

position was located in Arlington, Virginia at HQ.

Pending funding for his permanent change of

station, plaintiff was ordered to report to the Raleigh

District Office during regular business hours and to

receive assignments remotely from the Chief of the

Confidential Source Section. Plaintiff was expected

to report on July 21, 2019.

■ Also on July 11, 2019, Orr emailed plaintiff

stating that, based on the DEA’s termination of

plaintiffs medical advisory which was based on Dr.

Chang’s completed questionnaire, Orr believed that

plaintiff no longer required an accommodation.

Plaintiff replied that he still required the

accommodations of being close to Duke Medical

Center and working remotely as needed.

■ On July 25, 2019, plaintiff sent Orr a letter from

Dr. Michael Gertner, a family friend who never

physically examined plaintiff.8 In that letter, Dr.

Gertner stated that plaintiff should continue to have

access to Duke Medical Center. The letter also stated

that with reasonable accommodations—such as

telework when needed—plaintiff was able to perform

the essential functions of a law enforcement position.

■ Thereafter, on August 1, 2019, Orr wrote to

stating

that

additional

medical

plaintiff

8 See Def s Mot. Summ. J., Ex. 4 at 102 (plaintiff acknowledging

that Dr. Gertner never physically examined plaintiff).

App.16

documentation was needed to support plaintiffs

reasonable accommodation request. Specifically, Orr

attached a list of questions for Dr. Chang, and asked

plaintiff to send the questions to Dr. Chang or to

allow Orr to send the questions to Dr. Chang.

■ In response, plaintiff informed Orr that plaintiff

would designate a single point of contact for all

medical inquiries: Dr. Gertner. Orr then re-sent the

same list of questions, addressed this time to Dr.

Gertner.

■ Dr. Gertner responded with a letter that did not

answer all of the questions Orr had asked.

Specifically, Orr asked Dr. Gertner to provide the

frequency of plaintiffs treatment at Duke Medical

Center, but Dr. Gertner nowhere provided such

information. And Orr also asked Dr. Gertner to

provide information regarding the type of treatment

that plaintiff received at Duke Medical Center, but

Dr. Gertner also did not provide that information.9

9 Dr. Gertner never explained the reason that plaintiff had to

be treated at the Duke Medical Center rather than at any of the

major medical centers reasonably near DEA HQ in Arlington,

Virginia. Specifically, Johns Hopkins Hospital, Howard

University Hospital, George Washington University Hospital,

University

Medical

Center,

Virginia

Georgetown

Commonwealth University Medical Center at Richmond, and

the University of Virginia Health System, among others, are all

close to DEA HQ in Arlington, Virginia. There is no evidence

that any of these medical centers lack the ability to treat right

vestibular schwannomas. And most of these hospitals are closer

to DEA Headquarters than the approximately 80 miles

between Fort Bragg and Duke Medical Center. It is thus worth

noting that the premise of plaintiffs claim—that he must

remain close to Duke—strains credulity.

App.17

Plaintiffs Departure from DEA

■ In the fall of 2019, plaintiff requested Family

Medical Leave Act (“FMLA”) leave, from October 28,

2019 through March 31, 2020, to care for his mother.

Plaintiff s leave request was granted.

■ On March 31, 2020, plaintiff retired from the

DEA.10

III.

The standard for summary judgment is too wellsettled to require extensive elaboration here.

Summary judgment is appropriate when there is “no

genuine dispute as to any material fact” and based

on those undisputed facts the moving party “is

entitled to judgment as a matter of law.” Celotex u.

Catrett, 477 U.S. 317, 322 (1986). To serve as a bar

to summary judgment, disputes of fact must be

“material,” which means that they “might affect the

outcome of the suit under the governing law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). Importantly, at the summary judgment

stage, courts must “view the evidence in the light

most favorable to . . . the non[-]movant.” Dennis v.

Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645

(4th Cir. 2002).

10 Plaintiff states he retired, but defendant claims plaintiff

simply resigned. This dispute is not material to the summary

judgment analysis in which plaintiff claims he was

constructively discharged. The analysis here thus proceeds on

this assumption as well.

App.18

IV.

A.

Plaintiffs first claim is that the DEA, in

violation of the Rehabilitation Act, failed to provide

him with a reasonable accommodation, namely

allowing him to remain close to Duke Medical Center

in North Carolina indefinitely while he served as

Staff Coordinator of the

CATS

Program,

notwithstanding the fact that the CATS Program

was being moved to Arlington, Virginia.11

To establish a prima facie case of failure to

accommodate under the Rehabilitation Act, plaintiff

must prove (1) that he qualifies as an “individual

with a disability’ as defined by statute; (2) that the

DEA had notice of his disability; (3) that with

reasonable accommodation plaintiff could perform

the essential functions of his job; and (4) that the

DEA

refused

to

make

such

reasonable

accommodations. Reyazuddin v. Montgomery Cty.,

Md., 789 F.3d 407, 414 (4th Cir. 2015). If plaintiff

establishes a prima facie case, then the defendant

may still lawfully deny an accommodation if that

accommodation would pose an “undue hardship” to

the employer. Id.

For purposes of summary judgment, defendant

does not dispute that plaintiff has satisfied the first

and second elements of a prima facie case, namely

that plaintiff is an individual with a disability as

defined by statute and that the DEA had notice of

11 Specifically, plaintiff argues that he should have been

allowed to serve as Staff Coordinator of the CATS Program

remotely.

App.19

plaintiffs disability.12 But defendant argues that

plaintiff has not satisfied the third and fourth

elements, namely that he could perform the essential

functions of his job with reasonable accommodation

and that the DEA refused to make such

accommodations. Defendant is correct; plaintiff has

failed to establish the third and fourth elements of a

prima facie case for failure to accommodate.

With respect to the third element, which

requires that plaintiff demonstrate he could perform

the essential functions of his job as Staff Coordinator

of the CATS Program with the reasonable

accommodation of working from North Carolina, the

Fourth Circuit has made clear that plaintiff bears (i)

the “burden of identifying an accommodation that

would allow a qualified individual to perform the

job” and (ii) “the ultimate burden of persuasion with

respect

to

demonstrating

that

such

an

accommodation is reasonable.” Lamb v. Qualex, Inc.,

33 F. App’x 49, 59 (4th Cir. 2002) (citing Halperin v.

Abacus Tech. Corp., 128 F.3d 191, 197 (4th Cir.

1997)). Plaintiff here has not established that his

request to remain close to Duke Medical Center

indefinitely, irrespective of DEA’s operational needs,

was reasonable. In this regard, the Fourth Circuit’s

decision in Smith v. CSRA, 12 F.4th 396 (4th Cir.

2021) is instructive. There, the plaintiff argued that

the Rehabilitation Act required her employer,

coincidentally also the DEA, to allow her to work

remotely. The Fourth Circuit rejected that

argument, concluding instead that the “DEA was not

required to offer [the plaintiff] a remote work

12 The parties have assumed, for purposes of summary

judgment

analysis,

that

plaintiffs

right

vestibular

schwannoma qualifies as a disability.

App.20

accommodation and its failure to do so was not a

refusal to accommodate.” 12 F.4th at 415. In so

concluding, the Fourth Circuit recognized that the

DEA possessed a “legitimate expectation” that the

plaintiff there would report to “DEA headquarters

for work daily.” Id. This analysis applies here.

Plaintiff, here, sought an accommodation allowing

him to work remotely from North Carolina, away

from the physical site of the CATS Program. As the

Fourth Circuit recognized in Smith, the DEA is not

required to grant such an accommodation and has a

legitimate interest in expecting that the plaintiff

arrive to work in-person at DEA HQ every day.

Moreover, it is worth noting that at the same time

plaintiff claimed he needed an accommodation,

plaintiff was seeking a law enforcement position and

thus submitted documentation from Dr. Chang

clearing plaintiff for full law enforcement duty, a

conclusion which itself undermines plaintiffs need

for an accommodation. Thus, plaintiff has not

demonstrated that the accommodation he sought

was reasonable and plaintiff has not satisfied the

third element necessary to state a claim for failure to

accommodate under the Rehabilitation Act.13

Seeking to avoid this conclusion, plaintiff argues

that

DEA

had

previously

granted

the

accommodation sought by plaintiff, and that it was

therefore unreasonable for the DEA to withdraw

that accommodation. But this is not the law, as the

Fourth Circuit has made clear that an employer is

not required to provide a particular accommodation

in perpetuity merely because the accommodation

13 As noted supra, n.9, it is far from clear why plaintiff required

treatment at Duke Medical Center rather than the numerous

major medical centers near DEA HQ in Arlington, Virginia.

App.21

was once granted. Elledge v. Lowe’s Home Ctrs.,

LLC, 979 F.3d 1004, 1013 (4th Cir. 2020)

need

not

be

extended

(accommodations

“indefinitely”). Indeed, in Smith, the Fourth Circuit

concluded that the DEA was not required to grant

the plaintiff there the requested work-from-home

accommodation notwithstanding the fact that DEA

had granted that accommodation in the past. See

Smith, 12 F.4th at 415. Moreover, it is clear from the

undisputed record that the circumstances had

changed. Specifically, the CATS Program was being

moved from Fort Bragg in North Carolina to

Arlington, Virginia, making it far more difficult for

plaintiff to perform his role as staff coordinator from

North Carolina. Accordingly, plaintiffs argument

that the DEA is not allowed to remove

accommodations once they have been given runs

counter to clear Fourth Circuit precedent.

Additionally, the undisputed facts demonstrate

that plaintiff has not satisfied the fourth element of

a prima facie case for failure to accommodate,

namely that the DEA failed to grant a reasonable

accommodation. In this regard, the Fourth Circuit

has held that “implicit in the fourth element” is that

the employer and employee engage in an “interactive

process” to identify a reasonable accommodation that

can meet the genuine needs of both the employee

and the employer. Haneke v. Mid-Atlantic Capital

Mgmt., 131 F. App’x 399, 400 (4th Cir. 2005). When

an employee claims that he requires a special

accommodation due to an illness or disability, the

employer may require that the employee furnish

medical documentation demonstrating that the

accommodation is required. Delaval v. PTech

Drilling Tubulars, LLC, 824 F.3d 476, 482 (5th Cir.

App.22

2016). If the employee refuses to furnish the

requested documentation, then the employee “causes

a breakdown in the interactive process” that

precludes an employer’s liability. Id.

Precisely this happened here, as plaintiff failed

to provide documentation requested by the DEA,

causing a breakdown in the interactive process

which thereby precludes the DEA’s liability. The

DEA requested medical records to verify plaintiffs

medical need to remain close to Duke Medical

Center, but plaintiff for weeks refused to provide any

such medical documentation. And when plaintiff

eventually submitted a short, vague letter from a

doctor whom plaintiff had not seen since 2017, the

DEA determined it needed more detailed and more

updated information and thus requested that

plaintiffs treating physician complete a Special

Agents Functional Capabilities Questionnaire. To be

sure, plaintiffs doctor—the same doctor who had not

physically examined plaintiff since 2017—completed

the Questionnaire, noting no functional limitations.

Based on that completed Questionnaire, the DEA

concluded that plaintiff did not need an

accommodation. Unhappy with that result, plaintiff

submitted a letter from another doctor—Dr. Gertner,

a family friend—stating that plaintiff needed

continual access to Duke Medical Center. DEA

engaged interactively and in good faith by

requesting additional medical documentation to

verify Dr. Gertner’s opinion. Specifically, DEA

sought answers to a list of questions, including

whether plaintiff actually visited Duke Medical

Center for treatment and the frequency of plaintiffs

treatment at Duke Medical Center. Dr. Gertner, who

never physically examined plaintiff, replied with a

App.23

five-page letter. But Dr. Gertner did not answer all

of the questions that the DEA had asked.

Specifically, despite the DEA requesting information

regarding the frequency and type of treatment that

plaintiff received at Duke Medical Center, Dr.

Gertner did not provide that information. See Defs

Mot. Summ. J., Ex. 40, 41. Thus, plaintiff, through

his doctor, failed to respond to the DEA’s legitimate

inquiries and thereby caused a breakdown in the

interactive process, precluding defendant’s liability.

At oral argument, plaintiff argued that it was

the DEA, not plaintiff, that caused a breakdown in

the interactive process by not following its own

internal procedures. Specifically, plaintiff contends

that DOJ Instruction 1100.01.01 requires the

issuance of a specific form—Form 100C—when an

agency such as the DEA revokes an accommodation.

But, as the government responded, DEA did not

violate DOJ Instruction 1100.01.01. This is so

because DOJ Instruction 1100.01.01 did not exist

during the relevant time period, and, in any event,

that Instruction requires only that the DEA notify

plaintiff of the accommodation withdrawal in

writing, not that the DEA use specifically Form

100C. And even had the DEA failed to comply with

its own procedures, district courts have concluded

that an agency’s failure to comply with its own

policies does not violate the Rehabilitation Act. See,

e.g., Williams u. Avnet, Inc., 910 F. Supp. 1124, 1135

(E.D.N.C. 1995), aff’d, 101 F.3d 346 (4th Cir. 1996);

Johnson v. Austin, 2022 WL 4783293, at *6 (E.D. Va.

June 24, 2022) (holding, in a case alleging, inter alia,

disability discrimination, that the Department of

Defense’s violation of its own policy, without more,

“does not prove discriminatory intent”). Plaintiffs

App.24

argument is thus meritless given that (i) DOJ

Instruction 1100.01.01 was not in force at the

relevant time period; (ii) even had the Instruction

been in effect, the DEA complied with the

Instruction; and (iii) even assuming that the DEA

had not complied with Instruction 1100.01.01, that

failure to comply does not preclude summary

judgment here.

Plaintiff next argues that summary judgment is

inappropriate because the DEA never informed

plaintiff that his requested accommodation posed an

undue hardship to DEA. But there is no requirement

that the agency use the specific words “undue

hardship” when revoking an accommodation, and the

DEA did convey to plaintiff the reason the

accommodation was being revoked. Specifically, the

DEA told plaintiff that his accommodation needed to

be re-evaluated in light of the fact that the CATS

Program was leaving North Carolina, making

plaintiffs accommodation of living in North Carolina

burdensome, and because plaintiff was applying for

an enforcement position, suggesting that plaintiff

did not require his existing accommodations. As the

Fourth Circuit has noted, an agency is not required

to grant a remote work accommodation, as it has a

legitimate expectation that its employees will report

in-person daily. CSRA, 12 F.4th at 415. In any event,

plaintiffs argument is incorrect as a matter of law,

because the “undue hardship” analysis is relevant

only after a plaintiff establishes a prima facie case;

an employer may refuse an accommodation, even if

the employee has established a prima facie case of

failure to accommodate, if the plaintiffs “requested

accommodation imposes an undue hardship on the

employer.” Reyazuddin, 789 F.3d at 416. But here,

App.25

as noted above, plaintiff has failed to establish the

third and fourth required elements for a prima facie

case of failure to accommodate. Thus, plaintiffs

argument that summary judgment is prevented by

the DEA’s failure to inform plaintiff that his

requested accommodation posed an undue hardship

is incorrect as a matter of fact and as a matter of

law.

In sum, summary judgment is appropriate on

the failure to accommodate claim because plaintiff

has not satisfied two elements of a prima facie case

for failure to accommodate. First, plaintiff has not

demonstrated that his requested accommodation

was reasonable, and second, the record reflects that

plaintiff caused a breakdown in the reasonable

accommodation

interactive

process,

thereby

precluding his claim for failure to accommodate.

B.

Plaintiffs next claim is that the DEA retaliated

against plaintiff by transferring plaintiff to or near

DEA HQ in Arlington, Virginia.14 A plaintiff may

14 In his supplemental brief, plaintiff also asserts that he was

retaliated against when McGuire told plaintiff that he could be

placed on a performance improvement plan. But the August 26,

2021 Order and Memorandum Opinion granting in part

defendant’s Motion to Dismiss permitted plaintiff to pursue a

retaliation claim only with respect to allegations concerning

plaintiffs job transfer to Arlington, Virginia and defendant’s

corresponding failure to accommodate. The claim was

dismissed with respect to all other allegations, including the

removal of plaintiffs job duties. See Katz v. Dep’t of Justice,

2021 WL 3809034 (E.D. Va. Aug 26, 2021) (Dkt. 50). In any

event, several circuits have concluded that a performance

improvement plan does not qualify as an adverse action. See,

e.g., Fields v. Bd. of Educ. of Chicago, 928 F.3d 622, 626 (7th

App,26

prove a retaliation claim either through direct

evidence of retaliatory animus or via the application

of

the

McDonnell

Douglas

burdenshifting

framework. Roberts u. Glenn Indus. Grp., Inc., 998

F.3d 111, 122 (4th Cir. 2021). Here, plaintiff has

chosen the McDonnell Douglas framework.

Under that framework, a plaintiff must first

establish a prima facie case of retaliation by showing

(1) that he engaged in a protected activity; (2) that

his employer took an adverse action against him;

and (3) that a causal connection existed between the

protected activity and the asserted adverse action.

See King u. Rumsfeld, 328 F.3d 145, 150-51 (4th Cir.

2003). If a plaintiff establishes a prima facie case,

the burden shifts to the employer to show that it

took the alleged adverse action “for a legitimate nonretaliatory reason.” Roberts, 998 F.3d at 122. If the

employer makes that showing, then the burden

shifts back to the plaintiff “to rebut the employer’s

evidence by demonstrating the employer’s purported

non-retaliatory

reasons

were

pretext

for

discrimination.” Id. Although, at this stage, there

may be enough evidence in the record to conclude

that plaintiff has established a genuine dispute of

material fact with regard to a prima facie case of

retaliation, the DEA has demonstrated that it

transferred plaintiff for non-retaliatory reasons, and

plaintiff here has not shown any pretext to rebut the

DEA’s showing.

First, defendant contends that plaintiff has

failed to establish a prima facie case of retaliation

Cir. 2019); Payan v. United Parcel Servs., 905 F.3d 1162, 117374 (10th Cir. 2018). Thus, plaintiffs argument raised in his

supplemental brief was rejected at the Motion to Dismiss stage

and is likely meritless in any event.

App.27

because plaintiff has not demonstrated a causal

connection between the protected activity—here,

submitting an EEOC complaint15—and the alleged

retaliatory adverse action: the decision to relocate

the CATS Program and plaintiffs Staff Coordinator

position to DEA HQ in Arlington, VA. This is so, in

defendant’s view, because the decision to relocate the

CATS Program occurred before plaintiff submitted

an EEO complaint, which occurred at some point

between March 6, 2019 and March 15, 2019.

Although defendant may be correct in this regard,

the record reveals that there may be a genuine

dispute of material fact regarding the date on which

the decision was made to relocate the CATS Program

from North Carolina to or near DEA HQ in

Arlington, VA. Specifically, some evidence suggests

that the decision to relocate the CATS Program to or

near DEA HQ in Arlington, Virginia was made in

February 2019. See Defs Mot. Summ. J., Ex. 4 at

119 (plaintiff testifying that he first learned of the

decision to relocate the CATS Program in February

2019). But other evidence indicates that, in February

2019, plaintiffs supervisor—McGuire—was only

considering relocating the CATS Program, and that

a final decision was not made until March 21, 2019.

See Plfs Opp’n, Ex. 4 at 179 (McGuire testifying that

he only made a final decision to relocate the CATS

Program after his visit to Fort Bragg on March 14,

2019). Because there may be a genuine dispute of

fact regarding the date on which the decision was

made to relocate the CATS Program and plaintiffs

position to Arlington, Virginia, plaintiff has shown

15 Submission of an EEOC complaint is protected activity under

the Rehabilitation Act. See 42 U.S.C. § 12203.

App.28

enough for a prima facie case of retaliation at this

stage under the McDonnell Douglas framework.

But even assuming that there is a factual

dispute on the prima facie case, plaintiffs retaliation

claim still fails. This is so because the burden then

shifts to the defendant to proffer that it took the

alleged adverse action of moving the CATS Program

to or near DEA HQ in Arlington, Virginia “for a

legitimate non-retaliatory reason.” Roberts, 998 F.3d

at 122. Here, defendant has no trouble meeting this

burden. As discussed supra with respect to the

failure to accommodate claim, there is ample

evidence in the record that defendant had a

legitimate business reason for transferring the CATS

Program, and plaintiff, to or near DEA HQ in

Arlington, Virginia. To begin with, the Fourth

Circuit has concluded that the DEA possesses a

legitimate business interest in requesting that

employees work at headquarters, which is exactly

what happened here. See Smith v. CRSA, 12 F. 4th

396, 415 (4th Cir. 2021). In any event, the record

here reflects that McGuire possessed concerns about

the management and supervision of the CATS

Program in Fort Bragg, further justifying the

relocation to or near DEA HQ in Arlington, Virginia.

Defendant has thus demonstrated that the DEA took

the alleged adverse action—the relocation of the

CATS Program—for a legitimate non-retaliatory

reason.

The burden then shifts back to plaintiff to

attempt to “rebut the employer’s evidence by

demonstrating the employer’s purported non[a]

pretext

for

retaliatory

reasons

were

discrimination.” Roberts, 998 F.3d at 122. To

demonstrate pretext, the Fourth Circuit has held

App.29

that a plaintiff is required to demonstrate “both that

the employer’s reason was false” and that the

adverse action would not have taken place “but for

[the] employer’s retaliatory animus.” Fry v. Rand

Constr. Corp., 964 F.3d 239, 246 (4th Cir. 2020). Put

simply, plaintiff here is required to demonstrate a

dispute of material fact such that a jury could

conclude that DEA’s discriminatory motives were

the but-for cause of DEA’s decision to move the

CATS Program back to or near DEA HQ in

Arlington, Virginia. Id. Here, plaintiff has not

demonstrated that DEA’s discriminatory motives

were the but-for cause of DEA’s decision to move the

CATS Program to Arlington, Virginia. This is so

because the undisputed record reflects that, even if

the DEA had not finalized its decision, it was giving

serious consideration to relocating the CATS

Program in February 2019, one month before

plaintiff performed the protected activity of filing his

EEO complaint. This is notable because the Fourth

Circuit has held that where, as here, an employer

began considering taking the alleged adverse action

before the plaintiff conducts the protected activity, a

plaintiff cannot meet his burden of demonstrating

pretext. See id. at 248 (“an employer proceeding

along lines previously contemplated, though not yet

definitively determined, is no evidence whatsoever of

causality.” (internal quotation marks and citation

omitted)). And plaintiff has put forward no evidence

in the record suggesting that the defendant’s

proffered non-retaliatory reason was false. Thus,

plaintiff has not met his burden of demonstrating

that the DEA’s purported non-retaliatory reasons

were pretext for discrimination. Accordingly, because

plaintiff has failed to establish pretext, it is

App.30

appropriate to grant summary judgment to the

defendant with respect to plaintiffs retaliation

claim.

C.

Defendant next moves for summary judgment on

plaintiffs claim that he was constructively

discharged in retaliation for filing an EEOC

Complaint. Specifically, plaintiff argues that he was

constructively discharged when he was given little or

no work to perform between March 15, 2019 and

July 20, 2019. In this regard, the prima facie

elements of a retaliatory constructive discharge

claim are the same as a retaliation claim such that a

plaintiff must demonstrate (1) that he engaged in a

protected activity; (2) that his employer took an

adverse action against him that amounted to a

constructive discharge; and (3) that a causal

connection existed between the protected activity

and the asserted adverse action. See King v.

Rumsfeld, 328 F.3d 145, 150-51 (4th Cir. 2003).

In this case, plaintiff has not satisfied the second

element of a prima facie case; he has not shown, as

required, that his working conditions were so

intolerable that a reasonable person in the

employee’s position would have felt compelled to

resign. See Bristow v. Daily Press, Inc., 770 F.2d

1251, 1255 (4th Cir. 1985). In this regard, the Fourth

Circuit has held that dissatisfaction with work

assignments, a feeling of being unfairly criticized,

and difficult and unpleasant working conditions are

“not so intolerable as to compel a reasonable person

to resign.” Williams v. Giant Food Inc., 370 F.3d 423,

434 (4th Cir. 2004). But all that plaintiff here points

App.31

to in support of his constructive discharge claim is

that he had little to no work to perform; plaintiff has

not pointed to any record of intolerable working

work

dissatisfaction

with

conditions.

This

assignments—or lack thereof—does not demonstrate

that the DEA took an adverse action. Thus, plaintiff

has failed to satisfy the second element of a prima

facie case for constructive discharge.

Even assuming, arguendo, that plaintiff had

satisfied the second element of a prima facie case,

plaintiffs constructive retaliatory discharge claim

would still fail because plaintiff did not resign soon

after the alleged retaliation. In this respect, the

Fourth Circuit has held that a claim for constructive

discharge fails where a plaintiff does not resign, and

instead chooses to remain employed. Jones v.

UnitedHealth Grp., Inc., 802 F. App’x 780, 783 (4th

Cir. 2020) (per curiam) (citing Green v. Brennan, 578

U.S. 547, 555 (2016)). And the Fourth Circuit has

also held that even where a plaintiff resigns, the

resignation must be temporally linked to the alleged

retaliatory conduct. See Munday u. Waste Mgmt. of

N.A., Inc., 126 F.3d 239, 244 (4th Cir. 1997). This

temporal link is necessary to ensure that the

resignation was caused by the retaliatory conduct.

Id. Thus, the Fourth Circuit has concluded that a

plaintiff who resigned three months after alleged

retaliation failed to establish a claim for constructive

discharge, because the resignation was not

temporally linked to the retaliation. See Nye v.

Roberts, 145 F. App’x 1, 4 n.l (4th Cir. 2005). Here,

as all parties agree, the alleged retaliatory conduct

that forms the basis for plaintiffs claim of

constructive discharge ended in July 2019, when

plaintiff took FMLA leave. But plaintiff did not

App.32

resign from the DEA until March 2020, eight months

after the alleged retaliatory conduct of being given

little to no work ceased. Indeed, had plaintiff

returned to work after his FMLA leave rather than

retire, he may have been given more-substantial

work assignments. In any event, because the Fourth

Circuit has concluded that a three-month gap

between retaliatory conduct and resignation

precludes a constructive discharge claim, an eightmonth gap must, a fortiori, preclude a constructive

discharge claim. Accordingly, because the timing of

plaintiffs resignation does not allow for a

constructive discharge claim here, plaintiffs

constructive discharge claim fails.

Thus, plaintiffs constructive discharge claim

fails for two independent reasons. First, plaintiffs

dissatisfaction with work assignments is insufficient

to satisfy the second element of a prima facie case for

constructive discharge-an adverse action-as a matter

of law. Second, plaintiff did not resign soon after the

retaliation, thereby demonstrclting that his

resignation was not caused by the retaliation.

Accordingly, it is appropriate to grant defendant's

Motion for Summary Judgment with respect to the

constructive discharge claim.

V.

In sum, it is appropriate to grant defendant's

Motion for Summary Judgment in its entirety.

Plaintiffs failure to accommodate claim fails because

plaintiff has not demonstrated that his request to

remain close to Duke Medical Center was

reasonable, and in any event, plaintiff caused a

breakdown in the interactive process. Plaintiffs

App.33

retaliation claim fails because the DEA had a

legitimate business reason to move plaintiff back to

DEA HQ, and plaintiff has not demonstrated that

DEA was acting with pretext. And plaintiffs

constructive retaliatory discharge claim fails because

plaintiff has not demonstrated that he suffered an

adverse action, and in any event, plaintiffs

resignation was not temporally linked to the alleged

retaliatory conduct. Thus, summary judgment on all

remaining counts is appropriate.

An appropriate Order will issue.

The Clerk is directed to send a copy of this

Memorandum Opinion to all counsel of record.

Alexandria, Virginia

March 16, 2023

/s/T.S. Ellis. Ill

United States District Judge

App.34

FILED: April 15, 2024

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-1528

(l:20-cv-00554-TSE-JFA)

ERIC KATZ

Plaintiff - Appellant

v.

MERRICK GARLAND, U.S. Attorney General,

U.S. Department of Justice

Defendant - Appellee

ORDER

The petition for rehearing en banc was circulated

to the full court. No judge requested a poll under

Fed. R. App. P. 35. The court denies the petition for

rehearing en banc.

For the Court

/s/ Nwamaka Anowi, Clerk