Mcfadden v. Ingersoll

• Decision Date: 29 June 2010
• Docket Number: No. 08-7140.,08-7140.
• Citation: 611 F.3d 1
• Parties: Vanessa A. McFADDEN, Appellantv.BALLARD SPAHR ANDREWS & INGERSOLL, LLP and Margaret Riley-Jamison, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

611 F.3d 1

Vanessa A. McFADDEN, Appellantv.BALLARD SPAHR ANDREWS & INGERSOLL, LLP and Margaret Riley-Jamison, Appellees.

No. 08-7140.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 8, 2009.

Decided June 29, 2010.

Appeal from the United States District Court for the District of Columbia (No. l:05-cv-02401-RJL).

Teresa W. Murray argued the cause and filed the briefs for appellant.

Jonathan R. Mook argued the cause for appellees. With him on the brief was Bernard J. DiMuro. Constantinos G. Panagopoulos entered an appearance.

Before GINSBURG, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

Vanessa A. McFadden sued Ballard Spahr Andrews & Ingersoll, LLP, a law firm at which she had worked, and Margaret Riley-Jamison, a Human Resources Manager at the firm, alleging violations of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ; the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ; § 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981; and the District of Columbia Human Rights Act, D.C.Code § 2-1402.11 et seq. (DCHRA). The district court granted summary judgment for the defendants on all claims and McFadden appealed.

I. Background

McFadden started work at Ballard Spahr in 1989 as a legal secretary assigned to Charles Henck, a partner in the firm's tax department. In October 2002 McFadden's husband was diagnosed with cancer. McFadden requested time off to care for him and was granted some leave. She claims Riley-Jamison and others at Ballard Spahr interfered with her ability to take additional leave by misinforming her about her entitlement to leave under the FMLA and by harassing her for taking too much time off. As a result, she claims, she took less time off then she was entitled to take and had to pay her sister to take care of her husband.

In April 2003 McFadden began to have her own health problems. Suffering from Graves' disease, fibromyalgia, depression, and a number of other ailments, she was unable to continue working and took disability leave in October. After the combination of paid and unpaid leave granted by Ballard Spahr expired in May 2004, McFadden contacted the firm in order to inquire about her job status. On a conference call with Riley-Jamison, among others, McFadden was offered a position doing word processing, but explained she could not do that job because of her difficulty typing. According to McFadden, she asked to be made the receptionist but was told that position was being held open for the permanent receptionist, Betty Ann Hahn, who was also out on medical leave. The firm then terminated McFadden, who is African-American; her replacement was Caucasian.

II. Analysis

McFadden alleged Ballard Spahr and Riley-Jamison discriminated against her upon the basis of race, in violation of Title VII, § 1981, and the DCHRA; failed to make a reasonable accommodation for her disability, in violation of the ADA and the DCHRA; retaliated against her, in violation of Title VII, the FMLA, the ADA, the DCHRA, and § 1981; and interfered with her right to take leave as provided in the FMLA. The district court granted summary judgment in favor of the defendants on all counts. We review that judgment de novo, “bearing in mind that summary judgment is appropriate only if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law.” Murphy v. IRS, 493 F.3d 170, 173 (D.C.Cir.2007) (internal quotation marks omitted).

A. Discrimination

McFadden claims Ballard Spahr and Riley-Jamison discriminated against her upon the basis of her race when the firm denied her request to be reassigned to the receptionist position and when it terminated her. We evaluate each allegation using the familiar burden-shifting framework established for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Howard Univ. v. Green, 652 A.2d 41, 45 & n. 3 (D.C.1994) ( McDonnell Douglas framework applies to cases alleging discrimination in violation of DCHRA); Metrocare v. Wash. Metro. Area Transit Auth., 679 F.2d 922, 925 (D.C.Cir.1982) (applying McDonnell Douglas framework to claim of discrimination under § 1981). Under this framework,

If the plaintiff establishes a prima facie case, the defendant must come forward with a legitimate, nondiscriminatory reason for its actions.... [I]f the defendant meets its burden of production, the burden shifts back to the plaintiff to persuade the fact finder that the defendant's reason for its action is a mere pretext for discrimination and (thus) that the defendant acted with “discriminatory intent.”

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

In keeping with Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008), the district court did not pause to consider whether McFadden had made out a prima facie case but instead went on directly to hold Ballard Spahr had provided a legitimate, non-discriminatory reason for each of the challenged actions: Ballard Spahr did not make McFadden its receptionist because that position was occupied by Hahn, who was on medical leave; and it terminated McFadden because she could no longer do her job owing to her medical condition. 580 F.Supp.2d 99, 109 (2008). The district court then held McFadden had not produced sufficient evidence for a reasonable jury to conclude the reasons offered by the firm were pretextual and granted summary judgment for the defendants.

McFadden argues Ballard Spahr's reason for refusing to give her the job of receptionist was a pretext because at that time, May 2004, Hahn had been on medical leave for several months and so had no legal entitlement to the position. That is not evidence sufficient for a reasonable jury to infer the firm's refusal to reassign McFadden was racially motivated. The firm claimed not that Hahn was legally entitled to the position at the time of McFadden's request for reassignment but rather that it was holding the position open for her return, a claim supported by its use of a temporary employee to fill in during Hahn's absence and until it became clear in August or September 2004 that Hahn would not be returning.

McFadden suggests the reason given by Ballard Spahr for her termination-that she was unable to perform the essential functions, of the legal secretary position-is not itself a legitimate, non-discriminatory reason because it is “on its face, discriminatory on the basis of disability.” There is nothing to this; the ADA does not prohibit an employer from terminating an employee who cannot perform the essential functions of her position, albeit with a reasonable accommodation. See 42 U.S.C. § 12112(a) (prohibiting discrimination “against a qualified individual”); 42 U.S.C. § 12111(8) (defining “qualified individual” as one “who, with or without reasonable accommodation, can perform the essential functions of the employment position”). McFadden in her brief acknowledges her medical condition rendered her unable to perform the essential functions of a legal secretary: “Disabled and no longer able to type, McFadden became unable to continue working as a Legal Secretary.” That is precisely the reason given by Ballard Spahr for terminating her.

McFadden also argues the rationale for Ballard Spahr's decision to terminate her was a pretext because several Caucasian support staff received accommodations not offered to McFadden. The district court found none of these employees was similarly situated to McFadden because each had a different supervisor and none was unable to perform her job due to a permanent medical condition. 580 F.Supp.2d at 110. The latter point is dispositive. That Ballard Spahr gave another employee time off in order to recover from a stroke, receive treatment for cancer, travel, or care for a newborn, does not provide the slightest reason to doubt Ballard Spahr's claim to have terminated McFadden because, as a result of her medical conditions, she was permanently unable to work as either a legal secretary or a typist. See Royall v. Nat'l Ass'n of Letter Carriers, 548 F.3d 137, 145 (D.C.Cir.2008) (allegation other employees were treated more favorably could not establish pretext where plaintiff had not shown “all of the relevant aspects of his employment were nearly identical” (internal quotation marks omitted)).

In sum, the district court correctly held McFadden produced insufficient evidence for a reasonable jury to hold pretextual Ballard Spahr's proffered non-discriminatory reasons for not reassigning her and for terminating her. Accordingly, we affirm the decision of the district court granting summary judgment in favor of the defendants with respect to McFadden's claim of discrimination upon the basis of race.

B. Reasonable Accommodation

The ADA “prohibits an employer from discriminating against an ‘individual with a disability’ who, with ‘reasonable accommodation,’ can perform the essential functions of the job,” U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 393, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002) (quoting 42 U.S.C. §§ 12112(a) & (b)), and the DCHRA is to like effect see Whitbeck v. Vital Signs, Inc., 116 F.3d 588, 591 (1997). McFadden claims Ballard Spahr violated the ADA and the DCHRA by refusing to reassign her to the receptionist position when she could no longer work as a legal secretary.

The district court held reassignment of McFadden to the receptionist position was not a reasonable accommodation for two reasons. First, although the ADA provides “ ‘reasonable accommodation’ may include ... reassignment to a vacant position,” 42 U.S.C. § 12111(9), the receptionist position was not vacant when McFadden requested reassignment. Second, McFadden could not perform the essential functions of the receptionist position because those functions included punctuality and reliability and...