United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 8, 2009 Decided June 29, 2010
No. 08-7140
VANESSA A. MCFADDEN,
APPELLANT
v.
BALLARD SPAHR ANDREWS & INGERSOLL, LLP AND
MARGARET RILEY-JAMISON,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-02401-RJL)
Teresa W. Murray argued the cause and filed the briefs
for appellant.
Jonathan R. Mook argued the cause for appellees. With
him on the brief was Bernard J. DiMuro. Constantinos G.
Panagopoulos entered an appearance.
Before: GINSBURG, BROWN and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
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GINSBURG, Circuit Judge: Vanessa A. McFadden sued
Ballard Spahr Andrews & Ingersoll, LLP, a law firm at which
she had worked, and Margaret Riley-Jamison, a Human
Resources Manager at the firm, alleging violations of the
Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.;
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq.; the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq.; § 1981 of the Civil Rights Act of 1866, 42
U.S.C. § 1981; and the District of Columbia Human Rights
Act, D.C. Code § 2-1402.11 et seq. (DCHRA). The district
court granted summary judgment for the defendants on all
claims and McFadden appealed.
I. Background
McFadden started work at Ballard Spahr in 1989 as a
legal secretary assigned to Charles Henck, a partner in the
firm‘s tax department. In October 2002 McFadden‘s husband
was diagnosed with cancer. McFadden requested time off to
care for him and was granted some leave. She claims Riley-
Jamison and others at Ballard Spahr interfered with her ability
to take additional leave by misinforming her about her
entitlement to leave under the FMLA and by harassing her for
taking too much time off. As a result, she claims, she took
less time off then she was entitled to take and had to pay her
sister to take care of her husband.
In April 2003 McFadden began to have her own health
problems. Suffering from Graves‘ disease, fibromyalgia,
depression, and a number of other ailments, she was unable to
continue working and took disability leave in October. After
the combination of paid and unpaid leave granted by Ballard
Spahr expired in May 2004, McFadden contacted the firm in
order to inquire about her job status. On a conference call
with Riley-Jamison, among others, McFadden was offered a
3
position doing word processing, but explained she could not
do that job because of her difficulty typing. According to
McFadden, she asked to be made the receptionist but was told
that position was being held open for the permanent
receptionist, Betty Ann Hahn, who was also out on medical
leave. The firm then terminated McFadden, who is African-
American; her replacement was Caucasian.
II. Analysis
McFadden alleged Ballard Spahr and Riley-Jamison
discriminated against her upon the basis of race, in violation
of Title VII, § 1981, and the DCHRA; failed to make a
reasonable accommodation for her disability, in violation of
the ADA and the DCHRA; retaliated against her, in violation
of Title VII, the FMLA, the ADA, the DCHRA, and § 1981;
and interfered with her right to take leave as provided in the
FMLA. The district court granted summary judgment in
favor of the defendants on all counts. We review that
judgment de novo, ―bearing in mind that summary judgment
is appropriate only if there is no genuine issue as to any
material fact and if the moving party is entitled to judgment as
a matter of law.‖ Murphy v. IRS, 493 F.3d 170, 173 (D.C.
Cir. 2007) (internal quotation marks omitted).
A. Discrimination
McFadden claims Ballard Spahr and Riley-Jamison
discriminated against her upon the basis of her race when the
firm denied her request to be reassigned to the receptionist
position and when it terminated her. We evaluate each
allegation using the familiar burden-shifting framework
established for Title VII cases in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Howard Univ. v. Green, 652
A.2d 41, 45 & n.3 (D.C. 1994) (McDonnell Douglas
4
framework applies to cases alleging discrimination in
violation of DCHRA); Metrocare v. Wash. Metro. Area
Transit Auth., 679 F.2d 922, 925 (D.C. Cir. 1982) (applying
McDonnell Douglas framework to claim of discrimination
under § 1981). Under this framework,
If the plaintiff establishes a prima facie case, the
defendant must come forward with a legitimate, non-
discriminatory reason for its actions. ... [I]f the
defendant meets its burden of production, the burden
shifts back to the plaintiff to persuade the fact finder that
the defendant‘s reason for its action is a mere pretext for
discrimination and (thus) that the defendant acted with
―discriminatory intent.‖
Koger v. Reno, 98 F.3d 631, 634 (D.C. Cir. 1996).
In keeping with Brady v. Office of Sergeant at Arms, 520
F.3d 490, 494 (D.C. Cir. 2008), the district court did not
pause to consider whether McFadden had made out a prima
facie case but instead went on directly to hold Ballard Spahr
had provided a legitimate, non-discriminatory reason for each
of the challenged actions: Ballard Spahr did not make
McFadden its receptionist because that position was occupied
by Hahn, who was on medical leave; and it terminated
McFadden because she could no longer do her job owing to
her medical condition. 580 F. Supp. 2d 99, 109 (2008). The
district court then held McFadden had not produced sufficient
evidence for a reasonable jury to conclude the reasons offered
by the firm were pretextual and granted summary judgment
for the defendants.
McFadden argues Ballard Spahr‘s reason for refusing to
give her the job of receptionist was a pretext because at that
time, May 2004, Hahn had been on medical leave for several
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months and so had no legal entitlement to the position. That
is not evidence sufficient for a reasonable jury to infer the
firm‘s refusal to reassign McFadden was racially motivated.
The firm claimed not that Hahn was legally entitled to the
position at the time of McFadden‘s request for reassignment
but rather that it was holding the position open for her return,
a claim supported by its use of a temporary employee to fill in
during Hahn‘s absence and until it became clear in August or
September 2004 that Hahn would not be returning.
McFadden suggests the reason given by Ballard Spahr for
her termination — that she was unable to perform the
essential functions of the legal secretary position — is not
itself a legitimate, non-discriminatory reason because it is ―on
its face, discriminatory on the basis of disability.‖ There is
nothing to this; the ADA does not prohibit an employer from
terminating an employee who cannot perform the essential
functions of her position, albeit with a reasonable
accommodation. See 42 U.S.C. § 12112(a) (prohibiting
discrimination ―against a qualified individual‖); 42 U.S.C.
§ 12112(8) (defining ―qualified individual‖ as one ―who, with
or without reasonable accommodation, can perform the
essential functions of the employment position‖). McFadden
in her brief acknowledges her medical condition rendered her
unable to perform the essential functions of a legal secretary:
―Disabled and no longer able to type, McFadden became
unable to continue working as a Legal Secretary.‖ That is
precisely the reason given by Ballard Spahr for terminating
her.
McFadden also argues the rationale for Ballard Spahr‘s
decision to terminate her was a pretext because several
Caucasian support staff received accommodations not offered
to McFadden. The district court found none of these
employees was similarly situated to McFadden because each
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had a different supervisor and none was unable to perform her
job due to a permanent medical condition. 580 F. Supp. 2d at
110. The latter point is dispositive. That Ballard Spahr gave
another employee time off in order to recover from a stroke,
receive treatment for cancer, travel, or care for a newborn,
does not provide the slightest reason to doubt Ballard Spahr‘s
claim to have terminated McFadden because, as a result of her
medical conditions, she was permanently unable to work as
either a legal secretary or a typist. See Royall v. Nat’l Ass’n
of Letter Carriers, 548 F.3d 137, 145 (D.C. Cir. 2008)
(allegation other employees were treated more favorably
could not establish pretext where plaintiff had not shown ―all
of the relevant aspects of his employment were nearly
identical‖ (internal quotation marks omitted)).
In sum, the district court correctly held McFadden
produced insufficient evidence for a reasonable jury to hold
pretextual Ballard Spahr‘s proffered non-discriminatory
reasons for not reassigning her and for terminating her.
Accordingly, we affirm the decision of the district court
granting summary judgment in favor of the defendants with
respect to McFadden‘s claim of discrimination upon the basis
of race.
B. Reasonable Accommodation
The ADA ―prohibits an employer from discriminating
against an ‗individual with a disability‘ who, with ‗reasonable
accommodation,‘ can perform the essential functions of the
job,‖ U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 393 (2002)
(quoting 42 U.S.C. §§ 12112(a) & (b)), and the DCHRA is to
like effect, see Whitbleck v. Vital Signs, Inc., 116 F.3d 588,
591 (1997). McFadden claims Ballard Spahr violated the
ADA and the DCHRA by refusing to reassign her to the
7
receptionist position when she could no longer work as a legal
secretary.
The district court held reassignment of McFadden to the
receptionist position was not a reasonable accommodation for
two reasons. First, although the ADA provides ―‗reasonable
accommodation‘ may include ... reassignment to a vacant
position,‖ 42 U.S.C. § 12111(9), the receptionist position was
not vacant when McFadden requested reassignment. Second,
McFadden could not perform the essential functions of the
receptionist position because those functions included
punctuality and reliability and ―at the time of her termination,
[McFadden] was unable to attend work consistently and had
no way of predicting whether her illnesses would allow her to
attend work on a given day.‖ 580 F. Supp. 2d at 107–08.
McFadden argues the district court erred in concluding
the receptionist position was not vacant for the same reason
she argues the firm‘s proffered reason for not reassigning her
was a pretext for discrimination, to wit, Hahn‘s entitlement to
leave under the FMLA had expired when McFadden
requested the position. As McFadden puts it in her brief,
―Hahn had no legal interest in the position.‖ Whether Hahn
had a legal interest in the position — under the FMLA or
otherwise — is not determinative, however. The word
―vacant‖ has no ―specialized meaning‖ in the ADA. Barnett,
535 U.S. at 399. Its meaning ―in ordinary English,‖ id., is
―not held, filled, or occupied, as a position or office.‖
Webster‘s New Twentieth Century Dictionary 2014 (2d ed.
1983). McFadden does not deny that at the time she
requested reassignment to the receptionist position Hahn, the
long-time permanent receptionist, was in the second month of
a three-month period of non-FMLA leave, during which the
law firm had a temporary employee filling in. McFadden
does not claim Ballard Spahr had sought a permanent
8
replacement for Hahn, had posted a job listing, or had
otherwise acted as though it considered the position vacant.
Under these circumstances Hahn clearly ―held, filled, or
occupied‖ the receptionist position.
McFadden‘s argument in the alternative that the
receptionist position was ―soon to be vacant‖ is a non-starter.
McFadden provides no evidence or argument Ballard Spahr
did not expect or at least reasonably hope Hahn would recover
and return to work when McFadden requested reassignment in
May 2004; her implicit suggestion to the contrary is belied by
the firm‘s failure to hire a permanent replacement until it had
become clear Hahn would not return in August or September
of 2004.
Because there is no genuine dispute about whether the
position to which McFadden requested reassignment was
vacant, we affirm the decision of the district court granting
summary judgment in favor of Ballard Spahr on McFadden‘s
claim the firm failed to provide a reasonable accommodation,
in violation of the ADA and the DCHRA. Therefore we need
not reach the alternative ground upon which the district court
relied. Nor do we address McFadden‘s argument the firm
should have assigned her to the receptionist position ―unless
or until Hahn came back;‖ McFadden doubly forfeited that
argument by failing to raise it in the district court and in her
opening brief on appeal. See, e.g., Bryant v. Gates, 532 F.3d
888, 898 (D.C. Cir. 2008) (argument not made before district
court is forfeited); Power Co. of Am., LP v. FERC, 245 F.3d
839, 845 (D.C. Cir. 2001) (court does not consider arguments
first offered in a reply brief).
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C. Retaliation
McFadden claims the defendants‘ denial of her request to
be given the position of receptionist and her termination also
constituted unlawful retaliation against her for conduct
protected by Title VII, the ADA, the FMLA, the DCHRA,
and § 1981. The analytical framework for her claim of
retaliation is essentially the same as that applicable to a claim
of discrimination under Title VII. See Cones v. Shalala, 199
F.3d 512, 520–21 (D.C. Cir. 2000) (Title VII); Woodruff v.
Peters, 482 F.3d 521, 528–29 (D.C. Cir. 2007) (ADA);
Gleklen v. Democratic Cong. Campaign Comm., Inc., 199
F.3d 1365, 1367 (D.C. Cir. 2000) (FMLA and DCHRA);
Carney v. Am. Univ., 151 F.3d 1090, 1095 (D.C. Cir. 1998)
(§ 1981). The district court granted summary judgment for
the defendants on this claim for the same reason it had
granted summary judgment on her claim of discrimination:
McFadden ―fail[ed] to show that Ballard Spahr‘s stated
legitimate reason for her termination was a pretext for
retaliation.‖ 580 F. Supp. 2d at 110 n.16.
Based upon two statements she recounted in her
deposition, McFadden argues a reasonable jury could infer
Ballard Spahr denied her request for reassignment and
terminated her in order to retaliate for her having requested
and taken leave due her under the FMLA, complained about
racial discrimination at Ballard Spahr, and requested
reassignment. Specifically, McFadden testified that Riley-
Jamison said the firm had too many sick people and should
hire younger, healthier people and an official in the firm‘s
Human Resources Department told McFadden, when
McFadden called the firm to inquire about her job status upon
the expiration of her leave, that she should ―resign and save
everybody the trouble.‖ Neither statement, however,
concerned McFadden‘s exercise or pursuit of protected rights
10
or otherwise sufficiently suggests retaliatory animus for a
reasonable jury to conclude Ballard Spahr‘s explanations for
refusing to reassign and for terminating McFadden were
pretexts for retaliation. See Pardo-Kronemann v. Donovan,
601 F.3d 599, 611 (D.C. Cir. 2010) (affirming grant of
summary judgment against plaintiff notwithstanding
statements ―reflect[ing] at most a personal opinion or
sympathy insufficient for a reasonable jury to conclude [the
employer‘s] explanation is [a] pretext for retaliation‖ (internal
quotation marks omitted)); Haynes v. Williams, 392 F.3d 478,
485 (D.C. Cir. 2004) (―evidence that is merely colorable or
not significantly probative cannot create a genuine issue of
material fact‖ (internal quotation marks omitted)).
Accordingly, we affirm the district court‘s judgment for the
defendants on McFadden‘s claim for retaliation.
D. Interference with FMLA Rights
McFadden claims the defendants interfered with her
rights under the FMLA by misinforming her about the amount
of leave to which she was entitled and by pressuring her not to
take leave. Her burden is to show both that her employer
―interfere[d] with, restrain[ed], or den[ied] the exercise of or
the attempt to exercise, any right provided‖ by the FMLA, 29
U.S.C. § 2615(a)(1), and that she was prejudiced thereby. See
Ragsdale v. Wolverine Worldwide, Inc., 535 U.S. 81, 89
(2002) (discussing elements).
In granting the defendants‘ motion for summary
judgment on this claim, the district court assumed arguendo
that Ballard Spahr violated the FMLA, 580 F. Supp. 2d at
105, but held no reasonable jury could find McFadden was
prejudiced by the alleged violation. The court gave three
reasons: (1) McFadden ―does not [claim] that Ballard Spahr
ever denied her leave when she requested it,‖ (2) McFadden
11
produced insufficient evidence in support of her contention
she paid her sister to care for her ailing husband, and (3)
McFadden does not ―allege a causal relationship between
Ballard Spahr‘s conduct and the payments.‖ Id. at 106.
None of the grounds relied upon by the district court
supports its decision. The first does not support summary
judgment because McFadden can succeed on her claim under
the FMLA without showing Ballard Spahr denied her any
leave she requested; she need only show the employer
―interfere[d] with ... the exercise of‖ her FMLA rights, 29
U.S.C. § 2615(a)(1), and that she suffered ―monetary losses ...
as a direct result of the violation, such as the cost of providing
care,‖ 29 U.S.C. § 2617(a)(1)(A)(i)(II).
As for the second ground, a reasonable jury could find
McFadden paid her sister to care for her husband upon the
basis of McFadden‘s uncontroverted declaration to that effect.
Contrary to the reasoning of the district court, the failure of
McFadden‘s sister to mention in her short sworn statement
that McFadden paid her is not in itself a reason to doubt
McFadden‘s deposition testimony. Finally, the third ground
does not support summary judgment because a reasonable
jury that found McFadden paid her sister to care for her
husband could infer McFadden did so because Ballard Spahr
led her to believe she could not take time off to care for him
herself. The causal relationship is implicit in McFadden‘s
allegation that, after Riley-Jamison said McFadden‘s need to
miss work on days when her husband had medical
appointments was ―going to be a problem,‖ in order ―[t]o
maintain her job, Ms. McFadden arranged for her sister to
care for [her] husband on [those days] and reported to work ...
as instructed.‖
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Because none of the grounds upon which the district
court relied supports its conclusion that no reasonable jury
could find McFadden was prejudiced by the purported
violation of the FMLA, we reverse the judgment of the
district court granting summary judgment for the defendants
on McFadden‘s claim under that statute. Ballard Spahr
suggests alternative grounds for affirming the judgment in this
respect but, because they implicate disputed issues of fact and
law, they are better addressed by the district court in the first
instance.
III. Conclusion
We reverse the judgment of the district court with respect
to McFadden‘s claim of interference in violation of the
FMLA and remand that claim for further proceedings because
there is a genuine issue of material fact as to whether
McFadden was prejudiced by the alleged interference.* We
affirm the judgment for the defendants with respect to
McFadden‘s other claims.
So ordered.
*
The district court did not reach the question whether Riley-
Jamison can be held personally liable for any of the firm‘s actions.
580 F. Supp. 2d at 110. We leave what remains of that issue for the
district court to decide in the first instance.